In re Acker, 88-Y-1070-S.

• Decision Date: 03 October 1988
• Docket Number: No. 88-Y-1070-S.,88-Y-1070-S.
• Citation: 696 F. Supp. 591
• Parties: In re Possible Recusal of William M. ACKER, Jr. in Government's Cases.
• Court: U.S. District Court — Northern District of Alabama

696 F. Supp. 591

In re Possible Recusal of William M. ACKER, Jr. in Government's Cases.

No. 88-Y-1070-S.

United States District Court, N.D. Alabama, S.D.

October 3, 1988.

Frank W. Donaldson, U.S. Atty., for the U.S.

MEMORANDUM OPINION

ACKER, District Judge.

On August 12, 1988, this judge conducted a hearing on the question of whether or not he should recuse himself in all or some of the government's cases. The government did not show up for the hearing, but in response to the order issued on June 29, 1988, the government did file an enigmatic written response, which said:

The United States has at this time insufficient information to determine, and no reason to believe, that Judge Acker's proposed general recusal is either necessary or appropriate. It is the United States' view that the matter of recusal is better left for consideration on a case-by-case basis.

(emphasis supplied).

In other words, between June 29, 1988, when the show cause order was issued, and August 9, 1988, when the government responded, the government had not turned up anything that made it feel compelled to suggest a general recusal of this judge in all government cases, comprising approximately 31% of this court's docket. The government did not ask for a continuance to give it more time within which to investigate and to determine the possible bases for such a recusal. If the government had asked for more time, this judge would have given it.

The precipitating cause of the recusal hearing was the government's brief filed in the Eleventh Circuit in United States v. White, on May 21, 1988, in which the government asserted, inter alia:

This Court should also bear in mind that the adamance with which a district court makes erroneous rulings should weigh in the determination to remand a case to a different judge.

* * * * * *

Moreover, since the commencement of this case, the district court has expressed its personal disdain for the Southern Poverty Law Center and for Morris Dees, in particular.

* * * * * *

It has made all credibility determinations against the government and particularly against Mr. Dees as a witness for the government.

* * * * * *

The government, no less than any other litigant, is entitled to a fair tribunal, free of the appearance of taint of previously expressed and reversed findings. Likewise, the requirement that judicial proceedings serve the appearance of justice is not diminished because the government is a party.

* * * * * *

Where a court has fixed its views regarding a case and hardened its position ... the supervisory jurisdiction of this court should be exercised to order reassignment of the case.

Quickly echoing these criticisms, the Court of Appeals went even further than the government by referring not only to this judge's "adamance" but to his "intransigence." United States v. White, 846 F.2d 678, 695 (11th Cir.1988). The Court of Appeals conspicuously did not say: "Judge Acker's position has become hardened against the government in this case." Instead, it said: "Judge Acker's position has become hardened against the government." (emphasis supplied). This broad finding of bias against the government becomes more significant when it is understood that there was no recusal motion ever filed by the government in the trial court, although this judge handled the case from the time of the self-imposed recusal by Hon. U.W. Clemon in 1984 until the recent order of reassignment by the Eleventh Circuit. Furthermore, no petition for mandamus questioning this judge's qualification to sit in the case was ever filed in the Eleventh Circuit. The fact is that the government waited until it had obtained a result it had every reason to anticipate and then appealed, incidentally seeking this judge's removal without ever having presented the question of this judge's alleged disqualification to the trial court. If this judge's position was hardened against the government, that position surely must have manifested itself to the government long before the date upon which the government filed its brief in the Eleventh Circuit on May 18, 1987.

Not too long after its finding that this judge was disqualified because of his alleged bias, the Eleventh Circuit on August 30, 1988, decided Giles v. Garwood, 853 F.2d 876 (11th Cir.1988), in which that Court reviewed a district judge's denial of a recusal motion. Giles is in stark contrast to the appellate consideration of recusal in White in which there was no formal motion for recusal and no prior nisi prius consideration of the issue. The Court said in Giles:

This court is limited to a determination of whether the district court abused its discretion in denying the disqualification motion. See Davis v. Board of School Commissioners, 517 F.2d 1044, 1052 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). A judge should disqualify himself only if a reasonable person would question his impartiality, or if he has a personal bias against a party. The bias must arise from an extrajudicial source, except in the rare case "where such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party." Id. at 1051.

853 F.2d at 878.

This court could not be in more perfect agreement with what the Eleventh Circuit said in Giles, and, agreeing, notes that the Eleventh Circuit of its own motion ordered the undersigned judge removed without any discussion of extrajudicially induced bias, necessarily meaning that it found this judge to be within that rare category of judges who by their own judicial conduct have manifested pervasive bias and prejudice. This was said in White of a judge who denied a pre-conviction motion for acquittal, submitted a case to the jury and set aside the verdict of guilty on post-conviction motion, despite his belief that the government had not proven an essential element of its case, simply in order to give the government an appeal opportunity. This judge could have barred such an appeal by double jeopardy if its position had been hardened enough.

The extraordinary nature of the Eleventh Circuit's action invites this court to consider the broader implications of the action. With perfect timing, Hon. Jack B. Weinstein, formerly Chief Judge of the United States District Court for the Eastern District of New York, in August, 1988, published an article, "The Limited Power of the Federal Courts of Appeals to Order a Case Reassigned to Another District Judge." 120 F.R.D. 267. Judge Weinstein argues primarily that an appellate court has no power to control judge selection in a district court. This court agrees thoroughly with Judge Weinstein when he says:

The assumption of power by an appeals panel to control judge selection can only add to the burdens placed on the trial courts, while adversely and unnecessarily lowering their morale.

* * * * * *

One justification relied on by appeals panels ordering reassignment is that this is a power seldom used by the courts of appeals. That excuse hardly answers the argument that the power does not exist.

There are, of course, instances in which recusal by a trial judge is desirable. This result can be obtained on motion at nisi prius, ultimately reviewable on appeal, or by mandamus with notice to the trial judge and the right to be heard.

Id. at 267.

* * * * * *

Only after a motion to recuse is made by a party at trial and denied, or a mandamus proceeding is brought in the court of appeals, does the appellate court have the power to order transfer of a case, on the ground that the trial court abused its discretion in failing to recuse. The original decision whether to recuse is for the district judge. The system for assigning cases to trial judges is for the district court to administer. Congress delegated that power to the district courts under 28 U.S.C. § 137. There are good policy reasons for that delegation.

Id. at 268.

* * * * * *

The general power of appellate courts to "require further proceedings ... as may be just" does not encompass the division of business. That appellate power is contained in 28 U.S.C. § 2106, reading:

§ 2106. Determination

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree or order, or require such further proceedings to be had as may be just under the circumstances.

Appropriate proceedings may be ordered, but the statute does not authorize the appellate court to say what judge in a multijudge court shall preside—that issue is covered by section 137.

Id. at 270.

* * * * * *

While mandamus may lie to correct error in a case of disqualification, the power asserted by some panels of court of appeals judges to reverse a district court decision with an order that the case be assigned to another district judge is without statutory basis.

* * * * * *

Most panels confined their remarks on reassignment to "recommendations" to the district court on how it should exercise its statutory authority to divide its business. See 28 U.S.C. § 137; United States v. Clark, 475 F.2d 240, 251 (2d Cir.1973) ("a hearing before another member of the court is advisable"); United States v. Brown, 470 F.2d 285, 288-89 (2d Cir.1972) ("we think it best that further proceedings be assigned to a different judge"); United States v. Bryan, 383 F.2d 90, 91 (2d Cir.1968) (assumes trial judge "will act pursuant to our views regarding the preferred practice" of a new trial before another judge); United States v. Mitchell, 354 F.2d 767, 769 (2d Cir.1966) (chief judge, "in the interest of sound judicial administration, would be wise to re-assign the case to another judge for re-trial").

Id. at 277.

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Where disciplinary action against a judge is required, the judicial council may have power to act under 28 U.S.C. § 372(c) (

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