Letter to Baker RE: Confirming dates for meeting and deposition
Correspondence
October 5, 1999

2 pages
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Case Files, Bolden v. Mobile Hardbacks and Appendices. Plaintiffs' Opposition to Defendants' Motion in Limine and Motion for Recusal, 1980. 137f6a7a-cdcd-ef11-b8e8-7c1e520b5bae. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a21acf46-cd52-438b-8cc3-6c2765493e01/plaintiffs-opposition-to-defendants-motion-in-limine-and-motion-for-recusal. Accessed August 19, 2025.
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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