# Appendix — Davis v. Board of School Commissioners > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_2100%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 425 U.S. 944 ## Text Order of the District Court, February 13, 1975 IN THE UNITED STATES DISTRICT COURT For THE SoutTHern District or ALABAMA SouTHERN Division Civil Action No. 3003-63-H Birpre Mar Davis, et al., Plaintiffs, Unirep States or AMERICA, Plaintiff-Intervenor, Epwin Foster, Plaintiff-Intervenor, James E. Buskey, Plaintiff-Intervenor, vs. Boarp or Scuoor Commissioners oF Mose Cocnty, et al., Defendants. ORDER Plaintiff-Intervenor, James E. Buskey, having filed an affidavit pursuant to the provisions of 28 U.S.C. 6144 for the Judge to recuse himself from further proceeding in la 2a Order of the District Court, February 13, 1975 or presiding over any aspect of this trial and the Court having considered the same in light of what the Court understands to be the law as set forth in Parrish v. Board of Commisstoners of Alabama State Bar, Court of Appeals Case #73-3553, 474-1523, Denies the same and certifies this issue to the Court of Appeals pursuant to the provi- sions of 28 U.S.C., §1292(b). As this Court interprets the opinion of the Court of Appeals in Parrish, supra, when an affidavit such as is found herein is made, there is imposed upon the Judge the duty of determining whether or not that affidavit is as required and specified by the statute and is legally sufficient. As this Court understands the test, it is whether the facts alleged could reasonably lead to the belief by the affiant that what the affidavit says exists did in fact exist in the mind of the affiant. In support of the affidavit, affiant attached a copy of this Judge’s opinion in the case of Robinson v. Union Carbide, Civil Action No. 7583-73-H, a case now on ap- peal to the Court of Appeals, and one of the Court’s rulings rendered in Birdie Mae Davis, et al. v. Board of School Commissioners, etc., et al., Civil Action No. 3003- 63-H entered on August 16, 1974, which incidentally is also now part of the an appeal to the Court of Appeals.’ The affidavit states that affiant, upon request of his coun- sel, read the aforementioned opinion and order and came to his conclusion as a result thereof. No where does it appear in the affidavit or statement that counsel for af- fiant furnished or offered him a copy of the transcript forming the factual basis for the opinion in Union Car- bide nor the related petitions and orders constituting the 1 Civil Action #74-8484. ad Order of the District Court, February 13, 1975 3a basis of this Court’s Order of August 16, 1974 in Birdie Mae Davis. Such selectivity of evidence has been used through the ages to produce desired results envisioned by the motivating force or at least this was so until the adoption of the Constitution and the Bill of Rights of the United States. Among other conclusions drawn bv affiant in his affi- davit is that, “In particular Judge Hand is biased and prejudiced against anyone or any group of persons * * * presenting * * * claims throuch attorneys employed by/or associated with the NAACP Legal Defense and Educa- tional Fund, Inc. * * * ete.”, and concluded members of his race could not fare well before him. By admission, counsel furnished only two selected matters and ignored providing affiant with opinions where members of his race fared fairly, where the judgments were the result of consent decrees, and where some of the parties were represented by the Legal Defense and Educational Fund, Ine. along with their associated counsel. (See attached Exhibits A, B, C, D, E, F, & G.) Though there are others this Order will not be burdened by the same, save to refer to the fact that the Order represented by Ex- hibit G. was appealed to the Court of Appeals and af- firmed. Other instances where members of the Black race, the race of Mr. Buskey, have appeared before this Court and were apparently treated fairly are reflected by the files of this Court and are open for the public’s re- view as it and affiant sees fit to review them. The Court does not consider that the affidavit and the certification by counsel is legally sufficient within the meaning of the law. However, this Judge does not feel that he should be the final word on the question of his possible bias or bent of mind or passion or prejudice or 4a Order of the District Court, February 13, 1975 on the question of his ethics and is thus willing to re- sign the final decision in this to the Almighty, posterity and the Court of Appeals for the Fifth Circuit and is more than happy to start with the Court of Appeals. Forthe reasons expressed herein, the affidavit request- ing this Judge to recuse himself is hereby Dentep and the cause certified to the Court of Appeals pursuant to 28 U.S.C., §1292(b). Done this 13th day of February, 1975. W. B. Hann United States District Judge A note should be made of Canon 8 (E.C. 8-6) and Canon 1 of the Code of Professional Responsibility adopted by the American Bar Association August 12, 1969 and effective January 1, 1970. P BLEED THROUGH ~ aad — 5a Opinion of the Court of Appeals, August 21, 1975 United States Court of Appeals, Fifth Circuit. Nos. 74-3894, 75-1312, 74-4257 and 75-1827. Aug. 21, 1975. Birdie Mae DAVIS et al., Plaintiffs-Ap- pellants, United States of America, Plaintiff-Intervenor, Edwin Foster, Plaintiff-Intervenor, Vv. BOARD OF SCHOOL COMMISSION- ERS OF MOBILE COUNTY et al., Defendants-Appellees. James E. BUSKEY et al., Plaintiffs-Appellants, Vv. BOARD OF SCHOOL COMMISSION- ERS OF MOBILE. COUNTY et al., Defendants-Appellees. Birdie Mae DAVIS et al., Plaintiffs, United States of America, Plaintiff- Intervenor, James E. Buskey, Plain- tiff-Intervenor-Appellant, Vv. BOARD OF SCHOOL COMMISSION- ERS OF MOBILE COUNTY et al., Defendants-Appellees. 1. See Davis v. Board of School Commissioners of Mobile County, 430 F.2d 883. S85 n. i (5th Cir. 1970) (Motuie IX) for citations to earlier appeals. See also Davis v. Board of School Commissioners of Mobile Counts, 483 F.2d 1017 (Sth Cir. 1973) (Mobile X); National Ed- POOR COPY Appeals from the United. States Dis- trict Court for the Southern District of Alabama. Before BELL, AINSWORTH GODBOLD, Circuit Judges. and BELL, Circuit Judge: This is the thirteenth appeal in the Mobile school case (Mobile XIII), which case began in 1983.! The questions presented are illustrative of problems en- countered in winding down a school case Some are important to the administra- tion of final school desegregation decree. One centers on an effort to disqualify the district judge. The questions arise out of four separate appeals which we have consolidated. The district court entered a con- sent order on July 9, 1971 adopting a “Comprenensive Plan for a Unitary School System” as formulated by the parties. That plan, and the district ucation Assn. v. Board of School Comiission- ers of Mobile County, 483 F.2d 1022 (Sth Cir. 1973) (Mobile XI); Davis v. Board of Serog! Commissiuners of Mobile County, 496 $.2d 118] (Sth Cir. 1974) (Mobile X11). 6a court consent order thereon, adopted the following requirement of Singleton v. Jackson Municipal Separate School Dis- trict, 5 Cir. (en banc), 1970, 419 F.2d 1211: “Staff members who work directly with children, and professional staff who work on the administrative level will be hired, assigned, promoted, paid, demoted, dismissed, and otherwise treated without regard to race, color, or national origin.” See also Carter v. West Feliciana Parish School Board, 5 Cir., 1970, 432 F.2d 875. Jurisdiction of the district court con- tinued over the matter as a class action. Meanwhile, this court held that the prop- er and orderly procedure to be followed by third parties in seeking to question deficiencies in the implementation of de- segregation orders or for further relief in ongoing school cases is by petition to intervene. See Hines v. Rapides Parish School Board, 5 Cir., 1973, 479 F.2d 762; Lee v. Macon County Board of Educa- tion (Conecuh County), 5 Cir., 1973, 482 F.2d 1253. Thereafter in Mobile XI, we rejected the effort of the National Edu- cation Association to superimpose a class action on behalf of the black school ad- ministrators and teachers in the system on the pending class action. National Education Association, supra, n. 1, 483 F.2d 1022 (NEA). In doing so, we pointed to our prior decisions which re- quired any complaint of discrimination within the scope of a pending school suit to be advanced by petition to intervene in that case. = 2. No. 75-1312 was numbered as No. 74-8484 prior to our allowing the interlocutory appeal. No. 75-1827 was No. 75-8063 before being allowed. 3. Buskey filed an identical motion but has not appealed. Ir the circumstances, one appeal will suffice to settle the question presented. p BLEED THROUGH a | DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. I. Undaunted by these decisions, counsel for the plaintiffs here proceeded to file two new class actions. One was filed on behalf of Edwin Foster, a black assistant school principal, and another on behalf of James E. Buskey, also a black assist- ant school principal. Each claimed dis- crimination in having been denied pro- motion to principal. The district court dismissed each suit with leave to inter- vene in Birdie Mae Davis. Each there- after intervened but Buskey appeals nevertheless from the order of dismissal. This is No. 744257. Two of the appeals are interlocutory and are brought under 28 U.S.C.A. § 1292(b). These are Nos. 75-1312 and 75-1827 The appeals are from orders denying the motions of Foster and Bus- key, respectively, to disqualify the dis- trict judge for bias under 28 U.S.C.A. § 1443 The other appeal, No. 74-3894, is by the original class in Birdie Mae Davis from an order of the district court re- fusing to issue an order to show cause why the defendant school board should not be held in contempt for failure to comply with the desegregation consent order relative to professional promotions. As will be seen, we find no merit in these appeals and affirm as to each. We do give some direction to the district court with respect to the range of dis- covery to be allowed in the further pro- ceedings in the Foster and Buskey cases on remand.‘ It is to be remembered that only their claims of discrimination 4. The discovery problem came up as a part of the Foster interlocutory appeal allowed from the denial of the motion to disqualify the dis- trict judge. aad — DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. 7a in the refusal to promote them to the position of school principal are pending for resolution on the merits. All other matters before us are part of a procedur- al tangle. Il. A brief chronology of the procedural events will assist in understanding our disposition of the several issues. (A) The Foster suit, filed on January 25, 1974 as a “Complaint in Interven- tion”, sought to maintain a class action consisting of “black persons holding de- grees in Administration and Supervision who have been passed over for promo- tion solely by reason of their race and color”. This complaint followed an earli- er independent suit by Foster, filed Octo- ber 5, 1973, which had been dismissed on the authority of NEA, supra, with leave being granted for him to intervene in the Birdie Mae Davis case. (B) Interrogatories were served on March 15, 1974 by Mr. Foster on the school superintendent in an effort to de- velop detailed facts with respect to prin- cipals and assistant principals as well as the entire administrative and supervisory force of the Mobile school system. (C) The district court set the matter for class action determination on Febru- ary 22, 1974. No basis for maintaining such an action having been offered, the court entered an order on March 25, 1974 that the matter could not be maintained as a class action. (D) On July 2, 1974, counsel for Foster moved to compel answers to the earlier filed interrogatories. A magistrate en- tered an order on July 8, 1974 requiring that the interrogatories be answered. Defendants moved for reconsideration and the district court, on July 15, 1974, entered an order denying the motion to compel answers with leave to Foster to file interrogatories germane to his com- plaint. (E) There were two filings on July 19, 1974. The same interrogatories were served on the school superintendent on behalf of the Birdie Mae Davis class in the underlying suit by co-counsel for Foster (who, coincidentally, was one of counsel for the plaintiffs in Birdie Mae Davis and had only recently joined the Foster case as co-counsel for Foster). In addition, Foster moved for reconsidera- tion of the order of July 15, 1974. (F) On July 31, 1974, defendants moved for a protective order as to the Birdie Mae Davis interrogatories. On the same day, the district court entered an order denying the motion of Foster for reconsideration, and recited, as a ba- sis for the order, that the court had not been made aware to date of any claim of discrimination other than the Foster claim. (It appears that the Buskey suit, hereafter discussed, had been filed on July 12, 1974. It was filed by co-counsel, also as a separate suit rather than as an intervention, and sought to maintain a class action on behalf of “all past, present and future Negro professional employees” of the school system.) (G) On August 8, 1974, co-counsel for Foster, who is, as stated, one of the law- yers representing the Birdie Mae Davis class, attempted to reopen the Birdie Mae Davis case through the vehicle of a motion for an order to show cause why the defendants, collectively and separate- ly, should not be held in contempt for failure to comply with that part of the earlier consent order of the court requir- ing appointment of the professional staff without regard to race or color. The motion was based on the Foster and Buskey claims. (H) On August 16, 1974, the district court granted the motion of defendants 8a DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. for a protective order as to the Birdie Mae Davis interrogatories, and denied the motion for an order to show cause in that case. (I) On August 23, 1974, counsel moved for reconsideration of the August 16, 1974 order entered in the Birdie Mae Davis phase of the litigation, or in the alternative that it be amended to strike therefrom statements which reflected on counsel with regard to his efforts and motive in seeking to avoid the class ac- tion and discovery orders in Foster by his use of the Birdie Mae Davis case. This motion for reconsideration and to strike was supported by an affidavit from counsel in which he asserted that as attorney for the Birdie Mae Davis class, he had the solemn duty to insure that the consent order was being carried out and that he was, in effect, monitor- ing compliance with that order. He re- garded the Foster and Buskey claims as establishing a need for monitoring. (J) On September 20, 1974, the district court denied the motion for reconsidera- tion and to strike. Notice of appeal from this order was filed on October 18, 1974. (No. 74-3894.) (K) On September 27, 1974, the dis- trict court denied the motion of the school board for summary judgment in the Foster intervention. (L) On the same day, Mr. Foster filed a motion under 28 U.S.C.A. § 144, sup- ported by affidavit, to disqualify Judge Hand from his case on the basis that Judge Hand had “a personal bias or prej- udice” against Foster and “other black parents, school children and school teach- ers in the Mobile school system as mem- bers of the plaintiff class”. A copy of the affidavit is appended to this opinion and marked “A”. The affidavit makes it clear that Foster’s affidavit is based on his reading, at the request of his counsel, of an opinion of the same district judge rendered on August 29, 1974 in another case in which counsel appeared. Robin- son v. Union Carbide Corporation, S.D. Ala., 1974, 380 F.Supp. 731. Judge Hand denied the motion but allowed an inter- locutory appeal. (This is No. 75-1312.) (M) The Buskey suit was dismissed on October 3, 1974, with leave to intervene in Birdie Mae Davis. Notice of appeal was filed on November 1, 1974. (This is No. 74-4257.) (N) On November 20, 1974, Buskey filed a motion and affidavit in haec ver- ba to Foster’s, to disqualify the district judge. The order denying this motion gave rise to the interlocutory appeal, No. 75-1827. III. NO. 74-4257 As stated, only Buskey has appealed from the order requiring intervention rather than being allowed to proceed with a separate suit. It is apparent, however, that our decisions requiring such a procedural approach were the genesis of the overall controversy which has arisen between counsel and the dis- trict court. It will be well, therefore, to consider this particular appeal as a first issue. Buskey seeks to avoid our hold- ings of required intervention, supra, on the theory that his claim is asserted un- der Title VII of the Civil Rights Act of 1964, 42 U.S.C.A., § 2000e—5, in addition to being based on 42 U.S.C.A., §§ 1981 and 1983, and the consent decree. This theory is without merit. Intervention would not result in the loss of substantive or procedural rights under Title VII. It will result in better management of the pending Birdie Mae aad . BLEED THROUGH _ DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. 