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08/10/12 - MOTION TO STRIKE RESPONSE TO:  Motion To Strike Motion To Dismiss
 

08/10/12 - MOTION TO STRIKE RESPONSE TO: Motion To Strike Motion To Dismiss

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    08/10/12 - MOTION TO STRIKE RESPONSE TO:  Motion To Strike Motion To Dismiss 08/10/12 - MOTION TO STRIKE RESPONSE TO: Motion To Strike Motion To Dismiss Document Transcript

    • THIS DOCUMENT MAY ALSO BE FOUND AT: https://secure.filesanywhere.com/fs/v.aspx?v=8a71638e5b5e71b7a6af
    • 08/10/12 – USPS PROOF OF MAILING RECEIPT – USDC Southern District Mississippi (Jackson)
    • VOGEL DENISE NEWSOME Post Office Box 14731 Cincinnati, Ohio 45250 (601) 885-9536 or (513) 680-2922 August 10, 2012VIA PRIORITY MAIL: Tracking No. 03113260000101213563United States District Court - Southern District (Jackson, MS)ATTN: J. T. Noblin (Clerk of Court)500 E. Court Street, Suite 2.500Jackson, Mississippi 39201 RE: Vogel Denise Newsome v. Page Kruger & Holland P.A., et al., Civil Action No. 3:12-cv-00342, United States District Court Southern District (Jackson, MS) PLEASE NOTE: Newsome is requesting to be advised of ANY/ALL Conflict-Of-Interests in regards to this lawsuit.Dear Mr. Noblin: Attached please find the following document(s): 1) DVD containing Newsome’s Motion to Strike Defendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss and Memorandum In Support Of Motion To Dismiss; Motion To Strike Defendants’ Response In Opposition To Plaintiff’s Motion For Rule 11 Sanctions Of And Against Defendants; and Motion To Strike Defendants’ Response In Opposition To Plaintiff’s Motion For Default Judgment; Plaintiff’s Motion for Rule 11 Sanctions of and Against Defendants; and Motion for Default Judgment (Jury Trial Demanded in this Action) and supporting Memorandum Brief with EXHIBITS in accordance with the Federal Rules of Civil Procedure – i.e. for Costs efficiency purposes. Newsome encloses TWO copies of the FIRST Page only of her pleading. Please stamp“FILED” one of these copies and return to her in in the self-addressed postage-paid envelopeenclosed. By copy of this letter, Newsome is providing opposing counsel with a copy of the abovereferenced pleading on DVD as well. Newsome has in good faith also placed these pleadings at thefollowing locations via the INTERNET due to the PUBLIC/GLOBAL/INTERNATIONAL interestsin matters involving her, United States of America President Barack Obama, United States ofAmerica Government, Florida A&M University Robert Champion matter, Trayvon Martin/GeorgeZimmerman matter, etc. which appears to have a DIRECT impact and/or connection to the recentand VICIOUS attacks and ONGOING Conspiracies (i.e. involving BAKER DONELSONBEARMAN CALDWELL & BERKOWITZ and their CLIENTS and PARTNER Law Firms asPHELPS DUNBAR, etc.) that have been leveled against Newsome for sharing information that arematters of PUBLIC interests. Therefore, please feel free to retrieve these pleadings, should problemsoccur with viewing, from: http://www.slideshare.net/VogelDenise/reserved-for-081012-motion-tostrikeresponse-pkh and https://secure.filesanywhere.com/fs/v.aspx?v=8a71638e5b5e71b7a6af.
    • IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT – JACKSON DIVISIONVOGEL DENISE NEWSOME PLAINTIFFV. CIVIL ACTION NO. 3:12-cv-00342PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTSPLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION TO STRIKEDEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR RULE 11 SANCTIONS OF AND AGAINSTDEFENDANTS; AND MOTION TO STRIKE DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT; PLAINTIFF’S MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION)1 COMES NOW Plaintiff Vogel Denise Newsome (―Newsome‖ and/or ―Plaintiff‖) WITHOUT waiving herOBJECTIONS to Judge Tom S. Lee presiding over this matter in that a CONFLICT-OF-INTEREST exist whichrequires RECUSAL as well as Newsome’s OBJECTIONS to Magistrate assignment in this matter and files this, herMotion to Strike Defendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss andMemorandum In Support Of Motion To Dismiss; Motion To Strike Defendants’ Response In Opposition To Plaintiff’sMotion For Rule 11 Sanctions Of And Against Defendants; and Motion To Strike Defendants’ Response InOpposition To Plaintiff’s Motion For Default Judgment; Plaintiff’s Motion for Rule 11 Sanctions of and AgainstDefendants; and Motion for Default Judgment (Jury Trial Demanded in this Action) (―MTS-DEFRIOTMTSMTD. ..‖) in the preservation of her rights and pursuant to Federal Rules of Civil Procedure (―FRCP‖) Rule 12(F) governingmatters regarding motion to strike; FRCP Rule 12(G) governing matters regarding consolidation of defenses andobjections; FRCP Rule 11 governing sanctions and/or signing of pleadings, motions, and other documents; FRCPRule 55 governing default judgments; Rule 38 of the FRCP, and the Fourteenth and Seventh Amendment to theConstitution. In support of this instant MTS-DEFRIOTMTSMTD. . ., Newsome attaches (should it be requiredpursuant to 28 U.S.C.A. § 144) her Affidavit at EXHIBIT “A” – incorporated herein by reference as if set forth infull herein. In further support thereof Newsome states: 1. This instant ―MTS-DEFRIOTMTSMTD. . .‖ is submitted in good faith and is not submitted for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United States. 2. Newsome attaches her supporting Affidavit at EXHIBIT “A” which is incorporated herein by reference as if set forth in full. 1 NOTE: Boldface, caps, small-caps, italics, highlights and underline represents ―emphasis‖ added. Page 1 of 23
    • 3. UNDISPUTED IS THE FACT: That Defendants Page Kruger & Holland, P.A., Thomas Y. Page, Louis G. Baine III, and Linda Thomas (hereinafter, ―Named Defendants‖) and their Legal Counsel/Attorney’s Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh do NOT dispute Newsome’s TIMELY demand as required by statutes/laws for a JURY Trial on any and all triable issues raised allowed under Rule 38 of the FRCP, the Seventh Amendment of the United States Constitution and other statutes/laws governing said matters. See EXHIBIT “B” – Rule 38 of the Federal Rules of Civil Procedure which states in part: Rule 38. Right to a Jury Trial; Demand (a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution—or as provided by a federal statute—is preserved to the parties inviolate. (b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule 5(d). (c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may—within 14 days after being served with the demand or within a shorter time ordered by the court—serve a demand for a jury trial on any other or all factual issues triable by jury. and EXHIBIT “C” – Seventh Amendment of the United States Constitution attached hereto and incorporated by reference as if set forth in full herein.4. UNDISPUTED