The opinion of the court was delivered by: HIGGINBOTHAM
Defendants, Local 542, International Union of Operating Engineers, the Contractors Association of Eastern Pennsylvania and the General Building Contractors Association, Inc., have moved this Court pursuant to 28 U.S.C. § 144 (1970)
to refrain from further participation in this case. In support of their motions, defendants have filed the affidavits of Robert Walsh, the business manager of Local 542, of Angelo A. Antonucci, the executive secretary of the Contractors Association of Eastern Pennsylvania, and of Charlson I. Mehl, the executive director of the General Building Contractors Association, Inc. Each of these affidavits alleges a personal bias on my part in favor of the plaintiff class in the instant action.
For reasons that will hereinafter appear, I have concluded that these affidavits are, as a matter of law, insufficient to justify my disqualification as judge in the instant action. Defendants' motions for disqualification must therefore be denied.
In support of their motion for recusal, defendants allege in their affidavits:
1. That the instant case is a class action, brought under the Civil Rights Act of 1964 and other civil rights statutes, charging that defendants have discriminated against the twelve black plaintiffs and the class they represent on the basis of race, and seeking extensive equitable and legal remedies for the alleged discrimination;
2. That I will try the instant case without a jury, and that I am black;
3. That on Friday, October 25, 1974, I addressed a luncheon meeting of the Association for the Study of Afro-American Life and History, during the 59th Annual Meeting of that organization, "a group composed of black historians";
4. That in the course of that speech I criticized two recent Supreme Court decisions which involved alleged racial discrimination, and said, inter alia, that:
(a) "I do not see the [Supreme] Court of the 1970's or envision the Court of the 1980's as the major instrument for significant change and improvement in the quality of race relations in America";
(b) "The message of these recent decisions is that if we are to deal with the concept of integration, we must probably make our major efforts in another forum";
(c) "As I see it, we must make major efforts in other forums without exclusive reliance on the federal legal process."
5. That I used the pronoun "we" several times in the course of the speech, and that my use of this pronoun evidences my "intimate tie with and emotional attachment to the advancement of black civil rights";
6. That by my agreement to deliver the speech I presented myself as "a leader in the future course of the black civil rights movement";
7. That my speech took place in "an extra-judicial and community context," and not in the course of this litigation;
8. That the following day, Saturday, October 26, 1974, The Philadelphia Inquirer published "an article appearing under a predominant headline on the first page of the metropolitan news section, . . . describing the October 25th meeting and publishing the aforementioned quotes";
9. That approximately 450,000 copies of The Philadelphia Inquirer containing this account were distributed publicly on or about October 26, 1974;
10. That this account made "the community at large" aware of my "significant role as a spokesman, scholar and active supporter of the advancement of the causes of integration";
12. That "the very invitation to speak," "the content of [my] remarks" and my "posing for photographs" after the address identify me as "a leader for and among blacks," and "one of the country's leading civil rights proponents";
13. That I am a "celebrity" within the black community;
14. That "I [have] identified, and [do] identify, [myself] with causes of blacks, including the cause of correction of social injustices which [I believe] have been caused to blacks"; that I have made myself "a participant in those causes, including the cause of correction of social injustices which [I believe] have been caused to blacks";
15. That "in view of the applicable federal law," and by reason of my "personal and emotional commitments to civil rights causes of the black community, the black community expectation as to [my] leadership and spokesmanship therein, and the basic tenet of our legal system requiring both actual and apparent impartiality in the federal courts," my "continuation . . . as trier of fact, molder of remedy and arbiter of all issues constitutes judicial impropriety."
These allegations commingle conclusions with facts to an extraordinary degree. Conclusions, of course, are not relevant to this inquiry. United States v. Townsend, 478 F.2d 1072, 1074 (3d Cir. 1973); Inland Freight Lines v. United States, 202 F.2d 169, 171 (10th Cir. 1953). Even if they were, it is difficult to ascertain what defendants mean by certain of the conclusionary allegations they have made. For example, they state that my interest in these matters indicates an "emotional attachment." If, by "emotional attachment," they were implying that I believe that blacks should, in a nonviolent, rational fashion, strive to eliminate racial injustice, I would accept that characterization. If, by the use of the phrase "emotional attachment," they were implying a degree of irrationality, I do not accept that conclusion as a reasonable inference from either my appearance before the Association for the Study of Afro-American Life and History, or the contents of my speech to it, or the newspaper article reporting on the speech.
No matter what defendants assert in their conclusionary allegations, the factual core of their affidavits is the newspaper article in The Philadelphia Inquirer of October 26, 1974. The legal sufficiency of the affidavits stands or falls on the basis of what I said and did on the occasion of my October 25th speech, as reported in the Inquirer article of the following day, and on any rational inferences that can be drawn from that article.
THE LAW OF DISQUALIFICATION
It is well settled that the mere filing of an affidavit under § 144 does not automatically disqualify me from hearing the instant case. United States v. Townsend, supra, 478 F.2d at 1073; Behr v. Mine Safety Appliances Co., 233 F.2d 371, 372 (3d Cir.), cert. denied, 352 U.S. 942, 77 S. Ct. 264, 1 L. Ed. 2d 237 (1956). Only the filing of a timely and sufficient affidavit will result in such a disqualification. United States v. Townsend, supra, 478 F.2d at 1073; Brotherhood of Locomotive Firemen and Engineers v. Bangor and Aroostook R. Co., 127 U.S. App. D.C. 23, 380 F.2d 570, cert. denied, 389 U.S. 327, 88 S. Ct. 437, 19 L. Ed. 2d 560 (1967).
It is my duty, as the judge against whom a § 144 affidavit has been filed, to pass upon the legal sufficiency of the facts alleged in the affidavit. Townsend v. United States, supra, 478 F.2d at 1073; Simmons v. United States, 302 F.2d 71, 75 (3d Cir. 1962). I may not, however, question either the truth of the allegations or the good faith of the pleader. United States v. Townsend, supra, 478 F.2d at 1073; Simmons v. United States, supra, 302 F.2d at 75; In re Federal Facilities Realty Trust, 140 F. Supp. 522, 524 (N.D. Ill. 1956). "[The] section withdraws from the presiding judge a decision upon the truth of the matters alleged." Berger v. United States, 255 U.S. 22, 36, 41 S. Ct. 230, 234, 65 L. Ed. 481 (1921); United States v. Townsend, supra, 478 F.2d at 1073; see Parker Precision Products Co. v. Metropolitan Life Insurance Co., 407 F.2d 1070, 1077 (3d Cir. 1969).
My disqualification will not be warranted unless a § 144 affidavit "[gives] fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger v. United States, supra, 255 U.S. at 33-34, 41 S. Ct. at 233; United States v. Townsend, supra, 478 F.2d at 1073-74. Mere conclusions will not suffice to support such a disqualification. United States v. Townsend, supra, at 1074; Inland Freight Lines v. United States, supra, 202 F.2d at 171.
"Facts must be pleaded which show that there exists personal bias and prejudice on the part of the trial judge." Inland Freight Lines v. United States, supra, at 171; see Simmons v. United States, supra, 302 F.2d at 75. Disqualification will be warranted only if such a personal bias is shown. Ex parte American Steel Barrel Co., 230 U.S. 35, 43, 33 S. Ct. 1007, 1010, 57 L. Ed. 1379 (1913); Gallarelli v. United States, 260 F.2d 259, 261 (1st Cir. 1958), cert. denied, 359 U.S. 938, 79 S. Ct. 654, 3 L. Ed. 2d 638 (1959); United States v. Hanrahan, 248 F. Supp. 471, 476 (D. D.C. 1965).
The facts pleaded will not suffice to show the personal bias required by the statute if they go to the background and associations of the judge rather than to his appraisal of a party personally. Parker Precision Products Co. v. Metropolitan Life Insurance Co., 407 F.2d 1070, 1077-78 (3d Cir. 1969); Price v. Johnston, 125 F.2d 806, 811 (9th Cir.), cert. denied, 316 U.S. 677, 62 S. Ct. 1106, 86 L. Ed. 1750 (1942). "[A judge] must have neighbors, friends and acquaintances, business and social relations, and be a part of his day and generation. * * * the ordinary results of such associations and the impressions they create in the mind of the judge are not the 'personal bias or prejudice' to which the statute refers." United States v. Gilboy, 162 F. Supp. 384, 400 (M.D. Pa. 1958), quoting Ex Parte N. K. Fairbank Co., 194 F. 978, 989, 990 (M.D. Ala. 1912). Of course, it goes without saying that "[a] judge cannot be disqualified merely because he believes in upholding the law." Baskin v. Brown, 174 F.2d 391, 394 (4th Cir. 1949). If the facts pleaded do not warrant my disqualification, I am not only permitted to continue to preside over the case, I have an affirmative duty not to withdraw. Simmons v. United States, supra, at 75; In re Union Leader, 292 F.2d 381, 391 (1st Cir.), cert. denied, 368 U.S. 927, 82 S. Ct. 361, 7 L. Ed. 2d 190 (1961); Tucker v. Kerner, 186 F.2d 79, 85 (7th Cir. 1950) United States v. Hanrahan, supra, 248 F. Supp. at 475; In re Federal Facilities Realty Trust, supra, 140 F. Supp. at 524.
THE LEGAL SUFFICIENCY OF DEFENDANTS' AFFIDAVITS
The legal issue raised by defendants' motion is easily disposed of. I have examined the factual allegations of defendants' affidavits in the light of the law, as set forth above, which governs the recusal of a trial judge for reasons of bias or prejudice. That examination leads me inescapably to the conclusion that, as a matter of law, defendants' affidavits are insufficient to justify my disqualification.
Defendants base their motions on my remarks at the 59th Annual Meeting of the Association for the Study of Afro-American Life and History. Those remarks in no way manifest the personal prejudice and bias that must be shown in order to satisfy the requirements of § 144. Ex parte American Steel Barrel Co., supra ; Inland Freight Lines v. United States, supra; United States v. Hanrahan, supra. They contain no reference to these defendants or to these plaintiffs or to this suit. They relate to my background and my associations, not to any party in this action personally, and are therefore insufficient to show the personal bias required by the statute. Parker Precision Products Co. v. Metropolitan Life Insurance Co., supra; Price v. Johnston, supra. In the words of Chief Judge Parker, they show "at most, zeal for upholding the rights of Negroes under the Constitution and indignation that attempt should be made to deny them their rights. A judge cannot be disqualified merely because he believes in upholding the law, even though he says so with vehemence." Baskin v. Brown, supra, 174 F.2d at 394. The affidavits which recite these remarks are therefore clearly insufficient, as a matter of law, to justify my disqualification.
Because these motions for disqualification touch me personally, I resolved, when they were filed, to give defendants' arguments the fullest possible consideration. Accordingly, I carefully reviewed all of the cases cited by Local 542 in its memorandum in support of the § 144 motion.
This research has convinced me that defendant's position, though rich in good faith, is devoid of merit. Each of those cases arose out of a factual context radically different from this one. None of them compels the result that defendant urges me to reach here. Only a handful of them, those in which a judge recused himself voluntarily when he had no legal obligation to do so, even suggest that result. And, for reasons that I will presently set out, I emphatically do not believe that these cases of voluntary recusal are apt precedents for my decision on these motions to disqualify.
Defendant Local relies primarily on the sweeping language of Justice McKenna in Berger v. United States, supra. Its reliance, however, is totally misplaced. In Berger, the affidavit filed in support of the motion for disqualification alleged that the presiding judge in an espionage trial, the Honorable Kenesaw Mountain Landis, was prejudiced against the defendants because they were German-Americans. The affidavit further alleged that Judge Landis had said, inter alia, that "[if] anybody has said anything worse about the Germans than I have I would like to know it so I can use it"; that "[one] must have a very judicial mind, indeed, not to be prejudiced against the German-Americans in this country. Their hearts are reeking with disloyalty"; and that "[you] are of the same mind that practically all the German-Americans are in this country, and you call yourselves German-Americans. Your hearts are reeking with disloyalty." 255 U.S. at 28-29, 41 S. Ct. at 231. Unquestionably, these remarks, made in the context of an espionage trial with German-American defendants, gave "fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment," 255 U.S. at 33-34, 41 S. Ct. at 233, and amply justified the broad language of Justice McKenna's opinion. The instant case is altogether different on its facts. My remarks, as recited in defendants' affidavits, were in no way related to this case. They were addressed to a group of scholars, not to union men generally or to operating engineers in particular. They referred neither to the defendants here nor to the plaintiffs, neither to employment discrimination suits generally nor this cause in particular. They did not promise partiality to blacks in civil rights actions. If anything, they encouraged blacks to explore forums other than the federal courts for the redress of their grievances. While it is concededly difficult for a man to act as judge in his own case, I do not find that my remarks gave "fair support to the charge of a bent of mind that may prevent or impede partiality of judgment." Consequently, Berger v. United States, supra, is, on its facts, clearly distinguishable from the instant case. According to William Shakespeare, "Macduff was from his mother's womb untimely ripp'd." Macbeth, Act V, Scene VIII. Similarly, in an attempt to buttress defendant's memorandum, Mr. Justice McKenna's language in Berger was from its context irrelevantly "ripp'd."
The decision of the Court of Appeals for the Third Circuit in United States v. Townsend, supra, though liberally cited in defendant Local's memorandum, likewise provides scant support for defendant's position in this matter. In Townsend, the affidavit filed in support of the disqualification motion asserted, inter alia, that the trial judge in a prosecution for a selective service violation had said at a pretrial conference that "he felt a duty to pressure conscientious objectors into submitting to induction and that a uniform thirty months sentence was the best way to effectuate that policy." 478 F.2d at 1073. This allegation, said the Court of Appeals, was sufficient to show "a bent of mind that may prevent or impede impartiality of judgment." Id. at 1074. Again, the facts in this case are wholly different. My remarks were not directed to these plaintiffs or these defendants; they did not concern the issues that are controverted in this case nor did they intimate any view on the merits of this case. Defendant's reliance on United States v. Townsend, supra, is therefore manifestly misplaced.
Defendant also quotes extensively from Mr. Justice Frankfurter's opinion in Public Utilities Commission v. Pollak, 343 U.S. 451, 72 S. Ct. 813, 96 L. Ed. 1068 (1951), where he disqualified himself from participating in the Supreme Court's disposition of that case. In all candor, I must confess that this citation shed very little light on the issue before me. My respect for Mr. Justice Frankfurter is deep and long-standing. Nevertheless, his personal antipathy to the installation of FM radio receivers on public buses has absolutely nothing to do with the legal sufficiency of the facts alleged in defendants' affidavits. Mr. Justice Frankfurter's views on the propriety of disqualification are more accurately revealed by his conduct in United States v. Hutcheson, 312 U.S. 219, 61 S. Ct. 463, 85 L. Ed. 788 (1941). Prior to joining the court, he had co-authored a classical critique of abuses by the federal courts of their equitable jurisdiction in labor disputes. F. Frankfurter and N. Green, The Labor Injunction (1930). He had also helped to draft the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101 et seq. (1970), which was designed to curb these abuses. Yet in United States v. Hutcheson, supra, one of the leading cases interpreting the scope of the Act, he not only did not disqualify himself, he wrote the Court's opinion.
Similarly, as a United States Senator, Mr. Justice Black had been a principal creator of the Fair Labor Standards Act, 52 Stat. 1060, 29 U.S.C. § 201 et seq. (1970). He nevertheless heard, and voted with the Court majority in, the case which upheld the constitutionality of the Act, United States v. Darby, 312 U.S. 100, 61 S. Ct. 451, 85 L. Ed. 609 (1941).
At issue in Morris v. United States, 26 F.2d 444 (8th Cir. 1928), were the timeliness and the good faith of the motion for disqualification. Neither of those issues is disputed here.
In Nations v. United States, 14 F.2d 507 (8th Cir. 1926), the affidavit held sufficient to justify disqualification alleged that the trial judge had stated, prior to trial, that the defendant was guilty of the crime he had been charged with. That is not this case.
