United States Court of Appeals
For the First Circuit
Nos. 00-2430
00-2431
IN RE: BOSTON'S CHILDREN FIRST, ET AL.,
Petitioners.
ON PETITION FOR A WRIT OF MANDAMUS
Before
Torruella, Chief Judge,
Stahl and Lipez, Circuit Judges.
Michael Williams, with whom Chester Darling and Robert Roughsedge,
were on brief, for appellants.
Frances S. Cohen, with whom Merita A. Hopkins, Corporation
Counsel, Diane Diianni, Special Assistant Corporation Counsel, Hill &
Barlow and Adam N. Lewis, were on brief, for appellees.
February 5, 2001
TORRUELLA, Chief Judge. This petition involves the difficult
question of whether a sitting district court judge should have recused
herself after commenting publicly on a pending matter. Because we find
that it was, in this case, an abuse of discretion for the judge not to
recuse herself based on an appearance of partiality, we grant the writ
of mandamus. In so doing, we emphasize that such a grant in no way
indicates a finding of actual bias or prejudice, nor does it suggest
that the trial judge abdicated any of her ethical responsibilities.
BACKGROUND
We briefly summarize the procedural history of the case in
order to place the motion for recusal and the petition for the writ of
mandamus in context.
Petitioners filed suit challenging Boston's elementary school
student assignment process on June 21, 1999, claiming that they had
been deprived of preferred school assignments based on their race, in
violation of state and federal law. The case was assigned to District
Judge Nancy Gertner. On May 19, 2000, the district court addressed a
motion to dismiss in which defendants argued that "plaintiffs lack
standing to sue because they would not have received their preferred
school assignments anyway, even if racial preferences were not used" in
the assignment formula. The district court found that five of the ten
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individual plaintiffs1 had not applied to change schools for the 1999-
2000 school year, and thus lacked standing to seek injunctive relief. 2
Boston's Children First v. City of Boston, 98 F. Supp. 2d 111, 114 (D.
Mass. 2000) [hereinafter Boston's Children, Standing Order]. The court
allowed the remaining plaintiffs to conduct further discovery prior to
determining whether they had standing. The court found that because
all of the plaintiffs "may have a claim for damages," it could not
dismiss any of the damages claims on standing grounds.
Petitioners also sought class certification. In a June 20,
2000 status conference the court indicated that it would not rule on
class certification until it had received a written motion (which had
not yet been submitted) that analyzed how the alleged class complied
with the requirements of Federal Rule of Civil Procedure 23. The court
also offered petitioners a choice: it would either rule on their
pending motion for a preliminary injunction at that time, despite the
"relatively truncated record," or it would defer the motion until
further discovery had occurred. Petitioners chose to conduct further
discovery, and the motion for a preliminary injunction remains pending.3
1 The other plaintiff-petitioner, Boston's Children First, is a "self-
described membership and advocacy organization."
2 The five individual plaintiffs who were denied standing to sue for
injunctive relief have pursued an interlocutory appeal which is
currently pending before this Court.
3 The district court had denied petitioners' previous motion for a
preliminary injunction. Boston's Children First v. City of Boston, 62
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In a procedural order dated June 29, 2000, the district court set the
course of future litigation: it would allow further discovery on the
issue of standing, it would determine standing, and if any of the
plaintiffs had standing, class discovery and a hearing with respect to
class certification would follow. Boston's Children First v. City of
Boston, C.A. No. 99-11330-NG (D. Mass., June 29, 2000) (procedural
order).
Despite the schedule proposed in this procedural order,
petitioners filed a motion for class certification dated July 26, 2000.
The motion noted the similarity between the present case and Mack v.
Suffolk County, 191 F.R.D. 16 (D. Mass. 2000), a case in which class
certification had been granted prior to the resolution of standing
issues. Also on July 26, the Boston Herald printed an article in which
counsel for petitioners decried the district court's failure to
immediately certify a class. Counsel made the provocative claim that
"[i]f you get strip-searched in jail, you get more rights than a child
who is of the wrong color," a reference to the facts of the Mack case.
Dave Wedge, Lawyer Fights School Ruling, Boston Herald, July 26, 2000,
at 5. The article said that:
According to [counsel's] motion, Gertner refused
to hear arguments to expand the school suit to a
class action because the affected students may no
longer have standing in the case. But in the
F. Supp. 2d 247, 248 (D. Mass. 2000) [hereinafter, Boston's Children,
Denial of Preliminary Injunction].
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strip-search case [ Mack], Gertner held just the
opposite opinion.
Id. The article then noted that "Gertner could not be reached for
comment." Id.
In a July 28, 2000 letter to the Herald (with copies sent to
both parties), Judge Gertner responded to what she viewed as
inaccuracies in the July 26 article. She noted, correctly, that she
had not denied class certification, but had postponed ruling on class
certification until further discovery had occurred. She also noted
that, as of the date of the reporter's interview with counsel, counsel
for petitioners had not yet filed the motion in question.4 She included
with the letter a copy of her procedural order providing for a hearing
on class certification after the issue of standing had been resolved.
On August 4, 2000, the Herald published a follow-up article,
which, based on a telephone interview with Judge Gertner, quoted her as
saying:
In the [Mack] case, there was no issue as to
whether [the plaintiffs] were injured. It was
absolutely clear every woman had a claim. This
is a more complex case.
Dave Wedge, Race-based Admissions Case To Be Heard, Boston Herald,
August 4, 2000, at 24. It is not entirely clear from the record
whether Judge Gertner called the Herald reporter, or merely returned an
4 The motion was not filed until July 26 at 12:20 p.m., after that
day's edition of the Herald had been published, and accordingly after
the interview reported in that edition had taken place.
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outstanding phone call, neither party was made aware of her comments
prior to their August 4 publication. See Boston's Children First v.
City of Boston, 123 F. Supp. 2d 34, 36 (D. Mass 2000) [hereinafter
Boston's Children, Motion to Recuse] ("[W]hen asked about the source of
counsel's criticism . . . I noted that the cases were different, the
school case 'more complex.'").
Based on Judge Gertner's comments as reported in the August
4 article, petitioners then moved that the judge recuse herself because
her "impartiality might reasonably be questioned." 28 U.S.C. § 455(a).
Specifically, petitioners claimed that the ex parte conversation
between Judge Gertner and the Herald reporter, in which she described
the current proceeding as "more complex" than Mack, was "specifically
proscribed by the Code of Judicial Conduct," constituted a comment on
the merits of a pending motion, and meant that the court had "placed
itself in the apparent position of advising the defendants."
Judge Gertner denied the motion. Boston's Children, Motion
to Recuse, 123 F. Supp. 2d at 36. She acknowledged that she had made
the reported statements, characterizing them as attempts to correct a
record suffering from gross misrepresentation by counsel for the
petitioners. Id. She noted that "[n]othing in the Code of Judicial
Conduct" made such a correction improper; moreover, that it was her
"obligation to make certain that people receive accurate information
regarding the proceedings over which [she] preside[s]." Id. at 37. As
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to the specific comment about the complexity of the instant case, Judge
Gertner admitted that a conversation had taken place, but said:
My comments in court, in the myriad decisions
since the inception of the case, reflected
precisely that theme--that the case raised
complex questions of standing and liability, and
that it deserved careful and thoughtful
consideration.
Id. at 36. As a result, Judge Gertner concluded that she had simply
complied with the judicial canon allowing judges to explain "for public
information the procedures of the court." Id. at 37.
DISCUSSION
We begin, as we must, with the statute. Section 455(a)
requires "[a]ny justice, judge or magistrate of the United States [to]
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned." This statute seeks to balance two competing
policy considerations: first, that "courts must not only be, but seem
to be, free of bias or prejudice," In re United States, 158 F.3d 26, 30
(1st Cir. 1998) (quoting In re United States, 666 F.2d 690, 694 (1st
Cir. 1981)); and second, the fear that recusal on demand would provide
litigants with a veto against unwanted judges, id. We have thus
considered disqualification appropriate only when the charge is
supported by a factual basis,5 and when the facts asserted "provide what
5 We have refused to require recusal based on misrepresentations or
falsehoods made by third parties, even when such falsehoods are widely
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an objective, knowledgeable member of the public would find to be a
reasonable basis for doubting the judge's impartiality." In re United
States, 666 F.2d at 695. Moreover, we allow district court judges a
"range of discretion" in the decision not to recuse. Id. However, we
note that the district court should exercise that discretion with the
understanding that, "if the question of whether § 455(a) requires
disqualification is a close one, the balance tips in favor of recusal."
Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995).
Moreover, a petition for a writ of mandamus raises additional
hurdles for the party seeking recusal. We have held that at least
"[w]hen the issue of partiality has been broadly publicized, and the
claim of bias cannot be labeled as frivolous," In re United States, 666
F.2d at 694, judicial disqualification may be one of the "unusual
situations" appropriate for the writ, In re Martínez-Cátala, 129 F.3d
213, 217 (1st Cir. 1997). Even when such an unusual situation exists,
however, we have counseled that the jurisprudence of mandamus requires
that "an applicant for the writ . . . show both that there is a clear
entitlement to the relief requested, and that irreparable harm will
likely occur if the writ is withheld." In re United States, 158 F.3d
at 30 (quoting In re Cargill, Inc., 66 F.3d 1256, 1260 n.5 (1st Cir.
reported and might theoretically cause the "appearance of partiality."
See In re United States, 666 F.2d at 695. Because Judge Gertner has
acknowledged that she made the statement at issue here, the factual
basis of the allegations is not under challenge. The only question
here is whether that basis is sufficient to mandate recusal.
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1995)). Mandamus thus requires "a case not merely close to the line,
but clearly over it." Martínez-Cátala, 129 F.3d at 218.6
The crux of petitioner's complaint is that Judge Gertner's
statement - that the present case is "more complex" than Mack because
in Mack "there was no issue as to whether [the plaintiffs] were
injured" - could be construed as a comment on the merits of the pending
motions for preliminary injunction and class certification. In other
words, by calling this case "more complex," Judge Gertner arguably
suggested that the petitioner's claims for certification and temporary
injunctive relief were less than meritorious; by comparing the case
(less than favorably) to Mack, Judge Gertner signaled that relief was
unlikely to be forthcoming. Petitioners also argue that Gertner's
comments provided defendants with a ready-made argument with which to
distinguish the instant case from Mack.7 Given that Judge Gertner's
6 We note that in a Government petition for mandamus in a criminal
case, these concerns have been found less pressing because of the
possibility that, absent the writ, double jeopardy considerations will
eliminate any avenue of appeal. In re United States, 158 F.3d at 30-
31. That is clearly not the case here, in a civil action allowing the
full slate of appellate remedies upon a final judgment.
7 This last argument is somewhat of a stretch. Attempts to distinguish
cases are basic litigation strategy, and, in fact, defendants had
already suggested this particular distinction in earlier motions. See,
e.g., Boston's Children, Standing Order, 98 F. Supp. 2d at 113.
We also note that petitioners, in their appellate brief and in oral
argument, spent significant time discussing the procedural history of
the case and detailing the rulings against them which (in their
opinion) are suggestive of bias. We reject this argument: not only did
Judge Gertner provide ample legal support for every decision issued in
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comments could be construed in this context, petitioners argue that
regardless of her intent,8 the appearance of partiality created by her
public statement required her to recuse herself pursuant to § 455(a).
Although Canon 3(A)(6) of the Code of Judicial Conduct
instructs that "[a] judge should avoid public comment on the merits of
a pending or impending action," it does not extend this proscription to
"public statements made in the course of the judge's official duties,
to the explanation of court procedures, or to a scholarly presentation
made for purposes of legal education." 175 F.R.D. 364, 367 (1998).
The commentary to the Code also "counsels that 'particular care' be
taken" if a case from the judge's own court is involved, so that the
comment "does not denigrate public confidence in the integrity and
impartiality of the judiciary in violation of Canon 2A." Id. at 370-
71.
Although the "goal sought to be served by the Canon informs
our analysis," we do not decide the case solely on that basis. United
States v. Cooley, 1 F.3d 985, 995 n.8 (10th Cir. 1993). First, it is
this case, but "judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion . . . . Almost invariably, they
are proper grounds for appeal, not for recusal." Liteky v. United
States, 510 U.S. 540, 555 (1994). This may be true even when the
judicial rulings in question are erroneous. In the Matter of
Sheffield, 465 So.2d 350, 357 (Ala. 1985).
8 In her memorandum refusing recusal, Judge Gertner has characterized
her aims as explanatory and educational. Boston's Children, Motion to
Recuse, 123 F. Supp. 2d at 37.
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not at all clear that Judge Gertner was commenting on the merits of
petitioner's motion. She understood her own comments as entirely
ethical explanations of the reasons behind court procedures. Judge
Gertner felt, reasonably, that such explanation was warranted given the
likelihood that the Herald's readers would misunderstand the
procedurally complex issues of standing and class certification -
issues particularly difficult for those not legally trained. See
Boston's Children, Motion to Recuse, 123 F. Supp. 2d at 37 ("Rather, I
chose to correct the record. Nothing in the Code of Judicial Conduct
suggests that I may not do so."). Second, both this Court and other
courts have indicated that the Code of Judicial Conduct does not
overlap perfectly with § 455(a): it is possible to violate the Code
without creating an appearance of partiality; likewise, it is possible
for a judge to comply with the Code yet still be required to recuse
herself. See In re Cargill, 66 F.3d at 1262 n.5 (not deciding the
point, but noting the "strong argument" that "not all instances of
noncompliance" with the Code require automatic disqualification); In re
Barry, 946 F.2d 913, 914 (D.C. Cir. 1991) (per curiam). But see id. at
916 (Edwards, J., dissenting) (suggesting that breach of this canon
"will almost always give rise to a legitimate claim for
disqualification under section 455(a)"). Third, we must consider the
comments in the context in which they were issued: as a response to
statements by counsel that were, at minimum, provocative attempts to
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influence public opinion, and that could have been considered
misrepresentations that potentially violated professional ethics. Cf.
Town of Norfolk v. U.S. Army Corps of Eng'rs, 968 F.2d 1438, 1460
(noting importance of context of statements, both within the course of
individual litigation and with reference to the history of underlying
subject matter).
We have little guidance on when public comments, even those
on the merits of a pending action, create an appearance of partiality
for which § 455(a) recusal is the appropriate remedy.9 Judges are
generally loath to discuss pending proceedings with the media, even
when litigants may have engaged in misrepresentation. See Cooley, 1
F.3d at 995 ("[Discussing the case with the media] was an unusual thing
for a judge to do."). Thus few reported cases deal with recusal on
this basis. The Tenth Circuit has provided at least one example of
when media contact mandated judicial disqualification. In Cooley, a
federal district judge who had issued a preliminary injunction
preventing abortion protesters from blocking a Kansas clinic "became
'adamant and vocal' in stating that his order was going to be obeyed"
upon learning that protesters intended to willfully violate his orders.
9 In contrast, myriad cases indicate that courts are loath to require
recusal based on statements made in a judicial context (e.g., in a
status hearing or a decision rendered from the bench), even when such
statements might suggest, to some extent, pre-determination of the
merits. See, e.g., United States v. Grinnell, 384 U.S. 563, 581-82
(1966); United States v. López, 944 F.2d 33, 37 (1st Cir. 1991).
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Id. at 988. As part of his "campaign" to ensure that his orders would
be enforced, the judge appeared on "Nightline," where he stated that
"these people are breaking the law." Id. at 990. Five defendants
arrested for blocking access to the clinic sought recusal of the
district court judge, which he refused to grant.
The Tenth Circuit noted that, in refusing to grant the motion
for recusal, the district court had maintained that it "knew nothing
about the facts of [the defendants'] cases, and had no predisposition
as to their guilt or innocence of the charges." Id. at 995. The court
of appeals saw no reason to find otherwise. Id. at 996 ("[T]he record
of the proceedings below . . . discloses no bias. To the contrary, it
appears that the district judge was courteous to the defendants and
sedulously protected their rights."). But the court continued to
explain why recusal was necessary nonetheless:
§ 455(a) asks a broader question which, on
these facts, makes it impossible to take these
cases out of context. . . .
Two messages were conveyed by the judge's
appearance on national television in the midst of
these events. One message consisted of the words
actually spoken regarding the protesters'
apparent plan to bar access to the clinics, and
the judge's resolve to see his order prohibiting
such actions enforced. The other was the judge's
expressive conduct in deliberately making the
choice to appear in such a forum at a sensitive
time to deliver strong views on matters which
were likely to be ongoing before him. Together,
these messages unmistakenly conveyed an uncommon
interest and degree of personal involvement in
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the subject matter. It was an unusual thing for
a judge to do, and it unavoidably created the
appearance that the judge had become an active
participant in bringing law and order to bear on
the protesters, rather than remaining as a
detached adjudicator.
We conclude that at least after the judge's
volunteer appearance on national television to
state his views regarding the ongoing protests,
the protesters, and his determination that his
injunction was going to be obeyed, a reasonable
person would harbor a justified doubt as to his
impartiality in the case involving these
defendants.
Id. at 995.
Although the media contact in this case was less inflammatory
than that in Cooley, we see the same factors at work, albeit on a
smaller scale. First, the Boston school assignment program is a matter
of significant local concern, generating at least two prominent
articles in the Boston Herald. Judge Gertner viewed this prominence as
all the more reason to correct misrepresentations by petitioners'
counsel. However, Cooley counsels that in newsworthy cases where
tensions may be high, judges should be particularly cautious about
commenting on pending litigation. Interested members of the public
might well consider Judge Gertner's actions as expressing an undue
degree of interest in the case, and thus pay special attention to the
language of her comments. With such public attention to a matter, even
ambiguous comments may create the appearance of impropriety that
§ 455(a) is designed to address. In fact, the very rarity of such
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public statements, and the ease with which they may be avoided, make it
more likely that a reasonable person will interpret such statements as
evidence of bias. See In re Allied Signal Inc., 891 F.2d 967, 971 (1st
Cir. 1989) ("[O]ther things being equal, the more common a potentially
biasing circumstance and the less easily avoidable it seems, the less
that circumstance will appear to a knowledgeable observer as a sign of
partiality.").
Second, the "appearance of partiality" at issue here, as in
Cooley, stems from the real possibility that a judge's statements may
be misinterpreted because of the ambiguity of those statements. In
both cases, the judge's public comments could easily be characterized
as legitimate efforts to explain operative law. For example, the judge
in Cooley could be understood merely as reminding potential law-
breakers of the binding nature of a judicial order, and the potential
for punishment that may accrue upon its violation. Similarly, Judge
Gertner's comments can be understood as a reflection of language in her
prior orders, i.e., that class certification could not yet issue
because the standing questions were more difficult ("more complex")
than those in Mack. Still, in both cases the comments were
sufficiently open to misinterpretation so as to create the appearance
of partiality, even when no actual prejudice or bias existed. In
Cooley, a reasonable person might interpret the comments as an
affirmative effort to enforce the law, and an indication that a guilty
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verdict would be forthcoming. Here, a reasonable person might
interpret Judge Gertner's comments as a preview of a ruling on the
merits of petitioner's motion for class certification, despite the fact
that defendants had not yet filed a response to that motion.
Although the Tenth Circuit based its finding in Cooley on the
district judge's "active participa[tion] in bringing law and order to
bear on the protesters," other courts have agreed that under some
circumstances a judge's defense of her own orders, prior to the
resolution of appeal, may create the appearance of partiality. See,
e.g., Broadman v. Comm'n on Judicial Performance, 18 Cal. 4th 1079,
1104 (Cal. 1998) ("By making public comments in an attempt to justify
and defend his decisions while those decisions were pending on appeal,
petitioner adopted the role of an advocate. Such actions would appear
to an objective observer to be 'prejudicial to public esteem for the
judicial office.'"). To the extent that Judge Gertner's comments might
be interpreted as a defense of her procedural approach to this
litigation, this proscription is well taken. We believe that this
appearance of partiality created by defense of a judge's own orders is
equally (if not more) troubling in the midst of litigation than when a
case is remanded to a judge upon appeal.
The fact that Judge Gertner's comments were made in response
to what could be characterized as an attack by counsel on the
procedures of her court did not justify any comment by Judge Gertner
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beyond an explanation of those procedures. See In re Conard, 944
S.W.2d 191 (Mo. 1997) (holding that a statement as to charges possible
against potential defendant "reflected a pre-judging of the merits of
criminal charges that might have been filed . . . [and] was not
justified by the attacks [on the court]"); Sheffield, 465 So.2d at 354
(concerning a judicial response to a letter, criticizing the court,
which appeared to have been "unfounded and factually incorrect").
Whether counsel for petitioners misrepresented the facts or not is
irrelevant: the issue here is whether a reasonable person could have
interpreted Judge Gertner's comments as doing more than correcting
those misrepresentations and creating an appearance of partiality. We
feel that, on these facts, a reasonable person could do so.
Again, we underscore that this ruling in no way intimates any
actual bias or prejudice on the part of Judge Gertner. See In re Sch.
Asbestos Lit., 977 F.2d 764, 782 (3d Cir. 1992). "The problem,
however, is that regardless of [a judge's] actual impartiality, a
reasonable person might perceive bias to exist, and this cannot be
permitted." Id. "Such a stringent rule may sometimes bar trial by
judges who have no actual bias and who would do their best to weigh the
scales of justice equally between contending parties." In re
Murchison, 349 U.S. 133, 136 (1955). We have every confidence that
Judge Gertner is one such judge. "But to perform its high function in
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the best way, 'justice must satisfy the appearance of justice,'" id.,
and thus we must grant the writ.
Writ of mandamus granted.
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