690 F.2d 1157 (5th Cir. 1982), 80-3348, Chitimacha Tribe of Louisiana v. Harry L. Laws Co., Inc.

Docket Nº:80-3348.
Citation:690 F.2d 1157
Party Name:The CHITIMACHA TRIBE OF LOUISIANA, et al., Plaintiffs-Appellants, v. HARRY L. LAWS COMPANY, INC., et al., Defendants-Appellees.
Case Date:November 05, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1157

690 F.2d 1157 (5th Cir. 1982)

The CHITIMACHA TRIBE OF LOUISIANA, et al., Plaintiffs-Appellants,

v.

HARRY L. LAWS COMPANY, INC., et al., Defendants-Appellees.

No. 80-3348.

United States Court of Appeals, Fifth Circuit

November 5, 1982

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Guy J. D'Antonio, Harry Case Stansbury, New Orleans, La., for plaintiffs-appellants.

Tunica-Biloxi Tribe and United Houma Nation, Donald Juneau, New Orleans, La., amicus curiae.

Russel J. Cremaldi, Morgan City, La., for E. J. Robicheaux, V. St. Blanc, S. B. Dinkins, H. H. Dinkins, S. Dinkins, G. Dinkins & L. Dinkins.

Patrick S. Ottinger, Lafayette, La., for Eason Oil Co.

Liskow & Lewis, Gene W. Lafitte, New Orleans, La., for Atlantic Richfield Co., Amoco Production Co. & Edgewater Oil Co.

McCloskey, Dennery, Page & Hennesy, New Orleans, La., J. William Vaudry, Jr., New Orleans, La., for Adeline Sugar Factory Co., R. Dupuy, E. Chance, B. Dupuy, Comeaux & Robert F. Giles & Fabiola M. Dupuy.

Gordon, Arata, McCollam & Watters, Sheryl L. Hopkins, New Orleans, La., for Tenneco Oil Co.

Robert C. Smith, New Orleans, La., for Amoco Production Co.

Alex P. Allain, Jeanerette, La., for Rodney J. Banta & Elizabeth Banta Lemaire.

Polack, Rosenberg, Rittenberg & Endom, Franklin V. Endom, Jr., New Orleans, La., for Michane P. Burns.

Timothy W. Cerniglia, New Orleans, La., for Texaco.

Milling, Benson, Woodward, Hillyer, Pierson & Miller, M. Hampton Carver, John C. Christian, Charles D. Marshall, New Orleans, La., for Chevron Oil Co.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lawrence E. Donohue, Jr., Lafayette, La., for 30 unnamed defendants.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, and GEE and GARZA, Circuit Judges.

CLARK, Chief Judge:

The Chitimacha Tribe of Louisiana brought this suit in the Western District of Louisiana claiming ownership of a large tract of land in St. Mary Parish, Louisiana. They have named more than eighty St. Mary Parish landowners as defendants. The Chitimachas argue that three transfers of land in the eighteenth century from their ancestors to the defendants' predecessors in title were nullities, thus leaving them with full legal title. The district court, 490 F.Supp. 164, granted summary judgment in favor of the defendants. The Chitimachas argue that the trial judge erred in refusing to recuse himself from presiding over this matter. They also argue that the court incorrectly decided their title claim. We affirm.

I. The Disqualification Issue

The Chitimachas argue that Judge W. Eugene Davis erred when he refused to recuse himself. We conclude that the judge was not disqualified from deciding this case. Before reaching the substance of the claim, however, we outline this case's complicated procedural history.

This action was commenced in July, 1977 in the Western District of Louisiana. Judge W. Eugene Davis was assigned to the case. Counsel for the Chitimachas informed Judge Davis in October, 1977, that his property might be affected by the suit and suggested that he recuse himself. The judge refused to honor this request.

In July of 1979, the Chitimachas filed the first of their amended complaints. The amendments added new defendants, made allegations of fraud, increased the amount of damages requested, and demanded a jury trial. The court immediately entered an order approving the amendments.

In August, 1979, the Chitimachas requested Judge Davis' financial disclosure statement. The request was refused. The Chitimachas moved the court to stay all proceedings pending disclosure of the financial report. The motion was denied. In November, the Chitimachas appealed the issue to this court, and moved this court and the district court to stay all proceedings pending

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that appeal. Both this court and the district court denied the motion.

In November, the Chitimachas requested the court for leave to amend their complaint a second time. The amendments sought, among other things, to add additional defendants to the case, and to clarify the precise boundaries of the Chitimachas' aboriginal territory. Paragraph eight of the original complaint read:

8. Since time immemorial, the plaintiff tribe has exclusively owned, used and occupied portions of the present Parish of St. Mary, Louisiana, as part of its aboriginal territory.

