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

    \
\
\

Honorabl e Yl rgi I
Senior Judge
Unlted States Di
P. 0. Box 465
Mobll e, Al abama

\\
BLAtrKSHER, MTbIEFEE & STEIN,

AfroRNEYE AT L.Aw

.O!1 VAll AIITWERP EUILDINB
F. CL lCu( rOSr

MOIILE, A.AAAHA 3663!

I

May 27, 1982

Pl ttman

stri ct Court

36652

P.A.

.l^tlEl tL Bt.AtKrHER
LARRY 7. MEN TEE
BNEEORY E. BTEIN

TaLttHo}lC
(3031 a33.2El@

RE: Leila G. Brown,
of Mobile Count

Board of
CA No.

et al.
et al

School Comml ssloners
7 5-298 - P

Dear Judge Pittman:

Lle have this date flied a motlon asklng thls court to enterIts own remedlal redlstrlcting plan to be used in the eventtl,e ueg! sI ature fai I s to take acceptabl e action. A copy ofthe motion I s encl osed for your I nformation.
At the conference with counsel on l{ednesday, your Honor askedus to provide you with case law lndicating- [trat the Court naithe.qqthority to extend qualifying periodi for School Boardcandidates. Perhaps the leadlng iaie on thls point in theFifth circuit ls Hamer v. lqqpbell, 3sg F.zd zls (5tn cir.
1966 ) , cert.. denffi' ( 1966 ) , where irt. courtgf AppeETS-"em!-h'iTTied the broad equitabt i'po*ers ;; theDistrict court to mould relief sufficient ti, wipi out theeffects of racial discrimlnatlon ... Iincludln!] ttre powerto enjoi n an el ecti on. " 358 F .zd at zzl. Its iimanainstructions to the district court lncluded the followlng
mandate:

In settlng aside the electlon of
the Town of Sunflower and the electlons ofany other towns which the Dlstrlct Courton remand flnds !o !g represented by a pro-per pI al nti ff, the Dl strlct Court his wi de
dl screti on to devl se a pl an for new el ecil ons.



Hon. Vi rgll Pi ttman May 27, L982 Page 2

But ln some approprlate fashlon the plan wlll
have to (1) schedule new primarles in general
electlons, (2) set a new cutoff date for
reglstratlon, and (3) set new cutoff dates
&.

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

The broad discretlon of a dlstrlct court to modify election
dates , qual i fyl ng dates , etc . , wd s reaffi rmed by the Supreme
Court as recently as April 1, 1982, I h ,tlpLqE__Y._!ea_t!qq, 102
S.Ct. 1518 (1982). Thls v{as the Texas@
Redlstrictlng case, ir whlch the Court vacated the
redi stricti ng pl an devi sed by the three-Judge di strlct court
and ordered reconslderatlon of the plan under proper legal
standards. The Supreme Court noted, apparently wlth
approval, that the Distrlct Court had already postponed the
fl I i ng dates for candi dates. and had adJ usted other dates so
that the primary elections scheduled for May 1, L982 could be
held. 102 S.Ct. at L5?2. The Court concluded lts
instructions as follows:

Havi ng i ndicated the I egal error of
the District Court, we leave it to that
court in the first instance to determlne
whether to modify its judgment and resche-
dule the prlmary elections for Dallas County
0F, i n spl te of i ts erroneous ref usa'l to
adj ust the S. B. I dl stri cts for Dal I as
County, to aIIow the election to go forward
i n accordance wi th the present schedul e.

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

Finally, the case perhaps most direct'ly on point is Connor v.
J ohnson, 402 U. S. 690 (1971) , where the Supreme CouE-
ie-6TEEi[ tne three-iudge Court for fai 1 i ng to order
single-member district electlons for the I'lississippi
Legi sl ature, even though the candi dates' fi I I ng deadl i ne had
passed. The Court granted the plaintiffs' motion to stay the
dl stri ct court' s reaporti onment pl an and remanded wi th

a'l so K'l ahr v. Goddard,250



Hon. Ylrgll Plttman MaY 27,1982

BLACKS HER MENEF EE STEIN, P. A.

JUB:nwp

cc Honorable John V. 0'Brien, Clerk
Al I Coun sel

Page 3

I nstructl ons as fol I ows :

The Dl strict Court I s i nstructed,
absent lnsurmountable dlfflcultles, to
devlse and put lnto effect a slngle-
member dlstrlct plan for Hlnds County
by that date. In llght of this dlspos-
llion, the Di strlct Court is dlrected
to extend the June 4 flling
da tFT6FIEETsTfrTvE EaffiTiIa'te s f rom
HTffis County to an appropriate date so
that those candidates and the State of
Mlsslsslppl may act in light of the new
dlstricts lnto which Hinds County will
be divided.

4OZ U.S. at 692 (emPhasis added).

