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October 10, 1980


The opinion of the court was delivered by: Shadur, District Judge.

Upon remand from the United States Supreme Court*fn1 reversing in part the decision of the Court of Appeals for the Seventh Circuit, 600 F.2d 600 (7th Cir. 1979), this action was assigned to me under this Court's random reassignment system. Various of the defendants (the "State Defendants") have moved that I disqualify myself in this case under 28 U.S.C. § 144 and 455 and that the case be transferred to the Executive Committee for reassignment.

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 parties.

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):

    (a) Any justice, judge or magistrate of the United
  States shall disqualify himself in any proceeding in
  which his impartiality might reasonably be
    (b) He shall also disqualify himself in the
  following circumstances:
      (2) 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;. . . .

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, 557 F.2d 110, 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 Lawyers' Committee:

    3. Milton Shadur was a member in the law firm, a
  member of which, Abner Mikva, addressing Congress,
  requested an investigation of the State Defendants'
  conduct on December 4, 1969.

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 ...

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