District Court, motion and denial for extension of time to file notice of appeal, Joshua intervenors' supplemental motion for extension of time to respond to Pulaski County Special School District's (PCSSD's) motion for approval of middle school site, other motions and PCSSD's response to motions by Joshua intervenors.

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<dcterms_description>District Court, order; District Court, motion for extension of time to file notice of appeal; District Court, order denying motion for extension of time to file notice of appeal; District Court, amended order denying motion for extension of time to file notice of appeal; District Court, order; District Court, notice of appeal; District Court, Joshua intervenors' supplemental motion for extension of time to respond to PCSSD's motion for approval of middle school site; District Court, Pulaski County Special School District's (PCSSD's) response and objection to Joshua intervenors' supplemental motion for extension of time to respond to Pulaski County Special School District's (PCSSD's) motion for approval of middle school site; District Court, two orders; District Court, motion for recusal of district judge and for vacating of orders, rulings, and judgments; District Court, the Joshua intervenors' memorandum in support of their motion for the vacating of orders and recusal; District Court, plaintiff's response to Joshua intervenors' motion for the vacating of orders and recusal; District Court, memorandum brief in support of plaintiff's response to Joshua intervenors' motion for the vacating of orders and recusal; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool This transcript was create using Optical Character Recognition (OCR) and may contain some errors. flE~1:IVED NOV - 4 2002 - OFACEOF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION NOV O 1 2002 ~/ ~~E~~~,I LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. ORDER DEFENDANTS INTERVENORS INTER VEN ORS Yesterday, Joshua Intervenors filed a Motion for Extension of Time to Respond to PCSSD's Motion for Approval of Middle School Site. The motion reports that PCSSD's counsel does not object to the requested extension. Joshua's request is GRANTED. They have up to and including November 19, 2002, in which to file a response to PCSSD's motion. IT IS SO ORDERED this~ day of November, 2002. Wm.R. Wi UNITED STATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WIT~ ~Uj.E 58 AND/OR79~~ ON / 11 lj:, "h BY__,,,.,,..~-- 3699 t= u.f t~,.e:o EASTERN Dts~,21 COURT n:.,., T ,&lt;\Ri&lt;AJ\JSAs NOV O 8 2002 JAMES I~/ By v, iLfoCO!~~-vAc1, ~--~ \ CLERK rn THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKAL"\JSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT PLArnTIFF V. CASE NO. 4:82CV00866 WRW/ PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED NOV 1.2 2002 OFACEOF DESEGREGATION MONITORING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL DEFENDANTS INTER VEN ORS INTER VEN ORS Come the Joshua Intervenors, by and through undersigned counsel, John W. Walker, P .A, and respectfully move the court for al?-_ extension of time for an additional thirty days in which to file Notice of Appeal to the final judgment entered herein on October 11 , 2002. For cause, Joshua respectfully states: 1. On October 25, 2002, the Joshua Intervenors filed a motion for hearing regarding the relevance of 28 U.S.C. 455 to the cunent proceeding. Therein, Joshua sought an evidentiary hearing in which to explore the relationship of the Court's previous role in this litigation to the current proceedings. The Joshua Intervenors sought the oppo11unity to develop a record regarding his honor's role in opposing recusal requests in this numbered case which were made by at least two of the parties regarding the late Honorable Henry L. Woods. 2. On October 29, 2002, the Court entered an Order "denying" the Joshua "Motion for Hearing." Therein, the Comi inter alia indicated that it had "represented" Judge Woods "approximately fifteen years ago ... .. " in this mentioned case in co1mection with a mandamus petition by the Little Rock School Distiict and the Joshua Intervenors ( the latter represented by Mr. Walker among others). This Comi stated that "the mandamus iss~es h-;;:d nothi~g-to- d; v~th the merits of the underlying case." 3. The Comi went on to say, as a finding of fact, that when the case was assigned to it that counsel John W. Walker " ... lmew full well that, thirteen years earlier, I had represented Judge in the mandamus proceeding that Mr. Walker. himself. helped initiate." [ tmderlining represents the Court's emphasis] 4. The Comi later reemphasized the point that :tvfr. Walker was counsel of record for Joshua and one of the moving paiiies [the Court's emphasis] who filed the petition for wiit of mandamus. The Court went on to indicate that it would be willing to revisit the issue "only if' the "b1iefs" the Court filed when in private practice differed from his "clear recollection." .,:, The Court also noted other concerns that it would address upon receipt and review of the "briefs" which he filed in this case on behalf of Judge Woods. 5. The Joshua Intervenors have retrieved from the Eighth Circuit archives and attach herewith one of what the Court Order implies is several "briefs" which it filed when in private practice in this numbered case. The Joshua Intervenors have requested the 8th Circuit Court Clerk for the docket entries in connection with the appeals. In that way, the Court can ascertain with certainity if the Court filed additional briefs while in private practice in the case herein. 6. Joshua also notes that its counsel, contrary to the findings of fact in the Order of October 29, 2002, which findings were underlined for emphasis, did not file a petition for the 2 Writ of Mandamus regarding the Judge Wood's recusal. In the opinion of the Court of Appeals decision which the Court cites as its support for the emphasized proposition, the Court noted at footnote 6: "The Joshua Intervenors raise this-argument in the form of an appeal from the DistJ.ict Comi' s denial of their motion for recusal. LRSD brings this argument through a petition for Mandamus directed to this Court seeking an Order directing recusal, a petition suppo1ied here by the Joshua Intervenors. [ underlining for emphasis] 7. The Joshua Intervenors intend to request that the Court review its attached brief prepared while in private practice in this numbered case-as well as any other brief which it prepared in this case for any pmpose- and to then reconsider the facts which it found sua sponte in its Order of October 29, 2002. 8. In the event that the Comi reconsiders its Order of October 29, 2002, the Court may be - inclined to, at least, modify its earlier order and to afford the requested relief which is set forth therein. It is clear_ that some of the Court's findings regarding its role when in private practice are inconsistent with the findings of the Court of Appeals regarding the same matter. 9. The Joshua Intervenors intend to file a motion for recusal in the event that the Court itself refuses to recuse after it has reviewed the attachments hereto. 10. Notice of appeal is to be filed herein not later than November 11, 2002. The Court may extend such ruling upon a showing of good cause. Rule 4(a)(5)(A), Fed. R. App. Pro. Joshua believes that good cause exists in that there are umesolved questions for the Court to address regarding recusal. Good cause also exits because piece-meal appeals may otherwise be avoided. 3 11. There is no prejudice to the Little Rock School District if the request to extend the. time for filing notice of appeal is granted. \VHEREFORE, premises considered and in the interest of having related matters proceed concurrently and in the interest of justice, the Joshua Intervenors respectfully request that they be allowed up to and including December 11, 2002 in which to file their notice of appeal. 1 &lt;7 ' I i / I ' ,/ J/ i . / ,'f;" /9--1\ 1) ' j i / te_-!ld/h'.t;;,.:.J. .. , Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respect~y sub1~tted, , ) / -~ ~i~i~L it/ /.i-tlig;ip- Jol:m .W. Walker, AR Bar No. 64046 JOHN w. w ALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 3 74-3758 (501) 37/187 (Fax) I .,. .- / I 0?1--- - _., ,/. r /,~-_ // ~.I.. ,&gt;'\ \..._: I , .1{:'';.,, ,; ., ( .It" ; Rickey Hicks, 11,R :Bar No. 89235 L . ) Attorney at aw~ :Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 4 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent v J a,-x and U.S. Mail, postage prepaid to the following counsel ofrecord, on this _j2 day of u,t,,9-,,,. , 2002: Nir. Christopher Heller FRIDAY, ELDREDGE &amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 Mr. Sam Jones WRIGHT, LINDSEY &amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 i...,: Nir. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building . Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 722 0 1-3 4 72 Mr. Richard Roachell ROA CHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 173 8 8 Little Rock, Arkansas 72222-7388 John w: Walker 5 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 87-2150 LITTLE ROCK SCHOOL DISTRICT, Appellant, vs. PULASKI COUNTY SPECIAL. SCHOOL DISTRICT NO. 1, et al. Appellees. IN RE: LITTLE ROCK SCH60L DISTRICT, PETITIONER Petition for Writ of Mandamus Directed To the United States District Court - for the Eastern District of Arkansas Honorab~e HENRY WOODS, Judge RESPONSE OF THE HONORABLE HENRY WOODS, UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, TO PETITION FOR WRIT OF MANDAMUS WM. R. WILSON, JR. Wilson, Engstrom, Corum &amp; Dudley Post Offi9e Box 71 _ Little Rock, AR 72203 (501) 375-6453 Attorneys for Respondent STATEMENT OF THE CASE The Little Rock School District (LRSD) moved The Honorabl.e Henry Woods, United States District Judge for the Eastern District of Arkansas, to recuse himself on April 24, 1987. The Motion was denied on April 30, 1987. Almost four months after the Order denying recusal, the LRSD petitioned this Court for a Writ of Mandamus ordering Judge Woods to recuse. The LRSD bases its petition on newspaper clippings, a sua soonte show cause order, newspaper photographs of LRSD students and Judge Woods, the Judge's law clerk's trip to LRSD administrative offices to pick up a list of the names and school addresses o~ LRSD principals, alleged ~ parte co mmu n i cations , and a 1 et t e r from Ju d g e Woo d s to a for mer LRSD school board member. 1 ARGUMENT I. . THE LITTLE ROCK SCHOOL DISTRICT'S PETITION FOR WRIT OF MANDAMUS MUST BE DENIED SINCE IT IS UNTIMELY. It is clear, beyond peradventure, that the issue raised by the Petition for Writ of Mandamus is "keggy. 11 The district court entered its Order denying LRSD's Motion t o R e cu s e o n A p r i l 3 0 , l 9 8 7 , a n d i t w as n o t u n t i 1 A u gu s t 24, 1987, that LRSD filed the petition for a writ - - a delay of nearly four (4) months. This Circuit has held that an unsuccessful petitioner in a situation such as this can bring the question before the Court of Appeals by a Petition for a Writ of Mandamus. L i d d e.11 ~ B d . o f E d . o f C i t y o f ___~ L o u i s , 6 7 7 F . 2 d 6 2 6 (8th Cir . 1982). It is certain, however, that such a petition must be timely - - as it was not in the case a:t bar. I n co n s i de r i n g a n II a pp e a r a n c e of p a rt i a 1 i t y 11. i s s u e under Sec. 455(a), the 7th Circuit considered a petition which was filed several months after motions to recuse were denied . The Court held: .The Writ of Mandamus is the vehicle by which we may exercise our supervisory powers over the district courts with respect to Sec . 455(a).To require a timely pet.it ion. for a writ of mandamus for a sole remedy serves another important purpose: that" of preventing injury to the public perception of the judicial system before it has a chance to occur. If a party is deprived of its substantial rights of a trial before an actually biased judge, the harm can be remedied (though not costlessly) by a new trial before an unbiased judge. But, the harm to the public's perception of the judicial system when a judge who appears to be biased proceeds in a case is much more difficult to correct. Prevention in such circumstances is clearly preferable to attempt to cure. Accordingly, we hold that when a judge denies a motion to disqualify himself under Sec. 455(a), the moving party's sole recourse is to apply to this court immediately for a Writ of Mandamus:' We, therefore shall not review Judge Warren's several denials of Balistrieri' s motions under Sec. 455(a) . (Emphasis supplied) . United States v. Balistrieri 779 F.2d 1191, 1205. (7th Cir . 1985). In U. S . v. Olds 426 F.2d 562 (3rd Cir. 1970), the district cou-rt granted a motion to modify and correct or vacate a sentence despite the fact that the motion was filed well beyond the 120 day limit set by Rule 35 of the Federal Rules of Criminal Procedure. Approximately three (3) months after the district court's order became effective , the Government petitioned the court of appeals for a writ of mandamus to compel the district judge to set aside his order modifying the sentence, The court declined to express an opinion on the propriety or legality of the questioned order, and denied the petition 11 because of the Government's unexcused tardiness in pursu_ing its challenge .n (426 F.2d at 565). The court held: ... There is no inflexible rule of timeliness and we hesitate to create any. Rather, the question in each case is whether und~r all the circum.stances the remedy was pursued with reasonable dispatch. While the appeal period is in no way controlling, we point out that Government appeals in criminal cases, when permitted, must be filed within thirty (30) days after the entry of the order appealed from . . I n .:th i s c a s e , th e G o v e r n m e n t waited nearly three (3) months before seeking relief in this. court. No excuse whatsoever has been suggested for its inaction . . . In sum, we hold that by waiting nearly three (3) months before seeking relief in this court, thus permitting a material change in the Olds 1 status, the Government did not proceed with reasonable dispatch under the circumstances. 426 F.2d at 565-566. Since Judge Woods entered his written order denying 4 !1 I I ! I I I ~--1 I I I I I I 11/ Ol / U2 .L2 : HI t '.U 314244.2405 Cli.W'.l'IJJlil&lt;ll%, recusal of April 30 1987, a number of substantive orders were entered in this case. On May 8 1 1987, the court entered an order which severed the Clark case from the consolidated school desegregations. The Joshua Intervenors have appealed from that order . The court entered a nineteen - page order on May 13, 1987 dealing with teacher assignments. The LRSD has appealed that order. A May 22, 1987 order regarding student assignments has been appealed by LRSD. The Co1.,1rt 1s order of May 26 regarding the assignment of ma~net teachers has been appealed by the Joshua Intervenors. The Joshua Intervenors have also appealed a June 16, 1 .9.87 order modifying the per pupil expenditure for magnet ... students. The Knight Intervenors have appealed the court's Ju l y 7, 1987 order clarifying the role of the Magnet Review Committee, and the July 8 order which permitted the Pulaski County Special School , District to recall black teachers affirmatively, so as to retain an acceptable level of black staff. No party has appealed the court 1s order of July 21, but that order authorized PCSSD to acquire the Ti mex f a cility and convert it into an elementary school. That co n version hes taken Judge Woods denied the motion to recuse orally on !pril 29 7 1987. place_ and the 11Daisy Bates Elementary 11 School is now operating. A July 27, 1987 order amended NLRSD's plan in order to deal with possible segregative effects of Arkansas Act 624 of 1 9 8 7 . 