Filed: Aug. 27, 1992
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 92-3502 _ IN THE MATTER OF: CLINTON J. BILLEDEAUX, SR., Petitioner. _ Petition for Writ of Mandamus and/or Prohibition to the United States District Court for the Eastern District of Louisiana _ (August 27, 1992) Before SMITH, EMILIO M. GARZA, and DEMOSS, Circuit Judges. JERRY E. SMITH, Circuit Judge: Clinton Billedeaux, the plaintiff in a maritime lawsuit pending in the United States District Court for the Eastern Dis- trict of L
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 92-3502 _ IN THE MATTER OF: CLINTON J. BILLEDEAUX, SR., Petitioner. _ Petition for Writ of Mandamus and/or Prohibition to the United States District Court for the Eastern District of Louisiana _ (August 27, 1992) Before SMITH, EMILIO M. GARZA, and DEMOSS, Circuit Judges. JERRY E. SMITH, Circuit Judge: Clinton Billedeaux, the plaintiff in a maritime lawsuit pending in the United States District Court for the Eastern Dis- trict of Lo..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-3502
_______________
IN THE MATTER OF:
CLINTON J. BILLEDEAUX, SR.,
Petitioner.
_________________________
Petition for Writ of Mandamus and/or Prohibition
to the United States District Court
for the Eastern District of Louisiana
_________________________
(August 27, 1992)
Before SMITH, EMILIO M. GARZA, and DEMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Clinton Billedeaux, the plaintiff in a maritime lawsuit
pending in the United States District Court for the Eastern Dis-
trict of Louisiana styled Billedeaux v. Tidex, Inc., No. 91-0134,
seeks to disqualify the district judge in that suit, the Honor-
able Edith Brown Clement, on the ground that her husband,
Rutledge Clement, is a partner in the law firm of Phelps, Dunbar,
Marks, Claverie & Sims ("Phelps, Dunbar"), which, according to
Billedeaux, "has actively represented defendant Tidex, Inc., in
many other cases." Judge Clement denied Billedeaux's motion for
recusal; accordingly, Billedeaux pursues the matter by petition
for writ of mandamus or prohibition.
I.
Billedeaux cites a few additional facts and allegations in
support of his petition. These include the fact that before her
recent elevation to the bench, Judge Clement was a partner in the
law firm of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, which, according to Billedeaux, is "a firm well known
for its maritime defense practice." Billedeaux asserts that
Phelps, Dunbar represents Tidex, Inc. ("Tidex"), though of course
not in the instant matter, and receives fees therefrom.
Billedeaux says that "[t]his fact may well impact on Judge
Clement's rulings and decision in the instant matter, which is
scheduled for a bench trial . . . ." From this, Billedeaux
surmises that "the economic ties her husband's firm has to Tidex
raises [sic] the possibility of partiality, thus falling within
the parameters of 28 U.S.C. § 455(b)(1)."
To this, Billedeaux adds that "[b]ecause defendant Tidex is
represented in many cases by the Phelps-Dunbar law firm, a
portion of Judge Clement's family income comes directly from
Tidex. Further, it appears that Phelps-Dunbar was under
consideration by Tidex for referral of this claim for defense
. . . ."
II.
Billedeaux bases his request for disqualification only upon
2
28 U.S.C. § 455(a) and (b)(1).1 These provisions read as follows:
(a) Any . . . judge . . . shall disqualify himself
in any proceeding in which his impartiality might rea-
sonably be questioned.
(b) He shall also disqualify himself in the
following circumstances:
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of dis-
puted evidentiary facts concerning the proceeding
. . . .
"The very purpose of § 455(a) is to promote confidence in
the judiciary by avoiding even the appearance of impropriety
whenever possible." Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 865 (1988). A party proceeding under this
section "must show that, if a reasonable man knew of all the
circumstances, he would harbor doubts about the judge's
impartiality." Chitimacha Tribe v. Harry L. Laws Co.,
690 F.2d
1157, 1165 (5th Cir. 1982) (citations omitted), cert. denied,
464
U.S. 814 (1983). Thus, "the view of the average, reasonable
person is the standard for analysis . . . ." In re Faulkner,
856
F.2d 716, 720 (5th Cir. 1988) (per curiam). Since a motion to
disqualify is "committed to the sound discretion of the district
judge," Chitimacha
Tribe, 690 F.2d at 1166, we must decide here
only whether Judge Clement abused her discretion.2
1
Billedeaux makes no claim for recusal under 28 U.S.C. § 144, regarding
actual bias.
2
In Faulkner, we did not specifically address the abuse-of-discretion
standard. In deciding, however, that "[a] reasonable person easily could
question the judge's impartiality," 856 F.2d at 721, we implicitly recognized
the efficacy of that standard and held that the district judge had abused his
discretion.
3
III.
The particulars of the Chitimacha decision are instructive
here and ultimately determine our conclusion that no abuse of
discretion has been shown. There, the plaintiffs asserted that
the district judge should be disqualified because he once had
represented the target defendant. We noted, though, that "[t]he
fact that [the judge] once represented [the defendant] in
unrelated matters does not forever prevent him from sitting in a
case in which [the defendant] is a party[, as t]he relationship
between [the judge] and [the defendant] is too remote and too
innocuous to warrant disqualification under § 455(a) . . . ." We
also emphasized that, as here, the firm in question "does not
represent [the defendant] or any other party in this case." Id.
There is no assertion that Judge Clement ever represented
Tidex; nor is there an averment that her husband has handled
matters for that client. The claim, instead, is that her husband
is a partner in a firm that has represented Tidex on various
occasions and that, as a result of that relationship, she and her
husband benefit from fees from that client and that, accordingly,
her impartiality might reasonably be questioned.
A similar argument was made in Chitimacha Tribe: The
plaintiffs asserted that the judge was receiving payments from
his former firm, which at times still represented the defendant
and thus might suffer financially if the judge were to rule
adversely to the defendant. We held that "[a]t best, this
speculation is remote and unrealistic [and] does not justify
4
disqualification." Id. at 1167.
Here, as well, there is no reason to conclude or speculate
that any action Judge Clement might take in the case sub judice
would affect Phelps, Dunbar or Judge Clement's husband. A
"remote, contingent, or speculative" interest is not one "which
reasonably brings into question a judge's partiality." In re
Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988),
cert. denied,
490 U.S. 1102 (1989). Thus, any interest of Judge
Clement's is too remote and speculative to support or suggest
recusal.
IV.
Chitimacha Tribe is binding precedent in this circuit; its
facts are so closely analogous to those in the case sub judice
that we believe recusal here was not called for.3 Even if we did
not have Chitimacha Tribe to guide us, however, we would conclude
that Judge Clement is not disqualified. The proper test, as we
have stated, is whether "a reasonable person, knowing all the
circumstances," would believe it improper for the judge to sit in
the case in question." Liljeberg, 486 U.S. at 861.
If a reasonable person knew all the relevant facts, he or
she would know that any interest that could be attributed to
3
In his dissenting opinion, Judge DeMoss states that Chitimacha Tribe is
not dispositive, but he makes no further mention of the case nor attempts to
explain why it is not binding authority or, with its similar facts, at least
persuasive enough authority to guide our decision in this case. Instead, he
relies only upon three general propositions with which we do not disagree but
which, unlike the rationale in Chitimacha Tribe, have no specific application
to the question posed in the case sub judice.
5
Judge Clement in the fate of her husband's law firm's sometime
client is so remote and speculative as to dispel any perception
of impropriety. Thus, there was ample reason for Judge Clement
to conclude that there was no reason to grant the motion for
recusal.
V.
Finally, even if we were not convinced that, on a de novo
basis, the decision was correct, we could not conclude that Judge
Clement abused her discretion in so deciding. In reviewing a
district court's denial of a motion to recuse, "we ask only
whether [the judge] has abused that discretion." Chitimacha
Tribe, 690 F.2d at 1166.4 Certainly, in regard to an interest
that is, at best, theoretical, Judge Clement was well within her
discretion in refusing to step aside.5
The petition for writ of mandamus and/or prohibition is
DENIED.
DeMOSS, Circuit Judge, dissenting:
I do not share the view of my colleagues on this panel that
Chitimacha Tribe is determinative of this case. Rather, I think
4
The dissent takes no cognizance of the abuse-of-discretion standard
but, instead, appears to decide the case on a de novo basis.
5
Our dissenting colleague takes the view that one reason for requiring
recusal here and announcing the same as a rule of law is that this
circumstance "will occur with increasing frequency as the distribution of men
and women in the legal profession continues to become more equal." While the
prediction of a more salutary ratio of men to women is both correct and
welcome, the adoption of a rule that increases the need for recusals by the
jurist spouse can only serve to make such arrangements more difficult and
hence less desirable.
7
the later cases of Health Services Acquisition Corp. v.
Liljeberg, 796 F.2d 796 (5th Cir. 1986); the Supreme Court
Decision in the same case, Liljeberg v. Health Services
Acquisition Corp.,
486 U.S. 847,
108 S. Ct. 2194,
100 L. Ed. 855
(1988); and In re Faulkner,
856 F.2d 716 (5th Cir. 1988)
establish the following principles:
A. The very purpose of § 455(a) is to promote confidence
in the judiciary by avoiding even the appearance of
impropriety whenever possible. Liljeberg, 108 S. Ct.
at 2205;
B. Scienter is not an element of a violation of § 455(a).
Liljeberg, 108 S. Ct. at 2202;
C. The test is whether the average reasonable person,
knowing all of the circumstances, might question the
impartiality of the judge. In re Faulkner, 856 F.2d at
721.
Under the facts of this case the question becomes, would the
average person be reasonable in questioning the impartiality of a
Trial Judge in a personal injury action where the judges' spouse
was a partner in a major law firm that represented the corporate
defendant in other litigation matters, but not in the case before
the judge. The circumstance that a Trial Judge has a spouse who
is actively engaged in the practice of law will occur with
increasing frequency as the distribution of men and women in the
legal profession continues to become more equal. I think the
average person looks upon the relationship between spouses as the
8
closet of all human relationships; and rightly or wrongly, it is
my perception that the average person would doubt the ability of
a judge and spouse to maintain a "Chinese wall" between their
professional responsibilities. Perhaps if the question were
posed in the abstract, you would get a different answer; but, my
gut tells me that if the average person is asked whether he would
feel comfortable having his own personal injury case tried by a
judge whose spouse was a partner in a law firm that represented
the defendant in other matters, the answer would be, "Would the
judge really be impartial?" I think that question is reasonable;
and the mandatory language of § 455 requires recusal.
I would add two comments from the standpoint of policy and
judicial administration. In our federal district courts located
in large metropolitan areas, where assignments of cases are done
initially on a random rotation basis and where there are several
other judges to whom the case can be referred, I think the call
in close cases (which is the case before us), should favor
recusal. Likewise, when the issue of disqualification is raised
prior to trial (as it has been in this case), a call in close
cases should lean toward recusal as a matter of efficient
judicial administration because the final decision making stage
of the litigation is thereby insulated from the waste and
inefficiency which would result from a later determination that §
455 had not been complied with.
Obviously none of my comments herein should be construed as
reflecting on the integrity or suggesting actual impartiality on
9
the part of the Trial Judge in this case or her spouse.
I would GRANT the writ of mandamus.
10
