Action Realty Co. v. Will, 18509.
| Decision Date | 11 June 1970 |
| Docket Number | No. 18509.,18509. |
| Citation | 427 F.2d 843 |
| Parties | ACTION REALTY CO. et al., Petitioners, v. Honorable Hubert L. WILL, United States District Judge for the Northern District of Illinois, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
George S. Feiwell, James S. Gordon, Chicago, Ill., for petitioner.
Thomas A. Foran, U.S.Atty., Chicago, Ill., for respondent.
Before KILEY, KERNER, and PELL, Circuit Judges.
This is a petition for a writ of mandamus or prohibition to Judge Hubert L. Will, United States District Judge, Northern District of Illinois, in the case of Baker et al. v. F. & F. Investment et al., cause No. 69-C-15. In the Baker case approximately two-thirds of the seventy-five defendants filed their affidavit asserting the disqualification of the presiding judge and moved that he preside no further in the cause and that another judge be assigned to hear the action.
The motion for change of venue was properly supported by a good-faith affidavit of counsel, as required by the statute, 28 U.S.C. § 144.
Upon presentation to the court, the motion was overruled following a discussion by the judge of the factual allegations contained in the motion. The court did not deny the truth of the factual allegations but did offer explanations thereof. On well-established authority, the court was entitled to pass upon the sufficiency of the affidavit, but, of necessity, all factual allegations had to be taken as true. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921).
The court, of course, does not need to consider the allegations that the judge has personal bias and prejudice as being factual allegations as these are only conclusory. As such they need not be persuasive in the court's determination of whether the motion should be granted.
Basically, the motion contends that the petitioners therein are at a double disadvantage in the Baker litigation in that the plaintiffs, who are in a class action, are Negroes, and that the judge has a personal bias which is favorable to them. Further, it is asserted that the petitioners are Jewish and that the judge has a personal bias and prejudice against these petitioners.
The factual allegations concern certain exchanges which have occurred between the judge and counsel during preliminary proceedings in the Baker case.
There are some well-established controlling principles in the present type of proceeding as to which there is no discernible conflict of authority, at least at the federal level. Thus, the factual allegations of the affidavit must be taken as true. Further, the primary duty of the court is only to determine the legal sufficiency. If the factual allegations show the objectionable inclination or disposition of the judge, it is his duty to proceed no further. On the other hand, the judge is under as much obligation not to recuse himself when there is no occasion as there is for him to do so when there is.
Notwithstanding the judge's duty to sit when there is no valid reason for recusation, we do observe the following language contained in the concurring opinion of Judge Hastie of the Third Circuit in the case of Green v. Murphy, 259 F.2d 591 (1958) stating (at page 595):
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