The opinion of the court was delivered by: J. WILLIAM DITTER, JR.
This is a suit for treble damages and attorneys' fees brought by a law school against the American Bar Association, three other organizations involved with legal education, and 22 individual defendants who worked with or for these organizations. The suit results from the ABA's failure to grant the school accreditation.
Presently before me is plaintiff's motion for my disqualification based on the contention that my impartiality might reasonably be questioned. Relying on the provisions of 28 U.S.C. § 455(a), plaintiff asserts that my conduct in this litigation creates the impermissible appearance of bias. In a reply memo in further support of its motion, plaintiff next alleges that my "prominent role" in the efforts 20 years ago of another law school to receive accreditation means that I have been "personally involved with issues that lie at the very heart of this action."
Plaintiff goes on to contend that although I notified the parties about my former membership in the ABA at the start of this litigation, I lied to them when I stated the issues here involved are "issues about which I never thought until this case was brought" because the record now reveals I was familiar with those issues based upon my "involvement" with the other law school.
My impartiality is questioned for a fourth reason. Plaintiff's motion is supported by an affidavit of its dean. In that affidavit, he also maintains that I should have brought to plaintiff's attention the fact that I serve on the Board of Consultors of the Villanova University School of Law. The dean advances this argument despite the fact that Harold E. Kohn, Esquire, the attorney for plaintiff who signed the complaint in this case, is himself a member of that same Board of Consultors and was, of course, aware of my membership.
I shall consider plaintiff's contentions in this order: my "involvement" 20 years ago with another law school; my alleged falsehood; my membership on the Board of Consultors with Mr. Kohn; and the rulings I have made in this matter.
I. The Law of Disqualification
Plaintiff's motion for my recusal is brought under the provisions of 28 U.S.C. § 455(a) which states:
Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
In United States v. Nobel, 696 F.2d 231, 235 (3d Cir. 1982), cert. denied, 462 U.S. 1118, 77 L. Ed. 2d 1348, 103 S. Ct. 3086 (1983), the court of appeals interpreted section 455(a) to require disqualification if there is a "reasonable factual basis for doubting the judge's impartiality ..." See also United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983). It has also been held that evidence of bias must relate to extrajudicial events or sources of information rather than those that come from facts a judge learns from his or her involvement in a case. United States v. Rosenberg, 806 F.2d 1169 (3d Cir. 1986).
Just as a judge should grant the recusal motion where there are sufficient facts to show that a reasonable person would question the judge's impartiality, a judge also has an affirmative duty not to recuse himself or herself in the absence of such proof. United States v. Berger, 964 F.2d 1065, 1070 (10th Cir. 1992); Grand Entertainment Group Ltd. v. Arazy, 676 F. Supp. 616, 619 (E.D. Pa. 1987).
When proceedings are brought under 28 U.S.C. § 455(a), a judge need not accept as true the motion's factual allegations, but may contradict them with facts drawn from his own personal knowledge. United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985); see also United States v. Sciarra, 851 F.2d 621, 625 n. 12 (3d Cir. 1988). In addition, a judge is not prevented from sitting because he comes into every case with a background of general personal experiences, associations, and beliefs. Commonwealth of Pennsylvania v. Local Union 542, Int'l Union of Operating Eng's, 388 F. Supp. 155, 159 (E.D. Pa. 1974).
The passage of time since the judge's participation in an event may require the conclusion that no reasonable person would question his impartiality. Cipollone v. Liggett Group, 802 F.2d 658, 659 (3d Cir. 1986) (recusal of court of appeals judge in tobacco products liability claim not warranted by the fact that 20 years before, while in private practice, he had represented a cigarette company in a case involving a similar claim). Cipollone also cites cases where a variety of times had elapsed since the event in question including six years, four to thirteen years, three to four years, and twelve years. Recusal was not warranted in any of those cases.
Prior knowledge about the legal issues involved in a case is not grounds for recusal. Cipollene, 802 F.2d at 659.
Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Opinions formed by the judge on the basis of events occurring during the course of the current proceedings do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make a fair judgment impossible. Thus, judicial remarks that are critical or even hostile to counsel, a party, or their case ordinarily do not support a bias or partiality challenge. Liteky v. United States, 127 L. Ed. 2d 474, 114 S. Ct. 1147, 1157 (1994).
In the Third Circuit, review of a district court's action on recusal is by an abuse of discretion standard. Normally, the judge's rulings do not constitute grounds for recusal. Johnson v. Trueblood, 629 F.2d 287, 291 (3d Cir. 1980).
When a judge is named in a mandamus petition, he should not file an answer. His failure to do so should not be taken as an admission of the truth of the allegations of fact contained in the petition. It is appropriate, however, for the judge to file a memorandum in the court of appeals in support and explanation of his challenged action. Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 165 (3d Cir. 1993).
