Greenberg, Jack; and Others, 1995, undated - 15 of 114

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 73-3553

ALFREDO G. PARRISH, et al. ,
Plaintiffs-Appellants,

v.
BOARD OF COMMISSIONERS OF THE ALABAMA STATE BAR, et ai.,

Defendants-Appellees.

NO. 74-1523

ALABAMA BLACK LAWYERS ASSOCIATION, et al.,
Plaintiffs-Appellants,

v.
BOARD OF COMMISSIONERS OF THE ALABAMA STATE EAR, et al.,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Middle District of Alabama 

Eastern Division

SUPPLEMENTAL BRIEF FOR PLAINTIFFS-APPELLANTS

U. W. CLEMON
Adams, Baker & demon 1600 - 2121 Building 2121 North Eighth Avenue 
Birmingham, Alabama 35203

JACK GREENBERG JAMES M. NABRIT, III ELAINE R. JONES ERIC SCKNAPPER10 Columbus CircleNew York, New York 10019
Attorneys for Plaintiffs-Appellants



IN THE UlTITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 73-3553

ALFREDO G. PARRISH, et al.,
Plaintiffs-Appellants, 

v.
BOARD OF COMMISSIONERS OF THE ALABAMA STATE BAR, et al.,

Defendants-Appellees.

♦

NO. 74-1523

ALABAMA BLACK LAWYERS ASSOCIATION, et al.,
Plaintiffs-Appellants, 

v.
BOARD OF COMMISSIONERS OF THE ALABAMA STATE BAR, et al.,

Defendants-Appellees.

On Appeal from the United States District Court for the Middle District of Alabama 
Eastern Division

CERTIFICATE
The undersigned counsel of record for plaintiffs-appellants, 

Alfredo G. Parrish, et als., certifies that the following listed 
parties have an interest in the outcome of this case. These 
representations are made in order that judges of this Court may 
evaluate possible disqualification or recusal pursuant to Local



Rule 13 (a).
1. Alfredo G. Parrish
2. Prentis Cook
3. Henry L. Thompson
4. Henry C. Tribbitt
5. Charles Robinson
6. Eddie Jones
7. Thomas Gray
8. Alabama Black Lawyers' Association
9. The foregoing plaintiffs-appellants bring

this action individually and on behalf of all blacks who are 
or have been applicants to the Alabama State Bar who are
similarly situated.

10. The Board of Commissioners of the Alabama 
State Bar and the Board of Examiners on admission to the 
Alabama State Bar and their members are defendants-appellees.

ii

r -



page
Certificate Required by Local Rule 13(a) ....................  i
List of Authorities.........................................  iv
Questions Presented for Review.......... ...................  viii
Statement of the Case.......................................  1
Statement of the Facts.................. ...................  3
ARGUMENT:

I. THIS COURT HAS JURISDICTION OF THIS APPEAL 
OVER THE EIGHT NAMED PLAINTIFFS AND THE
ALABAMA BLACK LAWYERS' ASSOCIATION..................  4

II. THE DISTRICT COURT ERRED IN FINDING THERE WAS NO GENUINE ISSUE AS TO ANY MATERIAL 
FACT AND AS A MATTER OF LAW GRANTING SUMMARY JUDGMENT FOR DEFENDANTS-APPELLEES
ON ALL ISSUES....................................... 5
A. Denial of Discovery............................. 5
B. The District Court Erred By Granting Summary Judgment for the Defendants

On the Testing Issue...... .....................  10
C. Summary Judgment is an Inappropriate 

Method of Disposing of a Case Such as
the One At Bar..................................  18

III. THE COURT BELOW ERRED IN HOLDING THAT CODE 
OF ALABAMA, TITLE VII, SECTIONS 26 AND 36 
BAR THE CLAIMS OF PLAINTIFFS EDDIE JONES AND THOMAS GRAY AND DISMISSING THEM AS
PARTY PLAINTIFFS....................................  22

IV. THE COURT BELOW ERRED IN DISMISSING THE
ORGANIZATIONAL PLAINTIFF, THE ALABAMA BLACK 
LAWYERS' ASSOCIATION, AS A PARTY PLAINTIFF
FOR LACK OF STANDING................................  24

V. ON RELAND THIS CASE MUST BE HEARD BY ADIFFERENT JUDGE.....................................  25
CONCLUSION ..........................   55
CERTIFICATE OF SERVICE......................................  56

TABLE OF CONTENTS

iii



TABLE OF CASES

Abbott v. Thetford, No. 3847-N (M.D. Ala. 1972)..............  42Adams v. United States, 302 F.2d 307 (5th Cir. 1962)..29,30,44,49
Albemarle Paper Co. v. Moody, __ U.S. __ , 43 U.S.L.W.

4880 (June 25, 1975)....... ............................  14,15
Allen v. Mobile, 466 F.2d 122 (5th Cir. 1972),cert, denied 412 U.S. 909 (1973)........................ 13Alyeska Pipeline Service Co. v. Wilderness Society,

43 U.S.L.W. 4561 (1975)............... ...................  45Antonello v. Wunsch, 500 F.2d 1260 (10th Cir. 1974).......... 32
Armstead v. Starkville Municipal Separate School

District, 461 F.2d 276 (5th Cir. 1 9 7 2 .  11/15
Baker v. Columbus Municipal Separate SchoolDistrict, 462 F.2d 1112 (5th Cir. 1972).............  11,15,17-
Beland v. United States, 117 F.2d 958 (5th Cir. 1941)........  29Berger v. United States, 255 U.S. 22 (1921)...... 26,27,28,29,3132,33,34,42
Botts v. United States, 413 F.2d 41

(9th Cir. 1969)............................................  31Bradley v. School Board of the City of Richmond,
416 U.S. 696 (1974)........ ...............................  41Bridgeport Guardians, Inc. v. Civil Service Commission,
482 F. 2d 1333 (2nd Cir. 1973).............   13Broome v. Simon, 255 F. Supp. 434 (W.D. La. 1965)........   51

Burns v. Thiokol, 483 F.2d 30 (5th Cir. 1973),reh. denied 485 F.2d 687 (5th Cir. 1974)................... 7
California Bankers Assn. v. Shultz, 416 U.S. 21 (1974).....   24
Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971)............  13Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972).......... . 11
Chachas Petition, In re, 369 P.2d 455 .......... .............  7Chance v. Board of Examiners, 458 F.£d 1167 (2d Cir. 1972).... 11
Chaney v. California, 386 F.2d 962 (9th Cir. 1967)...........  7
Commonwealth Coatings Corp. v. Continental CasualtyCo., 393 U.S. 145 (1968)......................  36,37,38,46,51
Croley v. Matson Navigation Co., 434 F.2d 73

(5th Cir. 1970)............................................  I9

Davis v. Washington, 512 F.2d 956..................... ....... 13Doe v. Bolton, 410 U.S. 179 (1973)............................ 24Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975)..........  12,13
Edwards v. United States, 334 F.2d 369 (5th Cir. 1964)..... 40,42
Gallarelli v. United States, 260 F.2d 259 (1st Cir. 1958)....  31
Gay v. United States, 411 U.S. 974 (1973)..................... 39
Gibson v. Berryhill, 411 U.S. 564 (1973).... ................. 51Goldfarb v. Virginia State Bar, ___ U.S. ___, 43 U.S.L.W.

4723 (1973)   13

Page

iv



Page
Government of Virgin Islands v. Gereau, 502 F.2d 914

(3rd Cir. 1974)............................................  31Greenberg v. General Mills Fun Group, Inc.,
478 F. 2d 254 (5th Cir. 1973)..............................  19Griggs v. Duke Power Co., 401 U.S. 424 (1971).............. 11,13

Henry v. Speer, 201 Fed. 869 (5th Cir. 1913)..............  28,29
Heyward v. Public Housing Administration, 238 F.2d 689

(5th Cir. 1956)............................................  21Hodgson v. Liquor Salesman's Union, 444 F.2d 1344
(2nd Cir. 1971)............................................  32

Johnson v. Mississippi, 403 U.S. 212 (1971)................... 36
Kennedy v. Silas Mason Co., 334 U.S. 290 (1948)................  21
Laird v. Tatum, 409 U.S. 824 (1972)........................ 40,49Lanza, In re, 104 So.2d 342 (Fla. 1958)....................... 8
Loer, Application of, 226 P.2d 272...........................  7
Mayberry v. Pennsylvania, 400 U.S. 455 (1971).............. 31,36
Miles, In re, 180 P.2d 99 ................... ................  7Mitchell v. Sirica, 502 F.2d 375 (D.C. Cir. 1974),

cert, denied __ U.S. __ (1974)............................. 31Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1972).............  13
Murchison, In re, 349 U.S. 133 (1955)...................... 35,48
N.A.A.C.P. v. Allen, 493 F.2d 614 (5th Cir. 1974) ........  11,13
N.A.A.C.P. v. Button, 371 U.S. 415 (1963)...................  24
Parrish v. Board of Commissioners, 505 F.2d 12(5th Cir. 1974) , opinion withdrawn, Feb. 20, 1975.........  26
Pfizer v. Lord, 456 F.2d 532 (7th Cir. 1972) ................  32Public Utilities Commission v. Poliak, 343 U.S. 451 (1952).... 35
Rauls v. Daughters, 491 F.2d 141 (5th Cir. 1974).......... . 19Relf v. Montgomery Community Action Committee, No.

4099-N, July 3, 1973........................................  42Riley-Stabler Construction Co. v. Westinghouse,
401 F. 2d 526 (5th Cir. 1968) ............. ............... . 19

Roberson v. United States, 249 F.2d 737 (5th Cir. 1958)......  49
Simmons v. United States, 89 F.2d 591 (5th Cir. 1937)...... . 29
Sinderman v. Perry, 430 F.2d 939 (5th Cir. 1970), aff'd

408 U.S. 593 .......................................  18,20
Staley v. California, 109 P.2d 667 (1941)..... ................  7
Toebelman v. Missouri-Kansas Pipeline Co., 130 F.2d 1016

(3rd Cir. 1942)   9Turney v. Ohio, 273 U.S. 510 (1927) ........................ 34,46Tyler v. Vickery, N.D. Ga., Aug. 14, 1972, 5th Cir.
No. 74-3413 ...............................................  8

v



Page
Union Leader Corp., In re, 292 F.2d 381 (1st Cir. 1961)......  31
United States v. Bell, 351 F.2d 868 (6th Cir. 1965)......... .. 32
United States v. Columbia Broadcasting System,

497 F. 2d 107 (5th Cir. 1974)............................... 30United States v. Indrelunas, 411 U.S. 216 (1973).............  4United States v. Jacksonville Terminal, 451 F.2d 418
(5th Cir. 1971)............................................  6United States v. Ming, 466 F.2d 1000 (7th Cir. 1972).........  31

United States v. Roca-Alvarez, 451 F.2d 843 (5t.h Cir. 1971),
reh. granted on other grounds, 474 F.2d 1274 (5th Cir.
1973)......................................................  29United States v. Students Challenging Regulatory AgencyProcedures (SCRAP), 412 U.S. 669 (1973)...........    24United States v. Thompson, 479 F.2d 1072 (3rd Cir. 1973)..  31United States v. Tropiano, 418 F.2d 1069 (2nd Cir. 1969).. 31

United States v. Womack, 454 F.2d 1337 (5th Cir. 1972).......  29
Upper Dublin v. Germantown, 2 Dallas (2 US) 213 (1793).......  34
Whitaker v. McLean, 118 F.2d 596 (D.D.C. 1941)...............  31
XRT, Inc. v. Krellenstein, 448 F.2d 772 (5th Cir. 1971)......  8

References
Note, Disqualification of a Federal District Judge for Bias - the Standard Under Section 144,

57 Minn. L. Rev. 749 (1973).
Note, Disqualification of Judges for Bias in the 

Federal Courts, 79 Harv. L. Rev. 1435 (1966).
Frank, Disqualification of Judges: In Support of the 

Bayh Bill, 35 Law & Contemp. Probs. 43 (1940).
Wright & Miller, Federal Practice & Procedure 

(Civil) § 2732.

vi



Federal Statutes 
1 Stat. 279, ch.36, §11 
3 Stat. 643, ch.51 
62 Stat. 898 
28 U.S.C. §144
28 U.S.C. §455, as amended by Pub.L.93-512, 88 
. Stat. 1609 (1974)

State Statutes ,
Code of Alabama, Title 46, §26 (1940)

Statutes

Administrative Regulations
Testing Guidelines of the EEOC, 29 CFR §1607.5 (a)

Authorities
ABA Opinions of the Committee on Professional Ethics, 

Formal Opinion 200, Jan.27, 1940.
Canons of Judicial Ethics
Code of Judicial Conduct
Congressional Record

42 Cong. Rec. 262943 Cong. Rec. 306 (1910)
120 Cong. Rec. 10729 daily ed., Nov.18, 1974)

Hearing on S.1064 Before the Subcommittee on Improvements in Judicial Machinery of the Senate Judiciary 
Committee, 93rd Cong., 1st Sess. (1973).