0 n A u gu s t 3 , 1 9 8 7 th e co u rt e n t e r e d a n or ct e r directing LRSD to show cause why it should not be held in contempt. LRSD was held to be in civil contempt by order dated August 7, 1987. LRSD has appealed that order. It was not until August 24, 1987, shortly after LRSD had been held in contempt, that it felt moved to seek this writ. In fine, at least thirteen 03) orders which , subs t 'a n ti a 11 y affected the part i es i n this case were entered in the four months between the order denying recusal and LRSD ' s petition for writ of mandamus . Further, at least eleven appeals have been taken in that time . In dealing with a delay of this nature , the 1st Circuit, in In~ United Sho~ Machinery Corporation, 276 F.2d 77 (1st Cir. 1960) quoted with app r oval the following language : 6 7 A litigant cannot experiment with a judge presiding over the case. We cannot permi.t .. a lit.igant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with h.is toe, and if found to his liking, decides to take a plunge . (276 F . 2d at 79). ----- It is apparent that petitioners filed this petition for a writ only after being stung by the contempt order of August 7, 1987 (while they were flush with victory in virtually every area of this litigation). The Petition was nowise timely and should be dimissed out of hand to prevent manifest injustice. II. LRSD'S "EVIDENCEJ OF THE APPEARANCE OF LACK OF IMPARTIALITY IS LEGALLY INSUFFICIENT TO REQUIRE RECUSAL LRSD has characterized its faculty assignmentsand c on t r a ct re g a rd i n g th .o s e as s i g n me n ts as II ma n a g e me n t prerogative . 11 (LRSD Petition for Writ paragraph 2) . Judge Woods considered the faculty assignmens to be an integral p a r t o f t h e s t u d e n t a s s i g n m e n t a s p e c t o f t h e L R S D Desegration Plan . LRSD's discontent with Judge Woods is that he has noticed sua sponte its patent, notorious deviations from court approved desegregation plan. The Judge has insisted that all par~1es comply with court approved desegregation plans. (March 27 hearing p. 14). This Court has recognized the history of noncompliance with desegregation plans and court orders in school desegregation cases in Pulaski County, Arkansas. Little Rock School District v . Pulaski County Special School District, 778 F.2d 404, 422 (8th Cir. 1985) ( 11NLRSD has failed to comply fully with desegregation orders of the district court .. . and this Court. " ) Id. at 420. ( 11The district court found that PCSSD had failed to comply with [Judge Henley's] decree and noted that, at trial, many PCSSD Board of Education members were not even aware of the contents of the decree.tr) Tbis was crystal\ clear to LRSD. In the Court's letter/order of March 20, 1987, Judge Woods said: . However, I am determined that the plan which I approved will be carried out. If a delay is necessary, I want you to come to me- and discuss the reasons why that is so. I am of the opinion that the plan can be put into effect if the measures which I stated above are taken . . All of these district plans are to be carried out and carried out in an effective manner, and I hope I have made this clear. If we cannot implement these plan~ in a way to insure quality schools, then I want them delayed until we can implement them correctly. Some of the problems that we have encountered in these three districts have resulted from not carrying out orders of the court. Zinna mon is a case in p oint . I a m determined that my orders be carried out or the court b~ given a sufficient -reason why they cannot be carried out without being modif i ed. No one h as asked to modify the pLan which you submitted and I approved, and I expect that it will be fully and carefully complied i~ith in every detail . The student assignment segment of the LRSD Desegregation Plan (Plan) approved by the Court contains two primary components : (1) an initial assignment for each stude.nt and (2) an optional 11controlled choice " component by which students who were unhappy with their i nitial assignments could request alternate assignments. The alternate requests were to be "controlled " or constrained by the requirements availability. of racial balance and the space On February 27, 1987, the district court approved the 11 broad outli n e " of L RSD's student assignme n t plan . The initial assignments were to be made based on only two factors, " racial equity and mi ni mal busing . 11 (Plan p: 13) . By contrast, the "controlled choice 11 component of the Plan was quite specific: "After parents have been notified of the schools to which their children have been assigned, '. they will have a period of one month" in which to make an alternate choice. (Plan at 13) . "Parent s w i lJ. be a ct i v e 1 y encouraged to visit . schools before making their selections " (Plan at 12). (Emphasis theirs). "School visits will be arranged during and after school hours. 11 (Plan at 12). 11Parents will have direct access to teachers and principals in all schools. 11 (Plan at 12) . 11 At 1 e as t t w o w eeks p r i or t o the re gist rat i on period , ea ch school will conduct parent information meetings in the schools. " (P.lan at 12). By the explicit language of the Plan, the choice component was meant to be not only " contr,olled, 11 but "infor:'med ." Initial assignments were sent home with school children on Wednesday, March 18th . Parents were jnstructed that alternate choices would have to be returned to LRSD's administrative offices by Apr.il 1, 1987, thirteen days later . Those thirteen (13) days included two weekends, a teacher work day and a week of spring breik during which all schools were closed. Parents were effectively given three (3) days to visit and - - - - - - - --- --- ------------ - ~ Court specifically ordered LRSD to nmake as little change as possible in the present staffing .. 11 (Petitioner's Exhibit No. 3, p.2) . A conference was held on March 27, 1987 at the request of LRSD . The Court repeated its concern that LRSD had unilaterally short-circuited vital components of its Plan by shortening the time and by failing to have staff in place. Counsel for LRSD, in an effort to persuade the Court to permit the shortening of the time, represented to the Court that parents could visit with staff even if the time were shortened since the district was in 11the final phases of assigning staff. 11 (M.i;irch 27th hearing at p . 8). Counsel . 1_: for LR SD v o 1 u n teer e d that staff assign men ts co u 1 d be completed within "seven !_Q ten days 11 (March 27th hearing at p. 8). This assertion was not made in answer to a question by the Court, but rather was announced early in the hearing. Yet, LRSD now contends, 11In an unprecedented action, the district court sua sponte ordered LRSD to re - assign its faculty within ten (10) days (Petitioner ' s Brief, p . ix . ) . "Whoso diggeth a pit shall fall therein. 11 (Proverbs 26 : 27 l - At the March 27th hearing, counsel for LRSD made this flat - footed statement: nThere are not going to be major changes in staff at any secondary school, even at any elementary school. 11 (March 27th hearing, p. 10). At this 2 time, the court did not know, though presumably counsel for LRSD did know, that LRSD and its teachers' union, Little Rock Classroom Teachers Association (LRCTA), had consummated a "supplemental agreement 11 to the Professional Negotiations Agreement (PNA) which was before the Court . This supplemental agreement, though not before the Court, differed materially from the LRSD desegregation 3 plan approved by the Court . Nonetheless, teacher assignments were made on April 10th in conformity with that supplemental agreement . By terms of the supplemental agreement, a _hypothetical "model faculty" was con..structed by computing the district aver~ges of the 1986~87 LRSD teacher pool for the following factors : (1) gender (2) education (3) experience (4) age and (5) race. By the terms of the 2 3 The first inkling the court had of the existence of this supplemental agreement was whe n it was attached to LRSD's April 22 Recusal Motion. At the April 27th hearing, LRSD contended that its Plan had always included the five factors l i sted above . LRSD's expert told the Court that 11 i n telligent people 71 would have understood that t):1e Pla,n included these constraints . (April 29 hearing, p . 255) . This agreement (which LRSD now contends was made nimmediately " after July, 1986 (Petition p . 2)) was actually consu mm ated on March 5, 1987 . supplemental agree~ent, assignments macte for 1987 - 88 were required to mirror would tolerate but 1986 - 87 LRSD staff demographics and a s i x ( 6 ) /p e r c e n t de vi at i on f r o m th e average. This, ,in spite of the fact that LRSD knew it woufd add fourteen annexed schools and se~en thousand students in 1987- 88 . Anyone with rudimentary knowledge of this case could plainly see that balancing .five factors to within six percentage points of the exact average would require tremendous shifts in existing faculty. It had been clear since November, 1986, that LRSD would gain 7,000 new students (over 35% of its 1986-87 student population ) , w h i ch , w o u 1 d o b v i o u s 1 y '.' i n v o 1 v e h i r i n g ma ri y new fa cu l t y members. It is hard to understand why LRSD counsel, aware of the agreement, assured the Court on March 27th that there would "not be major [staff] changes 11 (March 27th hearing, p . 10). As noted, the Court had no knowledge that this "modeP would be used until April 20th. But simple logic reveals s er i o u s fl a.w s in the rn ode 1. F or e x a mp le , L RS D con ceded that the vast majority of elementary teachers in 1986- 87 were female. (April 29 hearing, p. 232). Yet, the 11model1' e. would freeze as "ideal" the 1986 - 87 ratio of . male to female teachers! This is not, however, a lawsuit concerning gender. It does concern race. The Plan approved by the district court states: "The reorganized Little Rock School District should be staffed disegregatively accor ding to two policy guidelines: (1) 11staff ratios will comply with the Order of the Eighth Circuit Court of Appeals, which allows a deviation of one - fourth of the remedial guideline," and (2) "black staff will comprise at least one-half (1 / 2) of all personnel in each position or job description. " (Plan at p . 16, 17). The Plan furthe r states: "The timetable fully to implement the staffing re medial policy guideline is five years. 11 (Plan ,at 17). It was a material change in the Plan for LRSD to agree to add four factors to the race issue; it was a material change to agree to a six percent deviation in the racial ratio rather than the Plan's 25%; it was a mater i al change to shorten the five year implementat i on to one year. LRSD complains that the Court noticed the massive teacher reassignments sua ~E...!:.~ (Petition, p. 3, .para graph l O) and further complains that the Court improperly concluded that LRSD had violated previous Orders . The L RS D a d m i t t e d by letter d at e d March 25, 1987 (Petitioner's Exhibit PX-5) and in open Court that it had changed the Plan without prior court a pp r Q v a t Cl e.a.r-1-:f-i-6-R-.D---a-1-m--.:i:-t--1;-e-1- \r:i:-er-l1-,a..+L +i-nn""g,.......,p'"'r-.e~v .,i .. ,,,o;rQisc" C"'"'.o;:;u;-;-;::r+=t_ ____ i orders. The LRSD cites not a single case to support its I position that a federal district court mus~ sit idly by while a school district notoriously violates court desegregation orders (and wait for some party to invite the Court to enforce its orders). In Busch Y...:._ Sea World.[ Qhio, 95 F . R.D. 336 (W.D . Pa. 1982) the Court took judicial notice that a certain corporation had begun an advertising blitz via newspapers, radio and television. The Court, in Barnes v. Bosley, 568 F. S-upp-. 14'Oo (E'.D. Mo. 1983), took judicial notice that the Democratic party was firmly in control of political .~ o f f i c ~ s i n S t . L o u i s . L i k. e w i s e , J u d g e D a vi es n o t i c e d sua sponte the actions of then-governor Orval Faubus. See Faubus v. United States 254 F . 2d 797 (8th Cir . 1958). 4 LRSD Ex. PX-9 is a letter from Judge Woods to .. Ruth Shepherd, an immediate past LRSD board member. LRSD contends that this indicates the judge 1s "prejudgment " of issues to be presented at the April 29th show cause hearing. As is apparent 1 on April 1, 1987, the date of the letter, staff assign men ts had not been made; no show cause Order had been issued. The Court had no reason to disbelieve LRSD counsel when he assured the Court four d a y s e a r 1 i e r th at th er e w o u 1 d b e n o ma j o r s t a f f ch-a n g e s . The language concerning disregard of the Plan in virtually e Ve r y d e t a i l i s an O b Vi Ou s r e f e re n C e- t O th e f a i 1 u re Of LRSD to carry out the features of controlled choice contained in the Plan . The Court had no way to know that as that letter was being written~ LRSD. was actively viO'"lat rng the cfirecfioffsot he .March 27th Order. .,. I I I I I I I I I I I i I I I I I ' "."' ~ Recalcitrant . school districts throughout this Circuit would delight in a holding th~t desegregation orders can be bol d-ly --arrd--p,:rb-1-rci.y-&amp;e"fIT~so J'. on g as no pa r-t y has the temerity or motivation to file a formal pleading. Multiple exhibits extracted from two local papers have be e n at t a ch e d t o th e L .RS D P et i t i on t o sup p o r t th. e proposition that a reasonable person would conclude that the appearance of impartiality had been lost through ex parte communications . To the contrary, the exhibits demonstrate only that the Petitioner's allegations are without basis in fact. Of the twenty-two articles submitted, five made no reference whatsoever to Judge I Woods. The remaining articles chronicle the reactions - of various groups and in~ividuals to orders issued by the Judge. In not one of the submitted articles does there appear an ex parte -comment attributable to the Judg7_ which go to the merits of any pending issue. Two newspaper photographs depict Judge Woods with students ironically LRSD students, not students from NLRSD or PCSSD. These photographs hardly create the appearance of bias against LRSD . Two articles refer to statements made by an unnamed spokesman for Judge Woods. Surely these triple hearsay statements (the newspaper reporter said that the unknown source said that the Judge said) cannot be considered as credible evidence justifying the disquali~iG-act--i-G-H- --Of-- a- - ~g- . -- --- LRSD cites Price Brothers Co.