United States v. State of Ala., Civ. A. No. 83-C-1676-S.

Citation574 F. Supp. 762
Decision Date26 September 1983
Docket NumberCiv. A. No. 83-C-1676-S.
PartiesUNITED STATES of America, Plaintiff, v. The STATE OF ALABAMA; George C. Wallace, Governor of the State of Alabama; The Alabama State Board of Education; Wayne Teague, State Superintendent of Education; The Board of Trustees for Alabama A & M University, a public corporation; The Board of Trustees for Alabama State University, a public corporation; Auburn University, a public corporation; Jacksonville State University, a public corporation; Livingston University, a public corporation; Troy State University, a public corporation; The University of Montevallo, a public corporation; The Board of Trustees for the University of Alabama, a public corporation; The University of South Alabama, a public corporation; The Alabama Commission on Higher Education; and The Alabama Public School and College Authority, Defendants.
CourtU.S. District Court — Northern District of Alabama

Frank W. Donaldson, U.S. Atty., Caryl P. Privett, Asst. U.S. Atty., Birmingham, Ala., for plaintiff.

John Richard Carrigan, Edward S. Allen, Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, Ala., Thomas W. Thagard, Jr., Montgomery, Ala., Solomon S. Seay, Jr., Gray, Seay & Langford, Montgomery, Ala., Thomas H. Keeling, Harvey L. Handley, III, Jay P. Heubert, General Litigation Section Civil Rights Div., Dept. of Justice, Washington, D.C., Ira De Ment, Ronald W. Wise, De Ment & Wise, Montgomery, Ala., Walter J. Merrill, Anniston, Ala., Joe R. Whatley, Jr., Donald W. Stewart, Stewart, Falkenberry & Whatley, Birmingham, Ala., Charles S. Coody, State Dept. of Educ., Montgomery, Ala., Thomas D. Samford, III, Samford & Samford, Opelika, Ala., Robert L. Potts, Potts, Young, Blasingame & Suttle, Florence, Ala., Maxey J. Roberts, University of South Alabama, Mobile, Ala., Richard F. Calhoun, Brantley & Calhoun, Troy, Ala., J. Fredric Ingram, William F. Murray, Jr., Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., C. Glenn Powell, University, Ala., Demetrius C. Newton, Birmingham, Ala., Thomas N. Todd, Chicago, Ill., J. Richmond Pearson, Birmingham, Ala., Donald V. Watkins, Watkins, Carter & Knight, Montgomery, Ala., James U. Blacksher, Larry T. Menefee, Blacksher, Menefee & Stein, Mobile, Ala., for defendants.

MEMORANDUM OF OPINION OVERRULING MOTION TO DISQUALIFY UNDER 28 U.S.C. § 455

CLEMON, District Judge.

I have earlier determined that the recusal motions of Auburn University and State Superintendent of Education Wayne Teague are legally insufficient, as a matter of law, under § 144 of the Judicial Code 571 F.Supp. 958. It is now my conclusion that under § 455 of the Judicial Code, the motions are either factually inaccurate or legally irrelevant; and that a reasonable person, viewing the true facts, would not harbor doubts concerning my impartiality in this proceeding. Therefore, the recusal motions shall be denied in their entirety.

Since the intervention petition of Oscar and R. Franklin Williams has now been withdrawn, there is absolutely no basis for a claim that my minor children are or may be parties to this litigation, if indeed such basis ever existed.1

The claim that I am biased or prejudiced in this proceeding because one of the parties is represented by the law firm of former United States Senator Donald Stewart is devoid of legal merit.2 The law is clear: in passing on recusal motions alleging bias or prejudice, a court "... should determine the disqualification on the bases of conduct which shows bias or prejudice or the lack of impartiality by focusing on a party rather than counsel." Davis v. Bd of School Com'rs, 517 F.2d 1044, 1052. There is no room for the suggestion that Donald Stewart is in effect a party, in that his law firm has a stake in attorney's fees which may be awarded to the prevailing parties in this proceeding; for the uncontradicted evidence is that his law firm is being retained and paid on an hourly basis and his fee does not depend, in any way, on his winning or losing this case.

Movants do not allege the existence of any on-going business, social, political or professional relationship between Donald Stewart and me; and there is and has been no such relationship. Cf. Potashnick v. Port City Const. Co., 609 F.2d 1101, 1110, 1111 (5th Cir.1980).

While employed as a parttime librarian at the NAACP Legal Defense Fund during my third year of law school, I did not acquire any knowledge, personal or otherwise, of any of the facts, disputed or conceded, involved in the Lee v. Macon County litigation.

In my view, the most troublesome aspect of the recusal affidavits arises out of the allegations concerning the Lee v. Macon County litigation. What makes it troublesome is not the true facts, for they exist as a matter of record. Rather, it is the lack of any reasonable or arguable basis for certain sworn statements of two members of the bar of this Court that causes grave and abiding concern.

