Parrish v. Board of Commissioners of Alabama State Bar

Decision Date02 December 1974
Docket Number74-1523,Nos. 73-3553,s. 73-3553
PartiesAlfredo G. PARRISH et al., etc., Plaintiffs-Appellants, v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR et al., etc., Defendants-Appellees. ALABAMA BLACK LAWYERS ASSOCIATION et al., Plaintiffs-Appellants, v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR, etc., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

U. W. Clemon, Oscar W. Adams, Jr., Birmingham, Ala., Elaine R. Jones, Jack Greenberg, New York City, Solomon Seay, Jr., Montgomery, Ala., for plaintiffs-appellants.

Truman Hobbs, Champ Lyons, Jr., William H. Morrow, Jr., Montgomery, Ala., for defendants-appellees.

Before TUTTLE, WISDOM and GEE, Circuit Judges.

TUTTLE, Circuit Judge:

The Alabama Black Lawyers Association (ABLA) and eight named plaintiffs appeal the grant of summary judgment against them on all issues in their class action alleging racial discrimination by the Board of Commissioners and Bar Examiners of the Alabama Bar Association in their policies and practices governing admission to the bar.

Briefly stated, the suit sought injunctive and declaratory relief, under 42 U.S.C. §§ 1981-1983 and 28 U.S.C. §§ 2201-2202, respectively, for a class defined as "all Black persons who have applied or will apply for admission to the Alabama Bar, or who would have so applied but for having been discouraged or prevented from doing so by the (defendants') discriminatory practices" and who meet all valid non-discriminatory standards for admission. The gist of the complaint, which was filed October 31, 1972, is that the Alabama bar examiners unconstitutionally discriminated against black applicants by identifying their supposedly anonymous examination papers and then grading them lower than white applicants who displayed equal proficiency. The complaint also alleged that the bar examination which then 1 was exclusively written essay, "timed and closed-book" is "unvalidated" and not sufficiently "job-related", and thus unconstitutional because it fails blacks in disproportionately high numbers compared to whites.

Shortly after the complaint was filed, each party filed several motions. Most importantly, the defendants moved to dismiss plaintiffs Eddie Jones, Thomas W. Gray and the ABLA for lack of standing, and the plaintiffs moved that the trial judge recuse himself pursuant to 28 U.S.C. § 144. The trial judge granted defendants' motion to dismiss Jones, Gray and the ABLA, but refused after a hearing had been held and affidavits filed to recuse himself.

Both parties undertook extensive discovery. Plaintiffs received nearly 150 pages of answers to interrogatories from defendants and took two lengthy depositions from members of the Board of Bar Examiners. Defendants received answers to interrogatories from each of the named plaintiffs. None of the discovery revealed specific instances where the anonymity of the examinees had been compromised; at most, the plaintiffs swore that there were one or two instances when an examiner could have seen an examinee's test number. The plaintiffs' case thus boiled down to a proof of statistics. Statistics produced during the litigation showed, for example, that in the last ten bar examinations the passing rate for blacks had been 32% while it had been 70% for whites. Furthermore, in a state whose population is 25% black, the number of black lawyers is less than 1%.

Defendants moved for summary judgment on April 2, 1973, but the trial court withheld a ruling for over four months in order to give plaintiffs "ample opportunity to obtain by discovery facts to be used in traversing the motion". Plaintiffs accomplished all of their desired discovery during this period, with one exception: defendants failed to produce copies of all answer sheets for the February 1973 bar examination. Defendants objected to producing these documents on the grounds that they were not relevant and material to the complaint. Plaintiffs filed a motion on May 28, 1973, to compel production.

Without specifically ruling on this motion, the trial court entered summary judgment for defendants on all issues on August 21, 1973. The court found that there was no material issue of fact between the parties and held that "under the circumstances . . . the dispartiy in percentage of failures among blacks as compared to whites has little weight and fails to make out a prima facie case sufficient to realign the burden of proof so as to require the Defendants to establish that the exams are not discriminatory or so as to require them to validate the exams."