~ Philadelphia Gear Corporation, 629 F.2d 444 (6th Cir. 1989) for the proposition that a Judge's sending his law clerk to gathe~ evidence is destructive to the appearance of impartiality. In Price Brothers, the Circuit Court remanded the case for an evidentiary hearing. In the appeal of the proceedings after remand, the Sixth Circuit found that the law clerk's trip from the Southern District of Ohio to New York to observe the machines in the Plaintiff's factory did not ~ w-arranf r eversal. Price Brothers Co. ~ Philadelphia Gear .fS'...:.., 6 4 9 F . 2 d 4 1 6 ( 6 t,_ h C i r. 1 9 8 l ) . .:t The law clerk's viewing of the machine to help the Judge better understand how the machine worked was not considered as "evidence" in the case. Similarly obtaining a current list of principals in the LRSD was hardly 11evidence 11 in this case. The names and school addresses of the LRSD principals has never been in dispute. It is absurd to consider the picking up of an undisputed list of names and addresses as ngathering evidence. 11 Additionally, the Sixth Circuit in both Price Brothers opinions indicated that consent, even implied consent, to the law clerk's participation would be a factor in considering their later objection to the law clerk's action. By ER-S-B~ LRSD administrative offices (where at least two LRSD attorneys were present) and was told by the ~ecretary (after checking) that a list of principals was available . LRSD would also have Judge Woods recuse because delegations of LRSD students arrived unannounced at his office to present a petition complaining of LRSD's violations of its Plan. If such an incident requires recusal, then any party who wishes to go "judge shopping 11 need merely show up at a judge's office with a photographer and a petition . . ., III. IT IS NOT IN THE INTEREST OF THE ~ARTIES OR THE PUBLIC TO REQUIRE JUDGE WOODS TO RECUSE Notably, the L RSD seeks Judge Woods' recus a 1 lfas ed on .. 28 U.S . C. Sec. 455(a) which concerns the appearance of partiality rather than actual bias. In truth and in fact, LRSD has been the beneficiary of virtually all of Judge Woods' rulings over the five years of litigation in this school desegregation case. As Petitioner notes, Sec. 455(a) is primarily intended 1 q , I to insure public confidence in the impartiali.ty of the judicial process, not to protect litigants from actual Court of Appeals recently held that in a Sec. 455(a) rec u s al action, abs en t ..!:_~~ of person~ 1 bias , the reviewing Court should consider, inter alia, whether re-'-assignment to a dif_'_ferent judge would entail a waste and duplication out of proportion to the gain in preserving the appearance of fairness. Cinton v. Union Pacific R a i 1 r o a d f.2.:_, 813 F. 2 d 9 1 7 , 9 21 ( 9 t h C i r . 1 9 8 7 ) . This lawsuit now embodies well over nine hundred pleadings. It is difficult to imagine a more vivid illustration of d { spr~portionate waste and duplication involved in reassigning this case~~ this stage of the game. But more :~ i mp o ; t a n t 1 y , th e p u b 1 fc mu s t be a s s u r e ct th at ea ch p a r t y will abide by court orders, regardless of its status as 11pla int iff" or "defendant. 11 IV. CONCLUSION The district court correctly summed up the LRSD attitude in his April 30th Order when he noted: .LRSD's Motion to Recuse represents a time-worn tactic in sports contests and trials. When the umpire or judge calls you for a flagrant violation of the rules, your response is not to offer a defense for your conduct but to attack tlre, nrrvrre- oi'""'ttre"-j'trd~g, . . . . WHEREFORE, Respondent respectfully requests that the LRSD Petition for Writ of Mandamus be summarily denied. RESPECTFULLY SUBMITTED, WILSON, ENGSTROM, CORUM &amp; DUDLEY P. 0. Box 71 Little Rock, AR 72201 (501) 375-6453 Attorneys for Respondent .. . '.,(, CERTIFICATE OF SERVICE A copy of the foregoing Response to Little Rock School District's Petition for Writ of Mandamus has been sent via Federal Express to all attorneys listed be-low whose mailing address is other than Little Rock, AR, and has been delivered by hand to all attorneys in Little Rock, AR on this 21st day of September, 1987 to : Philip E. Kaplan, Esquire 415 Main Street Little Rock, AR 72201 P. A. Hollingsworth, Esquire 415 Main Street Little Rock, AR 72201 Janet L. Pulliam, Esquire One Spri._nP- S~r~~-t,_ .Znd Floor Little Rock, AR 72201 Randy McNair, Esquire 201 E. Markham Little Rock, AR 72201 Richard -W .- Roa-eh-e-H,-E-squ-re-~- - ----~------------- -Post Office Box 1510 Little Rock, AR 72203 Theodore Shaw, Esquire NAACP Legal Defense Fund 99 Hudson Street, 16th Floor New York, New York 10013 Robert C. Lowry, Esquire 905 Boyle Building Little Rock, AR 72201 John W. Walker, Esquire. 1723 Broadway Little Rock, AR 72206 M. Samuel Jones, III., Esquire 2200 Worthen Bank Building LJttJe _fioc_k,. AB 7_2201 Philip K. Lyon, Esquire Stephen W. Jones, Esqu~re 3400 Capitol Tower -~ Capitol at Broadway Little Rock, AR 72201 Phil Neal, Esquire 208 South LaSalle Street Chicago, Illinois 60604 William H. Trice, Esquire 211 Spring Street Little Rock, AR 72201 Robert Cabe, Esquire 1615 Worthen Bank Building Little Rock, AR 72201 Hillary Clinton, Esquire Rose Law Firm 120 East 4th Street Little Rock, AR 72201 -. i .., I 7 I I ! 7 ! ~7- 7 j ,, Lazar Palnick, Esquire 1723 Broadway Little Rock, AR 72206 John --M .- -El-i..J.l:w.J:.-me-F-, - ~1.1-i P.e --- -c/ o Ketron, Inc. 1700 North Moore Street Ste. Arlington, Virginia 22209 David Flynn, Esquire 1710 Civil Rights Division Room 5740 Department of Justice Washingtbn, D.C. 20530 Carl R. Brents, Clerk U. S. District Court Post Office . Box 869 Little Rock, AR 72203 Sharon Streett Department of Education 304A Arch Ford Education State Capitol Mall Little _R_ock, _ Ajl l2~01 Building .... : ... ,,.. SUMMARY AND REQUEST FOR ORAL ARGUMENT As Petitioner has noted, the Motion to Recuse is --- ------ ---------~----------........ - - - -- purportedly ~ottomed upon statements and actions taken by the district court in response to LRSD ' s faculty assignment plan. Petitioner has requested oral argument and Respondent will be pleased to have this issue argued orally. At the same time, however, Respondent urges the Court to consider this specific issue (recusal) in an expedited manner. Otherwise, thousands of students will be attending school under plans that are clouded by this issue. This issue can be argued in fifteen minutes per side. TABLE OF CONTENTS SUMM-A-RY AN{) R-EQ+J-E-S'f-~H&gt;,R G-R-Ab -A-RGlJ.M-E-N..'f .. ,-,--------- -----TABL E OF CONTENTS .. TABLE OF AUTHORITIES. STATEMENT OF ISSUES . STATEMENT OF THE CASE ARGUMENTS I. THE LITTLE ROCK SCHOOL DISTRICT'S PETITION FOR WRIT OF MANDAMUS MUST BE DENIED AS ii iii iv-v 1 UNTIMELY . . . . . . . . . . . . . . . . . 2 II. LRSD I S "EVIDENCE 11 OF THE APPEARANCE OF LACK OF IMPARTIALITY IS LEGALLY INSUFFICIENT TO REQUIRE RECUSAL . . . . . . . . . . . . . 7 - - -- ~. III. IT IS NOT IN THE INTEREST OF THE PARTIES OR THE PULIC TO REQUIRE JUDGE WOODS TO RECUSE .. . . . . . . . . . . . . . . . 19 CONCLUSION ADDENDUM i i .... .. 20 TABLE OF AUTHORITIES CASES: Barnes v. Bosley r- . 5.6.K. E .. S.U.p.p Mo. 1983) ... .. .. Busch v . Sea World of Ohio, 95 F . R.D. 336 (W.D . Pa.1982) . . . . . . . .... Cinton v . Union Pacific Railroad Company, 813 F.2d917 (9th Cir . 1987) .. .. . Faubus v. United States, 254 F. 2d 797 (8th Cir . 1958) . ... .. . . .. . lE_ Re United Show Machinery Corporation, 276 F . 2d 77 (1st Cir. 1960) ... .. . . Liddell v . Board of Education of City of St. Louis'; 677 F . 2d 676 (8th Cir . 1982J. Little Rock School District v . Pulaski County Special School District, 778 F . 2d 404 (8t fi Cir . 19-8"5Y . . . ... . .. . .. . 16 16 20 16 6, 7 2 8 Price Brothers Co.~ Philadelphia Gear Corp . ~ 629 F.2d 444 (6t'.b Cir . 1980) . . . 18 v,,. Price Brothers Co . v . Phi l adelphia Gear Corp., 6 4 9 F . 2 d 416 ( 6~ C i r . 19 81 ) . . . -. - .- . . . . 1 8 United States v . Balistrier i, 779 F . 2d 1191 (7th Cir.1985) . . . . . . . 2, 3, 20 United States v . Olds, 426 F . 2d 562 (3rd Ci r . 1970) .. -. -. - .-. . . . . . . . STATUTES 28 U. S . C. Sec .. 455(a) ..... . ...... . passim i i i STATEMENT OF ISSUES I. Whether Petitioner's failure either to appeal the April 30th Order denying the recusal motion or to petition this Court for a Writ of Mandamus for almost four months bars this application for mandamus relief. In Re United Show Machinery Corporation, 276F.2&lt;;! 77 (1st Cir. 1960) United States v . Balistrieri, 779 F.2d 1191 (7th Cir. 1985) United States~ Olds, 426 F.2d 562 (3rd Cir. 1970) II. Whether the district court judge abused his discretion --by -flndi ng that a reasonable per~on knowing all the pertinent facts would believe that Judge Woods could n o t b e i mp a rt i a 1 t o th e" L i t t 1 e R o ck S ch o o 1 D i s t r i ct w h e n the 11 evidence" consists of: a. Newspaper clippings covering publicity surrounding the Judge's Orders; b. Newspaper photographs of the Judge pictured with LRSD students; c. A responsive letter to a former member of LRSD Board of Directors from i V the Judge; d. A trip to LRSD administrative LRSD principals for the 1987- 88 school year; e. Non - specific allegations of ex ~~!~ telephone conversations, unsupported by specific dates, times, or people or by affidavits . Barnes v. Bosley, 568 F.Supp. 1406 (E.D. Mo . 1983T Busch v . Sea World of Ohio, 95 F.R . D. -336 (.W.-D- . .e.a _ .198.2) -- - -- Faubus v. United States, 254 F .2d 797 (8th Cir. -1958) ,,., : ~ Price Brothers Co. v . Phi l adelphia Gear Corp . , 649 F . 2d 416 (6th Cir. 1981) III. Whether it is in the interest of the parties or the public to require Judge Woods to recuse absent proof of actual bias . Cinton v. Union Pacific Railroad Co., 813 F . 2d 917(9th Cir . 1987) - United States v . Balistrie r i, 779 F. 2d 1191 (7th Cir. 1985 V IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT VS. 4:82CV00866 WR W/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al ~RS. LORENE JOSHUA, et al KA THERINE KNIGHT, et al RECEIVED NOV 1 3 2002 OFFICE OF DESEGREGATION MONITORJNG DEFENDANTS INTER VEN ORS INTER VEN ORS ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL This case has been tried and decided, and all parties are entitled to have it resolved, once and for all, as soon as reasonably possible. Counsel for Joshua indicates that he anticipates filing a recusal motion at some time in the indefinite future. In my judgment, it would be inappropriate to delay this case because such a motion will be, or might be, filed. Accordingly, the request for an extension is denied. I'm inclined to agree that the Eighth Circuit should be afforded the opportunity to decide any recusal issue that may arise, along with other issues already decided. So, if Joshua files a recusal motion promptly, I will rule on it promptly. If Joshua doesn't prevail on the recusal motion, they can move the Eighth Circuit to consolidate the issues on appeal. Another order will be entered shortly which will address other issues raised by Joshua's Motion. IT IS SO ORDERED this 12th day ofNovember, 2002. w~t!f () &lt;-- K lfll~111if' m. R. Wilson, r. UNITED STATES DISTRICT JUDGE L 7 0 1 IN THE UNITED ST ATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al -MRS. LORENE JOSHUA, et al KA THERINE KNIGIIT, et al DEFENDANTS INTERVENORS INTERVENORS ORDER DENYING MOTION FOR EXTENSION Olf TIME TO FILE NOTICE OF APPEAL This case has been tried and decided, an.d aH parties are entitled to have it resolved, once and for all, as soon as reasonably possible. Counsel for Joshua indicates that he anticipates filing a recusal motion at some time in the - indefinite future. In my judgment, it would be inappropriate to delay this case because such a motion will be, or might be, filed. Accordingly, the tequest for an extension is denied. I'm inclined to agree that the Eighth Circuit should be afforded the opportunity to decide any recusal issue that may arise, along with other issues already decided. So, if Joshua files a recusal motion promptly, l will rule on it promptly. If Joshua doesn't prevail on the recusal motion, they can move the Eighth Circuit to consolidate the issues on appeal. Another order will be entered shortly which will address other issues raised by Joshua's Motion. fT rs SO ORDERED this llt!.1 day of November, 2002. w.~ !L({ZPh111tr- UNITED ST ATES DISTRICT JUDGE TO: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OP ARKANSAS Telephone 501-604-5140 Fax Number 501-604-5149 Chris Heller &amp; Clay Fendley Sam Jones Steve Jones Richard Roachell John Walker Dennis Hanson Ann MAl'shall 376-2147 376-9442 375-1027 663-6939 374-4187 682-2591 371-0100 There are Z.., pages, including this Cover Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: Office of Judge U.S. District Court 600 West Capitol, Room 413 Little Rock, A.-kansas 72201 Christy Conrad, LRSD Law Clerk 604-5143 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT VS . 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al MRS. LORENE JOSHUA, et al KA THERINE KNIGHT, et al RECEIVED NOV 1 3 2002 QFflCEOF DESEGREGATION MONITORING 1..,_v 1r, yyppa r,u ,,-1 IV ,.....,;&lt;, u.s~ilkf.FcQRT EASTERN DISTRICT ARKANSAS NOV 1 2 2002 ~~MES~~Ep ? PLAINTri?~P. CL~ DEFENDANTS INTER VEN ORS INTER VEN ORS AMENDED ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL This case, as it relates to LRSD, has been tried and decided, and all parties are entitled to have it resolved, once and for all, as soon as reasonably possible. Counsel for Joshua indicates that he anticipates filing a recusal motion at some time in the indefinite future. In my judgment, it would be inappropriate to delay this case because such a motion will be, or might be, filed. Accordingly, the request for an extension is denied. I'm inclined to agree that the Eighth Circuit should be afforded the opportunity to decide any recusal issue that may arise, along with other issues already decided. So, if Joshua files a recusal motion promptly, I will rule on it promptly. If Joshua doesn't prevail on the recusal motion, they can move the Eighth Circuit to consolidate the issues on appeal. Another order will be entered shortly which will address other issues raised by Joshua's Motion. IT IS SO ORDERED this 12thday ofNov, e,._20-m=.0'-2-.- b-e_-r-_-------- THIS DOCUMENT ENTERLJ ON Wm. R. Wilson, Jr. DOCKET SHEET iN COMPLIANCE UNITED STATES DISTRICT JUDGE WITJi RULE 58 AND/OR~R7C9P (a ON lf-/;....,o,_-BY ~?'7""---"-'-'=-== DiLLWiLSON JUDGE UNiTEO STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS IKIIJ W. CAPITOL, HOOM 423 LITfl.E ROCK, ARKANSAS 7220i-332$ \~U I J tJiU4-:t l 'tU Fii.:slmlle (GOf) &amp;G45146 -l\lf-'lm....=...&gt;....,...... ..hAr 10 ')()()"') _...,~ .... -, ---- BYP'AX Mr. Chris Heller &amp; Mr. Clay Fendley Mr. Sam Jones 376-2147 376-9442 Mr. Richard Roachell Mr. John Walker Mr. Dennis Hanson Ms. Ann Marshall ".