Reports
S. Rep. 93-419, 93rd Cong., 1st Sess. (1973)
H. Rep. 93-1453, 93rd Cong., 2nd Sess. (1974)

Reporter's Notes to the Code of Judicial Conduct

vii



Questions Presented for Review

I. Whether this Court has jurisdiction over all the 
issues raised by plaintiffs-appellants in these cases.

II. Whether the district court improperly granted 
summary judgment for the defendants in this case where

A. Discovery was incomplete,
B. The defendants administer an unvalidated 

test having a disproportionate adverse 
effect on blacks, and

C. Conflicting inferences may be drawn from the evidence; questions of motivation, intent, and credibility are involved; and novel constitutional issues of substantial 
public import are raised.

III. Whether'"the district court erred by dismissing the 
claims of plaintiffs-appellants Eddie Jones and Thomas Gray.

IV. Whether the district court erred by dismissing the 
plaintiff-appellant, Alabama Black Lawyers' Association, for 
lack of standing.

V. Whether this case must be assigned to a different 
judge on remand.

viii



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 73-3553

ALFREDO G. PARRISH, et al. ,
Plaintiffs-Appellants,

v.
BOARD OF COMMISSIONERS OF THE ALABAMA STATE BAR, et al.,

Defendants-Appellees.

NO. 74-1523

ALABAMA BLACK LAWYERS ASSOCIATION, et al.,
Plaintiffs-Appellants,

v.
BOARD OF COMMISSIONERS OF THE 
ALABAMA STATE BAR, et al.,

Defendants-Appellees.

On Appeal from the United States District Court for the Middle District of Alabama 
Eastern Division

SUPPLEMENTAL BRIEF FOR PLAINTIFFS-APPELLANTS

Statement of the Case
Plaintiffs-appellants herein incorporate the Statement of 

the Case in the Opening Brief at pp. 1-12 and the Restatement of



the Case in the Reply Brief at pp. 1-3. The Opening Brief of 
plaintiffs-appellants was filed on or about December 16, 1973; 
the Reply Brief, on or about January 29, 1974.

On February 7, 1974, the district judge complied with the 
"separate document" requirement of F.R.C.P. 58 and entered a 
final judgment in the case below. Plaintiffs-appellants then 
on or about February 13, 1974 filed a notice of appeal individ­
ually naming all eight named plaintiffs and the Alabama Black 
Lawyers' Association as appellants. This appeal was docketed 
as No. 74-1523 in this Court and was consolidated with No. 73- 
3553.

This case was fully argued on the merits and submitted to 
a panel of this Court of Judges Tuttle, Wisdom, and Gee on June 
11, 1974. On December 2, 1974, this panel of judges issued an 
opinion in this case which opinion and judgment was withdrawn by 
order dated February 20, 1975. By Order dated June 5, 1975,II
this Court on its own motion vacated the submission of the cause 
to the panel of judges and determined to hear this case en banc 
on briefs without oral argument. Plaintiffs-appellants, pursuant 
to the Court's direction, serve this Supplemental Brief on July 
7, 1975.

-2-



Statement of the Facts

The facts are the same as those set forth in the 
"Statement of Facts" at pps. 13-23 of the Opening Brief of 
Plaintiffs-Appellants and at pps.4-5 of the Reply Brief. 
Plaintiffs-Appellants herein adopt and incorporate by refer 
ence those statements of fact.

-3-



ARGUMENT

I
THIS COURT HAS JURISDICTION OF THIS APPEAL 
OVER THE EIGHT NAMED PLAINTIFFS AND THE 
ALABAMA BLACK LAWYERS 1 ASSOCIATION.

All eight named plaintiffs and the organizational plaintiff 
the Alabama Black Lawyers' Association, are properly before this 
Court on this appeal.

The district court issued a memorandum opinion which was 
filed on August 21, 1973 granting summary judgment against the 
plaintiffs-appellants on all issues (App. 456). However, the 
court below failed to comply with the "separate document" require 
ment of F.R.C.P. 58 and the pronouncement of the United States 
Supreme Court in United States v. Indrelunas, 411 U.S. 216 (1973) 
See Reply Brief at pp. 2-3. Plaintiffs-appellants then prema­
turely filed a notice of appeal (R. 586) and an amended notice 
of appeal (R. 592), which appeal was docketed in this Court as 
No. 73-3553. By those notices, appellants clearly intended to 
appeal on behalf of all of the plaintiffs, including the Alabama 
Black Lawyers' Association. See Reply Brief at pp. 20-22.

In filing their brief in No. 73-3553 on or about January 
14, 1974, defendants-appellees asserted that the notice and 
amended notice of appeal were technically defective and failed 
to comply with FRAP 3(c). Appellees' Brief at pp. 10-13. It 
then came to the attention of plaintiffs-appellants who promptly 
notified the district court that the district judge had not 
entered a final judgment in the cause below as required by the

-4-



separate document provision of F.R.C.P. 58. On February 7,
1974, the district court complied with the separate document 
requirement and entered a final judgment in the case below. 
Plaintiffs thereupon filed a timely notice of appeal on or about 
February 13, 1974, individually naming all parties to the appeal. 
See Reply Brief at p. 3 (filed on or about January 28, 1974).
The appeal was docketed in this Court as case No. 74—1523. The 
cases, Nos. 73-3553 and 74-1523, were consolidated in February, 
1974.

Plaintiffs-appellants are, therefore, in compliance with 
FRAP 3(c) and all jurisdictional prerequisites have been met.
The notice of appeal filed in No. 74-1523 individually names all 
the parties to the appeal including those named in No. 73-3553.

XI
THE DISTRICT COURT ERRED IN FINDING THERE WAS NO GENUINE ISSUE AS TO ANY MATERIAL 
FACT AND AS A MATTER OF LAW GRANTING SUMMARY JUDGMENT FOR DEFENDANT-APPELLEES 
ON ALL ISSUES.

A. Denial of Discovery
The single most relevant matter of discovery sought by 

appellants in the court below was the graded examination papers. 
The motion to compel production of these graded papers was one 
of the outstanding discovery motions at the time the district 
court granted summary judgment for the defendants. See Appellees' 
Opening Brief, Statement of the Facts at p. 11, Argument at pp. 
29-31, and Reply Brief at pp. 7-9.

-5-



One of the very critical issues in this case is appel­
lants' claim that appellees restrict the number of blacks 
admitted to the Alabama State Bar through a policy and practice 
of discriminatorily assigning grades to the papers of applicants 
to the bar examination (Complaint, pp. 7-8).

The graded papers constitute the "proof of the pudding," 
for an analysis of them would reveal whether in fact the papers 
of black examinees were graded differently than those of white 
examinees. If such analysis reflected that substantially identi­
cal responses of black and white examinees were graded in a 
similar manner, then the self-serving declaration of nondiscrim­
ination in assigning grades to examination papers by the 
individual bar examiners would be firmly established. If, on 
the other hand, the analysis revealed that similar responses of 
black and white examinees were graded differently, then conceiv­
ably appellants could establish a prima facie case of racial

idiscrimination in the grading process, and the burden of proof 
would then shift to the bar examiners. United States v. 
Jacksonville Terminal, 451 F.2d 418 (5th Cir. 1971). In any 
event, it is clear that the most promising approach to contro­
verting the bar examiners' denial of a policy of racially diŝ - 
criminatory grading procedures is to look to the papers actually 
graded by the examiners. The actual graded examination papers 
would provide the best evidence as to whether the bar examination 
papers are graded fairly, without racial bias. In this area of 
the law, documentary and statistical evidence mean much more 
than ex parte affidavits.

-6-



Of course, the graded examination papers are most relevant 
to a resolution of the claim of discrimination with respect 
thereto, and any assertion to the contrary cannot stand under 
clearly established legal principles. Cf. Burns v. Thiokol,
483 F. 2d 30 (5th Cir. 1973), reh. den. 485 F.2d 687 (5th Cir. 
1974). Besides, under Rule 26(b)(1) a party is entitled to 
discover any information, not privileged, which "... appears 
reasonably calculated to lead to the discovery of admissible 
evidence."

The district court's failure to consider appellants' 
motion to compel the production of the graded examination papers 
was effectively a denial of the motion. Opening Brief at p. 11, 
R. 355, 480, 545. Appellees in their brief concede that the 
appellants were denied discovery "of the answers to the 1973 
examinations by all examinees, the grades assigned to each 
examinee, and any examiner's grading notes" (Appellees' Brief 
at p. 3).

None of the cases cited by the defendants, in support of 
their non-production of examination papers, actually stand for 
the proposition cited. We have discussed the Chaney case, 386 
F.2d 962 (9th Cir. 1967), in our reply brief at pp. 8-9. In 
Staley v. California, 109 P.2d 667 (1941), cited at pp. 24, 29
of Appellees' Brief, as the dissent clearly points out, the 
applicant actually was given his examination paper, and they 
were regraded by a law professor. In the Miles, 180 P.2d 99, 
Loer, 226 P.2d 272, and Chachas, 369 P.2d 455 cases, cited by 
the defendants at pp. 24, 25 of their original brief, the

-7-



petitioning bar applicant was permitted to review his examina­
tion paper. In the Tyler v. Vickery case (N.D. Ga., decided 
Aug. 14, 1972, 5th Cir. No. 74-3413), the district court initially 
denied summary judgement for precisely the reason that the 
examination papers had not been made available to the plaintiffs 
for their analysis.

See also, In re Lanza, 104 So.2d 342 (Fla. 1958), cited
by the defendants at p. 29 of their original brief, where the
Florida Supreme Court specifically examined the Florida bar
exam questions and "... selected at random and examined numerous
papers and grades given by individual examiners ...." Id. at 344.
As a result of its independent examination, the court found:

The failure to pass the subject examination is 
by no means an indication that all of such 
applicants are not qualified for admission to 
the Bar ...." Id.

