City of Houston, In re

• Decision Date: 10 October 1984
• Docket Number: No. 84-2389,84-2389
• Citation: 745 F.2d 925
• Parties: In re CITY OF HOUSTON, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 925

745 F.2d 925

40 Fed.R.Serv.2d 800

In re CITY OF HOUSTON, Petitioner.

No. 84-2389.

United States Court of Appeals Fifth Circuit.

Oct. 10, 1984.

John E. Fisher, Jerry E. Smith, Charles M. Williams, Houston, Tex., for petitioner.

George J. Korbel, Jesse Ray Botello, San Antonio, Tex., Craig Washington, Houston, Tex., for Moses Leroy & Greater Houston Council.

Frumencio Reyes, Houston, Tex., for Sidney Braquet.

L.A. Greene, Jr., Houston, Tex., for respondents.

On Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.

Before BROWN, REAVLEY and POLITZ, Circuit Judges.

REAVLEY, Circuit Judge:

The City of Houston petitions for mandamus ordering Judge Gabrielle McDonald to recuse herself from the post-trial setting of attorneys' fees in a voting rights class action in which she was a member of the class. We deny the writ.

I. CASE HISTORY

In December 1973, a group of private plaintiffs brought suit in the United States District Court for the Southern District of Texas against the City of Houston and certain city officials. The case was styled Greater Houston Civic Council v. Mann, No. 73-H-1650. ¹ The plaintiffs, originally representing voters of every major ethnic group in Houston (including whites), challenged the City's at-large system of electing its eight council members on grounds that the system unconstitutionally discriminated against minority voters in the City by minimizing or diluting their votes. No monetary damages were ever requested.

The presiding judge to whom the case was initially assigned was the late Honorable Allen B. Hannay. At a pretrial conference held in Judge Hannay's chambers on November 8, 1976, counsel for all parties agreed that the case was a 23(b)(2) class action, the class being restricted to black and Mexican-American registered voters in the City, and that the named plaintiffs represented this class. Judge Gabrielle McDonald, to whom this case has now been assigned, is black and at the time of the trial was a registered voter in the City.

After a nineteen-day trial Judge Hannay denied the injunction and declaratory relief sought by plaintiffs. By the time of submission to the Fifth Circuit in 1979 the City had changed its method of election and the parties agreed that the issue of the appeal was moot. The cause was remanded to the district court for a finding regarding the availability of attorneys' fees to any of the parties to the action.

The death of Judge Hannay resulted in the assignment of the case to Judge Woodrow Seals. In April 1983, the plaintiffs' attorneys filed their Motion for Attorneys' Fees in this consolidated cause in Judge McDonald's court. Judge McDonald then had two related cases on her docket (Nos. H-78-2174 and H-78-2407), and No. 73-H-1650 was reassigned to her.

In a letter dated August 30, 1983, John Whittington, Assistant City Attorney for the City of Houston, advised the court that,

as the Court knows, 73-H-1650 was a class action suit and Your Honor was a member of the protected class. This particular problem does not arise in any of the subsequent litigation brought pursuant to the Voting Rights Act because Your Honor was a member of a three-judge panel which was not addressing substantive issues nor were those cases class actions. Thus, it is only 73-H-1650 that there exists the potential for some conflict.

Judge McDonald responded to Mr. Whittington in a letter dated December 6, 1983, advising him: "I do not intend to recuse myself voluntarily. You are, of course, free to file a Motion to Recuse which I would consider at that time."

The City then filed a motion to recuse, requesting that Judge McDonald disqualify herself from further proceedings on grounds that she was a "party to the proceeding," and thus was required to disqualify herself under 28 U.S.C. Sec. 455 (1982). ² The City also cited Canon 3(C) of the Code of Judicial Conduct. Judge McDonald denied the motion to recuse.

II. PRIMARY LAW

The disqualification or recusal of federal judges is governed by 28 U.S.C. Sec. 455 (1982), ³ which provides in part:

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

(b) He shall also disqualify himself in the following circumstances:

* * *

* * *

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person:

(i) Is a party to the proceeding ....

(d) For the purposes of this section the following words or phrases shall have the meaning indicated:

(1) "proceeding" includes pretrial, trial, appellate review, or other states of litigation ....

The Code of Judicial Conduct, from which the statute's language derives, contains quite similar provisions. ⁴

A recusal motion under section 455 is committed to the sound discretion of the district judge. Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). The question of disqualification is reviewable on a petition for writ of mandamus, but a writ will not lie in the absence of exceptional circumstances. United States v. Gregory, 656 F.2d 1132, 1136 (5th Cir.1981). "[T]he determination of the judge concerned should be accorded great weight, and should not be disturbed unless clearly erroneous." Kinnear-Weed Corp. v. Humble Oil & Refining Co., 324 F.Supp. 1371, 1385 (S.D.Tex.1969), aff'd, 441 F.2d 631 (5th Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971).

The issue of judicial disqualification is solely one of law. McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1260 (5th Cir.1983). It is "a sensitive question of assessing all the facts and circumstances in order to determine whether the failure to disqualify was an abuse of sound judicial discretion." H.Rep. No. 1453, 93d Cong., 2d Sess. 3, reprinted in 1974 U.S.Code Cong. & Ad.News 6351, 6355. "[T]he goal of the judicial disqualification statute is to foster the appearance of impartiality." Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980).

III. Section 455(b)(5): THE CLASS MEMBER AS A PARTY

We have no question but that Judge McDonald was a member of a declared class. Though not formally certified, we have no hesitation in treating it as if it had been. See Bing v. Roadway Express, Inc., 485 F.2d 441, 446 (5th Cir.1973). In ruling on the merits of this case, the court referred to it as a class action. See Greater Houston Civic Council v. Mann, 440 F.Supp. 696, 697-98 (S.D.Tex.1977).

The question before us is whether a judge who is a member of a class in a voting rights case must recuse herself from sitting on that case. We are guided by no federal precedent on this point. ⁵ But we believe that we have before us a modern continuation of an age-old proposition derived from the civil law: "Nemo debet esse judex in propria causa," which is to say, no man should be a judge in his own case. See Black's Law Dictionary 935 (5th ed. 1979). It is our interpretation of this venerable maxim, as applied through section 455, that controls the disposition of this case. We are not harking back to Latin bywords without sanction of our highest Court: "[N]o man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955).

Unfortunately, the definitional provisions of section 455 do not contain a definition of the word "party," so that we might know exactly when a person is being his own judge. Only one federal circuit opinion seems to have addressed the issue. The City cites In re Cement Antitrust Litigation, 688 F.2d 1297, 1313 (9th Cir.1982), aff'd mem., 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983), in support of the proposition that, for recusal purposes, a class member is a party. The court there stated:

We conclude that the term "party" as used in section 455 must be given its broad customary meaning rather than the narrow construction suggested by plaintiffs, and hold that for purposes of the recusal statute, the term "party" includes class members.

Id. In Cement Antitrust, the trial judge's wife owned stock in seven of the 210,235 class members, and her financial interest in the case was calculated to be $29.70. Because of this financial interest of the judge's wife, the court held that section 455 required that a new judge be assigned to conduct further proceedings. Id.

We agree with the result in Cement Antitrust, but disagree with the application urged by the City of that case's holding. The framers of section 455 laid down a per se rule where financial interests are concerned, so that even the slightest financial stake in the outcome of litigation--on the part of the judge, his spouse, or minor child--would disqualify the judge. Here we have a different case, in which Judge McDonald is considering a voting rights dispute where none of the plaintiffs has a financial interest. Hence the per se rule does not apply. We note also that the Cement Antitrust court was construing section 455(b)(4), not (b)(5). ⁶

Moreover, Cement Antitrust involved a Rule 23(b)(3) class and not a Rule 23(b)(2) class. See Advisory Comm. on Codes of Conduct, Advisory Op. No. 68, II-213 (Oct. 15, 1981) (explaining that corporations in which judge's wife owned stock chose not to opt out of the litigation). The differences between the two types of class actions affect the perspective from which we must view this case....