First, the lawyers swore that Lee v. Macon County "... included claims under Title VI of the Civil Rights Act of 1964 against institutions of higher learning in the State of Alabama administered by the Alabama State Board of Education."3 The sworn statement is simply untrue.

I have requested Federal Records Center in Atlanta to send to this Court the complete file in Lee v. Macon County, and I have reviewed the original complaint as well as the amended and supplemental complaints of the individual plaintiffs and the United States. The pleadings do not reflect any claims under Title VI.

In expressly disavowing any intent to rest its seminal 1967 decision on Title VI,4 the three-judge court in Lee v. Macon County emphasized that "... in this case we deal solely with constitutional requirements on the part of public officials not to discriminate on the basis of race in the operation of public schools...." Lee v. Macon County Board of Education, 267 F.Supp. 467, n. 15 (M.D.Ala.1967). (Emphasis original).

The Title VI question is key to a determination of whether "... in private practice, I served as a lawyer in the matter in controversy." 28 U.S.C. § 455(b)(2). The reported decision makes it certain that a Title VI claim was not a "matter in controversy" in Lee v. Macon County.

Counsel's sworn statement that Title VI was the basis of one of the claims in Lee is particularly bothersome because his very own partner, co-counsel in this case, represented the State Board of Education at the time when Lee v. Macon County was being actively litigated before the three-judge court.

Second, counsel for the movants have sworn that "at all times since May 30, 1972, ... proceedings involving institutions of higher learning ... are not closed; but have vitality ..." (emphasis added). Based on my review of the separately maintained files for the institutions of higher learning involved in Lee v. Macon County, and the affidavit of the Clerk of the United States District Court for the Northern District of Alabama, the sworn statement is both misleading and inaccurate. Here again, the very lawyers who swore to the alleged vitality of the proceedings are precisely the ones who would have been involved had such proceedings been active.

I was completing my second year of law school when the three judge court rendered its decision which disposed of the constitutional issues affecting the colleges and universities involved in Lee v. Macon County; and the movants recognize that I had no involvement whatever in either of the three aspects5 of Lee v. Macon County until some of the elementary and secondary schools were transferred to the Northern District of Alabama in 1970. Following the transfer, I represented black intervenors (in the case of Sumter County) and individuals (in the case of Anniston) in challenging the actions of two local school boards. In both cases, my involvement related to the adequacy vel non of specific plans affecting only the two respective systems, the alleged demotion of black principals in Sumter County, and the suspension of black students from Anniston High School. The legal standards for desegregation of public elementary and secondary schools are quite different from the standards for the desegregation of institutions of higher learning. Alabama State Teachers Ass'n v. Alabama Public School and College Authority, 289 F.Supp. 784 (M.D.Ala.1968).

In 1972, certain colleges and universities in Lee v. Macon were transferred to the Northern District of Alabama. At that time, only one such institution in the Northern District of Alabama, Alabama A & M University, remained under the control of the State Board of Education.6 In transferring the college and university aspect to the Northern District, the three-judge court stated that "... the major constitutional issues have been decided and are no longer in controversy." Order of May 29, 1972, p. 3. When the case was transferred, the impetus for the transfer (a complaint...

To continue reading

Request your trial
5 cases
  • Lindsey v. City of Beaufort, Civ. A. No. 3:93-1145-0
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 29, 1995
    ...it will not support a § 144 motion to recuse. United States v. State of Alabama, 571 F.Supp. 958 (N.D.Ala.1983), opin. suppl. by 574 F.Supp. 762 (N.D.Ala.1983), aff'd, 762 F.2d 1021 (11th Cir.1985); Duplan Corp. v. Deering Milliken, Inc., 400 F.Supp. 497 (D.S.C.1975); In re Union Leader Cor......
  • Knight v. State of Ala., CV 83-M-1676-S.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • December 30, 1991
    ...Judge Clemon denied the motions on two separate occasions. United States v. Alabama, 571 F.Supp. 958 (N.D.Ala.1983); United States v. Alabama, 574 F.Supp. 762 (N.D.Ala.1983).3 Auburn University then petitioned the court of appeals for a writ of mandamus. The Eleventh Circuit granted the wri......
  • Roe v. Mobile County Appointment Bd.
    • United States
    • Supreme Court of Alabama
    • March 14, 1995
    ...I know of no facts which would cause a reasonable person to harbor doubts as to my impartiality in this proceeding." U.S. v. Alabama, 574 F.Supp. 762, 766 (N.D.Ala.1983), aff'd, 762 F.2d 1021 (11th Cir.1985); see also Matter of Mason, 916 F.2d 384, 388 (7th Cir.1990). It is only when there ......
  • Mason, Matter of, 90-2736
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 17, 1990
    ...whether political contributions to a party create an appearance of impropriety. (United States v. Alabama, 571 F.Supp. 958 and 574 F.Supp. 762 (N.D.Ala.1983), holds that contributions to a partner of one of the lawyers do not create a problem.) Contributions raise less doubt than sponsorshi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT