Application of Scott

Decision Date07 August 1974
Docket NumberMisc. No. 74-H-5.
Citation379 F. Supp. 622
PartiesApplication of William H. SCOTT, Jr., for Admission to the Bar.
CourtU.S. District Court — Southern District of Texas

William F. Walsh, Houston, Tex., for applicant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., amicus curiae.

MEMORANDUM OPINION

NOEL, District Judge.

In June of 1962 the applicant, William H. Scott, Jr., and another were tried on a grand jury indictment charging a violation of 18 U.S.C. § 1001. A mistrial was declared due to the inability of the jury to agree upon a verdict. In September of 1962 a retrial of the same charge again resulted in a mistrial. In April of 1963 a third trial, held before this Judge, ended in a verdict of guilty. The applicant's conviction was reversed by the United States Court of Appeals for the Fifth Circuit. The case was set to be retried in June of 1965.

It appears that on May 27, 1965 the applicant conferred in chambers with the Chief Judge of this District, the Honorable Ben C. Connally. By a letter dated May 27, 1965 and filed May 28, 1965 the applicant surrendered and renounced his license to practice before this Court. On May 28, 1965 the charges against the applicant were dismissed. On that same day, Chief Judge Connally prepared a "Memorandum to File" which read:

This is result of request of the Court, by reason of disclosures made in the several trials in U. S. v. Scott & Peterson, Cr. No. 14342.
While Scott indicated that he would like to reapply for admission several years hence, no committal has been made to him as to what action the Court would take on any application he might make.

Thus matters stood until August 18, 1972, when Mr. Scott applied for re-admission to practice before this Court. The application was routinely forwarded to the Committee on Admissions and Grievances established by Rule 1 of the Local Rules of this Court. On August 28, 1972 the Chairman of the Committee contacted the Court through its Clerk seeking "the file . . . that led to the previous withdrawal of his Scott's right to practice. . . ."

Chief Judge Connally responded to this letter on August 31, 1972, saying:

. . . I have discussed the matter of Scott's application with the other Judges at a meeting a few days ago. Those present were unanimously of the view that the reapplication should not be favorably considered.1

Apparently no action was taken by the Committee immediately.

In January of 1973 the applicant's counsel requested the Committee Chairman to hold a hearing on the application. Notified of this, Chief Judge Connally agreed that a hearing was in order and that Judge Hannay, who for many years had been and still is responsible for admissions to practice before this Court, would conduct the hearing. The applicant petitioned the Court of Appeals to mandamus this Court but failed on May 28, 1974. On May 31, 1974 Judge Hannay recused himself because he would be a material witness.2 Chief Judge Connally, perhaps being of the opinion that he was a material witness as to the circumstances surrounding the applicant's resignation, recused himself and assigned this Judge to preside over the matter.

Two separate questions have been raised by the applicant which, in different ways, concern the propriety of this Judge hearing this matter. The first question involves the procedure by which this matter was assigned; the second concerns the possible disqualification of this Judge for interest.

A. In his Memorandum of Law Regarding Disqualification of Judges, applicant takes the position, "that Chief Judge Connally has disqualified himself from participating in any `other proceeding' in this matter, because he, through counsel, has repeatedly admitted that he is a material witness and this, we contend, includes the appointment of a successor to Judge Hannay. . . ." Without an expression of opinion as to what the Chief Judge has or has not said or admitted, the adjudicatory authority of this Judge and that of this multi-Judge Court over this matter will now be clarified.

The "other proceeding" language quoted above appears to be a reference to 28 U.S.C. § 4553 which provides for the voluntary disqualification of a Judge for interest.4 "Interest" in the sense here used is discussed under B, below.

Chief Judge Connally's recusal clearly could not by itself be an impediment to his assigning this case to another Judge of this District. Stringer v. United States, 233 F.2d 947, 16 Alaska 305 (9th Cir. 1956) rejected the contention, identical with the applicant's, "that a trial judge after disqualifying himself cannot with propriety carry on the mechanical duties of transferring the case to another judge or other essential ministerial duties short of adjudication." See also In re Fox West Coast Theatres, 25 F.Supp. 250 (S.D.Cal.1936), affd. 88 F.2d 212 (9th Cir.) cert. denied, 301 U. S. 710, 57 S.Ct. 944, 81 L.Ed. 1363 (1937). When following the almost mechanical administrative procedures called for in 28 U.S.C. § 137 and outlined in Rule 9(B) of the Local Rules of this Court, Chief Judge Connally performed ministerial duties, not adjudicatory duties. He did not "sit on . . . an other proceeding" in this matter.

