Davis v. Mobile County Board of School Commissioners Brief for Respondents Board of Commissioners of the Alabama State Bar et al. in Opposition

    IN TH E

SUPREME COURT OF THE UNITED STATES
OCTOBER TER M , 1975

No, 75-

BIRDIE MAE DAVIS, EDWIN FOSTER and JAM ES E. BUSKEY, et at.,
Petitioners,

VS. ' :

BOARD OF SCHOOL COM M ISSIONERS OF M OBILE CO U N TY, et at.,
Respondents.

ALFREDO G. PARRISH, et ai„
Petitioners,

vs.
BOARD OF COM M ISSIONERS OF TH E ALABAM A S TA TE  BAR, et a!.,

Respondents.

On Petition for a W rit of Certiorari to the United States C ircuit 
Court of Appeals for the Fifth Circuit

BRIEF FOR RESPONDENTS BOARD OF COM M ISSIONERS OF THE  
ALABAMA S TA TE  BAR ET AL. IN OPPOSITION

TR U M A N  HOBBS
P. 0. Box 347 (444 South Perry Street) 

Montgomery, Alabama 36101 
Counsel of Record for Respondents

Of Counsel 
TR U M AN  HOBBS 
W ILLIAM  H. MORROW 
CHAM P LYONS, JR.

February 27th, 1976

St. Louis Law Prin ting  Co., Inc., 812 Olive S tree t 63101 314-231-4477



TABLE OF CONTENTS

Page

Opinions Below .....................................................................  2

Questions Presented ........................................   2

Statutes and Rules Involved.................................................... 2

Statement of the C a s e ............................................................  3

Argument ................................................................................  6

Reasons for Denying the W r it ..........................................  6

I. To review interlocutory order while case is still 
pending in court of appeals is inappropriate...........  6

II. The court of appeals and trial judge properly re­
solved the issue of recusal ........................................  8

III. The alleged conflict between holdings of this court
and the decision below is non-existent......................  12

Conclusion ...............................................................................  14

Certificate of Service ........................................   15

Table of Cases

American Const. Co. v. Jacksonville T & T R. Co., 148 
U.S. 372 .......................................................    6

Berger v. U. S„ 255 U.S. 2 (1921)..................................9, 12, 13
Board of Commr’s v. State ex rel. Baxley, 10 ABR 239,

Dec. 4, 1975 .......................................................................  4

Cobbledick v. U. S., 309 U.S. 323 ......................................  7



ii

Hamilton Brown Shoe Co. v. Wolf Bros., 240 U.S. 251 . . 7

Pfizer v. Lord (CA 8), 456 F.2d 532 ............................... .. 13

Simpson v. Ala. State Bar Asso., 9 ABR 1120, — Ala. 
— ,311  So.2d 307 ...........................................................  4

U. S. v. Thompson (3 CA), 483 F.2d 527 ........................  13

Statutes and Rules Cited

Rule 20— Rules of the Supreme C o u rt.................................  2, 7

Title 46, Section 21, Alabama C o d e .................................  11

28 U.S.C. Section 144 ....................................................... 3,13

28 U.S.C. Section 455 ..........................................................3, 12



IN TH E

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM , 1975

No. 75-

BIRDIE MAE DAVIS, EDWIN FOSTER and JAMES E. BUSKEY, et al„
Petitioners,

vs.
BOARD OF SCHOOL COM M ISSIONERS OF M OBILE CO U N TY, et al„

Respondents,

ALFREDO G. PARRISH, et at.,
Petitioners,

vs.
BOARD OF COM M ISSIONERS OF TH E ALABAM A STA TE BAR, et a!.,

Respondents.

On Petition for a W rit of Certiorari to the United States Circuit 
Court of Appeals for the Fifth Circuit

BRIEF FOR RESPONDENTS BOARD OF COM M ISSIONERS OF THE  
ALABAMA S TA TE  BAR ET AL. IN OPPOSITION

Respondents will reply only to that portion of the petition 
for certiorari which has reference to Parrish v. Board of Com­
missioners.



