902 F.2d 1289 (8th Cir. 1990), 90-1167, Little Rock School Dist. v. Arkansas State Bd. of Educ.

• Docket Nº: 90-1167, 90-1579 and 90-1580.
• Citation: 902 F.2d 1289
• Party Name: LITTLE ROCK SCHOOL DISTRICT, et al., Appellants, v. ARKANSAS STATE BOARD OF EDUCATION, et al., Appellees. Nos. 89-2288, 89-2289, 89-2352, 89-2353, 90-1165, 90-1166,
• Case Date: April 25, 1990
• Court: United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1289

902 F.2d 1289 (8th Cir. 1990)

LITTLE ROCK SCHOOL DISTRICT, et al., Appellants,

v.

ARKANSAS STATE BOARD OF EDUCATION, et al., Appellees.

Nos. 89-2288, 89-2289, 89-2352, 89-2353, 90-1165, 90-1166,

90-1167, 90-1579 and 90-1580.

United States Court of Appeals, Eighth Circuit

April 25, 1990

ARNOLD, Circuit Judge.

The question for decision is whether I should disqualify myself from participating in these appeals. No party has asked me to do so, but certain facts raised the question in my own mind, and I placed these facts on the record at a hearing held in chambers on April 20, 1990.

As one aspect of a comprehensive desegregation plan, the District Court has ordered the Pulaski County Special School District (PCSSD) to buy a certain tract of land, on which an interdistrict magnet school would be constructed. The owner of the land is FilmTrust of Arkansas, which is either a corporation or a limited partnership. Among the principals of FilmTrust are Nathan and Pamela Kohn, who are personal friends of mine. The desegregation plan as a whole is under attack on this appeal, and PCSSD has, in particular, moved that the land-purchase requirement be stayed pending the outcome of the appeal.

Page 1290

We granted such a stay provisionally on April 13, 1990, and the purpose of the April 20 hearing was to determine whether to dissolve or modify the stay. Thus, the Kohns appear to have a personal financial stake in the outcome of the appeal and of the pending stay matter.

At the time of the April 20 hearing, I was inclined to withdraw from the case, but stated that I would reflect on the matter and make a definite decision within a few days. I have now made that decision.

The question is governed by statute. If the financial interest were my own, disqualification would be automatic. 28 U.S.C. Sec. 455(b)(4) (personal financial interest of judge, spouse, or minor child residing in the judge's household requires disqualification). But the interest belongs to others, so the more general language of 28 U.S.C. Sec. 455(a) applies:

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(b), relating to a judge's own interests, is stricter. Disqualification under that subsection may not be waived, but a judge may accept a waiver of any ground for disqualification under Section 455(a) after "a full disclosure on the record of the basis for disqualification." 28 U.S.C. Sec. 455(e). See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 859-60 n. 8, 108 S.Ct. 2194, 2202 n. 8, 100 L.Ed.2d 855 (1988).

Until 1974, the standard for disqualification in cases such as this--involving no personal interest on the judge's part--was subjective. A judge had to withdraw from a case when "in his opinion" it would be...