In liSht of these precedents, lt seems that this Court not
only Ias the authoitty to extend candldate flling deadlines,
but even the duty to do so if that ls necessary in order to
provide timely rLmedlal re'l lef for the black citlzens of
i4obile County whose statutory and constitutlonal rlghts are
bei ng deni ed.

Best regards.

Yery respectful lY,

Bl acksher



LEILA G. BROI,fr\, et &1 . ,

Plaintiffs,
I'NITED STATES OF A},IERICA,

P 1 ain ti f f -Intervenor,
v.

IN TI{E I]NITED STATES DISTRICT COURT FOR
THE SOUTIIERN DISTRTCT OF AI-ABA}4A

SOUTTIERN DIVISION

)
)
)
)
)
)
) cr\[L ACTIoN
)
) No. 75-298-P
l-

BOARD 0F SCHOOL COMMTSSTONER.S )
0F I.'IOBILE COtjl)lTY, AIABAI'IA, et a1., )

)
De fendants . )

OR.DER ON P]-AII$TIFFS' MOTION
FOR REMEDIAI, INJIIi{CTIOI.I

A conference was held on l{ay 26, L982, and the

matters taken up in the motion were. argued orally before

the court. The court requested the plaintiffs to file a

written Eotion so that the court would have someEhing in the

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

M"y, L982. Because of the qualifying for election dates as

set ouE in paragraph 2 of the notion, Ehe court is PrePared

Eo schedule cut-off daEes for certain things to be done so

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

approved prior to Ehe primaries seE for SepEember with a

sufficient period of time before that for candidaEes to

qualify and caupaigrl.

T'he court has been iafor-med that a three-judge

Ilnited States District Court parrel in Montgomery concerning

the state reapportionment plan has scheduled certain deadlines

with the view to giving the legislature an opportunity Eo

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

It has further been reported that it is enrrisioned that the

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



information has not been verified and is based on wire

reports and the plaintiffs' attorney herein who is also

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

The court assumes that ballots cart be prePared for the

Board of School Commissioners of Mobile Cor-nty election

as well as for the reapportionmenE plan since Mobile

Cor-rrty has some of the districts which have noE been

approved under the previous reapportionment Plan passed

by the legislature.
In paragraph 3 of the motion the plaintiffs assert

that a local bilt to redistrict the Mobile Cor-nty School

BoarC into single-member districts is being advertised,

with the last weekly advertisement Eo be May 31, L982. At

that Eime it may be introduced to the present special session

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

not inEroduced aE this special session or there is not time

for it to be adopEed it will again be introduced at the next

special session which is anticipated to be in mid-Jr:ne, L982.

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

make an optimistic prediction that a bill would Pass the

legislature although it could happen.

TLri s court 's schedule , p lanned s everal months &8o ,

is Eo be in SeaEtIe, I^Iashington holding court for Lhe month

of Jl:ne , L982.

In view of the foregoing circr:mstances, the Parties

are hereby ORDERED to prepare proposed single-menber district
plans on or be fore Jr-ne 2L, L982. Th.e parties , including the

plaintiff-intervenor, are to hand deliver Eo opposing cor-ursel

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

the court, including the local United States Attorneyts Office

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

-2-



mailed to the cor:nsel of record for the Department of
Justice not later than the date fi1ed. Each of the parties
including the plaintiff-intervenor is to file a plan.

Objections, if any, are Eo be filed on or before Juty g,

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

On July 16, L982, Bt 10:00 a.8., a hearing rrill
be held on the objections to the various plans submitted.

If prior to that date the legislature enacts a

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

event, a hearing on these objecEions will be held Jury L6,

L982.

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

qualifying date be.moved to a later date to permit hearings

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

It is therefore OP.DERED, ADJIIDGED and DECREED rhat
Ehe following na:r,ed defendants, to wit: Jolur L. Moore,

Judge of ProbaEe; Maurice I.I. Castle, Jr. , Circuit Corrt
c1erk, and T'homas J. Purwis, sheriff of Mobire cor:nty, and

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

euployees and those acting in concert with any of them or at
their direction, are hereby ENJOINED from accepLing certifica-
tions of any Persons as qualified candidates in the prirnaries

for the Board of School Cornrnissioners of Mobile Cor:nty, Alabama

unEil after this court has issued a further order in this case

setting out the districts and the bor.u:daries together with
the nr:mber to be on the ballot.