Appellants have earlier cited a host of cases for the 
proposition that in passing on a motion for summary judgment, 
a court must carefully consider whether the party opposing the 
motion has had access to proof; and where the proof is peculiarly 
within the knowledge or control of the defendants, plaintiffs 
should be afforded every opportunity to proceed with discovery.
See citations. Opening Brief at p. 31. The denial of the motion 
precluded appellants from controverting the declaration of non­
discrimination by the bar examiners, and in these circumstances, 
a grant of summary judgment for the defendants, examiners, and 
Others was manifest error. XRT, Inc, v. Krellenstein, 448 F.2d. 
772 (5th Cir. 1971), is but one of the many authorities holding 
that where, as here, the party opposing summary judgment is

-8-



unable to controvert the supporting affidavits therefor without 
access to relevant papers in the possession of the movants, a 
grant of summary judgment constitutes reversible error. See 
also Toebelman v, Mlssouri-Kansas Pipe Line Co., 130 F.2d 1016 
(3rd Cir. 1942) .

At the time the motion for summary judgment was granted 
to the defendants there were also outstanding motions to compel 
answers to interrogatories. Appellants' Opening Brief at pp. 
10-11, Reply Brief at pp. 1-2. This denial of discovery was 
discussed in both briefs filed earlier by appellants and will 
not be further discussed here.

The district court clearly erred in granting summary judg­
ment without a prior disposition of the outstanding discovery 
motions.

IIh

-9-



B. The District Court Erred Bv Granting Summary
Judgment for the Defendants On The Testing Issue.

Traditionally, the vast majority of the Alabama lawyers
have been graduates of the University of Alabama's law school.

1/ . ^As such, they were exempt by statute from taking a bar examina 
tion. This practice prevailed until four years or so after the 
famous Autherine Lucy case — which first opened the doors of the 
University of Alabama to black citizens of the State. In 1961, 
for the first time, all persons who wished to practice law in 
Alabama were required to take a bar examination.

There is no contention that the diploma privilege in 
Alabama resulted in an incompetent or marginally competent bar. 
Quite to the contrary, many of the leading practitioners in the 
state have never taken a bar examination. Indeed, the trial 
judge himself is a product of the diploma privilege; seven of. 
the twelve incumbent defendant bar examiners are beneficiaries

*  — —  |7  "

of the diploma privilege. Any conclusion that the State of

1/ Title 46 §26 of the Code of Alabama of 1940 provided:Whenever the president and dea'n of the law department 
of the University of Alabama shall certify to the 
secretary of the board of commissioners that the university has conferred the degree of bachelor of law 
upon a graduate in that department, it shallbe the duty 'of such secretary upon presentment within twelve months of such certificate to enter the name of such graduate upon the rolls of the state bar, and such graduate upon 
complying with the other terms of this article shall without further examination become a member of the state 
bar, with a i f The rights, duties and privileges of the 
other members thereof, (emphasis supplied).

This section was abolished, effective in 1961. Id.

u Examiners Frank Donaldson, Bob Kendall, Vivian Johnston, M 
Clinton McGee, L. Tennant Lee, Knox McMillan, and Philip Shank have never taken a bar examination. (A .37 b, JO J , ,
427, 435, 443, 448) .

-10-



Alabama has a "compelling state interest" in administering a bar 
examination particularly one which has a disparate effect on 
blacks, is simply unsupported by history and the experience of 
a long period of time during which nearly all of the lawyers in 
the State never took a bar examination without any noticeable 
adverse effect on the public at large.

Where employment tests are shown to have a disparate 
effect on the employment opportunities of blacks, the Constitution 
of the United States and applicable statutes require that such 
tests be validated, i.e., that they be shown by professional 
testing standards actually to measure an applicant's ability 
to perform the job he seeks. Griggs v. Duke Power Co., 401 U.S. 
424 (1971); Castro v. Beecher, 459 F.2d 725 (1st Cir., 1972);
Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir., 1972) .
In NAACP v. Allen, 493 F.2d 614 (5th Cir., 1974) this Court 
affirmed a district court's conclusion that where a written test 
and an oral interview had disqualified blacks from employment as 
Alabama State Troopers, and neither was validated to correlate 
successful scores with successful job performance, affirmative 
remedial relief in the form of quotas is warranted. Id.

The arguments of the defendant bar examiners - that Griggs 
does not apply to "professional tests" administered by bar asso­
ciations and, alternatively, that since the Alabama bar association 
is not an employer, it is free to administer invalidated tests 
having disparate effects on blacks - overlook the relevant 
authorities to the contrary. Baker v. Columbus Municipal Separate
School District, 462 F.2d 1112 (5th Cir., 1972) and Armstead v.



Starkvi1le Municipal Separate School District, 461 F.2d 276 (5th 
Cir., 1972) both involved the use by school boards of unvalidated, 
professional examinations (The National Teachers Examination and 
the Graduate Record Examination) which were shown to have a 
disparate impact on black teachers. This Court sanctioned an
. . i/injunction against their further use. In reaching its decision 
in Baker, this Court specifically relied on the undisputed facts 
that there, as here,

. . . NTE cut-off score requirement was set byappellants without any investigation or study of 
the validity and reliability of the examination or the cut-off score as a means of selecting teachers for hiring or re-employment. Id., at 1114.

The District of Columbia Court of Appeals, in the recent case of
Douglas v. Hampton, 512 F.2d 976, (D.C. Cir. 1975), held that
where the Federal Service Entrance Examination - the primary
avenue of entry into professional jobs with the federal government
was shown to have a disproportionately adverse effect on black

_3/ In Armstead, Judge Dyer observed:
The use of the GRE test has operated to exclude 
more blacks than whites from the teaching pro­
fession in Starkville. Starkville asserts that the reductions occurred because it desired to 
improve the faculty and the appellees were not 
among those who met the minimum standards esta­
blished . A school board's desire to employ ‘the best teachers available is both legitimate 
and commendable. However, in attempting to attain this laudatory objective, Starkvxllc 
must not deny to any person the equal protection of the lawsJ
. . . Those who attain a minimum score on the GRE
are classified as suitable for employment while 
those who fail to meet this mark are automatically 
rejected. Although Starkville may have some 
discretion to establish an appropriate classifica­
tion, the classification must not be an arbitrary 
one. Id. 279, 280. (emphasis supplied).

12



employment, the Fifth and Fourteenth Amendments require that
the examination must be validated. Citing such cases as Davis 
v. Washington, 512 F.2d 976, (D.C. Cir., 1975), Bridgeport
Guardians, Inc, v. Civil Service Commission, 482 F.2d 1333 
(2nd Cir., 1973), Carter v. Gallagher, 452 F.2d 315 (8th Cir.
1971), and Allen v. Mobile, 466 F.2d 122 (5th Cir., 1972), cert, 
denied, 412 U.S. 909 (1973), the Douglas court properly noted 
that " . . .  the applicability of the Griggs standard has also 
been recognized in numerous cases involving public employees not 
grounded in Title VII." Id_. , at 981

It is settled then, that bar associations are not immune 
from the relevant authorities requiring validation of examinations 
which have a disparate effect on blacks, just as the United States 
Supreme Court recently held that such associations enjoy no special 
immunity from the antitrust laws because of their asserted status 
as a "learned profession." Goldfarb et al. v, Virginia State Bar 
et al. , _____U.S. _____, 43 U.S.L.W. 4723 (1975).

Criterion-related empirical studies have been recognized 
as the best means of validating employment tests having a disparate

4/impact. Testing Guidelines of the Equal Employment Opportunity 
Commission, 29 C.F.R. §1607.5(a). NAACP v. Allen, supra. Morrow 
v. Crisler, 491 F.2d 1053, 1056 (5th Cir., 1972).

4/ Criterion related validity is demonstrated by comparing test 
scores with one or more external criteria to provide a direct 
measure of the job behavior which the test is intended to 
predict. Critcria-related validity may be predictive (i.e., 
testing job applicants and comparing their test scores with 
some criteria data of job performance collected at a later 
date) or concurrent (i.e., testing present employees and 
comparing their test scores with criteria collected con­
currently with the testing).

13



In Albemarle Paper Co. v. Moody, _____U.S. ______  (Slip
Opinion dated June 25, 1975), the United States Supreme Court 
reasoned that the question of "job relatedness" should bo 
determined by reference to the EEOC Guidelines on Testing,
29 C.F.R. 1607(1974), for the Guidelines constitute ”'[t]he 
administrative interpretation of the Act by the enforcing agency', 
and consequently they are 'entitled to great deference'." Mr. 
Justice Stewart, in writing the 7-1 opinion for the court, re­
affirmed the law as earlier pronounced by this and other circuits:

. . . discriminatory tests [i.e., tests having a
racially disparate impact] are impermissible unless shown, by professionally acceptable methods, 
to be predictive of or significantly correlated 
with important elements of work behavior which 
comprise or are relevant to the job or jobs for 
which candidates are being evaluated. Id_. , Slip 
Opinion at p.24. (emphasis supplied).

The court then proceeded to set aside a purported validation study
because, inter alia,1) the study did not contain an analysis of the

5/attributes of, or the particular skills needed in, the studied 
job groups, (Id., p.25); and 2) the criteria of job performance 
utilized by the study was not shown .to be sufficiently related 
to specific job ability so as to justify a testing system with

5/ The defendants seemingly admit in their original brief that 
the Alabama bar examination does not purport to be pre­
dictive of job performance as a lawyer:"Far too many factors are operative in the practice 

of law to measure success on any examination. The bar examination simply seeks to protect the public 
from the admission to practice law of persons who on examination are found not to possess the minimal 
knowledge and skill reasonably required to practice 
law." Original Brief of Defendants-Appellees, p.31.

14



a racially discriminatory impact. Id., p.26.
The latter two considerations of the court in Albemarle 

carry particular significance in the case at bar. First, the 
Alabama Bar Association, when confronted with a test having a 
disparate impact, has never undertaken, or, for that matter, 
considered, any kind of validity studies. The cut-off score 
of 70 on the bar examination was established without reference 
to any job analyses or criteria of job performance. The defend­
ants apparently feel that they have relatively unbridled dis­
cretion to set the cut-off score on the examination at any point 6/
they so desire - without consideration of whether the cut-off 
score bears any demonstrable relationship to the actual practice 
of law. If this is their position, then they are surely mistaken. 
Cf. Baker, supra at 1114; Armstead, supra, at 279-280.

Of course, the question of the arbitrary setting of a 
cut-off score on the bar examination is reached only after it is 
determined that the test is otherwise validated. As hereinbefore 
explained, the Alabama bar examination has not been so validated.
It has yet to be shown, for example, that a prospective civil

6/ "It can always be argued that an applicant should 
pass with a 69 rather than a 70, but if it is con­ceded that the public is entitled to some protection 
as to who is qualified to hold himself out as a 
lawyer, then it becomes a matter of degree —  of 
drawing a line. Under Alabama law the discretion 
is placed in the Alabama Bar Commission under the review of the Alabama Supreme Court." Original 
Brief of Appellees, p.31.

15



rights lawyer will likely be unsuccessful in his practice
because he performs poorly on business corporations, taxation,
the uniform commercial code, and wills and trusts sections of
the bar examination. The more relevant concern here should be
that such a hypothetical applicant would not be examined, under
current policies of the defendant bar commissioners, in the one
field in which he intends to specilize. Any attempt, therefore,9/
to establish that the Alabama bar examination is content valid 
must fall, for content validity studies" . . . should be accom­
panied by sufficient information from job analyses to demonstrate 
the relevance of the content." 29 C.F.R. §1607.5(a). No such 
job analyses have been made by the defendants in this case.

