In Re: v. Cargill, Inc., 1st Cir. (1995)

7/26/2019 In Re: v. Cargill, Inc., 1st Cir. (1995)

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USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

FOR THE FIRST CIRCUIT

_________________________

No. 94-8042

IN RE

CARGILL, INC.,

Petitioner.

_________________________


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ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF MAINE

_________________________

Before

Selya, Circuit Judge, _____________

Campbell, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

_________________________

Bernhardt K. Wruble, with whom William R. Sherman, Ver

____________________ ___________________ __

Liipfert, Bernhard, McPherson and Hand, Peter J. DeTroy, III

______________________________________ ____________________

Norman, Hanson & DeTroy were on brief, for petitioner.

_______________________

Joel C. Martin, with whom Michael K. Martin, Daniel W. B

______________ _________________ __________

and Petruccelli & Martin were on brief, for plaintiffs. ____________________


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practices. Cargill retained a Washington-based firm, Ver

Liipfert, Bernhard, McPherson, and Hand (Verner, Liipfert)

lead counsel, and a Portland firm, Pierce, Atwood, Scrib

Allen, Smith, and Lancaster (Pierce, Atwood), as local coun

It then moved to dismiss on the basis that the plaint

experienced no antitrust injury and, therefore, lacked stan

____________________

1Petitioner premises his argument on the ground that

judge's impartiality might reasonably be questioned.

relevant statute provides:

Any justice, judge, or magistrate of the

United States shall disqualify himself in any

proceeding in which his impartiality might

reasonably be questioned.

28 U.S.C. 455(a) (1988).


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2

to maintain the action.

On December 19, 1993, while Cargill's motion

pending before him, the district judge to whom the case had

randomly assigned became embroiled in what he subseque

described as a "minor controversy" relating to his efforts,

those of his wife, to purchase a new home. The judge telep

Gerald Petruccelli, a principal partner in P&M, and sought


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that the judge dealt only with Petruccelli (not with any o

P&M attorney).

The judge maintains that, at the time he en

counsel, he had "no conscious awareness that Mr. Petruccelli

his firm were involved in this specific litigation then pen

3


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before him.2 Nonetheless, a few days after he had reta

Petruccelli, the judge asked his docket clerk to check

calendar for pending cases in which P&M might have appeared.

clerk brought two such cases to the judge's attention at a

the time that the attorney-client relationship ended. On

these was the case against Cargill. Although Petruccelli hi

had played no role in P&M's representation of the plaintiffs,

judge decided that he had best disclose his dealings

Petruccelli.

On January 11, the clerk, acting at the ju

direction, notified local counsel to attend a conference on

following day. The disclosure conference (a transcript of

comprises the appendix) proved to be brief. Attorneys Bates

Keating appeared for the plaintiffs, and Attorneys O'Leary


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Einsiedler (both of Pierce, Atwood) appeared for Cargill.

advised of the attorney-client relationship between Petrucc

and the judge, both Bates and O'Leary quickly volunteered

their respective clients had no objection to the ju

continued participation in the case. The judge then advise

lawyers that he was grappling with Cargill's motion to dis

which, in his view, "raise[d] some very interesting and diffi

questions." He forecast that he would hand down a deci

____________________

2This declaration, and other declarations reflectin

judge's state of mind, are extracted from the record o

conference held in this case (reprinted in the appendix),

the judge's notice to counsel (described infra), and from

_____

order denying Cargill's recusal motion. For the most p

petitioner has not challenged the factual accuracy of the ju

statements.


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4

"within a week or so."

Precisely one week thereafter, the judge issued a

page rescript denying Cargill's motion to dismiss. While

judge closed his chambers and released his staff on holiday l

from December 24, 1993 through January 3, 1994, he admitt

labored over the matter during some portion of the period

Petruccelli represented him.


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The filing of the opinion elicited no imme

response. Several weeks later, however, Bernhardt Wruble

Verner, Liipfert partner, wrote a letter to the court asser

that, because "a judge's contemporaneous representation

opposing counsel is uniformly regarded as a basis for obliga

disqualification," the judge should withdraw his order den

the motion to dismiss, relieve himself of all responsibility

the case, and reassign it to another jurist. Anticipatin

predictable reaction to this demand, Wruble suggested

Pierce, Atwood's acquiescence was of no moment. Since l

counsel lacked prior notice of the purpose of the Januar

conference and, hence, had no opportunity to consult in ad

with either the client or lead counsel, Wruble wrote, the j


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had not afforded petitioner "adequate time for a consi

response" to the disclosure. Thus, there could be no "effect

waiver.

The judge did no fewer than three things upon recei

Wruble's communique. First, he postponed a scheduled st

conference in the case. Second, he directed any party who so

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his recusal to file a formal motion to that effect. Thir

composed and served a statement, denominated as a notice

counsel, in which he denied "that the Court required a deci

on waiver of any objection to the Court's continued participa

to be made at the conference." The judge explained that he

the disclosure conference to be informational in nature, that

"to advise counsel of the circumstances of Mr. Petruccel

representation and afford counsel an opportunity to confer

clients and other counsel to decide whether they wanted to

for recusal or request other action by the court." But,

the judge, though he intended to give counsel a full mont

which to advise him of their clients' positions with respec

the disclosed matter and, with this in mind, thought

sensible to summon only local counsel to the disclo


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conference he did not do so because, immediately followin

revelation, both counsel, acting for their respective clie

spontaneously disclaimed any objection to his conti

participation in the case.

On February 25, 1994, Cargill asked the district c

to certify for interlocutory appeal the January 19 order den

the motion to dismiss. See 28 U.S.C. 1292(b) (198

___

Roughly two weeks later, Cargill moved for recusal, proffe

several affidavits. Cargill's motion, like Wruble's lette

February 13, made it clear that Cargill's position rested

____________________

3The district court eventually denied this mot

Petitioner does not assign error to the denial, nor coul

rewardingly do so.


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6

supposed appearance of impropriety, that is, the existenc

circumstances in which Cargill believed that the ju

impartiality might reasonably be questioned. See 28 U.S.C

___

455(a), quoted supra note 1. Cargill did not advance, the

_____

now, any claim of actual bias. The plaintiffs opposed

recusal motion. In their opposition, they made two princ


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Federal appellate courts are empowered to i

prerogative writs that are "necessary or appropriate in ai

their respective jurisdictions" under the All Writs Act,

U.S.C. 1651(a) (1988). Because such writs disrupt

mechanics of the judicial system by accelerating appel

intervention, prerogative writs foster piecemeal review

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disturb the historic relationship between trial and appel

courts they should "be used stintingly and brought to bear

in extraordinary situations." Doughty v. Underwriters

_______ ___________

Lloyd's, London, 6 F.3d 856, 865 (1st Cir. 1993). Mandamu

________________

such a writ. It is strong medicine, and should neither

prescribed casually nor dispensed freely.

