In Re Boston's Children

• Decision Date: 10 January 2001
• Docket Number: 00-2431,Nos. 00-2430,s. 00-2430
• Citation: 244 F.3d 164
• Parties: (1st Cir. 2001) IN RE: BOSTON'S CHILDREN FIRST, ET AL., Petitioners. Heard
• Court: U.S. Court of Appeals — First Circuit

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244 F.3d 164 (1st Cir. 2001) IN RE: BOSTON'S CHILDREN FIRST, ET AL., Petitioners. Nos. 00-2430, 00-2431 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Heard January 10, 2001
Decided February 5, 2001
As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc March 2, 2001.

Michael Williams, with whom Chester Darling and Robert Roughsedge, were on brief, for appellants.

Frances S. Cohen, with whom Merita A. Hopkins, Corporation Counsel, Diane Diianni, Special Assistant Corporation Counsel, Hill & Barlow and Adam N. Lewis, were on brief, for appellees.

Before Torruella, Chief Judge, Stahl and Lipez, Circuit Judges.

TORRUELLA, Chief Judge.

This petition involves the difficult question of whether a sitting district court judge should have recused herself after commenting publicly on a pending matter. Because we find that it was, in this case,

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an abuse of discretion for the judge not to recuse herself based on an appearance of partiality, we grant the writ of mandamus. In so doing, we emphasize that such a grant in no way indicates a finding of actual bias or prejudice, nor does it suggest that the trial judge abdicated any of her ethical responsibilities.

BACKGROUND

We briefly summarize the procedural history of the case in order to place the motion for recusal and the petition for the writ of mandamus in context.

Petitioners filed suit challenging Boston's elementary school student assignment process on June 21, 1999, claiming that they had been deprived of preferred school assignments based on their race, in violation of state and federal law. The case was assigned to District Judge Nancy Gertner. On May 19, 2000, the district court addressed a motion to dismiss in which defendants argued that "plaintiffs lack standing to sue because they would not have received their preferred school assignments anyway, even if racial preferences were not used" in the assignment formula. The district court found that five of the ten individual plaintiffs¹ had not applied to change schools for the 1999-2000 school year, and thus lacked standing to seek injunctive relief.² Boston's Children First v. City of Boston, 98 F. Supp. 2d 111, 114 (D. Mass. 2000) [hereinafter Boston's Children, Standing Order]. The court allowed the remaining plaintiffs to conduct further discovery prior to determining whether they had standing. The court found that because all of the plaintiffs "may have a claim for damages," it could not dismiss any of the damages claims on standing grounds.

Petitioners also sought class certification. In a June 20, 2000 status conference the court indicated that it would not rule on class certification until it had received a written motion (which had not yet been submitted) that analyzed how the alleged class complied with the requirements of Federal Rule of Civil Procedure 23. The court also offered petitioners a choice: it would either rule on their pending motion for a preliminary injunction at that time, despite the "relatively truncated record," or it would defer the motion until further discovery had occurred. Petitioners chose to conduct further discovery, and the motion for a preliminary injunction remains pending.³ In a procedural order dated June 29, 2000, the district court set the course of future litigation: it would allow further discovery on the issue of standing, it would determine standing, and if any of the plaintiffs had standing, class discovery and a hearing with respect to class certification would follow. Boston's Children First v. City of Boston, C.A. No. 99-11330-NG (D. Mass., June 29, 2000) (procedural order).

Despite the schedule proposed in this procedural order, petitioners filed a motion for class certification dated July 26, 2000. The motion noted the similarity between the present case and Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000), a case in which class certification had been granted prior to the resolution of standing issues. Also on July 26, the Boston Herald printed an article in which counsel for petitioners decried the district court's failure to immediately certify a class. Counsel made the provocative claim that "if you get strip-searched in jail, you get more rights than a child who is of the wrong color," a reference to the facts of the Mack

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case. Dave Wedge, Lawyer Fights School Ruling, Boston Herald, July 26, 2000, at 5. The article said that:

According to [counsel's] motion, Gertner refused to hear arguments to expand the school suit to a class action because the affected students may no longer have standing in the case. But in the strip-search case [Mack], Gertner held just the opposite opinion.

Id. The article then noted that "Gertner could not be reached for comment." Id.

In a July 28, 2000 letter to the Herald (with copies sent to both parties), Judge Gertner responded to what she viewed as inaccuracies in the July 26 article. She noted, correctly, that she had not denied class certification, but had postponed ruling on class certification until further discovery had occurred. She also noted that, as of the date of the reporter's interview with counsel, counsel for petitioners had not yet filed the motion in question.⁴ She included with the letter a copy of her procedural order providing for a hearing on class certification after the issue of standing had been resolved.

On August 4, 2000, the Herald published a follow-up article, which, based on a telephone interview with Judge Gertner, quoted her as saying:

In the [Mack] case, there was no issue as to whether [the plaintiffs] were injured. It was absolutely clear every woman had a claim. This is a more complex case.

Dave Wedge, Race-based Admissions Case To Be Heard, Boston Herald, August 4, 2000, at 24. It is not entirely clear from the record whether Judge Gertner called the Herald reporter, or merely returned an outstanding phone call, neither party was made aware of her comments prior to their August 4 publication. See Boston's Children First v. City of Boston, 123 F. Supp. 2d 34, 36 (D. Mass 2000) [hereinafter Boston's Children, Motion to Recuse] ("When asked about the source of counsel's criticism . . . I noted that the cases were different, the school case 'more complex.'").

Based on Judge Gertner's comments as reported in the August 4 article, petitioners then moved that the judge recuse herself because her "impartiality might reasonably be questioned." 28 U.S.C. 455(a). Specifically, petitioners claimed that the ex parte conversation between Judge Gertner and the Herald reporter, in which she described the current proceeding as "more complex" than Mack, was "specifically proscribed by the Code of Judicial Conduct," constituted a comment on the merits of a pending motion...