The defendants' contention that the number of blacks taking 
the Alabama bar examination is statistically insignificant to 
establish its racially disparate impact is totally devoid of 
support in the record of this case. For their responses to

2/

1/ Most of the bar examiners are themselves specialists in one or more fields of law. Many of them limit their practice to various phases of commercial/property/probate law.
(A.370, 398, 378, 444, 391, 437, 402). As such they seldom have professional contacts with black lawyers. Id.

8/ if such a hypothetical applicant scored less than seventy 
in these four areas of the Alabama bar examination, he 
would fail the exam. (A . 84j .

9/ Content validity is established by showing that the test
is composed on items which are relevant to and representative 
of the field which it is supposed to cover.

16



requests for admissions reflect that in the two year period 
preceding the commencement of this action (June 1970-June 1972),

wsome forty (40) blacks took the Alabama bar examination. (A.144) 
Only ten of those (25%) passed the examination. Id. The pass 
rate for whites during the same period was 74.7%. (A.119-128) .
In fact, the defendants have admitted that the pass rate for 
whites on the bar examination is three times that of blacks.
(A.143-144) .

In summary, the district court erred by granting summary 
judgment to the defendants on the testing issue, because they 
were not "entitled to judgment as a matter of law." In point 
of fact, the relevant decisional law, to the extent that discovery 
had been completed, the facts were otherwise undisputed, and the 
permissible inferences to be drawn from the undisputed facts 
were non-conflicting in nature, then summary judgment on the 
testing issue should have been granted for plaintiffs-appellants.

10/ Compare, for example, Baker, supra, where this Court upheld 
a trial court's finding of disparate impact arising out of an examination administered to only eighteen blacks.

17



C. Summary Judgment Is An Inappropriate Methodof Disposing of a Case Such as the One At Bar.

In Sinderman v. Perry, 430 F.2d 939 (5th Cir. 1970), aff'd 408 
U. S . 593 , Judge Clark stated the relevant consider a t ions with respect to 
summary judgment:

"Summary judgment should be granted only when the 
truth is clear, where the basic facts are undisputed 
and the parties are not in disagreement regarding material factual inferences that may be properly 
drawn from such facts." Id_. , at 943

Judge Clark further observed that while this Circuit has, on occasion 
" . . . affirmed the use of summary judgment to dispose of con­
stitutional issues, [citing cases] this form of disposition is 
often inappropriate in cases involving issues of far-flung import."
Id. On each of the considerations referred to by the Sinderman 
court, summary judgment must fail in the instant case. The trial 
judge candidly conceded in his memorandum opinion that he was un­
certain of ". . . what the factual allegations are and what the

*2/denials are." (A .458) . This realization alone should have moved 
the court to deny summary judgment - or at the very least, to 
postpone it until a pretrial could be'had and the issues delineated. 
Had the latter procedure been followed, for example, the district 
court may well have passed, favorably or otherwise, on plaintiffs’ 
claim that the bar examiners arbitrarily grade papers (A.9, }[2 5D) - 
which was not disposed of in the district court's summary judgment 
opinion. In a situation where a trial court is unfamiliar with 
all of the claims of the parties, a summary procedure which disposes

iy The defendants never filed an answer to the complaint.

18



of the entire case is, at best, ill-advised.
This case is one in which states of mind—  intent, motiva­

tion, design must be taken into account. This is particularly 
true of the allegations of racial discrimination in the adminis­
tration and grading of bar examinations. The evidence indicated
that bar examiners, despite their affidavits attesting to a policy 
of anonymity, are amply possessed of the opportunity to dis­
criminate, (A.93). In fact, one of the bar examiners has ad­
mitted that on two occasions, he has known both the name and the 
identification number of examinees whose papers he had yet to
grade. (A.370). A resolution of whether the bar examiners have
ever utilized this opportunity to discriminate necessarily re­
quires inquiry into their state of mind, their intent, motivation 
and, additionally, it may require credibility assessments.

The decisional law applicable to a grant of summary judg­
ment under these facts is plain and unamibiguous:"Where state of 
mind is to be measured it cannot be resolved on summary judgment. 
Riley-Stabler Construction Co. v. Westinghouse, 401 F.2d 526 
(5th Cir., 1968); Accord, Rauls v. Daughters, 491 F.2d 141 (5th 
Cir., 1974); Greenberg v. General Mills Fun Group, Inc., 478 F.2d 
254 (5th Cir., 1973).

I t

"The court should be cautious in granting a motion 
for summary judgment when resolution of the disposi­tive issue requires a determination of state of mind. 
Much depends on the credibility of witnesses testify­ing as to their own states of mind. In these circum­
stances, the [court] should be given an opportunity 
to observe the demeanor, during direct and cross 
examination, of the witnesses whose states of mind 
are at issue." Croley v. Matson Navigation Co., 434 
F .2d 73, 77 (5th Cir., 1970).

19



See also, 10 Wright and Miller, Federal Practice and Procedure 
(Civil) §2732.

Moreover, summary judgment is a singularly inappropriate 
means of disposing of the case at bar because of the multitude 
of conflicting inferences which may be drawn from such undisputed 
facts as may be found in the record. By way of example, the 
fact is undisputed that all applicants for the bar examination 
are required to submit photographs along with their applications.
It is also undisputed that these photographs have never been used 
to identify the persons who actually sit for the examination.
One might just as easily infer 1) that the photograph require­
ment serves no valid purpose, 2) that the photograph requirement 
enables the bar secretary to identify black applicants and there­
after to assign certain identification numbers to them, or 3) that 
the mere existence of the requirement deters non-applicants from 
taking the examination in the name of applicants. The trial 
court reversibly erred by choosing between these conflicting 
inferences in granting summary judgment. We have discussed in 
our original brief, at pp.32-35 the misuse of other inferences 
by the district court, and that discussion is incorporated herein 
by reference.

In addition to the considerations hereinbefore outlined, the 
present case obviously raises constitutional and novel legal issues 
of substantial public import. Sinderman, supra. In Alabama, 
where one out of every four citizens is black, less than one out 
of every 100 lawyers is black. For whatever reason, usually only 
two blacks, per semi-annual examination,are rated by the all-white

20



board of bar examiners as being qualified to practice law in 
Alabama. In the meanwhile, hundreds of new white lawyers enter 
the profession annually. When blacks were precluded by law from 
securing a legal education in Alabama, the graduates of the 
University of Alabama's law school were exempt from taking a 
bar examination. In short, this case is pregnant with live 
constitutional issues of greatest public importance, and the 
district court's resort to summary procedures to preclude an 
airing of these issues invites reversal by this court. Kennedy 
v. Silas Mason Co., 334 U.S. 290, 256-57 (1948); Heyward v. Public 
Housing Administration, 238 F.2d 689, 698 (5th Cir., 1956).

- 21 -



Ill

THE COURT BELOW ERRED IN HOLDING THAT CODE OF 
ALABAMA, TITLE VII, SECTIONS 26 AND 36 BAR 
THE CLAIMS OF PLAINTIFFS EDDIE JONES AND 
THOMAS GRAY AND DISMISSING THEM AS PARTY 
PLAINTIFFS.

Plaintiffs-Appellants in the Opening Brief and Reply Brief 
have fully set forth the legal and factual bases in support of the 
argument that the district court erred in dismissing Eddie Jones 
and Thomas Gray as party plaintiffs. Opening Brief; Statement 
of Facts at pps. 4-6; Argument at pps. 46-51; Reply Brief at 
pps. 11-19.

Since this issue has been extensively briefed, appellants 
need here simply point out the gross factual misrepresentation 
made by appellees as to the claim of appellant Gray at pps. 48-49 
of Appellees brief. Appellee therein asserts that the unsuccessful 
application filed by plaintiff Gray for a fourth sitting on the 
bar examination in February 1972 (within the one year statutory 
period applied to this case, Reply Brief at p.46), "was not 
presented to or considered by the trial court" (Appellees Br. 
at 48). Appellees then go on for one and a half pages to assert 
that the dismissal of Gray [although he applied as did Jones to 
sit for the examination within the period of limitations] "cannot 
now be urged as error . . .  for the first time on this appeal" 
(Appellees br. at 48). Quite the contrary. Plaintiffs-appellants
did specifically bring to the district court's attention by way 
of a formal motion filed on March 29, 1973 to reconsider the 
dismissal of Gray as a party plaintiff, that plaintiff-appellant 
Qray had petitioned the Board of Examiners for a fourth sitting

22



on the February 1972 bar examination, which petition was denied 
on February 10, 1972, a point in time within the one year statute 
of limitations applied to this case (R.236-37). The motion was 
specifically denied by the district court in an order filed 
April 23, 1973 (App.254; R.359). Appellees are wrong when they 
represent to this Court that Plaintiffs-Appellants failed to so 
inform the district court. The record before this Court is 
also clear that plaintiff-appellant Jones was denied a fourth 
' sitting on the bar examination within the one year statutory 
period and these facts by formal motion were brought to the 
attention of the district judge who denied the motion to reconsider 
his dismissal as party plaintiff (R. 146,229).

Jones and Gray contend that their petitions were arbitrarily 
denied. It was clear error for the district court to dismiss 
them as not having standing to raise the issue of whether the 
defendants act arbitrarily and capriciously in deciding who will 
be permitted a fourth sitting on the bar examination. (App.463-64) .

23



IV
THE COURT BELOW ERRED IN DISMISSING THE ORGANIZATIONAL PLAINTIFF, THE ALABAMA BLACK LAWYERS’ ASSOCIATION, AS A PARTY 
PLAINTIFF FOR LACK OF STANDING.

The allegations in the Complaint and amendments thereto 
as to the Alabama Black Lawyers' Association ("ABLA") are set 
forth in the Statement of the Facts. Appellants' Opening Brief 
at pp. 6-8 . The organizational interest of the "ABLA" in this 
litigation and arguments in support of standing are set forth 
at Appellants' Opening Brief at pp. 42-45. Additionally, since 
there are at least five named plaintiffs who have standing to 
raise the issues in this litigation, the "ABLA" also has standing 
since its dismissal in no way avoids the resolution of any of 
the constitutional issues herein raised. California Bankers 
Assn, v. Shultz, 416 U.S. 21, 44-45 (1974); Doe v. Bolton, 410 
U.S. 179 (1973); N.A.A.C.P. v. Button, 371 U.S. 415 (1963).

The "ABLA" through discriminatory practices of the appellees 
has its membership limited and suffers a loss of revenue, which 
restricts its efforts to further the programs of the organization. 
The organization seeks to aid its members in developing partner­
ships, firms, and professional associations. The practice of 
defendants-appellees in severely restricting the number of black 
attorneys in the State of Alabama has a significant if not 
determinative effect on the ability of the "ABLA" to continue 
to exist as a viable organization. United States v. Students 
Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 
(1973).

24



V

ON REMAND THIS CASE MUST BE HEARD
BY A DIFFERENT JUDGE

Since further proceedings will be necessary on remand 
with regard to the merits of this action, this Court must 
determine whether the case on remand should be heard by a 
different district judge.