-3-



rt is hereby ORDERED rhar rhe opening of qualifying
for a Position on the Board of School Comnissioners of Mobile

cor:nty is not to begin on Jr-ure 5, Lg82 and will not end on

Jury 9 , L982, but will await further action of this courr.
It is anticipaEed that an order with reference to the opening

and qualifying period, the nr:rober of board members to be

on'the ballot and the districts Eogether with Ehe bor.nrdaries

will be issued by this court follow'ing the hearing on July lG,

Lg82, and prior to JoLy 29, Lg82. See Uphan v. Seamon,

u.s. _ , L02 s.cE. 1519, L.Ed . 2d (1982);

connor v. Johnson, 402 u.s. 690, 9l s.ct. L760, zg L.Ed. zd,

268 (1971); Hamer v. cmpbell, 358 F.2d zt5 (5rh cir. Lg66) ,

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

T'he relief requested by rhe plaintiffs in paragraph

"c", page 3 of the motion is herd in abeyance pending further
action by this court

Done at Mobile, ALabama, this the
A.

-lV^?) day of
M.y, L982.

-4-



IN THE UI,IITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHER[ DIVISION

LEILA G. BR0UI{, et oI .,
PI al nti ffs,

)

)

) CML ACTIOil lilO.75-298-PY.

BOARD OF SCHOOL COMMISSIOiIERS )
0F l.l0BILE C0UNTY, €t al ., )

Defendants. )

PLAI}ITIFFS. }.IOTION FOR A REMEDIAL INJUNCTION

Plaintiffs Leila G. Brown, €t ill ., through thelr
undersigned counsel, move the court to enter an injunction
providing for single-member distrlct elections for the Board

of school commlssioners of Mobile county in L982. As grounds

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

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

unconstitutional and in viol ation of the Yoting Rights Act.

Said judgment withheld entry of a remedial order to provide

the State of Al abama the opportuni ty to enact a

' constitutlonal electlon plan prlor to the prlmary and general

el ections in L98?. The judgment further proylded: "Upon

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

motl on, i f i t appears that no such I egi sl ati ve response wi I I

be made in time for the 1982 elections, the court will carry
out its responsibi'l ities under East carroll Parish School

Board v. Marshall , 423 u.S. 636, 47 L.Ed.2d 296 (1976), to
develop and implement a remedial plan."

2. P'l ai nti f f s are i nformed that qual i fyi ng for the



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

on July 9, 1982. The first primary electlon will be held on

Tuesday, September 7, 1982, and the runoff will be held on

Tuesday, September 28. The general election ls scheduled for
November 2, 1982.

3. Plaintlffs are further informed that a local

bl11 to redistrlct the Moblle County School Board lnto

slngle-member dlstrlcts, accordlng to 1980 census, is
presentl y bel ng adverti sed. The fourth weekl y adverti sement

of the blll wlll be Monday, May 31,1982. It then may be

introduced ln the present Speclal Session of the Legi sl ature.

Howeyer, if it is not introduced in this Special Sesslon, or

if it is lntroduced and there is insufficient time'l eft in

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

Board redlstricting bil I wil I be introduced again in the next

Special Session, which Governor James has sald wil I start
some ti me i n mi d-J un e 1 982.

4. In 1 ight of these lmpending deadl lnes, i t wil I

probably be necessary for this Court to extend the period for

candidates to qua'l ify for the School Board seats for which

elections will be held this year. Election officials will
al so need as much advance notice of the School Board district
boundaries as possible in order to prepare ballots and

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

await fi nal action in the Legi sl ature on proposed School

Board redistricting legislation may make it impossible

mechani cal I y f or new e'l ecti on di stri cts to be put i n pl ace i n

time for the September 7 primary elections.

I'IHEREF0RE

enter an order and

pl ai nti f f s pray that the Court wi l'l
nj uncti on as fol 1 ows :

,

1

2



A. Setting a date by

action should submit to the Court

slngle-member district boundaries

Board of School Commlssloners shal

B. Schedul lng a hearl

consider obJections to the varlous

a nd,

whlch the partles to thls
thel r proposal s for fl ve

from which members of the

I be elected in 1982; '

ng shortly thereafter to

dl strl ctl ng proposal s;

C. EnJolnlng the Defendants from fail lng to
conduct the 1982 electlons for Moblle County School

Commlssloners accordlng to the slngle-member dlstrict plan to
be approved by thi s Court f oI'l owl ng such heari ng, I n the

event that the Leglslature has falled to enact its own

redistricting plan and/or the Attorney General of the Unlted

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

Respectfully submitted this 25th day of May, 1982.

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

EDI{ARD ST I LL
Reeves & StllI
Suite 400, Commerce Center
?027 Fl rst Avenue, North
Birmingham, Alabama 35203

JACK GREENBERG
NAPOLEON I{ILLIAMS
Legal Defense Fund
Sui te 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Pl ai ntl ffs

3

ARRY T. MENEF



CERTIFICATE OF SERVICE

I do hereby certlfy that on thls 2lth day of ilay, lggz,
a copy of the foregoi ng pLAIllrIFFs' iloTI0N FoR A REI.tEDIAL

INJUNcTI0N was served upon counsel of record: t{i I I iam H.

