City of Detroit, In re

• Decision Date: 17 September 1987
• Docket Number: No. 85-1894,85-1894
• Citation: 828 F.2d 1160
• Parties: In re CITY OF DETROIT, Detroit Water and Sewerage Department, Petitioners.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1160

828 F.2d 1160

In re CITY OF DETROIT, Detroit Water and Sewerage

Department, Petitioners.

No. 85-1894.

United States Court of Appeals, Sixth Circuit.

Argued May 1, 1986.

Decided Sept. 17, 1987.

Abigail Elias (argued), Martha L. Black, Detroit, Mich., for appellant.

Frederick M. Baker, Jr., Willingham, Cote, Hanslovsky, East Lansing, Mich., for Snell Environmental Group.

David Sims, U.S. E.P.A., Region V, Chicago, Ill., Richard J. McClear, Dykema, Gossett, Spencer, Goodnow & Trigg, Kathleen Gallagher Lewis, James A. Smith, David Vago, Thomas A. Neenan, Wayne County Bd. of Public Works, Detroit, Mich., William P. Hampton, Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark, Farmington Hills, Mich., Thomas F. Schimpf, Asst. Atty. Gen., Lansing, Mich., Robert H. Fredericks, Chief Deputy Drain Comm., Pontiac, Mich., for appellee.

Joseph B. Klein, Asst. Wayne County Pros. Atty., John P. Williams, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., James F. Graves (argued), Willingham, Cote, Hanslovsky, Griffith & Foresman, P.C., East Lansing, Mich., Marty Black, Deputy Corp. Counsel, Detroit, Mich., L. Michael Wicks (argued), U.S. Atty., William Dietrich, Wayne County Asst. Corp. Counsel, Detroit, Mich., John Michael Donohue (argued), Farmington Hills, Mich., for respondents.

Before NELSON and RYAN, Circuit Judges, and BROWN, Senior Circuit Judge.

PER CURIAM.

The City of Detroit, Michigan, and its water and sewerage department have petitioned this court for a writ of mandamus that would require the former Chief Judge of the United States District Court for the Eastern District of Michigan to recuse himself in two pending cases that arose out of the city's waste water treatment operations. Because the refusal of a trial judge to disqualify himself is not ordinarily subject to review by way of mandamus, and because we are satisfied that the judge in this case did not abuse his discretion in refusing to recuse, we shall deny the petition.

I

The cases in question are United States, et al. v. City of Detroit, et al., Civil Action No. 77-71100 (E.D.Mich.), and Snell Environmental Group, Inc. v. City of Detroit, Civil Action No. 84-CV-3798-DT (E.D.Mich.). The former is a proceeding initiated by the United States Environmental Protection Agency against the City of Detroit and others to obtain compliance with the Federal Water Pollution Control Act; the latter is a contract action brought against the city by a company that performed design and construction services for the city in connection with a certain sludge processing facility. The EPA's suit was assigned to the then Chief Judge of the Eastern District of Michigan, the Honorable John Feikens, by blind draw. The Snell case was initially assigned to another judge, but was then reassigned to Judge Feikens pursuant to Rule 8(c) of the district court's local rules.

Soon after the filing of the EPA action in 1977, the district court entered a consent judgment under which the city assumed a variety of obligations with respect to the financing, staffing, operation and maintenance of waste water treatment facilities and related sludge disposal facilities. In the latter part of 1978, contending that the city had failed to comply with the consent judgment, the EPA applied to the court for appointment of an outside receiver of the water and sewerage operation. The court ultimately entered an order appointing the Mayor of Detroit, Mr. Coleman A. Young, "administrator" of the Detroit water and sewerage department for the purpose of carrying out the city's obligations under the 1977 consent judgment. The administrator was given broad authority to manage the department, including authority to enter into contracts without following competitive bidding procedures. The order also directed Mayor Young, as administrator, to procure the services of an experienced waste water treatment plant manager to assist him in carrying out his responsibilities.

Mayor Young served as administrator, pursuant to court order, until December 11, 1984. The administratorship was dissolved as of that date, pursuant to a motion for dissolution in which the city and Mayor Young, as administrator, represented that the city had met the water effluent requirements of the consent judgment and had otherwise demonstrated its ability to achieve compliance with the requirements of that judgment. Substantial improvements were made in the city's waste water treatment operations during the period of Mayor Young's administratorship, and Judge Feikens personally played a very active role in overseeing the operation of the system. Notwithstanding that Mayor Young was the de jure administrator, Judge Feikens referred to himself, on occasion, as the system's "receiver."

As a result of certain ex parte conferences, Judge Feikens determined in February of 1983 that the department should construct a sludge mixing facility on the premises of the city's waste water treatment plant. On March 23, 1983, the court entered two orders directing Mayor Young, as administrator, to have the department negotiate a contract with Snell Environmental Group for construction of a 2,000-ton-per-day sludge processing facility at an estimated cost of $1.2 million. The orders specifically directed that the contract be negotiated rather than being awarded through competitive bidding. The orders also directed Mayor Young, as administrator, to have the department "investigate the availability of appropriately licensed landfill sites which will accept sludge ... and to further explore the availability of haulers to convey sludge from the Waste Water Treatment Plant to said sites."

The city negotiated a contract with Snell, as directed, and Snell designed and managed the construction of a sludge processing facility at the treatment plant. A controversy subsequently arose between Snell and the city as to the amount due Snell under the contract, and Snell filed suit. The city filed an answer and counterclaim and demanded a trial by jury. Although the case is thus at issue, no trial date has been set. Counsel advised us at oral argument that the questions that are to be litigated in the Snell case do not involve matters in which Judge Feikens was personally and directly involved.

On February 3, 1983, at about the time of the ex parte conferences that led to issuance of the order directing the negotiation of a contract with Snell, the director of the department and others involved in the hauling of sludge from the treatment plant to a disposal site were indicted under the Federal Racketeer Influenced and Corrupt Organizations Act. These indictments were based on information that the FBI had obtained in wiretaps that had been authorized by Judge Feikens. The criminal proceedings culminated in the conviction of the director and others. See United States v. Bowers, 828 F.2d 1169 (6th Cir.1987).

On August 26, 1984, the Detroit Free Press published an article based on an interview in which Judge Feikens had discussed the administratorship of the department at considerable length. In the interview, he explained why he had appointed Mayor Young as administrator, described the sad state the department had been in when the administratorship began, and noted the accomplishments that had been achieved with the court's assistance-under the administratorship.

In the course of telling the reporter why he considered the administratorship a success, the judge observed that "there are some people, I don't care how good they are, [who] just don't know how to [get from A to B.]" One such person, he went on to suggest, was former Governor George Romney, in whose presidential campaign the judge was involved before he was appointed to the bench. Repeating a remark attributed to Theodore White, the judge said that Romney didn't make it "because he couldn't climb the hill." He suggested that many black people, like Governor Romney, could not "climb hills," and had to be given "the time to ... learn how to run City governments, to run projects like the water and sewer plant. Unfortunately, they're still in an area of development, many of them, in which they think all you have to do is talk about this thing. So you hear a lot of rhetoric. Talking is important; words are important. But you have to do more than just talk about it.... [A]s the black people come into political power in all the big cities of the United States, they have to learn how to climb hills. Some won't. Some will not understand how to run government. Some will not understand leadership."

In response to the question "Do you think Mayor Young understands how?" the judge replied: "He does in certain areas. But he's a very poor administrator. I don't mean now as a person in the water and sewer plant because he was surrounded by enough people that were doing good jobs. But I mean just generally, his staff work over there is lousy." The judge added that "It may be that he doesn't take the time to inform himself; it may be that he doesn't do the homework. But on so many things that happen that I've seen, he just doesn't have a grasp of it." The reporter noted that many members of the city administration had stated that the Mayor was actively involved in the day-to-day operation of the city's departments, but the judge replied that he saw "no evidence of that" in the water and sewer department and said that he didn't "know about his other departments."

The published article that resulted from this interview highlighted the judge's derogatory comments on Mayor Young's administrative skills and the generalizations about black people. ¹ Mayor Young, according to the article, declined comment.

On November 14, 1984, the city moved to disqualify Judge Feikens in the EPA and Snell cases pursuant to 28 U.S.C. Secs. 144 and 455. ² The motion was supported by an affidavit suggesting that the judge's statements to the press "have been viewed by members of the public as showing his bias or...