In deciding whether a new judge should be directed to 
hear this case on remand, the Court must look to five sources 
involving somewhat different standards —  28 U.S.C. § 144, 28 
U.S.C. § 455, the Code of Judicial Conduct, the constitutional 
requirement of due process, and this Court's supervisory powers. 
Plaintiffs maintain that, under each and every one of these 
standards, it would be inappropriate for the further proceedings 
in this case to be conducted by the district judge to whom it 
was originally assigned. Inasmuch as the decision below must 
in any event be reversed and remanded on other grounds, this 
Court should apply to the question of recusal a more liberal 
standard than might be appropriate in a case in which an other­
wise valid judgment is attacked solely because of a judge's 
failure to disqualify himself.

(1) Section 144
Section 144, 28 U.S.C., provides in pertinent part:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affi­davit that the judge before whom the matter is 
pending has a personal bias or prejudice either 
against him or in favor of any adverse party, such 
judge shall proceed no further therein, but another

25



judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the 

reasons for the belief that bias or prejudice 
exists, ....

As the original panel in this appeal noted, there is a wide­
spread controversy among the circuits as to when the contents 
of an affidavit are legally sufficient. See Parrish v. Board 
of Commissioners, 505 F.2d 12 (5th Cir. 1974). The Courts of 
Appeals are now divided as to whether section 144 requires (a) 
that the facts alleged demonstrate that the judge is biased in 
fact, or (b) that the alleged facts create an appearance of bias 
rendering reasonable the affiant's belief. See generally Note, 
Disqualification of Judges for Bias in the Federal Courts, 79 
Harv. L. Rev. 1435 (1966); Note, Disqualification of a Federal 
District Judge for Bias— The Standard Under Section 144, 57 
Minn. L. Rev. 749 (1973); Frank, Disqualification of Judges: In 
Support of the Bayh Bill, 35 Law and Contemp. Probs. 43, 58-60 
(1970).

This question was raised and resolved over half a century 
ago in Berger v. United States, 255 U.S. 22 (1921). Berger
recognized that the provision that the affidavit must state 
"the facts and the reasons for the belief" entailed an enforce­
able requirement that the contents of the affidavit bear some 
minimal relation to the affiant's belief that the judge is biased.

Upon the making and filing by a party of an 
affidavit under the provisions of section [144], of necessity there is imposed upon the 
judge the duty of examining the affidavit to 
determine whether or not it is the affidavit specified and required by the statute and to determine its legal sufficiency. 255 U.S. at 
32.



But the requireqment of "legal sufficiency" did not mean the 
affidavit must prove the judge to be biased, for nothing in 
section 144 requires that the judge actually be biased. Section 
144 requires, rather, a good faith belief by the party, and it 
is to substantiate the existence of this belief that the affi­
davit is required. Accordingly, the standard set by Berger is 
that the affidavit

must give fair support to the charge of a bent 
of mind that may prevent or impede impartiality 
of judgment. The affidavit of defendants has 
that character. The facts and reasons it states are not frivolous or fanciful, but substantial and formidable, and they have relation to the attitude of Judge Landis's mind towards the 
defendants. 255 U.S. at 33-34.

Thus the Supreme Court sustained the affidavit in Berger without 
deciding, or considering, whether the challenged judge was 
biased in fact.

The Court noted a variety of reasons for this affidavit 
procedure and its construction of section 144. Congress, it 
reasoned, was concerned

that the tribunals of the country shall not only be 
impartial in the controversies submitted to them, 
but shall give assurance that they are impartial 
___ 255 U.S. at 35-36.

The Court repeatedly emphasized that the statute did not permit 
the judge to pass on "the reality and sufficiency" of the facts 
alleged in the affidavit, "the truth of its statements," or 
"the question of his own disqualification." 255 U.S. at 32-33. 
This limitation clearly makes no sense if the judge is to decide 
whether the affidavit proves he is actually prejudiced. The 
Court expressly approved the actions of a district judge in an

27



earlier case in deciding to recuse himself under section 144 
"without reference to the merits of the charge of bias." 255 
U.S. at 31. Justice McReynolds, although dissenting on the 
facts, agreed with the majority as to the purpose and procedures 
under section 144. The affidavit, he explained, must state 
facts and reasons "in order that the judge or any reviewing 
tribunal may determine whether they suffice to support honest 
belief in the disqualifying state of mind." 255 U.S. 42.
Section 144 was intended to go beyond merely barring judges who 
were actually biased.

Of course, no judge should preside if he enter­tained actual personal prejudice towards any 
party, and to this obvious disqualification 
Congress added honestly entertained belief of 
such prejudice when based upon fairly adequate 
facts and circumstances. 255 U.S. at 43.
(Emphasis added)

So long as the facts alleged are sufficient to render reasonable 
the party's belief that the judge is biased, recusal is mandatory.

The history of recusal motions in this Circuit does not 
reveal any deliberate departure from Berger. This Court's 
decision in Henry v. Speer, 201 Fed. 869 (5th Cir. 1913), pre­
saged Berger and adopted a similar standard. The Court there 
held that the alleged facts need only be the type which "tend 
to show the existence of a personal prejudice or bias." Section 
144 was said to relieve the judge "from the delicate and trying 
duty of deciding upon the question of his own disqualification," 
i.e., of whether he was actually biased. 201 Fed. at 872. The 
next decision, some 26 years later, stated two apparently 
inconsistent standards— that the facts alleged must "show good

28



cause for recusation within the letter and intent of the statute
and "[show] the personal prejudice of the judge against the 
defendants." Simmons v. United States 89 F.2d 591, 592-3 (5th
Cir. 1937). Simmons, which referred to Berger but not Speer, 
was followed by Beland v. United States, 117 F.2d 958 (5th Cir. 
1941), which made no pretense of following or reference to either. 
Beland asserted the affidavit must state facts "showing the 
personal bias or prejudice of the judge." 117 F.2d at 960.

The more recent decisions of the Court give little guidance 
as to the standard under section 144, but articulate more 
clearly the underlying policies regarding recusal. In United 
States v. Womack, 454 F.2d 1337 (5th Cir. 1972), the Court held 
an affidavit legally sufficient under section 144, but did not 
hold that the district judge was actually biased or that the 
affidavit had proved that he was. In United States v. Roca — 
Alvarez, 451 F.2d 843 (5th Cir. 1971), rehearing granted on other 
grounds 474 F.2d 1274 (5th Cir. 1973), the Court held an affi­
davit legally insufficient because the facts alleged gave "no indi­
cation" of bias. Whether the facts alleged need only "indicate" 
bias, 474 F.2d at 848, or whether this term was mere hyperbole, 
is not apparent from the court's opinion.

While these decisions leave unclear the legal standard 
set by section 144, the applicable policies has been unambiguously 
announced in other contexts. In Adams v. United States, 302 
F. 2d 307 (5th Cir. 1962), the defendant sought to set aside a 
verdict on the ground that the judge had served as the United 
States Attorney during a time when defendant's case was being

29



-*uS

investigated, a fact apparently unknown to the judge and defen­
dant during the trial. The issue arose under § 455, which does 
not limit the judge's role in the manner of § 144 and which 
then set a less demanding substantive standard. Despite this, 
the majority in Adams concluded that, had he actually known 
the facts, recusal would have been appropriate "in the interest 
of making absolutely certain that the trial judge acts with 
complete impartiality." 320 U.S. at 310. Judge Brown, dis­
senting, adopted a similar prophylactic approach, insisting 
that the defendant was entitled to "a trial by a judge who not 
only is_ fair and impartial, but who meets the requirements of 
the statutory policy designed to assure impartiality and the 
appearance of it.“ 302 F.2d at 314 (Emphasis added). Neither
the majority nor the dissenting judge expressed any concern 
that the district court judge was biased in fact.

Similarly in United States v. Columbia Broadcasting System, 
497 F.2d 107 (5th Cir. 1974), a contempt proceeding, the Court 
concluded that the judge against whom the alleged contempt 
occurred "may well have had the unique ability to be an impartial 
judge in the circumstances." 497 F.2d at 110. The Court con­
cluded, however, that the contempt charges should be tried 
before a different judge in order "to protect the judicial pro­
cess from any suspicion of bias." Id.

The recondite niceties of contempt law coupled 
with the strange milieu of a judge passing on the 
clarity of his own orders, which had to be sub­stantiated largely by his own legal staff, should 
make us particularly sensitive to the demands of 
justice, and more particularly, to the appearance 
of justice. The guarantee to the defendant of a

30



totally fair and impartial tribunal, and the pro­
tection of the integrity and dignity of the judicial process from any hint or appearance of 
bias is the palladium of our judicial system.

497 F.2d at 109. This conclusion was reached, not because of
the special procedural protections of section 144, but under
the court's supervisory powers and by analogy to the constitutional
guarantee of a fair trial. See Mayberry v. Pennsylvania, 400
U.S. 455 (1971).

The other circuits are widely divided on this question, 
a problem complicated by a paucity of discussion as to the 
differences in the standards and a certain variation over time. 
Judged by their latest decisions, six circuits appear to adhere 
to the Berger standard. The Second, Third, Seventh, and Ninth 
Circuits, quoting Berger, have held an affidavit to be suffi­
cient if it gives "fair support to the charge of a bent of mind

1 2 /
that may prevent or impede impartiality of judgment." The
Third Circuit expressly noted that this was different than

11/requiring that the affidavit prove actual bias. The First and
District of Columbia Circuits have rephrased Berger in their
own language, clearly rejecting any requirement that prejudice14/
be actually proven. The Sixth, Eighth, and Tenth Circuits
12-/ United States v. Tropiano, 418 F.2d 1069, 1077 (2d Cir. 1969);
United States v. Thompson, 479 F.2d 1072, 1073—4 (3d Cir. 1973); 
United States v. Ming, 466 F.2d 1000, 1004 (7th Cir. 1972); Botts 
v. United States, 413 F.2d 41 (9th Cir. 1969).
13/ Government of Virgin Islands v. Gereau, 502 F.2d 914, 932 
(3d Cir. 1974).
14/ In re Union Leader Corporation, 292 F.2d 381, 389 (1st Cir. 1961) (affidavit need only "indicate" possible bias); Gallarclli 
V. United States, 260 F.2d 259, 261 (1st Cir. 1958) (facts need only be of the sort which "tend to show" bias); Whitaker v.
McLean, 118 F.2d 596 (D.D.C. 1941) (Judge's remarks need only "evidence" bias); Mitchell v. Sirica, 502 F.2d 375, 381-3 (D.C.
Cir. 1974) (MacKinnon, J. dissenting) cert, den. __ U.S. __ (1974).

- 31 -
r



have chosen to disregard Berger and now require that the affiant
15/allege facts which demonstrate that bias exists. The majority 

view, however, is that articulated by the Second Circuit in 
Hodgson v. Liquor Salesmen's Union, 444 F.2d 1344, 1348 (2d Cir.
1971), that "the purpose of the section is to avoid the appearance 
as well as the actual existence of bias or prejudice."

Plaintiffs maintain that Berger was correctly decided
and is still good law. Section 144 was adopted in 1911 as part
of the Judiciary Act of that year. Prior to 1911 the question
of recusal was largely in the discretion of the judge, who was
only obliged to act if facts were adduced proving disqualifica- 

16/tion. Congressman Cullop, the author of section 141, explained
that it was intended to serve two purposes. First it was to
prevent any litigant from having his case tried before a judge
whom he honestly believed to be biased.

[T]he litigant ought to have an opportunity to 
have his case tried before a court that he believes to be fair and impartial. It is unfair to litigants to be compelled to come at any time 
before a court where they think they cannot have 
a fair trial. It is a reproach to the admini­
stration of justice to require them to do so ....
I can conceive no greater wrong imposed upon a 
citizen, however high or humble, than to compel him to submit his case, an important matter to him, to a court in which he fears justice will 
not be administered to him. 42 Cong. Rec. 306 
(1910).

JL 5/ United States v. Bell, 351 F.2d 8 6 8, 879 (6th Cir. 1965) (affidavit must "show that there exists bias and prejudice"); 
Pfizer v. Lord, 456 F.2d 532, 537 (7th Cir. 1972) (affidavit must "demonstrate this bias or prejudice" and show the "validity 
of petitioner's conclusion of bias"); Antonello v. Wunsch, 500 
F.2d 1260, 1260 (10th Cir. 1974) (affidavit must "state facts
showing personal bias and.prejudice").
16/ See 1 Stat., ch. 36, p. 279, § 11; 3 Stat., ch. 51, p. 643.

32



Second, section 141 was designed to take from the judge involved 
the discretion he had hitherto enjoyed to decide whether he 
was qualified.

[W]here it is a personal matter to the judge, a 
charge against him, it ought not be left to his 
discretion, and I submit that if he is a con­scientious man, he does not want it left to him.It ought to be taken away from him and taken away from him by the lav/. When a charge is made against the qualification of any judge that he is biased, 
that he is taking sides one way or the other, that question ought not be left to him to be passed upon. 
Judges are heirs to the same frailties that other men are, and they ought not be required to pass upon and decide questions personal to themselves, and as a delicate question they ought not want to 
pass upon such a question as that. Id.

Representative Cullop later expressly rejected the suggestion
that the allegedly biased judge would be able to decide if the
reasons stated in the affidavit proved he was prejudiced.

Mr. MANN. It has been suggested here by Members 
that under this amendment offered by the gentleman, 
the judge would have a discretion in passing upon the matter, and he would have the right to examine and ascertain whether the reasons were sufficient.
Now, that is plainly not the purpose of the gentle­
man from Indiana. is there any reason why it should 
be left in uncertainty?
Mr. BENNETT of New York. Not at all.
Mr. MANN. When you undertake to say that a man shall file an affidavit of prejudice, and give 
the reason for his prejudice, is there not some 
question as to whether that does not permit the judge to pass upon the reasons? Otherwise, what is 
the object of giving the reason?
Mr. CULLOP. No; because the very provision of the statute is that he shall proceed no further. 42 
Cong. Rec. 2629.

In the light of this legislative history, Berger correctly con­
cluded that a mere appearance of bias was sufficient under 
section 144.

31



Nothing that the Supreme Court has said since Berger
■*»calls into question the vitality of that decision. In the 

intervening years the constitutional standard has grown prog­
ressively more strict, and now requires recusal under circum­
stances far short of actual bias. See pp. 34—37, infra.
Nor has Congress given any indication that it thought Berger 
erroneous or prefers a more lax approach; on the contrary, ^ ^  
Congress readopted section 144 in 1948 in the face of Berger, 
and last year amended section 455 to set disqualification 
standards far more strict than had hitherto existed under that 
provision. See pp. 37-41, infra.

(2) The Constitutional Standard
At least since Upper Dublin v. Germantown, 2 Dallas (U.S.) 

213 (1793), the Supreme Court has enforced certain minimal
constitutional standards as to when due process requires that 
a judge not sit in a proceeding. /

The seminal case in modern times is Turney v. Ohio, 273 
U.S. 510 (1927). In Turney, the defendant in a criminal case
was tried before a judge who received, as part of his compensa­
tion, a portion of all fines collected. The Court held that due 
process of law guaranteed the defendant a trial before a judge 
who had no such interest in the outcome of the proceeding. The 
Court did not rest its decision on a finding that the judge 
was actually prejudiced, but on the ground that the procedure 
offered "a possible temptation to the average man." 273 U.S. at

u T  62 Stat. 898

34



532. 349 U.S. 133 (1955),In re Murchlson/held that a judge who had sat as a one- 
man grand jury could not also try a case of alleged contempt of 
that grand jury, since there was a danger that his responsi­
bilities as judge would be tainted by his interest as grand 
juror. In reversing Murchison's conviction, the Supreme court 
did not rule the judge had been biased in fact, but reasoned 
"[a] fair trial in a fair tribunal is a basic Requirement of 
due process. Fairness, of course, requires an absence of actual 
bias in the trial of cases. But our system has always endeavored 
to prevent even the probability of unfairness," 349 U.S. at 133.

The first enunciation of the "appearance of bias" test 
came in a non-constitutional decision, Public Utilities Com­
mission v. Poliak, 343 U.S. 451 (1952). That case involved a
challenge to the practice of playing radio programs over loud­
speakers in public buses in Washington, D. C. Mr. Justice 
Frankfurter, declaring himself "strongly enraged as a victim" 
of the practice, declined to participate in the case. He 
explained, "when there is ground for believing that such uncon­
scious feelings may operate in the ultimate judgment, or may 
not unfairly lead others to believe they are operating, judges 
should recuse themselves. They do not sit in judgment. They 
do this for a variety of reasons. The guiding consideration 
is that the administration of justice should reasonably appear 
to be disinterested as well as to be so in fact." 343 U.S. at 
466-67.

35



This principle found its first constitutional application 
in Commonwealth Coatings Corp. v. Continental Casualty Co.,
393 U.S. 145 (1960). In that case, an arbitrator, unbeknownst 
to one of the parties, had had substantial business dealings 
with the other party prior to hearing the case. Inasmuch as 
the arbitration had occurred pursuant to a federal statute, 
due process was at issue, and the Supreme Court held that as 
a matter of "constitutional principle" such a financial relation­
ship with a party precluded an arbitrator from adjudicating a 
case just as it would bar a judge or a juror. The Court found 
its decision in part "on the premise that any tribunal permitted 
by law to try cases and controversies not only must be unbiased 
but also must avoid even the appearance of bias." 393 U.S. at 
150.

Three years later the same principle was applied to the 
evolving standards of fairness regarding summary contempt 
proceedings. In Mayberry v. Pennsylvania, 400 U.S. 455 (1971), 
the defendant was held in contempt by a judge whom he had 
personally attacked throughout the course of the trial. Noting 
the possibility that the attacks might have influenced the 
judge's attitude toward Mayberry, the Supreme Court held that 
the case had to be retried before a new judge since "justice 
must satisfy the appearance of justice," 400 U.S. at 465. See 
also Johnson v. Mississippi, 403 U.S. 212 (1971).

This guiding constitutional principle that a judge must 
not sit where there is a mere appearance of bias applies a_ 
fortiori to federal judges over whom the appellate courts have

36



special supervisory responsibilities.

(3) The Code of Judicial Conduct and 5 455
That this case should be heard on remand by a new district 

judge is also dictated by the Code of Judicial Conduct and by 
28 U.S.C. § 455.

Both the Code and section 455 expressly adopt an "appear­
ance of bias" standard similar to that applied by several 
circuits under section 144 and enunciated in Commonwealth Coatings. 
The original Canons of Judicial Ethics, first adopted in 1924,
called on judges not to participate in certain specified circum-

18/stances and further provided in Canon 4 that "[a] judge's 
official conduct should be free from impropriety and the appear­
ance of impropriety." The A.B.A. Committee on Professional 
Ethics construed Canon 4 to apply to decisions by a judge whether 
to sit in a particular case, and stated:

A judge should studiously avoid wherever possible 
every situation that might reasonably give rise to 
the impression on the part of litigants or the public that his decisions were influenced by favoritism ....
The responsibility is on the judge not to sit in a case unless he is both free from bias and from the 
appearance thereof. 1 9 /

This construction of Canon 4 was expressly adopted by the new 
Code of Judicial Conduct approved by the A.B.A. House of Delegates 
in 1972. Canon 3(C)(1) of the Code provides: that "[a] judge
shall disqualify himself in a proceeding in which his impartiality

18/ see, e.g.. Canon 13 (near relative a party). Canon 29 (case 
in which judge has a personal interest).
ISl/  Formal Opinion 200, January 27, 1940, published in A.B.A. Opinions of the Committee on Professional Ethics.



might reasonably be questioned." The Reporter's Notes state;
The disqualification section begins with a 

general standard that is the policy for dis­
qualification— that is, "A judge should 
disqualify himself in any proceeding in which his impartiality might reasonably be questioned."The general standard is followed by a series of 
four specific disqualification standards that the Committee determined to be of sufficient importance to be set forth in detail. Although 
the specific standards cover most of the situations 
in which the disqualification issue will arise, the general standard should not be overlooked.Any conduct that would lead a reasonable man 
knowing all the circumstances to the conclusion 
that the judge's "impartiality might reasonably be questioned" is a basis for the judge's dis­
qualification. Thus, an impropriety or the appearance of impropriety in violation of Canon 
2 that would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls within the scope of the general 
standard, as does participation by the judge in 
the proceeding if he thereby creates the appear­
ance of a lack of impartiality. 2 0/

The Reporter's Notes expressly indicate that this "appearance
21/of bias" standard also derives from Commonwealth Coatings. The 

decision to include this language appears to stem in part from 
the contemporaneous legislative proposals of Senator Bayh, which 
in turn were an outgrowth of the Seriate's refusal to confirm 
the nomination of Judge Haynsworth. See Frank, Disqualification 
of Judges: In Support of the Bayh Bill, 35 Law and Contemp.

227Probs. 43, 64 (1970)'.
The new Canon 2, in language similar to the original Canon 

4, provides in more general terms that "A judge should avoid

2Sl/ Reporter's Notes to Code of Judicial Conduct, pp. 60-61.
21/ Id.
2 2/ The background and importance of the "appearance of bias" 
standard is discussed at pp. 58-60.

30



impropriety and the appearance of impropriety in all his activ­
ities." The Supreme Court apparently regards the enforcement 
of Canon 3 as within the supervisory powers of the appellate 
courts. See Gay v. United States, 411 U.S. 974 (1973) (Opinion
of Justice Douglas).

The "appearance of bias" standard of Canon 3(C)(1) was
incorporated by Congress in 28 U.S.C. § 455, as amended in 1974,
Public Law 93-512; 88 Stat. 1609. Section 455(a) provides:

Any justice, judge, magistrate, or referree in 
bankruptcy of the United States shall disqualify 
himself in any proceeding in which his imparti­
ality might reasonably be questioned.

Both the House and Senate reports stated that the purpose of the
1974 amendment was to "conform" section 455 to the standard of
the new Code of Judicial Conduct and to render "the statutory23/
and ethical standard virtually identical." The House and 
Senate reports explained subsection (a) as follows:

Subsection (a) of the amended section 455 con­
tains the general, or catch-all, provision that a 
judge shall disqualify himself in any proceeding 
in which "his impartiality might reasonably be questioned." This sets up'-an objective standard, rather than the subjective standard set forth in 
the existing statute through use of the phrase 
"in his opinion." This general standard is de­signed to promote public confidence in the impar­
tiality of the judicial process by saying, in 
effect, if there is a reasonable factual basis for doubting the judge's impartiality, he should 
disqualify himself and let another judge preside
over the case. 24/

22/  S. Rep. 93-419, 93rd 
93-1453, 93rd Cong., 2nd

Cong., Sess.,
1st Sess., 
p. 3. P- 3; H. Rep.

24/ S. Rep. 93-419, 93rd 93-1453, 93rd Cong., 2nd
Cong., 
Sess.,

1st Sess., 
p. 5. P- 5; H. Rep.