Al I en, Esq., covington & Burl lng, ggg sixteenth street, ll.ll.,
llashl ngton, D.c. , 20000, Robert c. campbel I , "I II, Esq.,
Slntz, Plke, campbell ll Duke, 3763 professlonal parkway,

Mobil e, Al abama 36609, James c. blood, Esq., 1010 van Antwerp
Bldg., Moblle, Alabama 36602, t{llliam Bradford Reynolds,
Asslstant Attorney General, Department of Justlce,
l{ashington, 0.C., ?0530, Gerald I{. Jones, Esq., paul F.

Hancock, Esq. and J. GeraI d Hebert, Esq. , El I en l,l. l,|eber,
Esq., voting Section, civil Rlghts Divislon, Department of
Justice, loth & pennsylvania Avenue, N.l{., l{ashington, D.c.
20530, by depositing same in the united states mail, postage
prepaid or by hand.

4



DI THE
THE

I]NITED STATES DISTRICT COURT FOR
SOUTHXRN DISTRICT OF AI-ABAMA

SOUT}IERI{ DIVISION

LEILA G. BROI,N, eE al.,
Plaintiffs,

I]NITED STATES OF A}IERICA,

P 1 ain ti f f- Inte nrenor,

v.

BOARD OF SCIiOOL CO}O'IISSIONERS
0F I{OBILE COiJi.iTY , ALABATYA, et al . ,

Def endants.

CIVIL ACTION

No. 75-298-P
)
)
)
)

ORDER OI.I MOTION FOR RECUSAI

This cause was heard on defendants' motion for

recusal filed April 22, L982 and taken rstder submission.

The motion \.7as filed pursuanE to 28 U.S.C. S 455

asking this judge Eo recuse himself from any further con-

sideration of defendants' oEher pending motion concerning

the school board chair-nan's vote. As gror:nds therefor,

the motion recoutts the particulars of this court's civil
contempt citaLion against the school board chairman and

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

this case, Ehis court's "arbiErary and r.:nrealistic" acEions

taken concerning Ehe school board chai:-ran and this court's

implied criticisms and denr:nciations of the chai:man and

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

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

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

been filed in support of this motion.-

L/ An affidarrit is not
See Darris v. Board

r:nder Section 455 (a)
Conur'rs, 5L7 F.2d

required
of School

ffi+, I05r:s2J5TI Cir. L975)
brief is

, g"rt. denied, 425
noE-EQ-uiET onu.s. 944 (1976). A



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

As t

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

95-598, rir. II, S 214(a), 92 Srat . 265L.

I^Ihere "the reasonable man, \rere he to know all the

circumstances, would harbor doubts about the judge's

impartiality, " recusal should foIlow. Potashnick v. Pcrt

amended

Section 455(a) provides that:
Any...judge..

sha1l disqualify
ceeding in which
might reasonably

!1 Act of Dec. 5,

.of the ljnited States
himself in any pro-
his impartiality
be questioned.

L974, Pub. L. No. 93-5L2

2d 1101, 1ll1 (5tfr Cir. 1980); see

625 F.2d L25, L29 (6rh Cir. 1980).

"designed to promote public confidence

the judicial process, " by fostering

Citv Const. Co. , 609 F.

also Roberts v. Bailar,

This objeetive Eest is
in Ehe iurpartiality of

the appearance as well as the fact of fairness. H.R. Rep.

No. L453 , 92d Cong. , lst Sess. , reprinted in L97 4 U. S .

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

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

is irrelevant.evaluation of his ovTn ability to be fair
Davis v. Board of School Com'rs, 5L7 F.2d L044, L052 (5tfr

Cir. L975) , cert. denied , 425 U. S. 91+4 (1976) . Acrual bias

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

524 F .2d 98, 103 (5tfr Cir. L975) (en banc) , cert. denied,

-2-



425

bias

(5 ch

u. s . 944 (L97 6) .

statute), united

with 28 U.S.C.

v. Serrano , 607

S 144 (actual

F.2d 1145

Cornp are

State s

2/

Cir. L979).

Cognizant of the purposes of the statute and the

foregoing basic principles this court also notes that it
"has a sworn duty not to disqualify itself r-rrless there

are proper and reasonable gror:nds for doing so." State of
Idaho v. Freeman, 478 F.Supp. at 35 (quoting Blizard v.

Fielding, 454 F.Supp. 318 (D. Mass . L978) , affi:med sub.

nom. BLLzard v. Frechette, 601 F.2d L2L7 (lsr Cir. L979));

Siqonson v. General Motors Corp,, 425 F.Supp.574,578 (E.D.

