Correspondence from Blacksher to Pittman; Brown v. Board of School Commissioners Plaintiffs' Motion for a Remedial Injunction; Order on Plaintiffs' Motion for Remedial Injunction; Order on Motion for Recusal; Order on Motion to Amend Preliminary Injunction

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t/ r r /
Date xeeaaa K fY I /

Nr:mber of CoPies

,i j.ze of PaPer

Sceeial Instructions

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I



.IAMEE U. BL.AtrKSHER
LARRY T. MENEFEE

BREtrORY E. ETEIN

Honorabl e Yi rgi I
Senior Judge
United States Di
P. 0. Box 465
Mobil e, AI abama

BLAtrKSHER, MENEFEE & STEIN, P.A.
ATTORNEYE AT LAW

4O5 VAN ANTWERP EUILDINB

P. e BOX lOSl
MOSILE ALAEAA4A 35633

May 27, L982

Pi ttman

stri ct Court

36652

TfLrFHoxr
(2cl5' 433-20ct0

RE: Leila G. Brown, €t al. v. Board of School Commissioners
of Mobile County, et al .; CA No. 75-298--P

Dear Judge Pittman:

Ue have this date filed a motion asking this Court to enter
i ts own remedi a'l redl strl cti ng p'l an to be used i n the event
the Legi sl ature fai I s to take acceptabl e action. A copy of
the motion i s encl osed for your i nformatlon.

At the conference with counsel on }lednesday, Your Honor asked
us to provide you with case Iaw indicating that the Court has
the authority to extend qual ifying periods for School Board
candidates. Perhaps the leading case on this point ln the
Fifth Circuit is Hamer v. Campbell, 358 F.2d zLS (5th Clr.
1966), cert. denffi (1966), where the Court
of AppeaTS-"em!-h?-Tied the broad equi tabl e pov{ers of the
Di strict Court to moul d rel ief sufficient to wi pe out the
effects of racial discrlmlnatlon Iincludlng] the power
to enjoin an election." 358 F.?d at 22L. Its remand
instructions to the district court included the followlng
mandate:

I n setti ng asi de the el ectl on of
the Town of Sunflower and the elections of
any other towns which the Di strict Court
on remand flnds to be represented by a pro-
per pl ai ntl ff, the Di strlct Court has wl de
di screti on to devi se a pl an for new el ectl ons.



Hon. Virgll Pittman May 27, 1982

102 S. Ct. at L522-23. See
F.Supp 537 (D.Rriz. 1966T;

Bu t I n some appropr i ate fa sh I on the p1 an wl I 1

have to ( I ) sc hedul e new primari es i n general
elections, l2l set a new cutoff date for
regl stratl on, and ( 3 ) set new cutoff dates
fo1 fi l i ng a9 candi dat .

Page 2

358 F.2d at 224 (emphasis added).

The broad dlscretlon of a dlstrlct court to modlfy electlon
dates, qual i fyi ng dates, etc. , was reaffi rmed by the Supreme
Court as recently as April 1, L982, lr Upham v. Seamon, L02
S.Ct. 1518 (1982). This was the Texas@
Redi stricti ng case, i r which the Court vacated the
redistricting p1 an devised by the three-Judge district court
and ordered reconsideratlon of the plan under proper legal
standards. The Supreme Court noted, apparently wi th
approval , that the Di strlct Court had al ready postponed the
fl I i ng dates for candidates and had adJ usted other dates so
that the primary elections scheduled for May 1, 1982 could be
hel d. 102 S.Ct. at L522. The Court concl uded its
i nstructi ons as fol I ows:

Havi ng i ndicated the 'l egal error of
the District Court, we leave it to that
court in the first instance to determlne
whether to modi fy i ts j udgment and resche-
dule the primary elections for Dallas County
oF, i n spi te of i ts erroneous refusal to
adjust the S.8.1 districts for Dallas
County, to allow the e'l ection to go forward
i n accordance wi th the present schedul e.

al so Klahr v. Goddard, 250

Finally, the case perhaps most directly on polnt is Connor v.
Johnson, 40? U.S. 690 (1971), where the Supreme CouFT--
ie-6-[[EI ttre three-judge Court for failing to order
single-member district electlons for the Misslssippi
Legi s1 ature, even though the candldates' fil lng deadl ine had
passed. The Court granted the plaintiffs' motlon to stay the
dl strict court's reaportionment p1 an and remanded wl th



Hon. Yl rgl I Pl ttman May 27 , L982 Page 3

i nstructi ons as fol I ows:

The District Court ls instructed,
absent lnsurmountable dlfflcultles, to
devlse and put lnto effect a slngle-
member di strlct pl an for Hi nds County
by that date. In Ilght of thls d{spos-
ition, the Distrlct Court is dlrected
to extend the June 4 flllng
da te T6Fl eflf sT5-fTv6 c 'a rulTila te s f rom
nTilils County to an appropriate date so
that those candldates and the State of
Ml ssl ssi ppl may act i n I I ght of the ney,
dlstricts lnto whlch Hinds County wlll
be divided.

