Commonwealth of Pa. v. Local U. 542, Int. U. of Op. Eng., Civ. A. No. 71-2698.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtAbraham E. Freedman, Philadelphia, Pa., John J. McAleese, Jr., Plymouth Meeting, Pa., for defendants
Citation388 F. Supp. 155
PartiesCOMMONWEALTH OF PENNSYLVANIA and Raymond Williams et al. v. LOCAL UNION 542, INTERNATIONAL UNION OF OPERATING ENGINEERS, et al.
Decision Date04 December 1974
Docket NumberCiv. A. No. 71-2698.

388 F. Supp. 155

COMMONWEALTH OF PENNSYLVANIA and Raymond Williams et al.
v.
LOCAL UNION 542, INTERNATIONAL UNION OF OPERATING ENGINEERS, et al.

Civ. A. No. 71-2698.

United States District Court, E. D. Pennsylvania.

December 4, 1974.


388 F. Supp. 156

Israel Packel, Atty. Gen., Burton Morris, Deputy Atty. Gen., Harrisburg, Pa., Harold I. Goodman, Mark B. Segal, Robert J. Reinstein, Philadelphia, Pa., for plaintiffs.

Abraham E. Freedman, Philadelphia, Pa., John J. McAleese, Jr., Plymouth Meeting, Pa., for defendants.

OPINION

HIGGINBOTHAM, District Judge.

INTRODUCTION

Defendants, Local 542, International Union of Operating Engineers, the Contractors Association of Eastern Pennsylvania and the General Building Contractors Association, Inc., have moved this Court pursuant to 28 U.S.C. § 144 (1970)1 to refrain from further participation in this case. In support of their motions, defendants have filed the affidavits of Robert Walsh, the business manager of Local 542, of Angelo A. Antonucci, the executive secretary of the Contractors Association of Eastern

388 F. Supp. 157
Pennsylvania, and of Charlson I. Mehl, the executive director of the General Building Contractors Association, Inc. Each of these affidavits alleges a personal bias on my part in favor of the plaintiff class in the instant action.2 For reasons that will hereinafter appear, I have concluded that these affidavits are, as a matter of law, insufficient to justify my disqualification as judge in the instant action. Defendants' motions for disqualification must therefore be denied

I.

DEFENDANTS' AFFIDAVITS

In support of their motion for recusal, defendants allege in their affidavits:

1. That the instant case is a class action, brought under the Civil Rights Act of 1964 and other civil rights statutes, charging that defendants have discriminated against the twelve black plaintiffs and the class they represent on the basis of race, and seeking extensive equitable and legal remedies for the alleged discrimination;

2. That I will try the instant case without a jury, and that I am black;

3. That on Friday, October 25, 1974, I addressed a luncheon meeting of the Association for the Study of Afro-American Life and History, during the 59th Annual Meeting of that organization, "a group composed of black historians";*

4. That in the course of that speech I criticized two recent Supreme Court decisions which involved alleged racial discrimination, and said, inter alia, that:

(a) "I do not see the Supreme Court of the 1970's or envision the Court of the 1980's as the major instrument for significant change and improvement in the quality of race relations in America";
(b) "The message of these recent decisions is that if we are to deal with the concept of integration, we must probably make our major efforts in another forum";
(c) "As I see it, we must make major efforts in other forums without exclusive reliance on the federal legal process."

5. That I used the pronoun "we" several times in the course of the speech, and that my use of this pronoun evidences my "intimate tie with and emotional attachment to the advancement of black civil rights";

6. That by my agreement to deliver the speech I presented myself as "a leader in the future course of the black civil rights movement";

7. That my speech took place in "an extra-judicial and community context," and not in the course of this litigation;

8. That the following day, Saturday, October 26, 1974, The Philadelphia Inquirer published "an article appearing under a predominant headline on the first page of the metropolitan news section, . . . describing the October 25th meeting and publishing the aforementioned quotes";3

9. That approximately 450,000 copies of The Philadelphia Inquirer containing this account were distributed publicly on or about October 26, 1974;

10. That this account made "the community at large" aware of my "significant role as a spokesman, scholar and active supporter of the advancement of the causes of integration";

11. That I believe "that there has been social injustice to blacks in the

388 F. Supp. 158
United States"; "that these injustices must be corrected and remedied"; and "that they must be remedied by extra-judicial efforts by blacks, including myself"