39



Both the Chairman and Reporter of the ABA Committee which had
drafted the Code stressed in testimony before the Senate

25/Committee the importance of subsection (a). Representative 
Kastenmeier, the House sponsor of the 1974 amendment, emphasized 
that subsection (a) was one of the two "principle differences" 
between the old § 455 and the new. The new law, he said, would 
stiffen the rule by requiring a judge to "disqualify himself 
in any proceeding in which his impartiality might reasonably 
be questioned."

Section 455 was expressly intended to overturn, inter 
alia, this Court's decision in Edwards v . United States, 334 
F. 2d 369 (5th Cir. 1964), that judges have a "duty to sit"

2\Uunless actually biased. Since the award of summary judgment 
must be reversed on the merits and the case remanded for further
HZ' Hearing on S.1064 Before the Subcommittee on Improvements 
in Judicial Machinery of the Senate Judiciary Committee, 93rd 
Cong., 1st Sess., 80, 94, 99, 110, 111 (1973).
26/ 120 Cong. Rec. H. 10729 (daily ed., Nov. 18, 1974).Congress, of course, understood that section 455 cound be enforced by motion or otherwise. Rep. Kastenmeier stated:

The judge may be petitioned to disqualify himself. 
Failing this, he may be admonished, he may be 
reviewed, he may be mandamused, and he may be 
reversed. The chief judge of the circuit may 
remove him from a particular case ....

Id., p. H. 10730. The most reknowned recent case in which a 
motion under § 455 was entertained by a court was Laird v. Tatum, 
409 U.S. 824 (1972) (Rhenquist, J.).
27/ '"phis language [§ 455(a)] also has the effect of removing 
the so-called 'duty to sit' which has become a gloss on the exist­ing statute. See Edwards v. United States, 334 Fed.[2d] 360.Under the interpretation set forth in the Edwards case, a judge, faced with a close question on disqualification, was urged to 
resolve the issue in favor of a 'duty to sit.' Such a concept has 
been criticized by legal writers and witnesses at the hearings were unanimously of the opinion that elimination of this 'duty to sit' would enhance public confidence in the impartiality of the judicial system." S. Rep. No. 93-419, 93rd Cong., 1st Sess., p. 5 (1974).

40



proceedings, those future proceedings must be conducted by a
judge qualified to sit under the Code and section 455. Both
the Code and section 455 are also applicable to the instant
appeal insofar as it attacks that award because the district
court judge should have disqualified himself. The Code itself
was adopted by the House of Delegates of the ABA in August,
1972, four months before this action was commenced. Plaintiffs
filed the requisite affidavit seeking disqualification on January
19, 1973, and the district judge declined to recuse himself on
March 22, 1973. On April 6, 1973, the Judicial Conference of
the United States adopted the Code for federal judges. Not
until four months later did the district court decide the motion
for summary judgment. Clearly the Code's standard must be
applied in deciding whether the district judge was obligated to
recuse himself. Although section 455 was adopted after the
completion of proceedings below, application of that statute
is required on appeal since such application would not involve
"manifest injustice." Bradley v. School Board of the City of

2 fi/Richmond, 416 U.S. 696, 717 (1974).

(4) Application of the Standards to this Case
Although the district judge, in declining to recuse him-

22/self, did not issue an opinion, the court's remarks at the
28/ Section 2 of Public Law 93-512 provides "This Act shall not apply to the trial of any proceeding commenced prior to the date of this Act, nor to the appellate review of any proceeding which 
was fully submitted to the reviewing court prior to the date of 
this Act." This limitation is inapplicable to the instant case 
since there has not yet been a trial in this action and the appeal 
will not be "fully submitted" until the filing of Appellee's 
Supplemental Brief in August, 1975.
29/ Appendix, p. 134-135.

41



hearing of December 22, 1972 make it clear that he applied the 
wrong standard. In response to a question regarding his attitude 
toward certain witnesses, the judge indicated he had decided not 
to recuse himself because in his judgment he was not actually 
prejudiced.

THE COURT: But I do not think I would have anyprejudice or bias about that matter. Certainly 
—  or any other matter for that matter, frankly.
I have thought about the matter thoroughly and I 
don't think that there is any reason why I can't 
fairly judge this case. 20/

This is the bias in fact standard rejected by Berger and a 
majority of the circuits. Moreover, the district judge indicated 
that while there might be an appearance of bias, he had a legal 
duty to sit.

THE COURT: ... I will have to say that I decided
in cases earlier this week 31/ that these courts 
have been very reluctant about letting judges recuse themselves and I have really changed my attitude about it in the last two or three weeks. Heretofore I had felt that a judge should recuse 
himself very quickly because it made the court 
appear more fair, but there are other obligations 
that the court owes and I am afraid that I shan't 
recuse myself ... 22/

Transcript of Hearing of December 22, 1972, p. 11.
31/ This reference appears to be to Abbott v. Thetford, No. 
3847-N, M.D. Ala., in which the same district judge declined to 
recuse himself in a minute order dated December 20, 1974. Theorder was not accompanied by an opinion, although the reasons 
for the court's actions were explained in chambers and were essentially those advanced by the defendant therein. "But it 
has been unanimously concluded by the federal court of appeal 
that such discretion should not be exercised lightly and that a 
federal judge has a duty to sit where not disqualified which is 
equally as strong as the duty not to sit where disqualified ... Edwards v. United States." Memorandum in Opposition to Plain­
tiffs' Motion for Recusal, p.2. See also, Rolf, et a1. v. Montgomery Community Action Committee, Inc., et al., No. 4099-N, 
filed July 3, 1973, a recusal opinion by the same district judge 
in which the court recites the "duty to sit" obligation and cites 
Edwards, supra, in support thereof.
32/ id., p. 2.

42



This is, of course, the "duty to sit" expressly rejected by
127Congress in amending section 455.

Application of the correct standard to the facts of the 
instant case clearly requires that this action be heard on 
remand by a different judge.

The following points are discussed at pages 44-54, infra
(a) The Judge's Membership in the Defendant 

Bar Association.
(b) The Judge's Relationship to Prospective 

Witnesses.
(c) The Judge's Friendship With the Defendants.
(d) The Judge's Activities As President of the 

Montgomery County Bar Association.

33/ See p. 40 , supra

43



(a) The Judge's Membership in the Defendant 
Bar Association.

This is an action, inter alia, against the Alabama State
Bar Association. The district judge in this case is now and has
for many years been a member of the defendant bar association.
The record reveals that the judge had been more than a merely
passive - member of the Association. He regularly attended both
the business meetings and social events of the Association

34/over an extended period of time, served on a committee and
3 5/commission of the Association, and discussed bar admission

2h/procedures with the defendant Secretary of the Association.
Even in its original less strict form, section 455

directed a judge to recuse himself when he is "so related to
or connected with any party" as to render it improper to sit
on the case. The old language also required recusal where
the judge has a "substantial interest" in the case, and the new
section 455(b)(3) directs the judge to step aside for any
"interest that could be substantially affected by the outcome
of the proceeding." In Adams v. United States, 302 F.2d 307,
310 (5th Cir. 1962), this Court held:

Although it is doubtless true that the term 
"substantial interest" normally refers to a pecuniary or beneficial interest of some kind, we construe the language broadly enough to 
comprehend the interest that any lawyer has 
in pushing his case to a successful conclusion.

Hearing of December 22, 1972, pp. 18-19, 23.
35/ Id., pp. 11, 19.
36/ î . , p p .  19-20.

44



In the instant case the Association of which the judge was an 
active member of long standing is charged with racial discrim­
ination of a sort which, if proved, would be particularly 
grievous in our constitutional system. It would be only natural 
for any such member to feel that the taint of these allegations ' 
extended to himself, and that a finding of discrimination would 
be a blemish on his own record, if only for having failed to 
meet his professional responsibility as a member to prevent 
such discrimination. The district judge expressed similar 
sensitivities to the allegation that he might have failed to
take appropriate steps to eliminate discrimination in the

3j/Montgomery County Bar Association. Under the circumstances, 
it would clearly be improper for the district judge to hear a 
case against the Bar Association of which he was and is a member. 

The complaint in this action seeks, in addition to 38/
injunctive and declaratory relief, costs and attorneys' fees.

3 9/Although the law regarding counsel fees is in a state of flux, 
the possibility of a substantial award in the event that plain­
tiffs prevail is a real one. Any such award would doubtless be 
paid, directly or indirectly, by the 3400 members of the defen­
dant Bar Association, including the district judge.

32/ Transcript of Hearing of December 22, 1972, p. 13.
38/ Complaint, p. 14.
39/ Until Alyeska Pipeline Service Co. v. Wilderness Society,43 U.S.L.VJ. 4561 (1975), this Court routinely awarded counsel 
fees in § 1983 cases affecting the public interest. Legislation 
to overrule AIycska and authorize such fees in § 1983 cases has already been reported out of the Senate Judiciary Committee. Regardless of the legislative fate of the "private attorney 
general" rule, counsel fees remain awardable under other circum­
stances, such as obdurate obstinacy.

45



Both Canon 3(C)(1)(c) and § 455 (b)(4) forbid a judge to 
sit in a case in which he has, or may have, any "financial 
interest." That interest need not be "substantial"; any finan­
cial interest, "however small," is sufficient to disqualify 
the judge. Canon 3(C)(3)(c); § 455(d)(4). The Reporter notes
that the Special Committee on Standards of Judicial Conduct40/
expressly rejected a "substantial interest" test. The House 
and Senate Committees which approved the amendment to section 
455 were equally deliberate in this regard:

Under subsection (d)(4), a financial interest 
is defined as any legal or equitable interest, "however small". Thus, uncertainty and ambi­guity about what is a "substantial" interest is 
avoided. Moreover, decisions of the Supreme Court in Turney v. Ohio, 273 U.S. 510 (1927) and
Commonwealth Coatings Corp. v. Continental 
Casualty Co., 393 U.S. 145 (1968) support theproposition that the judge's direct economic or financial interest, even though relatively small, in the outcome of the case may well be inconsis­
tent with due process. 41/

Both the Canon and statute would clearly preclude the court 
from hearing a case which might ultimately lead to a judgment 
payable, directly or indirectly, from his own funds.

The problem is one of constitutional magnitude. In Turney 
v. Ohio, 273 U.S. 510 (1927), the Supreme Court held that due 
process precluded a criminal defendant from being tried by a 
judge part of whose salary would be paid out of any fines 
collected. The Court rejected the contention that such a judge 
could sit merely because the amount of the fine levied against

Ml/ Reporter's Notes to Code of Judicial Conduct, p. 65.
41/ S. Rep. No. 93-419, 93rd Cong., 1st Sess., p. 6 ; H. Rep. No. 
93-1453, 93rd Cong., 2nd Sess., p. 6 .

46



Tumey was nominal. It reasoned that, although there are judges
who would not allow such a consideration as $12 
costs in each case to affect their judgment in it, but the requirement of due process of law in 
judicial procedure is not satisfied by the argu­
ment that men of the highest honor and the greatest 
self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man as a judge 
to forget the burden of proof required to convict 
the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused denies the latter due process of law.

273 U.S. at 532. The Court did not hold that Judge Pugh was in 
fact prejudiced against Tumey because of the judge's interest 
in this somewhat negligible fine, but that due process of law 
precluded any judge from sitting where there was such an 
interest regardless of its effect on the mind of the particular 
judge involved. That principle is equally applicable to the 
instant case.

(b) The Judge's Relationship to Prospective Witnesses .
One of the grounds for relief alleged in the Complaint is 

that the defendants, in grading the bar examinations, deliberately 
discriminated against black applicants. The defendants deny 
this allegation. Defendants urge that such discrimination is 
impossible because the Bar Examiners who grade the tests do not 
know the identity of the applicants since the examination 
papers do not disclose the name of the applicant but only a 
coded number. Plaintiffs maintain that the Secretary of the Bar 
Association, who knows the code number of each applicant, has 
disclosed this information to one or more of the Examiners to 
facilitate the alleged discrimination. In view of this dispute

- 47 -



of fact, the resolution of this claim turns in large measure
on the credibility of the two most recent Secretaries of the
Association and of the Examiners themselves.

The district judge stated on the record that both of the
two most recent Secretaries, Reginald T. Hamner and John Scott,

42/were close personal friends. Y7ith regard to Scott, the judge 
stated:•

I think Mr. Scott is an honorable man1 but I don't 
think is memory is infallible. I think he would try to tell you the truth in his answers. 4 3/

The judge also stated that he was personally acquainted with 9
44/of the 12 defendant Bar Examiners. As to these he stated:

[0 ]f the people I know here, I have no reason to think any of them would intentionally misrepresent 
anything. I am sure that there will be some 
mistake in recollection, and I certainly would expect most witnesses to make a few mistakes if 
their recollection of the testimony becomes com­
plicated. 45 /

The judge did not deny he would attach more weight to the testi­
mony of an Examiner whom he knew than to a witness for plaintiffs 
whom he did not, but merely asserted equivocally that "it would 
depend on who the person I do not know [is] , may be, and what 
the evidence shows."

It has long been the law that a judge with personal knowl­
edge of any material facts should not hear the case involved.
In re Murchison, 349 U.S. 133, 138 (1954), the Supreme Court held
that a judge who had sat as a one-man grand jury could not also
42/ Transcript of Hearing of December 22, 1972, pp. 8, 20-21.
4 3/ 1*3 » » P • 21.
44/ I d ., p. 6 .
45/ Id., p. 12.

48



try a prosecution for contempt thereof because he had "personal 
knowledge and impression of what had occurred in the grand jury 
room."

As a practical matter it is difficult if not impossible for a judge to free himself from 
the influence of what took place in his "grand jury" secret session. Ilis recollection of that is likely to weigh far more heavily with 
him than any testimony given in the open 
hearings. 349 U.S. at 130.

In Laird v. Tatum, 409 U.S. 824, 826-7 (1972), Justice Rhenquist 
stressed, in declining to recuse himself, that in his work at 
the Department of Justice he had acquired no "knowledge of the 
evidence" involved. In Roberson v. United States, 249 F.2d 737, 
741 (5th Cir. 1958), and Adams v. United States, 302 F.2d 307, 
310 (5th Cir. 1962), this Court stressed that recusal would be 
appropriate where a judge had "a prior knowledge of the facts." 
Both Canon 3(C)(1)(a) and § 455(b)(1) provide that a judge shall 
not sit where he has "personal knowledge of disputed evidentiary 
facts concerning the proceeding."

The general reliability or mendacity of a witness is 
clearly material and admissible evidence. Rule 405(a) of the 
Federal Rules of Evidence expressly authorizes parties to offer 
evidence as to the truthfulness of a witness's "testimony in 
the form of an opinion." See also the Advisory Committee's Note 
to Rule 405. In the instant case, such evidence would be of 
critical importance to plaintiffs' claim of discriminatory 
grading. The district judge's personal knowledge of the relia­
bility of the key defense witnesses was doubtless relevant to 
the case and would in all likelihood render him an appropriate 
character witness for the Bar Association defendants. But this

49



same knowledge precludes the judge from presiding over the case. 
His opinion as to the credibility of these witnesses would not, 
of course, be subject to cross examination. The judge would 
naturally give greater credence to his own views regarding these 
witnesses than to the views of any evidence plaintiffs might 
introduce to attack their credibility. In the proceedings below, 
the judge was apparently so convinced by Hamner's affidavit 
that he refused to discover, look at, or study the graded 
examination papers themselves to see whether any indication of 
the identities of the applicants had been made. Such credibility 
choices with regard to the testimony of Scott, Hamner, and the 
others as to the disclosure of identities of applicants would 
necessarily have to be made by the district judge on plaintiffs' 
claim of discriminatory grading.

Under these circumstances, the district judge's personal 
knowledge as to the credibility of the key witnesses bars him 
from, presiding over the instant case.

(c) The Judge's Friendship Wi-th the Defendants.
The hearing of December 22, 1972, revealed that the district 

judge was a personal friend or acquaintance of most of the indi- 
vidual defendants but knew none of the plaintiffs. In the con­
text of the other factors involved this is a circumstance in which 
the district judge's impartiality might reasonably be questioned.

Canon 33 of the original Canons of Judicial Ethics expressly 
cautioned a judge "in pending or prospective litigation before 
him [to] be particularly careful to avoid such action as may

W  Transcript of Hearing of December 22, 1972, p.6 .

50



«► &

reasonably tend to awaken the suspicion that his social or 
business relations or friendships, constitute an element in 
influencing his judicial conduct." In Commonwealth Coatings 
Corp . v. Continental Casualty Co., 393 U.S. 145, 150 (1968), 
the Supreme Court indicated that,where those relations or 
friendships are so inclined to one particular party as to raise an 
appearance of bias, the case should be heard by a different 
judge. It is a fairly common practice, in this. Circuit and 
elsewhere, for district judges to offer to recuse themselves 
in actions in which a personal friend is among the parties.
See, e.g., Broome v. Simon, 255 F. Supp. 434, 438 (W.D. La. 1965).

This case, however, involves more than just friendship.
The defendants in this case are the leaders and chief officials 
of the Alabama State Bar Association, all of them white. At 
stake are the most basic tenets of the defendant group regarding 
which law school graduates should and should not be permitted 
to practice law in Alabama. The defendants' interest is more 
than just theoretical; as attorneys their livelihood is signif­
icantly affected by the number and types of individuals who are 
admitted to the bar. See Gibson v. Berryhill, 411 U.S. 564 
(1973). It is beyond dispute that, to the extent that more blacks 
are admitted to the bar in Alabama, the opportunity for blacks 
to have their legal rights vindicated will materially increase 
and,to the extent that these interests collide with those of the 
defendants' clients, the latter will suffer. That the existing 
bar examination system has a devastating effect on black appli­
cants is beyond dispute; the issue is, in part, whether there

- 51 -

f



is some overriding state interest in the resulting burden on
42/constitutional rights. It is doubtless the

judgment and defense of the defendants, as attorneys and bar 
officials, that such justification exists.

But it is precisely as attorneys and bar officials that 
the district judge knows and has become friends of these defen­
dants. These are not people whom the district judge sees purely 
socially or met at a country club or in civic or charitable 
activities. The judge has become acquainted with the defendants 
in the special capacities in which they created the system 
under challenge and in which they are sued. It is unreasonable 
to ask that a judge in such a case put aside not only his 
personal feelings of friendship, but also the long—established 
and otherwise laudable deference and respect for his professional 
colleagues, and the complex of values and attitudes which would 
predictably separate the established leaders of a relatively 
elite profession from insurgent outsiders attacking the 
restrictions on admission.

(d) The Judge's Activities As President of the 
Montgomery County Bar Association.

The affidavit submitted in support of the motion to dis­
qualify the district judge stated in part:

The instant action complains, inter alia, that the 
defendants maintain a policy of excluding blacks from the practice of law in the State of Alabama.
The Honorable Robert E. Varner is presently a mem­ber of the Montgomery County (Alabama) Bar Associ­
ation; and when he served as President of that

n r  See Appendix, pp. 461-2.

52



association two years ago, black lawyers were excluded from membership in the said association 
under the terms of its by-laws. The Honorable 
Judge Varner was then acquainted with the five or six black lawyers who then practiced in Montgomery; but he never made an effort to invite 
them to join the association. It was only after 
the aforesaid judge became interested in a 
federal judgeship that he, as president of the 
Montgomery County Bar Association, appointed a committee to revise the said by-laws; and the 
record is unclear as to whether the "white only" membership clause of the Montgomery County Bar 
Association was removed during his tenure as 
president of the aforesaid association. 4 3 /

The accuracy of these allegations are not disputed.
These facts are susceptible to two very different explana­

tions. The first is that the district judge, before and while 
president of the County Bar Association, never read its by-laws 
or knew they excluded blacks, never wondered why no blacks 
were members, never sought black members out of indifference 
rather than malice, learned of the problem by coincidence when 
his judicial appointment was at stake and promptly took steps 
to remedy it. The other inference is that the district judge 
immediately prior to ascending the bench was actively involved 
in excluding black attorneys from the County Bar Association, 
deliberately refused to solicit their membership, and sought to 
increase the likelihood of a judicial appointment by a change 
in the by-laws, though not necessarily in the actual policy. 
Section 144 does not permit or require this Court, or the judge 
to which the affidavit was presented, to decide which inference 
is correct as a matter of fact. The legal issue is a narrower

HZ' Affidavit of Henry L. Thompson, January 18, 1973.

53



one— whether, if the inferences least favorable to the judge were 
drawn, they would be sufficient to require recusal.

Plaintiffs do not contend that any previous misconduct by 
a judge necessarily precludes him from sitting on a case 
affecting the group injured by that misconduct. Nor do plain­
tiffs urge that any judge who has ever engaged in racial dis­
crimination is automatically disqualified from hearing civil 
rights actions, although a certain presumption in, favor of disqual­
ification would have to arise in such cases. But in the instant 
case, the gravamen of the complaint and of the affidavit are 
the same— exclusion of blacks on account of race from the 
privileges and prerogatives of membership in the bar. Doubtless 
the discrimination charged in the complaint is the more serious, 
involving a total exclusion of the victimized, blacks from the 
practice of law. Membership in a county bar association, however, 
carries with it important benefits, including use of association 
facilities and professional contacts. More importantly, there 
is every reason to fear that a man who, as an attorney, supported 
exclusion of blacks from a county bar association would, as 
a judge, be hostile to efforts to end exclusion of blacks from 
a state bar association.

Sections 144 and 455 do not require an inquiry or decision 
as to the district judge's state of mind today or before becoming 
a member of the federal judiciary, a task which neither this 
Court nor the litigants would readily undertake. This case is 
pre-eminently one in which the impartiality of the judge might 
reasonably be questioned.

54



CONCLUSION

Por the reasons stated in this Supplemental Brief, in the 
Reply Brief, and in the Opening Brief of appellants, it is 
respectfully submitted that the orders herein appealed from 
should be reversed and on remand this case be assigned to a
different district judge.

Respectfully submitted,

U. W. CLEMON
\SL^O

Adams, Baker & demon 
1600 - 2121 Building 2121 Eighth Avenue North Birmingham, Alabama 35203

JACK GREENBERG 
JAMES M. NABRIT, III 
ELAINE R. JONES ERIC C. SCHNAPPER 10 Columbus Circle New York, New York 10019
Attorneys for Plaintiffs- 

Appellants

55



CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of July, 1975, I 
served two (2) copies of the foregoing Supplemental Brief for 
Plaintiffs-Appellants on Truman Hobbs, Esq., Hobbs, Copeland, 
Franco & Screws, P. O. Box 347, Montgomery, Alabama 36101, 
counsel for defendants-appellees, by depositing same in the 
United States Mail, postage prepaid.

Attorney for Plaintiffs-Appellants

56