402 U. S. at 692 ( emphasi s added) .

In'l ight of these precedents, {t seems that thls Court not
only has the authority to extend candldate flllng deadllnes
but even the duty to do so if that ls necessary ln order to
provide tirnely remedia'l re'l ief f or the bl ack citl zens of
Mobile County whose statutory and constltutlonal rlghts are
bei ng deni ed.

Best regards.

Yery respectf ul ly,
BLACKSHER STEIN, P.A.

Bl acksher

JUB:nwp

cc Honorable John V. 0'Brien,
Al I Counsel

Cl erk

EEEFI



IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHER}I DIVISION

LEILA G. BROl{N, et dl.,
Pl al nti f f s,

v.

)

)

) CIVIL ACTION NO. 75-298.P

BOARD OF SCHOOL COMMISSIONERS )
0F MOBILE COUNTY, et ol., )

Defendants. )

PLAINTIFFS. MOTION FOR A REMEDIAL INJUNCTION

Pl ai nti ffs Lei I a G. Brown, €t 01 . , through thei r

undersigned counsel , move the Court to enter an lnjunction
providing for singl e-member district elections for the Board

of Schoo'l Commissioners of Mobile County in L982. As grounds

for thei r moti on, Pl ai nti ffs woul d show a s fol 1 ows :

1. 0n May L2, 1982, this Court entered its final
judgment declaring the at-large election scheme to be

unconsti tutional and i n vi ol atl on of the Voti ng Ri ghts Act.

Said iudgment wi thhel d entry of a remedia'l order to provide

the State of Alabama the opportunity to enact a

constitutlonal el ection p1 an prlor to the prlmary and general

el ections in 1982. The judgment further provlded: "Upon

motion of one or more of the partles, or upon the court's own

moti on, i f i t appears that no such I egi sl ati ve response wl I I

be made in time for the 1982 elections, the Court will carry

out its responsibil ities under East carroll Parish School

Board v. Marshall,423 u.s. 636, 47 L.Ed.2d z9o (1976), to
develop and implement a remedial plan."

2. Pl ai nti ffs are i nformed that qual I fyi ng for the



party primary elections begins on June 5, 1982, and will end

on July 9, L982. The first primary election will be held on

Tuesday, September 7, 1982, and the runoff wi'l I be held on

Tuesday, September 28. The general el ecti on i s schedul ed for

November 2, L982.

3. Pl ai nti ffs are further i nformed that a I ocal

bill to redistrict the Moblle County SchooI Board lnto

slngle-member districts, according to 1980 census, i s

presentl y bel ng advertl sed. The fourth weekl y adverti sement

of the bi'l I will be Monday, May 31, 1982. It then may be

i ntroduced i n the present Speci al Session of the Legi s'l ature.

However, i f it is not introduced in this Special Sesslon, or

if it is introduced and there is insufficient time left in

the current Special Session for it to be adopted, the School

Board redistricting bil'l will be introduced again in the next

Special Session, which Governor James has said wi'l I start

some ti me i n mi d-J un e 1 982.

4. In 'l ight of these impending deadl ines, I t wil I

probably be necessary for this Court to extend the period for

candidates to qual ify for the School Board seats for which

el ections wil I be hel d thl s year. El ection offlcial s wil I

al so need as much advance notice of the School Board district
boundaries as possible in order to prepare ballots and

regi stered voter I i sts for the vari ous pol 1 i ng p1 aces. To

awa i t fi nal ac ti on i n the Leg i sl ature on proposed Sc hool

Board redistricting legislation may make it impossible

mechanical'ly for new election districts to be put in place in

time for the September 7 primary elections.

l,lHEREF0RE, pl ai nti f f s pray that the Court wi I I

enter an order and i nj uncti on as fol I ows:

2



A. Setting a date by which the partles to this
actlon shou'l d subml t to the Court thel r proposal s for f I ve

single-member district boundaries from which members of the

Board of School Commissioners shal I be el ected ln 1982;

B. Schedu'l lng a hearing shortly thereafter to

consi der obJectlons to the various di strictl ng proposal s;

and,

C. EnJoining the Defendants from faillng to

conduct the 1982 electlons for Mobile County School

Commi ssi oners accordl ng to the sl ngl e-member dl stri ct pl an to

be approved by thi s Court fol I owi ng such hearl ng, I n the

event that the Leglslature has failed to enact lts own

redi stri cti ng pl an and/or the Attorney General of the Uni ted

States has fal 1 ed or refused to pre-cl ear sai d I egl sl ati on.

Respectful Iy submitted thi s 25th day of May, 1982.

