Opinion
CIVIL ACTION NO. 2:65-cv-00031-GHD
07-21-2014
DIANE COWAN, minor, by her mother and next friend, Mrs. Alberto Johnson, et al.; and FLOYD COWAN, Jr., minor, by his mother and next friend, Mrs. Alberto Johnson, et al. PLAINTIFFS and UNITED STATES OF AMERICA PLAINT1FF-INTERVENOR v. BOLIVAR COUNTY BOARD OF EDUCATION, et al. DEFENDANTS
MEMORANDUM OPINION
It was recently brought to the Court's attention by one of the parties to this nearly fifty-year-old litigation that while the undersigned was the Presidentially appointed United States Attorney of the Northern District of Mississippi the undersigned's name appeared in documents pertaining to the Government's request to intervene that were filed with the Court in January of 1985. For the reasons stated below, the undersigned is of the opinion that he should recuse himself from this case. The undersigned notes that more than twenty years have transpired since he has recused from any case involving a possible conflict in connection with his service as United States Attorney.
A. Pertinent Procedural History
The case sub judice was initially filed on July 24, 1965, and was at that time assigned to Judge Claude F. Clayton. In 1968, Judge Clayton was elevated to the Fifth Circuit Court of Appeals. The case was then assigned to Judge William C. Keady. On January 23, 1985, while the case was still assigned to Judge Keady, the Government filed the following documents in the case: a notice of motion for leave to intervene as a party-plaint iff and to file a complaint-in-intervention, a motion for leave to intervene as a party-plaintiff, a memorandum of law in support of the same, and a complaint-in-intervention. The undersigned was the Presidentially appointed United States Attorney in the Northern District of Mississippi from July 1, 1981 until October 10, 1985. Thus, the notice, petition to intervene, and complaint-in-intervention included a signature block with the undersigned's name indicated as the United States Attorney for the Northern District of Mississippi. The undersigned did not actually sign the documents, which were prepared by the United States Department of Justice Civil Rights Division in Washington, D.C. However, the undersigned did authorize an Assistant United States Attorney to sign the documents on behalf of the United States. On March 21, 1985, Judge Keady entered an Order granting the Government's motion for leave to intervene, and a supplemental Order with respect to the same on May 3, 1985- Then, on November 8, 1985, Judge Keady transferred the case to the undersigned, who had recently been appointed as a United States District Court judge for the Northern District of Mississippi.
The aforementioned documents are attached to this opinion.
It is noted that the then-Attorney General of the United States, the Honorable William French Smith, and the then-Assistant Attorney General, Civil Rights Division of the United States Department of Justice, the Honorable Bradford Reynolds, personally signed the complaint-in-intervenlion.
On September 2, 1986, the undersigned entered an Order transferring the case to Judge L.T. Senter, Jr. The case remained under the supervision of Judge Senter until it was transferred back to the undersigned on August 21, 2003, when the parties filed a joint motion to authorize the sale of real property. After the Court granted that unopposed motion, the Defendant, Cleveland School District (the "School District"), continued to submit reports to the Court. However, the case essentially remained inactive until May 2, 2011, when the Government filed a motion for further relief [5] asking the Court to find the School District in violation of the Court's prior desegregation Orders and to order the School District to devise a desegregation plan that would comport with those prior desegregation Orders. The School District filed a response in opposition to the motion, and the Government filed a reply. It thus became necessary for the Court to review the developments in the case up to the 2011 filing. All documents filed prior to 2010 were done so before the implementation of electronic filing in the court system and are stored in the National Archives, Southeast Region in Morrow, Georgia. Therefore, in preparing to address the developments in the case prior to 2011, the Court obtained all prior Orders, opinions, and decrees, but did not obtain all pleadings and motions.
After assuming senior status, Judge Senter transferred to the United States District Court for the Southern District of Mississippi in January of 1999.
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Accordingly, the undersigned had no recollection that his name had appeared in the signature blocks of the Government's motion to intervene and related documents until he was notified of the same by one of the parties to this litigation.