Consistent with these principles, the standards

issuance of the writ are high. A petitioner seeking man

must show both that there is a clear entitlement to the re

requested, and that irreparable harm will likely occur if

writ is withheld. See United States v. Horn, 29 F.3d 754,

___ ______________ ____

(1st Cir. 1994); Doughty, 6 F.3d at 866; In re Pearson, 990

_______ _____________


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653, 657 & n.4 (1st Cir. 1993). Sometimes, even these spec

showings are not enough to justify a court's use of its man

power. In the final analysis, a writ of mandamus is

exceptional remedy and "is to be granted only in the exercis

sound discretion." Whitehouse v. Illinois Cent. R. Co., 349

__________ _____________________

366, 373 (1955). In this context, equity informs the cou

discretion. See Kerr v. United States Dist. Court, 426 U.S.

___ ____ _________________________

403 (1976); United States v. Helvering, 301 U.S. 540, 543 (19

_____________ _________

United States v. Dern, 289 U.S. 352, 359 (1933); Doughty, 6

_____________ ____ _______

at 866; United States v. Patterson, 882 F.2d 595, 600 (1st

_____________ _________

1989), cert. denied, 493 U.S. 1027 (1990); In re First Fed.

_____ ______ _________________

& Loan Ass'n, 860 F.2d 135, 139-40 (4th Cir. 1988); Vishnevs

____________ ________


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United States, 581 F.2d 1249, 1255 (7th Cir. 1978).

_____________

We have held that, in an appropriate case, an issu

8

judicial disqualification may present a sufficie

extraordinary situation to justify the unsheathing of

mandamus power. See In re Allied-Signal, Inc., 891 F.2d 967,___ _________________________


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(1st Cir. 1989), cert. denied, 495 U.S. 957 (1990); In re Coo

_____ ______ ________

821 F.2d 833, 834 (1st Cir. 1987); In re United States, 666

___________________

690, 694 (1st Cir. 1981); see also In re International Busi

___ ____ ________________________

Mach. Corp., 618 F.2d 923, 927 (2d Cir. 1980). However,

___________

usual prerequisites to mandamus relief a showing of both c

entitlement to the requested relief and irreparable harm wit

it, accompanied by a favorable balance of the equities do

vanish merely because judicial disqualification is the busi

of the day. See, e.g., Allied-Signal, 891 F.2d at 969; Coo

___ ____ _____________ __

821 F.2d at 834; In re United States, 666 F.2d at 694. In o

___________________

words, the mere fact that a petition for mandamus is directe

securing the trial judge's removal does not ensure that


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higher court will entertain the petition.

III. DISCUSSION

III. DISCUSSION

After careful perscrutation of the record, we conc

that petitioner's quest for mandamus should go unrequi

Cargill has shown neither that it is clearly and indisput

entitled to the writ nor that it faces an intolerable ris

irreparable harm should it be forced to await appellate revie

the ordinary course. Moreover, Cargill's failure to take ti

action, after learning of the judge's disclosure and

counsel's ensuing waiver of objection, tips the equitable bal

and argues persuasively against issuance of the writ.

9


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A

A

We turn first to the matter of entitlement to

relief requested. Assuming, arguendo, that the ju

________

relationship with Petruccelli created an appearance

impropriety adequate to animate section 455(a) and we t

that it probably did4 Cargill's entitlement to an orde

disqualification remains questionable. Regardless of whether

actions of its local counsel effected a fully valid waiver of


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disqualifying circumstance, the silence of Cargill and its

counsel after learning what had transpired may very well

added the missing element, ratified the waiver, and given

life. We elucidate below.

The relevant statute, 28 U.S.C. 455(e), pla

contemplates that a party may waive an appearance-of-impropr

ground for disqualification. The statute itself does not de

____________________

4The disqualification requirement of section 455(a)

triggered, despite the lack of any actual bias on the ju

part, if a reasonable person, knowing all the circumstan

would question the judge's impartiality. See Liljeberg v. He

___ _________ _

Servs. Acquisition Corp., 486 U.S. 847, 861-62 (1988).

_________________________

observers would agree that a judge should not hear a case ar

by an attorney who, at the same time, is representing the j

in a personal matter. See 13A Charles Wright & Arthur Mil

___

Federal Practice and Procedure 1349, at 614 (1984) (ci


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________________________________

cases). Although the appearance of partiality is attenuated

the lawyer appearing before the judge is a member of the same

firm as the judge's personal counsel, but not the

individual, many of the same cautionary factors are still

play. See, e.g., 2 Administrative Office of the U.S. Cou

___ ____

Guide to Judiciary Policies and Procedures V-32 (1

__________________________________________________

(expressing the view that "where an attorney-client relation

exists between the judge and the lawyer whose law firm appear

the case, the judge should recuse absent remittal").

principle would seem to have particular force where, as here,

law firm is small and the judge's lawyer is a name partner.

10


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the form or prerequisites of such a waiver; it only imposes

condition that the waiver be "preceded by a full disclosur

the record of the basis for disqualification." 28 U.S.

455(e). The transcript of the January 12 conference leave

doubt that such a disclosure occurred. The judge laid out

nature of his relationship with Petruccelli, citing book

verse. This disclosure was then followed by an unequi

statement on the part of Cargill's counsel, unprompted by

court, to the effect that Cargill did not object to the ju

continued service in the case. Local counsel reported t

developments to lead counsel immediately after the confer

ended, and Verner, Liipfert in turn promptly informed the cli

Yet, for nearly a month thereafter, Cargill failed to express


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discomfiture with the waiver.

Although we leave the ultimate question open

resolution on an end-of-case appeal, we think that l

counsel's unqualified assent, combined with Cargill's subse

silence for a substantial period of time, creates a st

foundation on which the validity of the waiver might rest,

that the resultant uncertainty undercuts Cargill's claim tha

is plainly entitled to the requested relief. After all, i

common ground that civil litigants ordinarily are bound by t

attorneys' tactical judgments, see, e.g., Brody v. Preside

___ ____ _____ ______

Fellows of Harvard Coll., 664 F.2d 10, 12 (1st Cir. 1

___________________________

(holding, on particular facts, that client would not be all

"to second guess his attorney's waiver"), cert. denied, 455

_____ ______


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11

1027 (1982), and waivers based on silence are standard fare,

e.g., United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1

____ _____________ _____

(finding waiver under 455(e) based on party's failure to ma

timely objection once the basis for disqualification was f

disclosed), cert. denied, 462 U.S. 1118 (1983). _____ ______


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However, Cargill asseverates that no valid waiver c

be given by its Maine counsel because the judge failed to fo

exactly the procedures governing waivers of disqualifica

dictated by the Code of Conduct for United States Judges (CC

adopted by the Judicial Conference of the United States follo

promulgation by the American Bar Association. See CC

___

reprinted in 150 F.R.D. 307 (1992). Canon 3D of the CCUSJ al

_________ __

a judge to hear a case if the parties and their lawyers agre

the judge's continued service not only after disclosure

certain bases for disqualification (including appearance

impropriety), but also after having been afforded "an opportu

to confer outside the presence of the judge[.]" Id. at

___

Here, what transpired at the disclosure conference met the f


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requirement of Canon 3D, but not the second.