12. That "the very invitation to speak," "the content of my remarks" and my "posing for photographs" after the address identify me as "a leader for and among blacks," and "one of the country's leading civil rights proponents";

13. That I am a "celebrity" within the black community;

14. That "I have identified, and do identify, myself with causes of blacks, including the cause of correction of social injustices which I believe have been caused to blacks"; that I have made myself "a participant in those causes, including the cause of correction of social injustices which I believe have been caused to blacks";

15. That "in view of the applicable federal law," and by reason of my "personal and emotional commitments to civil rights causes of the black community, the black community expectation as to my leadership and spokesmanship therein, and the basic tenet of our legal system requiring both actual and apparent impartiality in the federal courts," my "continuation . . . as trier of fact, molder of remedy and arbiter of all issues constitutes judicial impropriety."

These allegations commingle conclusions with facts to an extraordinary degree. Conclusions, of course, are not relevant to this inquiry. United States v. Townsend, 478 F.2d 1072, 1074 (3d Cir. 1973); Inland Freight Lines v. United States, 202 F.2d 169, 171 (10th Cir. 1953). Even if they were, it is difficult to ascertain what defendants mean by certain of the conclusionary allegations they have made. For example, they state that my interest in these matters indicates an "emotional attachment." If, by "emotional attachment," they were implying that I believe that blacks should, in a nonviolent, rational fashion, strive to eliminate racial injustice, I would accept that characterization. If, by the use of the phrase "emotional attachment," they were implying a degree of irrationality, I do not accept that conclusion as a reasonable inference from either my appearance before the Association for the Study of Afro-American Life and History, or the contents of my speech to it, or the newspaper article reporting on the speech.

No matter what defendants assert in their conclusionary allegations, the factual core of their affidavits is the newspaper article in The Philadelphia Inquirer of October 26, 1974. The legal sufficiency of the affidavits stands or falls on the basis of what I said and did on the occasion of my October 25th speech, as reported in the Inquirer article of the following day, and on any rational inferences that can be drawn from that article.

II.

THE LAW OF DISQUALIFICATION

It is well settled that the mere filing of an affidavit under § 144 does not automatically disqualify me from hearing the instant case. United States v. Townsend, supra, 478 F.2d at 1073; Behr Mine Safety Appliances Co., 233 F.2d 371, 372 (3d Cir.), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Only the filing of a timely and sufficient affidavit will result in such a disqualification. United States v. Townsend, supra, 478 F.2d at 1073; Brotherhood of Locomotive Firemen and Engineers v. Bangor and Aroostock R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570, cert. denied, 389 U.S. 327, 88 S.Ct. 437, 19 L. Ed.2d 560 (1967).

It is my duty, as the judge against whom a § 144 affidavit has been filed, to pass upon the legal sufficiency of the facts alleged in the affidavit. United States v. Townsend, supra, 478 F.2d at 1073; Simmons v. United States, 302 F.2d 71, 75 (3d Cir. 1962). I may not, however, question either the truth of the allegations or the good faith of the pleader. United States v. Townsend,

388 F. Supp. 159
supra, 478 F.2d at 1073; Simmons v. United States, supra, 302 F.2d at 75; In re Federal Facilities Realty Trust, 140 F.Supp. 522, 524 (N.D.Ill.1956). "The section withdraws from the presiding judge a decision upon the truth of the matters alleged." Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921); United States v. Townsend, supra, 478 F.2d at 1073; see Parker Precision Products Co. v. Metropolitan Life Insurance Co., 407 F. 2d 1070, 1077 (3d Cir. 1969)

My disqualification will not be warranted unless a § 144 affidavit "gives fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger v. United States, supra, 255 U.S. at 33-34, 41 S.Ct. at 233; United States v. Townsend, supra, 478 F.2d at 1073-1074. Mere conclusions will not suffice to support such a disqualification. United States v. Townsend, supra, at 1074; Inland Freight Lines v. United States, supra, 202 F.2d at 171.