2

OPINIONS BELOW

The petition for certiorari has attached as an appendix to 
the petition the opinions of the courts below. See page 36a, 
et seq., of the Appendix to the petition for certiorari for the 
opinion of the Court of Appeals en banc from which peti­
tioners seek to have review in Parrish v. Board of Commis­
sioners.

QUESTIONS PRESENTED

In addition to the question presented by petitioners, there 
is a threshold question:

1. Is the petition for certiorari in Parrish v. Board of Com­
missioners inappropriate and in violation of Rule 20 of the 
Revised Rules of this Court in that it involves an effort to 
obtain review of an interlocutory order while this case is still 
pending in the Court of Appeals, the case having been re­
manded by the Court of Appeals en banc to the original panel 
in that Court which first heard the appeal from the district 
court?

2. Did the Court of Appeals properly hold that the fed­
eral district judge in Parrish v. Board of Commissioners was 
not required on the facts alleged in the affidavit to recuse 
himself?

STATUTES AND RULES INVOLVED

Rule 20 of the Rules of the Supreme Court of the United 
States, which is as follows:

“A writ of certiorari to review a case pending in a 
court of appeals, before judgment is given in such court,



3 —

will be granted only upon a showing that the case is of 
such imperative public importance as to justify the de­
viation from normal appellate processes and to require 
immediate settlement in this court.”

28 U.S.C. Sec. 144, and 28 U.S.C. Sec. 455 prior to its 
amendment in 1974 and said section as amended.

The statutes are set out in petitioners’ brief.

STATEMENT OF THE CASE

In Parrish v. Board of Commissioners, petitioners are seek­
ing review of an order of the trial judge declining to recuse 
himself. The case was decided by the trial judge by an order 
granting summary judgment. The case was appealed to the 
Fifth Circuit. A three judge panel in that court decided the 
judge should have recused himself and remanded. Subse­
quently, the opinion was withdrawn on the Court’s own mo­
tion, and the Court of Appeals en banc held that the action 
of the trial judge on the motion to recuse was proper, and 
remanded the case for further disposition to the original panel.

In the district court, when the trial court was advised that 
petitioners might wish to file a motion asking the judge to 
recuse himself, the trial judge invited counsel for petitioners 
to examine him with reference to such a motion. This exam­
ination of the judge developed the sole facts on which the 
affidavit seeking recusal was based. These facts are:

(1) The trial judge was acquainted with several of the de­
fendant bar examiners. Some had been adversary counsel in 
prior litigation; some of them he knew slightly; and some, 
not at all. He knew the attorneys representing the defendants.

(2) The trial judge was a friend of a former Secretary of 
the Bar Commission who petitioners’ counsel stated would be 
called as an adverse witness. In response to questions from



4 —

petitioners’ counsel concerning whether Mr. Scott’s being a 
witness would present any problems for the trial judge, the 
trial judge stated that he thought Mr. Scott was an honorable 
man. “But I don’t think his memory is infallible. I think he 
would try to tell you the truth in his answers. But if he ap­
peared to evade I think I could detect it.”

(3) The judge was asked if there was conflicting testimony 
between a witness he did not know and “a defendant who you 
do know, slightly or otherwise, might there be any problem in 
your attaching more weight to the testimony of the person 
that you know rather than the person who you do not know.” 
He said he did not believe he would have any bias or prejudice 
about the matter. He said of the people he did know he would 
“have no reason to think any of them would intentionally mis­
represent anything.” (Tr. 61)

(4) The trial judge was President of the Montgomery County 
Bar Association before becoming a federal judge. When serving 
as its president, he learned that the by-laws of that bar as­
sociation barred Blacks from membership. He appointed a 
committee to study and recommend changes in the by-laws. Al­
though he made no specific recommendations, the bar associa­
tion on the recommendation of the committee did change the 
association’s by-laws to remove any racial exclusion. The judge 
never extended an invitation to a Black lawyer to join the 
association, although he knew Black lawyers who were prac­
ticing in Montgomery County.1

