538 F.Supp. 311 (E.D.Tex. 1982), Civ. A. S-75-26, McCuin v. Texas Power & Light Co.

Docket Nº:Civ. A. S-75-26
Citation:538 F.Supp. 311
Party Name:McCuin v. Texas Power & Light Co.
Case Date:April 30, 1982
Court:United States District Courts, 5th Circuit, Eastern District of Texas
 
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Page 311

538 F.Supp. 311 (E.D.Tex. 1982)

Tilmon McCUIN, et al., Plaintiffs,

Equal Employment Opportunity Commission, Intervenor,

v.

TEXAS POWER & LIGHT COMPANY, Defendant.

Civ. A. No. S-75-26-CA.

United States District Court, E.D. Texas

April 30, 1982

Page 312

Larry R. Daves, Daves, McCabe & Crews, Tyler, Tex., for plaintiffs.

Terry L. Hamilton, Washington, D. C., for intervenor.

Frank M. Ryburn, Jr., Burford & Ryburn, George E. Seay and John F. McCarthy, Jr., Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, Tex., J. Mike Rowan, Loftis, Rowan, Files, Bain & Clayton, Tyler, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

ROBERT M. PARKER, District Judge.

This employment discrimination class action is before the Court on the limited question of whether or not the employment of Judge William Wayne Justice's brother-in-law, J. Mike Rowan, as local counsel for the Defendant requires the disqualification of Mr. Rowan or the recusal of Judge Justice. For reasons set forth below, the Court rules that Judge Justice's recusal is not required, but that Mr. Rowan's disqualification is.

This case was filed on March 6, 1975. On May 8, 1975, the Plaintiffs moved for certification of the case as a class action. The Court held a hearing on the motion on April 30, 1980, and granted the motion on September 25, 1981. In the meantime, extensive discovery had taken place.

On November 17, 1981, the Defendant requested that the Clerk of the Court add Mr. Rowan to the docket sheet as an attorney of record for the Defendant. The Plaintiffs moved to disqualify Mr. Rowan as the Defendant's local counsel, and for "limited recusal" of Judge Justice for the purpose of ruling on the motion to disqualify. By order of December 16, 1981, Judge Justice assigned the case to this Court "for such action as may be required."

The Court notes that, under 28 U.S.C. s 455 (1978), the amended judicial disqualification statute, Judge Justice cannot continue to preside over this case if Mr. Rowan is permitted to represent the Defendant. Apart from the general duty of a United States judge under section 455(a) to disqualify himself "in any proceeding in which his impartiality might reasonably be questioned," the judge has an absolute duty under section 455(b)(5)(ii) to disqualify himself if "(h)e or his spouse, or a person within the third degree of relationship to any of them ... is acting as a lawyer in the proceeding." 1 Although neither party has moved to disqualify Judge Justice from this case, 2 section 455 places the obligation to disqualify on the judge. Potashnick v. Port City Construction Co., 609 F.2d 1101, 1115 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). Section 455(e) expressly prohibits the judge from

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accepting a waiver of any ground for disqualification under section 455(b). Id. at 1114. Therefore, Mr. Rowan's representation of the Defendant in this case is at irreconcilable odds with Judge Justice's continued authority over it. See S. J. Groves & Sons Co. v. International Brotherhood of Teamsters, 581 F.2d 1241, 1248 (7th Cir. 1978).

The strictness of section 455 as to disqualification and waiver reflects the statute's goal of promoting the public's confidence in the...

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