Plaintiffs' Opposition to Defendants' Motion in Limine and Motion for Recusal

    IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY LL. BOLDEN, et al., ) 

Plaintiffs, ) 

VS. ) CIVIL ACTION NO. 75-297-P 

CITY OF MORILE, et al., ) 

Defendants. ) 

PLAINTIFFS' OPPOSITION TO DEFENDANTS 
MOTION IN LIMINE AND MOTION FOR RECUSAL 
  

Plaintiffs, through their undersigned counsel, submit 

this written opposition to the defendants' two motions in 

limine and motion for recusal, filed on or about November 

14, 1980. We believe that the motions are patently frivolous, 

that they attempt to reargue questions decided when this Court 

denied the City's motion to dismiss, and that their clear 

underlying purpose is to politicize this case and embarrass 

this Court. 

The First and Second Motions in Limine 
  

Defendants argued in their motion to dismiss on remand 

 



  

that the Supreme Court had considered all the evidence in 

the record and had concluded that it failed to prove the 

requisite racial intent. This Court disagreed, denying the 

motion to dismiss and scheduling proceedings to receive 

additional evidence, based on its understanding of the 

Supreme Court's mandate and the plurality opinion that the 

evidence should be reviewed under the correct legal standards. 

Defendants now recast this same unsuccessful argument 

by contending that the plurality opinion precludes this 

Court from considering anew any of the evidence previously 

presented. We have difficulty believing that defendants’ 

counsel present this new contention seriously. It contra- 

venes the aleay remand instructions of the plurality, as this 

Court has construed them, as well as firmly established 

principles of law governing remand proceedings. 

To begin with, if it were true that the Supreme Court 

plurality had already reviewed all the evidence previously 

presented and had decided that it failed to meet the eviden- 

tiary standard of intent, then the City's motion to dismiss 

should have been granted. There would be nothing left for 

this Court to consider under Plaintiffs' fourteenth amendment 

claims. This Court has already ruled that the plurality 

 



  

intended that the evidence be reviewed under correct legal 

standards. Because this point is settled, to exclude con- 

sideration of the existing evidence of record squarely con- 

travenes the Supreme Court's remand instructions and the 

teachings of the plurality opinion, 

The oft-repeated language of the plurality opinion relied 

on by Defendants, ''that the evidence in the present case 

fell far short" of proving intent, plainly means not that the 

existing evidence was sufficient to disprove racial intent, 

but that it was not enough to prove racial intent. Thus the   

plurality means that this Court should point to evidence in 

addition to that which it relied on in its Zimmer analysis to   

sustain a finding of racial intent. This Court would squarely 

violate the plurality's instructions if it ignored the evidence 

of legislative activities in the 1960's and 1970's referred to 

in footnote 21. Similarly, it would violate the plurality's 

instructions if evidence produced under the standards of White 

v. Regester and Zimmer v. McKeithen were ignored in the intent 
  
  

inquiry. The plurality stated that White v. Regester type evi- 
  

dence is ''consistent with" the principles of Washington v. Davis, 
  

Slip Op. at 12, and that Zimmer evidence 'may afford some evi-   

dence of a discriminatory purpose," though not by itself. Slip 

 



  

Op. at 16, Indeed, according to the plurality, all the 

evidence which led this Court to conclude that the at- 

large election system had an adverse racial effect on 

black voters provides "an important starting point' for the 

intent inquiry. Slip Op. at 13. And, although the existing 

evidence of past official discrimination against blacks is 

relevant to the ir ~ inquiry unc : rlingto eights el nt to the intent inquiry under the Arlington Heights 
  

analysis, Plaintiffs must show the connection between those 

prior official practices and present day discrimination. 

Siip Op, at 12, 13, 17. 8o, once this Court has rejected the 

argument that the Supreme Court has addressed and decided 

the intent question on the evidence, it is unmistakably clear 

that the plurality's opinion requires this Court to review all   

of the evidence previously presented under the correct legal 

standards. 

As learned counsel for Defendants know, it is a firmly 

established rule of law that when a case is tried before the 

court without a jury and subsequent rulings require reconsid- 

eration or a new trial, the remand proceedings should be based 

on evidence already presented to the trial judge, and whether 

or not additional evidence may be submitted is subject to the 

sound discretion of the judge. Hennessey v. Schmidt, 583 F.2d   

302, 304-035, 306-07 (7th Cir. 1978) ; Rule v, International   

 



  

Association of Bridge, Structural and Ornamental Ironworkers 
i   

568 F.2d 538, 569 (Sth Cir, 1977); Golf Cicy, Inc. v. Wilson 
  

  

Sporting Goods Co., 555 F.24 426, 438 n.20 (5th Cir. 1977); 

Donaldson v. Pillsbury Co., 534 F.24 825, 833-34 (8th Cir. 
  