However, even if we assume arguendo that

________

noncompliance rendered the original waiver ineffective,5 cou

____________________

5Although we need not decide the point, we doubt that e

instance of noncompliance with the CCUSJ automatically justi

post-hoc invalidation of a waiver that otherwise meets the

of section 455(e). Certainly, the case law on the point is

than transpicuously clear. See, e.g., Nobel, 696 F.2d at

___ ____ _____

(explaining that "it is sufficient under [section 455(e)] if

judge provides full disclosure of his or her relationship

time early enough to form the basis of a timely motion at

before trial and under circumstances which avoid any su

12


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thereafter had ample opportunity for consultation with

client, outside the presence of the judge, yet Cargill, kno

of the stated waiver, did not alter its position. When

judge's departure from the CCUSJ is weighed in the balance a

with his explanation and Cargill's knowing acquiescence in l

counsel's express waiver, the call seems to us to be quite cl

This closeness sets a chain reaction in motion. It leads

first to conclude that the contested waiver may well

enforceable, and constitutes, at the least, a potential stumb

block on the road to recusal. The first conclusion l

inexorably to a second conclusion: that petitioner has faile


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its endeavor to demonstrate that it is "clearly and indisputa

entitled to the relief that it seeks.

To be sure, Cargill has attempted to explain away

apparent ratification of the position taken by its local cou

both factually (through a series of affidavits) and le

(through its insistence on literal compliance with Canon

Its factual explanations and legal theories may or may not

water in the long run, but that is scarcely the point. We

not and do not decide the merits of the waiver questio

this juncture. It suffices for present purposes merely to

____________________

coercion"); Haire v. Cook, 229 S.E.2d 436, 438-39 (Ga. 1

_____ ____

(similar; construing Georgia law); Commonwealth v. Cagney,

____________ ______

N.E.2d 778, 781 (Mass. 1975) (Goodman, J., concurring) (simi


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construing Massachusetts law). Notwithstanding the importanc

attach to the CCUSJ and the obvious desirability of assu

judicial compliance with the canons, we think a strong argu

can be made that not all instances of noncompliance wit

CCUSJ are automatic disqualifiers.

13

that the issue is sufficiently clouded that petitioner's even

entitlement to the requested redress the district ju

recusal is problematic.6 See Pearson, 990 F.2d at 656 &___ _______


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Cooper, 821 F.2d at 834.

______

B

B

Petitioner suggests that recusal of a judge presen

special circumstance which, even in the absence of c

entitlement to the requested relief, warrants interlocu

review by way of mandamus. This suggestion is not wit

force.7 In cases in which parties have sought recusal base

assertions of actual bias, we have stated that "the issu

judicial disqualification presents an extraordinary situa

suitable for the exercise of our mandamus jurisdiction." I

United States, 666 F.2d at 694.

_____________

____________________

6Because we find no clear and indisputable entitlemen


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the requested relief, we need not consider whether Car

satisfied the second prong of the mandamus test by a showin

irreparable harm. We note, however, that although ther

always some harm in litigating for nought, that harm repeat

has been held insufficient, in itself, to justify man

relief. See, e.g., In re Bushkin Assocs., 864 F.2d 241, 24

___ ____ _____________________

(1st Cir. 1989).

7In the same vein, however, we can envision cases in w

despite a showing that ordinarily would amount to c

entitlement, a litigant has acted so deplorably that

petitioned court might choose to withhold discretionary rel

See generally Precision Instrument Mfg. Co. v. Automo

___ _________ _______________________________ _______

Maintenance Mach. Co., 324 U.S. 806, 814 (1945) (explaining

_____________________

the doctrine of unclean hands "closes the doors of a cour

equity to one tainted with inequitableness or bad faith rela

to the matter in which he seeks relief"); Texaco Puerto

_______________

Inc. v. Department of Consumer Affairs, 60 F.3d 867, 880____ ________________________________

Cir. 1995) ("It is old hat that a court called upon to do e

should always consider whether the petitioning party has acte

bad faith or with unclean hands.").

14


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Our rationale in these cases has been that "[p]u

confidence in the courts may require that such a questio

disposed of at the earliest possible opportunity." In re

_______

Leader Corp., 292 F.2d 381, 384 (1st Cir.), cert. denied,

____________ _____ ______

U.S. 927 (1961). However, we have cautioned that this philos

does not "commit us to entertaining every rejected affidavit

prejudice," and we have made it clear that, even when a man


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petition seeks a judge's recusal based on an assertion of ac

bias, mandamus remains "a discretionary writ." Id. Because

___

origins are equitable in nature, the writ should issue to re

a wrong, not to promote one and it should not "be grante

aid of those who do not come into court with clean han

United States v. Fisher, 222 U.S. 204, 209 (1911).

_____________ ______

In this case, principles of equity caution aga

exercising discretion to reach out for the disqualification i

here and now. To explain why, we must remind the reader

mandamus is a potent weapon. Precisely because the writ pac

considerable wallop, litigants are sometimes tempted to emplo

for its strategic value, regardless of the merits of their ca

See Allied-Signal, 891 F.2d at 970; In re Drexel Burnham La

___ _____________ _______________________


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Inc., 861 F.2d 1307, 1312-16 (2d Cir. 1988), cert. denied,

____ _____ ______

U.S. 1102 (1989). Ignoring this possibility when, as no

petition for mandamus seeks the disqualification of a j

shortly after the judge decides a major point against

petitioner would be to blink reality. In the real world, rec

motions are sometimes driven more by litigation strategies

15


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by ethical concerns.

In such straitened circumstances, appellate tribu

must be especially alert to the dangers of manipulation. Co

can ill afford to permit mandamus to be used as a tacti

jettison an impartial judge whose slant on a case, as evide

by his rulings, jeopardizes a party's chances for ulti

success. See In re United Shoe Mach. Corp., 276 F.2d 77, 79

___ _____________________________

Cir. 1960) ("We cannot permit a litigant to test the mind of

trial judge like a boy testing the temperature of the wate

the pool with his toe, and if found to his liking, decides

take a plunge.") (citation and internal quotation marks omitt

cf. Reilly v. United States, 863 F.2d 149, 160 (1st Cir. 1

___ ______ ______________

(explaining that "when a trial judge announces a proposed co


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of action which litigants believe to be erroneous, the par

detrimentally affected must act expeditiously to call the e

to the judge's attention or to cure the defect, not lurk in

bushes waiting to ask for another trial when their litiga

milk curdles"). By like token, courts cannot afford to spa

public perception that lawyers and litigants will benefit

undertaking such machinations.

