Parrish v. Board of Commissioners

524 F.2d 98

Opinions

BELL, Circuit Judge:

This appeal involves one assignment of error directed to the denial of a motion, filed pursuant to 28 U.S.C.A. § 144, to disqualify the district judge who decided the matter. There are other assignments of error arising from the merits of the suit which claimed discrimination in the administration of the Alabama bar examination.¹ We consider en banc only the assignment of error having to do with disqualification.² As will be seen, we find no error in the denial of the motion to disqualify, and thus the cause will be remanded to the original hearing panel for disposition of the other questions presented.

I.

The threshold requirement under the § 144 disqualification procedure is that a party file an affidavit demonstrating personal bias or prejudice on the part of the district judge against that party or in favor of an adverse party.³ Once the affidavit is filed, further activity of the judge against whom it is filed is circumscribed except as allowed by the statute. In terms of the statute, there are three issues to be determined: (1) was the affidavit timely filed; (2) was it accompanied by the necessary certificate of counsel of record; and (3) is the affidavit sufficient in statutory terms? See generally 13 Wright, Miller & Cooper, Federal Practice and Procedure §§ 3541-53 (1975).

We are concerned only with the third issue. As we said in Davis v. Board of School Commissioners of Mobile County, 5 Cir., 1975, 517 F.2d 1044:

“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; 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.” 517 F.2d at 1051.

Legal sufficiency is determined as a question of law on the basis whether the affidavit sets out facts and reasons for the party’s belief that the judge has a personal bias and prejudice against the party or in favor of the adverse party. The facts and reasons set out in the affidavit “must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” Berger v. United States, supra, 255 U.S. at 33, 41 S.Ct. at 233, 65 L.Ed. at 485.

The legal question presented is determined by applying the reasonable man standard to the facts and reasons stated in the affidavit. See United States v. Thompson, 3 Cir., 1973, 483 F.2d 527, which states the standard as requiring that the facts be such, their truth being assumed, as would “convince a reasonable man that a bias exists”, 483 F.2d at 528.⁴ The tripartite test of the Third Circuit is as follows:

“In an affidavit of bias, the affiant has the burden of making a three-fold showing:

“1. The facts must be material and stated with particularity;

“2. The facts must be such that, if true they would convince a reasonable man that a bias exists.

“3. The facts must show the bias is personal, as opposed to judicial, in nature.”

483 F.2d at 528.

The pertinent part of the affidavit filed against Judge Varner is set out in the margin.⁵ We consider it in light of the transcript developed in an examination of the district judge some weeks before the affidavit was filed.⁶ See the discussion of the content of the transcript in the panel opinion, 5 Cir., 505 F.2d 12.

The factual bases in the affidavit of disqualification are also summarized in the panel opinion as follows:

“(1) that while Judge Varner was President of the Montgomery County Bar Association two years ago, the Association had a clause in its by-laws barring black members and that the judge never made any effort to invite black lawyers whom he knew to join;

“(2) that Judge Varner was acquainted with several defendants in the suit and all of defendants’ counsel, and that he said he did not believe that any of the defendants whom he knew would intentionally misrepresent any of the matters related to the lawsuit.”

505 F.2d at 17.

ll.

With these facts and the recited legal principles in mind, we proceed to a consideration of the sufficiency of the affidavit. Personal bias or prejudice is required under § 144. Neither of the factual bases alleged for recusal here raises an inference of personal bias or prejudice.

The first ground asserted, Judge Varner’s past activities in the Montgomery Bar Association, is essentially an allegation based on the judge’s background and states no specific facts that would suggest he would be anything but impartial in deciding the case before him. The claim of bias is general or impersonal at best. See Eisler v. United States, 1948, 83 U.S.App.D.C. 315, 170 F.2d 273; Simmons v. United States, 5 Cir., 1937, 89 F.2d 591; Price v. Johnston, 9 Cir., 1942, 125 F.2d 806; cf. United States v. Seiffert, 5 Cir., 1974, 501 F.2d 974, 977-78.

The second ground, regarding Judge Varner’s acquaintance with some of the defendants and counsel, has been rejected as a basis for requiring the disqualification of a trial judge. See e. g. Simmons v. United States, 5 Cir., supra; Parker Precision Products Co., Inc. v. Metropolitan Life Insurance Co., 3 Cir., 1969, 407 F.2d 1070, 1077; Broome v. Simon, W.D.La., 1965, 255 F.Supp. 434, 438. The argument is that Judge Varner would be biased when it came to making credibility choices among witnesses. His statements made when being examined by counsel as to his possible disqualification were no more than an acknowledgement of friendship or acquaintanceship, and a refusal to condemn these persons as unworthy of belief in advance of whatever their testimony might prove to be. A statement by Judge Varner that he would believe, without question, any testimony of such persons would require a different result. Here, however, Judge Varner’s answers did not reflect a lack of impartiality. The additional ground of the friendship between the judge and counsel for appellees, without more, is so lacking in merit as to warrant no discussion.

