524 F.2d 98 (5th Cir. 1975), 73-3553, Parrish v. Board of Com'rs of Alabama State Bar

Docket Nº:73-3553, 74-1523.
Citation:524 F.2d 98
Party Name:Alfredo 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.
Case Date:December 04, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 98

524 F.2d 98 (5th Cir. 1975)

Alfredo 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.

Nos. 73-3553, 74-1523.

United States Court of Appeals, Fifth Circuit

December 4, 1975

Page 99

U. W. Clemon, Birmingham, Ala., Elaine R. Jones, New York City, for plaintiffs-appellants.

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

Appeals from the United States District Court for the Middle District of Alabama.

Before BROWN, Chief Judge, TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, [*] MORGAN, CLARK, RONEY and GEE, Circuit Judges.

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.

Page 100

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

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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.

II.

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.

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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 reviewed 8 under

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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 §...

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