637 F.2d 1014 (5th Cir. 1981), 79-2131, Phillips v. Joint Legislative Committee on Performance and Expenditure Review of State of Miss.

Docket Nº:79-2131, 79-2940 and 79-3550.
Citation:637 F.2d 1014
Party Name:Barbara PHILLIPS, Cornell Green Rice, Melvin Phillips, and Mississippi Council on Human Relations, a corporation, individually and on behalf of all others similarly situated, Plaintiffs- Appellants, v. The JOINT LEGISLATIVE COMMITTEE ON PERFORMANCE AND EXPENDITURE REVIEW OF the STATE OF MISSISSIPPI et al., Defendants-Appellees. The MISSISSIPPI COUN
Case Date:February 23, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1014

637 F.2d 1014 (5th Cir. 1981)

Barbara PHILLIPS, Cornell Green Rice, Melvin Phillips, and

Mississippi Council on Human Relations, a

corporation, individually and on behalf

of all others similarly

situated,

Plaintiffs-

Appellants,

v.

The JOINT LEGISLATIVE COMMITTEE ON PERFORMANCE AND

EXPENDITURE REVIEW OF the STATE OF MISSISSIPPI et

al., Defendants-Appellees.

The MISSISSIPPI COUNCIL ON HUMAN RELATIONS, a corporation,

Barbara Phillips, Melvin Phillips and Cornell

Green Rice, individually and on behalf

of all others similarly

situated,

Plaintiffs-

Appellants,

v.

The BOARD OF TRUSTEES OF the INSTITUTION OF HIGHER EDUCATION

a/k/a The State College Board et al.,

Defendants-Appellees.

Barbara PHILLIPS, Melvin Phillips and Cornell Green Rice,

individually and on behalf of a class, Plaintiffs-Appellants,

v.

The STATE OF MISSISSIPPI AGRICULTURAL AND INDUSTRIAL BOARD

et al., Defendants-Appellees.

Nos. 79-2131, 79-2940 and 79-3550.

Unit A

United States Court of Appeals, Fifth Circuit

February 23, 1981

Rehearing Denied April 27, 1981.

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Frank R. Parker, Nausead Stewart, Jackson, Miss., for plaintiffs-appellants Barbara Phillips et al. in No. 79-2131.

Stewart & Parker, Nausead Stewart, Lawyers' Committee for Civil Rights Under Law, Jackson, Miss., McTeer, Walls, Bailey & Buck, Charles Victor McTeer, Greenville, Miss., for plaintiffs-appellants Miss. Council on Human Relations et al.

Ross, Hardies, O'Keefe, Babcock & Parsons, William Freivogel, Susan G. Lichtenfeld, Chicago, Ill., Nausead Stewart, Lawyers' Committee for Civil Rights Under Law, Jackson, Miss., for plaintiffs-appellants Barbara Phillips et al. in No. 79-3550.

James M. Ward, Sp. Counsel, Starkville, Miss., Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., A. F. Summer, Atty. Gen., State of Miss., Dept. of Justice, Jackson, Miss., for defendants-appellees Joint Leg. Committee et al.

Ed. Davis Noble, Jr., Asst. Atty. Gen., Bill Allain, Atty. Gen., Jackson, Miss., M. M. Roberts, Hattiesburg, Miss., for defendants-appellees Bd. of Trustees of Institution of Higher Ed. et al.

Bill Allain, Atty. Gen., Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., Jackson, Miss., James M. Ward, Sp. Counsel, Starkville, Miss., for defendants-appellees State of Miss. Agricultural and Indus. Bd. et al.

Appeals from the United States District Court for the Southern District of Mississippi.

Before WISDOM, RUBIN and SAM D. JOHNSON, Circuit Judges.

WISDOM, Circuit Judge:

These appeals concern three allied lawsuits brought against Mississippi state agencies for employment discrimination. The named plaintiffs are the same in the three

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cases: Barbara Phillips, Melvin Phillips (not related), and Cornell Green Rice. 1 All are black. In each case the plaintiffs sought to represent a class of black job applicants.

The defendant 2 in No. 79-2940 is the Joint Legislative Committee on Performance Evaluation and Expenditure Review ("PEER"), an arm of the Mississippi legislature with power to conduct performance evaluations, investigations, and critical examinations of all expenditures by any state agency. It is composed of five members of each House. It employs a staff of about twenty research analysts and clerical workers. Its offices are in Jackson.

The defendant in No. 79-2131 is the Mississippi Agricultural and Industrial Board ("A&I"), an agency created to promote industrial and agricultural development and tourism. Its members are the Governor, the Lieutenant Governor, the Speaker of the Mississippi House, four state legislators, three other state officials, and twenty-five public members appointed by the Governor. Among its functions are approval of industrial bond issues, study and recommendation of tax exemptions for Mississippi ports and harbors, and dissemination of tourist information. The Board employs a staff of sixty to eighty persons at its main office in Jackson.

The defendant in No. 79-3550 is the Board of Trustees of the Institutions of Higher Learning (commonly known as the College Board), the governing body for Mississippi's state universities and colleges. Its members are appointed by the Governor. The Board employs a staff of about eighteen financial analysts and clerical workers in Jackson. This suit concerns the Board's employment practices with regard only to that staff and not to the university system generally.

All three suits were brought as class actions in the Northern District of Mississippi, alleging racial discrimination in the defendants' employment practices in violation of Title VII of the Civil Rights Act of 1964 as amended. 3 The cases were transferred to the Southern District of Mississippi under 28 U.S.C. § 1404(a) (1976). Although the PEER and A&I cases were consolidated for some preliminary purposes, the three were tried separately. 4 In the PEER and A&I cases the plaintiffs moved for the district judge's recusal. The motions were denied, and this Court refused to issue a mandamus ordering recusal of the trial judge. In re Phillips, No. 76-4038 (5 Cir. Nov. 19, 1976). In the PEER and College Board cases, the court refused to certify the alleged classes. In the A&I case the court certified a class of all past black unsuccessful job applicants, but refused to broaden the class to include future black applicants or persons deterred from applying by A&I's alleged discriminatory practices or reputation. After full trials on the merits, the court granted judgments for the defendants on all claims.

On appeal, the plaintiffs contend (1) that the district judge erroneously refused to recuse himself in the A&I case; 5 (2) that the court improperly refused to certify classes in the PEER and College Board cases; (3) that the court improperly narrowed the class certified in the A&I case; and (4) that the court's judgments on the merits are legally incorrect or clearly erroneous. We affirm the district court's decisions

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as to recusal and as to some of the individual claims. We reverse, however, as to the remaining individual claims, as to the class certification issues, and as to the merits of the class claim in the A&I case.

I. RECUSAL

Barbara Phillips, acting on behalf of her co-plaintiffs, filed an Affidavit of Personal Bias and Prejudice in the A&I case, seeking the recusal of Judge William Harold Cox. Phillips's affidavit did not state any facts relating to any bias against any of the particular plaintiffs or in favor of any of the particular defendants in the case. Rather, she attempted to show that Judge Cox is prejudiced against all blacks and that he is hostile to civil rights suits. Some of her allegations are conclusory accusations, lacking in particularity. Others recite particular judicial rulings, quotations from written opinions, and alleged remarks from the bench, in five cases over Judge Cox's nineteen-year judicial career. Phillips also recited statistics concerning the frequency with which this Court has affirmed or reversed Judge Cox's rulings in civil rights cases.

There are two statutes governing recusal of federal district judges. 28 U.S.C. §§ 144, 455 (1976). Section 144 provides in part:

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.

If an affidavit filed under section 144 is timely and technically correct, its factual allegations must be taken as true for purposes of recusal. The judge must pass on the legal sufficiency of the affidavit, but he may not pass on the truth of the matters alleged. Berger v. United States, 1921, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Parrish v. Board of Commissioners, 5 Cir. 1975, 524 F.2d 98, 100 (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); Davis v. Board of School Commissioners, 5 Cir. 1975, 517 F.2d 1044, 1051, cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); United States v. Roca-Alvarez, 5 Cir. 1971, 451 F.2d 843, 847-48. In Parrish, we stated that an affidavit is legally sufficient if it meets a three-part test:

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

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

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

524 F.2d at 100, quoting United States v. Thompson, 3 Cir. 1973, 483 F.2d 527, 528, cert. denied, 415 U.S. 911, 94 S.Ct. 1456, 39 L.Ed.2d 496 (1974).

Congress rewrote the second statute, section 455, in 1974. Subsection (b) of that section lists a number of specific situations in which a judge must recuse himself; none apply here. Subsection (a), a more general provision, requires that

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Section 455, unlike section 144, does not stipulate a formal procedure by which it must be raised. Like section 144, however, it may be raised by motion. Davis, 517 F.2d at 1051. Substantively, the two statutes are quite similar, if not identical. 6

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Under either statute, the alleged bias must be "personal", as distinguished from judicial, in nature. Davis, 517 F.2d at 1052; Parrish, 524 F.2d at 100; Steering Committee v. Mead Corp., 5 Cir. 1980, 614 F.2d 958...

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