Pa. L975) ; Blank v. Sullivan & Cromwell, 418 F. Supp . 1, 2

-27
(S .D.II.Y. 197 5) .- Spurious or loosely based charges of

It is beyond carril that it is enEirely proper
for a judge Eo pass on a motion to disqualify
himself . Ilnited States v. Olander, 584 F.2d
87 5, 883 (ffi (seEr;.j-Ts5 (a) ), vacared
on other gror:ncis sub. nom. HarringEon v. Un]ffi
Fares, 44m gTf (f979D

impartiality r,rill not support a motion to recuse. tlgre. y.

NFL, 463 F.Supp . LL74, LL79 (C.D. Calif . L979); I.Iavis v.

Commercial Carriers, Inc., 408 F.Supp. 55 (C.D. Calif. 1975).

Recusal r:nder Section L44 (for actual bias) must

rest upon material facts which show extrajudicial bias directed

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

rainer Anrirrusr Lirig. , 5L4 F.2d 958, 964-65 (5rh Cir. 1gg0) .

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

the merits on some basis other than what the judge learned

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

Corp., 384 U.S. 563, 583, 16 L.Ed. 2d 778, 793 (196Q); TJnited
3/

States v. Clark, 605 F.2d 939, 942 (5th Cir. L979) .-
-3-



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

Taylor v. Hayes , 418 U. S. 488, 50I-02, 4L L.Ed.
mTT ,-90fTf97 4) (Judge "embroiled in a rr:nning
controversy" with the criminal defendant); see
trrrhitehurs t v. I^Iright , 592 F.2d 834 , 838 (5tffiir.
f979)-(fu-d!e-s comments on the evidence insufficient).
The cases have r:niformly required a "pervasive bias"
which was neither alleged nor argued in this motion.
Cor-:nsel for the movants made it clear the motion
focused only on the ".pp"arance" of impartiality.
See Jackson v_. Alabana Dept. of Public Safety,
ffi ffi9-(5 ares v.
Gregorv, 656 F.2d LL32 (5th ciffi.-United
ffites v. Holland, 655 F.zd 44 (5th Cir. fqgl)-
CuGE's remaTEilduring a criminal prosecution
reflected personal prejudice of a pervasive nature. )

It is clear that the reasonable man would require no

less than the same material

to establish the appearance

Sections L44 and 455 (a) are

facts, going to bias

of impartiality. The

or prejudice,

tests under
4l

substanEial.ly the same. Compare

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

- 
637 'F .2d 101fim9--20 n. 6

In re Corrugated ConEainer Antitnrst Litig., 6L4 F.2d at 964-

65 with Parrish , 524 F.2d at 100. See Davis, 5L7 F.2d at

I051 -52.

In Davis (out of this district
school board but a different judge, the

and the judge was not required to recuse

involrring the same

school board prevailed

himself), the court

considered the disqualification standards r:nder Sections L44

arrd 455 and stated: "I{e believe that the test is the stme.

r:nder both." id., and that the deter-mination of disqualifi-
cation should be made on the basis of conduct extrajudicial

-4-



in nature as distinguished from conduct within a judicial

context. The court held that judicial activity without

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

1143, 1157 (6tfr Cir. 1980)l United SEates v. International

Business l,lachines Cor.p. , 475 F.Supp. L372, 1380 (S.D.N.Y.

L979)

Under either statute [28 U.S.C. SS L44,
455 (a) L - 

the alleged bias- must be
personal', as distinguished from

judicial, in nature. The point of the
distinction is that the bias 'must stem
from an extrajudicial source and result
in an opinion on the merits on some basis
other than what the judge learned from
his participation in the case.' Thus,
a motion for disqualification ordinarily
may noE be predicated on Ehe judge's
rulings in the instant case or in related
cases, nor on a demonstrated tendency to
rule any particular v&y, nor on a partic-
ular judicial leaning or attiEude derived
from his e>cperience on the bench.

Phillips v. Joint Legislative Com. , 637 F.2d 1014, 1020 (5ttr

Cir. 1981) (ciEations ornitted) .

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

oral contentions seem to argue thaE recusal is mandated by

this courtrs past rulings in this case and Ehe adverse publicity
by some of the parties and the public arising Eherefrom.

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

would. require a new judge at almosL every phase of a lawsuit

and would promote judge-shopping. See e.g.,_ 
_/_

Parrin, 552 F.2d 62L (5ttr Cir. L977 ) .- Prior
United States v.

rulings in a case

s/ The language of Section 455(a) "does not arnount to
a grant of automatic veto power in order thaE
counsel might choose a judge who meets wiEh their
aDDroval." SamueI v. University of Pittsburgh,
395 F. supp . TT7TLZ77
Samuel court relied upon a report by the Senate
ffilGfary Committee discus sing Section 455 which
stated:

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

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that those who would question his
impartiality are, in fact, seeking to
avoid the consequences of his expected
adverse decision. Disqualification
for lack of impartiality must have a
reasonable basis. Nothing in this
proposaTfegislaEion should be read to
warrant the transforrration of a liti-
gant's fear that a judge may decide a
question against him into a 'reasonable
fear' thaE Ehe judge will not be
impartial. Litigants ought not to
have to face a judge where there is
a reasonable question of impartiality,
but they are not entitled to judges of
their own choice. " S. Rep .No. 93-4L9 ,
93d Cong. , lst Sess . L973, p. 5 (em-
phasis in original).

or related cases will not support judicial disqualification.
tJnited States y. Bray, 545 F.2d 851, 857-58 (10rh Cir. L976)

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

United States v. Baker, 44L F.Supp. 6L2, 6L6 (M.D. Tenn

L977) ; Lazofsky v. Sornmerset Bus Co. , 389 F.Supp. 1041 , L044

(E.D.i{.Y. L975), see also Woodruff v. Tomlin, 593 F.2d 33, 44

(6th Cir. L979). Likewise,

for recusal. llnited States

publicity is
v. Haldeman,

noE a valid gror:nd

559 F .2d 31, 137-38

933 (L977); United(D. C. Cir.

States v.

L97 6), cert. denied, 43L U. S

C-f e4, 398 F.Fupp . 34L, 363 (E . D. Pa. 1975) The

House report to the L975 amendment to Section 455 (a) notes:

I{o judge, of course , has a duty to
sit where his impartiality rnight
reasonably be questioned. However,
the new Eest should not be used for
judges to avoid sitting on difficult
or controversial cases.

H.R. Rep. No. 1453, 93d Cong., 2d Sess., reprinted Ln L974
6l

U.S. Code Co.rg. & Ad. Ners at 5355.-

Sirnilarly, the appearance of partiality was not
established by the fact that "the injr:ncEion Ithe
defendant] was charged with rriolating 'has been
identified in the public mind as the result of
actions taken by Judge Boldt as the 'Boldt Decision. "'
TLre court noted that "[t]his gror:nd is so obviously
lacking in merit as not to warrant further considera-
tion. " United States v. Olander, 584 F.2d 876, 882

L/

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Cir.1978)
Harrineton

(9th
nom.
(I9Te

It is mandatory that some manner of probative
erridence be presented, Blizard, 501 F.zd at LzzL, establishing
a factual basis for the determination. The subjective beliefs
of the defendants are not sufficient. united States v.

Corr, 434 F.Supp. 408, 4L2-L3 (S.D.N.Y. Lg77). No such

probative evidence has been submitted.

T'he First circuit has noted that courts 'hust con-

tinually rule against one party or another," and Ehat

personal disapproval and criticism may sometimes result. rn

re Union Leader Cor?. , 292 F.2d 381, 389 (lst Cir. l9G1),

cert. denied, 358 u.s. 927 (1961). orander and union Leader

recognLze that publicity or the acEions of parties offer no

insight to the reasonable uan regarding a judge's impartiality.
T'here is no valid gror-md for recusar r:nder 28 u.s.c.

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

DEiIIED.

- It is so ORDERED at Mobile, Alabarna, this Ehet
'ffir r*hy, LgBz./7

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IN TTIE
THE

I]NITED STAIES DISTRICT COIIRT FOR
SOUT}IERN DISTRICT OF AI.A3A}TA

SOUT}MRN DIVISION

LEILA G. BROI{N, eI al.,
Plaintiffs,

UNITED STATES OF A},IERICA,

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

v.

BOARD OF SCHOOL COMMISSIOI'IERS
OF MOBIIJ COI]I,ITY, AI.ABA}IA,
et 8I,,

Defendants.

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CIVIL ACTION

No. 75-298-P

T'he

this court Eo

1980, so as to

to vote on all

ORDER ON MOTION TO A]4END
PRELI}fiNARY INJINICTION

cause arises out of defendants' petition asking
emend its preliminarT injr:nction issued JuIy 25,

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

matters brought before the Board.- Upon due

L/ The defendants reguested a hearing to presenE oral
Sfgyment and erridence, which was held on April 26 ,L982. TLre- parties $rere then given leave tb fite
proposed findings of fact and-conclusions of law.

At oral argr:ment and in their motion the defendanis
proposed alternatives Eo a full restoration of I'Ir.
Alexander's vote. rn their proposed findings, however,
they withdrew their alEernative- proposals. -In thisposture, this court has only considered the issue of
completely restoring the Board President's vote.

consideration of the defendants' request, together with plaintiffs'
and Plaintiff-intervenor's responses thereto, this court d.ecides

noE to alter or a:nend the injr-rnction.

FINDINGS OF FACT

This action was commenced in L975 by black citizens of
Mobile Courty wiro claimed that the at-large method of electing the

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

TLre court entered a judgment for the plaintiffs, which Ehe Fifth



Circuit Court of Appeals affi:med in an unrePorEed Per curiam

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

decision of the court of appeals artd remancied the case to that

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

446 U.S. 55 (f980). T'hereafter, the court of appeals remanded

t,o this court for reconsideration in lighE of Bolden.

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

entry of a preliminary injr:nction preserwing the status quo

pending a decision on remand, artd on JuIy 25, 1980, this court

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

required the single-member disErict election system to continue

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

provided thaE the single-member district q6mmissioners, Cox and

Gilliard, elected in L978 pursuartt to the court's order of

DecembeT 9, L976, would continue to hold office, that Ehe next

single-member district ssrmissioner election, scheduled for

November, 1980, would go forward, and that Board President Alexander

would serve ouE his tem, which was to end November 4, 1980, 3S a

non -vot in g membe r .

- In this court's original order dated December 9, L976,

which foll-owed the first trial, this court held:

It appears lDore equitable to the court
to Eodify one commissioner's Powers and
duties and aLlow that corrmissioner to
complete his tenn rather than shorten it.

Opinion and 0rder as to the Board of School Corrmissioners of Mobile

Cor:nty, €t aI., December 9, L976, at P. 46. To have done othe:r^rise

would make a Board consisting of six members.
A six member board would lend itself to possible
tie votes of three to three. The Board could
be rendered ineffective rsrder such conditions.

Id- The order r^rent on and directed:

ltre Chai:man to be elected is to be either
Cornmissioner Alexander or Cornmissioner Drago,
the two members of the present board with the
least remaining years of serrrice in their

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elected terrn. Ttreir presenE terrns expire
afEer the general election in November, 1980,
when their successors have been elected,
qualified and taken office according to the
laws of Alabama. The Chairman will have all
the powers the Chai:man would have r:nder the
1aw, rules, and regulations they are governed
by except the right to vote. For this two
year period of time only, L97 8 to 1980, Ehe
Chair-man will have the right to vote only in
the event of a tie vote which could be
occasioned by abstension Isic] , absence, or
any other reason.

Id. aE 47.

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

A tie vote means exactly that. It would
necessarily have to be a 2-2 or a 2-2-L vote.
If three constiEutes a quor:un, there could be
a 1-1 (if an abstention) or a 1-1-l vote.

:::5;,ff;',fu:ijr' :ffi:r i, E'f;,J'i?;,.*:
to constitute a voting quorum or constitute
a quorum for any other pu+ose. A quorr:m would
have to be constituted from the regular voting
members. A 2-L-L-l voEe is not a tie vote.
(Emphasis in original) .

After remand by the Supreme Court and the Fifth Circuit
in 1980, this court's injr:netive order of July 25, 1980, was

entered and the school board appealed.

. The school board sought unsuccessfully a stay of Ehe

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

Court. Moore v. 1335 (1980). The school board

modification of this court'swas successful in
Brovnn , 448 U. S .

obtaining scEDe

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

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

of the school board...until entry of a final judgroent on remand."

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

The courE of appeals further ordered Ehat this court enjoin the

certificaEion of the election results of the November general.

election for the single-member district ssrrmissioner. Id., at 3.
2/

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2/ the candidate who won Ehe single-rnember district
election in 1980 was RuEh Drago, vrtto had served as
an at-large elected school board member r:ntil her
te::Ill of offic. expired in f980. The court of appeals
ordered that "Co6rissioner Drago shall continue to
seta/e as an aE-large commissioner pending gntry of a
final judgment on iemand of this c-ase." The court of
appealE eiplained that the purpose of its order 'oas
"to return the school board to contrinuing operation
as it was prior to the order of JuIy 25,1980." Id.

T'he defendant school board has operated r-nder these orders of

this court and the court of appeals since 1980.

"On remand, hearings were held in this court to resolve

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

a district or an at-large system.rr Bror,rn and United States of

America v. Board of School Cosrnissioners of Mobile Countv, Opinion

arrd Order , Apri 1- 15 , L982 .

On April 15 , L982, this court entered its decision in

plaintiffst favor. This court w'ithheld "entt7 of a remedial

orderLoProvidetheStateofA].abarraatheopportr:nitytoenact
constitutional election plan prior Eo the primary and general

elections in 1982." Opinion and Order, P. 55. "[I]f it aPPears

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

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

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

appealed this court's April L5, L982 decision.

The school bbard has moved the court to amend its July 25,

1980 injr:nction preserwing the status quo on resrand. Specifically,

the school board asks this court Eo penuit Board President Alexander

to vote on aI1 matters Ehat come before the board. As gror:ndsthere-

for, defendants argue the following:

(1) Ehe el-ection system is Presumed valid by
virEue of the Supreme Courtrs decisions
in this case and Bo1den;

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

(3) those sFme principles which permit the black
cmissioners to remain on the board and vote
should apply to the Chair:nan;

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

(5) the potential for tie vote problems is
insufficient reason to restrict the Chai:-Tanrs
vote;

(6) the electorate should noE be abridged of its
right of representation or action when three
board members are present and willing to take
affirmative action, and

(7) this court's previous orders intending to
prevenL deadlocks have been frustrated.

AddiEionalIy, the school board claims that minutes of board meetings

"are replete with g3zmples of board inertia, inaction and r:nrespon-

siveness caused by absEentions and absences of voting members. "

Defendants I Proposed Order Restoring Vote of Board Chairman, at

p. 4.

In support of its moEion Eo anend the July 25, 1980

injr.nbtion, the school board submitted minutes of one school hoard

meeting in October, 1981. Those Einutes are not "teplete" with

exarples of school board "inertia", as defendants claim. I,loreover,

even if it erere Erue that Commissioner Alexander could have

supPlied the third "ay"" vote on some matters, iE is just as likely
that in other cases he could have created a tie situation and

frustrated school board business. The school board claims that

" [r]estoration of the C'hai:man's [President 's ] vote should render

the board more effecEive than in the past." Id.
The court does not find that the fact of the Bresident

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

have occurred had the President been able to vote. The absenee of
conrnissioners or the decision by cormrissioners not Eo vote are part

tr



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of the no::ural give and take of the political process that is
inherent in Ehe school board. The abiliEy of school coumissioners

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

board and before this suit was initially fi1ed.

- CONCLUSIONS OF I.AW

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

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

F.2d 115 (5th Cir. 1971). In exercising its discretion ro granr

or alEer injr:nctive relief, the court is cognizant of the fact that
a requesE for an injr:nction "is an extraordinarT and drasEic

remedy which should not be granted r-rrless Ehe movant clearly
carries the burden of persuasion. The primary justification for
applying this remedy is to preserve the court's ability Eo render

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

of Florida v. Callawav, 489 F.2d 557 , 573 (5tfr Cir. L974).

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

of April 15, L982. The Board President has held his post a yea:.

and a half beyond the sEatutory six-year Eerm provided by Alabama

law solely by. wirtue of the appellate court order and by virtue
of this court's most recent decision and injr:ncEion. As such, all
of defendantsr arguments are without merit.

The court does noE find that its prerrious orders intending

to prevent deadlocks have been frustrated. It is apparent that
alteration of Ehe voting structure as requested would set up a

six-member voting board and would provide much rnore opportr:nity to

create deadlocks and dissensions. I.Iith a voting membership of

five, the probability of deadlocks is materially reduced.

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In order to miniaLze the effect of this courtrs initial

order, the already aE-large elected oembers were allowed to serve

out their tentrs, the President was to be elected from the two

remaining at-Iarge members, and the President !,7as given Lhe right
to vote in the event of a tie vote. Ttris provision pennitting a

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

problem the petition corDplains of herein.

If it therefore ORDERED that defendants' ootion to amend

the preliroinary injr:nctLon is dr:e to be, and is hereby DENIED.

Done aE Mobile, Alabana, rhis rhe L% of May,

L982 .

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IN IIIE I]NITED STATES DISTRICT COIIRT IOR TIIE SOUTHERN DISTRICT OF AI,ASAI,IA

LEII,A G. BROIJN

plalntl.ff ,

va.

JOIIN L. MOORE, et a1

defendaots.

cA 75-298-P

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PLEASB TAKE NOTICE TIIAT A HEARING ON

AI{D OBJECTIONS THERETO I,[LL BE IIELD
ROOI! 401.

A11 partles are to subnlt plans
obJectloas to be flLed no later

TTIIS NO(IICE CONFIRMS DATES GIVEN IN

TIIE PI.A}IS FOR DISTRICf,ING OF EI.ECTION
G 10:00AlIFRIDAY JULY 16. 1982

on or before JIINE 21, 1982, wlth
than JIILY 9, L982.

rlEARrNc UAY 26, 1982.

JOHN V. OTBRIEN, CI^ERK

BY

cC: JIIDGE YIRGIL PITTMAN
MRS. SI'E SIIRIIM, SESRETARY
I.AW CLERKS
MAGGIE Q. LAWSoN, CoURT REPORTER
COIJRT FILE
CALL DOCKET

G. WALTER, DEPUTY CT.ERK

Messrs. Blacksher, Menefee & Ste
Mr. Edward Still
Messrs. Greenberg, Nabrlt &

Williarns
l{rs. Wll-lian R. Fawre, Jr.
Ms. Ellen M. Weber and

Messrs. Jones, Ilancock &

Ilebert
Mr. James C. Wood
Messrs. Canpbe11, Plke & Taylor

ATTORNEYS: