Bradley v. Milliken

• Citation: 426 F. Supp. 929
• Decision Date: 28 February 1977
• Docket Number: Civ. No. 35257.
• Parties: Ronald BRADLEY et al., Plaintiffs, v. William G. MILLIKEN, Governor of the State of Michigan, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

426 F. Supp. 929

Ronald BRADLEY et al., Plaintiffs, v. William G. MILLIKEN, Governor of the State of Michigan, et al., Defendants.

Civ. No. 35257.

United States District Court, E. D. Michigan, S. D.

January 21, 1977.

Order Concerning Referred Issue February 14, 1977.

Memorandum Opinion and Final Order Concerning Referred Issue February 28, 1977.

Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., Thomas Atkins, Boston, Mass., for plaintiffs.

George T. Roumell, Jr., Riley & Roumell, Theodore Sachs, Marston, Sachs, O'Connell, Nunn & Fried, Detroit, Mich., George L. McCargar, Jr., Asst. Atty. Gen., Lansing, Mich., for defendants.

MEMORANDUM OPINION

DeMASCIO, District Judge.

Plaintiffs have filed a motion seeking the recusal of the presiding judge in this case. Plaintiffs' motion was filed pursuant to 28 U.S.C. § 455 and the American Bar Association Code of Judicial Conduct, Canons 3A(4) and 3C. Plaintiffs complain that the court engaged in "various ex parte discussions, negotiations and other contacts" with various community groups. They contend that these contacts were undertaken in a "manner which deliberately excluded the plaintiffs and their counsel in sic the process of shaping the desegregation plan for the Detroit Public Schools." Plaintiffs make two principal assertions: first, that prior to our August 15, 1975 opinion, we met ex parte with representatives of the Detroit Board of Education to discuss the opinion which had not been released, and, second, that the court met secretly with numerous individuals and groups prior to the issuance of our opinion, that these individuals were secretly informed of the contents of the court's decision, that their views in support of our opinion were solicited, and that the court continued to meet with various community groups and representatives of the defendant Detroit Board of Education after the filing of our August 15, 1975 opinion. Plaintiffs contend that as a consequence of these actions, the court's "impartiality might reasonably be questioned" within the meaning of 28 U.S.C. § 455(a) and, further, that these actions violate Canon 3A(4).¹

Plaintiffs' motion, which was not filed until November 23, 1976, is untimely. United States v. Patrick, 542 F.2d 381, 390 (7th Cir. 1976); Thomas v. United States, 363 F.2d 849 (9th Cir. 1966). Plaintiffs were aware of the court's actions of which they now complain for more than 15 months prior to the filing of this motion. They urged these actions upon the United States Court of Appeals for the Sixth Circuit as grounds for reversal of this court's judgment (see brief for plaintiff-appellant, Dec. 22, 1975 at 5 and n. 6). Plaintiffs do not explain why, if they believed that these actions were grounds for recusal, they did not file the instant motion with this court on the same day as the filing of their brief in the Court of Appeals. This court's jurisdiction, moreover, continued following our August 15, 1975 opinion, and we have resolved numerous issues which have been raised concerning the ongoing desegregation of the Detroit city schools. Plaintiffs have appeared, without questioning this court's impartiality, on several of these matters. On others, plaintiffs chose voluntarily not to appear.² 28 U.S.C. § 455, however, places the duty of disqualification squarely upon the presiding judge. Were plaintiffs' assertions grounds for recusal, we could not sit on this case regardless of any implied waiver or the untimeliness of the motion. See United States v. Amerine, 411 F.2d 1130 (6th Cir. 1969).³

The gravity of the allegations of plaintiffs' motion further compels us to consider the merits of their claim. The court's jurisdiction in this case is continuing, and will continue so as to enable the court to resolve issues posed by the remand of the United States Court of Appeals for the Sixth Circuit. Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976), cert. granted, ___ U.S. ___, 97 S.Ct. 380, 50 L.Ed.2d 325 (1976). It is incumbent upon us to reassure all parties involved in this litigation of our continued ability to impartially preside in future proceedings. We are aware that Detroiters have voluntarily complied with our orders and have accepted our efforts to assure Detroit school children a quality, desegregated education. Unlike Louisville and Boston, Detroit has accepted desegregation peacefully. On the day we ordered implementation of the Detroit Plan, we said:

. . . Having assured the Detroit community that the court has weighed the practicalities of the situation fully, we are confident that the plan will receive the cooperation and support of the entire community. When cooperation and support are granted freely, the plan will succeed. The support of the community will afford the Detroit school system an opportunity to make a fresh start. (Memorandum, Nov. 4, 1975, p. 8.)