1977); Rich v. Martin Marietta Corp., 522 F.2d 333, 347 (10th 
  

Cir. 1975); Rewis v, United States, 369 F.2d 595, 603 (5th 
  

Cir. 1966), on remand, 304 F.Supp. 410 (5.0. Ga. 1969),   

rev'd and remanded, 445 F.2d 1303, 1306 (5th Cir. 1971). See 
  

also Metropolitan Housing Development Corp. v. Village of 
  

  

Arlington Heights, 469 F.Supp. 836, 849 (N.D. Ill. 1979), on 

remand fxom 538 F.24 1283 (7c¢h Cir. 1977), cert.denied, 434     

U.5. 1023 (1978), 

This rule is also dictated by Rule 539(a), F.R.C.P.: 

On a motion for a new trial in an 
action tried without a jury, the 
court may open the judgment if one 
has been entered, take additional 
testimony, amend findings of fact 
and conclusions of law or make new 
findings and conclusions, and direct 
the entry of a new judgment. 

Hennessey v. Schmidt, supra, is close on point. There a #. 
  

breach of a sales contract was alleged, and the court of 

appeals vacated the judgment of the district court and remanded 

the case for "further proceedings." 583 F.2d at 304. The 

a5. 

 



  

court of appeals had determined that the district court, 

who had tried the case without a jury, had erroneously 

applied a "conclusive proof" standard to the evidence rather 

than the "preponderance of the evidence" standard, as well 

as an improper legal test of proximate cause. Id. On remand, 

the district court decided for the plaintiff without taking 

any new evidence, and on the second appeal, the defendant con- 

tended that the "further proceedings' instructions from the 

first appeal required that additional testimony be taken before 

judgment on remand was entered. 583 F.2d at 306-07. The court 

of appeals disagreed, saying that "[a] new trial, or the taking 

of additional testimony, was neither required nor appropriate." 

583 F.2d at 307. The 7th Circuit did intimate that additional 

testimony would have been appropriate if there had been some 

evidence in the original trial subject to challenge on the 

basis of the credibility, integrity or competence of a witness 

or if the original appellate opinion had suggested that addi- 

tional evidence under the correct legal standard might be 

appropriate. Id. In the instant case, application of these 

principles would seem to dictate the procedure this Court 

has already ordered; that is, review by the trial judge of the 

evidence already presented plus the consideration of any addi- 

tional testimony or documentary evidence that the parties might 
< 

 



  

wish to present on the intent issue. Additional evidence 

seems particularly appropriate here, in light of the pre- 

viously discussed instructions of the Supreme Court. Another 

reason for taking additional evidence is that, subsequent 

to the original trial of this case, intervening decisions 

of the Supreme Court have refined and added to the criteria 

for proving discriminatory intent, as the City Defendants 

pointed out to the Supreme Court in their brief for the 

appellants, p. 25 n.28. 

The Motion for Recusal 
  

A telling feature of the motion for recusal is that 

it cites no statutory or other legal authority. Counsel 

for Defendants are well aware of the statutory bases for recusal 

of a district judge. See Potashnick v. Port City Construction 
  

Co., F.24 (5th Cir. 1980). Counsel surely must know 

that the sole ground they cite for recusal, that Your Honor 

has made a previous ruling that the at-large City elections 

were maintained for a racially discriminatory purpose, is 

legally insufficient to require or permit recusal. It has 

been held time and time again that prior judicial rulings 

cannot be made the basis of a district judge's recusal, but 

that the "determination should ... be made on the basis of 

 



  

conduct extra-judicial in nature as distinguished from con- 

duct within a judicial context." Davis v. Board of School 
  

Commissioners of Mobile County, 517 F.2d 1044, 1052 (5th 
  

Cir. 1975), cext.denled, 425 U.S5. 944 (1976); accord, Berger   

Vv. Unlced States, 255 U.S. 22 (1921); Potashnick v. Port City 
  

  

Construction Co., supra; Hepperle v. Johnson, 590 F.2d 609, 
    

613 (5th Cir. 1979); Parrish v. Board of Commissioners of 
  

Alabama State Bar, 525 F.2d 98, 100 (5ch Cir. 1975) (en banc), 
  

cert.denied, sub nom., Davis v. Board of School Commissioners 
  

of Mobile County, 425 U.S. 944 (1976); Bowling v. Matthews, 
  

  

511 7.24 112, 114 (5th Cir, 1975); Oliver v, Michigan State 
  

Board of Educacion, 508 F.24 178, 180 (6th Cir, 1974), cert 
  

denied, 421 U.S. 963 (1975); Galella v. Onassis, 487 F.24 
  

986 (2d Cir. 1973); United States v. Thompson, 483 F.2d 527, 
  

528 (3rd Cir. 1973); Plaquemines Parish School Board wv. 
  