9a Davis class action. It will enable the district court to consider Buskey’s Title VII rights alone, as well as in conjunc- tion with rights which may be due him under other statutes and under the con- sent order. Intervention will serve to avoid a proliferation of litigation over the same subject matter, and is within the spirit of Rule 24(b), F.R.Civ.P5 The same reasoning, which supported our pri- or decisions requiring intervention, is supportive of requiring that a Title VII plaintiff-school employee likewise inter- vene. Lastly, our policy of required in- tervention is analogous to the discretion- ary power in the court to require consoli- .dation. See Rule 42(a), F.R.Civ.P§ In the nature of a fallback posi- tion, Buskey urges that at least his case should have been consolidated with the Birdie Mae Davis case. The difference between consolidation and. intervention in the context of this type proceeding is semantical in nature—with any differ- ence being gossamer. As an intervenor, Buskey will be entitled to the full pano- ply of Title VII law as it has developed since the passage of the Act in 1964. This means that both the Foster and Buskey suits are pending in intervention and are awaiting trial. This fact points to the importance of disposing of the 5. Rule 24(b): Upon timely application anyone ma, be permitted to intervene in an action: . : when an applicant's claim or defense and the main action have a question of law or fact in common. : 6. Rule 42(a): When actions involving a common ques- tion of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. interlocutory appeals which were allowed to determine the validity of the orders denying disqualification under § 144, su- pra. NOS. 75-1312 AND 75-1827 The separate motions of Foster and Buskey to disqualify Judge Hand and the supporting affidavits will be con- sidered as one matter. The affidavits rest on facts brought to the attention of affiants by their counsel. In the main, the claim of bias centers on problems of counsel (Mr. Blacksher), in this litigation, and in Union Carbide Corporation, supra, where Judge Hand was of the opinion that overtones of barratry and champer- ty were present. An appeal in that case is pending in this court. No. 75—1008— Robinson v. Union Carbide Corporation. That opinion speaks for itself. Whether the district court was in error in its opin- ion there will be decided on that appeal and the record therein. Bias and prejudice is also alleged by affiants to rest on Judge Hand’s order of August 16 wherein he granted the pro- tective order relative to the Birdie Mae Davis interrogatories and the contempt motion.’ The sequence 0° lawyers is of impor- tance. The Foster suit was filed by the 7. One portion of the order reflects on original counsel in his effort to create a class action. The portion of the order which reflects on Mr. Blacksher is as follows: ‘i In a not too veiled effort to circumvent this Court's ruling thereon, [the Foster case] plaintiff's counsel has now, through the aegis of Birdie Mae Davis, at- tempted to propound the same set of inter- rogatories in an effort to elicit the same in- formation and try to build a case on behalf of unknown others whom this Court has not been shown exist. Such subterfuge borders on the edges of contempt.” 10a lawyer for the NEA who appeared in Lee v. Macon County Board of Educa- tion (Conecuh County), supra; and Na- tional Education Assn. v. Board of School Commissioners of Mobile County, supra. It was this lawyer who failed to follow these decisions in filing the Foster suit. After dismissal he filed the suit in intervention. He filed the interrogato- ries and attempted to impose a class ac- tion on the Birdie Mae Davis class. He was not a lawyer in the Birdie Mae Da- vis cause. He was not in the Robinson v. Union Carbide case. The affidavits of Foster and Buskey do not assert bias and prejudice against Judge Hand because of any problem between this lawyer and Judge Hand. On July 2, 1974, Mr. Blacksher joined as co-counsel in filing the motion to com- pel answers to the interrogatories, and has taken the lead in the Foster case since that time. He is also counsel for Buskey. The NAACP Legal Defense Fund lawyers joined as counsel only in the Birdie Mae Davis aspects of the liti- gation and Mr. Blacksher is the lead counsel in that matter. It is Mr. Blacksher who is involved as counsel in the Robinson v. Union Carbide case but Judge Hand included the Legal Defense Fund along with Mr. Blacksher in the barratry and champerty portion of his opinion. We will thus assume that the charge of bias and prejudice is positioned 8. § 144: Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such pro- ceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice > « DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. on Judge Hand’s references to both Mr. Blacksher and the Legal Defense Fund. From these events, affiants concluded that Judge Hand was necessarily biased and prejudiced against them because he was biased and prejudiced against their lawyers, and through them, against those represented by them. We find no error in the refusal of Judge Hand to disqualify himself. Section 144 requires “personal bias or prejudice” against a party.’ No bias or prejudice personal to Foster and Buskey is set out. They seek disqualification on an imputation theory—the bias against their lawyer is imputed to them.’ Read broadly, this peremptory challenge type approach would bid fair to decimate the bench. Lawyers, once in controversy with a judge, would have a license under which the judge would serve at their will. One answer is that “party” as used in § 144 does not include counsel as such. Cf. United States ex rel. Wilson v. Coughlin, 7 Cir., 1978, 472 F.2d 100, 104; Giebe v. Pence, 9 Cir., 1970, 431 F.2d 942, 943. On the other hand, there could be a case where the cause of the controversy with the lawyer would demonstrate bias of such a nature as to amount to a bias against a group of which the party was a member—e. g., all Negroes, Jews, Ger- mans, or Baptists. This then would be bias of a continuing and “personal” na exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be ac- companied by a certificate of counsel of record stating that it is made in good faith 9. No. 75-1779, Jones v. Callaway, pending in this court on interlocutory appeal, involves a like challenge. aad P BLEED THROUGH —_— DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. ture over and above mere bias against a lawyer because of his conduct. We find no such lawyer-to-client con- structive bias in this record. The contro- versy is not over race but over the em- ployment of the class action device and its ramifications in litigation. Rule 23, F.R.Civ.P. It is true that plaintiffs are Negroes and that their counsel handles civil rights cases, but the connection be- tween the judge and the claim of bias on behalf of the particular parties here is too attenuated to require disqualifica- tion. Once the motion is filed under § 144, the judge must pass on the legal sufficiency of the affidavit, but may not pass on the truth of the matters alleged. See Berger v. United States, 1921, 255 U.S, 22, 41 S.Ct. 230, 65 L.Ed. 481; Unit- ed States v. Roca-Alvarez, 5 Cir., 1971, 451 F.2d 848, 847-48; United States vy, Townsend, 3 Cir., 1973, 478 F.2d 1072. The affidavits were found legally insuf- ficient here and we agree. The truth of the matters alleged was not in issue. These were in substance lawyer motions as distinguished from party motions. Moreover, aside from the doubtful showing of personal bias by Foster and Buskey, they are foreclosed for another reason. It is settled that the requisite basis of bias and prejudice un- der § 144 must be extra-judicial. See United States v. Grinnell] Corp., 1966, 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778, 793; Berger v. United States, 1921, 255 U.S. 22, 31, 41 S.Ct. 280, 65 L.Ed. 481, 484. The controversy with the law- 10. Pub.L. 93-512, § 1, 88 Stat. 1609. § 455 provides, in pertinent part: (a) Any justice, judge, magistrate, or ref- eree in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. lla yers in the present case was not extra- judicial. Rather, it was very much judi- cial, consisting of language in an order in the very case before the court, and in an opinion in another case before the court. Such statements are not available as grounds for a § 144 affidavit. See United States v. Board of School Com- missioners, 7 Cir., 1974, 503 F.2d 68, 8&1; Hanger v. United States, 8 Cir., 1968, 398 F.2d 91, 101; Mirra v. United States. 