The people of Detroit, who have so willingly given their support, deserve to have erased from public view any possible blemish which might otherwise attach to this court's future orders.

As a basis for our recusal, plaintiffs have cited 28 U.S.C. § 455 as amended in 1974 by Public Law 93-512 (hereinafter the 1974 amendments). Prior to the 1974 amendments, § 455 in pertinent part provided:

Any justice or judge of the United States shall disqualify himself in any case in which he . . . is so related 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 proceedings therein.

As amended, the relevant portion of the statute now provides:

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

Section 3 of the 1974 amendments provides that:

This Act shall not apply to the trial of any proceeding commenced prior to the date of this act December 5, 1974 . . ..

This proceeding commenced long before December 5, 1974, and plaintiffs' motion was not filed until November 1976. In similar situations, other courts considering § 455 have disagreed over the effect of the amendment. Compare Duplan Corp. v. Deering Milliken, Inc., 400 F.Supp. 497, 505 (D.S.C.1975) ("the act by its own terms does not apply . . .") with Samuel v. University of Pittsburgh, 395 F.Supp. 1275, 1277 (W.D.Pa.1975) (amendment is applicable because it liberalizes the disqualification procedure). The only reported appellate decision that directly considers the applicability of the 1974 amendments to trials of cases commenced before the effective date is In re Virginia Electric & Power Co. (VEPCO), 539 F.2d 357 (4th Cir. 1976). The trial judge was a customer of plaintiff VEPCO. Under a fuel adjustment clause VEPCO's customers were directly surcharged an amount which VEPCO claimed as damages. If VEPCO was successful in the action, it might have been required to refund to its customers that part of the damages recovered which represented the surcharge. The trial judge considered defendant's motion to recuse, and, although he did not doubt his impartiality, he disqualified himself on the basis of the 1974 amendment. The Fourth Circuit Court of Appeals reversed, holding that the trial judge, in disqualifying himself, disregarded the clear language of the statute and committed an error of law. 539 F.2d at 366. We agree with the reasoning of the Fourth Circuit, and, accordingly, conclude that § 455, as amended, is not applicable to this motion. See In re Continental Vending Machine Corp., 543 F.2d 986, 995n.4 (2d Cir. 1976), which, without directly considering the issue notes the inapplicability of the 1974 amendments.

Although we find § 455 inapplicable, we think it necessary to comment on it further in the interest of completeness. The 1974 amendments codify Canon 3C of the American Bar Association Code of Judicial Conduct. Prior to the amendments, it was unclear whether the code conflicted with the statute. Mr. Justice Rehnquist saw no material difference between Canon 3C and § 455. Laird v. Tatum, 409 U.S. 824 n.1, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (Memorandum of Mr. Justice Rehnquist). Prior to the amendments, it was the practice of many district judges to recuse themselves on their own motion when they believed there would be an appearance of partiality.⁴ Other judges, however, after carefully considering whether there would be any impropriety in their sitting on a case (including the appearance of partiality) have relied upon the "duty to sit" in denying recusal motions. These judges recognized that the basis of the duty to sit is a duty not to use disqualification as an easy method of avoiding complex or burdensome cases. Nevertheless, leading commentators on disqualification have found a conflict between the code and the statutory duty to sit. See, e. g., Frank, Commentary on Disqualification of Judges-Canon 3C, 1972 Utah L.Rev. 377, 388. It is apparent that some judges have viewed the duty to sit as a paramount consideration which overrides their discretion on disqualification. The example most often cited is Edwards v. United States, 334 F.2d 360 (5th Cir. 1964), cert. denied, 379 U.S. 1000, 85 S.Ct. 721, 13 L.Ed.2d 702 (1965). In Edwards, Judge Rives considered whether he should recuse himself from an en banc hearing of a three-judge panel decision from which he had dissented. The other judges making up the panel could not sit on the en banc hearing. Judge Rives wrote the en banc opinion reversing the panel. In so doing, he addressed his possible recusal:

After such study as I could give the matter, I reached the conclusion that whether a judge should recuse himself in a particular case depends not so much on his personal preference or individual views as it does on the law, and that, under the law, I have no choice in this case.

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If either or both of the other judges who participated in the original decision could sit on the en banc hearing there could be no

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