United States, 415 F.2d 817, 325 (5th Cir. 1969). This rule 
  

applies whether the Court is considering recusal under 28 

U.8.C. 8144 or 283 U.S.C. 5455. Davis v. Board of School 
  

Commissioners of Mobile County, supra, 517 F.2d at 1052. 
  

The rule that a district judge should not recuse himself 

on the basis of judicial expressions of opinion has been held 

to include the situation where he or she is required to retry 

or reconsider a case in which he or she had previously ruled. 

 



  

For example, Circuit Judge, now Chief Justice, Warren 

Burger, held in Coppedge v. United States, 311 F.2d 1278, 
  

133 (D.C, Civ. 1962), cert.denied, 373 U.S. 946 (1963),   

that the trial judge properly refused to disqualify himself 

in the second trial of a criminal case, even though the 

defendant claimed that the judge had formed a personal bias 

and opinion of his guilt against him in the first trial. In 

Oliver v. Michigan State Board of Education, supra, the state 
  

defendants asked the district judge to disqualify himself on 

the ground that he 

held "an unshakable conviction" 
that there is no distinction 
between de facto and de jure 
segregation for constitutional 
purposes; that the relief granted 
was biased in favor of the black 
plaintiffs and prejudicial to 
poor whites; that personal bias 
for the plaintiffs was demonstrated 
by the manner in which the parties 
were characterized and the treat- 
ment accorded the parties, counsel 
and witnesses; that an irrelevant 
and erroneous finding was made 
with regard to certain advice 
given by the defendants' attorney; 
that a Motion for Protective Order 
filed by plaintiffs was given 
improper treatment; and that there 
was undue delay in holding the trial 
on the merits of the case. 

308 F.2d at 180. Treating all the alleged facts as true, 

the Sixth Circuit nevertheless held that they did not suffice 

 



  

to support a claim of personal as distinguished from judicial 

bias. Similarly, the Fifth Circuit held that Judge 

Christenberry had properly refused to recuse himself when 

the Plaquemines Parish School Board claimed he was biased 

against them based on "repeated conclusions of bias 

supported by no facts other than a recitation of adverse 

rulings and findings of fact." 415 F.2d ac 825. 

Indeed, for a district judge to recuse himself solely 

because he had previously made legal or factual findings 

which were subsequently reversed and remanded for reconsidera- 

tion would defeat the purpose of Rule 59 and the many cases 

which say that evidence previously presented ought not be 

repeated when the trial was without a jury. Only the judge 

who tried the case originally will have heard the testimony 

of all the witnesses and the explanation of the documentary 

evidence. Rule 52, F.R.C.P., states that "due regard shall 

be given to the opportunity of the trial court to judge of 

the credibility of the witnesses." Moreover, the logical 

extension of a rule that required or permitted a trial judge to 

recuse himself after reversal on appeal would be a requirement 

that judges who have made findings of fact and conclusions of law 

in a bench trial recuse themselves if they grant a new trial 

prior to appeal, See Rule 59. This illustrates how nonsensi- 

«10- 

 



  

cal is the defendants' motion for recusal in the instant 

case. 

In addition, it may well be that for Your Honor to 

disqualify himself in the circumstances and procedural 

history of this case would work a denial of due process 

for the Plaintiffs. This Court has already ruled that the 

Supreme Court has not addressed the question of whether the 

evidence supports a finding of racial intent in the main- 

tenance of at-large elections. Consequently, if it is true, 

as Defendants have alleged in their motion for recusal, that 

Your Honor has already held that the City of Mobile's at-large 

form of government was being maintained for the purpose of 

discriminating against black voters, recusal would effectively 

set aside that finding without it ever having been disapproved. 

The reconsideration ordered by the Supreme Court and the Fifth 

Circuit could entail only reaffirmation and explication of 

this Court's previous findings, if the Defendants' interpreta- 

tion of the original district court opinion is correct. So, 

1f this Court's original finding of racial intent in the 

maintenance of at-large elections is based on misunderstanding 

of the correct legal criteria, there can be no credible claim 

of even judicial predisposition. On the other hand, if this 

Court did understand the correct legal principles and based 

ay Be 

 



  

such a finding thereon, the Plaintiffs are entitled to 

reentry of judgment in their favor. Only Your Honor can make 

this determination, and if you recuse yourself, the Plaintiffs 

would never have the opportunity for a judicial enforcement 

of findings of fact and conclusions of law which entitle them 

to relief and which never have been squarely rejected on appeal. 

That, we suggest, would be a clear violation of due process. 

By any measure, the defendants' motion for recusal is 

frivolous. It makes no attempt whatsoever to cite even a single 

statutory or case authority to support its provocative request. 

W 2 can only conclude that the motion is politically intended. 