2 Cir., 1967, 379 F.2d 782, 787-88: Tynan v. United States, 1967, 126 U.S.App.D.C. 206, 376 F.2d 761, 764-65; In re Union Leader Corp., 1 Cir., 1961, 292 F.2d 381, 388. 89. Here again, however, we think there is an exception where such perva- sive bias and prejudice is shown by oth- erwise judicial conduct as would consti- tute bias against a party. But, as stat- ed, supra, we find an insufficient basis for such a finding in the circumstances presented here. But § 144 is not the end of the matter. The recent amendment of 28 U.S.C.A. § 455, to require disqualification of any judge when “his impartiality might rea- sonably be questioned,” also must be considered.!” The office of the procedure un- der § 144 is to disqualify a judge prior to trial on motion of a party. Section 455 is the statutory standard for disqualifica- tion of a judge." It is self-enforcing on the part of the judge. It may also be asserted by a party by motion in the trial court, Rapp v. Van Dusen, 3 Cir., (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or preju- dice concerning a party, lag 11. Compare American Bar Assn., 1972, Code of Judicial Conduct, Canon 3C. 12a 1965, 350 F.2d 806, 809; through assign- ment of error on appeal, United States v. Seiffert, 5 Cir., 1974, 501 F.2d 974; Shadid v. Oklahoma City, 10 Cir., 1974, 494 F.2d 1267, 1268, by interlocutory ap- peal, as here, or by mandamus, Texaco, Ine. v. Chandler, 10 Cir., 1965, 354 F.2d 655. The quoted language, supra, in § 455 is new to the federal law of disqualifica- tion and we must determine whether Congress intended to overrule the gloss placed on § 144, and impliedly on § 455, by court decisions that it applies only to conduct which runs against a party and not the lawyer, cf. United States ex rel. Wilson v. Coughlin, supra, at 104; Giebe v. Pence, supra, at 943; see also, Annot., 23 A.L.R.38d 1416; and that disqualifica- tion results from extra-judicial conduct rather than from matters arising in a judicial context. See United States v. Grinnell Corp., supra, 384 U.S. at 583, 86 S.Ct. 1698, 16 L.Ed.2d at 793; United States v. Board of School Commissioners, supra, at 81; Hanger v. United States, supra, at 101; Mirra v. United States, supra, at 787-88; Tynan v. United States, supra, at 764-65; In re Union Leader Corp., supra, at 388-89. See generally, Annot. 2 A.L.R. Fed. 917. We find no suggestion in the legislative history that these decisions were being overruled or in anywise erod- ed. The new language was designed to substitute the reasonable factual basis— reasonable man test in determining dis- qualification for the subjective “in the opinion of the judge” test in use prior to the amendment. Cf. Kinnear-Weed Corp. v. Humble Oil & Refining Corp., 5 Cir., 1971, 441 F.2d 631, 635. It was also intended to overrule the so-called duty to sit decisions. See Edwards v. United States, 5 Cir., 1964, 334 F.2d 360. The abuse of sound judicial discretion test , BLEED DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. continues to obtain on appellate review. H.Rep.No.93- 1453, 1974 U.S.Code Cong. & Admin.News pp. 6351, 6355. Construing §§ 144 and 455 in pari materia we believe that the test is the same under both. We thus hold that an appellate court, in passing on ques- tions of disqualification of the type here presented, should determine the disquali- fication on the basis of conduct which shows bias or prejudice or lack of impar- tiality by focusing on a party rather than counsel. The determination should also be made on the basis of conduct extra-judicial in nature as distinguished from conduct within a judicial context. This means that we give §§ 144 and 455 the same meaning legally for these pur- poses, whether for purposes of bias and prejudice or when the impartiality of the judge might reasonably be questioned. Here, we have judicial activity toward lawyers without more and the result under §§ 144 and 455, considered separately and together, is that we find no error. NO. 74-3894 This is the appeal from the or- der denying the motion of the Birdie Mae Davis plaintiffs for an order requir- ing the defendants to show cause why they should not be held in contempt for violating the July 9, 1971 consent decree. This is an appealable order. Gilbert v. Johnson, 5 Cir., 1974, 490 F.2d 827. The motion rested for cause on the allegations contained in the Foster and Buskey claims. These claims are pending and will be processed on re- mand. The appertaining facts will be developed. Once developed, they may or may not be sufficient to support a show aad THR OU GH — DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. cause order in the underlying cause. In any event, the motion was decidedly pre- mature when made. The district court did not err in refusing to reopen the Birdie Mae Davis case on the bare claims of Foster and Buskey, either for pur- poses of contempt or discovery. The claim of the right to moni- tor by discovery or more appropriately, to have the court monitor, the 1971 de- cree was, for the same reason, prema- ture. (We are not told if monitoring is being accomplished in the form of re- porting. See, e. g., the report required in United States v. Hinds County School Board, 5 Cir., 1970, 483 F.2d 611, 618 19.) DISCOVERY ON REMAND The Buskey case has not reached the discovery stage but we can’ assume that it is in the same posture as Foster's. In the early days of Foster’s case, the dis- trict court ordered that discovery be lim- ited to matters germane to his claim. No further effort was made to discover on his behalf. It would have been and will now be only a slight task to modify the interrog- atories which were filed so that they may be used on behalf of Foster and Buskey. They are assistant principals. They contend that they were denied pro- motions to requested _ principalships. They will be entitled to full discovery with respect to the category of position or positions sought in an effort to estab- lish all statistical, policy and practice data of relevance to their claims. The teaching of McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, should be the district court’s guide in allowing full discovery. Affirmed. +5 — PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR based on falsely stated physical facts, and are rarely extended to representa- tion of opinions. Suffice to say, estab- lishing beyond reasonable doubt bad faith in assertion of a belief purportedly held at the time of an affidavit's filing is no light task.2 For similar reasons, counsel will not likely fear disciplinary proceedings initiated by the local bar. I am reluctant to join in mandating a pro- cedure which envisions, for example, that a judge must take as true an affi- davit asserting, perhaps on “information and belief,” that he has recently engaged in an acrimonious personal dispute with % defendant—complete with particu- iars—and is therefore disqualified to sit in his case, when the judge well knows that the affidavit has misidentified him and is mistaken. We go far enough wnen we read § 144 as withdrawing from ihe judge decision of the finai fact, his own actual bias. We should noi re- quire him to conduct such a curious and hypothetics! proceeding as deciding whether an apprehension or bias 1s rea- sonably supported by whatever supposi- tious state of facts a daring and unscru- pulous, or perhaps merely misadvised and agitated, party may be willing to swear to. Factvail matters necessary to decision of preliminary questions, of which recu- sal is a prickly example, are routinely resolved by weighing and evaluating af- fidavits. See, e g., Wright & Miller, Federal Practice and Procedure i373, at 714. Only three workable modes of deciding this particular question occur: 3. The author of Note, 79 Harv.L.Rev. 1435 (1966), found no cases in which a perjury charge stemming from a § 144 affidavit had ever been prosecuted during the (then) forty- five years since Berger. Id at 1442. Indeed, | have found none to date. POOR COPY 45a (1) peremptory disqualification upon the mere filing of an affidavit; (2) decision of the issue by another magistrate than the one accused; or (3) decision either of actual bias or the reasonable appearance of it by the magistrate sought to be dis- qualified. There are indications in the legislative history that peremptory disqualification was the legislative intent;* but this con- struction has never been adopted by any court. Reference to another magistrate is utterly foreign to the statutory scheme and raises its own problems of administrative inconvenience and delay. The statute’s language gives fair support to the construction that the judge is not to determine bias-in-fact, and common sense supports the view that few if any humans can fairly decide whether they themselves are or are not biased in any given matter. But it is not too much tu ask that a conscientious magistrate de- termine whether a yiven affidavit con- tains enough truth to fairly support a reasonable apprehension that he may be biased, or that an appellate court review that decision effectively. There is, therefore, no need to discern in § 144 a rule by which a party who realiv wanis to do so and has the nerve can at pleas- ure disqualify any federa! judge in a giv- en proceeding by presenting to him « spurious set of ex parte “facts” which he cannot question-——and by which his oypo- nent can disqualify his first replace vient by the same means. I freely admit that Berger appears on its face to foreclose my reading of § 144. 4. The chief sponsor cf the bill, asked if the Judge retained any discretion after the filing cf the recusal affidavit, replied: “No, it provides the judge shall proceed no further with the case.” 46 Cong Rec. 2627 (1911). 5. Section 144 limits a Party to “ such affidavit in any case.” one 46a The Berger decision, however, has not gone unscathed—even by its authors—in the many years since 1921. It is notori- ous that, faced with its quixotism, courts on the firing line have, addressing other issues, limited its scope in ways perhaps dubious. As is duly observed, for exam- ple, in Comment, 57 Minn.L.Rev. 749, 755 (1973), the lower federal courts have ef- fectively rejected a liberal reading of Berger by such anomalous and desperate devices as requiring that the affidavit establish bias-in-fact, United States v. Gilboy, 162 F.Supp. 384, 393 (M.D.Pa. 1958), by restricting the types of facts which may constitute a sufficient affida- vit, Chessman v. Teets, 239 F.2d 205, 215 (9th Cir. 1956), rev'd on other grounds, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957), and by requiring that the bias be directed to the party personally, Cole v. Lowe's Inc., 76 F.Supp. 872, 876 (S.C.Cal.1948), rev'd on other grounds, 185 F.2d 641 (9th Cir. 1950), cert. denied, 340 U.S. 954, 71 S.Ct. 570, 95 L.Ed. 688 (1951). The Supreme Court has directly approved one such inroad in United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), holding that the alleged bias “must stem from an extrajudicial source and result in an opinion on the merits on some basis oth- er than what the judge learned from his participation in the case.” Although the Grinnell Court cited Berger, the proposi- tion stated can be construed far more broadly than anything mentioned there. Also, Berger to the contrary notwith- standing, it is far from clear that the Supreme Court in Grinnell felt itself bound to accept as given fact the allega- 6. In Pfizer the court was interested in a dem- onstration of actual personal bias. In order to decide the issue the court “carefully examined the petition, the underlying joint affidavit, the responses thereto, and portions of the record pertinent to petitioners’ claims.” 456 F.2d at —y PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR tions made by the affiants: in its opin- ion the Court quotes from what can only be the transcript of pretrial proceedings, a type of matter which the Berger Court went out of its way to declare irrelevant. In other instances the Court has denied certiorari and left standing inroads on and narrow interpretations of Berger. See, e. g., Pfizer, Inc. v. Lord, 456 F.2d 532 (8th Cir.), cert. denied, 406 U.S. 976, 92 S.Ct. 2411, 32 L.Ed.2d 676 (1972); § Mirra v. United States, 379 F.2d 782, 787-88 (2d Cir.), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967); Ryan v. United States, 99 F.2d 864, 871 (8th Cir. 1938), cert. denied, 306 U.S. 635, 59 S.Ct. 484, 83 L.Ed. 1037 (1939). I am all but convinced that if faced with the facts of Berger today the Supreme Court would decide it otherwise. Being so per- suaded, I woulc not lightly expose our circuit to such risks of wholesale disrup- tion as an untimely resurrection of Ber- ger in its pristine and literal form threatens, to be endured until the Su- preme Court—grappling with the mighty concerns which face it—is able to recon- sider these questions. Finaliy, i realize that the approach to § 144 I advance is likely foreclosed even by previous panel decisions in our own circuit. Davis v. Board of school Comm'rs, 517 F.2d 1044 (5th Cir. 1975): United States v. Roca-Alvarez, 451 F 2d 843, 847-48 (5th Cir. 1971), rehearing granted, 474 F.2d 1274 (5th Cir. 1973); Beland v United States, 117 F.2d 958, 960 (Sth Cir.), cert. denied, 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541 (1941); Sim- mons v. United States, 89 F.2d 591. 592 533 (emphasis added). And, aithough accept- ing as true the facts recited in the affidavit, “{w]je determine the validity of petitioners’ conclusion of bias by examining the cited facts against the record presented to us.” 456 F.2d at 537 (emphasis added). aa P BLEED THROUGH 93 (5th Cir.), cert. denied, 302 U.S. 700, 58 S.Ct. 19, 82 L.Ed. 540 (1937), and in- deed Henry v. Speer, 201 F. 869 (5th Cir. 1913), quoted with approval in Berger. But I do not think such a position wise or practical, and the court en banc is free to adopt a different one. I would grasp the nettle now. TUTTLE, Circuit Judge, with whom GOLDBERG, Circuit Judge, joins, dis- senting. With deference I disagree with the opinion of the Court as to the standard that is to be used by the Court in deter- mining whether an affidavit for bias filed under § 144 is “sufficient.” I agree with the statement quoted in the opinion from Davis v. Board of School Commis- sioners of Mobile County, 517 F.2d 1044 (5th Cir. 1975): “Once the motion is filed under § 144, the judge must pass on the le- gal sufficiency of the affidavit, but may not pass on the truth of the mat- ters alleged. See Berger v. United States, 1921, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; United States v. Roca- Alvarez, 5 Cir., 1971, 451 F.2d 843, 847-48; United States v. Townsend, 3 Cir., 1973, 478 F.2d 1072.” I cannot agree, however, that the stan- dard of determining the “legal sufficien- cy of the affidavit” is one that requires that the facts be such, their truth being assumed, as would “convince a reasona- ble man that a bias exists.” As stated in the panel opinion of the Court, subse- quently withdrawn, 5 Cir., 505 F.2d 12, I am of the view that the standard is one that merely requires that the facts be such, their truth being assumed, as would convince a reasonable man that the affiant reasonably believed that bias exists. POOR COPY PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR 47a Of course, this Court, sitting en banc, is writing on a clean slate, and in doing so the Court, very properly, I think, con- siders that the standard to be applied to the decision of this issue is one that must meet the requirements of § 455. It is my opinion that the Berger case, con- struing the predecessor of § 144 and the new amended § 455, outlined and dis- cussed in the majority opinion, both re- quire that the judge against whom an affidavit for bias is lodged must deter- mine only whether the allegations are such as would cause a reasonable person standing in the same relationship as does the affiant to believe that the challenged judge has a “bent of mind that may prevent or impede impartiality of judg- ment.” Berger v. United States, 255 U.S. 22, 33, 41 S.Ct. 230, 233, 65 L.Ed. 481. If what is called the “objective” stan- dard, that is whether a reasonable man would conclude that bias actually exists had been the standard intended by the Supreme Court in Berger the Court would not have said that the affidavit “must give fair support to the charge of a bent of mind that may prevent or im- pede impartiality of judgment.” It would have said rather that the affidavit “must give fair support to the existence or fact of a bent of mind, etc.” In dis- cussing the standard in Berger, the Court referred to the language that the “affidavit shall state the facts and the reasons for the belief” of the existence of the bias or prejudice. The Court said: “Of course the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind . ....”__ [Em- phasis added.]} It seems clear to me that this statement means that the affidavit must reason- 48a ably support the belief of the affiant and not that it must reasonably support the actual existence of bias. This view has been expressed in the following lan- guage: “A formulation in keep- ing with the purpose of the statute would require only that the facts al- leged must justify a reasonable appre- hension on the part of the affiant that the judge may be biased [footnote omitted]. This formulation shifts the emphasis from the judge’s actual state of mind to the reasonableness of the litigant’s fear, an emphasis at least supported, and possibly required, by the statutory language ~ {Emphasis added.] Disqualification of Judges for Bias in the Federal Courts, 79 Harv.L.Rev. 1435, 144647 (1966). The approach which I would take to the construction of this statute seems to me much more consistent with the ex- pression of this Court in United States v. Columbia Broadcasting System, Inc., 497 F.2d 107 (5th Cir. 1974) dealing with the basic right of a party to a fair and im- partial tribunal: “The recondite niceties of contempt law coupled with the strange milieu of a judge passing on the clarity of his own orders, which had to be substanti- ated largely by his own legal staff, should make us particularly sensitive to the demands of justice, and more particularly, to the appearance of jus- tice. The guarantee to the defendant of a totally fair and impartial! tribunal, and the protection of the integrity and dignity of the judicial process from any hint or appearance of bias is the PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR palladium of our judicial {Emphasis supplied.]} I would conclude that a trial court cannot be free from “any hint or appear- ance of bias” unless a party’s sworn be- lief of the existence of bias, supported by substantial facts, and tested by a standard of reasonableness, is of primary concern. The view which I hold as to the proper interpretation of § 144 is fortified by the recent enactment by Congress of amend- ments to § 455. This section of the Code provides as follows: “(a) Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The House Report on this bill which adopted major portions of the Senate Report, No. 93-419 to accompany the Senate Bill commented expressly on the relation between this amendment and the newly adopted Code of Judicial Con- duct for United States Judges.’ The Re- port contains the following language: “Thus, the present situation is one where the Judicial Conference has made applicable to all federal judges the new Code of Judicial Conduct, in- cluding Canon 3C relating to disquali- fication of judges. The present lan- guage of § 455 of title 28 is less re- strictive than the new Canon on dis- qualification. The bill (S. 1064) under consideration would amend section 455 by making it conform, with two excep- tions, to the requirements of the canon on disqualification.” 1974 U.S. Code Congressional & Admin- istrative News, p. 6353. system.” 1. This Code of Judicial Conduct for United States Judges was adopted by the Judicial Conference of the United States in April, 1973. aad e Dori ocrcn Ther cvwinw an Only one of the “exceptions” referred to in the foregoing language is relevant to our discussion. This exception is the change made in the third word of the Code of Judicial Conduct. Congress saw fit to change the words “a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned” to “a judge shall disquali- fy himself in a proceeding in which his impartiality might reasonably be ques- tioned,” thus indicating more clearly the intent of Congress that the standards be tightened up to the extent that less dis- cretion was to be left to the particular PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR judge. Furthermore, the changing of the word from “should” to “shall” is ex- plained by comments in the House Com- mittee Report: “The language also has the effect of removing the so-called ‘duty to sit’ which has become a gloss on the exist- ing statute. See Edwards v. United States, 334 F.2d 360 (5th Cir. 1964). Under the interpretation set forth in the Edwards case, a judge, faced with a close question on disqualification, was urged to resolve the issue in favor of a ‘duty to sit.’ Such a concept has been criticized by legal writers and witnesses at the hearings were unani- mously of the opinion that elimination of this ‘duty to sit’ would enhance public confidence in the impartiality of the judicial system.” More importantly, however, it seems to me to be clear that both the Code and the new § 455, which now speak in the same terms, has set up a standard in- volving the reasonableness of the belief or fear of the litigant rather than the reasonable likelihood of the existence of actual lack of impartiality. It will be noted that the language speaks in terms of the judge’s impartiality being reason- 49a ably “questioned.” It does not speak in terms of his partiality being reasonably likely to exist. Moreover, in the Com- mittee Report the following language makes clear, it seems to me, that we are dealing with the reasonableness of the litigant’s belief or fear of the existence of bias rather than the reasonableness of the claim that bias actually exists: “Nothing in this proposed legislation should be read to warrant the trans- formation of a litigant’s fear that a judge may decide a question against him into a ‘reasonable fear’ that the judge will not be impartial.” By clearest implication, it seems to me that this language says that the stan- dard must be whether the litigant has a “reasonable fear” that the judge will not be impartial. The use of the terms “objective” and “subjective” are somewhat confusing in this context. I agree that there must be an objective determination as to whether the facts and circumstances fairly sup- port the litigant’s belief or fear that there is a lack of impartiality. To this extent it is an objective test. Under this test, therefore, I would have no doubt but that the affidavit in this case, considered in connection with the transcript of the hearing, which is proper in that it was attached as an ex- hibit to the affidavit, meets the test. We must bear in mind when we consider the facts alleged that what the whole case is about was the allegations that the defendants had intentionally discrim- inated in the conducting of bar exami- nations, the only means by which black applicants could become members of the Alabama Bar. Thus, the significance of each of the several facts, and the effect of their accumulation is what we should bear in mind. 50a Here, we have a challenge to the judge assigned to try this case alleging discrimination on account of race in the grading of bar examinations on the basis of the following factual setting: the lawyer for the plaintiffs and counsel for the defendants had held conversations off the record in the judge's chambers, apparently discussing the doubts that were in the minds of plaintiffs.? At this time no affidavit under § 144 had been filed. In effect, plaintiffs were under- taking to develop a basis for determining whether to file such an affidavit. The hearing conducted was in the form of questions and answers put to the judge by Mr. Clemon, counsel for the plaintiffs. This hearing developed the fact that the judge had been president of the Mont- gomery Bar Association shortly prior to being appointed to the bench and that at the time the rules of the Association for- bade admission of black lawyers. When comment had been made in the public press about this fact and of Judge Var- ner’s being considered for appointment to the United States Court, he appointed a commission to review the bar associa- tion by-laws, but gave no direction or recommendation that the raciai restric- tions be changed. They were subse- quently changed, at a time which the judge thought was during his term of office; but as to this he was not certain. We are not considering here merely former membership by the judge in a 2. The transcript shows the foilowing: “Gentlemen, you may want to have a seat at counsel table. 1! asked my court reporter tc stay here this morning because Mr. C'emon, (counsel for plaintiffs) | thought perhaps you would like to put some elements of our con- versation on the record in regard to our ques- tion of whether or not I should recuse myself. I will have to say that | decided in cases earli- er this week that these courts have been very reluctant about letting judges recuse them- . BLEED THROUGH PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR club or other social organization having restricted membership. We are con- cerned with a challenge to a judge who shortly before his appointment had been president of the bar association of the state’s capital city, 50 years after the State Bar of Alabama had become, by law, the organized state bar. See Ala- bama Code Recompiled, Title 46, § 21 et seq. It is not difficult to perceive the likelihood of a non-lawyer’s confusing the status of the Montgomery Bar Asso- ciation and its relationship with the State Bar of Alabama. The additional grounds asserted in the affidavit as to the judge’s relationship to the defendanis cannot, it seems to me, be likely overlooked because of prior de- cisions of this Court that an allegation that a judge was on a frier:!ly busis with one of the witnesses expected to testify ‘vas aot sufficient. Such was the case of Simmons vy. United States, 89 F.2d 591 (5th Cir. 1937). Here, Judge Varner was acquainted with ten of the thirteen de- fendants who were members of the Board of Bar Examiners, three only slightly and several on a hasis of what he considered friendship. Three of them he did not know at all. When asked us to the cffect of his acquaintance or friendship with defendants in the event of a possible conflict in testimony ia the anticipated hearings, Judge Varner, incdi- cated 4 strong feeling of confidence in the veracity and trustworthiness of his selves and | have really ciuanged my attitude about it im the last two or three weeks. Hero. tofore, | had felt that a yudge should recvs, himself very quickly because it made the court appear more fair, but there are other obliga- tions that the court owes and I am afraid that I shan't recuse myse!? but | want to give you an opportunity to put anything on record that you would like to put on record.” [Emphasis supplied.] wad | — PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR friends. When asked expressly with re- spect to Mr. Scott, who had previously been secretary of the commission, and thus the one person who had custody of all of the documents, he expressed simi- lar confidence in his likely credibility, noting that “if [Scott] appeared to evade I think I could detect it.” The opinion of the Court proceeds on the theory that Judge Varner should not be faulted for answering honestly that he had a strong feeling of confidence in the veracity and trustworthiness of his friends. Of course, no one can take ex- ception to the judge’s answers to the inquiry. The point is that if a trial judge already has sufficient contacts with litigants who are to testify before him that he is compelled to answer truthfully that he already has a belief that they will be likely to tell the truth, the solution of the problem is not for him to refuse to answer or to hedge in answering a question but to recuse him- self on the ground that one of the ingre- dients in the making of the final judg- ment will be matters dehors the record, that is, those qualities of friendship which have resulted in the judge having understandably a feeling of confidence in the veracity of the witnesses who are his friends. Of course, the judge an- swered the question in the only way he could. The problem arises from the fact to which he testified in making his an- swer; that is, that the affiants entered the litigation with at least a predilection in the judge’s mind of favoring the ve- raci'y of opposing parties. In sum, it appears to me that the com- bination of the facts alleged in the affi- davit satisfied the requirements of § 144. 3. It is of significance that none of these per- sons appeared to testify personally. The mo- tion for summary judgment was based solely upon their affidavits. There, of course, were 5la Whether either one of the allegations standing alone would have been suffi- cient it is not necessary for me to decide. In addition to concluding, as I do, that the allegations in the affidavit were suf- ficient, it is more than clear that, even though the trial court should have adopt- ed what the court now states to be the proper standard he did not even do that. He failed in two respects. In the first place, his statement quoted above clearly shows that he followed the theory of a “duty to sit,” which clearly has been now eliminated under § 455. In the second place, he merely decided the question of bias vel non rather than attempting to determine whether the affidavit was or was not sufficient by any standard. Especially in light of the recent enact- ment of the amendments to § 455 it seems peculiarly inappropriate for an ap- pellate court to take away from the trial court the opportunity to determine whether under the provisions of this newly enacted statute he should recuse himself because of his consciousness that “his impartiality might reasonably be questioned.” This is an inquiry which, it seems to me, Congress clearly meant to have the trial judge make for himself. He is best able, under standards which are entirely new since the matter was before the trial court, to weigh the alle- gations of fact in the affidavit in con- nection with the particular lawsuit then pending before him and make a determi- nation as contemplated under § 455. It seems to me that it is not our place to substitute our judgment for that of the trial court in the making of this initial determination. no opportunities to make any credibility choices by use of the normal standards availa- ble to a trial judge. AR §2a I think this is peculiarly required in this case, since the trial judge clearly indicated an inclination to recuse himself but for his idea of a “duty to sit.” ¢ Thus, even under the standard of in- quiry announced by the Court it seems inappropriate to me for the Court to de- cide for the trial judge whether the affi- davit was “sufficient” within the con- templated of § 144, with the gloss which is placed upon it by the amended § 455. I would reverse the determination by the trial court overruling the affidavit and send the case back either under a determination that the affidavit was suf- ficient or to permit the trial court him- self to determine under the standards now announced for the first time by this Court whether the affidavit met the re- quirements of the statute. WISDOM, Circuit Judge (dissenting): I am in substantial agreement with Judge Tuttle’s opinion. In particular, | would hold that, under Berger and the 4. See fn 2. supra “Heretofore, I had felt tha: a judge should recuse himself very quickly be , BLEED THROUGH PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR recent amendments to § 455, an affidavit alleging a judge's bias is sufficient if the facts alleged justify a reasonable belicf on the part of the affiant that the judge may be biased. The principle involved is older than the concern Caeser had for Calpurnia’s reputation. I do not, however, attach the impor- tance Judge Tuttle attaches to Judge Varner’s acquaintance with ten of the thirteen defendants, with some of whom he was on terms of friendship. Any judge who has been an active practition- er and active member of bar association; knows and is probably friendly with most of his state’s bar examiners. The plaintiff unqvestionab'y was aware of this fact and that if it were a ground for disqualification every judge in a state could be disqualifie’. Ti is an unreason- able belicf--if the plaintiff had the be- iief--that such a relationship between the district judge and the defendants might deprive the plaintiff of a fair tri- al. cause i= made the court appear more fair” {Emphasis added.] os 53a Opinion of the District Court, August 29, 1974 Freppit D, Ropinxson et al., Plaintiffs, Vv. Uxioxn Carsipge Corporation, Mareriats Systems Divisiox, Defendant. Civ. A. No. 7583-73-H. United States District Court. S. D. Alabama. S. D. Aug. 29, 1974. J. U. Blacksher, of Crawford & Blacksher. and Cary! P. Privett, Mobile, Ala., for plaintiffs. Vincent MeAlister. of Almon, McAlister & Ashe. Shef- field, Ala., for defendant. Fixpixcs or Fact ann Coxcirsioxs oF Law Hanp, District Judge. This cause originated in this Court on March 15, 1973 when plaintiffs. Freddie D. Robinson, Thomas S. Austin, Jr.. Willie L. Jones, Olney W. Lucious, III, Willie J. Mickles, Peter Reese, Jr., Paul Richardson, Cynthia Cald- well, Jerome G. Fitts and Ronald L. Coleman filed this action on their own behalf and on behalf of all other per- sons similarly situated, pursuant to Federal Rules of Civil Proedare. Rale 22. to secure protection and to redress de- Opinion of the District Court, August 29, 1974 privation of rights secured by Title 42, U.S.C., Section 2000e et seq. and Title 42, U.S.C., Section 1981. By Order of the Court on the 7th day of January, 1974, the Court held this cause was proper for a class action and the class was defined as: “Those black job applicants who had an outstanding job application at the time of the commencement of this cause and those black job applicants who have filed job applications since the commencement of this cause and all future black job applicants, along with all cur- rent black employees of defendant, Union Carbide Corporation. Materials Systems Division.” After extensive discovery, a Pretrial Conference was held wherein the questions to be determined by the hearing were delineated. Though these triable issues were reduced to five in number covering « fairly wide range of alleged discriminatory practices, the main point advanced through- out the entire course of this litigation, both in arguments on motions, in conference, and upon the trial itself, was the expressed desire of the plaintiffs’ counsel, through the aegis of this class action, to establish a new requirement of law, to become applicable nationwide, relative to the hiring practices of industry as they deal with minority employment problems; viz., whether or not the rule estab- lished, or fastly becoming so, that industry must demon- strate a ratio (quota) of minority to majority employees commensurate with that in the labor market available, failing in which there is prima facie discrimination, is the appropriate rule, or whether or not the better rule would be that the employment ratios (quotas) must equal the ap- plication ratios. Translated to the case at hand, it was el ae eT et me ~~~ tif , BLEED THROUGH 7 55a Opinion of the District Court, August 29, 1974 argued that where it is shown that as to the hourly rate employees, 26 percent were black and 74 percent were white, closely paralleling the work force ratio in the Mobile area, there was invidious discrimination being practiced by the employer because the application ratio was more nearly 50-50, and unless the employment practices were or are such as to accomplish this ratio in employment, it is prima facie that the employer is practicing racial discrim- ination. Where counsel may now urge strongly the other points raised, this Court was pressed over and over again that the application ratio to hiring was what counsel desired to establish by this action; therefore, this was the desired relief sought by the class. This record also shows, with unabashed frankness, the limits employed by the plaintiffs representative in utilizing the courts to establish pet theories. In the not too distant past it was considered by law schools, the: Courts, and the legal profession as a whole that solicitation of litigation was unethical. One of the reasons advanced for this “grow- ing more antiquated” theory was that tthe law favored compromise, not the stirring up of controversy.’ In this instance, the Legal Defense Fund sent rumners, now called “{nvestigators”, into this area to determime the conditions of employment in various industries and to seek out and encourage those who were reluctant to participate by rep- resenting to them that it would cost them no dollars to do so, either by way of attorneys fees or in expenses, and might result in dollars in their pockets if smecessful. Those who could be so persuaded were referred to associate coun- ‘One would assume from the Judeo-Christian theory of “Blessed are the peacemakers”. Opinion of the District Court, August 29, 1974 sel who would then undertake to represent them in this endeavor. Though there are viable theories and approaches to the redress of grievances in this type situation sanctioned by historic experience, the modern art of the law is set to en- courage solicitation of business by clothing the “solicitors” with the grand name of “private attorneys general” whose duty it is to encourage controversy and to seek out and redress wrong.? What perfidy. ? Code of Ethics, Alabama State Bar Association, December 14, 1887 : “DISREPUTABLE TO Stir Up LITIGATION. “20. It is indecent to hunt up defects in titles and the like and inform thereof, in order to be employed to bring suit; or to seek out a person supposed to have a cause of action, and endeavor to get a fee to litigate about it. Except where ties of blood, relationship or trust, make it an attorney’s duty, it is unprofessional to volunteer advice to bring a law suit. Stirring up strife and litigation is forbidden by law, and dis- reputable in morals.” Canons of Professional Ethics of the American Bar Association : “28. Stirring Up Litication, Directty or THROUGH AGENT. “It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, rela- tionship or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional. but it is indictohle at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to be employed to bring suit or collect judgment, or to breed litiga- tion by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like pur- poses, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the EE ONLI ALS LE TI ULE LTD LE? MELLO PERE LED LOL ILE II TI ATG EGE P BLEED THROUGH i aa ’ ) { 57a Opinion of the District Court, August 29, 1974 Again translated to the case at hand, we have an industry whose number of minority hourly employees is in propor- tion to the available labor force, yet they are sued to estab- lish a new concept of what the law should require, as con- ceived by some pronouncement from a shrouded Olympus, and to be wrought from the courts by the solicitation of a clientele as a needed vehicle. Again we lament, there is obliged to be a better solution to establish a new law than by legislative and/or court sanction of the destruction of the high quality of the legal profession. What tragedy that lawyers and the courts allow themselves to be used in trans- forming the legal profession from that of at ue profession to that of a business. It is indeed with sa. heart that we bid a fond farewell to what was once the legal definition of the words “champerty” and “barratry”. profession devolves upon every member of the Bar having knowledge of such practices upon the part of any practitioner immediately to inform thereof, to the end that the offender may be disbarred.” . “42. EXPENSES OF LITIGATION. “A lawyer may not properly agree with a client that the lawyer shall pay or bear the expenses of litigation: he may in good faith advance expenses as a matter of convenience, but subject to reimbursement.” See annotation 139 A.L.R. 620. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_2100%3A2. Public record. Not legal advice.