In Re Boston's Children Firs

244 F.3d 164 (1st Cir. 2001)

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Nature of the Case

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Facts

Ps filed suit challenging Boston's elementary school student assignment process on June 21, 1999, claiming that they had been deprived of preferred school assignments based on their race, in violation of state and federal law. The case was assigned to District Judge Nancy Gertner. On May 19, 2000, the district court addressed a motion to dismiss in which Ds argued that 'plaintiffs lack standing to sue because they would not have received their preferred school assignments anyway, even if racial preferences were not used' in the assignment formula. The district court found that five of the ten individual plaintiffs (1) had not applied to change schools for the 1999-2000 school year, and thus lacked standing to seek injunctive relief. The court allowed the remaining Ps to conduct further discovery prior to determining whether they had standing. The court found that because all of the plaintiffs 'may have a claim for damages,' it could not dismiss any of the damages claims on standing grounds. Ps also sought class certification. In a June 20, 2000 status conference the court indicated that it would not rule on class certification until it had received a written motion (which had not yet been submitted) that analyzed how the alleged class complied with the requirements of Federal Rule of Civil Procedure 23. The court also offered petitioners a choice: it would either rule on their pending motion for a preliminary injunction at that time, despite the 'relatively truncated record,' or it would defer the motion until further discovery had occurred. Petitioners chose to conduct further discovery, and the motion for a preliminary injunction remains pending. (3) In a procedural order dated June 29, 2000, the district court set the course of future litigation: it would allow further discovery on the issue of standing, it would determine standing, and if any of the plaintiffs had standing, class discovery and a hearing with respect to class certification would follow. Despite the schedule proposed in this procedural order, Ps filed a motion for class certification dated July 26, 2000. On July 26, the Boston Herald printed an article in which counsel for petitioners decried the district court's failure to immediately certify a class. Counsel made the provocative claim that 'if you get strip-searched in jail, you get more rights than a child who is of the wrong color,' a reference to the facts of the cited Mack case that counsel was using for class certification. According to [counsel's] motion, Gertner refused to hear arguments to expand the school suit to a class action because the affected students may no longer have standing in the case. But in the strip-search case [Mack], Gertner held just the opposite opinion. Judge Gertner responded to what she viewed as inaccuracies in the July 26 article. She noted, correctly, that she had not denied class certification, but had postponed ruling on class certification until further discovery had occurred. She also noted that as of the date of the reporter's interview with counsel, counsel for petitioners had not yet filed the motion in question. She included with the letter a copy of her procedural order providing for a hearing on class certification after the issue of standing had been resolved. The judge also gave a telephone interview and was quoted in the paper arguing the merits of her position. Ps then moved that the judge recuse herself because her 'impartiality might reasonably be questioned.' 28 U.S.C. 455(a). Specifically, petitioners claimed that the ex parte conversation between Judge Gertner and the Herald reporter, in which she described the current proceeding as 'more complex' than Mack, was 'specifically proscribed by the Code of Judicial Conduct,' constituted a comment on the merits of a pending motion, and meant that the court had 'placed itself in the apparent position of advising the defendants.' Judge Gertner denied the motion. She claimed that 'nothing in the Code of Judicial Conduct' made such a correction improper; moreover, that it was her 'obligation to make certain that people receive accurate information regarding the proceedings over which [she] presides.' P filed a writ of mandamus.