This case runs up just such a red flag. While

record does not compel a finding that petitioner and its

attorneys delayed any attempt to retract Maine counsel's wa

as part of a plot to await the results of the judge's impen

decision, the chronology is suggestive. The scenario l

itself to the following description: Cargill, armed with all


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16

relevant facts no later than January 14 and knowing that

judge planned to decide the key motion in the case during

following week,8 held its "appearance-of-impropriety"

"invalid waiver" arguments in reserve, deferred any rec

initiative, awaited the ruling on the motion to dismiss, f

that ruling to be greatly disappointing, and then pulled


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recusal option off the shelf in hopes of locating a

sympathetic trier.

Of course, Verner, Liipfert tries strenuously

explain away this chain of events. The firm's attorneys

regaled us with descriptions of both their busy travel sche

and the inclement weather that struck the nation's capitol du

January of 1994. But even if we were to take these excuse

face value, they are simply not sufficient to justify the fi

decision to sit silently by until the judge had showed his ha

We believe it is self-evident that, once Cargill

aware of the details surrounding Petruccelli's relationship

the judge, it should at a bare minimum have told the court

it wanted time to rethink its options and sought a delay in

issuance of the court's opinion (which it knew to be immine


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In all probability, it would have taken no more than a telep

____________________

8The various affidavits submitted by the petitioner to

__________________

district court establish that on Wednesday, January 12, the

day that the disclosure conference was held, Pierce, At

informed Verner, Liipfert of what had transpired, includin

judge's plan to issue his decision in approximately one week.

corporate official was told of the situation no later

Friday, January 14.

17


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call or a facsimile transmission to place matters on ho

Thus, putting the most favorable face on the situation, it

apparent that Cargill and its lead counsel neglected to act

the immediacy that the circumstances obviously required.

Our need to exercise discretion also demands tha

take a related point into account. The case at hand is diffe

than our earlier precedents in several respects. First, it

not involve a claim of actual bias, and, thus, it lacks

important ingredient that in the past often prompted us

undertake review of judicial disqualification orders at

earliest practicable time. See Union Leader, 292 F.2d at

___ ____________

When issuing the writ is necessary to promote public confi

in the courts by avoiding the unseemly spectacle of trial be


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a biased judge, the need for immediate relief is manifest.

In re United States, 666 F.2d at 694. These concerns_____________________

lessened where, as here, there is neither a trace no

suggestion of actual bias. Second, in this case, the party

now claims to be aggrieved earlier had made an express waive

the stated ground for disqualification. This, too, changes

calculus of public perception.

Last, but far from least, petitioner's course

conduct whether conniving or merely slipshod influences

assessment of the equities. Its handling of the matter place

____________________

9Cargill suggests that it might have offended the jud

taking such action. We think its concerns are overbl


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lawyers run such a risk every time they seek a judge's recu

In any event, trial advocacy is no sport for the timorous.

18

between Scylla and Charybdis: if we do not entertain

petition, we run a risk of seeming hesitant to inquire too de

into a possible abuse of judicial power; yet, if we entertain

petition despite the appearance of sandbagging that Cargill

created, we run a risk of eroding public confidence in the co


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by seeming to reward a litigant for its gamesmanship.

Given the fundamental nature of mandamus, decli

jurisdiction in the exercise of our informed discretion s

preferable. Though it might be mere coincidence that the

in seeking to set aside the waiver worked to Cargill's advan

by allowing it to see which way the wind was blowing be

deciding whether to urge recusal, the appearance of ju

shopping is sufficiently pronounced that the equities cou

restraint. See, e.g., Apple v. Jewish Hosp. & Medical Ctr.,

___ ____ _____ ____________________________

F.2d 326, 334 (2d Cir. 1987) (noting that a "movant may not

back and wait, hedging its bets against the eventual outco

Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1

________ _____________

("Counsel, knowing the facts claimed to support a 45


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recusal for appearance of partiality may not lie in wait, rai

the recusal issue only after learning of the court's rulin

the merits."), cert. denied, 481 U.S. 1016 (1987). We si _____ ______

cannot afford to nourish the impression that the courts, a

institution, will bend over backward, overlook the obvious,

countenance sharp tactics merely because they are directed a

judge.

IV. CONCLUSION

IV. CONCLUSION

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We need go no further. Petitioner has neither met

conventional requirements for mandamus relief nor satisfie

that, in the unique circumstances of this case, the equi

favor an affirmative exercise of our discretion. Consequen

we deny the petition, without prejudice to Cargill's rig

raise its claim of error, if it so chooses, in an end-of-

appeal.10

The petition for a writ of mandamus is denied.

The petition for a writ of mandamus is denied.

_____________________________________________


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Appendix follows; dissenting opinion follows appendix

____________________

10Just as orders disqualifying or refusing to disqua

counsel "can be reviewed as effectively on appeal of a f

judgment as on an interlocutory appeal," Richardson-Merrill,

___________________

v. Koller, 472 U.S. 424, 438 (1985), we see no reason why or

______

pertaining to judicial disqualification cannot be effecti

reviewed at that time and in that manner. Nor is this scen

oddly configured. An end-of-case appeal is a matter of ri

while mandamus is a matter of discretion. Courts have freque

found that difference dispositive in analogous circumstan

See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33___ ____ ___________________ _____________

(1980) (per curiam); In re Bushkin Assocs., 864 F.2d 241,

______________________


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(1st Cir. 1989). And, moreover, the fact that a lengthy t

has intervened will not rob an appeal of its effectiveness.

e.g., Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1

____ _______ _____________

(vacating judgment on direct appeal following 35-day tr

despite the circuit court's earlier denial of mandamus relie

the same ground).

20

APPENDIX

APPENDIX

CHAMBERS CONFERENCE

CHAMBERS CONFERENCE


53/114

January 12, 1994

January 12, 1994

THE COURT: This is a very simple matter, I

THE COURT:

think. At least the reason for the

conference, so you don't have to get all

excited about it, is because Mr. Bates is

counsel in this matter and I have a

disclosure that I must make to counsel.

Approximately on December 19th, 1993, while

Mrs. Carter and I were in the course of

looking for a new house, I got in a

controversy with a party in a contract, a


54/114

purchase and sale, a minor controversy.

I, on that date, called Gerald Petruccelli,

Mr. Bates's partner, and I asked him if he

could give me advice and perhaps represent me

if it came to that.

He called me back on December 20th and said

that he had decided there was no impediment

to this representation of me. I met with him

on December 21 for about 45 to 50 minutes, we

21


55/114

discussed the matter. I told him that I

wanted a quick resolution - I should practice

what I preach.