BLACKSHER, MENEFEE & STEIN, P.A.
405 Van Antwerp Bldg.
P. 0. Box 1051
Mobi I e, Al abama 36633

EDI{ARD ST I LL
Reeves & Still
Suite 400, Commerce Center
2027 Fi rst Avenue, North
Bi rmi ngham, Al abama 35203

J ACK GREENBERG
NAPOLEON l.lILLIAMS
Legal Defense Fund
Su i te 2030
10 Columbus Circ'l e
New York, New York 10019

Attorneys for Pl ai nti ffs

ARRY T. MENEFEE



CERTIFICATE OF SERYICE

I do hcrcby carilfy ilrrt on thls 27tn dry of try, l9gz,
a copy of thc foregol ng pLAITTIFFS' I(orIOil FoR A RETEDIAL

IxJullcrI0ll ras scrved upon counsel of record: llll I lrr ll.
AlIrn, E3q., covlngton I lurllng, EEE Slrtccnth stroctl r.r.1
Irrhlngton, D.C., 20006, lobert C. Crrpboll, tII, Eig.,
slntz, PlIc, carpbcll I Durc, 3763 profcsslonrl plrkrry,
iobllc, AIrbua 30609, JlrG! c. rood, E3q., lolo vrn Ant:orp
Bldg., tobllc, Alabrra 36602, rllllrn Brrdford lcynoldl,
Arslstant Attorney GcncrrI, Dcprrtrcnt of Justlcc,
Irshlngton, D.C., 20530, Gcrrld l{. Jones, Esq., prul F.

Hancock, Esq. and J. Gerrld Hebcrt, Esq., ElIen ll. rcbcr,
Esq., Yotlng Sccilon, clvll Rlghts Dlvlslon, Deplrtrcnt of
Justlce, l0th t pcnnsyl vrnrr Avcnue, t.r., rrshlngton, D.c.
20530, by dcposltlng sara ln the unltcd st.tcs rrlI, postrgc
prcpald or by hand.



i,EILA G. BROI^IN, et al.,

P laintiffs ,

UIVITED STATES OF AI',IERICA,

P 1 ain ti f f -Intervenor,
V.

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTTIERN DISTRICT OF ALABA],IA

SOUTI{ERN DIVISION

)
)
)
)
)
)
) CIVIL ACTION
)) {s-__ZL2_e8_{.
)

BoARD OF SCHOOL COIO{ISSTONERS )
OF I,IOBILE COIINTY, ALABA]{A, et a1 ., )

De fendants .

ORDER ON PLAII{TIFFS' MOTION
FOR REMEDIAL INJtIi{CTlOrtI

A conference was held on May 26, L982, and the

matters taken up in the motion were argued ora11y before

the court. The court requested the plaintiffs to file a

written motion so that the court would have something in the

file to rule on. The motion was filed on the 27xh day of

M"y, 7982. Because of the qualifying for election dates as

set out in paragraph 2 of the notion, the court is Prepared

to schedule cut-off dates for certain things to be done so

that objections may be heard and a plan can be Prepared and

approved prior to the primaries set for September with a

sufficient period of time before that for candidates to

qualify and campaign..

The court has been informed that a three-judge

United States District CourL panel in Montgomery concerning

the state reapportionment plan has scheduled certain deadlines

with the view to giving the legislature an opportr:nity to

draft a plan or in the alternative the court to order a p1an.

It has further been reported that it is envisioned that the

ballots are to be prepared on or before JtLy 29, L982. This

)
)



infcirmation has not been verified and is based on wire

reports and the plaintiffs' attorney herein who is also

an attorney for some of the parties in the state case.

The court assumes that ballots can be PrePared for the

Board of School Commissioners of Mobile Cor.nty election

as well as for the reapportionment Plan since Mobile

Cor-rrty has some of the districts which have not been

approved r-mder the previous reapportionment plan passed

by the legislature.

In paragraph 3 of the motion the plaintiffs assert

that a 1ocaI bill to redistrict the Mobile Cornty School

Board into single-member districts is being advertised,

with the last weekly advertisement to be I'fay 31 , L982. At

that time it may be introduced to the Present special session

of the legislature. It is further asserted that if it is

not introduced at this special session or there is not time

for it to be adopted it will again be introduced aE the next

special session which is anticipaLed to be in mid-June, L982.

The tenor of the conference \das that no one was willing to

make an optimistic prediction that a bill would Pass the

legislature although it could happen.

This court's schedule, planned several months 38o,

is to be in Seattle, Washington holding court for the month

of June , L982.

In view of the foregoing circumstances, the parties

are hereby ORDERED to prepare ProPosed single-member district

plans on or before Jr-ure 2L, L982. The parties, including the

plaintiff-intervenor, are to hand deliver to opposing counsel

copies of the plans on the same date the plans are filed with

the court, including the local United States Attorneyrs Office

for the Department of Justice. A certified coPy is to be

-2-



mailed to the cor:nsel of record for the Department of
Justice not later than the date filed. Each of the parties
including the plaintiff-intervenor is to file a plan.
Objections, if any, are to be filed on or before July g,

L982, with copies of the objections to be hand delivered
and mailed as set out above.

On July 16, L982, zt 10:00 3.D. , a hearing will
be held on the objections to the various plans submitted.

If prior to that date the legislature enacts a

districting plan for the school board, objections to that
pran are to be filed on or before July 13, L982. rn such

event, a hearing on these objections will be herd Jury L6,

L982.