In short, the affidavit, including the facts on which it was based, was legally insufficient under § 144 to require disqualification. Judge Varner did not err in so ruling.

III.

We next consider questions which arise in an unusual context. Title 28, § 455, was amended effective December 5, 1974. The order of the district court being appealed from was entered and the panel opinion of this court was issued prior to December 5, 1974. Appellants suggest, nevertheless, that because the court determined to hear the cause en banc, and to receive supplemental briefs, the cause was thereby not “fully submitted” for appellate review prior to the effective date of the amendment.⁷

We held in Davis v. Board of School Commissioners of Mobile County, supra, that the amended statute applied where that appeal had not been fully submitted on the effective date of the Act. Here the appeal was submitted on June 11, 1974 when the original panel heard oral argument and took the cause under submission. Indeed, the panel opinion was issued on December 2, 1974, three days before the effective date of the Act. That opinion was withdrawn, however, and thus the matter continued under submission. Thereafter, on June 5, 1975, the court ordered the matter heard en banc and allowed supplemental briefs.

Assuming that an appeal is fully submitted after the briefing schedule has terminated and oral argument, if there is to be such, has taken place, then it may well be asserted that this cause was, in effect, reopened when the supplemental briefs were allowed on en banc consideration. Given this circumstance and the policy of the statute, we conclude that the question of disqualification must also be reviewed⁸ under the standards now embraced in amended § 455. The questions to be considered go to the sufficiency of the affidavit, as bolstered, in the peculiar posture of this case, by the transcript of the pre-affidavit interview or examination of Judge Varner. They are questions of law and may be decided in this court although never presented to the district court. Davis v. Board of School Commissioners, supra.

There are now several standards in § 455.⁹ Some go to specific conduct, but one, set out in § 455(a), is general and does not rest on the personal bias and prejudice stricture of §§ 144 and 455(b)(1). As we noted in Davis, supra, 517 F.2d at 1052, the language of § 455(a) was intended to displace the subjective “in the opinion of the judge” test for recusal under the old statute, and the so-called “duty to sit decisions”. We also noted that § 455(a) was intended to substitute a “reasonable factual basis — reasonable man test” in determining whether the judge should disqualify himself. See 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3542 (1975). See also, Frank, Commentary on Disqualification of Judges-Canon 3c, 1972, Utah L.Rev. 377, 379. Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745-50 (1973).

Considering first the § 455(a) claim, and the relevant facts and circumstances, we are of the view that a reasonable man would not infer that Judge Varner’s “impartiality might reasonably be questioned”. The facts have been stated in our discussion of the § 144 issue.

Judge Varner was president of a local bar association in which black lawyers were denied membership. This policy was changed during or shortly after his administration as president. As the affidavit makes clear, see Note 5, supra, he, at the least, set the change in policy in motion by appointing a committee to revise the by-laws. He is faulted for not making an effort to obtain membership for black lawyers through inviting them to join, yet he, in effect, did just this in having the by-law changed. Appellants’ logic would catch saint and sinner alike. There is hardly any judge in this circuit who was not a member of a segregated bar association at one time, and many have held a high office in the bar associations. The way of life which included segregated bar associations has been eliminated but only a new generation of judges will be free from such a charge. In any event, this circumstance will not support a claim of lack of impartiality. Such a claim must be supported by facts which would raise a reasonable inference of a lack of impartiality on the part of a judge in the context of the issues presented in a particular law suit. There are no such facts here. The stated conduct of Judge Varner does not support such an inference.

The allegation of lack of impartiality stemming from Judge Varner’s acquaintanceship or friendship with witnesses and defense counsel is likewise tenuous. It does not exceed what might be expected as background or associational activities with respect to the usual district judge. As a factual basis, the allegations fall short of supporting an inference of lack of impartiality under § 455(a).

The factual basis also falls short under § 455(b)(1), in that there is no particularized allegation that Judge Varner had “personal knowledge of disputed evidentiary facts concerning the proceeding”. Credibility choices are not disputed facts.

There are two additional claims of disqualification under amended § 455. They are based on the membership of Judge Varner in the Alabama State Bar, an organization in which membership has long been compulsory under the integrated bar concept. Title 46, §§ 30, 42, Code of Alabama. Each claim is attenuated in the extreme.

First, it is suggested that Judge Varner has a substantial interest in the success of defendants in the suit because of his identification with the bar association. Appellants rely on § 455(b)(4) for this proposition. No interest exceeding mere membership is asserted. This is not a ground for disqualification.

The second ground based on the judge’s bar association membership is that he has a financial interest in the outcome of this case because the bar association may be compelled to pay attorneys’ fees should plaintiffs succeed. Although the amended § '455 states that any “financial interest” in the subject matter in controversy or any party to the proceeding requires recusal, the spectre of the potential obligation of the Board of Commissioners, a judicial organ of the state, Title 46, § 21 et seq., Code of Alabama, for attorneys’ fees does not fall within the statutory definition of “financial interest”. Section 455(d)(4), n. 9, supra.