"Facts must be pleaded which show that there exists personal bias and prejudice on the part of the trial judge." Inland Freight Lines v. United States, supra, at 171; see Simmons v. United States, supra, 302 F.2d at 75. Disqualification will be warranted only if such a personal bias is shown. Ex parte American Steel Barrel Co., 230 U.S. 35, 43, 33 S.Ct. 1007, 1010, 57 L.Ed. 1379 (1913); Gallarelli v. United States, 260 F.2d 259, 261 (1st Cir. 1958), cert. denied, 359 U. S. 938, 79 S.Ct. 654, 3 L.Ed.2d 638 (1959); United States v. Hanrahan, 248 F.Supp. 471, 476 (D.D.C.1965).4 The facts pleaded will not suffice to show the personal bias required by the statute if they go to the background and associations of the judge rather than to his appraisal of a party personally. Parker Precision Products Co. v. Metropolitan Life Insurance Co., 407 F.2d 1070, 1077-78 (3d Cir. 1969); Price v. Johnston, 125 F.2d 806, 811 (9th Cir.), cert. denied, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 (1942). "A judge must have neighbors, friends and acquaintances, business and social relations, and be a part of his day...

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64 practice notes
  • Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, No. 81-2135
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 11, 1982
    ...social relations, and be a part of his day and generation." Pennsylvania v. Local Union 542, International Union of Operating Engineers, 388 F.Supp. 155, 159 (E.D.Pa.1974) (quoting Ex Parte N. K. Fairbank Co., 194 F. 978, 989 (M.D.Ala.1912)). Similarly, Member Applewhaite was not required t......
  • Barry v. U.S., No. 75--1659
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 24, 1976
    ...93 S.Ct. 7. 25 See id. at 832--33, 93 S.Ct. 7. For another variant of the problem, see Pennsylvania v. Operating Eng'rs Local 542, 388 F.Supp. 155 (E.D.Pa.1974) (Higginbotham, 26 For a discussion of the delicate question whether a judge should sit or disqualify himself, see Note, Disqualifi......
  • U.S. v. State of Ala., No. 86-7090
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 6, 1987
    ...he could become a professor or employee at one of these institutions. 39 Pennsylvania v. Local 542, Int'l Union of Operating Engineers, 388 F.Supp. 155, 163 40 See In re City of Houston, 745 F.2d 925 (5th Cir.1984) (interests of all voters in Houston implicated in voting rights suit); cf. P......
  • In re Wilborn, Bankruptcy No. 03-48263-H4-13.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • February 17, 2009
    ...favor, not disqualifying because expressing a view of law); Commonwealth of Pennsylvania v. Local Union 542, Int. Union of Op. Eng'rs, 388 F.Supp. 155 (E.D.Pa.1974) (Judge's remarks in public setting based on judge's background and not commenting on particular cases no grounds for 10. This ......
  • Request a trial to view additional results
64 cases
  • Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, No. 81-2135
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 11, 1982
    ...social relations, and be a part of his day and generation." Pennsylvania v. Local Union 542, International Union of Operating Engineers, 388 F.Supp. 155, 159 (E.D.Pa.1974) (quoting Ex Parte N. K. Fairbank Co., 194 F. 978, 989 (M.D.Ala.1912)). Similarly, Member Applewhaite was not required t......
  • Barry v. U.S., No. 75--1659
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 24, 1976
    ...93 S.Ct. 7. 25 See id. at 832--33, 93 S.Ct. 7. For another variant of the problem, see Pennsylvania v. Operating Eng'rs Local 542, 388 F.Supp. 155 (E.D.Pa.1974) (Higginbotham, 26 For a discussion of the delicate question whether a judge should sit or disqualify himself, see Note, Disqualifi......
  • U.S. v. State of Ala., No. 86-7090
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 6, 1987
    ...he could become a professor or employee at one of these institutions. 39 Pennsylvania v. Local 542, Int'l Union of Operating Engineers, 388 F.Supp. 155, 163 40 See In re City of Houston, 745 F.2d 925 (5th Cir.1984) (interests of all voters in Houston implicated in voting rights suit); cf. P......
  • In re Wilborn, Bankruptcy No. 03-48263-H4-13.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • February 17, 2009
    ...favor, not disqualifying because expressing a view of law); Commonwealth of Pennsylvania v. Local Union 542, Int. Union of Op. Eng'rs, 388 F.Supp. 155 (E.D.Pa.1974) (Judge's remarks in public setting based on judge's background and not commenting on particular cases no grounds for 10. This ......
  • Request a trial to view additional results

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