Inasmuch as the present qualifying deadline for
candidates is July 9, L982, it wirl be necessary that the

qualifying date be moved to a later date to permit hearings

on objections and the court to issue an order thereon prior
to July 29, L982.

rt is therefore opoERED, ADJUDGED and DECREED that
the following named defendants, to wit: JoLrr L. Moore,

Judge of Probate; Maurice LI. Castle, Jr., Circuit Court

c1erk, and Thomas J. Punris, sheriff of Mobile coirnty, and

each of them, their successors, officers, agents, aLtorn€ys,

enployees and those acting in concert with a:ry of them or at
their direction, are hereby ENJOIMD from accepting certifica-
tions of any Persons as qualified candidates in the primaries
for the Board of School Corrnnissioners of Mobile Corlnty, Alabama

rrntil after this court has issued a further order in this ease

setting out the districts and the bourdaries together with
the nrunber to be on the ballot.

-3-



It is hereby ORDERED rhar rhe opening of qualifylng
for a position on the Board of School Cornmissioners of MobiLe

Courty is not to begin on Jr.ure 5, L982 and will not end on

July 9, L982, but will await further action of this court.
rt is anticipated that an order with reference to the opening

and qualifying period, the nrober of board members to be

on'the baLlot and the districts together with the borardaries

wiLl be issued by this court following the hearing on July 16,

L982, and prior to JuLy 29, L982. See Uphan v. Seamon,

u.s._, L02 s.cr. L519, L.Ed. 2d (1982);

Connbr v. Johnson , 402 U.S. 690, 91 S. Ct. L760, 29 L.Ed . 2d

268 (1971); Hamer v. QmpbelL, 358 F.2d 2L5 (5tLr Cir. 195G),

cert. denied, 385 U.S. 851 (1966).

ttCtr, 
Page

action by

T'he reLief requested by the plaintiffs in paragraph

3 of the motion is held in abeyance pending further
this court.

Done ar Mobile, Alabana, rhis rhe 
"r 

h of
M.y,1982.

-4-



L\ THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABA},IA

SOUTI{ERii DIVISION

I-EILA G. BROWN, et al .,

Plaintiffs,

UNITED STATES OF A}IERICA,

P 1 ain ti f f- lnte rvenor,

v.

BOARD OF SCIiOOL CO}O.IISSlONERS
OF I,iOBILE C0iiiiTY, ALABA.LMA, €t al .,

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION

No. 75-298-P

Def endants.

ORDER OI.I MOTION FOR RECUSAI

This cause was heard on defendants' motion for

recusal filed April 22, L982 and taken r:nder submission.

The motion rvas filed pursuant to 28 U.S.C. S 455

asking this judge to recuse himself from any further con-

sideration of defendants' other pending motion concerning

the school board chairman's vote. As groirnds therefor,

the motion recor-utts the particulars of this court's civil

contempt citation against the school board chairman and

two board members, the "delay" of this court in ruling on

this case, this court's "arbitrary and r:nrealistic" actions

taken concerning the school board chairman and this court's

implied criticisms and dentrnciations of the chairman and

the school board, all from orders and opinions on the merits

of subject matter before the court. There are no extra-

judicial allegations. Neither an affidavit nor a brief has
L/

been filed in support of this motion.-

An affidavit is not
See Davis v. Board

required
of School

rnder Section 455 (a)
Cortrn'rs, 5L7 F.2d

f0-44;-T05r:s z-GE
L/

Cir. L975)
brief is

, cert. denied, 425
n oE-T-e quITed-onu.s. 944 (L976). A



motions for recusal by the local rules of this
court. But cf . Local Ru1es 6, 8 (motions r-mder
Fed. R. eIv.-Pl 12 (b) and 56). As in any marrer
@ds for relief are not patently
clear, however, affidavits and briefs are useful
for informing the court of the partyrs contentions.
This is especially true in a situation such as
recusal where "[i]t is well settled that a judge
is presumed to be qualified and that the movant
bears a substantial burden of prorring otherwise."
State of Idaho v. Erge4qq , 478 F. Supp. 33, 35
@):

Section 455 (a) provides that:

Any...judge..
sha1l disqualify
ceeding in which
might reasonably

of the l}lited States
himself in any pro-
his impartiality
be questioned.

As arnende d Ey Act of Dec. 5, L974, Pub. L. No. 93-5L2,

S 1, 88 Stat. 1609, and Act of Nov. 6, L978, Pub. L. No.

95-598, rir. rr, $ 214(a), 92 srar. 266L.

I^Ihere

circumstances,

impartiality, "

"the reasonable man, were he to know all the

would harbor doubts about the judge's

recusal should follow. Pctashnick v. Port

own ability to be fair is irrelevant.
School Comm'rs , 5L7 F .2d L044, L052 (5tfr

Citv Const. Co. , 609 F. 2d 1101, 1111 (5tfr Cir. 1980); see

625 F.2d L25, L29 (6tLr Cir. 1980)also Roberts v. Bailar,

This objective test is "designed to promote public confidence

in the iurpartiality of the judicial process," by fostering
the appearance as well as the fact of fairness. H.R. Rep.

No. L453, 92d Cong., lst Sess., reprinted in L974 U.S.