We affirm as to the denial of the motion to disqualify. Except as to that issue, the appeal is remanded to the original panel for disposition.

1 . There is no merit whatever in the jurisdictional objection of appellees.

2 . The panel opinion dated December 2, 1974 is reported. Parrish v. Board of Commissioners of the Alabama State Bar, 5 Cir., 1975, 505 F.2d 12. The opinion was withdrawn on February 20, 1975. Parrish v. Board of Commissioners of the Alabama State Bar, 5 Cir., 1975, 509 F.2d 540. The court determined on June 5, 1975, sua sponte, to consider the matter en banc.

3 . § 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 proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice 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 accompanied by a certificate of counsel of record stating that it is made in good faith.

4 . The reasonable man standard was first articulated in terms of requiring that the affidavit state facts “from which a sane and reasonable mind may fairly infer bias or prejudice.” Keown v. Hughes, 1 Cir., 1920, 265 F. 572, 577. Accord, Craven v. United States, 1 Cir., 1927, 22 F.2d 605, 607; Wilkes v. United States, 9 Cir., 1935, 80 F.2d 285, 289; Hurd v. Letts, 1945, 80 U.S.App.D.C. 233, 152 F.2d 121, 122; Eisler v. United States, 1948, 83 U.S.App.D.C. 315, 170 F.2d 273, 278.

5 . 2. Plaintiff believes and avers that the judge before whom this action is pending, the Honorable Robert E. Varner, has a personal bias and prejudice against him, the other named plaintiffs, and the class represented by plaintiffs in this action.

3. The facts and reasons for the belief that such personal bias and prejudice exist are as follows:

a. The instant action complains, inter alia, that the defendants maintain a’ policy of excluding blacks from the practice of law in the State of Alabama. The Honorable Robert E. Varner is presently a member of the Montgomery County (Alabama) Bar Association; and when he served as President of that association two years ago, black lawyers were excluded from membership in the said association under the terms of its by-laws. The Honorable Judge Varner was then acquainted with the five or six black lawyers who then practiced in Montgomery; but never made an effort to invite them to join the association. It was only after the aforesaid judge became interested in a federal judgeship that he, as president of the Montgomery County Bar Association, appointed a committee to revise the said by-laws; and the record is unclear as to whether the “white only” membership clause of the Montgomery County Bar Association was removed during his tenure as president of the aforesaid association.

b. None of the plaintiffs in this case are personally acquainted with the Honorable Robert E. Varner. The said judge considers the defendant Commissioner Hill as a personal friend; he is a friend of Reginald Hamner, one of the chief defendants in the case; he is a friend of John Scott, defendant Hamner’s predecessor in office and proposed to be called by the plaintiffs as an adverse witness; he is also a friend of counsel for all of the defendants. Further the said judge is personally acquainted with many of the other defendants in this cause. Although the testimony of the witnesses at the trial of this cause is expected to be conflicting in nature, the aforesaid Judge Varner has indicated that he does not believe that any of the defendants with whom he is acquainted would intentionally misrepresent any of the matters related to this lawsuit. Thus, plaintiffs sincerely believe that where the judge is called upon to make credibility choices throughout the trial, as he will be, he will attach undue weight to the testimony of his friends and acquaintances, all to the detriment of the plaintiffs and the class they represent.

6 . The unorthodox procedure of an examination of the judge by counsel for plaintiff prior to filing the affidavit leads to some confusion on review. For example, plaintiffs take some comfort from Judge Varner’s statement during the examination that he would not disqualify. This appears to them as a prejudgment. In any event, such prejudgment as existed was academic absent the required affidavit. The affidavit was filed 30 days later.

7 . The Act amending § 455 provides:

This Act [amending this section] shall not apply to the trial of any proceeding commenced prior to the date of this Act [Dec. 5, 1974], nor to appellate review of any proceeding which was fully submitted to the reviewing court prior to the date of this Act. Pub.L. 93-512, § 3, 88 Stat. 1609.

8 . One caveat is important in the administration of §§ 144 and 455. Ordinarily the provisions of § 455 would be drawn into issue in determining the sufficiency of an affidavit under § 144 only to the extent that affiant relies upon those provisions in filing the affidavit. Here we consider the provisions of amended § 455 only because the amendment is made applicable to cases not fully submitted on appeal and because the amendment was not in being when the affidavit was made.

We described the relationship between § 144 and § 455 in Davis as follows:

“The office of the procedure under § 144 is to disqualify a judge prior to trial on motion of a party. Section 455 is the statutory standard for disqualification 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., 1965, 350 F.2d 806, 809; through assignment 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 appeal, as here, or by mandamus, Texaco, Inc. v. Chandler, 10 Cir., 1965, 354 F.2d 655.” 517 F.2d at 1051-52.

9 . 28 U.S.C.A. § 455, reads in pertinent part:

(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.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; * * * * * *

(d) For the purposes of this section the following words or phrases shall have the meaning indicated:

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(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, .

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