Hall v. Small Business Admin.
| Decision Date | 14 January 1983 |
| Docket Number | No. 81-4319,81-4319 |
| Citation | 695 F.2d 175 |
| Parties | 35 Fair Empl.Prac.Cas. 1784, 65 A.L.R.Fed. 766, 30 Empl. Prac. Dec. P 33,271 Helen Y. HALL, individually and on behalf of others similarly situated, Plaintiff-Appellee Cross-Appellant, v. SMALL BUSINESS ADMINISTRATION, Louis Lawn, Wiley Messick and Ardis Jones, Defendants-Appellants Cross-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert S. Greenspan, Marleigh Dover, Attys., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., for defendants-appellants cross-appellees.
Ellis B. Bodron, Vicksburg, Miss., Danny E. Cupit, Robert W. Sneed, Jackson, Miss., for plaintiff-appellee cross-appellant.
Appeals from the United States District Court for the Southern District of Mississippi.
Before CLARK, Chief Judge, RUBIN and WILLIAMS, Circuit Judges.
Judicial ethics reinforced by statute exact more than virtuous behavior; they command impeccable appearance. Purity of heart is not enough. Judges' robes must be as spotless as their actual conduct. These expectations extend to those who make up the contemporary judicial family, the judge's law clerks and secretaries. Because a magistrate's sole law clerk was initially a member of the plaintiff class in this suit, had before her employment with the magistrate expressed herself as convinced of the correctness of its contentions, and accepted employment with its counsel before judgment was rendered, we hold that the magistrate erred in refusing to disqualify himself. We, therefore, reverse the judgment and remand for a new trial before a judge or another magistrate.
In 1975 Helen Hall, a woman employed by the Small Business Administration (SBA) filed a Title VII class action in the Southern District of Mississippi alleging that the SBA had discriminated against her and other female SBA employees in hiring, salary, and promotion. The parties consented to trial before a magistrate. See 28 U.S.C. Sec. 636(c)(1) (Supp. IV 1980). The magistrate was authorized to employ a clerical assistant. The person employed to fill this position was a lawyer and had the actual duty of a law clerk. Before she began employment with the magistrate, she had worked for the SBA. She had resigned in 1978 because she thought that she had been a victim of sexual discrimination. In her letter of resignation, she expressed her disappointment at her treatment at SBA and added: Although it was not brought out at the time of the trial, the SBA was aware that the judge's law clerk had worked in the same office as Ms. Hall during the period in which it was alleged that the SBA followed discriminatory practices.
This clerical assistant-law clerk participated in the pretrial proceedings. Trial began on June 16, 1980, and was completed on July 2, 1980. On the opening day of trial, the SBA's trial attorney stated that she wished to call the magistrate's attention to a "housekeeping problem," the fact that the judge's law clerk was a member of the plaintiff class. The magistrate first stated that he was unaware of that fact, then later that he knew that she was formerly an SBA employee but that he had not thought about it. He continued:
What are you putting that on the record for? Do you think that might make me biased or prejudiced?
BY [SBA COUNSEL]:
Not you, sir, No, sir. We're just putting it on the record.
Well, are you asking me to recuse myself?
BY [SBA COUNSEL]:
No. And I would also like to introduce ... one of the defendants in the case, and he came over from Atlanta.
Well, I knew that [my law clerk] was a former SBA employee, but that's the first I had thought about it. It won't make any difference.
BY [PLAINTIFFS' COUNSEL]:
Just for the clarification of the record, I did not hear an objection voiced by Counsel to either you presiding as judge, or [your law clerk] acting as law clerk, and I assume there is no objection to either.
I asked them if they wanted me to recuse myself, and Counsel said no they did not.
BY [PLAINTIFFS' COUNSEL]:
We would call Dr. Gordon Henderson.
If I had any doubts about it, I would recuse myself anyway.