B. The second question raised by the applicant concerns the propriety under 28 U.S.C. § 455 of this Judge presiding because of his own interest.

The interest of which applicant complains allegedly arose from this Judge's participation5 in the conference of Judges mentioned in Chief Judge Connally's letter of August 31, 1972 discussed above. The applicant also complains of the fact that this Judge presided over one of his criminal trials. This second complaint regarding interest is strengthened, it is argued, by the recommendation of the Committee on Admissions and Grievances that this matter be resolved by "one of the judges of this Court not having had previous connection with the proceedings leading up to the indictment of Mr. Scott or with the trials growing out of the same . . . ."6

Title 28 U.S.C. § 455 provides that a Judge shall disqualify himself in any case in which he:

1) has a substantial interest;
2) has been of counsel;
3) is or has been a material witness; or
4) is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal or other proceeding therein.

For the purposes of this memorandum, it will be assumed that the matter now before the Court is a case in the sense that term is used in the statute, although it could reasonably be argued that the instant proceeding is not such a case.

Under this statute, "substantial interest" has been interpreted to mean marked personal feeling, Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L. Ed. 767 (1925); financial or beneficial interest, Kinnear-Weed Corp. v. Humble Oil & Refining Co., 324 F.Supp. 1371 (S.D.Tex.1969) (Connally, C. J.), affd. 441 F.2d 631 (5th Cir. 1971); or "the interest that any lawyer has in pushing his case to a successful conclusion." Adams v. United States, 302 F. 2d 307 (5th Cir. 1962). Applicant has not suggested that this Judge has any stake in this case growing out of emotion, monetary interest or professional zeal. Neither is the "of counsel" disqualification involved.

Disqualification for being a "material witness" is similarly uncalled for. There is no suggestion that this Judge has information or testimony which he might be called upon to give. Borgia v. United States, 78 F.2d 550 (9th Cir.), cert. denied, 296 U.S. 615, 56 S.Ct. 135, 80 L.Ed. 436 (1935). Not surprisingly, there has been no indication that this Judge might or will be called as a witness. United States v. Re, 372 F.2d 641 (2nd Cir.), cert. denied 388 U.S. 912, 87 S.Ct. 2112, 18 L.Ed.2d 1352 (1967). In any event, any testimony this Judge might give concerning the matter is as well or better known to other Judges of this Court.

Disqualification by reason of being "related to or connected with any party or his attorney"7 may result from familial relationship, In re Eatonton Electric Company, 120 F. 1010 (S.D.Ga. 1903); social connection, Weiss v. Hunna, 312 F.2d 711 (2nd Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L. Ed.2d 1073, reh. denied 375 U.S. 874, 84 S.Ct. 37, 11 L.Ed.2d 104 (1963); business involvement, United States Fidelity & Guaranty Company v. Lawrenson, 34 F.R.D. 121 (D.Md.) affd. 334 F.2d 464 (4th Cir.), cert. denied, 379 U.S. 869, 85 S.Ct. 141, 13 L.Ed.2d 71 (1964); employment, Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154, memorandum of Mr. Justice Rehnquist, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972); and the like. But no such relation or connection has been or could be alleged to exist between this Judge and any party or attorney in this matter.

Thus, strictly speaking, Section 455 is inapplicable here. But, in order to avoid even the appearance of impropriety, this Judge will look beyond the letter of the statute. The Fifth Circuit has observed that, "A prior knowledge of the facts or a prior interest in an issue arising out of them may be a ground for disqualification." Roberson v. United States, 249 F.2d 737, 741 (5th Cir.), cert. denied, 356 U.S. 919, 78 S.Ct. 704, 2 L.Ed.2d 715 (1958). The application of this suggestion from Roberson will be appraised.

Whatever "prior knowledge of the facts" which this Judge may have, came to him in the regular course of his duties as a Judge. Any facts learned by this Judge in the course of prior criminal trials are matters of public record. With all due respect, the recommendation of the Committee on Admissions and Grievances regarding Judges with a prior participation in this matter is not accepted.

The Fifth Circuit has held that the legitimate receipt of information concerning a criminal defendant by a Judge does not render him incompetent to try the defendant. Smith v. United States, 360 F.2d 590 (5th Cir. 1966). This rule should be applied in a situation such as this.8 Mr....

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