&gt;'7C: 1 f'l/')'7 ..J t ._J-.LU..GI 663-6939 374-4187 682-2591 371-0100 RE: Littie Rock t&gt;chool District v. Pulaski County Special School District, et al., 4:82CV00866 WRW /JTR Enclosed is a copy cf an Order ,.;vhich amends the Order I entered earlier toda:f in which I denied Joshua's Motion for Extension of Time to File Notice of Appeai. The first sentence of the Amended Order is simply to narrow the scope of the Order-- since we are considering LRSD, a..1'1.d not the othe:r school districts . cc: The Honorable J . Thomas Ray Original to the Clerk \ 1/m. R. \1Jilson, Jr. TO: F.A_X COVER SHEET ONITED STATES DISTRICT COURT EASTEPJV DISTPJCT OF ARKA.lfSAS Telephone 501-604-5140 Fax Number 501-604-5149 Chris Heller &amp; Cfay Fendley Sam Jones Steve Jones Richard Roachell John Walker Dennis Hanson Ann Marshall 376-2147 376-9442 375-1027 663-6939 374-4187 682~259} 371-0H!O DATE: NotJQ..vv\htlf ! 7-, zooz_ There 2re 3=, pages, including this Co...-er Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: Office of U.S. District Court 600 West Capito!, Room 423 Little Rock, Arkansas i2201 Christy Conrad, LRSD Law Clerk _604-5143 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, VS. * * * * 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. 1, et al., * Defendants, * * MRS. LORENE JOSHUA, et al., * Intervenors, * * KATHERINE KNIGHT, et al., * Intervenors, * ORDER FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS NOV 1 2 2002 In Joshua's Motion for Extension of Time to file notice of appeal, filed on November 8, 2002, they object to the statement in my order of October 29, 2002 in which I state that Mr. Walker helped to initiate the mandamus proceeding (against Judge Woods). Technically, Joshua is correct. On a review of the record, it appears that Mr. Walker did not proceed via mandamus, but, instead, Joshua directly appealed Judge Woods' denial of Joshua's motion for him to recuse. Joshua's position, in this regard, clearly elevates form over substance. Regardless of how it was styled, Joshua was seeking the identical relief sought by LRSD back at that time-- the removal of Judge Woods from the case. I quote again from the Eighth Circuit's opinion: We tum now to the arguments made by LRSD and the Joshua Intervenors that the District Court should have granted their motion for recusal. See LRSD v. PCSSD, 839 F.2d at 1301. There is an eloquent silence in Joshua's most recent motion -- it does not address the issue of waiver and estoppel. The point here is that Joshua's counsel knew to a lead pipe certainty of my -2- representation of Judge Woods in the mandamus proceeding in 1987. In fact, the certificate of service on the Eighth Circuit brief! submitted on behalf of Judge Woods shows Mr. Walker as one of those lawyers who was served. (See Response of The Honorable Henry Woods, US. District Judge for the Eastern District of Arkansas, to Petition for Writ of Mandamus -- which was attached to Joshua's November 8 motion). This being so, it is hard not to believe that Joshua's counsel -waited to see how the case turned out, and, when the result did not suit them, they then raise the recusal issue. The Eighth Circuit has long disapproved of this tactic . ... .it is clear that some of the Court's findings regarding its role when in private practice are inconsistent with the findings of the Court of Appeals regarding the same matter .... I am without a clue as to what Joshua means by the above-quoted language. In any event, after having reviewed the brief that I filed on behalf of Judge Woods in 1987 I see no reason to change my mind in any respect, and see nothing in the brief that adds anything to Joshua 's earlier motion for a hearing. None of the issues, listed by way of history only, in that brief were before me in the current litigation. And, as stated in my earlier order, I represented none of the parties, and had no involvement in the merits of the case. So, with respect to my order of October 29, 2002, I'll stand pat -- Joshua's request that I reconsider that order is denied. rft IT IS SO ORDERED. Dated this 2 day of November, 2002. THIS DOCUMENT ENTERL.J ON DOCKET SHEET IN COMPLIANCE WI/Tt._ RULE 58 AND/OR 7~9 )) FFR RCCFP ON _t_/;)..,{;))--BY ~ -7~_...,&lt;;..:'--~- 9Nr!lOllNOW NOllVS3HS3S30 ~O 3~1.HO ZOOl 8 I AON LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. i\1RS . LORENE JOSHUA, ET AL. KATHERINE KN1GHT, ET AL. RECEIVED NOV 1 3 2002 OFFICE OF DESEGREGATION MONITORINO NOTICE OF APPEAL DEFENDANTS INTERVENORS INTERVENORS The Joshua Intervenors give notice of appeal pursuant to Rule 3(a) of the Rules of Appellate Procedure with respect to Honorable William R. Wilson Jr. 's memorandum opinions and/or judgments entered herein on September 13, 2002 and October 11, 2002 respectively. ) ,/i) .,, ,/ ~- ,/ ,, ~!,, '/!Ji.;f I f.-,.,. . J/._ /J/!,rla_ 1 ---:"i;:J Robert Pressman 22 Locust A venue Lexington, MA 02421 781-862-1955 J n . Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501-374-3758 501-374-4187 Rickey H. Hicks Attorney At Law 1100 North University, Suite 240 Little Rock, AR 72207 501-663-9900 CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Notice of Appeal has been forwarded to all counsel of record via United States mail, postag repaid on this 2th day 'November, 2002. / \ RECEIVED FiLr::0,-. ;:::.,s lJ.s. DIST-R "- --n, TERN DISTRICT COURT ICT ARKA,"iJSAS NOV 1 9 2002 OFFICE OF DESEGREGATION MONITORING NOV 18 2G02 JAMES W ti, By ilcCORMA CK Ct " , -ER!'( IN THE UNITED STATES DISTRICT COlJRT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 82:CV00866 WRW PlJLASKI COUNTY SPECIAL DISTRICT, ET AL. NfRS LORENE JOSHUA, ET AL. KA THERINE W. Ki'\ITGHT, ET AL. JOSHUA INTERVENORS' SUPPLEMENTAL MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS PCSSD'S MOTION FOR APPROVAL OF MIDDLE SCHOOL STTE The Joshua Intervenors respectfully request that the court further extend the time for their response to the pending motion of the PCS SD regarding the construction of a middle school in the Maumell e area. The Joshua Intervenors have requested the perspective of the Office of Desegregation Monitoring regarding the subject. The parties have not yet been privy to that for the reasons which relates to the personal circumstances of the ODM Director, M,s. Nfa.rshall. (See Exhibit 1 - Letter dated November 18, 2002 to Honorable Judge William R Wilson) Counsel for Joshua have sought to obtain the concurrence of the PCS SD counsel and learned that he is out ill today. WHEREFORE, the Joshua Intervenors respectfully request that the court extend the time to and including December 6, 2002 for their response to PCSSD's Motion for Approval of 1'liddle School site. Respectfully submitted, John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (fax) ./ ./ CERTIFlCA TE OF SERVICE I do hereby state that a copy of the foregoing motion has been sent via United Stat es mail postage prepaid to all counsel ofrecord on this 1g r1i day of Novem.,b er, 200J- . . /: ,'\ I I ./ / ( /~ !-- '1-- C/?L_,{/- 17 '\ ': 1 ,,, VVV'-- vr " .;/r c,.&lt;.. '---"'L/ .. 2 JOHN W. WALKER SHAWN CHILDS JOHN W. '\iVALKER, P.A. A'ITORNEY AT LAW 1723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FA,'{ (501) 374-4187 Via Facsimile - 604-5149 November 18, 2002 .Honorable Judge William R. Wilson United States District Judge 600 West Capitol, Suite 423 Little Rock, AR 72201 Re: Case No_ 4:82CV0866WRW/JTR LRSD v. PCSSD Dear Judge Wilson: OF COUNSEL ROBE.."'l.T McHENRY. P _-\.. DONNA J . .McHENRY 8210 HENDERSON Ro.w LITTLE ROCK. ARK.-u'IS.-\S 72210 PHONE: (501) 372-3425 FAX (501) 372-3423 ~Lill: mchenryci@swbell.nec RECEIVED NOV 1 9 2002 OFRCEOF DESEGREGATION MONITORING We asked the Court to extend the time for responding to the PCSSD's motion for approval of middle school site until tomorrow, November 19, 2002. The court allowed the request. A partial basis for the request was the intercession of the Office of Desegregation Monitoring with a possible report for the use and benefit of the parties. No one objected to ODNf's involvement. In the meantime, ODM.Director Ann Marshall has experienced well known personal problems of increasing magnitude over the past several weeks which resulted in the funeral of her husband, Mr. Norman Marshall on Saturday, November 16, 2002. We can . understand the reason for any delay from that office. On the basis of those unfortunate circumstances, we are requesting that the Court extend the ODM up to and including December 3, 2002 in which to make its report. We will be prepared to respond to the pending motion of Mr. Jones within three days thereafter and would request that we be allowed!until December 6, 2002 to make that submission. I appreciate whatever consideration the Court will allow. JWW:js cc: :ivfr. Sam Jones Ms. Ann 1Iarshall All Other Counsel EDWARD L . WRIGHT (1903-1977) ROBERTS . LIN D SEY (1913-1991) ISAAC A. SCOTT, JR . JOHN G. LILE WRIGHT, LINDSEY &amp; JENNINGS LLP ATTORNEYS AT LAW KIMBERLY WOOD TUCKER RAY F . COX, JR . TROY A . PRICE PATR ICIA SIEVERS HARRIS JAMES M. MOODY, JR . KATHRYN A . PRYOR GORDON S. RATHER, JR . TERRY L. MATHEWS DAVID M. POWELL ROGER A. GLASGOW C. DOUGLAS BUFORD . JR . PATRICK J . GOSS ALSTON JENNINGS , JR . JOHN R. TISDALE KATH LYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY 111 LEE J. MULDROW N.M. NORTON CHARLES C. PRICE CHARLES T . COLEMAN JAMES J. GLOVER EDWIN L. LOWTHER. JR . CHARLES L. SCHLU MBERGER WALTER E. MAY GREGORY T . JO NES H. KEITH MORRISON BETTI NA E . BROWNSTE IN WALTER McSPA DOEN ROGER 0 . ROWE JOHN 0 . DAV IS JUDY SIMMONS HENRY Via Hand Delivery 200 WEST CAPITOL AVENUE SUITE 2200 LITTLE ROCK, ARKANSAS 72201-3699 (501) 371-0808 FAX (501) 376-9442 www . wlj.com OF COUNSEL ALSTON JENNINGS RONALD A . MAY BRUCE R. LINDSEY JAMES R . VAN DOVER Writer's Direct Dial No. 501-212-1273 mjones@wlj.com November 19, 2002 The Honorable Wm. R. Wilson, Jr. 600 West Capitol, Room 423 Little Rock, Arkansas 72201-3325 J . MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J . SALLINGS WILLIAM STUART JACKSON MICHAEL D. BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C. TAO BOHANNON KRISTI M. MOODY J . CHARLES DOUGHERTY M. SEAN HATCH J . ANDREW VINES JUSTIN T. ALLEN CHRISTINE J . DAUGHERTY, Ph .D . MICHELLE M. KAEMMERLING ERIKA ROSS SCOTT ANDREW IRBY HOLLY A. ACEE MICHELLE HARGIS DILLARD PATR ICK 0 , WILSON Licensed to practice before the Unffed States Patent and Trademark Office RECEIVED NOV 2 0 2002 OFACEOF DESEGREGATION MONITORING Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: Enclosed is a copy of the PCSSD objection to Joshua's request for a further delay in ruling upon the pending PCSSD motion respecting a new middle school in Maumelle. MSJ:ao Encl. cc/w/encl.: 380184-v1 Judge J. Thomas Ray All Counsel of Record Cordially yours, WRIGHT, LINDSEY &amp; JENNINGS LLP drrs.,,, IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL .DISTRICT NO. 1, ET AL. RECEIVED DEFENDANTS MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. NOV 2 0 2002 INTERVENORS OFFICE OF INTERVENORS DESEGREGATION MONITORING PCSSD'S RESPONSE AND OBJECTION TO JOSHUAINTERVENORS' SUPPLEMENTAL MOTION FOR EXTENSION FO TIME TO RESPOND TO PCSSD'S MOTION FOR APPROVAL OF MIDDLE SCHOOL SITE The PCSSD, for its response states: 1. The PCSSD objects to the further requested enlargement of time. 2. Previously, the parties negotiated an enlargement of time until and including November 19, 2002, for the response of Joshua. 3. The PCSSD is unaware of any directive by this Court to the ODM as respects this issue. The PCSSD notes, however, that the ODM, unlike Joshua, was a full participant in the site selection process. 4. Accordingly, the PCSSD respectfully submits that Joshua has not advanced a good and sufficient reason to further postpone the process of this Court ruling upon the pending request of the PCSSD to locate its new middle school in Maumelle. 380181-v1 WHEREFORE, the PCSSD prays that the Joshua motion be denied and for all proper relief. Respectfully submitted, WRIGHT, LINDSEY &amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 CERTIFICATE OF SERVICE On November 19, 2002, a copy of the foregoing was served via facsimile on Mr. John Walker and via U.S. mail on each of the following: VIA FACSIMILE Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 380181 -v1 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 1::0W'AHO L , WRl(,t'l't pan,. u 11~ R:O!H'.J:tT S . LlNO~EY fU 13- 199tl 18AAC A , SCOTT, J" . JOHN G . LI LE 0:0~1)0~ S. RATHER , JR. TE~RY L. MATHfWS ;:;. .:..;;c M. ~c,w..,;. ROGE~ A. G, ASOOW C DOVC LAS a~r-a,qc , .:~. PATRICK J . COSS A l_.$ Tt')N ..Jl:MHIN tlS . J~ JOHN R. TISDALE l(ATMLYN GR4VES M. BAMU'EL J ON$ Il l JOHN WII..LIAM .!SPIV~Y Ill Lt'~ J , MULOROW 11 .M. N0~1'0N i;H;..FH,,fS C. F~1CE. CHAACES T. COLEMAN J1't-'fe J . v .. o veR EDWIN L LOWTHER . JR. CH.-.~L~.! I. .!CMLUMIP!!:'lG''!P\ W~LTf.R E. MAY OREOOAY T . JONES H . Kt lTM MORRISON lli!TTINA E. lllAOWNSTEIN WALTiA Mc.SPA00fN ROGt.R 0 . ROWE ;o;-.1,_ c. oa,ns JUOY s rMMONS M@NJIY Via Hand Delivery WRIGHT, LINDSEY &amp; JENNINGS LLP ATTORME:YS ;\ "! L!'.. 'N 200 WEST CAP ITOL AVENUE SUl'r E. 220~ LITTLE ROCK. ARKANSAS 1n 01 . 3699 (50 1) 371-0808 FAX (501) 376942 OF COuN'iEL ALSTON JENN INQS RCXAi.C ;.. . ,.:.;c; BRIJCf A. . LINOSEY J.11kf! ~ R.. VAN CCV~~ Wri ter, Olrecl Di a l No . So 1.21 2.12r3 .,)ones@w1J.com November 19, 2002 The Honorable V\Jm. R. Wilson, Jr. 600 West Capito!, Room 423 Little Rock, Arkansas 72201-3325 K IM8RI. Y \l'/000 TUC J&lt;fF( ~,. 1 f C.CA , J,;.: . TR:OV A, P~1ce ::i:. ":'R::.~;.. 2 :;.:~~:, H.:..~~l~ JAMES M MOOOV. JR . 11.t.TMDV lli! .~ . P R VOP J . MARI( 0.4\/JS CI.A I Ft E SMOW8 Ml.. NCOCK l( E,Vlf'ril V-t . K!.NNEOV JEaav J. SALUNGS WILLIAM .:!TUAl'l1' JACK.SON MICWAEL O 8A.R:NES l!.7i;;:.,;a;,.. ~ . LANCA,5Te l'f JUDY ROBINSON WJL6tR l(':"L: r,. W:t .. :-Ot.' C , TAO 80M4 NNON Ki; l!, T I U . Uf')l'){W J . C"AP.US OOUGHtRT'f' M . SEAN HATCH .J . ANO"EW' VlN~S .JUST IN T . A U.EN CHRISTINE J. OAUOMER,TV . Pl'l.0 MICHfLLE hi . KAEMMERLING ER+li\ A. ~OS~ SCOTT ilNDAEW 1R6Y &gt;; Ci..._; A. ;..o~~ '-"1 1CHEl.. i. ! MAR.0 13 OILLAR:0 P A. 1'"-JCI( .t" wn .. SON L"='9,,~~t1 ti:i ,ar!!:eti-:.e ~~~ !l,e ~!':!?~ 51"1 Psrenr ena Tr&amp;ll9rnsfl&lt; Office Littie Rock Schooi District v. PuIasK1 County Special School District; et al. r USDC Docket No.: 4:82CV00B66WRW ., . ( Re: Dear Judge Wilson: --,/\If~/~ JV ' l&gt;"' Enclosed is a copy of the PCSSD objection to Joshua's request for a further delay in7 r'J!ing upon the per.ding PCSSD motion ;espacting a new middle schooi in iviaumelie. / MSJ:ao Enc!. cc/w/enc!.: 38C1S4-v1 Judge J. Thomas R.ay All Counsel of Record Cordiaiiy yours, ':AAt.AI cmr-. WRIGHT, LINDSEY &amp; JENNINGS LLP r;}.J~ oAt-J~ ~ ~A- Jones, !II iJli., ,J I_ If-() 2- ( ' , - /'d_ ~/4 t-1~ /4r C~" I n. _ ~.J)/) /11,-,1 /J~ I V ./ ,//' - d"rlf~' )U ..... V. TO: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKA.i.\TSAS Telepb.one 501-604-5140 Fax Number 501-604-5149 Chris Heller &amp; Clay Fendley Sam Jones Steve Jones Richard Roachell John Walker Dennb Hanson Ann Marsha!! 376-2147 376-9442 375-1027 663-6939 374-4187 682-2591 371-0100 There are Y pages, including this Co\.er Sheet, being sent by thfa facsimile transmission. MESSAGE SENT BY: Office of Jud e m. R. Wilson, Jr. U. S. District c'ourt 600 West Capito!, Room 423 Little Rock, Ar-kansas 72201 Christy Conrad, LRSD Law Clerk 604-5143 RECEIVED FILED U.S. DISTi'&lt;ICT COURT NOV 2 1 2002 EASTERN DISTRICT ARKANSAS - OFFICEOF IN THE UNITED STATES DISTRICT COURT EASTER.t~ DISTRICT OF ARKANSAS NOV 2 0 2002 DESEGREGATION MONITORING WESTERN DIVISION JAMES W. McCORMACK, CLERK LITTLE ROCK SCHOOL DISTRICT By: ___~ P=L~AIN~=T=I=~=p=- c=L-E-R---K VS. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al R ECEIVf r- DEFENDANTS INTER VENO RS INTER VEN ORS MRS. LORENE JOSHUA, et al KATHERINE KNIGHT, et al r" DESEer'" ... ~ . .i .. G ORDER Yesterday, I received a letter and motion from Joshua's counsel requesting an extension of their deadline for responding to PCSSD's motion for approval of a middle school site. Joshua - requested a new deadline of December 6, 2002, in order to allow the ODM up to and including December 3, 2002, to report to the panies regarding the motion. Joshua's request for an extension is GRANTED. IT IS SO ORDERED this 19th day of November, 2/4. u)~L=-= Wm. R. Wilson, Jr. UNITED STATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET ~LIANCE WITH~ULE 58 AN~ oN //~MJ;)::) sv~~~g,~ 708 Office of Desegregation Monitor One Union National Plaza 124 West Capitol Suite 1895 Little Rock, AR 72201 de Case: 4:82-cv-00866 FILED u S DISTRICT COURT EASTERN DISTRICT ARKANSAS IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NOV 2 5 2002 WESTERN DIVISION JAMES W. McCORMACK, CLERK By: DEP CLERK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. "MRS. LORENE JOSHUA, et al. KATH;ERINE KNIGHT, et al. ORDER RECEIVED DEFENDANTS NOV 2 6 2002 INTERVENORS DFFICE0F INTERVENORS DESEGREGATION MONITORING The Court has received the 2002-2003 budget for the Office-of Desegregation Monitoring. The budget is attached to this Order for the parties' review. The parties have to and including fifteen days from entry of this Order to file objections regarding the proposed budget. ,\ IT IS SO ORDERED tlris lS_ day ofNovember, 2 1 00/ ~---------------- -- / 4 ~ - UNITED ST ATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 A~79C)) FRCP , 0 N / /-e,..S--O ~ \., Q,0._, &amp;-J 3 -Office of Desegregation Monitoring United States District Court Eastern District ot Arkansas Jls. Marshall, Federal Monitor November 20, 2002 The Honorable William R. Wilson, Jr. United States District Coun 600 West Capitol, Room 423 Little Rock, AR 72201 Dear Judge Wilson: One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 (501) 376-6200 Fax (501) 371-0100 Attached is the ODM budget for 2002-03, which reflects your requirements. The format of the budget document follows that of our previous budgets, including annotations to explain revenue calculations, definitions of budget categories, and the budgeted allocations for the year by category. Revenue for the year is apportioned among the three school districts according to the previous year's October 1 enrollment. Once the October 1, 2002 enrollment is known, we will adjust each district's contribution to conform to those figures. As is our practice, we credit the difference in budgeted expenses and actual expenditures proportionately to the school districts according to each district's pro-rated contribution to our budget. If you or the parties should need any additional information, I will gladly provide it. Sincerely yours, ~77(~ Ann S. Marshall ~ v&lt;c: The Honorable J. Thomas Ray Enc. - - - OFFI CE OF DESEGREGATION MONITORING: BUDGET FOR 2002-03 i i ' I I l I I I I REVENUE Sta te of Arkansas LR SD Budget allocation Minus credit from previous year Equals LRSD's share of the budget NL RSD 2001-02 2001-02 2002-03 BUDGET ACTUAL BUDGET 200,000.00 200,000.00 : 200,000.00 241,568.62 241 ,568.62 181 ,288.00 70,1 00.35 70,100.35 43,979.00 ,o .. u 171,468.27 171,468.27 : 137,309.00 I Budget allocation 87,824.70 87,824.70 i 65,909.00 Minus credit from previous year 1.. ..... 25,485.69_ _ ....... 25,485.69 .. i15'989_00. . Equals NLRSD's share of the budget I 62,339.01 62,339.01 ! 49,920.00 PC SSD Budget allocation Minus credit from previous year 177,677.68 , 177,677.68 133,341.00 ....... 51 ,559.96 .. \ ........ ?.:.:~~.~.:~ ........... ~~:~.~.:~ .. Equals PCSSD's share of th~_b u_d_g_et~1_ _1_ 26_,_1_1_7. 7_2--+-_126,_11_7.72~ ; _ 1_0_0_,9_9_3_o._o___. l I Int erest 0.00 I 10,554.71 ' 0.00 I I I I I To tal Revenue 707,071 .00 717,625.71 ! 580,538.00 No te: The sum of the credits in the above chart is the unspent amount of our previous year's budget, luding bank interest earned. Every budget cycle, QOM applies this amount toward each school trict's budgeted allocation. Both that allocation and the credit are determined for the proposed dget by the previous year's October 1 enrollment numbers, then adjusted accordingly when the rollment numbers for the current year become available. inc dis bu en EXPENDITURES 2001-02 2001-02 2002-03 BUDGET ACTUAL BUDGET C ommunications 10,000.00 i 9,679.11 I 9,700.00 i 1 D ues and Fees 4,000.00 1,763.00 ; 439.00 I I E quipment 6,000.00 2,262.59 i 0.00 Fo od Services 200.00 212.89 ! 0.00 M anagement Services 20,000.00 2,350.00 : 5,000.00 ! p eriodicals 4so.oo I 301 .94 ' 80.00 ! p rinting &amp; Binding 6,000.00 i 5,076.56 6,000.00 Pr of &amp; Tech Services 6,500.00 j 1,655.00 1,700.00 R ent 46,231.00 \ 46,230.96 47,896.00 I R epairs &amp; Maintenance 1,000.00 379.73 : 400.00 I R I esource Library 200.00 ! 447.83 : 0.00 ! s alaries 469,296.00 443,296.24 i 410,770.00 B enefits 109,794.00 100,616.05 ; 91 ,166.00 ' , St aff Development 1,000.00 89.34 : 0.00 ! ' s upplies 7,750.00 7,067.09 6,643.00 , Tr avel 18,000.00 4,078.10 200.00 In surance 650.00 -197.00 544.00 T otal Expenditures 707,071.00 625,309.43 i 580,538.00 ANNOTATED ODM BUDGET FOR 2002-03 REVENUE The Court's Interim Order of June 27, 1989 required that: ... [T]he amount previously ordered for the Pulaski County Educational Cooperative (Co-op) [$200,000.00] shall be applied toward the budget of the office of the Metropolitan Supervisor .... The balance of the budget will be apportioned among the school districts on a per pupil basis .... Eighth Circuit Order of December 12, 1990: ... [T]he office previously known as the Office of the Metropolitan Supervisor will be :rreconstituted as the Office of Desegregation Monitoring .... 10/1/01 % of Total 2002-03 Enrollment Enrollment Budget Allocation LRSD 25,367 I 47.64 1 1a1.2aa NLRSD 9,220 17.32 I 65,909 PCSSD 18,657 35.04 I 133,341 I 1 State of AR N/A I N/A I 200,000 Total 53,244 100.00 580,538 2001-02 Credit {Budget not spent) I 43,979 ! 15,989 \ 32,348 I N/A j 92,316 I 2002-03 Budget Payment 137,309 49,920 100,993 200,000 488,222 This chart shows that the 2002-03 Budget Allocation, the 2001-02 Credit, and the 2002-03 Budget Payment are apportioned among the three school districts according to last year's October enrollment numbers. After the final 2002-03 enrollment has been tallied, we will adjust the figures accordingly and notify each district of the exact amount due for its share of ODM's 2002-03 budget. Described below is the step-by-step process, reflected in the chart above. that we use to determine each district's contribution to the ODM budget: 1. The State of Arkansas' contribution ($200,000.00) is subtracted from ODM's total budget. 2. Based on the previous year's October 1 enrollment, the districts are charged their pro rata share of OD M's budget (minus the state's contribution). 3. Each district is credited with its pro rata share ( or estimated share) of ODM' s unspent budget for the previous year. 4. Each district contributes that sum to ODM' s budget or, if the credit has been estimated, each district will be notified of the exact amount due for its share of ODM' s budget before the close of the current fiscal year. Page 3 EXPENDITURES Note: Definitions of expense categories are based on the Arkansas School Financial Accounting Manual. Communications: Services provided by persons or businesses to assist in transmitting and receiving messages or infonnation. This category includes telephone services as well as postage machine rental and postage. I 2001--02 Budget 2001-02 Expenditures i 2002-03 Budget i .__ 9,679.11 I s.100.00 I _____ ......._ ________ __._ ___ 10,000.00 Dues and F~es: Expendirures or assessment for membership in professional or other organizations or associations or payments to a paying agent for services provided, such as conference registration fees. j 2001--02 Budget I 2001-02 Expenditures I 2002-03 Budget ! J._ __4_ ,o_o_o.o_o ....I.. _____1 _,_76_3_.o_o .i... _ ___ 439.oo I Equipment: Expenditures for the initial, additional, and replacement items or equipment, such as furniture and machinery. I 2001--02 Budget I 2001-02 Expenditures I I 6.000.00 i 2.262.ss I 2002--03 Budget ! I 0.00 j Food Services: Expenditures for fooci or preparation and serving of food, which may include catering. I 2001--02 Budget 2001-02 Expenditures I I 200.00 I 212.ss I 2002-03 Budget ! 0.0Q II I Management Services: Services performed by persons qualified to assist management either in the broad policy area or in general operations. This category includes consultants, individually or as a team, to assist the chief executive in conference or through systematic studies. ! 2001--02 Budget I 2001-02 Expenditures I 2002--03 Budget ; \'--___2 0_o,oo_.o_o-'j- _____2 .3s_o.o_o-'l- ____s, ooo.oo ! Page4 Periodicals: Expenditures for periodicals and newspapers for general use. A periodical is any publication appearing at regular intervals ofless than a year and continuing for an indefinite period. I 2001-02 Budget ! 450.00 I 2001-02 Expenditures I 301 .94 I 1 i 2002-03 Budget ! ao.oo I I Printing and Binding: Expenditures for job pnntmg and binding, usually according to specifications. This includes the design and printing of forms as well as printing and binding publications. 2001-02 Budget I 2001-02 Expenditures ! 2002-03 Budget e.000.00 I s.076.56 I e.000.00 Professional and Technical Services: Services which by their nature can be performed only by persons with specialized skills and knowledge. 2001-02 Budget I 2001-02 Expenditures 2002-03 Budget e.soo.oo I 1.6ss.oo 1,700.00 Rent: Expenditures for leasing or renting land and buildings for both temporary and long-range use. 2001-02 Budget / 2001-02 Expenditures I 46,231.00 I 46,230.96 I 2002-03 Budget ! 47.896.oo I Repairs and Maintenance: Expenditures for repairs and maintenance services which restore equipment to its original state or are a part of a routine preventive maintenance program. This includes service contracts and contractual agreements covering the maintenance and operation of equipment and equipment systems. 2001-02 Budget 2001-02 Expenditures 1,000.00 379.73 I 2002-03 Budget I 400.00 i Resource Library: Expenditures for regular or incidental purchases of library books available for general use. ' 2001-02 Budget 2001-02 Expenditures i 200.00 447.83 I ! 2002-03 Budget ! I 0.00 ; I Page 5 Salaries: Salaries are the amounts paid to employees who are considered to be in positions of a permanent or temporary nature. 2001-02 Budget 2001-02 Expenditures 2002-03 Budget I 469,296.00 443,296.24 410,TTO.OO I Below is a breakdown of each employee's budgeted 2002-03 salarv Name of Employee 2001-02 Salary I 2002-03 Salary Ann Marshall 116,688.00 116,688.00 I Melissa Guldin 1 54,368.00 21,842.00 Gene Jones 2 57,021 .00 57,021 .00 Margie Powell 67,960.00 67,960.00 Horace Smith 67,960.00 67,960.00 r"'011, -,ai':-.c, : I 51 ,011 .00 51,011 .00 Linda Bryant 28,288.00 28,288.00 Total 443,296.00 410,TTO.OO 1Melissa Guldin retired on September 30, 2002. 2Gene Jones, who works 4/5 time, elected to receive payment for annual insurance premiums in lieu of the insurance benefits; his salary reflects that decision. Benefits: Benefits are the amounts paid in behalf of employees and not included in the gross salary, but are over and above. Such payments are fringe benefit payments. 2001-02 Budget \ 2001-02 Expenditures I 2002-03 Budget 109.794.oo 1 100.s1s.os I 91 .166.oo I Below is a breakdown by category of each employee's 2001-02 budgeted fringe benefits: Name ! Car Social I Retire- Hospital- Life I Dental I Hospital I I Short Total I Allowance Security ment -ization Ins. I Indemnity Term Benefits I Brown i 1.800.00 I 6,981 .88 Ii 14,218.56 2,253.12 44.16 I 238.56 : 60.96 1 62.88 25,660.12 Guldin ! 300.00 I 1,693.83 ! 1,667.04 563.28 11 .04 I 59.64 i 15.24 I 15.72 4,325.79 Jones i 960.00 4.435.55 l -0- -0- .o- I .o- I .o- I I -0- 5,395.55 Powell !; 1,200.00 s .290.14 I 82,99.20 2,253.12 44.16 i 238.56 60.96 \ 62.88 I 17,449.62 i I Smith I I 62.88 ! I 1,200.00 5,290.74 I 8,299.20 2,253.12 44.16 238.56 60.96 ! 17,449.62 Ramer I 0.00 3,902.34 l 6,121.32 2,253.12 44.16 !i 238.56 60.96 I 1 62.88 12,683.34 Bryant ! 0.00 2,164.03 i ! I 3,394.56 2,253.12 27.60 II 238.56 60.96 j 62.88 8,201.71 Total I 5,460.00 29,759.11 I 41,999.88 11,828.88 215.28 I 1,252.44 320.04 I 330.12 91,165.75 Page 6 I ' I I I I I I ' i I ! I i Staff Development: Services performed by persons qualified to assist in enhancing the quality of the operation. j 2001-02 Budget j I 1,000.00 I 2001-02 Expenditures I 2002-03 Budget I 89.34 ! 0.00 / I Supplies: Expenditures for all supplies for the operation, including freight and cartage. Amounts paid for material items of an expendable nature that are consumed, worn out, or deteriorated in use or items that lose their identity through fabrication or incorporation into different or more compiex units or substances. \ 2001-02 Budget \ 2001-02 Expenditures j 2002-03 Budget ! I 7,750.00 I 1.001.09 I s.643.oo I Travel: Expenditures for transportation, meals, hotel, and other expenses associated with traveling or business, such as parking fees. Payments for per diem in lieu of reimbursements for subsistence (room and board) also are charged here. ! 2001-02 Budget I 2001-02 Expenditures i 2002-03 Budget , I I 18,000.00 j 4 ,078.10 j 200.00 I Insurance: Expenditures for all types of insurance coverage such as property, liability, fidelity, as well as the costs of judgments. 2001-02 Budget \ 2001-02 Expenditures ! 2002-03 Budget ! I 650.00 j (197.00) j I 544.00 ! Page7 EAsTMRG(f%5/2 IN THE UNITED STATES DISTRICT COURT ISTRJcT ARKfJSA.s EASTERN DISTRICT oF ARKANSAS Nov WESTERN DIVISION 2 5 20 02 -~:_MES W. McCORMACK, ~--- CLERK LITTLE ROCK SCHOOL DISTRICT FF DEPCLERI( V. CASE NO. 4 : 82CV00866 PULASKI COUNTY SPECIAL SCHOOL 'DISTRICT NO . 1, ET AL. MRS. LORENE JOSHUA, ET AL . KATHERINE KNIGHT,, ET AL. RECEIVED NOV 2 6 2002 OFACEOF DESEGREGATION MONITORING DEFENDANTS INT ERVEN ORS INT ERVEN ORS Motion for Recusal of Dis_tric\ Judge and .for Vacating of : Ord~rs., Rulings and -nidgments The Joshu a Jntervenors. respectfully move for the entry of - orders providing for the recusal of the court (Hon . Wil l iam R. Wils.on, Jr.) and for the vacating of all orders , rulings and judgments, including the memorandum and j udgment of September 13 , 2002, e ntered subsequent to the reass i gnment of this case to t his court (Judge Wilson) . This motion is based upon 28 U. S . C,455(b) (2), Rule 60(b) (6), Fed . R. Civ. Pro., the follo~ing allegations, the decl aration of Robert Pressman , the affidavits of Rickey Hicks and John W. Walker , and the accompanying memorandum. 1 . On November 30, 1982, the Little Rock School District filed this case , Civil Action No . 82 - 866. The Honorable Henr y L . Woods was then assigned to handle the matter . 2. On March 23 , 1984 , the Court of Appeals for t he Eighth 1 - - - Circuit held that Judge Woods had erred, when he refused to allow the intervention in this case of class representatives of African American students in the LRSD , NLRSD, and the PCSSD (known thereafter as the "Joshua Intervenors " ). 3 . . On April 24, 1987, the LRSD moved for the recusal of Judge Woods pursuant to 28 U.S . C. 455a . Judge Woods denied this motion on April 30, 1987 (see 660 F . Supp. at 624). 4 . On April 30, 1987, Judge Woods also denied the Joshua Intervenors' motion for recusal based upon 28 U.S . C. 455(b) (2). See 660 F. Supp. At 636-37. 5. Employing the procedural device of a writ of mandamus, the LRSD on August 24, 1987 sought appellate review of Judge Woods' denial of its recusal motion . The Jo.shua Intervenors pursued - appellate review of the denial of their recusal motion in an appeal addressing several district court judgments and by supporting the LRSD petition. 6 . Then in private practice, his honor, William R. Wilson , Jr . , was retained by Judge Woods to ~epresent the judge in the Court of Appeals with regard to the mandamus petition . See Attachment A. In representing Judge Woods, h.is honor served as a lawyer in this case. See Order Denying Motion for Hearing Regarding Relevance of 28 U. S . C. 455 to the Present Proceedings, Oct . 29, 2002, at 2 ( " I entered the case, at that time , fo:r: the limited purpose of representing Judge Woods before t he Eigh t h Circuit i n connection with the request that he be disqualified . 11 [ emphasis added]) 2 7. The Court of Appeals for the Eighth Circuit has construed 28 U.S.C. 455(b) (2) to require recusal of a judge in a case in which he or she served as a lawyer while in private practice. In construing 455(b) (2), this court has erred by limiting its focus to language in which the Court of Appeals considered whether (b) (2) might have an even broader scope, deciding that his honor's -involvement in 1987 did not fall within that possible additional prohibition. 8. A district judge has an independent responsibility to consider the applicability of 28 U.S.C. 455(b) (2). Upon receiving reassignment of this case, this court did not orally or in writing raise with the parties or rule upon the applicability of Section 455, in the light of his honor's earlier "appearance in the .case" - as a lawyer. Order, Oct . 29, 2002, at 4. 9 . Robert Pressman first learned of his honor's earlier role as a lawyer in this case on October 18, 2002 , while doing research on the matter of recusal; this research was prompted by Mr. Pressman's learning of the court's employment of Ms. Janet Pulliam as a law clerk. On October 22, 2 002, when reporting on this research to John W. Walker, Mr. Pressman also mentioned his rionor's earlier role in this case. Mr. Walker had forgotten the matter. See Declaration of Ropert Pressman (Attachment B) and Affidavit of John W. Walker (Attachment C)to this Motion. Attorney Rickey Hicks was not aware of his honor's earlier service until late October, 2002 (Attachment D) . The motion has been filed within a reasonable period ~fter the foregoing events. 3 10. In the 14-year period from the time that hi$ honor served as a lawyer in this case (November 6, 1987)until the reassignment of this case to his honor (January 3, 2002): (a) the Court of Appeals entered at least 13 published opinions in this case1 and the district court at least 5; 2 (b) the district court clerk's office docketed thousands of pleadings and other items in this case [see also Memorandum Opinion of September 13, 2002, at 9 n. 15 [-The pleadings in this case alone now occupy hundreds of feet of file space in the clerk ' s office. ' J (c) Judge Wright received approximately 743 exhibits; (d) the Office of Desegregation Monitorin~ submitted at least 49 written reports; ( e) Joshua Intervenors' lead counsel, John W. Walker, r~presented clients in many hundreds of other cases and discussed civil rights and other legal issues with thousands of persons who contacted his office. 11 . Implementation of 28 U.S . C. 455 requires that the court recuse . 12. In the circumstances of this case, governing legal standards require that the court vacate all orders , rulings and judgments entered s ubsequent to the court ' s receiving reassignment These decisions are 92 1 F . 2d 1371; 928 F . 2d 248; 949 F . 2d 253; 971 F . 2d 160 ; 17 F . 3d 260; 56 F. 3d 904; 60 F . 3d 435; 83 F . 3d 1014; 109 F . 3d 514; 112 F . 3d 953 ; 127 F . 3d 693; 131 F. 3d 1255; and 148 F . 3d 956 . 2 These decisions are 716 F. Supp. 1162; 726 F . Supp. 1544 ; 769 F . Supp . 1483 ; 769 F. Supp . 1491; a nd 778 F . Supp 1013! 4 . . , J - of the matter. Rule 60(b) (6) provides a vehicle for accomplishing this action. 13. The circumstances referred to in paragraph 12 include the following: (a) After the time that his honor represente' d Judge Woods in. . this case, Judge Woods expressed negative views on the fees for attorneys in the case, particularly the Joshua Intervenors. See 726 F. Supp. At 1554-56; 740 F. Supp at 634, 635; Judge Henry Woods and Beth Deere, 'Reflections on the Little Rock School Case 11 44 Ark. L. Rev. 971, 998, 1000, 1005-06 (1991). (b) In the opinion of September 13, 2002, this court drew upon (at 43) and built upon (at 38-44) Judge Woods' conclusion about attorneys ' fees, al though recognizing that the matter was ,'not - directly relevant to the issue of unitary status ... ' 1(at 40). (c) A neutral observer could reasonably construe this court's conclusions about attorneys fees pa.id to Joshua Intervenors to be that: the fees paid were excessive; the fees paid diminished the educational opportunities of the student .members of the intervening class; additional fees were sought when they should not have been; and additional fees were paid in exchange for an agreement to support the revised plan. (d) It is reasonable to conclude that Judge Woods' views about attorneys' fees in this case had a greater influence on this court, after receiving assignment of this case, . because his honor had earlier assumed an advocacy role for Judge Woods by representing him in this case. 5 r (e) The Joshua Intervenors' evidentiary presentation in the July, 2 002 hearing was made principaly by lead counsel . John W. Walker. As of this time (or at least by the time of the release of the Memorandum Opinion), this court held negative views about Mr. Walker's earlier role in this case. See sub-paragraph (c). These vi~ws were linked to this court's earlier role as a lawyer in this case. See subparagraph (d). It was unfair and inappropriate for Intervenors' evidentiary presentation to be evaluat~d under this cloud. (f) On appeal, this court's factual findings will be reviewed under the ~'clearly erroneous'' standard, not de nova. (g) The court's decision in this case is marked by fealty and deference to Judge Henry Woods, the individual whose positions this - court was obligated to champion, when serving as an attorney in this case. WHEREFORE the Joshua Intervenors respectfully pray that this court recuse from this case after vacating all orders, rulings and judgments, entered subsequent to the reassignment of this case to this court, including the Memorandum Opinion and judgment of September 13, 2002. The Joshua Intervenors further pray that this court refer this case to the chief judge for reassignment and grant such other and further relief as the needs of justic~ may require.- Respectfully subrr ted, Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862 - 1955 . 6 \ ,' / ,)! .v?v/L /.{ I J n W. Wa!ker J[ n W. Walker, 1723 Broadway Little Rock, AR / D~[ /IY. ~ /(JVg-1 P.A. 72206 Mass. 405900 /,J / . ~ f/ ,, i 'f---iL-zA~ I Lk/4 Rlcky . ks Attorn ~y at Law 501-374-3758 Ark. 64046 1100 North University, Suite 240 Little Rock, AR 72207 501-663.-9900 CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Motion has been forwarded to all ~ounsel of record via United States mail, postage prepaid on this ~?--day of November, 2002. 7 !.A.=:l qD91'tG7"TmRllSIXUT 'P. 0. IKll:11 urn.E:ROCK, AlllC.L'if54.S ,-2,.'&gt;0;! Wl&gt;C. ~ W!l$.ON,Jlll. t ~l'IID!=l&gt;&lt;-t aitOltANNllT. "1II..'l0N c;.L'll/l).i;;Qllt.'1,( TJMar= O. lllml.2Y SQ1J!1S-&amp;i~ September 8, 1987 RE: L~ttle Rock School Dist . . Petitioner, v. Honorabie Henry Woods, Respondent Eighth Circuit No. 87-2150 Mr- Robert D. St . Vrain Eighth CiJ:'cuit Clerk 511 U".S. Court and Custom House 1114 Marke~ Street S~. Lou~s, Missouri 63101 Dear ~..r. Sc. Vrain: F. l L E D ----;J SP S 1987~ ROa.ERT D. ST. VRAiN. CLERK tl&gt;LfJOADldtT'Tl!ll.0 ?!UC'TICZ l:'J AL..o.S~ EXPRESS MAIL I have just been retained by The Honorable Henry i.7oods to represent him in the referenced matter_ I.: is my understanding that our . response is due in the Eighth Circuit on or before . Septemb~r 14, 1987. If this is not correct, I would appreciate it if you .would advise me for'thwith. I understand, also, that this letter will suic:e as my "entry of appearance." Again, if this is net: correct, please let me, know as soon 2.s pos.sible. Thank you very much for your consideration_ Cordially, fJ/t~ Wm_ R_ Wilson, Jr. WRWJr:skm. IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. LR-C-82-866 Declaration of Robert Pressman Robert Pressman declares as follows: PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. I have undertaken various assignments in this case, at the request of John W. Walker, since the latter part of 1995. 2. On October 15, 2002, d~ring a telephone conversation, John W. Walker i11-formed me of this court's .employment of Ms. Janet Pulliam as a law clerk. He further stated that she had been one of the attorneys for the Little Rock School District in the first phase of this civil action. We discussed my doing research about recusal under 28 U.S.C. Sec. 455, in view of Ms. Pulliam's present and former roles. 3. I then did research at the law library of the New England School of Law in Boston on October 18, 2002. During the course of that work, I noticed in the United States Code Annotated a note on the decision in this case published at 833 F.2d 112. Upon opening 1 that volume to the two-page decision, I noted: William R. Wilsqn, Jr.; Little Rock, Ark. for Judge Woods in mandamus. This entry provided my first knowledge of his honor's involvement in this case while in private practice. 4. On October 22, 2002, I discussed the results of my research on Section 455 in the context of law clerks with Mr. Walker by telephone. I also mentioned the opinion showing his honor's representing Judge Woods on the mandamus issue in this case. At this point, Mr. Walker did not say directly or indirectly that he remembered this fact prior to my mentioning it. 5. A circumstance convinces me that Mr. Walker would have raised the matter of his honor's earlier role in this case had he remembered it. Prior to the July 2002 hearing, Mr. Walker and I had multiple conversations about _our prospects for success on the issues tried before Judge Wright and the is?ues to be tried before his honor. We both voiced pessimism, based upon our perceptions of his honor's record in civil rights cases. In this light, my conclusion is that Mr. Walker would have at least raised for discussion on these occasions before the July 2002 hearing the matter of seeking recusal, if he had recalled his honor's earlier appearance in this case as counsel. I declare under penalty of perjury that the foregoing statements are truthful and complete. Date Robert Pressman 2 IN THE UNITED .STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF VS. CASE NO. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, NO. 1, ET AL: DEFENDANT INTER VEN ORS INTER VEN ORS MRS. LORENE JOSHUA, ET AL. KA THERINE vv. KNIGHT, ET AL. AFFIDAVIT OF JOHN W. WALKER ~omes now the affiant who states as follows: 1. 2. I did not remember His Honor's appearance in this case in 1987 until some time in October 2002, when Bob Pressman mentioned it to me. Earlier in October 2002, I learned of the Court's employing Ms. Janet Pullium as a lawyer. I discussed this and its possible relatiQnship to recusal on separate occasions with Mr. Pressman and with Mr. Rickey Hicks as well as Ms. Joy Springer of my office. That discussion included no mention of His Honor's e:....rlier role in the case. 3. After the reassignment of this case to this Court, Mr. Pressman and I had several conversations about our prospects. We both had negative outlooks because of our view of the Court's decisions while on the bench. 4. There were other lawyers associated with this case who I did not remember until that memory was refreshed by my review of the pleadings and the decisions in this ATTACHMENTC case after the October 2002 conversations with Mr. Pressman, Mr. Hicks and Ms. Springer. 5. In the period from the time that His Honor represented Judge Woods in 1987 until this case was reassigned to His Honor, my law practice was very active. When.it was assigned to His Honor on January 3, 2002, I was preparing for major surgery. 11 Between 1987 and October 2002, I have represented clients in many htmdreds of other cases and have discussed civil rights and other issues with thousands of persons who contacted my office. . ? Affiant saith nothing fmiher. I COUNTY OF LL/\ "'16!~) ) STATE OR ARKANSAS) '): t&amp; Sworn and appeared before me this d '(day of November. 2002. My Commission Expires: 9 \ t 7; 200:2;; I i ) ) "-- 1 _,.. (Lo- _ 1 ) 11.--1-- ; r: / 171'\( ) n f t . .{, ~ ( JJof.. ,,t( Notary 1fublic ATTACHMENTC IN THE lJNITED STATES DI~TRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. PULASKI COUNTY SPECIAL SCHOOL "DISTRICT NO. l, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. LR-C-82-866 AFFIDAVIT OF RICKEY HICKS Rickey Hicks states as follows: PLAINTIFF DEFENDANTS INTERVENORS INTERVENORs 1. I began to _assist John W. Walker i1_1 the representation of the Joshua Intervenors on or about November 19, 2001. 2. In the latter part of October, 2002, John W. Walker and Robert Pressman discussed with me the fact that the court (Honorable William R. Wilson) had served as counsel in this case by representing Judge Henry Woods on a mandamus issue in 1987. This was the first time I heard or received any information about his honor's earlier service in this case. Affiant saith nothing further. coumY oF lno ILL ' STATE OF ARKANSAS ) ) ) Sworn and appeared before me this J.J-day ofNovember, 2002. :. n /t1J1t,,r ;J_/(/I My Commission Expires: 1" / /7/ZI uu3 r I r:A_u_/:(LE 0 ~ I ERN o,sf~(CT COURT "'CT ARKAiiiSAs IN THE UNITED STATES DISTRICT COURT Nov 2 5 200') EASTERN DISTRICT OF ARKANSASJAM WESTERN DIVISION By ES w. MccoRMA. ---- CK, CLERK LITTLE ROCK SCHOOL DISTRICT v. CASE NO. 4: 82CV00866, PULASKI COUNTY SPECIAL SCHOOL -DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET . AL. KATHERINE KNIGHT, ET AL. RECEIVED NOV 2 6 2002 OFFICEOF DESEGREGATION MONITORIHG The Joshua Intervenors' Memorandum in DEFENDANTS INTERVENORS INT ERVEN ORS Support of their Motion for the Vacating of Orders and Recusal This court has acknowledged that in 1987, while in private - practice, his honor appeared in this case as a lawyer. 1 Based upon the inter~retation of 28 U.S.C. 455(b) (2) by the Court of Appeals for the Eighth Circuit, that circumstance disqualified his honor from serving later as a judge in this case. In the light of relevant facts and legal standards, the court should now recuse, after vacati_ng all orders, ruling~ and judgments entered since i receiving this case by reassignmeni. A. Under Eighth Circuit Decisions, A Judge Must Recuse When Assigned a Case In which He Earlier Served as a Lawyer The Joshua Intervenors read Eighth Circuit decisions as 1 See Order Denying Motion for Hearing Regarding Relevance of 28 u.s.c. Sec. 455 to the Present Proceedings, Oct. 2~~ 2002, at 2 ("I entered the case, at that time, .. "); at 3 (" ... my appearance fifteen years 'ago ... "); at 4 (" ... my appearance in the case ... "). 1 interpreting 2.8 U.S.C.455(b) (2) to mandate recusal when a judge is assigned a case in which he earlier served as a lawyer. 2 The text on which intervenors rely is as follows. The trial of this case on the merits actually was delayed three years by various intervening motions, most of which are not relevant here. For example, motions for class cert if- ' i' ication and for consolidation with the Clark litigation concerning desegregation of the Little Rock School District (see Little Rock School Dist. No. 1, 584 F.Supp. 328, 334-35 (E.D.Ark. 1984), were denied, and those rulings are not challenged on appeal. Patterson does challenge the refusal of Judge Woods to recuse himself, arguing that recusal was required under 28 U.S.C. Sec. 455(b) (2) because Judge Woods' former law partner, during the time he was associated with the firm, represented parties that sought to intervene in and eventually participated as amicus curiae in the Clark litigation. We agree with Judge Woods that it follows from the denial of the consolidation motion that the matter in controversy' here cannot be the same as in Clark and that the statutory language on recusal relied on by Patterson thus does not apply. Patterson v. Masem, 774 F.2d 251, 254 n. 2 (8th Cir. 1985) (emphasis added) We have previously held, in an appeal involving the same judge and the same connection with Clark, that where the trial court denies consolidation of a related case which might have provided a basis for recusal, 11 it follows ... that the matter in controversy' here cannot be the same ... and that the statutory language on recusal . ... thus does not apply." Patterson v. Masem, 774 F.2d 251, 254 n. 2 (8thcir. 1985). Patterson involved an individual racial discrimination suit by an employee of LRSD, and the Joshua Intervenors urge us to distinguish Patterson on the ground that this case is intertwined with Clark in a way that Patterson was not. Under the Joshua Intervenors' interpretation, the matter in controversy' contemplated by the recusal statute may extend beyond the litigation conducted under the same docket number where the issues in the dispute are sufficiently related. Since this case inevitably involves consideration of desegregation within the LRSD -- the focus of the Clark 2 . Sec. 455 (b) (2) reads in pertinent part: "He shall also disqualify himself in the following circumstances ... (2) Where in private practice he served as lawyer in the matter in controversy .... 11 2 litigation -- the Joshua Intervenors conclude that 455(b) (2) requires recusal. Even if we accept appellants' argument that different cases may constitute . the same matter in controversy, ' an interpretation apparently precluded by Patterson, .the question of what kinds of cases are sufficiently related for the purposes of Sec. 455 (b) (2) would remain a question of judgment . r and degree. We cannot say that the trial judge I s former law t' partner's submission of an amicus. brief in a case involving, to a large extent, different issues and different remedies two decades ago ~equires recusal under Sec. 455(b) (2), nor do we believe that Congress intended such a result. LRSD v. PCSSD, 839 F.2d 1296, 1301-02 (8 th Cir. 1988) .... To determine whether 455(b) requires recusal in this case, I must decide whether the claims filed by Alaska fishermen in Apex's bankruptcy proceeding .as a result of the oil spill are the same matter in controversy' as Artoc' s disputed claim for payment of the assigned invoices. We have previously noted that, if different cases may ever constitute the same matter in controversy for purposes of Sec. 455(b) (2), it is only when the issues in dispute are sufficiently related. 1 Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 839 F.2d 1296, 1302 (8th Cir.), cert. denied, 488 U.S. 869 ... (1988). In Re Apex Oil Co., 981 F.2d 302, 303-04 (8th cir. 1992) ( individual opinion of Judge Loken denying motion for disqualification) These three decisions c;::oncerning 455 (b) (2) touch upon two ' situations. The first is where the earlier service as a . lawyer was in the same case to which the judge is later assigned. The second instance is where the earlier service as a lawyer was in a different case than the judge's current assignment, but, it is argued, the separate cases or issues are so closely related to the current assigned case that recusal is also required by Section 455 (b) (2). As to the first situation, Intervenor's interpretation of the 3 Eighth Circuit language is that the judge must recuse, if he\she or a partner earlier served as a lawyer in the same case. As to the second situation, Intervenors' interpretation is that the Eighth Circuit has not made a . holding identifying a sufficient relationship, but has left open the possibility that such a tl situation requiring Section 455(b) (2) recusal might exist. Intervenors' position regarding the Eighth Circuit standard finds support in United States v. Cleveland, 1997 WL 222533, (E.D. La.), at 8-9, relied upon by this court in its Order of October 29, - 2002, at 3-4. That court identified the Eighth Circuit rule as follows (emphasis added]: The court notes that the one circuit to have addressed the issue explicitly has read the matter in controversy' requirement of Section 455(b) (2) narrowly. In Patterson v. Masem, 774 F.2d 251, 254 n. 2 (8th Cir. 1985) and Little Rock School District v. Pulaski County Special School District No. i, 839 F.2d 1296, 1301 (8thCir.), cert. denied, 488 U.S. 869 (i988), the Eighth circuit rejected the argument that "the matter in controversy' contemplated by the recusal statute may extend beyond the litigation conducted under the same docket number where the issues in dispute are sufficiently related." Little Rock School District, 839 F.2d at 1302. Thus, under Eighth Circuit law, the matter in controversy' requirement is triggered only if the judge or his or her former partner worked on the case over which the judge is presently presiding. In both Patterson and Little Rock School District, the Court held that a judge was not required: to disqualify himself pursuant to Section 455(b) (2) when his former law partners had filed amicus curiae briefs in a case that helped 'form part of the historical background of the dispute' before the Court. Little Rock School District, 839 F.2d at 1301. In private practice, his honor had "worked on the case" reassigned to him upon Judge Wright's withdrawal. Recusal was 4 mandated under the Eighth Circuit's bright line rule. 3 Intervenors respectfully submit that this court erred in its ' application of 455(b) (2) in its October 29, 2002 Order. The court ignored the bright line rule; rather, its focus was on the appellate court's discussion of whether 455(b) (2) was even broader, ,, reaching some situations in which there was an overlap between different cases. The court ruled that its earlier involvement here did not fall within the parameters of this "standard. 11 This incomplete analysis yielded a faulty overall 'conclusion. The nature of school desegregation cases shows a problem with approaching the matter in terms of whether tha earlier service as counsel in the case involved "any of the issues (now] pending before (the judge] "Order, Oct. 29, 2002, at 4. This species of litigation may involve six "Green factors, " or even more elements, where, as here, the parties' settlement is more expansive. The court's language might be interpreted to suggest that one could be an advocate in a case in private practice on some such issues, yet be able to later serve as a judge in the same case on others. Respectfully, "we [do not] believe that Congress intended such a result." Little Rock School District, 839 F.2d at 1302. Finally, legislative history supports the interpretation of 455 (b) (2), adopted by the Eighth Circuit and urged here by 3 United states v. DeTemple, 162 F.3d 279 (4th Cir. 1998), a criminal prosecution, cited in the October 29 Order at 3, was not a case in which the judge while in private practice, or a partner, had made an appearance in the current prosecution. 5 intervenors. Prior to 1974, 455 consisted of a single paragraph. In April 1973, the Judicial Conference of the United States adopted for federal judges the American Bar Association's Code of Judicial Conduct. This code was ' more rigorous than Section 455. The 1974 revisions to 455 largely conformed the statute to the ABA Code ,, relating to judicial disqualification. The legislation did add 455 (b) (3) to deal explicitly with the issue of an individual coming to the bench from service as a government lawyer. The Senate and House reports contain this exp~~nation . ... subsection (b) (3) carries forward from subsection (b) (2) a required disqualification where the judge as a government lawyer, had acted as counsel, adviser, or material witness concerning the proceeding. In addition, the judge must disqualify himself where, as a government lawyer, he had expressed an opinion concerning the merits of the particular case in controversy ... See 197 4 U.S. Cong. Code &amp; Adm in. News, 6351-56. B. His Honor Served in this Case as a Lawyer by Representing Judge Woods in the Court of Appeals in 1987 His honor has, as noted, acknowledged his service as a lawyer in this case while in private practice. See supra at n. 1. The I LRSD, however, seemin~ly suggests: that the petition for a writ of mandamus involved a different case -- by the repetitive use of the phrase "the mandamus action." See LRSD Memorandum Brief, Oct. 30, 2002, at 3-5; see also at 4 ("the mandamus case"). Any such contention is without merit. The "Petition for Writ of Mandamus" employed here in 1987 was not a separate civil action or case, but instead a procedural mechanism used to bring an issue in the underlying litigation, this case, to the Court of Appeals for the Eighth Circuit for review. 6 In Re Kansas Public Employees Retirement System, 85 F. 3d 1353, 1355 (8th Cir. 1996) (petition for writ of mandamus seeking disqualification of district judge; court refers to "basic underlying suit" and the "underlying suit"; at 1355 and inn. 2); Madden v. Myers, 102 F.3d. 74, 76-77 (3rdCir . . 1996) ("A writ of ,, mandamus, which is authorized by the All Writs Act, 28 u.s.c. Sec . 1651, . constitutes a procedural mechanism through which a court of appeals reviews a carefully circumscribed and discrete category of district court orders. 11 [footnotes and citations omitted]); United States v. Martin, 96 F.3d 853, 854 (7thCir. 1996) ("When as is normally the case in the federaL courts mandamus is being sought against the judge presiding in the petitioner's case, - it is realistically a form of interlocutory appeal .... 11 ; "It is a procedural step in the criminal litigation, like an interlocutory or final appeal or a civil contempt proceeding against a witness."); Green v. Nottingham, 90 F.3d 415, 417 (l0thCir. 1996) ("A mandamus proceeding under section 1651, although characterized as an original proceeding, is not an independent grant of ' jurisdiction, but an aid of appe,llate jurisdiction. 16 Charles A. Wright et al., Federal Practice and Procedure, Sec. 3932 (1977) (quotation omitted). As such, mandamus is part of the litigation of a case . " ) . 4 In the 'Petition for Writ of Mandamus,' August 24, 1987, the LRSD recognized that the mandamus approach was a part of a single underlying case. At 5 ( ' seeking writ of mandamus directing Judge Woods '' to recuse himself from presiding over these proceedings . . . '' ( emphasis added) ; The LRSD supporting brief stated: '' This Petition seeks to have the Honorable Henry Woods disqualified from presiding over this scho~l desegregation case." 7 c. The Motion for Recusal Should Not Be Rejected as Untimely The motion should not, for two reasons, be denied as untimely. 1. The Court Had an Independent Obligation to Address the Matter of Recusal 28 U.S.C. 455(a) and (b) identify various situations in which a judge "shall disqualify himself [or herself] .... 11 Unlike 28 U.S.C. 144, 455 is, not conditioned on a party's raising an issue of bias. Rather, in keeping with its text, Section 455 has been characterized as "self-enforcing on the part of the judge." Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, .. . . . 1052 (5th Cir. 1975). "[I]f the judge sitting on a case is aware of grounds for recusal under Section 455, that judge has a duty to recuse him~elf or herself." United States v. Sibla, 624 F.2d 864, 868 (9thCir. 1980). See also Roberts v . Bailar, 625 F.2d 125, 128 (6th Cir. 1980) (same); United States v. Davidson, 482 F.Supp. 8.27, 829 (W.D. Okla. 1979) ("self-enforcing on the part of the judge"); Bradley v. Milliken, 426 F.Supp. 929, 931 (E.D.Mich. 1977) ( 11 28 U.S.C. Sec. 455 . places the issue of disqualification squarely upon the presiding judge.") In fulfilling its "duty," the court could have raised the matter here by describing his honor's prior-involvement in the case orally, or in writing, or by addressing it in an opinion. 5 In (at VII). See Attachment to this Memorandum. 5 Little Rock School District v. Arkansas Bd. of Educ., 902 F.2d 1289 (8thCir. 1990) (opinion by Judge Richard Arnold on whether he should recuse on several appeals); In Re National Union Fire Ins. Co., 839 F.2d 1226, 1231 (7thCir. 1988) ("The best practice is to disclose the details that the judge deems significant, to make a decision by one's own lights, and let 8 either case, the Joshua Intervenors would have been on notice of the matter and had the opportunity to address it, in the latter instance by seeking reconsideration (if the court had declined to recuse). The court did not, however, openly address the matter. 6 Intervenors' motion of October 25, 2002, sought a hearing on the recusal issue. Given the earlier silence on the matter, the motion asked that the court indicate whether upon assignment of the case his honor had considered his earlier role and, if so, the basis for his conclusion that 455(b) (2) did not require recusal. This did not seek an advisory opinion as later argued_ by LRSD, but instead the court's ruling or opinion on a matter it had a "duty" to address, the statute being self-executing. The court chose not to respond to these questions directly in its October 29 ruling. Nevertheless, it is our supposition from the content and the tone of that Order and the Order of November 12, 2002, that the court did recall its earlier service in this case as a lawyer, upon receiving this case by reassignment. On this supposition, which we do not, ;for multiple reasons, assert to be "a lead pipe certainty," the failure of Joshua Intervenors to raise the issue before the July hearing was the product, we respectfully counsel speak or keep silence as they will."); Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415, 1416 (Fed. Cir. 1989) (district judge made prompt oral disclosure of facts and her decision that she need not recuse). 6 The ''Commentary" to Canon 3(E) (1) of the ABA Code of Judicial Conduct provides: ' A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the que-stion of disqualification, even if the judge believes there 1s no real basis for dis~ alification.' 9 submit, of the court's silence, despite the self-executing nature of Section 455. 7 2. There Was Other Good Cause for Delay in Raising the Issue Joshua Intervenors did not raise the recusal issue before the July 2002 hearing. However, there is "good cause" for failing to - file at an earlier time. Holloway v. United States, 960 F.2d 1348, 1355 (8 t h Cir. 1992). Mr. Pressman and Mr. Hicks were not aware of the court's earlier role in this case until the latter part of October 2002. Mr. Walker had forgotten the matter; his memory was refreshed by Mr. Pressman's inquiry on October 22, 2002. 8 Objective bases render entirely reasonable Mr. Walker's sworn statement that he had - forgotten the court's earlier role. There was_ a tremendous level of activity in this case in the 14 year period between his honor's participation in the case in private practice and its reassignment to him in January 2002. Moreover, this activity was but one part of Mr. Walker's extensive practice. Furthermore, because Mr. Walker and Mr. Pressman were openly ;pessimistic about the prospects for success in his honor's court in their discussions before the July. 2002 hearing (see Pressman Declaration), it is unreasonable to conclude that Mr. Walker would not have at least raised the 7 Mr. Pressman was not aware of the court's prior role until stumbling upon this fact on October 18, 2002; and Mr. Walker did not recall it, until Mr. Pressman mentioned the point on October 22, 2002. See declaration and affidavit attached to the current motion. Mr. Hicks was unaware of this point until late October, 2002. Affidavit attached to motion. 8 See affidavits and .declaration attached to motion. 10 - possibility of seeking recusal for discussion, had he remembered his honor's earlier role in this case. See Motion, para. 10; Pressman Declaration, para. 5; Walker Aff., paras D. Prior to Recusing, th' e Court Should Vacate Orders, Rulings and Judgments Entered Since Receiving Assignment of the Case In Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 862-64 (1988), the Supreme Court addresses the question of remedies ~ where recusal is required. Although 455 defines the circumstances that mandate disqualification of federal judges, it neither prescribes nor prohibits any particular remedy for . a violation of that duty. Congress has wisely delegated to 'the judiciary the task of fashioning the remedies that will best serve the purpose of the legislation ... [~t 862] 455 does not, on its own, authorize the reopening of closed litigation. However, as respondent and the Court of Appeals recognized, Federal Rules of Civil Procedure 60(b) provides a procedure whereby, in appropriate cases, a party may be relieved of a final judgment ... (at 863,footnote omitted) ..... we conclude that in determining whether a judgment should be vacated for a violation of 455(a), it is appropriate to consider the risk of injustice to the parties in the particular case, the ri~k that the denial of relief will produce injus~ice in other cases, and. the risk of undermining the publ_ic' s confidence . in the judicial process ... [at 864] Intervenors respectfully su}:)mit that application of these standards warrants vacating of all orders, rulings, and judgments subsequent to the reassignment of this case to his honor. Joshua Intervenors rely upon the factor of ~injustice to [a party} in the particular case,'' namely, these intervenors. Where, as here, a party appeals a district court judgment, the 11 factor of : injustice r: (or prejudice) to a party may depend upon the issue(s) which will be the subject of the appeal. If the appeal challenges the granting or denying of a motion for summary judgment, for example, the appellate court can likely address an ,'injustice, '1 the matter being subject to de novo review. Parker v. Connors Steel Company, _855 F.2d 1510, 1526 (11th Cir. 1988); In Re School Asbestos Litigation, 977 F. 2d 764, 786,787 (3 r d Cir. 1992). In contrast, matters subject to only "'deferential review" on appeal _ are "more problematic. 11 In Re School Asbestos Litigation, 977 F. 2d at 787. The court's memorandum opinion of September 13, 2002 contains many pages of factual findings. While the appeal is at an early stage, it appears to Intervenors' counsel that it will involve a __ challenge to the correctness of some of the court's findings of fact, both those which are more specific and those which are summary in -nature. ( These contentions would be subject to "' deferential review '1 ( In Re School Asbestos Litigation, 977 F. 2d 764, 787 (1992) .:. - the "' clearly erroneous 11 standard. Lead counsel John W. Walker presented the vast bulk of intervenors evidence _before his : honor. This court viewed him through a particulai lens; it was an unfavorable image due to the court's perception of his role regarding attorney's fees. Moreover, it was a perception rooted in his honor's's earlier representation EXAMPLES: at 94(#22), at 100(#12), at 101 (#15,#16), at 102(#19), at 104 (#22), at 107(#27), at 108 (#28), at 126(#10), at 128(#13, at 129(#16), at 133(#24), at 143(#9), at 149(#19)~ 12 of Judge Woods, in this case, while in private. 10 This situation causes ~-injustice" (Liljeberg) because findings of fact will be subject to only _a limited review on appeal. To be sure, Judge Woods and his honor criticized all attorneys regarding fees; however, the matter is of greater concern at this stage for intervenors, as they had the burden of proof on the matter of compliance with the revised plan. Mem. Opinion, at 74. In this setting, the appropriate remedy is the vacating of all orders, rulings and judgments entered after reassignment of this case to his honor. Compare Preston v. United States, 923 F. 2d . 731, 734-36 (9 th Cir. 1991) (vacating judgment and remanding for ~retrial by a different judge~). Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862-1955 Mass. 405900 Respectfully submitted, J n 4):Shn W. Walker, 1723 Broadway Little Rock, AR 501-374-3758 Ark. 64046 ,,..,_ ____ r.,::_--1'-I&gt;-'""-._.&lt;..-;_ Rickey: icks Attar ey at Law 1100 orth University-, Suite 240 Little Rock; AR 72207 501-663-9900 P.A. 72206 10 This paragraph relies on the facts set forth in the motion, para. 13. 13 CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Memorandum has been forwarded to all counsel of record via United States mail postage prepaid on this ""]:'.2 day of November, 2002. 14 . I ~\\ i ~Ji i!i! i!1I{ _,~ .; :~ -. r -~,;,-~. .... : }, -.: :;.: t\i [;~~[ j ~t}:i :/( ,.,::. :.&gt;r:,~,t;.;itT'.~~:,c:::;;; :&gt;&gt;,&gt;,&lt;~-)-t:,,, ~-...... : ,. . . : : -: ;, . -~ .,.:.. --. ! : ,- : . ~-.:~)f -4;_/ ., ;,::/-- n I g tJ IN TBE UNITED STATE$ COURT OF APPEALS FOR THE EIGHTH CIRCUIT LITTLE ROCK. SCHOOL PIS'I'RIC'r APPELLEE vs. POLASKI . COUNTY SPECIAL SCSCiOL scaoot DISTRICT .NO, 1, et.. al. APPELLANTS) ) ) MRS . LORENE JOSHUA' et. al. . ) ) INT&amp;~VENORS) IN RE: LITTLE ROCK SCHOOL DISTRICT, PETITIONER PET TT ION FOR WRI'.I' OF M.A.NDAJ.\1US The above-named petition~r, the Little Rock School Di.strict , ~ ~ . herein applies for a writ of mandamus pursuant to Section 1651 of Title 28, United States Code (28 O.S.C. 1651) and Rule 211a) of tbe Fed~ra~ Rules of Appelfate Proced~re, ~ir~~t~d to. the ' ! Honorable Henry Woods, Jud~e of the United States District Court for th~ Eastern District of Arkansas, Wes~ern Division. In support cf this application~ tetitioner st~tes~ I. STATEMENT OF FACTS l. In July of 1986, petitioner submitted its faculty assignment plan for the Little Rock School District: to the district. court. (Pe~itioner's Exhibit parts cf r.~SD Pl~n J -1- II . STAT&amp;~ENT OF ISSUES PRESENTED 13. The petitioner filed its mot~on for the district . court to recuse . i tself on .P-_pri_l 22, 198 7 . The district court denied _ the motion on April 30 1 1987. pe-ti tion is whether the q.istrict court erre9 in fail lng to gr2.nt LR.SD' s moti-on .for recusal. tf ' :#\j TII. REAS-ONS FOR GRANTING !(_EL TEF SOOGE'l' u u f . -, ! r:- !1 .' 14. . The district court, by enga-g.ing in ex rerte communications, by commenting to the public and the press regarding the propriety of LRSD 1 s faculty assignment plan , by attempting to conduct its own discovery and consider evidence outside the record, and by sending letters and issuing orders stating that petition~r has violaied previous orders without hearing any evidence, has established the appearance of -impartiality in violation of ''28 O.S.C. 455(al and the Canons of -; Judicial Eihics, Canons l, 2: and 3 (A){4l . WHEREFORE, petitioner respectfully prays that a writ of mandamus be .issue.cl -by this cclirt directed to the Hono:rable Henry Woods, Judge cf the United St~tes District Court for the Eastern . I District of Arkans~s, West~rn :Division, to recuse himself , frorn presiding over these proceedings and for such further relief as tnis court des~s just ana proper. -5- - --------- _sT~I'.EMENT OF THE CASE The Proceedinqs Below This Petition seeks to have The Honorable Henry Woods disqu~lified from presiding over this school desegregation case. LRSD filed a Motion for the district court to Recuse pursuant to 28 U.S.C. 45S(a), alleging that the district court had demonstrated the appearance of ~rejudice through his actions and extrajudicial comments in response to LRSD's faculty assignment plan. The district court denied LRSD's motion on April 30, 1987 . See Little Rock School District v. Pulaski Countv s-oecia1 School District, No. LR-C_:_82-866 , (E.D . . Ark. April 30, 1987) (Order Denying Recusal} . Statement of Facts This protracted and complex school desegregation case ,,. began in 1982 when th_e LRSD and the Joshua Intervenors filed this action against the Pulaski County Special . School District ( "PCSSD" l and the North Little Rock Schoel District ("NLRSD''l, claiming that ithey had failed in their i affirmative duty to desegregate their schools. Afte-e a long and complicated trial, the district court held that the PCSSD and NLRSD had indeed fallen short of their respective respor-sibilities to desegregate their schools and ' ordered that all three school districts be cqnsolidated. Liti:le vii lt"Q . {!'4" $J -i:: . sn.U:,-.,s, 01.s ~~ t;::D 1~-;: Dis ; Hie:+- C(JuRr NO AR.ivwSA.s IN THE UNITED STATES DISTRICT COURTJAMEs V 2 B 2002 EASTERN DISTRICT OF ARKANSAS By: V\! MccoR1, WESTERN DIVISION i-fACK, CLf:Rk LITTLE ROCK SCHOOL DISTRICT RECEIVED V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL . MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL DEC - 2 2002 OFFICEOF DESEGREGATION MONITORING DEFENDANTS INTERVENORS INTERVENORS PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR THE VACATING OF ORDERS AND RECUSAL The LRSD for its Response states: 1. Joshua's Motion should be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C. 455(a) and (b). 2. The LRSD's memorandum brief in support of this Response is hereby incorporated by reference. WHEREFORE, the LRSD prays that Joshua's Motion be denied; that the LRSD be awarded its costs and attorneys' fees expended herein; and that the LRSD be granted all other just and proper relief to which it may be entitled. F \HOME\FENOLEY\LRSD 200 I \umtary-rcsponse-mot-reclUc: wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FR1DA Y, ELDREDGE &amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501 - 11 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on November 26, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F\HOM.E\FENDLEY\LRSO 2001\uniwy.response-mol-rccusc: wpd 3 - - - - - - - - - ---- - - - ----- -- ~#RG,(4,5D IN THE UNITED STATES DISTRICT COURT tsrR,cr~ EASTERN DISTRICT OF ARKANSAS Nov 2 6 &amp;\s WESTERN DIVISION JAME~ I, .. 2002 By .\.. M"r- ,, ,.., LITTLE ROCK SCHOOL DISTRICT -~ ).E~~IFF LJ;,;1::-c~ V. LR-C-82-866 RECEIVED PULASKI COUNTY SPECIAL SCHOOL OEC .. 2. 2002 . DISTRICT NO. 1, ET AL DEFENDANTS Orf\Ct Of MRS. LORENE JOSHUA, ET AL ltatll\r',.~\TlOM MOMllORl1l&amp; JNTER VENO RS KATHERINE KNIGHT, ET AL JNTERVENORS MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR THE VACATING OF ORDERS AND RECUSAL Joshua's Motion should be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C. 455(a) and (b). Each of these grounds for denial will be discussed in tum below. A. It is too late for Joshua to seek recusal based on the Court's representation of the Honorable Herny Woods over a decade ago. The Eighth Circuit has consistently held that motions to disqualify pursuant to 28 U.S.C. I 455(a) and (b) must be filed in a timely m~er. Holloway v. United States, 960 F.2d 1348 (8th Cir.1992)( claims under 28 U.S.C. 455 must be made in a timely manner); Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407; 1414 (8th Cir.1983) ("Although 455 does not include an explicit time limitation, we believe that a timeliness requirement is appropriate., ... "}; United States v. Bauer, 19 F.3d 409, 414 (8th Cir.1994) ("This court has held that claims under 455 'will not be considered unless timely made.' ") (quoting Holloway). Parties are required to apply for recusal "at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim," Apple v. Jewish Hosp. &amp; Medical - Ctr., 829 F.2d 326, 333 (2nd Cir.1987), for two reasons: ( 1) a prompt application affords the district judge an opportunity to assess its merits, and (2) a prompt application avoids the risk that a party is holding back a recusal motion as a fall-back position in the face of an adverse ruling. See In re International Business Machines Corp., 45 F.3d 641,643 (2nd Cir.1995); accord In re Cargill, Inc., 66 F.3d 1256, 1262-63 (1st Cir.1995) ("In the real world, recusal motions are sometimes driven more by litigation strategies than by ethical concerns."); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir.1986) ("Counsel, knowing the facts claimed to support a . 455(a) recusal for appearance of partiality may not lie in wait, raising the recusal issue only after learning the court's ruling on the merits."), cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987). The latter concern is particularly relevant in a long-standing case such as this. In affirming Judge Woods' decision not to disqualify himself, Judge Richard Arnold wrote: At the outset, we note the irony that most of the major parties to this litigation have at some point sought the removal of the trial judge. Not surprisingly, the parties have generally discovered grounds for disqualification at approximately the same times This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resources.</dcterms_description>

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