On the second day of trial, the magistrate commenced proceedings by stating:
Before [the witness] begins his testimony, I would like to say in advance of the trial that they called to my attention for the first time that my Law Clerk is a member of the class certified in this cause. I stated at that time, and I still feel, that that will not bias or prejudice me in any way. I don't know what her financial interest would be, if any, certainly not being with the Small Business Administration any more. In the event to avoid any impropriety or appearance of impropriety by the Court, I discussed this with [the law clerk] this morning, and an order has been entered by her today, opting out of the class that has been certified. If there ever was a conflict, I think that would clear it up.
The trial transcript was not typed until after the magistrate rendered judgment. The law clerk sat in court during the trial and took notes. She also prepared trial (bench) memoranda for the judge.
"Before Christmas 1980" lead counsel for the plaintiff discussed with the magistrate his desire to offer employment to the law clerk, obtained approval from the magistrate, and made the offer, which, after some negotiations about salary, the clerk accepted. She actually began work for his law firm about January 4, 1981. The magistrate rendered judgment on January 6, 1981.
On January 19, 1981, the SBA attorney telephoned the magistrate's chambers and asked for the magistrate's law clerk. The magistrate's new law clerk informed her that his predecessor no longer worked for the magistrate and had accepted employment with the firm representing the plaintiff class. The new law clerk also stated that the opinion in this case was "the last thing" the prior law clerk had worked on before she left. The SBA lawyer wrote the former law clerk asking questions about her dealings with that firm during her tenure as law clerk, but in a letter dated February 11, 1981, she refused to answer them and suggested that "any questions concerning [the magistrate's] integrity" be directed to him.
Sometime after judgment was entered, the SBA "discovered" the letter of resignation from the law clerk to SBA Regional Counsel. Besides the statements we have quoted, the letter contained the law clerk's version of various grievances against her supervisor. The SBA contends, and the magistrate later found, that its counsel was unaware that the letter existed until after the trial. The law clerk never disclosed the letter's existence to the magistrate or to the parties.
In March, the SBA filed a motion requesting that the magistrate vacate his judgment and recuse himself because of the appearance of partiality arising from his law clerk's conduct. The magistrate denied the motion after a hearing because the law clerk "at no time" expressed an opinion or communicated any extrajudicial information to him about the SBA; because she had accepted employment only after the magistrate had made his decision and had written a rough draft of the opinion in this case, and because the law clerk was, in the magistrate's words, "little more than an amanuensis in th[e] case." He stated: "I don't think that any female law clerk is going to give me a lot of input on how to decide a case."
The Code of Judicial Conduct, adopted by the Judicial Conference of the United States, states: "A judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned...." Code of Judicial Conduct, Canon 3(C)(1), reprinted in 69 F.R.D. 273, 277 (1975). By statute adopted in 1974 that ethical standard was converted into mandate: every justice, judge and magistrate is required to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. Sec. 455 (1976 & Supp. IV 1980). This disqualification may be waived 1 but the judge is forbidden to accept a waiver unless "it is preceded by a full disclosure on the record of the basis for disqualification." Id. Sec. 455(e) (Supp. IV 1980).
The goal of this portion of the disqualification statute is to exact 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); E. Thode, Reporter's Notes to Code of Judicial Conduct 60-61 (1973). It focuses on what is revealed to the parties and the public, as opposed to the existence in fact of any bias or prejudice. Potashnick, 609 F.2d at 1111. A judge should exercise his discretion in favor of disqualification if he has any question about the propriety of his sitting in a particular case. Id. at 1112.
The statute requires the judge to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality. Id. See Fredonia Broadcasting Corp. v. RCA Corp., 569 F.2d 251 (5th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1978); Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745 (1973). But knowledge of all the facts implies only knowledge of those that are objectively ascertainable. The term cannot, as suggested by counsel, extend to what happens in the judge's chambers or to his actual virtue because, were that so, the test would be not the appearance of impartiality but the absence of actual prejudice.
Law clerks are not merely the judge's errand runners. They are sounding boards for tentative opinions and legal researchers who seek the authorities that affect decision. Clerks are privy to the judge's thoughts in a way that neither parties to the lawsuit nor his most...
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