As we have demonstrated, the law leaves Your Honor little or 

no choice but to deny the motion to recuse. We can anticipate 

that your ruling on the motion will evoke additional personal 

attacks on Your Honor in the local media. See Exhibit A. It 

will be difficult for the public to understand the difference 

between a personal non-judicial bias which warrants recusal 

and the judicial bias alleged by Defendants which as a matter 

of law does not permit recusal. Consequently, we think that 

the filing of a bare allegation of judicial bias, without 

reference to any legal support and without any attempt to 

comply with the affidavit requirements provided by statute, 

is deplorable. See Ethical Consideration 8-6, Code of Pro- 
  

fessional Responsibility of the Alabama State Bar (1974). 
  

32 

 



  

The Defendants 

and their motion for 

Respectfully submitted this cil 

CERTIFICATE 

Conclusion   

first and second motions 

recusal should be denied. 

in limine 

day of November, 1980. 

BLACKSHER, MENEFEE & STEIN, P.A. 
405 Van Antwerp Bldg. 
F. O.: Box 1051 
Mobile, Alabama 36633 

BY: 
Z/ Ci fe 

At Az aiid. 
  JAMES U. BLACKSHER 
YLARRY T. MENEFEE 

EDWARD STILL 
Reeves & Still 
Suite 400, Commerce Center 
2027 First Avenue, North 
Birmingham, Alabama 35203 

JACK GREENBERG 
ERIC SCHNAPPER 
Legal Defense Fund 
Suite 2030 
10 Columbus C 
New York, New York 100: 

ircle 
p
d
 

O
 

Attorneys for Plaintiffs 

OF SERVICE 
  

I do hereby certify that on this 

1980, a copy of the foregoing PLAINTIFFS' OPPOSITION TO 

DANTS' MOTION IN LIMINE AND MOTION FOR RECUSAL 

~13- 

( day of November, 

DEFEN- 

was served 

 



  

upon counsel of record: Charles B. Arendall, Jr., Esgqg., 

William C. Tidwell, III, Esq., Hand, Arendall, Bedsole, 

Greaves & Johnston, P. 0. Box 123, Mobile, Alabama 36601; 

Barry Hess, Esq,, City Attorney, City Hall, Mobile, Alabama 

36602; Charles S. Rhyne, Esq. and William S. Rhyne, Esq., 

1000 Connecticut Avenue, N.W., Suite 800, Washington, D.C. 

20036; Paul F. Hancock, Esq. and J. Gerald Hebert, Esq., 

Civil Rights Division, Department of Justice, 10th and 

Constitution Avenue, N.W,, Washington, D.C. 20530 and Drew 

S. Days, III, Esq., Assistant Attorney General, Department 

of Justice, Washington, D.C. 20530, by depositing same in 

the United States mail, postage prepaid. 

oz 4 : 7 \; oA Y 7 ASS 

ATTORNEY FOR 
| / 
Vv 

/ 
/ 

  

‘ FS L. { 

PLAINTIFFS 

oy Xu 

 



  

Thursday, Nov. 20, 1980 
  

LAM etn 

! @ 

Pittman should orant 
- i BO AR ATTN Ah Pp. city recusal rec i Lest 

1).8. District Judge Virgil 

Pittman of Mobile, who considers 
himself an expert on matters of 
discrimination and prejudice, 
should not hesitate to grant a City 
of Mobile motion asking that he 
recuse himself from the retrial of 
the landmark change of gov- 

ernment suit he has been handl- 
ing for several years. 

The motion makes the simple 
but extremely valid point that the 
trial judge has already reached a 
decision in the case. All he is now 
doing is attempting to justify his 
prejudice in a manner which 

might win U.S. Supreme Court 
approval. 

" Pittman has done everything in 
his power to force the city and 
other governmental entities in 
this area to bend to his personal 
wishes as outlined in a series of 
orders dating back to 1976. Even 
after being reversed by the 
Supreme Court and the 5th U.S. 
Circuit Court of Appeals, the 

Mobile district judge has time 

g
r
a
t
e
r
 

after time refused to accept such 
setbacks. He plods forward with a 
single-minded determination to 

have his decrees implemented. 

1 

The City of Mobile is therefore 
confronted with what will amount 

to a kangaroo court proceeding 
following which a new but onl 
slightly modified ruling will be 
issued by Pittman. 

Then 1t will be another [Ying and 
costly appeal process back to the 

Supreme Court — coupled with 
another period of confusion as to 
the lei of new elections 
which by next year will be four 
years overdue. 

We would ap) that the judge in 
a rare show of fairness might 
grant the city’s motion for him to 

withdraw from the case. But 

based on past performance, we 
are not too optimistic. 

Federal judges with lifetime 
appointments frequently fail to 
consider equity and fairness as 
they look down {from their ivory 
lowers. 

EXHIBIT A