1 The Montgomery County Bar Association is a voluntary associa­
tion which has no official status and is not an arm of the Alabama Bar 
Association. The Alabama Bar Association has been an integrated 
Bar Association with its membership open to all practicing attorneys 
within the State of Alabama at least since 1923. Its membership has 
included Black lawyers for several decades. Only the Alabama Bar 
Association acting as the arm of the Supreme Court of Alabama, has 
any role in the admission, discipline or removal of attorneys in Ala­
bama. Simpson v. Ala. State Bar Asso., 9 ABR 1120, — Ala. —, 
311 So.2d 307; Board of Commr’s v. State ex rel. Baxley, 10 ABR 
239, Dec. 4, 1975.



—  5

After months of exhaustive discovery pursued by petitioners, 
and when petitioners were unable to present any evidence to 
challenge the sworn affidavits from all of the defendant ex­
aminers and the Secretary of the Bar Association that all ex­
aminations were graded with complete anonymity as to the race 
and identity of the applicants,2 the trial judge granted the re­
spondents’ motion for summary judgment.

2 The only evidence which had any claimed challenge to the affi­
davits of the bar examiners and Secretary of the Association came 
from the affidavits of two plaintiffs who said it “might be possible” for 
a bar examiner to determine the race or identity of an examinee.



— 6 —

ARGUMENT

Reasons for Denying the Writ

In the proceedings in the trial court, respondents took no 
position relative to the motion of petitioners for recusal of the 
judge. Respondents did not participate in any way in the inter­
rogation of the judge. Respondents took the position in the trial 
court that the matter of recusal was one largely of judicial ad­
ministration and that respondents had no interest in this case 
being considered by any particular judge. It was for this reason 
that respondents did not ask for reconsideration of the opinion 
of the original panel hearing the appeal that the trial judge 
should have recused himself, which opinion was vacated by the 
Court of Appeals en banc. The Court of Appeals reversed the 
three judge panel on its own motion.

Although respondents have no interest in this case being con­
sidered by any particular judge, respondents do have an interest 
in bringing to an end this litigation which has already consumed 
more than three years from the date of the filing of the com­
plaint. Accordingly, respondents will respond to the petition 
for certiorari.

I

To Review Interlocutory Order While Case Is Still Pending 
in Court of Appeals Is Inappropriate.

The petition in Parrish v. Board of Commissioners seeks 
review by this Court of an interlocutory order of the Court of 
Appeals and it seeks such review while the case is still pending 
in the Court of Appeals.

This Court has repeatedly declined to review interlocutory 
orders. In American Const. Co. v. Jacksonville T & T R. Co., 
148 U.S. 372, 384, this Court stated:



—  7

“Clearly, therefore, this Court should not issue a writ 
of certiorari to review a decree of the Circuit Court of 
Appeals on appeal from an interlocutory order, unless it 
is necessary to prevent extraordinary inconvenience and 
embarrassment in the conduct of the cause.”

See also Cobbledick v. U. S., 309 U.S. 323, 324; Hamilton 
Brown Shoe Co. v. Wolf Bros., 240 U.S. 251, 258. Moreover, 
this Court’s own rules prohibit review of cases pending in a 
court of appeals before judgment is given in such court, ex­
cept “upon a showing that the case is of such imperative public 
importance as to justify the deviation from normal appellate 
processes and to require immediate settlement in this Court.” 
Rule 20, Supreme Court Practice. No such showing of impera­
tive public importance is even claimed in the instant petition.