II. My Personal Involvement with the Delaware Law School
In its reply memorandum in further support of its motion for my disqualification, the plaintiff states that the essence of its motion is that I have been personally involved with the issues that lie at the very heart of this action because of what I did in 1974-75 to obtain accreditation from the ABA for the Delaware Law School. What it purports to be the factual basis upon which plaintiff relies is found in an affidavit of its dean, Lawrence R. Velvel. The Delaware Law School events are referred to for approximately 38 pages. Central to Mr. Velvel's statement is the fact that my son, J. William Ditter, III, was a student at the Delaware Law School in 1974-75, and the assertion that I was "one of the most active" members of a committee of judges that tried to help Delaware Law School obtain accreditation. Affidavit of Lawrence Velvel at 27.
Mr. Velvel goes on to relate that at least three law suits arose out of the school's accreditation efforts.
He states that the relevant events concerning Delaware Law School are detailed in those opinions, most extensively in the opinion of Judge Becker in Plechner v. Widener College, Inc., 418 F. Supp. 1282 (E.D. Pa. 1976). Mr. Velvel quotes from Judge Becker's opinion concerning the events of 1974-75. It was:
a tense and critical period in the life of DLS when accreditation of DLS by the American Bar Association (ABA) was in doubt. Unless DLS was accredited prior to the graduation of DLS' first class, graduating students in that class would not be qualified to take the bar examinations in most states. Moreover, later accreditation would not have the effect of qualifying these students. Plechner, 418 F. Supp. at 1285.
The critical time in the quest for accreditation was the summer of 1975, when the first DLS class was about to graduate, for, as we have noted, under most state bar admissions standards subsequent accreditation does not resurrect a wasted law school career. Id. at 1287.
As a result of the failure of DLS to obtain accreditation after two inspections and with graduation less than one year away, the students and their parents (led by those parents who were judges and lawyers) became gravely concerned and began to articulate that concern. Id at 1289 (emphasis added).
Initially, it should be noted that my son, J. William Ditter, III, was not in the first Delaware Law School class to which Judge Becker refers and therefore the summer of 1975 was not the "tense and critical" time for him as it was for those who were about to graduate. He was graduated the following year, in June of 1976. I am confident that Mr. Velvel's failure to mention this important fact and note the bearing it would have with regard to my interest, concern, and activity on behalf of the school was mere inadvertence on his part.
A. Judge DiBona and the Delaware Law School
Mr. Velvel next extensively references to the deposition of the late G. Fred DiBona, then a member of the Court of Common Pleas of Philadelphia, who died on January 31, 1980. In its reply memorandum in further support of its motion for my disqualification at page 7, plaintiff's counsel notes "neither Judge Ditter's name nor that of his son is mentioned in any of the reported decisions related to the DLS accreditation struggle." It is apparent, therefore, in characterizing my knowledge of the Delaware Law School and my activities on its behalf, Mr. Velvel is relying upon Judge DiBona's deposition, Velvel Aff., Vol. I, ex. 14, and his testimony in Avins v. White, Velvel Aff., Vol. I, ex. 17, and the other three exhibits that refer to me by name: the deposition of the Honorable Louis E. Stefan, who died on September 9, 1994, Velvel Aff., Vol. I, ex. 11, the deposition of Alfred Avins,
Velvel Aff., Vol. I, ex. 15, and my own deposition, Velvel Aff., Vol. I, ex. 16.
It is Mr. Velvel's contention that MSL's complaint in this case and Exhibit "A", which accompanied it, must have brought what he calls the DLS "embroglio"
to my mind and thus led me to the conclusion that the facts concerning MSL and DLS were so similar that an objective person would conclude I could not be impartial as to MSL. It is, therefore, necessary to set forth the Delaware Law School situation in 1974-75 as related by Judge DiBona in his deposition and his account of his activities. Before I do so, however, there are several things I wish to make perfectly clear. First of all, until I read the complaint in this matter, I had never heard of MSL. Second, the facts that I am stating about Delaware Law School come from Judge DiBona's deposition, not from my memory. Third, what I knew about these matters in 1974-75 came almost exclusively from Judge DiBona, as contrasted with from my own firsthand knowledge or activity. Fourth, I have had no reason to think about these matters for almost 20 years and have not done so, and finally, it is Mr. Velvel, not I, who sees the connection between these facts and the conditions that exist at the Massachusetts School of Law and why they would cause a reasonable person to question my impartiality.
According to Judge DiBona:
(1) As a result of a request made to him in 1974 by Alfred Avins, dean of Delaware Law School, Judge DiBona formed a group known as "The Judges' Committee of the Delaware Law School." Velvel Aff. ex. 14 at 56. Its purpose was to give aid to the school. The real core of the group, the more active members were Judges Ditter, Mirarchi, Blake, Hirsch, Shiomos, and three lawyers, A. Charles Peruto, John or Lou DiGiacomo, and Daniel Rendine. Id. at 57. The first meeting of the committee was right after the second ABA report. Supplemental Affidavit of Lawrence R. Velvel, ex. A at ll.
(2) In the winter-spring of 1974, Judge DiBona saw an ABA report concerning DLS. It concluded that the school, its faculty, its library, and its board of trustees were below the standards that were expected of a law school for ABA accreditation. Velvel Aff. ex. 14 at 54-55.
(4) Judge DiBona talked with a member of the Wilmington bar who said that its members thought DLS "was a horrible institution. They thought Avins was an utter disgrace to the community. ... They just thought it was not a good law school, to put it very mildly." Id. at 73.
(5) Judge DiBona noted other problems. "The building was in frightful shape. The classrooms were greatly inadequate size-wise, square footage per student, visibility or control of a class." The library was deficient in many, many respects. There was an inadequate number of volumes. There was no librarian. The library was not open a sufficient number of hours per day to accommodate the needs of the students. Id. at 90-91.
(6) Judge DiBona was concerned about the way the school was run. "It was strictly a one-man operation. There were no records of any kind kept." File folders were kept in Welch's fruit juice cartons. "Some of the desks the students were being asked to use were of a size that would be too small for a kindergarten child." Id. at 67. Mr. Avins refused to spend money to provide the things that "obviously had to be done to help the law school." Id. at 67-68. The judges "pretty well came to the conclusion that perhaps a change of deanship might be indicated." Velvel Supp. Aff. ex. A at 20.
(7) At one of the judges' committee meetings, it was decided that there should be an independent investigation to determine what the accreditation problems were. As a result, it was suggested that Judge DiBona attend the August, 1974, ABA meeting in Hawaii. During that period the judges' committee had "many meetings," "several meetings" in Judge DiBona's chambers. Velvel Aff. ex. 14 at 58-59.
(8) Approximately a week before Judge DiBona left for Hawaii, he learned "the students of the law school had become extremely restless and that they were contemplating some drastic measures to correct what they thought were some of the problems that were hindering their accreditation process." Judge DiBona went to a meeting they had scheduled, but was regarded with "great suspicion" because many of the students thought he was there as Mr. Avins' representative. Judge DiBona spent two hours answering the students' questions. Id. at 59-60. Judge DiBona learned the students contemplated "the passing of resolutions demanding the ouster of Avins, demanding the ouster of a good portion of the faculty, ... the board of trustees. There were threats of a law suit, the appointment of a receiver and all that kind of talk was going on." Judge DiBona told the students he was going to Hawaii and he "pleaded with them not to take any action" until he could return and report to them about what he had learned there. Id. at 61-62.
(9) A few days before this meeting, Mr. Avins had told Judge DiBona that "he recognized the fact that he was the stumbling block to accreditation, that he knew there was no way Delaware Law School would be accredited so long as he remained the dean. ..." Id. at 63.
(10) Before Judge DiBona went to Hawaii, id. at 66, he met for dinner at Luigi's Restaurant, with Judge Ditter, Charles Peruto, and Mr. Avins. Mr. Avins said one of the reasons he started Delaware Law School was " because it was the only place he could get a job as a law school teacher, that it would have to be his own law school, one that he founded, to obtain a job as a teacher in a law school because he was a controversial figure." Id. at 65. His "learning," writing-productivity, and his degrees "made everyone in the ABA envious of him and that ... would result in non-accreditation so long as he remained the Dean." Velvel Supp. Aff. ex. A at 21-22.
(11) Judge DiBona went to Hawaii and found that his worst expectations had been realized. He "talked to Kelso ... to Jim White ... to Ruschlein ... and to many people whose names" he did not even know. Velvel Aff. ex. 14 at 78. Judge DiBona told them that he wanted to find out what the problems were. They told him "a lot of the things that made it very clear ... that there was just no way on earth we would get accreditation as long as Avins was the dean. ... he had a lousy faculty and that he would never get a better faculty so long as he lived." One of the reasons was his character and secondly, he would not permit a situation where good faculty members could come aboard. Id. at 80. The salary scale was so low that it could not attract people. Id. at 81.
(12) Judge DiBona learned of other problems with the faculty. "They were not competent. They were not the kind of people who should be entrusted with the teaching of law to students ... They didn't have the kind of ability, they didn't have the kind of freedom, they didn't have the kind of intelligence, experience, devotion." Judge DiBona agreed with that assessment of the faculty. Id. at 86.
(13) Judge DiBona was also told the trustees were controlled by Mr. Avins. None had any expertise or knowledge in the teaching of law. None had knowledge with respect to finance, public relations, accounting, or fund raising. Id. at 91-92.
(14) Judge DiBona was informed by the persons with whom he met in Hawaii that Mr. Avins had lied to them. "A law school is supposed to have faculty committees, have meetings, and file reports with respect to it and they learned after they had been handed a batch of these reports, they discovered somehow, that, in fact, these committees had never met. There were no such committees and these reports were prepared in a batch by students upon orders by Alfred Avins, that they falsely represented that, in fact, a meeting had been held or meetings had been held." Id. at 87. In addition, one of the ABA inspection teams assigned to the library reported to Mr. Avins the absence of a series of books which a good law school library would have. Mr. Avins said the books were there, and the next morning showed them to a member of the inspection team. "They checked and found that those books had been procured in Washington, D.C. ... during the middle of the night. They used several students to go down there and pick up the books and sneak them into the library." The attitude of those with whom Judge DiBona spoke was that "apart from the fraud that he had practiced upon them, that this was hardly a dean of a law school whose function, one of his chief functions is to teach ethical standards to students, would have his students practice pretty unethical kind of things." Id. at 88-89. Mr. Avins admitted in Judge DiBona's presence that this incident had occurred. Id. at 89.
(15) After Judge DiBona returned from Hawaii, he met with Mr. Avins and discussed with him the terms under which he would step down as dean. Mr. Avins wanted to have time to think about it. Id. at 93-94. Judge DiBona told Mr. Avins "he did not have that kind of time because the student meeting was scheduled for August 20 at which Judge DiBona was expected to report about the results of his trip to Hawaii." Id. at 94.
(16) It was agreed that Judge DiBona would tell the students that Mr. Avins had received Judge DiBona's report and was trying to work out the problems that it revealed. Id. at 95.
Senator Steele went on to express his views on accreditation: "The McGovern-like ABA was out to get the conservatives of America, that's all the problem was. There's nothing wrong with the building, nothing wrong with the faculty, there's nothing wrong with Avins, nothing wrong with anything. It was the McGovern-like communist leaders of the ABA out to get the conservatives of America." Id. Judge DiBona spoke again this time in a highly critical manner of the board and of Mr. Avins, saying that no one should stand in the way of those who were seeking a legal education. The meeting then broke up. Id. at 99-100.
Thereafter, Judge DiBona "discussed Mr. Avins' resignation with the students at student meetings, with every member of the board, and had 20 or 30 meetings with Alfred Avins personally to discuss Mr. Avins' resignation. Id. at 103, 108-09. Judge DiBona's purpose was to influence Mr. Avins to resign and to influence the board to accept his resignation or to fire him. By this time, Judge DiBona believed that Mr. Avins knew he was no longer acting in the best interest of DLS. Mr. Avins did not care "whether he got accreditation, whether the kids graduated with accreditation or what-have-you. I never believed that Avins wanted accreditation." Id. at 104.
(18) The students met with Mr. Avins and asked him to resign. A resolution had been passed in connection with emoluments for his resignation, but it was impossible to get any definitive position from him. Id. at 108-109.
(19) On one occasion, Judge DiBona met with Mr. Avins for an hour and fifteen minutes and Mr. Avins repeated the same assertions, "'there's nothing wrong with the school. The faculty is great. It's the communist, it's the ideological difference and we are going to go to court, we're going to beat them in court. We're going to get mandamus, sue them in Alabama, somehow.'" Judge DiBona then threatened to bring legal action against Mr. Avins to have a receiver appointed to take over the operation of the school. Id. at 110-111.
(20) Although he did not attend the meeting, Judge DiBona learned that on August 24, 1974, a delegation of students went to Mr. Avins, demanded his retirement, threatened to strike, picket him, and threatened him with possible violence unless he retired. At the same time, they promised to name the school for him and grant him a stipend if he did retire. Id. at 115-116.
(21) On September 8, 1974, Mr. Avins resigned at a meeting of the board of trustees called to consider his resignation and the appointment of new trustees, including Judge DiBona. Id. at 100, 102. At that meeting, Judge DiBona said that the board should not appoint any new members until they had an opportunity to gain some input from the new dean.
(22) While Judge DiBona was in Hawaii, he was told that Arthur Weeks would make a good dean for DLS. The next he heard of Weeks was when he learned that Mr. Avins wanted Weeks to be the new dean. Id. at 117-118. Although Judge DiBona had never met Mr. Weeks, he was pleased with the selection. Id. at 120. Following Dean Weeks' appointment, Judge DiBona supported him. Id. at 127.
(23) On September 12, 1974, Judge DiBona wrote to James Patrick White at the Indianapolis School of Law. He was consultant to the council on legal education of the ABA and Judge DiBona wrote to him to explain why he felt the Board of Trustees at DLS should not fill any vacancies until they had input from the new dean. Id. at 131-32.
(24) In Judge DiBona's opinion, Dean Weeks made tremendous improvements in the law school between the time of his appointment in September, 1974, and the mid-year meeting of the ABA in February, 1975. Id. at 134. Judge DiBona attended the ABA committee meeting which considered the application of DLS for accreditation. Id. Accreditation was refused.
(25) In November or December 1974, Judge DiBona heard that there was a possibility that DLS would affiliate with another school. Dean Weeks had previously told him that such an affiliation might be the answer to obtaining accreditation. Id. at 137.
(26) Judge DiBona favored affiliation in the spring of 1975 because the first class was about to graduate. He met constantly with students and parents. Nonetheless, he left the affiliation matter to the board of trustees and he did not become involved at all with any negotiations with Widener College. Id. at 146-147.
(27) Shortly after he returned from Hawaii, Judge DiBona organized the "parents association" -- a separate group from the Judge's Committee. Id. at 74-75. No one was with him in this organization effort at the beginning. Id. at 106. It resulted from the fact that parents began to come to meetings of the board of trustees. In early 1975, the parents' association raised between $ 6,000 and $ 7,000 to obtain counsel to go to court if necessary, "to force Delaware Law School to act in what the parents considered the best interests of the school." Id. at 108.
(28) In the spring of 1975, Judge DiBona attended a parents' meeting where it was agreed that each would put up $ 50. to create a legal fund to force the board of trustees of DLS to consider affiliation. Id. at 138-139. By that time, Alex Sarcione, Mitchell Milner, "Reidel's father-in-law," and Judge DiBona were the active ones in the parents group. Id. at 142. Approximately $ 6000 or $ 7000 was raised but no suit was started because in April, 1975, the board agreed to seek accreditation. Id. at 141. Some of the money was used to pay an attorney who had been hired by the students to represent their interests. Id. at 141-142.
(29) From the day that Judge DiBona met Mr. Avins he felt "he was an eccentric, a little nuts, ... a little weak ...," an opinion a lot of other people shared. Nonetheless, Judge DiBona "tried everything in the world to help him." Id. at 113. Judge DiBona was at Mr. Avins beck and call." Judge DiBona did everything humanly possible to try to raise funds, and even donated his own library to the school. He spoke at meetings, tried to obtain guest speakers for Mr. Avins, introduced him to people and did everything possible to cooperate with him because he admired Mr. Avins and thought he was "an unusually great guy." Id. at 114.
(30) Judge DiBona spent a couple of thousand hours on the activities of DLS. He started out in an effort to help his son but was soon catapulted into the position where he stood between 665 students and the dean. They would visit him, write him letters, and it got to the point where he felt he had developed some kind of a father/son relationship with the entire student body. Id. at 111-112. At one stage, he had gone to the law school 31 straight nights. Id. at 112.
(31) Prior to his going to Hawaii, Judge DiBona was informed by Mr. Avins that he had been appointed as a member of a building committee created by the board of trustees. Together with Charles Peruto, Esquire, Judge DiBona engaged an architect to prepare plans for three new classrooms. Judge DiBona offered to pay for the furnishings of these three rooms but his offer was rejected by Mr. Avins, who believed that the space should be maintained as an auditorium and not divided into class rooms.
I have referred to Judge DiBona's testimony at such length for three reasons:
First, because Mr. Velvel contends that the situation at Delaware Law School and MSL are so much alike
that my knowledge of the former creates an appearance of bias against the latter.
Second, because Judge DiBona's deposition shows that he was an active, driving force in obtaining accreditation for the Delaware Law School. Based on what he said, it would be reasonable to conclude that to the extent that any individual was responsible for obtaining that accreditation, it obviously was Judge DiBona.
Third, because Judge DiBona's testimony shows my complete inactivity on behalf of Delaware Law School.
Whatever the situation may have been 20 years ago at Delaware Law School and whether or not Judge DiBona's efforts at that time would require his recusal in this case is, of course, not the question I must determine. Rather, the issue is whether my activities -- not his -- create in the mind of an objective observer the appearance of partiality. Critical then would be what I said, did, or knew, as revealed by public records and my own records, the similarity of issues, and the passage of almost 20 years.
Judge DiBona's deposition covers 116 pages. There are eight pages on which reference is made to the judges' committee that Judge DiBona formed, including four pages where I am referred to by name.
Page 56 - In 1974 right after the ABA report had been received, Mr. Avins asked Judge DiBona to form a committee made up of judges who had sons at the law school, a group that could give some aid to the law school.
Page 57 - Judge DiBona described the group he formed as an ad hoc committee and listed some of its more active members. They included Judges Mirarchi, Blake, Hirsch, Shiomos, and Ditter. He also referred to three lawyers, A. Charles Peruto, Lou or John DiGiacomo, and Daniel Rendine. These men were the real core of the group.
Page 58 - Prior to August of 1974, the committee, including Judges Hirsch, Mirarchi and Ditter, together with Mr. Peruto, Dan Rendine, and some others had many meetings with Mr. Avins.
Page 64 - Prior to Judge DiBona's going to Hawaii, he, Mr. Peruto, Judge Hirsch, and Judge Ditter met with Mr. Avins in Judge DiBona's office.
Page 65 - A day or two later Mr. Avins, Mr. Peruto, Judge DiBona and Judge Ditter went to dinner at a restaurant on Second Street.
At that time, Mr. Avins said his insulting manner, his controversial conduct, and his pushing people around had made him an enemy of the ABA. He also said that his inability to get a job as a teacher in a law school was one of the reasons he had started DLS.
Although I am not referred to again by name, Judge DiBona explained on page 77 that he had gone to Hawaii to attend the ABA meeting as the result of a discussion at one of the judges' committee meetings. After his return from Hawaii, parents started coming to meetings of the board of trustees, id. at 107, and so Judge DiBona organized a committee of parents. Id. at 106. This was not the Judge's Committee. (pp. 74, 75) Judge DiBona does not refer to my having been associated in any way with the activities of these parents or the parents' association and, indeed, I was not involved with it in any way.
There are three other exhibits attached to Mr. Velvel's affidavit that refer specifically to me.
In connection with Plechner v. Widener College, 418 F. Supp. 1282 (E.D. Pa. 1976), the deposition of the late Louis D. Stefan was taken. In the two-page excerpt Mr. Velvel provides as Exhibit 11, Judge Stefan relates that in 1973 he responded to an advertisement about a part-time teaching position but after meeting Mr. Avins decided he would not be interested in teaching on a part-time basis or any other basis at Delaware Law School. Sometime in the summer of 1974, he was contacted by Mr. Avins who wanted to know if he would consider being appointed to the board of trustees. Judge Stefan asked for names of those with whom he could discuss the possibility, and Mr. Avins gave him my name. As a result of the fact that we were good friends, Judge Stefan called me and we discussed his becoming a member of the board.
Exhibit 15 is an excerpt from the deposition of Alfred Avins in a suit he brought against Widener College, 421 F. Supp. 858 (D.C. Del. 1976). There are 16 pages provided (the deposition ran beyond page 208). I am referred to on page 75, where Mr. Avins mentions that I had made notes of a dinner meeting that took place prior to Judge DiBona's going to Hawaii in the summer of 1974.
Exhibit 16 is an excerpt of Mr. Avins' testimony in his suit against James P. White, No. 76-134 (D.C. Del.), rev'd, 627 F.2d 637 (3d Cir. 1980). The eight-page excerpt from Mr. Avins testimony consists almost entirely of my deposition, which in turn is dependent upon the notes I made of what Judge DiBona said on or about August 20, 1974, after he returned from Hawaii. In that deposition, Mr. Avins asked me if Judge DiBona had referred to a conversation in Hawaii with James White. I replied that I did not recall his doing so and that there was nothing in my notes to reflect that there had been such a conversation. In addition, I summarized that it was Judge DiBona's belief that the Delaware Law School would never get accredited as long as Mr. Avins was dean.
Mr. Velvel also attached other exhibits to his affidavit: Exhibit 12 is a four-page excerpt from Judge DiBona's testimony in Avins v. White ; Exhibit 17 is a four-page excerpt from the testimony of Mitchell W. Miller, Esquire, and a 58-page excerpt from the testimony of Judge DiBona in Plechner v. Widener ; and Exhibit 18 is a 17-page excerpt from 77 pages of a continued deposition of Richard P. Plechner in Avins v. Widener. There is no reference to me in any of these exhibits.
B. My Lack of Involvement with Delaware Law School
In summary, there are approximately 215 pages of Mr. Velvel's exhibits taken from depositions and testimony before various courts. Judge DiBona refers to me four times, Judge Stefan once, and Mr. Avins once. No judicial opinion refers to me at all. The committee formed by Judge DiBona met with him, discussed his going to Hawaii, had meetings with Mr. Avins, and three of its members met with Mr. Avins for dinner. The depositions Mr. Avins took from me referred to Judge DiBona's report to the committee upon his return from Hawaii. It is apparent from the opinions, depositions, and testimony that Mr. Velvel has attached to his affidavit, that the judges' committee formed by Judge DiBona in 1974 was nothing more than Judge DiBona's sounding board. The last meeting Judge DiBona mentions having with the "committee" (actually only with Mr. Peruto and me) took place before he went to Hawaii, id. at 65, in August, 1974. My file shows that I met last with Judge DiBona on September 4 and thereafter talked with Judges Mirarchi and Hirsch by telephone on September 5. That ended matters so far as any participation on my part was concerned.
Judge DiBona never hints that the members of the judges' committee ever did anything but talk and listen. When he speaks about what he did, Judge DiBona uses the first person singular -- and no other. There is nothing to suggest that any member of the committee went to Delaware Law School, met with Mr. White or any other representative of the ABA or saw any representatives of Widener University. There is nothing to suggest that any member of the committee other than Judge DiBona attended an ABA meeting or any of its committee or counsel meetings. Other than Mr. Peruto, we did not even help defray Judge DiBona's expenses when he went to Hawaii. The judges' committee raised no money and did not threaten any legal action. It did not publish a news letter as did the Parents' Association. No member of the committee, other than Judge DiBona met with the trustees of the Delaware Law School, inspected its facilities, interviewed and evaluated the faculty or even met at all after Alfred Avins resigned on September 8, 1974. It played no part in the decision to seek affiliation with Widener. In short, the judges' committee was a group that for a few months in 1974
watched Judge DiBona from the sidelines. It was Judge DiBona who was owner, coach, defense, offense, and even water boy. From time to time he looked to the stands where some of the committee members supported him with a feeble round of applause. While I am honored that on the basis of four references in Judge DiBona's deposition, (pages 57, 58, 64, and 65), and two pages in his testimony, Velvel supp. aff. at 12 and 21, Mr. Velvel attributes to me "a leading role in the judges committee", page 4, said I was "one of the most active members of the committee of judges," page 12, and stated that I was "a leading member of the Judges' Committee," page 28, that honor is tempered somewhat by my knowledge that this was a committee that did almost nothing and can claim no credit for the accreditation of the Delaware Law School.
C. The Declaration of Alfred Avins
A month after plaintiff's motion for my disqualification was filed, counsel for MSL filed a four-page declaration of Alfred Avins dated November 9, 1994. Mr. Avins states that he was the founding dean of the Delaware Law School which in 1974 and 1975 sought accreditation from the ABA. There were four inspections with accreditation not being granted until after the fourth.
In paragraph 3 of his declaration, Mr. Avins summarizes the alleged shortcomings at Delaware Law School noted by James White and "his accreditation colleagues." In paragraph 4 he reports that a committee was formed to assist in obtaining accreditation. He said it was sometimes referred to as the Judges' Committee and at other times as the Parents' Committee but he refers to it as the former. In paragraph 5 he says I was one of the leading members of that committee, also naming Judge DiBona, Judge Mirarchy (sic), Judge Edward Blake, and the late Judges Hirsch and Shiomos, as well as A. Charles Peruto, Sr., Esquire.
In paragraph 6 he says that he met on "many occasions with members of the Judges' Committee, including Judge Ditter." He goes on, "the members of the Judges' Committee, including Judge Ditter, were strongly in favor of meeting the ABA's demands for rectification of the alleged shortcomings of DLS, and the Committee members, including Judge Ditter, repeatedly urged upon me that DLS should do what the ABA demanded."
In paragraph 7 Mr. Avins states, "Members of the Judges' Committee, including Judge Ditter, also met with ABA accreditors during inspection functions."
He goes on to say in paragraphs 8 and 9 that in 1974, it became clear that DLS would not be accredited as long as he was its dean because the ABA accreditors, especially James White, disliked the fact that he was resisting the ABA's demands and "the fact that I was politically conservative." Members of the Judges' Committee pressed him to resign "at a meeting which began in Judge DiBona's chambers and was continued at Luigi's restaurant. Judge Ditter was present at that meeting and took notes of it."
In paragraph 10 he sets forth that he took my deposition concerning that meeting and that my notes played an important role in the testimony I gave.
I have referred to Mr. Avins' declaration at some length because it is erroneous in so many respects. While I know his errors are matters of inadvertence and are explainable by the more than 20 years that have elapsed since the events in question, that in no way diminishes the number nor degree of his mistakes. What Mr. Avins says in 1994 differs from his deposition testimony of June 20, 1978, Velvel Aff., Vol. I, ex. 15; differs from Judge DiBona's deposition of March 31, 1976, id. ex. 14; and his testimony before Judge Becker on May 11, 1976, id. ex. 17; differs from my deposition taken on January 31, 1977, id. ex. 16; differs from my contemporaneous notes; and differs from my recollection.
(1) In paragraph 9 of his November, 1994, declaration, Mr. Avins says members of the Judges' Committee urged him "to step down from the deanship." In the excerpts from Mr. Avins' June 20, 1978, deposition, he says nothing about being urged "to step down from the deanship" by the Judges' Committee, the Parents' Association, or by me. According to Mr. Avins, it was the students of the Delaware Law School who mentioned in the summer of 1974 that he should resign. This took place after Judge DiBona returned from Hawaii. Id., ex. 15 at 77. He first considered resigning as dean of the law school after Judge DiBona returned from Hawaii. Id. at 71-72.
(2) In his November, 1994, declaration Mr. Avins expands on the matter of his resignation and refers to the dinner meeting at which I was present and comments that I made contemporaneous notes. He says the matter of his stepping down from the deanship was "pressed" on him at that meeting. In his June 20, 1978, deposition, however, Mr. Avins makes it clear that the dinner meeting, which included Judge DiBona, took place prior to Judge DiBona's trip to Hawaii, says that the purpose of that trip was to overcome the "political problems" that he had with the ABA, that there was no discussion of his resignation with Judge DiBona prior to Judge DiBona's trip to Hawaii, and that he did not consider resigning until after Judge DiBona came back from Hawaii. Id. at 74-75, 76, 73. In short, having established in his June 1978 deposition that the dinner meeting was before Judge DiBona went to Hawaii and that he did not discuss resignation with Judge DiBona until after the Hawaiian trip, Mr. Avins' November 1994 declaration says he was "pressed" at that same dinner meeting to step down from the deanship. The notes I made of that meeting confirm Mr. Avins' recollection in his June 1978 deposition that there was no discussion about his resigning and contradict his November, 1994, declaration that at that meeting he was "pressed" to do so.
(3) In paragraph 10 of his declaration of November 9, 1994, Mr. Avins referred to the fact that he deposed me in connectino with his suit against James White. He states that the deposition dealt with this same meeting, that is, the meeting where he was "pressed" to resign. He is mistaken. Actually, the deposition dealt with a meeting of on or about August 20 that I attended in Judge DiBona's chambers. Mr. Avins was not present at all and there was no reference to Mr. Avins' resigning. These notes are contained in footnote 13. It is tru, however, that approximately a week later my notes show that I talked with Judge DiBona by telephone and at that time he told me that he had separate meetings with Senator Steele, the trustees, some students, and with Mr. Avins and that at that point he believed Mr. Avins would resign gracefully.
(4) In his November, 1994 declaration, Mr. Avins is wrong when he lumps the Judges' Committee and the Parents' Association together and refers to them as the "Judges' Committee." Judge DiBona's deposition makes it very clear that there were two committees. Velvel Aff., Vol. I, ex. 14 at 74-75. He first organized the Judges' Committee in 1974 after the first ABA report and did so at Mr. Avins' request. Id. at 56. This was the committee of which I was a member. Id. at 57, 58, 64, & 65. After Judge DiBona returned from Hawaii, parents started coming to the meetings of the board of trustees and Judge DiBona then organized the "Parents' Association." Id. at 106, 107. According to Judge DiBona, this was the committee that involved "Alex Sarcione, Mitchell Milner,(sic)and myself [Judge DiBona], a lawyer over in New York, -- Reidel's father-in-law." Id. at 142. The "Parents Association, D.L.S." issued a three-page newsletter that listed its officers, "Morris A. Paley, Esq., President, Bernard L. Les, M.D., Secretary, [and] Alexander V. Sarcione, Treasurer." Velvel Aff., Vol. I, ex. 17 at 254-55.
(5) In paragraph 6 of his November, 1994, declaration, Mr. Avins states that he had many meetings with the members of the Judges' Committee, the members of the Judges' Committee were strongly in favor of meeting the "ABA's demands," and that the committee members repeatedly urged upon him that Delaware Law School should do what the ABA demanded. There is no hint in Mr. Avins' June, 1978, deposition that the Judges' Committee was strongly in favor of meeting the ABA's demands and that it urged him to do so. Mr. Avins does say he had "conversations" with "a couple of Judges and lawyers," who were parents of students. Id. ex. 15 at 74-75. He was specific about only two of them, a dinner meeting which I attended, where the subject of resignation did not come up although "at some point or other somebody raised the matter of my taking a leave of absence for a year. I don't recall the context." Id. at 76-77. This was the same dinner meeting referred to in subparagraph (2), p. 30, and footnote 16. After Judge DiBona's return from Hawaii, there was a second meeting, a luncheon with Judge DiBona, Judge Kirsch (sic), Judge Mirarchi, and "I think a couple of others". Id. at 78. Mr. Avins does not refer to me, to anyone's being "strongly in favor of meeting the ABA's demands for rectification of the alleged shortcomings of DLS," or that anyone "repeatedly urged upon [him] that DLS should do what the ABA demanded." Mr. Avins certainly knew my name when his deposition was taken on June 20, 1978, knew I was a federal judge in Philadelphia, and knew I had taken notes. Mr. Avins was able to remember the names of students who attended one of his meetings. Id. at 80. In his deposition, Mr. Avins makes only one reference that could remotely suggest that he was "urged" or "pressed" to do anything -- a different meeting he had with Dr. Moll.
At that meeting, Dr. Moll said it was "absolutely necessary to affiliate the Delaware Law School with Widener to get accredited." Id. at 207.
Mr. Avins' 1994 declaration is not only at variance with his own deposition but is at variance with Judge DiBona's deposition and testimony. As I have previously pointed out, there are eight pages in Judge DiBona's 116 page deposition on which reference is made to the Judges' Committee he formed. I am named on four of those pages. On pages 64 and 65 Judge DiBona refers to the meeting that started in his office and ended up at a restaurant. Judge DiBona makes these separate occasions, while my notes show it was all one. In any event, it is plain that Judge DiBona was referring to events that took place before he went to Hawaii. The only other reference to the committee and Mr. Avins appears on page 58 where Judge DiBona says that he went to Hawaii in August of 1974 and that prior to August of 1974 the committee had many meetings with Mr. Avins. Judge DiBona says that during those meetings, there were discussions concerning the law school's problems and an effort to explore the ways that help could be provided to the law school. Velvel aff., ex. 14, at 58-59. There is no reference to urging Mr. Avins to "do what the ABA demanded" or "pressing" Mr. Avins to do anything. There is no reference to any meeting of the Judges' Committee with Mr. Avins after Judge DiBona returned from Hawaii and as Mr. Avins stated in his deposition, page 75, he did not discuss the possibility of resigning with Judge DiBona before Judge DiBona came back from Hawaii.
(6) In paragraph 10 of his November, 1994, declaration, Mr. Avins refers to the deposition I gave. He says that it "dealt in significant part with the meeting at which members of the Judges' Committee pressed [him] to resign ...." As I have previously pointed out, the subject of my deposition and the notes I relied upon dealt with a meeting that took place on or about August 20, 1974. He is wrong again. Mr. Avins was not present at that meeting and my contemporaneous recollection of it is recorded in footnote 13. Mr. Avins' November 1994 declaration is not only wrong about the time of the meeting, his presence at the meeting, and what was discussed, but is also at variance with the questions he asked at my deposition. At no point did any of his questions suggest he had been present or a belief on his part that I had ever urged him, pressed upon him, or even discussed with him, his complying with what he now calls the ABA demands.
(7) Mr. Avins is wrong about one more point. In paragraph 7 of his November, 1994, declaration, he states that members of the Judges' Committee, "including Judge Ditter," met with ABA accreditors during inspection functions [plural]. He named James White as being one of those accreditors. During my deposition, he told me Millard Rudd was the other. I have no present recollection of ever meeting with any ABA accreditors or attending any inspection functions. However, in my January 31, 1977, deposition I state that I did attend one cocktail party in January, 1974, that was given in connection with an accreditation inspection. I make it equally clear in that deposition that it was the one and only "inspection function" that I ever attended ...