With respect to plaintiffs' other main contentions, the court held that the defendants had a compelling state interest to identify attorneys, and thus that requiring applicants to submit photographs of themselves prior to taking the examination does not "violate their constitutional rights"; however, the court declined to consider the constitutionality of procedures (particularly a personal interview) applied to applicants petitioning to take the exam for a fourth time, following three attempts as of right, because "no Plaintiff in this lawsuit has the standing to raise the question".

Appellants' points of appeal are

1) that the trial judge applied an erroneous legal standard in refusing to recuse himself;

2) that plaintiffs Jones, Gray and the ABLA should not have been dismissed from the suit for lack of standing;

3) that summary judgment was inappropriate, because discovery was incomplete and there were material issues of fact;

4) that the unvalidated bar examination, which fails blacks in disproportionately high numbers, is insufficiently job-related to be constitutional;

5) that the requirement of a photograph, as part of the application to take the bar examination, is unconstitutional;

6) that the procedures governing petitions to take the bar examination for a fourth time are arbitrary and capricious, and thus violate the appellants' right to due process of law.

Because we conclude that the appellants should prevail on their firest ground, we discuss only that and the question relating to the parties to appeal.

I. PARTIES TO APPEAL

Before discussing appellants' contentions, it is necessary to dispose of a jurisdictional objection raised by the appellees in their brief. Appellees argue that only appellants Alfredo Parrish and Henry Thompson are properly before this Court, because the plaintiffs' notice of appeal and amended notice of appeal expressly named only Parrish and Thompson. 2 However, although Parrish and Thompson are the only parties named in the text of the notices, the captions of the notices named "ALFREDO G. PARRISH, ET AL., Plaintiffs."

The Federal Rules of Appellate Procedure require that "The notice of appeal shall specify the party or parties taking the appeal." Rule 3(c). The objective of this provision, and of Rule 3 generally, is two-fold: to notify the Court of the taking of an appeal, and to notify the opposing party of the taking of the appeal. Cobb v. Lewis, 488 F.2d 41, 45 (5th Cir. 1974). There can be no doubt that the caption, if not necessarily the text, put defendants on notice that all of the plaintiffs intended to take appeal. Appellees have now shown that they were prejudiced or mis-led in any way by appellants' technical non-compliance with Rule 3(c).

Although some other circuits may take a much more formalistic view, 3 this Court has long held that irregularities in form or procedure in filing a notice of appeal will be disregarded, when the interests of substantive justice requires it, as long as there is "substantial compliance with the rules." Des Isles v. Evans, 225 F.2d 235, 236 (5th Cir. 1955). See also Crump v. Hill, 104 F.2d 36, 37-38 (5th Cir. 1939); Jones v. Chaney & James Construction Co., 399 F.2d 84, 86 (5th Cir. 1968); Cobb v. Lewis, supra, 488 F.2d at 44-46. As we said in Jones, 399 F.2d at 86:

"The notice of appeal . . . should not be used as a 'trap for unwary draftsmen', Wright, Federal Courts, § 104 at 406 (1963); and decisions on merits should not be avoided on the basis of 'mere technicalities', Foman v. Davis, (1962) 371 U.S. 178, 181 (83 S.Ct. 227, 9 L.Ed.2d 222)."

Therefore, we hold that there was adequate compliance with Rule 3(c) to put the defendants on notice that all plaintiffs intended to appeal, and that all eight named plaintiffs and the ABLA are properly before this Court. Accordingly, we proceed to the merits.

II. STANDARD FOR RECUSAL

The first point raised by appellants is that the trial judge applied an erroneous legal standard in refusing to recuse himself after an affidavit had been filed pursuant to 28 U.S.C. § 144. Section 144 provides in full:

"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."

The procedure prescribed by section 144 was not strictly followed in this case. It appears from the record that counsel for the appellants and the trial judge informally discussed the question of recusal over a month after the complaint was filed. The court later convened a hearing on December 22, 1972, to discuss the question. The judge permitted plaintiffs' counsel to question him at length at this hearing, after stating to counsel:

"Heretofore I had...

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