In the instant case, petitioners are not only seeking review of 
an interlocutory order, but they seek it while the case is still 
pending before a panel of the Court of Appeals. This case was 
remanded to such panel by the Court of Appeals en banc on 
December 4, 1975. One of the purposes of the rule against 
issuing a writ of certiorari of this Court to review interlocutory 
orders is to prevent piecemeal disposition of a single contro­
versy, thereby avoiding “the obstruction to just claims that would 
come from permitting the harassment and cost of a succession 
of separate appeals from the various rulings to which a litiga­
tion may give rise, from its initiation to entry of judgment. To 
be effective, judicial administration need not be leaden-footed. 
Its momentum would be arrested by permitting separate reviews 
of the component elements in a unified cause.” Cobbledick v. 
U.S., 309 U.S. 323, 325.

The momentum in the instant case does not need any further 
retarding, since it has now been more than two years since the 
trial judge entered his order granting summary judgment. The 
effect of further review on the recusal issue would add more



8 —

months of delay on an issue which is in no way decisive. The 
issue still pending before the Court of Appeals is whether any 
genuine issue of fact exists which would require reversal of the 
summary judgment. If the Court of Appeals finds there is no 
such issue, the action of the trial judge on recusal is irrelevant.

II

The Court of Appeals and Trial Judge Properly Resolved the 
Issue of Recusal.

Petitioners contend that the trial judge should have recused 
himself because he was personally acquainted with a number 
of the defendants and their counsel, and he was not acquainted 
with the plaintiffs. The trial judge set out the basis of his ac­
quaintance with respondents and their counsel. The relation­
ship was largely based on the trial judge’s years of trying law 
suits as adversaries with some of the respondents and their coun­
sel and an acquaintance with them as lawyers. Petitioners cite 
not one case which remotely suggests that such an acquaintance 
is ground for recusal. Probably most district judges have an 
acquaintance with most of the trial lawyers practicing before 
them. A rule requiring recusal because of such acquaintance 
would be novel and burdensome to judicial administration.

Petitioners’ petition at page 14 states that the trial judge 
“candidly conceded his belief that the key defense witness, the 
Secretary of the Commission, a close personal friend of the 
judge, would not lie.” Only in this brief by petitioners is Mr. 
Scott called “a key defense witness.” Even in the affidavit seek­
ing the judge’s recusal, Mr. Scott is only referred to as one whom 
the plaintiffs propose to call as an adverse witness. Mr. Scott 
is not the Secretary of the Commission as stated by petitioners. 
He has had no position with the Commission since his retirement 
as Secretary in May, 1969.



9

There is no basis for the statement that Mr. Scott is “a close, 
personal friend” of the trial judge. The trial judge stated that 
Mr. Scott was a friend, that he had in years past tried one or 
two cases in which Mr. Scott was involved as co-counsel. The 
testimony with reference to Mr. Scott was as follows:

Q. Judge, Mr. Scott will be one of the witnesses, either 
by deposition, or otherwise, in this case, and I did want to 
call that to your attention. There will be some docu­
mentary evidence which I am sure the defendants will dis­
cover, relating to a written communication by Mr. Scott— 
or we say by Mr. Scott—concerning black lawyers and 
their association. Do you think that your association with 
Mr. Scott would influence the weight to which you might 
attach to that type of evidence?

A. I think Mr. Scott is an honorable man. But I don’t 
think his memory is infallible. I think he would try to 
tell you the truth in his answers. But if he appeared to 
evade I think I could detect it.

Q. Do you know what Mr. Scott’s position is now?

A. Oh, I think Mr. Scott has retired.

Q. Well, did you all visit in each other’s homes?

A. We don’t regularly. I don’t recall ever having been 
in Mr. Scott’s home. I know he hasn’t been in my home. 
I am quite sure I have not visited Mr. Scott.

It is puzzling to know where in the statutes relied on by 
petitioners or in any case anywhere a trial judge is deemed dis­
qualified because he is an acquaintance or a friend of a witness 
expected to be called to testify. Such acquaintance does not 
give “fair support to the charge of a bent of mind that may 
prevent or impede impartiality of judgment.” Berger v. U. S., 
255 U.S. 2 (1921).



— 1 0 -

Petitioners suggested that the judge was biased in favor of 
the credibility of Mr. Scott and certain of the defendants be­
cause in response to a question he stated that he didn’t believe 
such persons would intentionally misrepresent or perjure them­
selves. The opinion of the court below correctly characterized 
the trial judge’s response to questions as to the credibility of 
such persons as “no more than an acknowledgement of friend­
ship or acquaintanceship, and a refusal to condemn those per­
sons as unworthy of belief in advance of whatever their testi­
mony might prove to be.” Every witness is entitled to a 
presumption that he speaks the truth. The fact that the trial 
judge acknowledged that he would accord this presumption to 
the witness Mr. Scott and to the defendants of his acquaintance 
is not ground for his recusal.

Petitioners also argue that the trial judge should have recused 
himself because he had been President of the Montgomery 
County Bar Association at a time when that Bar Association 
had a prohibition in its by-laws against the admission of Blacks 
to membership. The trial judge stated that after learning of 
the prohibition, he appointed a committee to study the Bar 
Association’s by-laws and to make recommendations as to pro­
posed changes. The committee appointed by the trial judge 
made a recommendation that the prohibition be removed and it 
was removed.

The opinion of the Court of Appeals points out that there 
is hardly any judge in the Fifth Circuit who was not a member 
of a segregated bar association at one time. The action of this 
trial judge in becoming president of a bar association which 
still had a prohibition against such minority membership and 
taking steps as president which resulted in the elimination of 
such discrimination hardly raises a reasonable inference of per­
sonal bias or prejudice by such trial judge as to these petitioners.

The Court of Appeals correctly held that the factual bases 
alleged for recusal did not raise an inference of personal bias 
or prejudice.



— 11

Petitioners also claim that since the trial judge was a member 
of the Alabama Bar Association which is supported by license 
fees of its members, the trial judge has a financial interest in 
the litigation in that he would indirectly be liable for any court 
costs, counsel fees or damages which might be awarded. All 
lawyers who practice law in Alabama are compelled to be 
members of the Alabama Bar Association, which is an organiza­
tion established by the Alabama Legislature. Title 46, Sec. 21, 
et seq., of the Alabama Code. If such a tenuous “financial in­
terest” is ground for recusal, then a judge who is a taxpayer of 
a city or state should be forced to disqualify himself in cases 
where his city or state has a financial interest. Would a federal 
judge have a disqualifying “financial interest” in a suit against 
the United States which pays his salary? Obviously not. No 
reasonable basis exists for a belief that such membership by the 
trial judge in the Alabama Bar Association would cause him 
to have a financial interest in this litigation.

Finally, petitioners assert that the trial judge is being repre­
sented by one of the attorneys for the defendants in an unre­
lated matter, and that this circumstance requires the trial judge’s 
recusal. Petitioners neglect to inform this Court that such 
representation did not occur until approximately two years 
after the trial judge ruled on the summary judgment motion 
and the instant case was appealed from his court. The Court 
of Appeals was reviewing, among other things, whether the 
trial judge erred in failing to recuse himself. It is novel to sug­
gest that a circumstance occurring nearly two years after the 
appeal was taken from that trial judge’s court is ground for 
reversal of his action in ruling on summary judgment.

If this case is ever remanded to the trial judge for further 
proceedings, it is reasonable to assume that the trial judge would 
consider any motion to recuse based on facts existent at that 
time. It is totally unreasonable to suggest that a trial judge be 
reversed because he failed to recuse himself when the grounds



— 12

of such recusal were not even existent at the time the case was 
appealed from such judge’s court.

Respondents have not argued whether Sec. 455 as amended 
is applicable to the motion to recuse in this case. Respondents 
agree with the majority opinion of Judge Bell that whether the 
standard for considering the recusal motion is under Section 155 
or the amended Section 455, the affidavit for recusal is insuf­
ficient. We also agree, however, with Judge Roney’s concurring 
opinion that Section 455 as amended did not apply to this 
trial which was completed and summary judgment granted on 
August 21, 1973. Congress provided that the new Section 455 
“shall not apply to the trial of any proceeding” commenced 
prior to December 5, 1974. As Judge Roney stated: “We are 
judging the correctness of that trial and should do so by the 
standard applying to it as clearly set forth in the statute.”