Code Cong. & Ad. News 6351, 6355. Error on the side of

recusal is therefore preferred where the choice is not clear-
cut. PotasLrnick, 609 F.2d at 1111-12. A judge's subjective

evaluation of his

Davis v. Board of

Cir. L975) , cert. denied, 425 U.S. 944 (7976). Actual bias

or prejudice is not required. Parrish v. Board of Comr'rs,

524 T.2d 98, 103 (5th Cir. L975) (en banc) ,

-2-

cert. denied,



425

bi as

(5 th

u. s. 944 (197 6) . Conpare with 28 U.S.C. S 144 (actual

statute) , United States v. Serrano , 607 F.2d 1145

Cir. L979).

Cognizant of the purposes of the statute and the

foregoing basic principles this court also notes that it

"has a sworrr duty not to disqualify itself unless there

are proper and reasonable grounds for doing so." State of

Idaho v. Freeman , 478 F. Supp. at 35 (quoting llizard v.

Fielding, 454 F.Supp. 318 (D. Mass . L9l8), affirmed sub.

nom. BLLzard v. Frechette, 60f F.2d L2Ll (lst Cir. L979));

Simonson v. General Motors Cotp., 425 F.Supp. 574, 578 (8.D.

Pa. L976); Blank v. Sullivan & Cromwel1, 418 F.Supp. 1, 2

-27
(S.D.II.Y. L97 5). Spurious or loosely based charges of

2/ It is beyond cavil that it is entirely proper
for a judge to pass on a motion to disqualify
himself . United States v. Olander, 584 F.2d
876, 883 (@(seEfonz55 (a)), vacated
on other gror.rnds sub. nom. Harrington v. UnfEET-
States, 443 U. S. 9L4 (L979) .

impartiality will not support a motion to recuse. Hayes v.

NFL, 463 F.Supp . LL74, LL79 (C.D. Calif . 1979); Ilavis v.

Commercial Carriers, Inc., 408 F.Supp. 55 (C.D. Ca1if. L975)

Recusal under Section L44 (for actual bias) must

rest upon material facts which show extrajudieial bias directed

at a party on the part of the judge. In re Corrugated Con-

tainer Antitrust Litig. , 6L4 F.2d 958, 964-65 (5th Cir. 1980).

The alleged bias or prejudice must "result in an opinion on

the merits on some basis other than what the judge learned

from his participation in the case. " United States v. Grinnell

Corp., 384 U.S. 563, 583, 16 L.Ed. 2d 778, 793 (L966); llnited
3/

States v. Clark, 605 F.2d 939, 942 (5tfr Cir. L979).-

-3-



3/ "Judicial" bias, that manifested during court
proceedings, may result in the appearance of
impartiality in certain limited circumstances .

Taylor v. Hayes, 4I8 U.S. 488, 501-02, 4L L.Ed.
Zt-SW,-go9-(Tqiq> <:udge "embroiled in a running
controversy" with the criminal defendant); see
lrltritehurst v. Wright, 592 F.2d 834, 838 (5tE--eir.
f979f(jJ[d[e-s comments on the evidence insufficient).
The cases have uniformly required a "pervasive bias"
which was neither alleged nor argued in this motion.
Cor:nsel for the movants made it clear the motion
focused only on the "rpp.arance" of impartiality.
See Jackson v. Alabama Dept. of Public S_gfeEL,
617 {2d-689-(s es v.
Gresory , 656 F.2d LL32 (5rh Cir. r9-8T)--.---gr.lnited
States-v. Holland, 655 F.2d 44 (5tfr Cir. It8-1f-
Cudge's remarEs during a criminal prosecution
reflected personal prejudice of a pervasive nature.)

It is clear that the reasonable man would require no

less than the same material

to establish the appearance

Sections L44 and 455 (a) are

facts, going to bias or prejudice,

of impartiality. The tests under
4l

substantially the same. Compare

L/ There is a procedural difference in analyzing the
two statutes. Under Section L44 the judge must
accept the allegations in the affidavit as true
for purposes of determining the propriety of recusal.
Section 455 does not require this. Phillips y.
Joint Legislative Com. , 

-637 Y.2d 10f4;-Tm9--2O n. 6

In re Corrugated Container Antitrust Litig., 6L4 F.2d at 964-

65 with Parrish, 524 F.2d at 100. See Davis, 517 F.2d at

105r-52.

In Davis (out of this district involving the same

school board prevailedschool board but a different judge, the

and the judge was not required to recuse himself), the court

considered the disqualification standards under Sections L44

and 455 and stated: "We believe that the test is the same

under both." id., and that the determination of disqualifi-

cation should be made on the basis of conduct extrajudicial

-4-



in nature as distinguished from conduct within a judicial

context. The court held that judicial activity without

more is insufficient. Accord Bradley v. Milliken , 620 F.2d

I143, I157 (6th Cir. 1980); United States v. International

Business l4achines Corp. , 475 F. Supp

L97 9)

1372,1380 (S.D.N.Y.

Under either statute 128 U.S.C. SS 144,
455 (a) L the alleged bias must be
'personal', as distinguished from
judicial, in nature. The point of the
distinction is that the bias 'must stem
from an extrajudicial source and result
in an opinion on the merits on some basis
other than what the judge learned from
his participation in the case.' Thus,
a motion for disqualification ordinarily
may not be predicated on the judge's
rulings in the instant case or in related
cases, nor on a demonstrated tendency to
rule any particular way, nor on a partic-
trlar judicial leaning or attitude derived
from his e>lperience on the bench.

