Murry v. Scott

• Decision Date: 13 June 2001
• Docket Number: No. 99-12194,99-12194
• Citation: 253 F.3d 1308
• Parties: (11th Cir. 2001) BRADLEY MURRAY, as a member and legal representative of the Bass Anglers Sportsman Society, Plaintiff-Appellant, v. RAY W. SCOTT, JR., B.A.S.S., INC., et al., Defendants-Appellees
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1308

253 F.3d 1308 (11th Cir. 2001)

BRADLEY MURRAY, as a member and legal representative of the Bass Anglers Sportsman Society, Plaintiff-Appellant, v. RAY W. SCOTT, JR., B.A.S.S., INC., et al., Defendants-Appellees.

No. 99-12194

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

June 13, 2001

Appeal from the United States District Court for the Middle District of Alabama. D. C. Docket No. 94-01266-CV-D-N

Before EDMONDSON and BIRCH, Circuit Judges, and SHAPIRO^*, District Judge.

EDMONDSON, Circuit Judge:

This appeal is about judicial recusal. Because we conclude that the district court judge should have recused himself from this case, we vacate the judgment and remand for further proceedings.

I.

Plaintiff Bradley Murray, a member of the Bass Anglers Sportsman Society (BASS), brought suit individually and on behalf of approximately 500,000 other BASS members against Bass Anglers Sportsman Society, Inc. (BASS, Inc.) and its officers, claiming that BASS, Inc. fraudulently converted BASS funds and property.¹ Plaintiff initiated the litigation in the district court of Kansas, but the Kansas district judge transferred the case to the Middle District of Alabama. Murray v. Sevier, 156 F.R.D. 235, 257 (D. Kan. 1994). The case was assigned to Judge Ira DeMent. Relying largely on some acts that Judge DeMent had taken in regard to BASS before he became a judge, Plaintiff moved to recuse Judge DeMent; the motion was denied.

In his fifth amended complaint, Plaintiff claimed that when Defendant Ray W. Scott, Jr. first formed BASS in 1967, it was an unincorporated association dedicated to promoting conservation and bass fishing. BASS sponsored bass fishing tournaments and communicated with its members through BASS Masters Magazine. In 1969, Scott filed a certificate of incorporation for BASS, Inc. under the laws of Alabama. Plaintiff claims that Scott convinced potential members that they were joining a non-profit entity devoted to promoting bass fishing, conservation, and youth fishing when they were actually joining BASS, Inc., a for-profit entity. Plaintiff claims that under this "shell game" Scott was siphoning off members' dues for his own personal benefit. Defendant responds that BASS was founded as a membership club owned and operated for profit by Scott.

Both sides filed summary judgment motions on various grounds. The district court granted summary judgment for Defendants and certified the order for appeal under Fed. R. Civ. P. 54(b).

II.

Plaintiff argues that Judge DeMent abused his discretion when he did not recuse himself from this case under 28 U.S.C. § 455. Congress amended the recusal statute in 1974, which "liberalize[d] greatly the scope of disqualification in the federal courts." United States v. State of Alabama, 828 F.2d 1532, 1541 (11th Cir. 1987). Under section 455, a judge has a "self-enforcing obligation to recuse himself where the proper legal grounds exist." Id. at 1540. Most important, the benefit of the doubt must be resolved in favor of recusal. Id. We review a judge's decision to recuse for abuse of discretion. McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990).

A.

As an initial matter, both parties have argued that the characterization of the "threshold" issue of the merits portion of the litigation is relevant to determine whether Judge DeMent should have been recused.² But when a district judge considers recusal, he must consider his potential conflict with regard to the overall case not just his potential conflict for each separate issue or each stage of the litigation. See United States v. Feldman, 983 F.2d 144, 145 (9th Cir. 1992) ("[W]hen a judge determines that recusal is appropriate it is not within his discretion to recuse by subject matter or only as to certain issues and not others."). Thus, even though some historical evidence involving Judge DeMent may not have been pertinent to resolve the threshold issue (whether BASS was created as an unincorporated association), such evidence -- depending on how DeMent resolved the threshold issue -- might become relevant to resolve the ultimate issue: whether BASS Inc. fraudulently absorbed the assets of BASS. So we must review Judge DeMent's decision not to recuse himself in the light of the ultimate issue in the case at the time of recusal. That Judge DeMent defined and ruled on a potentially dispositive threshold issue means nothing to our review of Judge DeMent's recusal decision.³

B.

Plaintiff points to a series of facts that Plaintiff says require Judge DeMent's recusal in this case. First, in 1970, Morris Dees, an attorney representing BASS, mailed a letter to DeMent, then United States District Attorney for the Middle District of Alabama, informing DeMent that some companies were depositing refuse into streams without a permit, allegedly in violation of 33 U.S.C. § 407. Dees referred to his client as "Bass Anglers Sportsman Society of America, Inc." but also described the entity as "a national association of bass fishermen." Plaintiff argues that this letter shows that in 1970, Defendant held itself out to DeMent as a national association and failed to reveal its for-profit status.

Second, DeMent, in 1970, was mentioned in the complaint and served as counsel of record in an unsuccessful civil suit filed by BASS against industrial plants and the government for violation of 33 U.S.C. §407. See Bass Angler Sportsman Society v. United States Steel Corp. 324 F. Supp. 412, 413 (S.D. Ala. 1971). Attorney Dees' letter to DeMent served as the prerequisite for the lawsuit and was attached to the 1970 complaint in an effort to establish standing to enforce the federal statute.⁴

Third, as counsel of record in the 1970 litigation, DeMent filed a brief on behalf of the government defendants. The caption of that brief lists the plaintiff as "Bass Anglers Sportsman Society, Inc.," but then refers to the plaintiff as "Bass Anglers Sportsman Society" in the body of the brief. Plaintiff argues that this brief demonstrates that DeMent, as counsel of record in federal court, took the position that BASS and BASS Inc. existed as the same entity.

Fourth, Plaintiff notes that during a status conference in the present case, Judge DeMent referred to BASS/BASS Inc. as a business. Also, during the summary judgment hearing, Defendant said that BASS Inc. filed the 1970 BASS lawsuits; but Judge DeMent recalled seeing a television interview where Scott and Dees claimed to have filed the lawsuits.

Fifth, Plaintiff alleges that Judge DeMent shares a 30-year friendship with Dees and that he is associated with people known to be politically associated with Scott.

C.

Plaintiff says that these facts implicate the federal recusal statute. 28 U.S.C. §455. Section 455(b) requires disqualification under certain circumstances, for example, when a judge has "personal knowledge of disputed evidentiary facts," §455(b)(1), when a judge "served in governmental employment and . . . participated as counsel . . . concerning the proceeding," §455(b)(3), or when a judge is "likely to be a material witness in the proceeding." §455(b)(5)(iv).⁵ Under this provision, recusal is mandatory. In such situations, "the potential for conflicts of interest are readily apparent." State of Alabama, 828 F.2d at 1541.

Plaintiff argues that Judge DeMent has personal knowledge of disputed evidentiary facts based on his involvement with the 1970 litigation, in which DeMent participated as counsel of record, filed a brief, and received a letter from a BASS/BASS, Inc. attorney.⁶ A district judge who previously served as counsel of record for a related case may be disqualified. State of Alabama, 828 F.2d at 1545-46. State of Alabama involved the desegregation of Alabama's higher education institutes under Title VI. The case was assigned to Judge Clemon, who - as a lawyer - had previously represented different plaintiffs in another Title VI desegregation case against some of the same defendants. Although Judge Clemon explained that his involvement was limited to representing black high school principals (who were not parties to the State of Alabama litigation) in a race discrimination suit,⁷ we concluded that "[e]ven this limited involvement [] left Judge Clemon with knowledge of facts that were in dispute in the instant case." Id. at 1545. Even though the underlying issue in State of Alabama (desegregation of state institutes of higher education) was not about racial discrimination against high school principals, the question of whether black high school principals suffered racial discrimination ultimately became a factual issue in the case; and the plaintiff presented testimony and exhibits about the status of the state's black high school principals. Thus, Judge Clemon was confronted with evidence about which he had prior knowledge based on his role as counsel of record in a separate lawsuit.

Likewise, Plaintiff argues that representations made during the 1970 BASS litigation in which Judge DeMent was then counsel of record may potentially become an issue in the present litigation. This contention seems plausible. If the district court had concluded that BASS was an unincorporated association in 1967, then Plaintiff apparently would have used the complaint in B.A.S.S. v. United States Steel Corp, the letter to then U.S. Attorney DeMent, and the brief filed by DeMent as evidence that Defendant held itself out as an association when it was actually operating as a for-profit company.

The State of Alabama decision leads us to require recusal here. Because of Judge DeMent's involvement in the earlier BASS litigation, Plaintiff has shown that Judge DeMent may have knowledge of facts in dispute in the present case. That the underlying issue in the present case was not litigated in the 1970 litigation makes no difference. Plaintiff hopes that the evidence may show that in the 1970 BASS litigation, BASS represented itself both as an unincorporated...