The opinion of the court was delivered by: Shadur, District Judge.
It should be made plain at the outset that none of the grounds
relied on by the State Defendants involves any claimed personal
conduct, bias, prejudice or knowledge on my part in any
respect.*fn2 Indeed I know none of the parties to the action and
have no personal knowledge of any facts involving the subject
matter of this case. Nor do I have any social or other
relationship with any of the lawyers representing any of the
Instead the claimed bases for disqualification are entirely
vicarious: They relate to prior involvements of the Chicago
Chapter of the Lawyers' Committee for Civil Rights under Law
("Lawyers' Committee") and of one of my former partners in the
law firm (now Krupp & Miller) with which I was associated for
over thirty years in the practice. These actions of other persons
are asserted to invoke the provisions of 28 U.S.C. § 455 (only
the possibly relevant provisions are quoted):
When Section 455 was amended to take its present form in 1974,
it was intended to substitute objective criteria for
disqualification in place of the former subjective standard
(under which the opinion of the judge was made conclusive) and to
modify the pre-existing "duty to sit" concept that had previously
placed sharp limitations on the granting of recusal motions. SCA
Services, Inc. v. Morgan,
, 113 (7th Cir. 1977).
Although I have termed the new statutory criteria "objective," it
is obvious from the language of Section 455 that subsection (b)
involves standards that are truly objective in the sense of
dealing with ascertainable facts, while subsection (a) is
necessarily judgmental in nature.
Against that background I will review the several matters
asserted by the State Defendants. Though they mention it last, I
will deal first with the one item that does not relate to the
That item borders on the frivolous and, if it were the only issue
tendered by the State Defendants, would cast serious doubt on
their certification that the motion is made in good faith. It is
frankly untenable to impute the views of a United States
Congressman, expressed on the floor of the House of
Representatives in his official capacity, to the members of the
law firm in which he was a partner. But even that issue need not
be dealt with here. In any case, the complete answer to that item
is that then Congressman (now Court of Appeals Judge) Mikva had
ceased to be a partner in our law firm at the end of 1968, upon
having been elected to Congress. We made that decision jointly
because we shared the view that membership in Congress was a
full-time activity that could present a possible appearance of
impropriety if it were coupled with the continuing practice of
law by the Congressman. So this item in the State Defendants'
motion is without merit on two independent grounds.
Each of the other matters referred to by the State Defendants
relates to actions by Lawyers' Committee. That organization was
founded in 1969 as an unincorporated association by 17 Chicago
law firms. Today its membership comprises 50 law firms (Lawyers'
Committee is affiliated with the National Lawyers' Committee for
Civil Rights Under Law, Washington, D.C.). In April 1971 the firm
then known as Devoe, Shadur, Plotkin, Krupp & Miller, in which I
was a partner, joined Lawyers' Committee.
From the outset Lawyers' Committee's stated purposes were the
same as are now stated in its Articles of Incorporation:
To provide for the furnishing of legal services (but
only by individuals licensed to practice law in the
State of Illinois) and related services without
charge to individuals and organizations located
within the State of Illinois in matters which will
have a broad impact on the availability of
opportunities to them now or in the future and where
such individuals or organizations are otherwise
unable to afford the cost of such legal and related
As indicated by its name, the organization's focus has been
limited to civil rights matters. Its financial support has always
stemmed from voluntary contributions by the participating law
firms. Although it has a small staff (presently including its
executive director, herself a lawyer, and two other staff
lawyers), its substantive involvements in areas of civil rights
are largely carried out by volunteer lawyers who render pro bono
services without charge in matters in which they individually
choose to become involved. Its staff people both coordinate the
volunteer activity and work on Lawyers' Committee matters in
their own right. Each member firm designates one of its lawyers
as a liaison person with Lawyers' Committee, though the liaison
person does not necessarily participate in any specific legal
matter on which members of his or her firm may agree to act as
volunteers. Those liaison persons serve as a full committee that
select what was formerly termed the Executive Committee (now the
Board of Directors) and chairpersons. Lawyers' Committee has been
incorporated as a not-for-profit corporation with tax exempt
status since 1976, but its operations have continued in the same
Beginning with the December 1969 raid that gave rise to this
action, the State Defendants' motion refers to the following
Lawyers' Committee-related involvements in connection with its
1. On December 11, 1969 twelve individuals who were
members of the law firms participating in Lawyers'
Committee sent a telegram to United States
Attorney General John Mitchell urging that a
special grand jury be convened to investigate the
raid. Neither I nor any other member of my law
firm was involved in that telegram. At that time
my firm had no affiliation with Lawyers'
2. In 1970 Lawyers' Committee was one of four
organizations (the others were the Chicago Bar
Council of Lawyers and American Civil Liberties
Union) that petitioned for and obtained an order
from the Circuit Court of Cook County appointing a
special prosecutor, Barnabas Sears, with authority
to convene a grand jury to determine whether any
indictable offenses had been committed during the
raid. That also antedated my law firm's
participation or membership in Lawyers' Committee.
3. In 1971 Lawyers' Committee and five other
organizations filed briefs amicus curiae in the
Illinois Supreme Court in support of Special
Prosecutor Sears' two petitions for mandamus
(People v. Sears, 49 Ill.2d 14, 273 N.E.2d 308
(1971) and Ill.S.Ct. No. 44586). At that time, my
law firm had become a member of Lawyers' Committee
and I was my law firm's designated liaison person
to the Committee, but neither my firm nor I was
involved in the decision to file the petitions or
in their preparation, and I was not listed as
4. In 1973 Lawyers' Committee moved for leave to
appear as amicus curiae in the Illinois Supreme
Court in another action by Special Prosecutor
Sears for a writ of mandamus and prohibition
(because the Sears motion for leave to file the
petition was denied, Lawyers' Committee's motion
was also denied). At that time my partner Ronald
S. Miller was my law firm's designated liaison
person to Lawyers' Committee and was a member of
the Lawyers' Committee Executive Committee, a
group made up of the liaison persons from several
of the law firms participating in Lawyers'
Committee. Neither Mr. Miller nor our law firm
participated in the preparation of the 1973
5. In 1975 Lawyers' Committee's staff employees
filed an amicus curiae brief on behalf of a number
of organizations in support of the petition for
mandamus filed in the Court of Appeals for the
Seventh Circuit in this then-pending action,
seeking a writ requiring Judge Perry (a) to compel
one of the present defendants to submit to
questions regarding and to identify his informant,
(b) to vacate his previous order severing the
federal defendants and (c) to permit discovery to
proceed without the trial court's in camera review
of documents. Lawyers' Committee itself did not
join in that brief. In addition, a law firm (not
my own) that was a member of Lawyers' Committee
prepared for submission to the Department of
Justice and the FBI a Freedom of Information Act
request and supporting memorandum (apparently
neither was in fact actually submitted) to obtain
information relating to the 1969 raid. At that
time Ronald Miller was still my law firm's
designated liaison person to Lawyers' Committee
and still a member of its Executive Committee.
Neither Mr. Miller nor our law firm participated
in the preparation of the proposed FOIA request.
6. In 1978 Lawyers' Committee filed an amicus brief
in our Court of Appeals urging reversal of Judge
Perry's directed verdicts in this action. That
appeal was successful (see 600 F.2d 600) and gave
rise to the remand and reassignment to calendar.
At that time Ronald Miller was, as before, our law
firm's designated representative to Lawyers'
Committee and a member of Lawyers' Committee's
Board of Directors, and he was also serving as
Lawyers' Committee's co-chairperson. In that
capacity he participated in the decision to
authorize the filing of the amicus brief (decision
that was submitted to the representatives of all
member firms for approval). Three law firms, not
including my own, prepared the brief and appeared
as counsel for Lawyers' Committee as amicus. In
the memorandum seeking approval of the member
firms for the brief, Lawyers'
Committee's Executive Director specified that the
brief would be approved for submission to the
Court by the Executive Director and the two
co-chairpersons (thus including Mr. Miller).
Mr. Miller's time records reflect that he did
spend time in the review of that brief before
filing and discussed the brief with another
partner in our law firm (but not with me).
Thereafter,after the filing of the brief and after
the Court of Appeals had handed down its decision,
the same counsel who had prepared the original
amicus brief prepared and filed a brief on behalf
of Lawyers' Committee as amicus curiae opposing
rehearing en banc and supporting the award of
attorney's fees to plaintiff's counsel.
Some other Lawyers' Committee matters are referred to in the
State Defendants' supporting affidavit:
1. Lawyers' Committee itself is plaintiff in an
action in this Court against the City of Chicago,
then Mayor Daley, then Police Commissioner
Rochford, Marlin Johnson (who is one of the
defendants in this action) and a number of other
defendants. My former partner, Ronald Miller, is
one of the attorneys listed as counsel for
Lawyers' Committee in that matter. Its subject
matter is wholly unrelated to the subject matter
of the present action.
2. Another case pending in this Court, brought by the
Alliance To End Repression and a number of other
plaintiffs, including three of the attorneys for
plaintiffs in this action, has been consolidated
for discovery with the Lawyers' Committee action
referred to in the preceding paragraph.
3. In 1969 one of the member law firms of Lawyers'
Committee (not my own firm) represented certain
doctors cooperating with the Black Panthers in
their effort to establish a community health
center on the west side of Chicago.
4. In 1972 another member law firm of Lawyers'
Committee provided legal assistance to Free
Services, Inc., which has operated a free
breakfast program for poor children as an arm of
the Black Panther Party and was then being
incorporated to secure federal tax exempt status.
Simply to recite these last items demonstrates that they merit
the same comments as the State Defendants' reference to the
congressional speech by Abner Mikva. It would be charitable to
characterize them as even makeweight factors in a bona fide
motion for disqualification. Accordingly, the only matters that
require serious analysis are those that I have previously
itemized in connection with the subject matter of this case.
None of those matters requires disqualification under the
specific and objective standards of Section 455(b). Only one of
those provisions could even arguably apply:
Where in private practice he served as lawyer in the
matter in controversy, or a lawyer with whom he
previously practiced law served during such
association as a lawyer concerning the matter, or the
judge or such lawyer has been a material witness
concerning it;. . . .
and for the reasons hereafter stated, it plainly does not.
As indicated earlier, the one matter in which Ronald Miller —
"a lawyer with whom [I] previously practiced law" — served "as a
lawyer" was the suit against the City of Chicago and numerous
others, including Marlin Johnson, one of the defendants here.
Because that lawsuit, wholly unrelated to the present action, is
not "the matter in controversy," Section 455(b)(2) does not apply
to that matter.
Conversely, in each of Lawyers' Committee's involvements in
earlier stages of this case, or in related actions that might
arguably qualify as "the matter in controversy," Mr. Miller did
not "serve . . . as a lawyer concerning the matter." In the
closest instance, the 1978 amicus brief in the appeal that
preceded the remand to this Court, Mr. Miller participated in the
approval of the
filing of the brief, but he did so as co-chairperson of Lawyers'
Committee — that is, as the client not the lawyer.
When we consider Section 455(a), however, the problem is more
difficult. Lawyers' Committee is not an organization like (say)
the Chicago Bar Association or American Civil Liberties Union, in
which participation is solely on an individual basis. Thus if Mr.
Miller had been an officer of the CBA or of ACLU, and if that
organization had involved itself in this matter in the same way
as Lawyers' Committee has done, there would have been no
reasonable basis for imputing that activity to me. But because it
was my former law firm that was a Lawyers' Committee member, Mr.
Miller's service on Lawyers' Committee's Executive Committee and
Board of Directors and as co-chairperson might reasonably be
ascribed to the law firm. By the same token, his approval of
Lawyers' Committee's 1978 amicus brief, though it was not in fact
discussed with or submitted to me, appears to have been discussed
with another partner in the law firm. Thus it might reasonably be
deemed to have been an action taken as a representative of the
firm in its membership relationship with Lawyers' Committee.
In the related area of lawyer disqualification for conflicts of
interest, the knowledge and actions of any partner in a law firm
are imputed to every other partner. Westinghouse Corp. v.
Kerr-McGee Corp., 580 F.2d 1311, 1318 (7th Cir. 1978); Schloetter
v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976). It
is considered to be contrary to public policy to inquire as to
whether communications regarding client confidences and secrets
in fact took place. Schloetter, 546 F.2d at 710.
Although the two situations are not exactly parallel and the
considerations do differ somewhat, it would clearly tend to
undermine confidence in the judicial system if judges were viewed
as being held to lower standards of propriety than lawyers.
Section 455(a) is the judicial counterpart of Canon 9 of the
lawyers' Code of Professional Responsibility ("A lawyer should
avoid even the appearance of professional impropriety"). Though
I am morally certain that I would in fact be impartial in this
proceeding, that is not the standard; the test is rather whether
my impartiality "might reasonably be questioned." If knowledge
and approval of a legal position by a law firm partner is to be
imputed to his other partners for purposes of lawyer
disqualification (whether or not the other partners had any
knowledge of the matter), and if public policy precludes inquiry
into the facts regarding knowledge of those other partners, in my
opinion no lesser standard can be applied in ruling on judicial
disqualification. From that perspective, my own lack of personal
knowledge of the matter is legally irrelevant.
As already discussed, several of the matters sought to be
relied on by the State Defendants are clearly groundless. But
those weaknesses do not detract from the force of the legal
question posed by the 1978 activities of Lawyers' Committee and
my former partner as its then co-chairperson. Plaintiffs argue
essentially that the State Defendants are engaged in
impermissible judge-shopping, but my decision also cannot
properly be affected by considerations as to the possible
underlying motives for the motion to disqualify.
Plaintiffs also argue that participation as amicus curiae
differs from being a party to the litigation (a possible
distinction I commented on when the present motion was initially
submitted). However, the vigorous advocacy of Lawyers' Committee
in the 1978 appeal (properly vigorous, given the Committee's
viewpoint on the merits) did not differ in kind from that of
plaintiffs themselves, and in my view the same principles apply.
Accordingly, I have concluded that the State Defendants' motion
is well grounded in law because it is possible that my
"impartiality might reasonably be questioned," and this action is
transferred to the Executive Committee of this Court for