Phillips v. Joint Legislative Com. , 637 F.2d I0I4, 1020 (5ttr

Cir. 1981) (citations omitted) .

The grounds cited in the case at bar and counsel's

oral contentions seem to argue that recusal is mandated by

this court's past rulings in this case and the adverse publicity
by some of the parties and the public arising therefrom.

Recusal based on any "tendency" to cling to prior opinions

would require a new judge at almost every phase of a lawsuit

and would promote judge-shopping. See e.9.,__t.
Partin, 552 F.2d 62T (5tfr Cir. L977 ).- Prior rulings in a case

The language of Section 455 (a) "does not amount to
a grant of automatic veto power in order that
counsel might ehoose a judge vrho meets w'ith their
approval." Samuel v. University of Pittsburgh,
395 F.supp . TT75;1277
Samuel court relied upon a report by the Senate
I[diEfary Committee discussing Section 455 which
stated:

"[1]n assessing the reasonableness of a
challenge to his impartiality, each judge
must be alert to avoid the possibility

United States v.

5/

-5-



that those who would questj-on his
impartiality are, in fact, seeking to
avoid the consequences of his expected
adverse decision. Disqualification
for lack of impartiality must have a
reasonable basis. Nothing in tiris
proposea-Iegislation should be read to
warrant the transformation of a liti-
gant's fear that a judge may decide a
question against him into a 'reasonable
fear' that the judge will not be
impartial. Litigants ought not to
have to face a judge where there is
a reasonable question of impartiality,
but they are not enLitled to judges of
their own choice. " S. Rep .No. 93-4L9 ,

93d Cong. , lst Sess . l-973 , p. 5 (em-
phasis in original).

or related cases

ljnited States v.

L977); Lazofsky

(E.D.i{.Y. L975)

v. Sommerset Bus Co.,

, Sge also \,loodruff v.

389 F.Supp. 1041, L044

Tomlin, 593 F.2d 33, 44

not a valid ground

559 F .2d 31, 137-38

933 (L977); United

(E.D. Pa. f975). The

Section 455 (a) notes:

duty to
might
However,
used for
di ffi cu1 t

will not support judicial disqualification.

Bray, 546 F.2d 851, 857-58 (10th Cir. L976);

Crider v. Keoh-ane , 484 F.Supp 13, 15 (w.D. OkIa. 1979);

United States v. Baker, 44L F. Supp . 6L2 , 616 (I'f . D. Tenn

(6rh cir. L979). Likewise,

for recusal. United States

publicity is

v. Haldeman,

(D.C. Cir . L97 6) , cert. denied, 43L U. S

States v. Clark, 398 F.Supp. 34L, 363

House report to the 1975 amendrnent to

I{o judge, of course, has a
sit where his impartiality
reasonably be questioned.
the new test should not be
judges to avoid sitting on
or controversial cases.

H.R. Rep. No. L453, 93d Cong.

U.S. Code Cong. & Ad. News at

, 2d Sess. , reprinted Ln L974
6l

6355 . -

L/ Similarly, the appearance of partiality was not
established by the fact that "the injr:nction Ithe
defendant] was charged with violating 'has been
identified in the public mind as the result of
actions taken by Judge Boldt as the 'Boldt Decision.
The court noted that " [t]his ground is so obviously
Iacking in merit as not to warrant further considera-
tion. " United States v. Olander, 584 F.2d 876, 882

-6-



Cir. 1978)
Harrinston

(9th
nom.
(Tq7e

It is mandatory that some manner of probative
evidence be presented, BLLzard, 601 F.2d at Lzzt, establishing
a factual basis for the determination. The subjective beliefs
of the defendants are not sufficient. united states v.

Corr, 434 F.Supp. 408, 4L2-L3 (S.D.N.y L977). No such

probative evidence has been submitted.

T'he First circuit has noted that courts "must con-

tinually rule against one party or another," and that
personal disapproval and criticism may sometimes result. rn
re union Leader corp. , 292 F.zd 381, 389 (lst cir. 1961),

cert. denied, 368 u. s. 927 (1961) . orander and union Leader

recognize that publicity or the actions of parties offer no

insight to the reasonable man regarding a judge's impartiality
There is no varid gror-rrd for recusar r:nder 2g u.s.c.

S 455(a). The defendants'motion is due to be, and is hereby,
DEIIIED.

{7
It is so

k .t l,fay,

ORDERED at Mobile, Alabama, this the

L982.

-7-



IN THE UNITED STAIES DISTRICT COURT FOR
THE SOU]HERN DISTRICT OF ALASA}IA

SOUTHERN DIVISION

LEILA G. BROhIN, et al. ,

Plaintiffs,

IINITED STATES OF A}4ERICA,

P 1 aint i f f -In te rven or,

V.

