In re Slagle

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 20, 1992
• Docket: 92-8155
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 92-8155 _______________

IN RE:

BOB SLAGLE,

Petitioner.

_________________________

Petition for Writ of Mandamus to the United States District Court for the Western District of Texas _________________________ (May 11, 1992)

Before JOLLY, SMITH, and DUHÉ, Circuit Judges.

PER CURIAM:

CERTIFICATE OF QUESTION FROM COURT OF APPEALS PURSUANT TO 28 U.S.C. § 1254(3)

STATEMENT OF THE CASE

The underlying matter involves three redistricting cases

concerning the reapportionment of Texas's legislative and congres-

sional districts, Terrazas v. Richards, Nos. A-91-CA-425, A-91-CA-

426, and A-91-CA-428 (W.D. Tex). The three-judge district court

has entered various substantive orders and judgments that effec-

tively require the State of Texas to conduct elections under a

court-ordered, interim redistricting plan. See Terrazas v. Richards, 1991 U.S. Dist. LEXIS 19860 (Dec. 24, 1991). The orders

have been appealed to the United States Supreme Court and are

pending as No. 91-1270, Richards v. Terrazas, and No. 91-1546,

Slagle v. Terrazas.

Petitioner Bob Slagle, Chairman of the Texas Democratic Party,

filed two motions asking the Honorable James Nowlin, a member of

the three-judge panel, to recuse and raised the recusal issue again

in a motion to vacate. Judge Nowlin individually denied the

motions. The petitioner also filed a motion requesting the full

three-judge court to review Judge Nowlin's failure to recuse. That

motion was not acted upon by the three-judge court; instead, Judge

Nowlin individually denied it.

On April 1, 1992, the petitoner filed in this court, as No.

92-8155, a petition for writ of mandamus asking the court to compel

Judge Nowlin to disqualify himself from participating in the

ongoing district court proceedings. This court sua sponte has

raised the question of whether mandamus lies in the court of

appeals or instead in the Supreme Court.

QUESTION CERTIFIED

Where an individual judge, who is a member of a three-judge

district court panel, has denied a motion to disqualify him, does

a petition for writ of mandamus to compel his disqualification lie

in the United States Court of Appeals or, instead, in the United

States Supreme Court?

2 REASON FOR THE CERTIFICATE

This question is res nova. Appeals from the orders of three-

judge district courts lie in the Supreme Court, but no reported

authority has considered where a petition for writ of mandamus

regarding disqualification lies. In light of the fact that appeals

on the merits in this matter are pending in the Supreme Court, the

Court may wish to address the jurisdictional issue regarding

disqualification.

QUESTION CERTIFIED.