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LITTLE ROCK SCH. DIST. v. PULASKI CTY. SPECIAL SCH

April 29, 1987

Little Rock School District, Plaintiff
v.
Pulaski County Special School District No. 1; North Little Rock School District; Arkansas State Board of Education; Wayne Hartsfield; Walter Turnbow; Harry A. Haines; Jim Dupree; Dr. Harry P. McDonald; Robert L. Newton; Alice L. Preston; Jeff Starling; Earle Love; Bob Lyon; John Ward; Judy Wear; Leon Barnes; Marianna Gosser; Steve Morley; Mac Faulkner; Bob Moore; Don Hindman; Shirley Lowery; Sheryl Dunn; David Sain; Bob Stender; Grainger Williams; Richard A. Giddings; George A. McCrary; Buddy Raines; and Dale Ward, Defendants; Katherine Knight, Individually and as President of the Little Rock Classroom Teachers Association (LRCTA); LRCA; Ed Bullington, Individually and as President of the Pulaski Association of Classroom Teachers (PACT); PACT; John Harrison, Individually and as President of the North Little Rock Classroom Teachers Association (NLRCTA); NLRCTA; and Milton Jackson, Individually and as a Non-Certified Education Support Employee of the Little Rock School District, Intervenors; Lorene Joshua, as next friend of minors, Leslie Joshua, Stacy Joshua and Wayne Joshua; Rev. Robert Willingham; Sara Matthews as next friend of Khayyam Davis, Alexa Armstrong and Karlos Armstrong; Mrs. Alvin Hudson as next friend of Tatla Hudson; Mrs. Hilton Taylor as next friend of Parsha Taylor, Hilton Taylor, Jr. and Brian Taylor; Rev. John M. Miles as next friend of Janice Miles and Dereck Miles; Rev. Robert Willingham on behalf of and as President of the Little Rock Branch of the NAACP; Lorene Joshua on behalf of and as President of the North Little Rock Branch of NAACP, Becky McKinney, Mary J. Gage, Janice Dent, and Joyce Person, Intervenors



The opinion of the court was delivered by: WOODS

 Henry Woods, U.S. District Judge.

 I.

 Plaintiff, Little Rock School District (LRSD) has moved the Court to recuse pursuant to 28 U.S.C. § 455(a), which provides:

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

 The test with respect to disqualification under this section is an objective one. The charge of impartiality must be grounded on facts that would create a reasonable doubt as to the judge's impartiality, not in the mind of the judge or in the mind of the litigant moving for recusal, but rather in the mind of a reasonable, uninvolved observer. Gilbert v. City of Little Rock, 722 F.2d 1390 (1983).

 The Eighth Circuit has explained that "a claim of bias must be evaluated in light of the full record, not simply in light of an isolated incident," In re Federal Skywalk Cases, 680 F.2d 1175, 1184 (8th Cir. 1982), cert. denied, Stover v. Rau, 459 U.S. 988, 103 S. Ct. 342, 74 L. Ed. 2d 383 (1982) (emphasis added). Moreover, "a judge is presumed to be impartial, and the party seeking disqualification bears the substantial burden of proving otherwise." Ouachita Nat. Bank v. Tosco Corp., 686 F.2d 1291, 1300 (8th Cir. 1982) (emphasis added). The legislative history to § 455 makes clear that a judge is not to recuse quickly:

 
In assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility 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 proposed legislation should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a "reasonable fear" that the 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. 93-419, 93d Cong., 1st Sess. 1973, p. 5 (emphasis in original).

 Ouachita Nat. Bank v. Tosco Corp. supra, at 1300 (quoting H.R. Rep. No. 1453, reprinted in 1974 U.S. Code Cong. & Ad. News 6351, 6355).

 The Court has an affirmative duty to deny a motion to recuse if recusal is unnecessary, Davis v. C.I.R., 734 F.2d 1302 (8th Cir. 1984). This is particularly true in school desegregation cases, where as here, "a single judge has acquired, by experience, familiarity with a protracted, complex case, which could not easily be passed on to a second judge." Bradley v. School Board, 324 F. Supp. 439, 449 (E.D. Va.1971).

 In desegregation cases, judicial awareness of local conditions is not only permitted, but expected. It is precisely because of a trial court's knowledge of local conditions that trial judges in desegregation cases are given great deference. As Judge Heaney, writing for the majority, noted in an earlier appeal of this case:

 
Undiminished deference [is to be given] to the factual adjudications of federal trial judges in cases such as these, uniquely situated as those judges are to appraise the societal forces at work in the communities where they sit.

 Little Rock Sch. Dist. v. Pulaski Cty. Special Sch. Dist., 778 F.2d 404, 411 (8th Cir. 1985), Cert. denied, 476 U.S. 1186, 106 S. Ct. 2926, 91 L. Ed. 2d 554 (1986), quoting, Columbus Board of Education v. Penick, 443 U.S. 449, 470, 61 L. Ed. 2d 666, 99 S. Ct. 2941 (1979) (emphasis supplied).

 With these principles in mind, I have given careful and deliberate consideration to LRSD's Motion to Recuse.

 II.

 During this long, emotional and highly charged litigation, which was assigned to me in 1982, I have been asked to recuse on four different occasions, by four different parties -- Pulaski County Special School District (PCSSD), Joshua Intervenors, North Little Rock School District (NLRSD) and now LRSD. Coincidentally, these motions to recuse came in the wake of rulings which the movants perceived to be unfavorable to their cause. For example, in 1984, PCSSD moved the Court to recuse after the Court rejected its desegregation plan. The same attorney who has filed the pending Motion to Recuse filed a response to PCSSD's Motion to Recuse, and said:

 
4. If PCSSD has any relief available, it is through appeal and not disqualification of the presiding judge. PCSSD fails to present any proposition which establishes that a magistrate may be disqualified when a party disagrees with a portion of a decision.
 
5. With regard to the television interview, PCSSD has failed to set forth a single word, phrase, sentence, or idea which in any way has caused the appearance of partiality.
 
6. PCSSD refers to no statute or case law which prohibits a member of the federal judiciary from granting interviews or making statements.

 Now, two years later, LRSD's attorneys argue, for essentially the same reasons offered by PCSSD in 1984, that I should disqualify myself from presiding in this case.

 Ironically, LRSD has generally been the beneficiary of the multitude of rulings which I have issued in this case. In fact, the main thrust of this suit, filed by LRSD, was that there should be county-wide consolidation of the three districts. I adopted this approach in fashioning a remedy. However, the Court of Appeals reversed in part and mandated a different remedy, which I have been in the process of enforcing during the past year.

 The Court of Appeals did not set aside or find erroneous a single one of the 105 factual findings which I made in this case. Instead, the Court of Appeals concluded that the consolidation remedy was "too drastic." Instead of consolidating the three districts, the Court of Appeals simply extended the boundary of LRSD to the Little Rock City limits. The other remedies which I fashioned were upheld, and the Court of Appeals added some of its own -- one of the principal remedies being a system of magnet schools. During the past year, I have held a series of hearings with regard to the final plan of the three districts submitted in response to the mandate of the Court of Appeals.

 III.

 In support of its Motion to Recuse, LRSD alleges that I have violated Canon 3A(4) of the Code of Judicial Ethics, which provides:

 
A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.

 A similar charge was made against Judge DeMascio in the Detroit desegregation case. Bradley v. Milliken, 426 F. Supp. 929 (E.D.Mich. 1977). As Judge DeMascio observed, Canon 3A is primarily concerned with protecting the adversarial nature of judicial proceedings, particularly where communications involve pending contested issues.

 
Although there does not appear to be a consensus regarding the precise boundary between the proper and the improper, it is clear that the trial judge is not required to be inert; nor is he compelled to act as if he were merely presiding at a sporting match. United States v. Green, 544 F.2d 138, 147 (3d Cir. 1976). This is particularly so in the case at bar, where we were peripherally involved in matters which could not affect the outcome of contested issues but which had a great effect on this court's ability to enforce its orders.

 Id. at 935 n. 5. In that case the moving parties complained that, prior to filing his opinion, the judge had met ex parte with representatives of the school board and its counsel. They further alleged that Judge DeMascio had secretly informed various individuals and groups what his opinion would be in order to garner public support for his Order. The Court of Appeals, in affirming Judge DeMascio's denial of the recusal motion, characterized the judge's actions as "perhaps a bit unorthodox," but nonetheless "judicial activities." Bradley v. Milliken, 620 F.2d 1143 (6th Cir. 1980).

 By contrast, the merits of this case were decided long ago. The gist of LRSD's Motion is that the Court on its own motion noticed apparent violations of its Orders. Apparently, LRSD believes that I should have waited for a litigant to bring to my attention violations of the Court's Orders. (It is instructional to read the account of the 1957 Little Rock desegregation case in Faubus v. United States, 254 F.2d 797 (8th Cir. 1958) wherein Judge Davies ordered the LRSD Board and its superintendent to show cause why they should not proceed with their court-approved desegregation plan). The history of this litigation provides a vivid illustration of the ramifications of LRSD's position. In 1973, the Pulaski County Special School District (PCSSD) entered into a consent decree in Zinnamon v. Board of Education of Pulaski County Special School District, No. LR-68-C-154 (W.D. Ark. 1973). Under that decree, the PCSSD agreed to take a number of remedial steps to cure the effects of admitted segregative acts. Judge Henley, the presiding district judge, was shortly thereafter appointed to serve on the Eighth Circuit Court of Appeals. For nine years the consent decree was ignored by all parties in substantially every detail. During that time, many of the problems effecting the current litigation arose, largely due to the oblivious attitude toward Judge Henley's order.

 When the Court has reason to believe its orders are being ignored, surely it need not sit idly by waiting until a party invites the court to require compliance. It is not the school board members or the school superintendents who suffer when desegregation plans are ignored, but the school children, black and white. Petitioner complains that I received a delegation of students bearing petitions with hundreds of names, complaining that my orders were being disregarded by massive teacher reassignments. I had every right to listen to these students. They are the real parties in interest.

 In Reed v. Rhodes, 472 F. Supp. 618 (N.D. Ohio 1979), the district court issued an order making clear that it would not tolerate further disregard of the court's desegregation orders. The court explained that the parties have a duty to keep the court informed, and the court has a corresponding duty to insure that its orders are complied with:

 
The defendants have the duty to follow the letter and spirit of this Court's decrees. If they knowingly attempt to avoid a judicially defined duty, they may be subject to sanction.
 
The defendants have the further burden to provide information and assistance to this Court. The Court has the duty to review the plans and activities of the defendants to judge whether they pass constitutional muster. The standard of review is one of fundamental fairness, Swann v. Board of Education, supra, Davis v. School Commissioners of Mobile County, 402 U.S. 33, 91 S. Ct. 1289, 28 L. Ed. 2d 577 (1971). The Court, however, requires input from the school system. Without such aid, the Court must make a judgment which, for the lack of information and assistance, may not be the best solution given all of the extant, yet unidentified circumstances.

 472 F. Supp. at 621.

 IV.

 Without a single shred of supporting evidence, LRSD asserts in its Motion to Recuse that "the Court has since January, 1987, discussed matters regarding this case with any person who will call the Court's offices and has taken actions in this case based upon those conversations, and upon matters wholly outside of the records." This statement is an unmitigated falsehood. Telephone calls to my office are routinely screened by my staff. It is only on those rare occasions when my secretary, both of my law clerks, and my court reporter are out of the office that I directly receive a telephone call. Even then, however, I do not discuss or express an opinion on the ...


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