BOARD OF SCHOOL COMMISSIOI.IERS
OF MOBII.E COUI{TY, ALABA}TA,
et Bl, ,

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIWL ACTION

No. 75-298-P

The

this court to
1980, so as to

to vote on all

ORDER ON MOTION TO A]4END
PRELI}flNARY INJIN CTI ON

cause arises out of defendants' petition asking

amend its preliminary injurction issued July 25,

permit the Board President, Dan C. Alexander, Jr.,
L/

matters brought before the Board.- Upon due

L/ The defendants requested a hearing to present oral
argument and evidence, which was hetd on April 26,
L982. The parties were then given leave t-o file
proposed findings of fact and-conclusions of 1aw.

At oral argument and in their motion the defendants
proposed alternatives to a fu1I restoration of IIr.
Alexander's vote. rn their proposed findings, however,
they withdrew their alternative proposals. -In this
posLure, this court has only considered the issue of
completely restoring the Board President's vote.

consideration of the defendants' request, together with plaintiffs
and plaintiff-intervenor's responses thereto, this court decides

not to alter or amend the injunction.

FINDINGS OF FACT

This action was commenced in 1975 by black citizens of
Mobile Courty vfio claimed that the at-large method of electing the

school board unconstitutionally and statutorily diluted their
voting strength and limited their access to the political process.

The court entered a judgment for the plaintiffs, which the Fifth



circuit court of Appeals affirmed in an unreported Per curl-am

opinion. On April 23, 1980, Lhe Supreme Court vacated the

decision of the court of appeals and remandecl the case to that

court for reconsideration in light of Citv of Mobile v. Bolden,

446 U.S. 55 (1980). Thereafter, the court of appeals remanded

to this court for reconsideration in lighL of Bolden.

Plaintiffs, on to-wit: July 15, 1980, moved for

entry of a preliminary injr:nction preserving the status quo

pending a decj-sion on remand, and on July 25, 1980, this court

entered the requested injr:nction. The court's injunctive order

required the single-member district election system to continue

in operation pending a final decision on remand. The order also

provided that the single-rnember district conmrissioners, Cox and

Giltiard, elected in L97B Pursuant to the court's order of

December 9, L97 6, would continue to hold office, that the next

single-member district con-rnissioner election, scheduled for

November, I980, would go forward, and that Board President Al-exander

would serve out his term, which was to end November 4,1980, as a

non-voting member.

In this court's original order dated December g, L916,

which followed the first trial, this court held:

Opinion

Cor:nty,

It appears more equitable to the court
to mbbify one commissioner's Powers and
duLies and alIow that genmissioner to
complete his term rather than shorten it.

and Order as to the Board of School Cornurissioners of I'lobile

et aL., December g, L976, at p. 46. TO have done otherwise

would make a Board consisting of six members.
A six member board would lend itself to possible
tie votes of three to three. The Board could
be rendered inef fective r:rrder such conditions.

Id. The order went on and directed:

The Chairman to be elected is to be either
Counoissioner Alexander or Corm'rissioner Drago,
the two members of the present board with the
least remaining years of service in their

-2-



elected term. Their present terms expire
after the general election in November, 1980,
when their successors have been elected,
qualified and taken offiee according to the
laws of Alabama. The Chai::nan will have all
the powers the Chairman would have r:nder the
Iaw, ru1es, and regulations they are governed
by except the right to vote. For this two
year period of time only, L97 8 to 1980, the
Chairman will have the right to vote only in
the event of a tie vote which could be
occasioned by abstension Isic], absence, or
any other reason.

Id. at 47 .

This court in its order dated November 24, L978, further
defined a tie vote:

A tie vote means exactly that. It would
necessarily have to be a 2-2 or a 2-2-L vote.
If three constitutes a quorum, there could be
a 1-1 (if an abstention) or a 1-l-1 vote.
Either would be considered a tie vote. The
non-voting Chairman cannot use his presence
to constitute a voting quorum or constitute
a quorun for any other purpose. A quorum would
have to be constituted from the regular voting
members. A 2-L-1-l vote is not a tie vote.
(Emphasis in original).

After remand by the Supreme Court and the Fifth Circuit
in 1980, this courtrs injr:nctive order of July 25, 1980, \ras

entered and the school board appealed.

The school board sought unsuccessfully a stay of the

order from this court, in the court of appeals and in the Supreme

Court. Moore v. Brown, 448 U.S. 1335 (1980). The school board

was successful in obtaining scme modification of this courtrs

injr:nction. The court of appeals ordered that Board President

"Alexander shall continue in office as the non-voting president

of the school board...until entry of a final judgment on rernand."

Brown v. Moore, No. 80-7610 (5th Cir. llnit B, October 30, 1980).

The court of

certification

election for

appeals further ordered

of the election results

that this court enj oin the

of the November general
2/

the single-member district coumissioner. Id., at 3.-

-3-



2_l T'i:e candidate who won the single-member distriet
election in 1980 was Ruth Drago, vriro had served as
an at-large elected school board member until her
ierm of oifi"" expired in 1980. The court of appeals
ordered that "Corrnissioner Drago sha1l continue to
serve aS an at-large commissioner pending entry of a
iinaf judgment on iemand of this case." The court of
appeali elplained that the-purpose of its order rias
"t'o return the school board to continuing operation
as it was prior to the order of JuIy 25,1980." Id'

The defendant school board has operated under these orders of

this court and the court of appeals since f980.