Ill

The Alleged Conflict Between Holdings of This Court and 
the Decision Below Is Non-Existent.

Petitioners assert that a significant conflict exists between the 
Courts of Appeal in that some of them have followed the stand­
ard for recusal laid down in Berger v. U. S., 255 U.S. 22, 
whereas other circuits and the opinion below are inconsistent 
with Berger. This alleged conflict would undoubtedly come as 
a surprise to the author of the majority opinion in this case 
which repeatedly relies on and quotes from Berger. For ex­
ample, the opinion below quotes as follows from Berger:

“The facts and reasons set out in the affidavit ‘must give 
fair support to the charge of a bent of mind that may pre­
vent or impede impartiality of judgment.’ Berger v. U.S., 
supra, 255 U.S. at 33.”



— 13 —

The majority opinion below also quotes, discusses and fol­
lows, U. S. v. Thompson (3 CA), 483 F.2d 527, which is listed 
in petitioners’ brief as a case which follows Berger.

For the alleged conflict, petitioners' brief cites Pfizer v. Lord 
(CA 8), 456 F.2d 532. But the Pfizer opinion cites Berger and 
follows its teaching. The Pfizer opinion states: “. . . although 
the challenged judge may not pass upon the truth of the facts 
alleged in the affidavit, he may decide whether the facts alleged 
give fair support to the charge of bias or prejudice.”

Petitioners’ brief at page 18 refers to the concurring opinion 
of Judge Gee as attacking Berger as “an outdated rule.” Peti­
tioners do not tell this Court that Judge Gee’s quarrel with the 
majority opinion was because it “reaffirms Berger’s antique 
rule.” It is difficult to understand how petitioners can claim 
that the opinion below is in conflict with Berger when it quotes 
and cites Berger as its authority and when Judge Gee’s quarrel 
with the majority opinion is its reaffirmance of Berger.

The cases which have construed Section 144 turn primarily 
on the different fact situations alleged in the affidavits. But 
in none of the cases cited by petitioners or examined by re­
spondents has the factual basis for removal set out in the 
affidavits been as weak as in the instant case, even though in 
most of the cases cited by petitioners the courts held the af­
fidavits insufficient.



— 14 —

CONCLUSION

This Court should not grant this petition for certiorari which 
would involve piecemeal review of an interlocutory order while 
this case is still pending before the Court of Appeals. The 
decision below was correct, and the affidavit alleging personal 
bias on the part of the trial judge was clearly insufficient to 
give fair support to the charge of personal bias.

Respectfully submitted

WILLIAM H. MORROW 
P. O. Box 671

Montgomery, Alabama 36101

CHAMP LYONS, JR.
57 Adams Avenue

Montgomery, Alabama 36104

TRUMAN HOBBS 
P. O. Box 347

Montgomery, Alabama 36101

Attorneys for Respondents in Parrish



— 15

Certificate of Service

I hereby certify that I have served a copy of the foregoing 
upon the following attorneys for petitioners:

J U Blacksher
Crawford, Blacksher & Kennedy 
1407 Davis Avenue 
Mobile, Alabama 36603

U. W. dem on 
Adams, Baker & dem on 
2121 North Eighth Avenue 
Birmingham, Alabama 35203

Michael I. Sovern 
435 W. 116th Street 
New York, New York 10027 
Jack Greenberg

James M. Nabrit, III 
Charles Stephen Ralston 
Eric Schnapper 
10 Columbus Circle 
Suite 2030
New York, New York 10019

by mailing such copies, AIRMAIL postage prepaid, on this 
the 27th day of February, 1976.

Truman Hobbs
Of Counsel for Respondents 

( Parrish)