In Schmidt v. United States, 115 F.2d 394 (6th Cir. 1940), affiants alleged that the trial judge had assisted the prosecutors in the preparation of their case against the affiants. Clearly, that is not this case either.
In Gladstein v. McLaughlin, 230 F.2d 762 (9th Cir. 1955), the trial judge had initiated, sua sponte, a disbarment proceeding against affiant. The latter's affidavit recited statements by the judge which demonstrated prejudice toward the affiant individually and toward a class to which he belonged. Not unnaturally, the Court of Appeals found the affidavit sufficient to disqualify the judge. Once more, however, that case is not this one. In Connelly v. United States District Court, 191 F.2d 692, 695 (9th Cir. 1951), the trial judge had stated his belief that petitioner was a Communist, that Communists hid behind the Constitution, that they "would overthrow that very document and the country that it rests upon," and that "the Communist Party was an illegal conspiracy to overthrow the government of the United States." Though the affidavit reciting these facts sufficed to justify disqualification, the case itself can scarcely be said to control the instant one. In Offutt v. United States, 348 U.S. 11, 75 S. Ct. 11, 99 L. Ed. 11 (1954), such great antagonism had developed between the trial judge and defense counsel during a criminal trial that the Supreme Court held it appropriate for another judge to preside over criminal contempt proceedings against the defense attorney. Offutt does not control the issue here either.
In addition to Public Utilities Commission v. Pollak, supra, defendant has referred this Court to three other cases where judges have voluntarily disqualified themselves. They furnish no support for defendant's position on the legal issue to be determined here. The presiding judge in United States v. Gilboy, 166 F. Supp. 220 (M.D. Pa. 1958), recused himself, not because of the legal sufficiency of the facts pleaded in the affidavit urging disqualification, but sua sponte in order to expedite affiant's trial for conspiracy. Similarly, in United States v. Quattrone, 149 F. Supp. 240 (D. D.C. 1957), the trial judge emphatically stated that he was not required by law to recuse himself, but said that he did so only because, having discussed the case with an individual who was not counsel of record, he might appear to have been influenced by that individual. Finally, in United States v. Valenti, 120 F. Supp. 80 (D. N.J. 1954), the presiding judge recused himself sua sponte out of an excess of caution, but only after he had carefully considered and rejected the legal sufficiency of the facts pleaded in the affidavit in support of disqualification. In each of these cases, however, the recusing judge understandably felt obliged to offer some explanation for his action. I feel an analogous obligation to explain, not just why I have chosen to remain in this case, but why, in my judgment, it is absolutely essential that I not withdraw from this case.
BEING BLACK, AND THE APPEARANCE OF IMPARTIALITY
(2) Some of the defendant union's members are white;
(3) The instant case involves a claim of racial discrimination;
(4) "By agreeing to appear before such group [The Association for the Study of Afro-American Life and History] Judge Higginbotham presented himself as a leader in the future course of the black civil rights movement,"
(5) By my appearance at the Association's meeting and/ or by the substance of the remarks I actually made or as they were quoted in the newspaper, "the continuation of [Judge Higginbotham] as finder of fact, molder of remedy, and arbiter of all issues constitutes judicial impropriety."
Thus a threshold question which might be inferred from defendants' petition is: Since blacks (like most other thoughtful Americans) are aware of the "sordid chapter in American history"
of racial injustice, shouldn't black judges be disqualified per se from adjudicating cases involving claims of racial discrimination? Defendants do not go so far as to precisely assert that black judges should per se be disqualified from hearing cases which involve racial issues, but, as will be demonstrated hereinafter, the absolute consequence and thrust of their rationale would amount to, in practice, a double standard within the federal judiciary. By that standard, white judges will be permitted to keep the latitude they have enjoyed for centuries in discussing matters of intellectual substance, even issues of human rights and, because they are white, still be permitted to later decide specific factual situations involving the principles of human rights which they have discussed previously in a generalized fashion. But for black judges, defendants insist on a far more rigid standard, which would preclude black judges from ever discussing ...