"On remand, hearings \,rere held in this court to resolve

the question of whether impending elections should be held r:nder

a district or an at-large system."

America v. .Board of School Cornnissioners of Mobile Count , Opinion

and Order, April 15, L982.

on April 15, 1982, this court entered its decision in

plaintiffs' favor. This court withheld "entry of a remedial

order to provide the State of Alabama the opportunity to enact a

constitutional election Plan prior to the primary and general

elections in L982." Opinion and Order, P 65. "[I]f it appears

that no such legislative response will be made in time for the L982

elections, the court will carry out its resPonsibilities...to

develop and implement a remedial plan." Id. The school board has

appealed this court's April 15, 1982 decision.

Ttre school board has moved the court to amend its July 25,

1980 injunction preserrring the status quo on remand. Specifically,

the school board asks this court to permit Board President Alexander

to vote on all matters that come before the board. As groundsthere-

for, defendants argue the following:

(I) the election system is presr-med val1d by
virtue of the Supreme Courtrs decisions
in this case and Bolden;

Brown and United States of

-4-



(2) the Chairman was duly elected by the voters
and has retained his office pursuant to a
Fifth Circuit decision;

(3) those same principles which permit the black
ccmnissioners to remain on the board and vote
should apply Lo the Chairman;

(4) denial of the Chairman's vote violates the
electorate's right of representation and the
equal protection of the law;

(5) the potential for tie vote problems is
insufficient reason to restrict the Chairman's
vote;

(6) the electorate should not be abridged of its
right of representation or action when three
board members are present and willing to take
affirmative action, and

(7) this courtrs previous orders intending to
prevent deadlocks have been frustrated.

Additionally, the school board claims that minutes of board meetings

"are replete with g)<amples of board inertia, inaction and unrespon-

siveness caused by abstentions and absences of voting members. "

Defendantsr Proposed Order Restoring Vote of Board Chairman, 3t

p. 4.

In support of its motion to an'rend the July 25, 1980

injtlection, the school board submitted minutes of one school board

meeting in October, 1981. Those minutes are not "r.Plete" with

examples of school board "inertia", as defendants c1aim. l4oreover,

even if it were true that Commissioner Alexander could have

supplied the third "ryu" vote on some matters, it is just as like1y
that in other cases he could have created a tie situation and

frustrated school board business. The school board claims that
" Ir]es toration of the Chairman 's [Pres ident 's ] vote should render

the board more effective than in the past." Id.

The court does not find that the fact of the Bresident

not having a vote has caused any delays or problems that could not

have occurred had the President been able to vote. The absence of
conrnissioners or the decision by cournissioners not to vote are part

-5-



of the normal give and take of the political process that is
inherent in the school board. The ability of school conrmissioners

to miss meetings or abstain from voting existed with a five-member

board and before this suit was initially fi1ed.

CONCLUSIONS OF LAW

This court has retained jurisdiction over this action.
Opinion and Order, April 15, 1982, p. 64.

In deciding whether to emend an existing injunction,
this court has broad discretion. See Johnson v. Rodford, 449

T.2d 115 (5th Cir. l97L) . In exercising its discretion to grant

or alter injr:nctive relief , the court is cognLzxrt of the fact that
a request for an injunction "is an extraordinary and drastic
remedy which should not be granted urless the movant clearly
carries the burden of persuasion. The primary justification for
applying this remedy is to preserve the court's ability to render

a meaningful decision on the merits." Canal Authoritv of State

of Florida v. Cailawry, 489 F.2d 567, 573 (5th Cir. L974).

The election system referred to herein no longer carries
any presurption of validity due to this court's opinion and order

of April 15, 1982. The Board President has held his post a year

and a half beyond the statutory six-year term provided by Alabama

law solely by virtue of the appellate court order and by virtue
of this court's most recent decision and injunction. As such, all
of defendants' argr.ments are w'ithout merit.

The eourt does not find that its previous orders intending

to prevent deadlocks have been frustrated. IE is apparent that

alteration of the voting structure as requested would set up a

six-member voting board and would provide much more opportr:nity to
create deadlocks and dissensions. I.7ith a voting membership of

five, the probability of deadlocks is materially reduced.

-6-



In order to minimize the effect of this court's initial

order, the already at-large elected members were allowed to serve

out their terms, the President was to be e1ected from the two

remaining at-large members, and the President was given the right

to vote in the event of a tie vote. This provision permitting a

vote in the event of a tie was to enhance the resolution of the

problem the petition eomplains of herein.

If it therefore ORDERED that defendants' motion to amend

the preliminary inju:ection is due to be, and is hereby DENIED.

Done at Mobile, Alabama, rhis rhe L%; of May,

L982.

-7-



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A11 pertloa arG to subrnlt pLos m or beforc JIngE 21, 1982, rlth
objcctloor to be flled Do latsr thm JULY 9, 1982.

IEIS tfoTICE CCirIS0'iS DArBS GIYIT Ir EEAITIfG IIAI 26, 1982.

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tlcagrt. Joace, Eaocock &
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ATTORI|EIYS: