250 F.3d 315 | 5th Cir. | 2001
Concurrence Opinion
concurring specially:
While I agree with my colleagues that we are bound by precedent, I write separately because I believe that Republic of Panama was wrongly decided. In that decision, a panel of this court held that the district judge abused his discretion by not recusing himself because the judge’s name was listed along with Appellee’s counsel on a motion for leave to file an amicus brief in an unrelated action asserting allegations similar to Appellee’s.
Such facts do not establish that a reasonable person aware of all the facts would reasonably question the judge’s impartiality under 28 U.S.C. § 455(a). See Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). The district judge’s name was erroneously listed on the motion for leave to file an amicus brief on behalf of the Louisiana Trial Lawyers’ Association (“LTLA”), a voluntary bar organization that routinely expresses legal viewpoints to courts through amicus briefs. The district judge did not participate directly in the researching, writing, or ap
Republic of Panama incorrectly relied on Bradshaw v. McCotter, 785 F.2d 1327 (5th Cir.), rev’d, 796 F.2d 100 (5th Cir.1986), as presenting a “somewhat similar” factual situation. In Bradshaw, we held that a judge of the Texas Court of Criminal Appeals should have disqualified himself because at the time of the defendant’s conviction the judge’s name was listed as a prosecuting attorney on a brief opposing the defendant’s appeal, even though the listing was simply a matter of courtesy and protocol. Notwithstanding the irrelevance of whether the judge actually participated in the preparation of the brief, Bradshaw is distinguishable from Republic of Panama and this action because in Bradshan> the judge, before taking the bench, was listed as the prosecuting attorney in the same case on appeal before him. In Republic of Panama and this action, the district judge was merely listed as the president of the LTLA on a motion for leave to file an amicus brief in an unrelated action before a different court more than ten years ago.
While Republic of Panama notes that there are no decisions precisely on point, relevant decisions confirm that the district judge’s denial of Appellants’ motion for recusal was not improper. In Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (Rehnquist, J., mem.), then-Associate Justice Rehnquist decided not to disqualify himself on the basis of his public statements on the constitutionality of governmental surveillance, which was contrary to the arguments of the parties seeking his disqualification. As a Department of Justice lawyer, Justice Rehnquist had testified as an expert witness before the Senate and publicly stated his views on the constitutionality of governmental surveillance of civilian political activity. He testified that the arguments of the parties seeking disqualification, whose appeal was before the court of appeals during the testimony, lacked merit. Framing the issue as whether disqualification is proper if a judge, “who[,] prior to taking that office[,] has expressed a public view as to what the law is or ought to be should later sit as a judge in a case raising that particular question,” id. at 830, 93 S.Ct. 7, Justice Rehnquist analyzed the practices of prior justices, who did not disqualify themselves in cases in which they, prior to taking the bench, previously expressed a viewpoint of the controlling law, and concluded that such public statements could not rationally be the basis for disqualification. Id. at 835-36, 93 S.Ct. 7; see also United States v. Alabama, 828 F.2d 1532, 1542 (11th Cir.1987) (rejecting, in an action challenging segregation in education, disqualification of a district judge on the basis of his background as a civil rights lawyer representing black plaintiffs and stating “[a] judge is not required to recuse himself merely because he holds and has expressed certain views on a general subject.”), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988); Shaw v. Martin, 733 F.2d 304, 316 (4th Cir.) (“One who has voted as a legislator in favor of a statute permitting the death penalty in a proper case cannot thereafter be presumed disqualified to hear capital cases as a judge or predisposed to give a death sentence in any particular case.”),
Similarly, in Schurz Communications, Inc. v. FCC, 982 F.2d 1057 (7th Cir.1993) (Posner, J.), Judge Posner denied a motion for disqualification based on an affidavit he submitted as an expert witness on antitrust law prior to becoming a circuit judge. In rejecting the motion, Judge Posner stated “[t]he affidavit repeated views about antitrust policy that I had stated in many different fora over a period of years, and the movants do not and could not argue that a judge should disqualify himself because he has views on a case.” Id. at 1062 (citing 13A ChaRles AlaN Wright, Arthur R. Miller & Edward H. Cooper, Federal PRACTICE and Procedure § 3542 at 568-70 (1st ed.1976)).
Finally, Cipollone v. Liggett Group, Inc., 802 F.2d 658 (3d Cir.1986), is also important. In Cipollone, the husband of a deceased cigarette smoker-brought a products liability action against cigarette manufacturers alleging that his wife’s injury and death were cigarette-induced. A panel of the Third Circuit held that some of the plaintiffs claims were federally preempted. The plaintiff then moved to vacate the judgment because a member of the panel should have recused himself due to an appearance of partiality. The plaintiff alleged that such appearance of partiality arose because the judge, while in private practice, represented The American Tobacco Company, which was not a defendant in the plaintiffs action, in a similar products liability action The court denied the motion because The American Tobacco Company was not a defendant, the issue of preemption was not raised in the prior litigation involving the judge, and even if The American Tobacco Company were a defendant no reasonable person could question the judge’s impartiality because his representation ended more than five years before he took the bench. Id. at 658-59.
In light of these decisions, I am convinced that Republic of Panama is erroneous because it requires recusal on the basis of a judge’s public statements on the law made prior to becoming a judge, which I believe is unreasonable under § 455(a). In denouncing such “public statement disqualification,” Justice Rehnquist aptly observed that
[i]t would not be merely unusual, but extraordinary, if [judges] had not at least given opinions as to [legal] issues in their previous careers. Proof that a [judge’s] mind at the time he joined the [e]ourt was a complete tabular as a ... would be evidence of lack of qualification, not lack of bias.
. Before the 1974 amendment, § 455 stated:
Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.
28 U.S.C. § 455 (1970), amended by 28 U.S.C. § 455(a) — (0 (2000).
. The 1974 amendment created § 455(a), which states that "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Lead Opinion
In light of our prior decision in Republic of Panama v. The American Tobacco Co., 217 F.3d 343 (5th Cir.2000), the district court’s order denying recusal is REVERSED. The district court’s orders remanding this action to state court and denying Appellants’ renewed request and motion for stay are VACATED. We REMAND this action to the district court for reassignment by the Chief Judge of the district court to a different judge for further proceedings.
Reversed in part and vacated in part; remanded for further proceedings consistent with this opinion.