(emphasis added). Paragraph IV of their motion to amend sought to change the original complaint as follows:

8. Since time immemorial, the plaintiff Tribe has exclusively owned, used and occupied Iberia Parish, St. Mary Parish, St. Martin Parish, Iberville Parish west of the Mississippi River, Assumption Parish, and Ascension Parish west of the Mississippi River as their aboriginal territory.

The motion was set for a hearing.

On November 13, the day before a hearing, which had been scheduled months in advance, the Chitimachas filed a motion to disqualify Judge Davis pursuant to 28 U.S.C. §§ 144 and 455. They alleged that Judge Davis was interested in the outcome of the litigation because: (1) the judge owned property within the Chitimachas' aboriginal territory; (2) one of the defendants was a former client of the judge; (3) the judge's former law partners had relatives who were defendants in the action; and (4) the judge previously rendered title opinions and passed acts of sale as an attorney and notary public for various parcels of property in the contested area. A supporting affidavit signed by Leroy M. Burgess, Chairman of the Chitimacha Tribal Council, was also submitted. The Chitimachas' attorney certified that the affidavit was submitted in good faith.

Although Judge Davis commenced the scheduled hearing on November 14 as planned, the only motion he reached was the disqualification motion filed the previous day. Judge Davis initially indicated that, in his opinion, the motion was untimely:

It's absolutely inexcusable for plaintiff's counsel to have delayed filing the motion to disqualify until the day before this hearing was scheduled. This delay has caused the Court and other counsel to waste substantial time in the preparation for hearing on these complex motions.

Nevertheless, "out of an abundance of caution," Judge Davis transferred the disqualification motion to the chief judge of his district, Nauman S. Scott. Judge Davis pledged to recuse himself if Judge Scott concluded that an appearance of impropriety would result if he continued to preside over the case. Judge Davis suspended all further proceedings in the case pending resolution of the disqualification motion.

The clerk of court mailed a copy of Judge Davis' financial statement to the Chitimachas in January, 1980. Judge Scott informed the Chitimachas' attorneys that he would delay his decision on the recusal motion in order to give the Chitimachas an opportunity to amend their original motion in light of any new data revealed in the financial report. The Chitimachas never took advantage of this opportunity.

Before reaching the disqualification issue, Judge Scott passed on the Chitimachas' motion to amend their complaint. He felt compelled to rule on the motion because one of the alleged grounds for disqualifying Judge Davis was his ownership of property in Iberia Parish. One of the proposed amendments sought to add Iberia Parish to the suit as part of the Chitimachas' aboriginal territory. Iberia Parish was not mentioned in the original complaint. Judge Scott determined that the sole effect of the amendment was to furnish a gratuitous basis for disqualifying Judge Davis. He stated that the amendment did not add any substance to the Chitimachas' complaint. Judge Scott therefore refused to allow the amendment. He did not rule on the remainder of the motion to amend.

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Judge Scott then proceeded to discuss the motion to disqualify Judge Davis. He ruled that the motion was not timely filed. He also analyzed each alleged ground for disqualification, and found that the affidavit was insufficient to form a basis for disqualification. He therefore concluded that there was no need for Judge Davis to recuse himself.

The Chitimachas moved Judge Scott to set aside his order and reassign the matter to yet another judge. They claimed that they had discovered grounds for disqualifying Judge Scott. Judge Scott ruled that he was not disqualified, and reaffirmed his prior order with respect to Judge Davis. 1

Before addressing the merits of the Chitimachas' claim that Judge Davis should have recused himself, we examine first, the propriety of the procedure employed below, and second, Judge Scott's partial denial of the Chitimachas' motion to amend their complaint.

Judge Davis' transfer of the disqualification motion to Judge Scott was somewhat irregular. Although, the practice has been permitted in the past, see, e.g., United States v. Grinnell Corp., 384 U.S. 563, 582-83 n. 13, 86 S.Ct. 1698, 1709-10 n. 13, 16 L.Ed.2d 778 (1966); Tenants & Owners in Opposition to Redevelopment v. United States Dep't of Housing & Urban Dev., 338 F.Supp. 29, 31 (N.D.Cal.1972), it is not to be encouraged. The challenged judge is most familiar with the alleged bias or conflict of interest. He is in the best position to protect the nonmoving parties from dilatory tactics. See United States v. Haldeman, 559 F.2d 31, 131 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977) (submitting § 144 motions to fellow judges for decision is "at most permissive.") Referring the motion to another judge raises problems of administrative inconvenience and delay. Parrish v. Board of Com'rs of...

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