Bradley v. School Board of City of Richmond, Virginia

• Decision Date: 08 January 1971
• Docket Number: Civ. A. No. 3353.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Carolyn BRADLEY et al. v. SCHOOL BOARD OF the CITY OF RICHMOND, VIRGINIA, et al.

324 F. Supp. 439

Carolyn BRADLEY et al. v. SCHOOL BOARD OF the CITY OF RICHMOND, VIRGINIA, et al.

Civ. A. No. 3353.

United States District Court, E. D. Virginia, Richmond Division.

January 8, 1971.

Norman J. Chachkin, New York City, Louis R. Lucas, Memphis, Tenn., M. Ralph Page, James R. Olphin, Richmond, Va., for plaintiffs.

George B. Little, John H. O'Brion, Jr., James K. Cluverius, Richmond, Va., for defendants Superintendent of Schools and School Board of the City of Richmond.

Andrew P. Miller, Atty. Gen. of Virginia, William G. Broaddus and D. Patrick Lacy, Jr., Asst. Attys. Gen., for defendants State Board of Education and Superintendent of Public Instruction.

Robert D. McIlwaine, III, Petersburg, Va., J. Mercer White, Jr., County Atty., for Henrico County, L. Paul Byrne, Richmond, Va., for defendants School Board and Board of Supervisors of Henrico County.

J. Segar Gravatt, Blackstone, Va., for defendant School Board of Chesterfield County.

Oliver D. Rudy, Commonwealth's Atty. for Chesterfield County, Frederick T. Gray, Walter E. Rogers, Richmond, Va., for Board of Supervisors of Chesterfield County.

Everette G. Allen, Jr., Richmond, Va., for intervenors Bellevue-Ginter Area Civic Ass'n, Robert Douglas Bain and Sherwood Park Civic Ass'n.

Frederick T. Gray, Walter E. Rogers, Richmond, Va., for intervenors Noel Austin and others.

John S. Battle, Jr., William H. King, Jr., Richmond, Va., for intervenors Westover Hills Parent-Teachers Ass'n.

MERHIGE, District Judge.

Certain of the parties defendant in this school desegregation case, to-wit: School Board of Chesterfield County, School Board of Henrico County, and the Boards of Supervisors of the respective counties and each and every member thereof, have by their respective counsel filed a joint motion that the presiding judge disqualify himself from any further participation in this long-standing litigation so long as they, or any of them, remain party defendants herein.

The motion was filed on January 4, 1971, along with affidavits from the respective members of the school boards and boards of supervisors, as well as a certificate of their respective counsel representing that the affidavits were made in good faith.

Although the motion was not properly filed pursuant to the local rules in that same fails to contain a list of authorities upon which the movants rely, and although there may be a serious technical question as to the timeliness of the motion, the Court is inclined to waive the failure of the parties to conform to the requirements aforementioned as to authorities and consider said motion.

The Court, through its law clerks, contacted at least one attorney for each of the respective boards suggesting that the Court would consider any authorities they wished to submit and requesting that same be done forthwith. As of the time the Court was doing its own research in this matter, only one of the counsel had submitted any authorities, and that by telephonic communication, and even now at the Bar of the Court no other authorities have been tendered.

There are two statutes governing disqualification of a United States District Judge. It would appear that the motion and the respective affidavits, all of which incidentally are identical in phraseology, were intended to comply with Title 28, Section 144, of the United States Code. Title 28, Section 144, reads as follows:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

At least two of the counsel, at the Bar of the Court this morning, state that they did not intend their motion to be one pursuant to Title 28, Section 144; but if this be so, why the effort to conform to Section 144 in the filing of the affidavits and the certificate of counsel?

Regardless of these representations, the Court treats the matter as a motion filed under Title 28, Section 144, U.S.C., and on the assumption that these litigants are proceeding under this statute, which requires mandatory disqualification, it is appropriate that the Court address itself thereto. Before doing so, however, it would perhaps be appropriate for the Court to review very briefly the authorities submitted by counsel telephonically.

Interestingly enough, while counsel have just now at the Bar disclaimed any intention to utilize statutory provisions concerning disqualification, most of the cases cited, with slight exception, went to statutory disqualifications.

The first case cited was Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965), a Third Circuit case involving petitions for writs of mandamus or prohibition or both in a suit arising from an airplane crash in Boston harbor. The petitioners were seeking to cause the district court to vacate certain orders entered in the case. As a result of the petition filed with the circuit court, the appellate court ordered the district judge to file an answer and subsequently directed the district judge to vacate his original order. The respondents, including the judge, obtained certiorari and the United States Supreme Court reversed the Third Circuit and the matter was remanded to the district court, whereupon the plaintiffs moved that the trial judge disqualify himself under Title 28 U.S.C. Section 455. He refused to do so and mandamus was instituted. The facts and the record show that the trial judge had employed as his counsel attorneys for one of the parties in his court. In short, the trial judge had designated the defendant's attorney as his own attorney and the circuit court held that Section 455 was a bar to the judge's further participation in the case. As a matter of fact, even in that case there were several dissents. I will discuss Section 455 subsequently.

United States v. Amerine, 411 F.2d 1130 (6th Cir. 1969); this was a criminal mail theft case. The trial judge had been the United States Attorney at the time of the original criminal complaint. The circuit court held that he had been "of counsel", and the statute plainly says that the judge shall disqualify himself if he had been of counsel. Under Section 455 no motion need even be made since the legislative mandate is clear.

In re Murchison has been cited, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), a case in which the petitioners complained of a situation in which the state judge under Michigan law served as a one man grand jury and subsequently, after a hearing in open court, found them, in essence, guilty of perjury for statements allegedly made during the secret hearings. The United States Supreme Court held, in essence, that the trial judge had become part of the accusatory process.

Texaco, Inc. v. Chandler, 354 F.2d 655 (10th Cir. 1965), cert. denied 383 U.S. 936, 86 S.Ct. 1066, 15 L.Ed.2d 853 (1966), has been cited—another Section 455 case in which the circuit court held the judge was directed to proceed no further in a case pending in his court. The judge had refused to disqualify himself although he stated he did not intend to try the case. The judge had been a defendant in a ten million dollar law suit and one of the attorneys in the suit in which he was asked to disqualify himself had acted as counsel for the judge in his own suit. The Tenth Circuit held that that connection was sufficient to come within the meaning of Section 455.

United States v. Quattrone, 149 F. Supp. 240 (D.D.C.1957), is a case with which I am in full accord. The court sua sponte disqualified itself from ruling upon certain motions in a criminal case and from presiding over the trial. The court in that case had a motion under advisement and while considering the motion the court was visited in chambers by an unnamed visitor not associated with the case and this individual requested certain information. As Judge Youngdahl said, "The discussion of the case was the sole subject of conversation during the visit." The court said that in view of the appearance of impropriety, and in view of the minimal inconvenience resulting by assignment of another judge to the case, and in view of the rigid standards governing the administration of criminal justice, the court felt it should voluntarily disqualify itself. I am in full accord with that position, but I fail to find it controlling in the instant matter before the Court.

I believe, in addition, Knapp v. Kinsey, 232 F.2d 458 (6th Cir. 1956), was also cited. My notes on the Knapp case are not readily available, but I will refer to it in a few moments.

The case law is generally well settled to the effect that the truth of the alleged factual allegations contained in the affidavits is not subject to inquiry. The presiding judge, however, has the task of determining as a matter of law first whether a moving party's affidavit is timely filed, whether same makes the requisite allegations as required by the statute, and whether such allegations provide fair factual support for the "belief that bias or prejudice exists," Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). In short, while a judge may not pass on the truth of the alleged facts, he must decide whether the affidavit meets the procedural requirements laid down in the statute and whether, as just stated, the facts alleged give fair support to the charge of bias or prejudice.

It should be borne in...