B. Analysis and Discussion
Two federal statutes, 28 U.S.C. §§ 455 and 144, govern the disqualification of United States judges. Section 455 is the statute pertinent to this case and provides that "[a]ny . . . judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Section 455(b)(3), which is also codified as Canon 3(C)(1)(e) of the Judicial Code of Conduct for Judges, provides that a United States judge "shall disqualify himself. . . in a proceeding in which judge's impartiality might reasonably be questioned, including . . . instances in which: the judge has served in governmental employment and in that capacity participated as . . . counsel . . . concerning the proceeding
The majority of United States Circuit Courts of Appeal have held that "a United States Attorney serves as counsel to the government in all prosecutions brought in his district while he is in office and that he therefore is prohibited from later presiding over such cases as a judge"; thus, "actual participation" need not be shown by the former United States Attorney in the proceeding for recusal to be necessary. See Kendrick v. Carlson, 995 F.2d 1440, 1444 (8th Cir. 1993) . This per se rule is adhered to by the Third Circuit, the Seventh Circuit, the Eighth Circuit, and the Ninth Circuit, and the United States Supreme Court has denied certiorari in many such cases. See United States v. Di Pasquale, 864 F.2d 271, 278-79 (3rd Cir. 1988), cert. denied, 492 U.S. 906, 109 S. Ct. 3216, 106 L. Ed. 2d 566 (1989); Barry v. United States, 528 F.2d 1094, 1099 n.14 (7th Cir.), cert. denied, 429 U.S. 826, 97 S. Ct. 81, 50 L. Ed. 2d 88 (1976); United States v. Lara-Unzueta, 735 F.3d 954, 959-60 (7th Cir. 2013); United States v. Ruzzano, 247 F.3d 688, 696 (7th Cir. 2001); United States v. Arnpriester, 37 F.3d 466, 467 (9th Cir. 1994) ; Kendrick, 995 F.2d at 1444.
However, the Tenth Circuit holds to the contrary, that when the United States District Judge was a former United States Attorney in the district and was of counsel in the case, but did not actively participate in the case, recusal is not warranted. See Gibbs v. Massanari, 21 F. App'x 813, 815 (10th Cir. 2001). See also Laird v. Tatwn, 409 U.S. 824 (1972) (memorandum of Rehnquist, J.) (Supreme Court Justice not required to recuse himself from case to which he had a formal relationship while serving in the United States Justice Department); Muench v. Israel, 524 F. Supp. 1115 (E.D. Wis. 1981) (former Wisconsin Attorney General refused to recuse himself from case where his relationship to it has been merely formal). The Tenth Circuit stresses that "[m]andatory disqualification . . . is restricted to those cases in which a judge had previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case." United States v. Gipson, 835 F.2d 1323, 1326 (10th Cir. 1988). The Tenth Circuit made clear in Gipson, 835 F.2d at 1326, that the current version of § 455(b)(3), by its language, requires actual participation on the case currently being decided, because Congress' use of the word "participated" in the current version of the statute implies that a higher degree of activity on the case is required than in the previous version of the statute which referred to any case on which the judge had been "of counsel."
This Court is aware that the Fifth Circuit has not had occasion to decide this particular issue. The Court finds that it must recuse to comply fully with the provisions of Canon 3(C)(1)(e) of the Judicial Code of Conduct for Judges. Therefore, in the interest of avoiding even the appearance of any judicial impropriety and to forestall any possible problems at some future date, the undersigned hereby recuses himself and returns this matter to the trial docket in the United States Court for the Northern District of Mississippi for reassignment.
An order in accordance with this opinion shall issue this day.
__________
SENIOR JUDGE
DIANE COWAN, ET AL. Plaintiffs,
UNITED STATES OP AMERICA, Plaintiff-Intervenor Applicant,
v.
BOLIVAR COUNTY BOARD OF EDUCATION,
SCHOOL DISTRICT NUMBER FOUR OF BOLIVAR COUNTY,
MISSISSIPPL., ET AL. Defendants.
CIVIL ACTION NO. DC 6531-K
NOTICE OF MOTION
PLEASE TAKE NOTICE that as soon as- counsel may bo heard in the courtroom of the United States District Court for the Northern District of Mississippi, Delta Diyision, Clarksdaie, Mississippi, the united States will wove this Court, pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, for leave to intervene as a party-plaintiff in this action and to file the complaint-in-intervention attached hereto.
Respectfully submitted,
WM. BRADFORD REYNOLDS
Assistant Attorney General
GLEN H. DAVIDSON
UNITED STATES ATTORNEY
__________
NATHANIEL DOUGLAS
LEVERN M. YOUNGER
ZITA JDHNSON-BETTS
Attorneys
Civil Rights Division
Educational Opportunities
Litigation Section.
U.S. Department of Justice
Washington, D.C. 20530
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