United States District Court, Northern District of Illinois, E.D
November 3, 1981
MOSHE MENORA, ET AT., PLAINTIFFS,
ILLINOIS HIGH SCHOOL ASSOCIATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs sue individually and on behalf of the class of male members
of the Orthodox Jewish faith who want to compete in Illinois
interscholastic high school basketball. They challenge on First Amendment
grounds the Illinois High School Association ("IHSA") rule that, by
prohibiting the wearing of headgear, makes it impossible for members of
plaintiff class to play without violating a fundamental tenet of their
faith.*fn1 IHSA has moved that I recuse myself from hearing this action
under 28 U.S.C. § 144 ("Section 144") and 455 ("Section 455").*fn2
For the reasons stated in this memorandum opinion and order IHSA's motion
On October 28, 1981 Astroth filed an "Affidavit of Disqualification of
Honorable Milton I. Shadur" stating:*fn3
(1) That he is the Executive Secretary of Illinois
High School Association, the defendants.
(2) That he believes and avers that the Judge before
whom this action is pending, Honorable Milton I.
Shadur, has a personal bias and prejudice against the
(3) The fact and reasons for the belief that such
personal bias and prejudice exist are as follows:
(a) The Honorable Milton I. Shadur was a member of
and was active in the American Jewish Congress prior
to his appointment to the federal judiciary.
(b) The American Jewish Congress is the
organization that is bringing this action before the
(c) The issues before the court center on the free
exercise of Orthodox Jewish beliefs.
This op1nion will treat with the last of Paragraph 3's factual assertions
first, simply because it is so entirely frivolous in the legal sense and
ignorant in the factual sense.
As a matter of law my religious beliefs, as well as those represented
by American Jewish Congress, are irrelevant—a matter treated
shortly in this opinion. But because IHSA has again sought to place them
in issue, I will repeat the statement I made when IHSA first moved my
recusal: I am Jewish, but I am not an Orthodox Jew. I do not share the
beliefs of plaintiffs, nor do I practice them. But of course I respect
them as I respect the beliefs and practices of every religion or, for
that matter, every atheist and every agnostic.
As for American Jewish Congress, like most Jewish organizations it does
not have a particular religious affiliation of its own, either Orthodox,
Conservative or Reform. Its members are drawn from every shade of Jewish
belief or, in many cases, from every shade of lack of Jewish belief. IHSA
and its counsel disclose a complete lack of understanding of such and
other aspects of Judaism, an understanding that would have foreclosed
their reliance on affidavit ¶ 3(c) in the current motion.*fn4
What is critical here, however, are not these facts as to religious
beliefs, but rather the poverty of IHSA's legal position in seeking to
place them in issue. Three terms back, when the Supreme Court heard N.L.
R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1818, 59
L.Ed.2d 538 (1979), should Justice Brennan have recused himself, instead
of writing as he did the dissenting opinion? When a suit is brought
challenging the erection of the Nativity scene in a city hall at
Christmas, who shall hear it? Must a Jewish judge recuse himself or
herself? If so, must not a Christian judge? When the question is whether
the Lord's Prayer from the King James Bible is to be recited in public
schools, must a Protestant judge recuse himself or herself? If it is the
Douay Bible instead, can the Protestant judge sit but not the Catholic?
Does the Jewish judge not hear either of those cases?
What defendants have wholly failed to perceive was stated very simply
in Lawton v. Tarr, 327 F. Supp. 670 (E.D.N.C. 1971):
It is hornbook law that the attitude or feeling a
judge may entertain toward the subject matter of a
case does not disqualify him.*fn5
That proposition has been confirmed repeatedly in contexts that have
direct applicability here.
For example in State of Idaho v. Freeman, 507 F. Supp. 706 (D.Idaho
1981) Judge Marion Callister, a member of the Mormon Church, recently
refused to recuse himself in a case involving the Equal Rights
Amendment, even though the Church had taken a strong formal position
opposing ERA. Indeed Judge Callister was serving as a Regional
Representative for the Church when suit was filed.
In Commonwealth of Pennsylvania v. Local Union 542, International Union
of Operating Engineers, 388 F. Supp. 155 (E.D. Pa. 1974) Judge Leon
Higginbotham was faced with an affidavit similar to that filed here. In a
lengthy and thoughtful opinion that should be read for more than the
brief excerpt quoted here, Judge Higginbotham said (id. at 159, citations
Facts must be pleaded which show that there exists
personal bias and prejudice on the part of the trial
judge. . . . Disqualification will be warranted only
if such personal bias is shown. . . . The facts
pleaded will not suffice to show the personal bias
required by the statute if they go to the background
and associations of the judge rather than to his
appraisal of a party personally. . . .
Still another comparable example is Judge Constance Baker Motley's
refusal to recuse herself in a civil rights action because she is Black,
a woman and had represented many civil right plaintiffs in private
practice. Blank v. Sullivan and Cromwell, 418 F. Supp. 1, 4 (S.D.N.Y.
It would be easy to multiply the examples of like opinions. But the
bottom line is what Judge Frank said in In re J.P. Linahan, 138 F.2d 650,
651 (2d Cir. 1943) (another opinion commended to counsel for reading in
Appellants entertain a fundamentally false notion
conception of the prejudice which disqualifies a
See also Ex parte Fairbank, 194 F. 978, 989-90 (M.D.Ala. 1912).
Proper homework, the obligation of every lawyer on every issue of law,
would have involved counsel's consideration of the extensive and
consistent body of case law before filing a groundless motion. IHSA's
counsel have cited no authority whatever in support of their motion.
Plainly the aspect of the affidavit stating the "issues before the Court
center on the free exercise of Orthodox Jewish beliefs" is not a ground
IHSA's other asserted ground for disqualification deals with my former
membership and activity in American Jewish Congress ("AJC"). When I took
the bench I resigned from that and a number of other organizational
affiliations in accordance with the Code of Judicial Conduct for United
States Judges (the "Code"). Under the Code resignations from
organizations "likely [to] engaged in proceedings that would ordinarily
come before [the judge] or [to] be regularly engaged in adversary
proceedings in any court" are called for*fn6 precisely to eliminate the
need for disqualification, to serve all-important need to preserve the
integrity of our absolutely random assignment system and to minimize
judge-shopping and transfers. Code Canon 5 B; Advisory Committee on
Judicial Activities, Advisory Opinion No. 40 (1975), confirmed in
Advisory Opinion 62 (1980).
In any case my former AJC membership and activity must be viewed
against the statutes IHSA seeks to invoke. Section 144 speaks of personal
bias or prejudice against a party. IHSA makes no allegations whatever as
to the parties. Plaintiffs are individual young men and their fathers,
none of whom I know or have ever met. Their high schools, also
plaintiffs, are only names to me I do not know their locations, nor do I
have any idea of who serves on their governing boards or as their
officers. On the defendants' side, I do not know Astroth and my only
knowledge of IHSA is derived from newspapers and watching its annual
state basketball championship finals on television.
American Jewish Congress is not a party. Moreover, given what has been
said about its own organizational nature and the absence of any
affiliation of its membership generally with plaintiffs' individual
beliefs, that is not a token difference. AJC has provided lawyers for
plaintiffs in much the same way as do (among other organizations) American
Civil Liberties Union and Lawyers Committee for Civil Rights Under Law.
When I was practicing law I too served as a volunteer pro bono lawyer on
issues I considered important, for all three of those organizations among
Just as IHSA has exhibited the myopia to lump all Jews as fungibie, so
it has failed to think through—or think about—the legal
distinction between acquaintanceship with (let alone bias for or against)
the parties and the same relationships with their lawyers. What IHSA
essentially asserts here is that because one of plaintiffs' lawyers is
the staff counsel, and the other is a volunteer lawyer, for an
organization to which I once belonged and for which I was once a
volunteer lawyer, I am disqualified to sit.
That contention must carry its own death sentence. It too is plainly
ungrounded. It would for example require a substantial part of our
bench, including me, to recuse ourselves in every case in which staff
counsel for ACLU or Lawyers Committee for Civil Rights Under Law was
involved, or in which either of those organizations was active in
obtaining volunteer lawyers.
Uniform case law holds that Section 144 speaks of a personal prejudice
against (or toward) a party. It cannot be called into play because of a
judge's relationship with a party's lawyer unless that relationship is so
strong in either direction so as to prevent the fair rendition of
justice. United States v. IBM, 475 F. Supp. 1372, 1383 (S.D.N Y 1979),
for example, held that prejudice against counsel would amount to
prejudice against a party only if the ammosity were so deep that the
counsel could do no right. Accord, United States v. Carignan, 600 F.2d 762
(9th cir. 1979); Davis v. Board of School Commissioners of Mobile
County, 517 F.2d 1044, 1052 (5th Cir. 1975); Duplan Corp. v. Derring
Milliken, Inc., 400 F. Supp. 497, 522-23 (D.S.C. 1975).
When to charge is partiality toward counsel—as implied
here—the obverse side of the coin appears to present itself. Some
years ago, when John Poust (the senior counsel of record for ISBA) had a
personal matter that required him to retain counsel, he came to me to
represent him. My acquaintanceship with Mr. Poust is of longer standing
than with either of the young lawyers representing plaintiffs. But I am
not thereby disqualified for "bias" in Mr. Poust's favor, nor in his
partners' favor, at this trial—just as I am not disqualified for
"bias" in favor of plaintiffs' lawyers because we were fellow members of
AJC. If such attenuated relationships with members of the bar were
sufficient to cause recusals, my calendar—and those of every fellow
judge—would be very light indeed.
This is not a matter of going behind the assertions of a Section 144
affidavit to determine whether those assertions are true. Such a
procedure is of course impermissible. Rather the point is that the Astroth
affidavit is totally insufficient to demonstrate personal bias or
prejudice against IHSA. What it does assert is legally irrelevant.
This opinion has until now commented on the affidavit subparagraphs
individually. One other matter should be added that bears on them
collectively. To the extent that the affidavit implies a relationship
between its first two subparagraphs (¶¶ 3(a) and (b)) and its last
subparagraph (¶ 3(c)), it relies on a total non sequitur. Although
this point may not be necessary to the decision, it is nonetheless
AJC, like most democratic organizations, is not monolithic in its
official views. Membership or affiliation is not equivalent to agreement
with the positions the organization's governing body may choose to take.
Precisely the same is true as to differences between the governing bodies
at the local and national level.
There were a great many instances, when I was an AJC member, in which I
disagreed sharply with policies adopted or positions taken by that
organization. As I also mentioned in denying the earlier motion to
recuse, one of those was my belief that the proposed American Nazi Party
march in Skokie was protected by the First Amendment. That belief,
ultimately upheld in the courts, Collin v. Smith, 578 F.2d 1197 (7th
Cir. 1978), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264
(1978), was one I urged unsuccessfully on AJC's Chicago and national
Governing Councils. My view, which did not prevail, was that AJC should
not join other Jewish organizations in supporting efforts to stop that
march by sponsoring or joining in litigation.
"Jewish community" is typically a misleading term for something that
does not exist as an entity. In my memory the nearest that term has come
to having any accuracy was in describing the deep feelings engendered by
the issue I have just identified. On that issue my view was very much in
There have been many other instances, which again need not be
multiplied, in which I have differed with AJC's majority-adopted
positions on church-state and other issues. And the same is of course true
as to ACLU and every other organization to which I have ever contributed
money or paid membership dues. IHSA's position has the inherent double
vice of (1) equating the kind of affiliation that organizational
membership represents with an identity of beliefs, and (2) then taking
another impermissible leap by equating such presumed beliefs with
judicial disqualification. In another era a similar "thought" process
carried the pejorative label of "guilt by association."
Necessarily implicit in IHSA's affidavit and motion is the assumption
that all Jews are alike, or all members of Jewish organizations are
alike, or both. Such assumptions are just as wrong and just as demeaning
as saying that all Blacks look alike or are alike, or all Orientals look
alike or are alike. To put it in more formal terms, IHSA's affidavit and
motion suffer from what logicians refer to as the fallacy of the
What has been said in this opinion as to Section 144 essentially
applies to Section 455(a) as well, although Section 455(a) states the
test in terms of whether the Court's impartiality might reasonably be
questioned. Both the Davis, 517 F.2d at 1051-52, and Carignan, 600 F.2d
at 764, cases typify the numerous decisions holding that the two sections
are to be construed in pari materia and that the same tests for
disqualification apply under each section.
Whether or not that is so, the State of Idaho, 507 F. Supp. at 721-29,
and Davis, 517 F.2d at 1052, cases are direct precedents for ruling
IHSA's affidavit insufficient under Section 455(a). Finally the
following statement by Justice Rehnquist in Laird v. Tatum, 409 U.S. 824,
835, 93 S.Ct. 7, 13, 34 L.Ed.2d 50 (1972) applies a fortiori here:*fn8
Since most Justices come to this bench no earlier than
their middle years, it would be unusual if they had
not by that time formulated at least some tentative
notions that would influence them in their
interpretation of the sweeping clauses of the
Constitution and their interaction with one another.
It would be not merely unusual, but extraordinary, if
they had not at least given opinions as to
constitutional issues in their previous legal
careers. Proof that a Justice's mind at the time he
joined the Court was a complete tabula rasa in the
area of constitutional adjudication would be evidence
of lack of qualification, not lack of bias.
As a matter of law Astroth's affidavit does not state facts that
demonstrate "personal bias or prejudice" against defendants, nor is it
sufficient to create a reasonable question of this Court's impartiality.
Accordingly defendants' motion to recuse is denied under each of Section
144 and 455(a).