I had telephone conferences with him about

the matter on December 22, 23, 28 and 29,

four or five minutes a piece. I understand

from him that he had telephone conferences

during that period of time with another


56/114

attorney and on January 6th, 1994, the matter

was resolved to my satisfaction. On the 7th,

Mr. Petruccelli rendered to me his bill and

on the 10th, that bill was paid in full.

The understanding at the conference that I

had with him on the 21st of December was that

I would pay the usual rate, usual fee

computed at the usual hourly rate for the

hours of devotion to the case that he would

charge to any stranger off the street. And I

was very serious about that, and I'm sure

that he was and I think the bill was entirely


57/114

satisfactory one to me, and I have no reason

to expect that it is to him. So we have no

kind of debt of any kind to each other out of

this very brief transaction.

22

I will tell you that I am morally certain in

my own mind that this series of events will


58/114

not in any way affect my ability in the way

I would find it to be properly decided, even

if the event had not occurred.

However, under the code, the canons of

judicial conduct, I felt arguably perhaps,

but I felt that it was proper, perhaps

required, but at least proper that I disclose

it and see if anyone has any objection in my

continuing to serve as the judge who will

ultimately decide this case.

MR BATES: Speaking for the plaintiff, we MR BATES:


59/114

have absolutely no objection.

THE COURT: The record should also reflect THE COURT:

that I never had any conversation with Mr.

Bates or anyone else of Mr. Petruccelli's

office.

MR. O'LEARY: Speaking for the defense, there

MR. O'LEARY:

is no objection.

23


60/114

THE COURT: I wanted you to know this.

THE COURT:

That's all I have. We have been for some

time - I have been in the course of dealing

with motions which raise some very

interesting and difficult questions and I

expect that within a week or so I will be in

a position to file a decision resolving that,

so the matter can go forward. I apologize


61/114

having held the matter up that long but these

are very tough things, not matters of first

impression, and I don't have a lot of

guidance by better judges than I.

MR. O'LEARY: Thank you.

MR. O'LEARY:

MR. BATES: We appreciate it.

MR. BATES:

THE COURT: Thank you very much. Another THE COURT:

matter, the Graffam, matter, is scheduled for

trial, which is in your office on the other

side, you might just talk with them about it,


62/114

Bill Kayatta, apprise him of what has

happened and tell him that matter is also

scheduled for conference for the same purpose

so he can have a chance to reflect on it.

24

MR. BATES: I don't know that this needs to

MR. BATES:


63/114

be a part of the record. I know that Gerry

told me that he was going to call Bill

Kayatta, and did so.

THE COURT: Gerry did call and tell me that

THE COURT:

he had called someone to see if that would

create, if his representation would create

any problem and I didn't know what case it

was about or who the lawyer was. Ultimately

he called me back and told me that he had

found no impediment to his representation.

MR. O'LEARY: I appreciate the disclosure.

MR. O'LEARY:


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[End of conference]

25


65/114

CAMPBELL, Senior Circuit Judge, (dissentin

_______________________

While the question is exceedingly close, I regret that

cannot agree with the court. The court's opinion would

persuasive if written before the Judicial Conference of t

United States had adopted Canon 3D of the Code of Conduct f

________________

United States Judges. But the court's opinion seems to me

____________________


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pay too little attention to the district court's failure

have observed the Canon. Canon 3D provides,

A judge disqualified by the terms of

Canon 3C(1), except in the circumstances

specifically set out in subsections (a)

through (e) may, instead of withdrawing

from the proceeding, disclose on the

record the basis of disqualification. If

__

the parties and their lawyers after such

_________________________________________

disclosure and an opportunity to confer

_________________________________________

outside of the presence of the judge, all

____________________________________

agree in writing or on the record that

the judge should not be disqualified, and

the judge is then willing to participate,

the judge may participate in the

proceeding. The agreement shall be

incorporated in the record of the

proceeding. (emphasis added).

Canon 3D applies squarely to the situation here, in whic

judge has sought the parties' waiver of his mandato


67/114

disqualification under 455(a). Congress expressly allows

judge to accept a waiver of his disqualification under

455(a) (appearance of lack of impartiality) although n

under 455(b) (bias, personal knowledge of facts, financi

interest, etc.). See 28 U.S.C. 455(e). But while 455( ___

specifies no more than that such waiver be preceded "by

full disclosure on the record of the basis f

-26-

26


68/114

disqualification," the judiciary is also subject to its o

Canon 3D which imposes additional conditions that were n

followed here. For that reason, I disagree that the parti

ever effectively waived the duty imposed by 455(a) that t

judge disqualify himself.

I make two points at the outset. First, as

colleagues seem to concede, the judge's employment, as

own lawyer, of the senior partner of the law fi

representing plaintiffs at the time he was considering

major dispositive motion in plaintiffs' lawsuit, gave rise

a reasonable question of his impartiality under 455(a


69/114

While this was hardly a major indiscretion as such matte

go, it was the kind of conduct that gives rise to

appearance of impropriety. Our court is in appare

agreement as to the applicability of 455(a). Howeve

because the district court felt otherwise, and because t

issue deserves consideration, I have stated my reasons f

finding that 455(a) applies in an appendix to this dissen

Section 455(a) required the judge to disqualify himself s

sponte unless he received and accepted an appropriate wai

from the parties.

A second point is that the proceedings at t

January 12 conference at which the judge candidly a

commendably disclosed the matter omitted to follow Can

3D in basic ways. Canon 3D was developed to offset t


70/114

-27-

27

criticism that otherwise disqualified judges someti

secured the parties' agreement to allow them to continue

cases by taking advantage of counsel's natural reluctance

offend a judge before whom they frequently had to appea

The original language of Canon 3D was drafted by a speci


71/114

committee of the American Bar Association chaired by t

former chief justice of the Supreme Court of Californi

Justice Traynor. Justice Traynor emphasized that, before

valid waiver could occur, counsel must receive an opportuni

to confer with their clients outside the judge's presenc

The special committee also believed that the client as we

as counsel had to be involved in the waiver decision, as t

"parties are less likely than counsel to feel judici

pressure [to remain in the case] . . . ." Broadening a

___________

Clarifying the Grounds for Judicial Disqualificatio

__________________________________________________________

Hearing on S. 1064 Before the Subcomm. of Courts, Ci

__________________________________________________________

Liberties and the Administrative Justice of the House Co

__________________________________________________________


72/114

on the Judiciary, 93d Cong., 2d Sess. (1974).

________________

The Canon serves in part to dispel counsel's sen

that by failing immediately to endorse the judge's continu

presence in the case, counsel might annoy the judge a

prejudice their cause. Under the Canon, counsel must

extended an opportunity to consider the disqualificati

issue outside the judge's presence, hence free from the fe

-28-

28


73/114

that any hesitancy to endorse the judge's continued presen

may be personally held against him.

In the present case, the judge never stated t

local counsel was free to withdraw and discu

disqualification with his client and co-counsel. The ju

knew or should have known at this time that counsel had

prior opportunity to discuss the issue with his client. T

judge had not disclosed the subject of the conference

advance. Local counsel had made express inquiry the

previous as to what the January 12 meeting would be about a


74/114

could learn nothing. Counsel, therefore, could not ha

discussed the issue with his client and lead counsel prior

_____

the meeting. When he came to the conference, local couns

had to react on the spur of the moment, without knowing w

rights the judge was prepared to recognize, without knowi

whether the judge would recuse himself if counsel objecte

and without reassurance from the court that, without offens

local counsel would be given a chance to consider this matt

with his client outside of the court's presence. The expre

language of the Canon, conditioning a waiver upon

opportunity to confer with the parties and counsel outsi

the judge's presence, was not, in these circumstances, p

into play.


75/114

In hindsight, to be sure, local counsel could ha

sought to save the situation by requesting time to talk

-29-

29

lead counsel and his client a request the judge indicat

he would have granted. However, without the judge's advan

advice, counsel would not necessarily be expected to know


76/114

his rights under Canon 3D, or indeed to know that Canon

existed at all. Moreover, counsel may have felt that, whe

the judge stated that the disclosed conduct would not affe

his ability to decide the case, and indicated no cle

willingness to withdraw, any hesitancy would simply be

irritant. The duty to extend the benefits of this Canon

the parties rests upon the judge. Here the judge did n

mention the provisions of the Canon nor indicate what rig

he would recognize.

In such circumstances, I think it plain that

waiver occurred on January 12. In fact, the scenario at t

January 12 conference was exactly the one that Canon 3D

intended to change. The drafters of Canon 3D thought that

judge who simply announced disqualifying facts, indicated


77/114

desire to continue to serve, and solicited and accepted or

waivers from the attorneys present, might be exercisin

"velvet blackjack." Broadening and Clarifying the Groun

____________________________________

for Judicial Disqualification: Hearing on S. 1064 Before t

__________________________________________________________

Subcomm. of Courts, Civil Liberties and the Administrati

__________________________________________________________

Justice of the House Comm. on the Judiciary, 93d Cong.,

_____________________________________________

Sess. (1974). Canon 3D, by requiring discussion with t

clients outside the judge's presence and, by requiring t

-30-

30


78/114

clients' acquiescence as well as that of counsel, sought

ease the pressures to acquiesce that inhered in the "ol

process.

It is true that the Code of Judicial Conduct is n

statutory, nor does the Judicial Conference of the Unit

States which adopted the Code hold a specific statutory gra

of authority to enact binding ethical rules. However, t

Conference is itself a creature of statute. See 28 U.S.C.

___

331. Chaired by the Chief Justice, the Conference is the o


79/114

body recognized as speaking administratively for the enti

federal judiciary. Its adoption of Canon 3D, I sugges

gives the Canon great persuasive weight. Additionally, t

provisions of Canon 3D emanated from a model ethical co

drafted by the American Bar Association and adopted in one

another version, by many states. It is important, I thin

to our institutional credibility, that the procedures set o

in Canon 3D of the Code of Conduct for United States Jud

be taken seriously.

As, in my view, no waiver occurred by force

local counsel's acquiescence on January 12, the questi

arises whether some kind of de facto waiver or equitable b

should be implied from Cargill's failure to object prompt


80/114

to the judge's continued participation once its local couns

had told it of the judge's disclosures. Cargill also learn

at the January 12 conference that the judge was about to ha

-31-

31

down his ruling. If Cargill did not want the judge

participate, my colleagues believe that Cargill was requir


81/114

to protest then and there, rather than strategically waiti

to see how the wind blew, objecting as it did on

after the judge had ruled against it.

This is a close question. There is certain

weight to my colleagues' view that Cargill may be misusi

the Canon now for purely strategic purposes. It can

implied, moreover, that the district court having ful

revealed the conduct in question, sincerely, if incorrect

under the Canon, relied on local counsel's approval, n

withdrawn, as sanctioning the court's continuance in t

case. But while reasonable minds may differ, I believe t

the court's failure to follow Canon 3D's waiver procedures

clouded future events as to make it inappropriate to read t


82/114

much into Cargill's failure to challenge the judge

continued participation during the week prior to the court

ruling on the motion. A primary purpose of the procedu

outlined in the Canon is to remove, or at least to lesse

the pressure of the judge's feared resentment if a waiver

not quickly volunteered. This lessening of pressure wou

not have happened here. The Canon anticipates that the cou

will reassure attorneys in advance of their right to speak

their clients out of the judge's presence. Also that t

judge will inform counsel that he will withdraw if waiver

-32-

32


83/114

not granted, or, at least, of his intentions in this regar

In the present case, by the time Cargill learned of t

judge's stated grounds for disqualification, the judge

already made the decision not to recuse himself. At t

point, Cargill had no assurance that its repudiation of loc

counsel's acquiescence would be honored. It had to deci

whether to risk angering the judge futilely at a time w

the matter seemed to have been settled and a decision on i

motion was imminent.


84/114

To be sure, Cargill's local counsel could ha

acted differently. It is often true and properly so

that a client is bound by positions taken or not taken by

attorney. Canon 3D makes it clear, however, that attorn

acquiescence, standing alone, is not enough to constitute

waiver. Local counsel's acquiescence followed by Cargill

reluctance to object cannot be disassociated from the judge

initial failure to implement the Canon provision

provision that the judge himself is responsible f

explaining and implementing in the first instance. Canon 3

setting out the requirements for a judge to secure a val

waiver of his own disqualification, is not mere grist for t

adversarial mill. Rather, it is a rule of conduct the ju


85/114

is supposed to know and apply. While Cargill's counsel mi

have saved the situation, responsibility for the error shou

not too easily be shifted to the shoulders of one of t

-33-

33

parties. Given the altered situation confronting Cargi

once the die had been cast on January 12, I am not dispos


86/114

to find that Cargill ratified local counsel's earli

acquiescence simply by taking no action before the court

decision.

Cargill, to be sure, had to act diligently if

wished to challenge the judge. Delay would soon beco

unfair to Cargill's opponent, who would continue to inve

money and effort into the lawsuit in reliance upon t

continued service of the judge in question. But Cargill

raising of an objection within a month after the decisi

seems to me to be acceptable given that the initial error

that of the judge, not Cargill. In so saying, I recogni

the validity of my colleagues' concern that Cargill may we

be acting strategically, and that courts are, and should b


87/114

reluctant to allow two bites at the apple. But against t

must be weighed the nonobservance of Canon 3D.

As 455(a) applied and, in my view, no sufficie

waiver occurred under 455(e), the question of reme

arises. In Liljeberg v. Health Serv. Acquisition Corp., 4

_________ ______________________________

U.S. 847, 862-64 (1988), the Supreme Court wrote:

A conclusion that a [ 455(a)] violation

occurred does not, however, end our

inquiry. As in other areas of the law,

there is surely room for harmless error

committed by busy judges who

inadvertently overlook a disqualifying

circumstance. There need not be a

draconian remedy for every violation of

-34-

34


88/114

455(a) . . . . We conclude that in

determining whether a judgment should be

vacated for a violation of 455(a), it

is appropriate to consider the risk of

injustice to the parties in the

particular case, the risk that the denial

of relief will produce injustice in other

cases, and the risk of undermining the

public's confidence in the judicial

process.

See also In re Allied-Signal, Inc., 891 F.2d 974, 975-76 (1

________ _________________________

Cir. 1989).

For a new judge to be brought in at this junctu


89/114

would not, in my view, be a draconian remedy, nor a licen

for unwarranted attacks on courts. To be sure, the questi

that arose here the judge's brief use of the senior l

partner in the same law firm retained by plaintiffs

not monumental and quite likely would have been waived

Cargill in a proper proceeding. Moreover, evidencing

integrity, the judge quickly called a conference and reveal

all the relevant facts. Nonetheless, the judge's retenti

of Mr. Petruccelli at the time of the pending lawsuit

create the appearance of lack of impartiality; and secti

455(a) required the judge to step aside unless he recei

proper waivers from the parties. As this did not occur her

and as the case is still at an early stage, I think it wou

be reasonable for another judge to enter the case. Whi


90/114

this imposes some small price on the court and plaintiffs,

is justified as demonstrating the need to observe the Cano

-35-

35

I would add that, had mandamus requiring a n


91/114

judge been granted, it would have been open to this court

let stand the former judge's ruling on Cargill's dismiss

motion. Whether to do this would have been a close questio

but, however that issue were resolved, the bringing in of

new judge would have emphasized that Canon 3D procedures a

not precatory.

I do not take too seriously my colleague

suggestion that this issue may be revisited several yea

down the road on direct appeal from any final judgme

rendered in plaintiffs' favor. By then there would

overwhelming equities in plaintiffs' favor not to requi

___

them to undergo the expense and burden of retrying the ca

before a different judge. The Supreme Court has stated "t

in determining whether a judgment should be vacated for


92/114

violation of 455(a), it is appropriate to consider the ri

of injustice to the parties." Liljeberg, 486 U.S. at 86

_________

Mandamus has been properly recognized as the usual and prop

remedy for raising and resolving promptly a question

judicial disqualification such as this. See, e.g., Alexan

___ ____ ______

v. Primerica Holdings, Inc., 10 F.3d 155 163 (3d Cir. 1993

________________________

In re United States, 666 F.2d 690, 694 (1st Cir. 1981).

____________________

would expect that the court's decision, which has be

rendered after the most careful consideration by all membe

of the panel, will end the matter.

-36-

36


93/114

Appendix to Judge Campbell's Dissent

Appendix to Judge Campbell's Dissent

For the following reasons, I conclude that t

judge's relationship with Mr. Petruccelli required him

recuse himself under 28 U.S.C. 455(a) absent receipt of t

parties' waiver. That statute provides that a judge "sha __


94/114

disqualify himself in any proceeding in which

impartiality might reasonably be questioned." (emphas

_________________

supplied). The legislative history indicates that secti

455(a) was meant to lessen the traditional "duty to sit

and, as the Supreme Court has indicated, to requi

avoidance of even the appearance of partiality. Liljeberg

_________

Health Serv. Acquisition Corp., 486 U.S. 847, 860-61 (1988

______________________________

Recusal may be required even in the absence of actu

partiality if there is an objectively reasonable basis f

doubting the judge's impartiality. Id.; see Code of Judici ___ ___ _____________

Conduct Canon 2 (1973) ("[A] judge should avoid improprie

_______

and the appearance of impropriety in all his activities. __________________


95/114

(emphasis supplied). The Committee on the Codes and Condu

of the Judicial Conference of the United States stated that

where an attorney-client relationship

exists between the judge and the lawyer

whose law firm appears in the case, the

judge should recuse absent remittal.

2 Administrative Office of the U.S. Courts, Guide______

Judiciary Policies and Procedures V-25 (1993).

_________________________________

-37-

37


96/114

The proper standard for ascertaining whether

judge's impartiality might reasonably be questioned under

455(a) is whether the charge of lack of impartiality

grounded on facts that would create a reasonable doubt, n

in the mind of the judge, or even necessarily that of t

litigant, but rather in the mind of the reasonable perso

See United States v. Cowden, 545 F.2d 257, 265 (1st Ci

___ _____________ ______

1976), cert. denied, 430 U.S. 909 (1977). Section 455(

____________

requires a contextual, case-by-case analysis. It does n

imply a bright-line rule disqualifying any judge who ever

personal dealings with an attorney whose firm represen


97/114

litigants before the same judge. The existing case law

the subject of judge-attorney dealings rests on exceedin

fact-specific judgments, with different outcomes in differe

situations.11

____________________

11. See In re Placid Oil Co., 802 F.2d 783 (5th Cir. 1986

___ _____________________

Potashnick v. Port City Constr. Co., 609 F.2d 1101 (5

__________ _______________________

Cir.), cert. denied, 449 U.S. 820 (1980); Texaco v. Chandle

____________ ______ ______

354 F.2d 655 (10th Cir. 1965), cert. denied, 383 U.S. 9

____________

(1966); Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965); In

____ _________ __

Snowshoe Co., 137 B.R. 619 (D. W. Va. 1991), aff'd mem., 9

____________ __________

F.2d 639 (4th Cir. 1992); Carbana v. Cruz, 595 F. Supp. 5

_______ ____

(D.P.R. 1984), aff'd mem., 767 F.2d 905 (1st Cir. 1985 ___________

Miller Indus., Inc. v. Caterpillar Tractor Co., 516 F. Sup

___________________ ________________________


98/114

84 (D. Ala. 1980); Smith v. Sikorsky Aircraft, 420 F. Sup

_____ _________________

661 (C.D. Cal. 1976). See also Varela v. Jones, 746 F.

_________ ______ _____

1413 (10th Cir. 1984); S.J. Grove & Sons Co. v. I.B.T., 5

______________________ ______

F.2d 1241 (7th Cir. 1978); United States v. Equifax, Inc

_____________ ___________

557 F.2d 456 (5th Cir. 1977), cert. denied, 434 U.S. 10

____________

(1978); In re Georgetown Park Apt., 143 B.R. 557 (Bankr. 9

__________________________

Cir. 1992). Cf. In re Allied-Signal, Inc., 891 F.2d 974 (1

___ _________________________

Cir. 1989).

-38-

38


99/114

Having said this, certain principles seem clear.

judge would ordinarily be disqualified to sit by 455(a)

an attorney in the case before him or her were, at the sa

time, actively representing the judge in a personal matte

See 13A Charles Wright, Arthur Miller & Edward Coope

___

Federal Practice and Procedure 3549 at 614 (1984); c

________________________________

Potashnick, 609 F.2d at 1110-12; Texaco, 354 F.2d at 65

__________ ______

And while the situation is more attenuated where the judge

being personally represented not by the same attorney but

someone else in the attorney's firm, the latter situation

at least cause for concern, as there can be no doubt that,

many factual situations, such overlap can create t


100/114

appearance of partiality calling for withdrawal under

455(a). The members of the Judicial Conference Committ

advising judges as to the proper interpretation of the Co

of Conduct have said as much. See 2 Guide to Judicia

___ ________________

Policies and Procedures, supra, at V-25.

_______________________ _____

Weighing all the factors in the present case

which I entertain no doubt whatsoever as to the judge

personal integrity I nonetheless believe that

reasonable person viewing all the circumstances might ha

questioned the impartiality of the judge. The judge's ruli

to the contrary was, I believe, an abuse of discretion. S

In re United States, 666 F.2d 690, 697 (1st Cir. 1981)

_____________________


101/114

-39-

39

federal judge's decision on whether to recuse himself

herself is committed to that judge's sound discretion).

The judge received personal legal services from t

senior partner of Petruccelli & Martin, a small eight-memb

firm, close to the time the court ruled upon a dismiss


102/114

motion that, had it been resolved for Cargill, would have p

Petruccelli & Martin's client out of court. The problem

not simply that by personally retaining Mr. Petruccelli, t

judge indicated he had high regard for the latter

professional abilities. Judges may and often do, wi

propriety, indicate respect for an attorney's competenc

Here, however, by retaining the senior partner of this sma

firm for personal legal advice while having under adviseme

a dispositive motion in a case being handled by other membe

of the firm, the court gave the appearance that he may ha

had a particular affinity for that firm and perhaps so

close and special relationship. Other attorneys in the sa

case could reasonably have been offended by what might ha


103/114

appeared, from the outside, to have been a confidenti

relationship between the judge and Mr. Petruccelli at t

particular time. Also, even after the ending of the judge

own attorney-client relationship, an outside observer mi

wonder if, in some manner, consciously or unconsciously, t

judge's appreciation for a job well done by plaintiff's l

firm might possibly affect his handling of the pending case

-40-

40


104/114

The judge's brief attorney-client relationship wi

Mr. Petruccelli ended, it is true, before the judge

decision in the case against Cargill. The judge, howeve

had worked on Cargill's motion during the period of t

relationship. Moreover, the relationship ended only ten da

before the decision a period too short to insulate t

two events from one another. Any appearance of partiali

that existed prior to the time the representation ceas

cannot be meaningfully separated from the court's decision

January 19.

It is important to emphasize that 28 U.S.C.


105/114

455(a) is concerned with the appearance of impartialit

__________

Liljeberg, 486 U.S. at 860-61. Disqualification for actu

_________ ___

personal bias or prejudice is separately covered by

455(b)(1). The judge seems to have overlooked the appearan

aspect of the statute when he emphasized at the January

conference his moral certainty that his handling of the ca

would not be affected by the relationship with

Petruccelli. The question was not just whether he was bias

or prejudiced, but whether his impartiality might reasonab


106/114

-41- 41

be questioned, a related but different matter.12 Accordi

to the House Report accompanying amendments to 455,

Subsection (a) of the amended section 455

contains the general, or catch-all, [of

Canon 3C] that a judge shall disqualify

himself in any proceeding in which 'his


107/114

impartiality' might reasonably be

questioned. This sets up an objective

standard, rather than the subjective

standard set forth in the existing

statute . . . . This general standard is

designed to promote public confidence in

the impartiality of the judicial process

by saying, in effect, if there is a

reasonable factual basis for doubting the

judge's impartiality, he should

disqualify himself and let another judge

preside over the case. The language also

has the effect of removing the so-called

'duty to sit' which has become a gloss on

the existing statute . . . .

H. Rep. No. 93-1453, 93d Cong., 2d Sess. (1974), reprinted

_________

1974 U.S.C.C.A.N. 6351.

To be sure, the drafters of the statute were al

concerned, as are my colleagues here, that the statute not

____________________


108/114

12. Section 455 was completely rewritten by Congress in 19

so as to conform with the then-new Code of Judicial Condu

______________________

which the Judicial Conference of the United States

adopted in 1973 as being applicable to all federal judge

Section 455 was amended so as nearly to duplicate the Code

Canon 3C, with the intention that federal judges "would

longer be subject to dual [i.e.] Code and statutory standar

governing their qualification to sit in a particul

proceeding." H. Rep. No. 93-1453, 93d Cong., 2d Ses

(1974), reprinted in 1974 U.S.C.C.A.N. 6351. The Code

____________ ____

Judicial Conduct was drafted under sponsorship of t

__________________

American Bar Association by a committee chaired by for

California Chief Justice Roger J. Traynor. The ot

committee members included Justice Potter Stewart of the U.

Supreme Court, Judge Irving R. Kaufman of the U.S. Court

Appeals for the Second Circuit, and Judge Edward T. Gigno

of the U.S. District Court for the District of Maine.

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used by litigants for purely strategic purposes. The Hou

Report cautions that the new test should not be used

judges to avoid sitting in difficult or controversial case

Disqualification for lack of impartiality must always have

reasonable basis." Id. (emphasis in original).

__________ ___

Yet the question at issue is, objectively, whet

___________

the circumstances reasonably gave rise to a question of t

judge's impartiality. If so, the judge shall disquali

_____

himself. An express purpose of the 1974 rewrite of 455


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to abandon the subjective standard of the older statut

which had depended largely on the judge's personal view

whether he or she could behave impartially. Unfortunatel

the circumstances here created a situation where a reasonab

observer could entertain doubts as to the judge

impartiality. The judge himself obviously had concerns abo

the appearance of what had happened, leading him to call t

conference of January 12 for the purpose of disclosing w

had transpired. That a question of the judge

impartiality under 455(a) existed does not mean that t

judge committed a serious impropriety. The judge explain

that he did not immediately focus on the fact that

Petruccelli's firm, partners and associates were involved


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the case pending before him. Once aware, the ju

commendably disclosed the relationship. This action spea

loudly as to the judge's personal integrity. The fa

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remains, however, that a reasonable observer cou

objectively question the judge's impartiality in t


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particular circumstances. The judge was, therefore, requir

to remove himself unless he had received the parties' waive


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In Re: v. Cargill, Inc., 1st Cir. (1995)

Documents

Transcript of In Re: v. Cargill, Inc., 1st Cir. (1995)