IS THE FACT: That a CONFLICT-OF-INTEREST presently exists with the assignment of this lawsuit to Judge Tom S. Lee. The record evidence CLEARLY supports that Newsome has timely, properly and adequately NOTIFIED this Court of the Conflict-Of- Interest regarding Judge Tom S. Lee. See Doc. No. 2 – “Motion Conflict-Of-Interest Information. . .” As a direct and proximate result of this Court to comply with the MANDATORY requirements of statutes and laws governing said matters, Newsome has been irreparably injured/harmed and deprived rights – i.e. equal protection of the laws, privileges and immunities, and due process of laws guaranteed under the United States Constitution and other governing laws. As a direct and proximate result of this Court’s unlawful/illegal practices and failure to comply with the MANDATORY requirements of 28 U.S.C.A. § 455 and any and all applicable statutes/laws governing said matters, Newsome has been irreparably injured/harmed and deprived rights – i.e. equal protection of the laws, privileges and immunities, and due process of laws guaranteed under the United States Constitution and other governing laws. See EXHIBIT “D” – FRCP Rule 26 and EXHIBIT “E” - 28 U.S.C.A. § 455 respectively attached hereto and incorporated by reference as if set forth in full herein. Phillips v. Joint Legislative Committee on Performance and Expenditure Review Of The State of Mississippi, et al., 637 F.2d 1014 (5th Cir. 1981) - [3] Under statute requiring a judge to disqualify himself in any proceeding in which his impartiality might be reasonably questioned, judge need not accept all the allegations by moving party as true and, in fact, no motion at all is required; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. 28 U.S.C.A. § 455. Page 2 of 23
    • . . . [3] Congress rewrote the second statute, section 455, in 1974. Subsection (b) of that section lists a number of specific situations in which a judge must recuse himself. . .Subsection (a), a more general provision, requires that Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455, unlike section 144, does not stipulate a formal procedure by which it must be raised. Like section 144, however, it may be raised by motion. Davis, 517 F.2d at 1051. Substantively, the two statutes are quite similar, if not identical.[FN6] FN6. To the extent that there is a difference, section 455 imposes the stricter standard: a movant under section 144 must allege facts to convince a reasonable person that bias exists, Parrish, 524 F.2d at 100, while under the broader language of section 455, he must show only that a reasonable person ―would harbor doubts about the judges impartiality‖, Potashnick v. Port City Constr. Co., 5 Cir. 1980, 609 F.2d 1101, 1111 (emphasis added), cert. denied, - - U.S. --, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). See Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 243-50 (1978). See also Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745-50 (1973). On the other hand, section 455, unlike section 144, does not require the judge to accept all allegations by a moving party as true. Indeed, the section requires no motion at all; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. See Fredonia Broadcasting Corp. v. RCA Corp., 5 Cir. 1978, 569 F.2d 251, 254-57, cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1979). Section 144, by contrast, requires allegation by affidavit within a stringent time limit and allows a party only one such affidavit in any case. If a party could bind a judge by his factual allegations in a section 455 motion, free from the formal requirements and more demanding standard of proof of section 144, the result would be a virtual open season for recusal. See 46 U.Chi.L.Rev. at 250. [4] The alleged bias of a judge must be personal as distinguished from judicial in nature in order to require recusal. 28 U.S.C.A. §§ 144, 455. - - See EXHIBIT “F” – Phillips matter attached hereto and incorporated by reference as if set forth in full herein.Clearly the INTEGRITY of this Court has been compromised and the appearance of IMPROPRIETYis inevitable through Judge Tom Stewart Lee’s acts and projects an appearance that this Lawsuit can bewon through criminal acts – i.e. through bribes, blackmail, extortion, intimidation, threats, etc. - byDefendants and their counsel. Therefore, Judge Lee’s acts CLEARLY VIOLATE the Mississippi Code ofJudicial Conduct. See EXHIBIT “G” – Code of Judicial Conduct (Mississippi) attached hereto andincorporated by reference as if set forth in full herein. 28 USC § 455 - Disqualification of justice, judge, or magistrate judge (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; Page 3 of 23
    • (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding. (c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. . . . See EXHIBIT “E” - 28 USC § 455 attached hereto and incorporated by reference as if set forth in full herein.MANDATORY DISQUALIFICATION is required when ―ONE‖ of the grounds specificallyenumerated in statute applies – i.e. for instance, as in this instant lawsuit, grounds for Judge TomStewart Lee’s disqualification is required pursuant to 28 USC § 455 and/or the applicable statutes/lawsgoverning said matters: Renteria v. Schellpeper, 936 F.Supp. 691 (1996) - [6] If one of grounds specifically enumerated in statute applies, disqualification of judge is mandatory whether or not reasonable person would question judges impartiality. 28 U.S.C.A. § 455(b). . . . [6] . . .If one of the provisions of section 455(b) applies then disqualification is mandatory whether or not a reasonable person would question the judges impartiality. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 859 n. 8, 108 S.Ct. 2194, 2202 n. 8, 100 L.Ed.2d 855 (1988).UNDISPUTED IS THE FACT: Judge Tom S. Lee is adamant and it appears isrefusing to RECUSE himself as required by statutes/laws governing said matters. Therefore, it appearsthat the proper INVESTIGATION(S) as with other CORRUPT Judge(s) as G. Thomas Porteous, may benecessary in having Judge Lee removed from lawsuits involving Newsome. Furthermore, involvingmatters of PUBLIC Interest in which Judge Lee is associated may have to be resolved throughIMPEACHMENT proceedings. Clearly it is obvious that Judge Tom Stewart Lee is placing hisJUDICIAL FATE in the “banking” on and/or “placing all of his eggs” in the basket/relationship ofBaker Donelson Bearman Caldwell & Berkowitz. Newsome have already initiated further legal andproper CONGRESSIONAL actions involving Judge Tom Stewart Lee. Even if the United StatesCongress may be dragging its feet and/or attempting to OBSTRUCT such matters, ALL that is requiredof Newsome is to PROVE by facts, evidence and legal conclusions that proper legal recourse forredress has been met. See pleading filed at Doc. No. 2 of this instant Lawsuit – See EXHIBIT “H” –Docket Sheet for this action attached hereto. Newsome’s burden has been met and this Court has beentimely, properly and adequately notified of same. It matters NOT that there are attempts by law firmssuch as Baker Donelson Bearman Caldwell & Berkowitz and members of such CONSPIRACIES thatmay be members of the United States of America Congress, Supreme Court of the United States ofAmerica, etc. OBSTRUCTING the ADMINISTRATION of JUSTICE, Newsome need only PROVEand SHOW through EVIDENCE that she has initiated legal actions and has done so.Legal actions which clearly appears may require additional measures permissible under thestatutes/laws governing matters when the United States of America’s Congress, etc. FAILS to act toprotect the INTEREST of the PEOPLE and/or PUBLIC-AT-LARGE! Page 4 of 23
    • 5. Judge Tom S. Lee, as a matter of law, is DISQUALIFIED from presiding over this lawsuit in that he has is BIAS and PREJUDICE toward Newsome, has a FINANCIAL/PECUNIARY interest in this lawsuit, has KNOWLEDGE of extrajudicial matters regarding Newsome to which he is and/or may be a party, may be a MATERIAL WITNESS in legal proceedings to which he has been named in other lawful actions brought by Newsome, has been appointed for purposes of COMPROMISING and TAINTING these proceeding, and has FAILED to NOTIFY all parties to this lawsuit as to the CONFLICT-OF- INTEREST and the grounds requiring his DISQUALIFICATION. Should it become necessary to bring intends to SUBPOENA any and/or all of legal against Judge Tom S. Lee, Newsome his personal financial records (i.e. Tax Returns, Stocks Portfolio, etc.) for presentation to JURY in the TRIAL on this matter.6. Defendants’ Page Kruger & Holland, P.A., Thomas Y. Page, Louis G. Baine III, and Linda Thomas and their Legal Counsel/Attorney’s Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh at the time of executing and submitting Defendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss and Memorandum In Support Of Motion To Dismiss; Defendants’ Response In Opposition To Plaintiff’s Motion For Rule 11 Sanctions Of And Against Defendants; and Defendants’ Response In Opposition To Plaintiff’s Motion For Default Judgment KNEW that it was frivolous, WITHOUT merits and provided for purposes of: purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to Named Defendants and their Counsel Therefore, warranting the relief set forth in this instant ―MTS-DEFRIOTMTSMTD. . .‖7. Pursuant to Rule 8 (i.e. specifically (b)) of the Federal Rules of Civil Procedure (―FRCP‖), Named Defendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss and Memorandum In Support Of Motion To Dismiss; Defendants’ Response In Opposition To Plaintiff’s Motion For Rule 11 Sanctions Of And Against Defendants; and Defendants’ Response In Opposition To Plaintiff’s Motion For Default Judgment fail to meet the pleading requirements for responses. Said Rule 8 states in part: Rule 8. General Rules of Pleading (a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. (b) Defenses; Admissions and Denials. (1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general Page 5 of 23
    • denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. (c) Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: • accord and satisfaction; • arbitration and award; • assumption of risk; • contributory negligence; • duress; • estoppel; • failure of consideration; • fraud; • illegality; • injury by fellow servant; • laches; • license; • payment; • release; • res judicata; • statute of frauds; • statute of limitations; and • waiver. (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. (d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency. (1) In General. Each allegation must be simple, concise, and direct. No technical form is required. (2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency. (e) Construing Pleadings. Pleadings must be construed so as to do justice.See EXHIBIT “I” – Rule 8 of FRCP attached hereto and incorporated by reference as if set forth in fullherein. Page 6 of 23
    • 8. While Newsome’s Motion To Strike Motion To Dismiss and Memorandum In Support Of Motion To Dismiss; Plaintiff’s Motion For Rule 11 Sanctions Of And Against Defendants; and Plaintiff’s Motion For Default Judgment (hereinafter, ―MTSMTD‖) meet the pleading requirements of Rule 8 of the FRCP, neither Defendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss and Memorandum In Support Of Motion To Dismiss; Defendants’ Response In Opposition To Plaintiff’s Motion For Rule 11 Sanctions Of And Against Defendants; nor Defendants’ Response In Opposition To Plaintiff’s Motion For Default Judgment address the issues raised NOR rebut the FACTS, EVIDENCE/EXHIBITS and LEGAL CONCLUSION supporting Newsome’s MTSMTD. This Court’s record/docket in this lawsuit remains SILENT on the issues raised and the TIME for Named Defendants to provide a REBUTTAL to each and every issues raised has EXPIRED/LAPSED – i.e. has been WAIVED by Named Defendants. Therefore, as a matter of law, statements/averments in Newsome’s MTSMTD are deemed ADMITTED and/or TRUE!9. Named Defendants and their Legal Counsel/Attorney Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh do NOT rebut and/or dispute that a ―CONFLICT-OF-INTEREST‖ exist and that Judge Tom S. Lee is adamant about proceeding in this lawsuit with KNOWLEDGE that he is MANDATORILY required to recuse himself. Furthermore, it is UNDISPUTED that Named Defendants and their Legal Counsel/Attorneys DELIBERATELY and with MALICIOUS intent, did KNOWINGLY fail to advise Newsome of the Conflict-of-Interest and, in FURTHERANCE of CONSPIRACIES (i.e. in which TOLLING DOCTRINE regarding statute of limitation applies to RESTART from each OVERT act of Named Defendants, their Counsel/Attorneys and those PARTY to such unlawful/illegal criminal acts) are proceeding before this Court and in this lawsuit in violation of the Mississippi Rules of Professional Conduct, Code of Judicial Conduct (Mississippi) as well as other statutes/laws governing said matters.10. In accordance with the statutes/laws governing said matters, Newsome has timely, properly and adequately PRESERVED said issues such as the CONFLICT-OF-INTEREST and other issues raised in her Motions to Strike the Defendants’ pleadings filed in this lawsuit. See for instance EXHIBIT “J” – “Waiver Of Loss Of Right To Disqualify Judge By Participation In Proceedings . . .” attached hereto and incorporated by reference as if set forth in full herein.11. UNDISPUTED IS THE FACT: That Defendants’ Motion to Dismiss and supporting Memorandum Brief in this lawsuit is premised on claims brought under 42 U.S.C. § 1983 against “STATE” and/or ―Government‖ employers/officials/employees. UNISPUTED is the fact that Newsome’s instant lawsuit is a premised on 42 U.S.C. § 1981 – Equal Rights Under The Law which allows for one to ―to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .‖ Therefore, NOT even with a MAGNIFYING GLASS will a JURY and Court find any such § 1983 claims as asserted by the Defendants in this lawsuit.12. UNDISPUTED IS THE FACT: Due to the Conflict-Of-Interest, BIAS, PREJUDICE towards Newsome, FINANCIAL/PECUNIARY interest and other reasons known to Judge Tom S. Lee requiring his DISQUALIFICATION and/or RECUSAL, as a matter of law, he LACKS jurisdiction to preside as Judge in this instant Lawsuit and the matters therein.13. For this Court to grant Defendants’ Motion to Dismiss, Newsome would be prejudiced and deprived equal protection of the laws, equal immunities and privileges and due process of laws. Rights secured/guaranteed under the United States Constitution and other governing laws. Page 7 of 23
    • I. MOTION TO STRIKE/ CONSOLIDATION OF DEFENSES Pendleton County v. Amy, 80 U.S. 297 (1871) - Defendants pleas which were inartistically framed and were argumentative and set up nothing which could not have been taken advantage of for what it was worth under the general issue might have been stricken from the record on motion. Brown v. Lamb, 112 Ohio App. 116, 171 N.E.2d 191 (1960) - (n.4) Motions to strike pleadings and papers from the files are ordinarily employed to strike pleadings for failure to comply with previous orders . . . or to test its form with respect to certification, and the office of such motions is not to inquire into the merits of the case. (n.8) A pleading is “frivolous” when it is clearly insufficient on its face and does not controvert material points of the opposite pleading and is presumably interposed for mere purposes of delay or to embarrass the opponent. Sherrill v. Stewart, 21 So.2d 11 (Miss.,1945) - A ―frivolous pleading‖ is one so clearly untenable or the insufficiency of which is so manifest upon bare inspection of pleading that court is able to determine its character without argument or research. McDowell v. Minor, 131 So. 278 (Miss.,1930) - Where pleading is manifestly sham and frivolous, motion to strike is available. Pursuant to Rule 12 (F) of the Federal Rules of Civil Procedure, Newsome through this MTS-DEFRIOTMTSMTD. . . moves this Court to strike the statements, contents and any supporting exhibits ofDefendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss and Memorandum In SupportOf Motion To Dismiss; Defendants’ Response In Opposition To Plaintiff’s Motion For Rule 11 Sanctions Of AndAgainst Defendant and Defendants’ Response In Opposition To Plaintiff’s Motion For Default Judgment(―DEFRIOTMTSMTD. . .‖). Under said Rule it states: Rule 12(F) Motion to Strike. The Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading.Therefore, in an effort to provide specificity Newsome moves for the striking of contents/statements in―DEFRIOTMTSMTD. . .‖ in that these pleadings are IRRELEVANT and IMMATERIAL to this instant lawsuitand CLEARLY ―FAIL‖ to address and/or CONTEST Newsome’s Motion To Strike Motion To Dismiss andMemorandum In Support Of Motion To Dismiss; Plaintiff’s Motion For Rule 11 Sanctions Of And AgainstDefendants; and Plaintiff’s Motion For Default Judgment (hereinafter, ―MTSMTD‖) In further support of thisinstant MTS-DEFRIOTMTSMTD. . ., Newsome moves this Court to strike the contents/statements for the followingreasons: Page 8 of 23
    • A. RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS (“RIOTMTSMTD”) The entire contents of ―RIOTMTSMTD‖ which include; however, is not limited to the Style and Headings ofsaid pleading in that it is: (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided forpurposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness,unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to NamedDefendants and their Counsel and the following: 14. Opening paragraph on Page 1 which begins with ―COME NOW, Defendants, Page Kruger & Holland, P.A. (―PKH‖), Thomas Y. Page, Louis G. Baine, III, and Linda Thomas‖ in that it is - (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to Defendants and their counsel (Phelps Dunbar LLP, W. Thomas Siler, Jr. and Jason T. Marsh [hereinafter, ―Phelps Dunbar,‖ ―Siler‖ and/or ―Marsh‖)] hereinafter collectively known as “STRICKEN STATEMENT CLAUSE.” 15. ¶1 on Page 1 which begins with, ―On July 17, 2012, Plaintiff filed an incomplete, single page document‖ and the referenced Footnote 1 in that they are - “STRICKEN STATEMENT CLAUSE.” Named Defendants and their counsel Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh FRIVOLOUSLY and MALICIOUSLY attempt to take advantage of an error made by the Clerk of the Court. Furthermore, if there was any such error by the Clerk in the uploading of documents provided, counsel for Named Defendants should have proceeded in good faith to NOTIFY the Court of error. As the Court, Named Defendants’ counsel obtained Newsome’s MTSMTD and supporting Exhibits on a CD/DVD. Upon checking with the Court, it is Newsome’s understanding that any issue regarding the uploading and/or filing has been resolved. Moreover, the Docket Entry reflecting: DOCKET ANNOTATION as to #12: This docket entry failed to select all pages of the document. Court staff has correctly refiled the document. – See EXHIBIT “H” at 08/10/2012 entry attached hereto and incorporated by reference as if set forth in full herein. Therefore, it did NOT preclude Named Defendants from providing a response to Newsome’s MTSMTD in accordance with the pleading requirements of Rule 8 of the FRCP. Furthermore, Named Defendants counsel was provided with additional information that Newsome’s MTSMTD and supporting Exhibits may be obtained from the following links should problems arise with accessing the documents provided on CD/DVD: http://www.slideshare.net/VogelDenise/071412-motion-to-strike-page-kruger- holland-matter and/or https://secure.filesanywhere.com/fs/v.aspx?v=8a706a8d5e6473bcaa69. To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” Furthermore, Named Defendants’ FAIL to REBUT the Page 9 of 23
    • issues, evidence and legal conclusions provided in Newsome’s MTSMTD; therefore, a reasonable mind may conclude that averments/statements in MTSMTD are deemed ADMITTED/TRUE!16. ¶2 on Page 1 which begins with, ―Plaintiff does not offer any legal authority to refute the legal defenses‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” Furthermore, as a matter of law and pursuant to Rule 12(F), DAHH when a Motion to Strike is filed, it is done so with EXACT SPECIFICS as to what is being requested to be stricken and the facts, evidence and/or legal conclusion to support same.17. On Page 2, continuance of paragraph from Page 1 which states, ―Defendants in their Motion to Dismiss‖ along with Footnotes 2, 3 and 4 in that they are - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!”18. ¶3 on Page 2 which begins with, ―Plaintiff has filed her Motion to Strike,‖ Footnote 5 and Exhibits 1, 2 and 3 in that they are - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!”19. ¶4 on Page 2 which begins with, ―Here, Defendants filed their Motion to Dismiss‖ and Footnote 6 in that they are - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!”20. On Page 3, continuance of paragraph from Page 2 which states, ―motion to dismiss under,‖ in that it is - “STRICKEN STATEMENT CLAUSE.” Page 10 of 23
    • To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” 21. On Page 3, paragraph which begins with, ―WHEREFORE, PREMISES CONSIDERED, Defendants, Page Kruger & Holland, P.A.‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” 22. On Page 3, paragraph which begins with, ―Further, Defendants request the Court find‖ and the remaining contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” 23. On Page 4, the Certificate of Service and the contents therein in that it is - “STRICKEN STATEMENT CLAUSE.” Now that the statutes/laws governing said matters require the STRIKING of the entire contents, statements,exhibits, etc. as noted above, there remains NO legal/lawful pleading of record. Therefore, Newsome is entitled tothe relief (Rule 11 Sanctions and DEFAULT Judgment, etc.) sought herein. B. RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS (“RIOTMFR11”) The entire contents of ―RIOTMFR11‖ which include; however, is not limited to the Style and Headings ofsaid pleading in that it is: (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided forpurposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness,unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known toDefendants and their Counsel and the following: Page 11 of 23
    • 24. Opening paragraph on Page 1 which begins with ―COME NOW, Defendants, Page Kruger & Holland, P.A. (―PKH‖), Thomas Y. Page, Louis G. Baine, III, and Linda Thomas‖ in that it is - (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to Defendants and their counsel (Phelps Dunbar LLP, W. Thomas Siler, Jr. and Jason T. Marsh [hereinafter, ―Phelps Dunbar,‖ ―Siler‖ and/or ―Marsh‖)] hereinafter collectively known as “STRICKEN STATEMENT CLAUSE.”25. ¶1 on Page 1 which begins with, ―On July 17, 2012, Plaintiff filed an incomplete, single page document‖ and the referenced Footnote 1 in that they are - “STRICKEN STATEMENT CLAUSE.” Named Defendants and their counsel Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh FRIVOLOUSLY and MALICIOUSLY attempt to take advantage of an error made by the Clerk of the Court. Furthermore, if there was any such error by the Clerk in the uploading of documents provided, counsel for Named Defendants should have proceeded in good faith to NOTIFY the Court of error. As the Court, Named Defendants’ counsel obtained Newsome’s MTSMTD and supporting Exhibits on a CD/DVD. Upon checking with the Court, it is Newsome’s understanding that any issue regarding the uploading and/or filing has been resolved. Moreover, the Docket Entry reflecting: DOCKET ANNOTATION as to #12: This docket entry failed to select all pages of the document. Court staff has correctly refiled the document. – See EXHIBIT “H” at 08/10/2012 entry attached hereto and incorporated by reference as if set forth in full herein. Therefore, it did NOT preclude Named Defendants from providing a response to Newsome’s MTSMTD in accordance with the pleading requirements of Rule 8 of the FRCP. Furthermore, Named Defendants counsel was provided with additional information that Newsome’s MTSMTD and supporting Exhibits may be obtained from the following links should problems arise with accessing the documents provided on CD/DVD: http://www.slideshare.net/VogelDenise/071412-motion-to-strike-page-kruger- holland-matter and/or https://secure.filesanywhere.com/fs/v.aspx?v=8a706a8d5e6473bcaa69. To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” Furthermore, Named Defendants’ FAIL to REBUT the issues, evidence and legal conclusions provided in Newsome’s MTSMTD; therefore, a reasonable mind may conclude that averments/statements in MTSMTD are deemed ADMITTED/TRUE!26. ¶2 on Page 1 which begins with, ―Plaintiff does not offer any legal authority to refute the legal defenses‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” Furthermore, as a matter of law and pursuant to Rule 12(F), Page 12 of 23
    • DAHH when a Motion to Strike is filed, it is done so with EXACT SPECIFICS as to what is being requested to be stricken and the facts, evidence and/or legal conclusion to support same.27. On Page 2, continuance of paragraph from Page 1 which states, ―Defendants in their Motion to Dismiss‖ along with Footnotes 2, 3, 4 and 5 in that they are - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!”28. ¶3 on Page 2 which begins with, ―Rule 11 is designed to,‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!”29. On Page 3, continuance of paragraph from Page 2 which states, ―Defendants have filed a legally,‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!”30. ¶4 on Page 3 which begins with, ―To recount, this action arises,‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!”31. On Page 3, paragraph which begins with, ―WHEREFORE, PREMISES CONSIDERED, Defendants, Page Kruger & Holland, P.A.‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; Page 13 of 23
    • AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” 32. On Page 3, paragraph which begins with, ―Further, Defendants request the Court find‖ and the remaining contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” 33. On Page 4, the Certificate of Service and the contents therein in that it is - “STRICKEN STATEMENT CLAUSE.” Now that the statutes/laws governing said matters require the STRIKING of the entire contents, statements,exhibits, etc. as noted above, there remains NO legal/lawful pleading of record. Therefore, Newsome is entitled tothe relief (Rule 11 Sanctions and DEFAULT Judgment, etc.) sought herein. C. RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT (“RIOTMFDJ”) The entire contents of ―RIOTMFDJ‖ which include; however, is not limited to the Style and Headings of saidpleading in that it is: (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposesof delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness, undulyburdensome, provided for purposes of committing fraud upon this Court, and other reasons known to Defendants andtheir Counsel and the following: 34. Opening paragraph on Page 1 which begins with ―COME NOW, Defendants, Page Kruger & Holland, P.A. (―PKH‖), Thomas Y. Page, Louis G. Baine, III, and Linda Thomas‖ in that it is - (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to Defendants and their counsel (Phelps Dunbar LLP, W. Thomas Siler, Jr. and Jason T. Marsh [hereinafter, ―Phelps Dunbar,‖ ―Siler‖ and/or ―Marsh‖)] hereinafter collectively known as “STRICKEN STATEMENT CLAUSE.” 35. ¶1 on Page 1 which begins with, ―On July 17, 2012, Plaintiff filed an incomplete, single page document‖ and the referenced Footnote 1 in that they are - “STRICKEN STATEMENT CLAUSE.” Named Defendants and their counsel Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh FRIVOLOUSLY and MALICIOUSLY attempt to take advantage of an error made by the Clerk of the Court. Furthermore, if there was any such error by the Clerk in the uploading of documents provided, counsel for Named Defendants should have proceeded in good faith to NOTIFY the Court of error. As the Court, Named Defendants’ counsel obtained Newsome’s MTSMTD and supporting Exhibits on a Page 14 of 23
    • CD/DVD. Upon checking with the Court, it is Newsome’s understanding that any issue regarding the uploading and/or filing has been resolved. Moreover, the Docket Entry reflecting: DOCKET ANNOTATION as to #12: This docket entry failed to select all pages of the document. Court staff has correctly refiled the document. – See EXHIBIT “H” at 08/10/2012 entry attached hereto and incorporated by reference as if set forth in full herein. Therefore, it did NOT preclude Named Defendants from providing a response to Newsome’s MTSMTD in accordance with the pleading requirements of Rule 8 of the FRCP. Furthermore, Named Defendants counsel was provided with additional information that Newsome’s MTSMTD and supporting Exhibits may be obtained from the following links should problems arise with accessing the documents provided on CD/DVD: http://www.slideshare.net/VogelDenise/071412-motion-to-strike-page-kruger- holland-matter and/or https://secure.filesanywhere.com/fs/v.aspx?v=8a706a8d5e6473bcaa69. To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” Furthermore, Named Defendants’ FAIL to REBUT the issues, evidence and legal conclusions provided in Newsome’s MTSMTD; therefore, a reasonable mind may conclude that averments/statements in MTSMTD are deemed ADMITTED/TRUE!36. ¶2 on Page 1 which begins with, ―Plaintiff does not offer any legal authority to support her request‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” Furthermore, as a matter of law and pursuant to Rule 12(F), DAHH when a Motion to Strike is filed, it is done so with EXACT SPECIFICS as to what is being requested to be stricken and the facts, evidence and/or legal conclusion to support same.37. On Page 2, continuance of paragraph from Page 1 which states, ―default judgment against Defendants‖ along with Footnotes 2 and 3 in that they are - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” Page 15 of 23
    • 38. ¶3 on Page 2 which begins with, ―Under Fed. R. Civ. P. 12 (a)(4),‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” While Newsome is proceeding in this lawsuit Pro Se, she is a PAYING litigant and has paid the required FILING FEE as well as DEMANDED a “TRIAL By JURY” [See Complaint at Doc. No. 1 Page 136 as well as the Docket Sheet at EXHIBIT “H” of this instant filing which clearly REFLECTS “Jury Demand: Plaintiff”] and have timely, properly and adequately PRESERVED triable issues and REITERATED JURY DEMAND on additional triable ISSUES raised in her MTSMTD that are MANDATORILY required to be submitted to the JURY under the Seventh Amendment to the United States Constitution and other statutes/laws governing said matters. Newsome does NOT waive her right to have ALL triable issues raised in her MTSMTD tried by the Judge assigned this lawsuit – i.e. which at this present time, appears to be Judge Tom S. Lee who is DISQUALIFIED to preside over this lawsuit and is attempting to ABUSE his judicial authority and USURP powers in which he is CLEARLY PROHIBITED to exercise!39. ¶4 on Page 2 which begins with, ―To recount, this action arises,‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!”40. ¶5 on Page 2 which begins with, ―As Defendants have filed a timely,‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!”41. On Page 2, paragraph which begins with, ―WHEREFORE, PREMISES CONSIDERED, Defendants, Page Kruger & Holland, P.A.‖ in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues Page 16 of 23
    • raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” 42. On Page 3, paragraph which begins with, ―Further, Defendants request the Court find‖ and the remaining contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012, 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; meet the pleading REQUIREMENTS, is UNCONTESTED and the time for Named Defendants to provide a REBUTTAL to ALL issues raised has EXPIRED! Therefore, Named Defendants have WAIVED any and ALL rights to rebut and/or contest Newsome’s “MTSMTD!” 43. On Page 4, the Certificate of Service and the contents therein in that it is - “STRICKEN STATEMENT CLAUSE.” Now that the statutes/laws governing said matters require the STRIKING of the entire contents, statements,exhibits, etc. as noted above, there remains NO legal/lawful pleading of record. Therefore, Newsome is entitled tothe relief (Rule 11 Sanctions and DEFAULT Judgment, etc.) sought herein. II. MOTION FOR DEFAULT JUDGMENT Newsome moves this Court to enter a Default Judgment in this lawsuit of and Against ―Named Defendants‖– Page Kruger & Holland, P.A., Thomas Y. Page, Louis G. Baine III and Linda Thomas pursuant to FRCP Rule 55which state in part: FRCP Rule 55. Default; Default Judgment (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default. (b) Entering a Default Judgment. (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk – on the plaintiff’s request, with an affidavit showing the amount due – must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for default judgment. A default judgment may be entered against a minor or incompetent person only if represented by general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of application at least 3 days before the hearing. The court may conduct hearings or make referrals – preserving any federal statutory right to a jury trial – when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter. Page 17 of 23
    • In further support thereof, Newsome states the following: 44. This instant Motion for Default Judgment (―MFDJ‖) is submitted in good faith and is not submitted for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United States. 45. This instant MFDF is submitted to protect the rights of Newsome and the relief she is entitled to as a direct and proximate result of Defendants FAILURE to file an Answer and/or Responsive pleading required under the statutes/laws governing said matters. 46. All NOTIFICATION requirements have been met. ―Named Defendants‖ were timely, properly and adequately notified that Default Judgment would be sought against them as early as about June 6, 2012, and received on or about June 8, 2012. Moreover, through the ―Waiver of the Service of Summons‖ executed by ―Named Defendants‖ which contained, ―NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS,” they were advised of the following: You are further hereby NOTIFIED, that unless you serve and file a written responsive pleading within the specified time, the Plaintiff will take judgment against you by default (i.e. for instance, “Motion for Default Judgment”) for the relief demanded in the Complaint. See at Page 4 of EXHIBITS “K,” “L,” “M,” and “N” respectively attached hereto and incorporated herein by reference. UNDISPUTED IS THE FACT: That in an effort to DECEIVE this Court and efforts of keeping this information out of the records, ―Named Defendants‖ and their counsel (Phelps Dunbar/Siler/Marsh) RECREATED the ―Waiver of the Service of Summons‖ to SHIELD/HIDE from this Court by removing information regarding the method of mailing information (i.e. CERTIFIED MAIL) and noted information stating, ―NOTE: To save cost of litigation Plaintiff provided with "Notice of Lawsuit and Request for Waiver of Service of Summons" and "Waiver of Service of Summons" a document entitled, "Notification Accompanying Waiver of Service of Summons" which she believes contains pertinent information regarding ANSWERING of Complaint - a copy of which is attached to this "Waiver of Service of Summons" that was provided on the ORIGINAL ―Waiver of the Service of Summons‖ and the attached ―NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS.” Nevertheless, the record of this Court will support timely notification and evidence of what was received – See EXHIBITS “K,” “L,” “M,” and “N” respectively attached hereto and incorporated by reference as if set forth in full herein. 47. UNDISPUTED IS THE FACT: In support of this instant MFDJ, Newsome presents the following PRIMA FACIE CASE: (a) Newsome would be prejudiced by this Court’s denial of her Motion for Default Judgment. While Newsome is proceeding in this instant lawsuit pro se she is a PAYING LITIGANT and is NOT proceeding in this matter in forma pauperis and is governed by the rules and procedures of this Court and/or statutes/laws applicable to this action. Therefore, the attempts by Named Defendants’ counsel to assert this lawsuit is subject to the provisions of 42 USC § 1983 is WITHOUT merit, baseless and FRIVOLOUS. The record evidence supports that Newsome lost her job as a direct and proximate result of acts taken against her by ―Named Defendants‖ and those conspiring with them to cause Newsome injury/harm. Said actions taken by ―Named Defendants‖ and those conspiring against Newsome were to obtain an undue advantage over her in their expectation of the bringing of legal action and for means of financial devastation to prevent Newsome from successfully litigating this action. Newsome would be further prejudiced by denial of the relief sought in that she has already suffered irreparable injury/harm as a direct and proximate result of ―Named Defendants’‖ culpable acts. Furthermore, should this Court deny Newsome’s Motion for Default Judgment, it would deprive her equal protection of the laws, equal privileges and immunities and due process of laws, etc. Rights secured/guaranteed under the Constitution, Civil Rights Act as well as other governing statutes/laws in such matters. (b) ―Named Defendants‖ have no meritorious defense. ―Named Defendants‖ made a conscious, willful and decision to file a FRIVOLOUS Responsive Page 18 of 23
    • Pleading in this action under Rule 12(b)(6) of the Federal Rules of Civil Procedure which Newsome has timely, properly and adequately moved to have STRICKEN from the record – i.e. as a matter of law is to be GRANTED! (c) Not only did ―Named Defendants’‖ culpable conduct lead to their default, said conduct led to Newsome being terminated from her place of employment – culpable acts done with intent to obtain an undue advantage in the bringing of this lawsuit against them. Furthermore the record evidence and that presented in this instant motion will support ―Named Defendants’‖ culpable acts led to their default – a default which is as a direct and proximate result of “Named Defendants’” defiance and reckless disregard of the rules and procedures governing said matters. The record evidence supports that Newsome timely, properly and adequately notified ―Named Defendants‖ of the consequences of failing to file a timely Answer and/or file a responsive pleading/motion in accordance to the statutes/laws governing said matters. To no avail. ―Named Defendants‖ ignored said notifications provided them by Newsome through the “Notification Accompanying Waiver of Service of Summons” which was attached to the ―Waiver of the Service of Summon‖ served on ―Named Defendants.‖ In fact, Named Defendants’ and their counsel’s (Phelps Dunbar/Siler/Marsh) knowledge of said information and the CRITICAL nature thereof, is EVIDENCED in their removal of said NOTIFICATION and RECREATION of the ―Waiver of the Service of Summons.‖ Thus, further supporting how ―Named Defendants‖ have abused their time and can be expected to continue such CRIMINAL/CIVIL violations before this Court. Jackson v. Hamilton County Community Mental Health Bd.,174 FRD 394 (1997) In determining whether . . . to grant default judgment, court must balance the following factors: (1) whether plaintiff will be prejudiced; (2) whether defendant has meritorious defense; and (3) whether culpable conduct of defendant led to the default. In order to find defendant’s conduct culpable, for purpose of determining whether . . . to grant default judgment, conduct must display either intent to thwart judicial proceedings or reckless disregard for effect of its conduct on those proceedings. (Id.)48. As sustained by this instant MTS-DEFRIOTMTSMTD. . ., ―Named Defendants‖ failed to provide an Answer to the Complaint filed in this lawsuit or a responsive pleading permissible under Rule 12 of the FRCP. The statutes/laws governing said matters requires the STRIKING of Named Defendants’ Motion to Stay and supporting Memorandum In Support for the reasons set forth above in this instant pleading. The laws are clear on such matters that STRICKEN pleadings are as though they were NEVER filed and CANNOT be relied upon. Therefore, Newsome believes that a reasonable mind may conclude that ―Named Defendants’‖ failure to file a timely Answer or responsive pleading under Rule 12 of the FRCP was due to the fact that Complaint filed in this lawsuit is well grounded in facts, evidence and legal conclusions to sustain it.49. For purposes of expedition, saving of time and minimize costs associated with litigation, Newsome consolidate her motions/pleadings herein pursuant to FRCP Rule 12(G) which states: FRCP Rule 12(g) Joining Motions. - Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.50. Newsome, therefore, in keeping with Rules 1(B) and 55 of the Federal Rules of Civil Procedure, moves this Court for an entry and judgment GRANTING default judgment of and against ―Named Defendants‖ in the amount set forth in her Complaint and this instant MTS-DEFRIOTMTSMTD. . ..51. Newsome further demands a JURY trial (i.e. NOT a Bench Trial) on triable issues. Newsome is proceeding in this instant lawsuit as a PAYING Litigant and the Docket Sheet in this matter clearly reflects “JURY DEMAND: Plaintiff.” See EXHIBIT “H” attached hereto and incorporated by reference. Page 19 of 23
    • EXHIBITS TABLEEXHIBIT DESCRIPTION A Affidavit Of Vogel Denise Newsome in Support of Motion to Strike B FRCP Rule 38 C Seventh Amendment United States Constitution D FRCP Rule 26 E 28 USC § 455 F Phillips v. Joint Legislative Committee on Performance and Expenditure Review Of The State of Mississippi G Code of Judicial Conduct (Mississippi) H Docket Sheet (Newsome vs Page Kruger & Holland) I FRCP Rule 8 J Waiver or Loss of Right To Disqualify Judge (Civil Cases) K WAIVER OF THE SERVICE OF SUMMONS – Page Kruger & Holland P.A. L WAIVER OF THE SERVICE OF SUMMONS – Thomas Y. Page M WAIVER OF THE SERVICE OF SUMMONS – Louis G. Baine III N WAIVER OF THE SERVICE OF SUMMONS – Linda Thomas Page 23 of 23
    • IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT – JACKSON DIVISIONVOGEL DENISE NEWSOME PLAINTIFFV. CIVIL ACTION NO. 3:12-cv-00342PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTS VOGEL DENISE NEWSOME’S AFFIDAVIT IN SUPPORT OF MOTION TO STRIKE DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION TO STRIKE DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION TO STRIKE DEFENDANTS’ RESPONSE IN OPPOSITION TOPLAINTIFF’S MOTION FOR DEFAULT JUDGMENT; PLAINTIFF’S MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) 1STATE OF OHIO ) ) SSCOUNTY OF HAMILTON )I, Vogel Denise Newsome (“Newsome”), being first duly sworn, deposes and states: 1. Newsome is the Plaintiff in the above-entitled action. 2. Newsome has personal knowledge as to the claims and facts set forth in the Motions and Memorandum Brief in which this Affidavit supports. Moreover, giving rise to the lawsuit filed in this action. 3. Newsome is competent to testify to the matters set forth in the Complaint and her subsequent pleadings filed. 4. The Motions and Memorandum Brief in which this Affidavit supports and this Affidavit is being filed in good faith and is NOT imposed for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United States. 5. Newsome states that the Motion to Strike Defendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss and Memorandum In Support Of Motion To Dismiss; Motion To Strike Defendants’ Response In Opposition To Plaintiff’s Motion For Rule 11 Sanctions Of And Against Defendants; and Motion To Strike Defendants’ Response In Opposition To Plaintiff’s Motion For Default Judgment; Plaintiff’s Motion for Rule 11 Sanctions of and Against Defendants; and Motion for Default Judgment (Jury Trial Demanded in this Action) in which this Affidavit supports is in COMPLIANCE with “Pleading REQUIREMENTS” pursuant to Rule 8 of the Federal Rules of Civil Procedure. 1 NOTE: Boldface, caps, small-caps, italics, highlights and underline represents “emphasis” added. EXHIBIT “A” Page 1 of 6
    • 6. Newsome timely, properly and adequately NOTIFIED this Court through her Complaint at Page 136 and her subsequent pleadings filed in this matter that she DEMANDS a JURY Trial. Newsome does NOT waive her right to have triable issues raised in her Motion to Strike Defendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss and Memorandum In Support Of Motion To Dismiss; Motion To Strike Defendants’ Response In Opposition To Plaintiff’s Motion For Rule 11 Sanctions Of And Against Defendants; and Motion To Strike Defendants’ Response In Opposition To Plaintiff’s Motion For Default Judgment; Plaintiff’s Motion for Rule 11 Sanctions of and Against Defendants; and Motion for Default Judgment (Jury Trial Demanded in this Action) tried before a JURY – i.e. OPPOSING a BENCH Trial on triable issues.7. Newsome OBJECTS to the appointment of this matter to Judge Tom Stewart Lee and believes that he is to RECUSE and/or DISQUALIFY himself from this lawsuit for the reasons set forth in her previous pleadings and this instant filing to which this Affidavit supports.8. Judge Tom S. Lee, as a matter of law, is disqualified from presiding over this lawsuit in that he has is BIAS and PREJUDICE toward Newsome, has a FINANCIAL/PECUNIARY interest in this lawsuit, has KNOWLEDGE of extrajudicial matters regarding Newsome to which he is and/or may be a party, may be a MATERIAL WITNESS in legal proceedings to which he has been named in other lawful actions brought by Newsome, has been appointed for purposes of COMPROMISING and TAINTING these proceeding and has FAILED to NOTIFY all parties to this lawsuit as to the CONFLICT-OF-INTEREST and the grounds requiring his DISQUALIFICATION. Should it become necessary to bring legal against Judge Tom S. Lee, Newsome intends to SUBPOENA any and/or all of his personal financial records (i.e. Tax Returns, Stocks Portfolio, etc.) for presentation to JURY in the TRIAL on this matter.9. Newsome OPPOSES and OBJECTS to this Court’s allowing parties to abuse this Court’s Electronic Filing System.10. Newsome will be prejudiced by this Court’s allowing the sham and frivolous Defendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss and Memorandum In Support Of Motion To Dismiss; Defendants’ Response In Opposition To Plaintiff’s Motion For Rule 11 Sanctions Of And Against Defendants; and Defendants’ Response In Opposition To Plaintiff’s Motion For Default Judgment to remain a part of the record in that they have been filed in violation of the statutes/laws governing said matters.11. There are genuine issues of material fact which precludes the filing of Motion to Dismiss and the supporting Memorandum In Support; wherein resulting in the Motion to Strike and Motion for Default Judgment as well as other relief set forth in the Motions to which this Affidavit supports.12. All facts and/or claim set forth in the Complaint are to be deemed as TRUE and to date remain UNCONTESTED!13. On or about June 6, 2012, Newsome timely, properly and adequately notified “Named Defendants” – Page Kruger & Holland, Thomas Y. Page, Louis G. Baine III and Linda Thomas [hereinafter “Named Defendants”] – of the consequences Page 2 of 6 USDC Southern District Mississippi (Jackson) CIVIL ACTION NO. 3:12-cv-00342
    • (i.e. that she will file Motion to Strike and/or Motion for Default Judgment) should they fail to comply with the statutes and laws governing said matters. See Exhibits “K,” “L,” “M” and “N” of the Motion to Strike to which this Affidavit supports.14. Newsome believes that based upon the facts, evidence and legal conclusions provided in the Complaint and her subsequent pleading, that a reasonable mind may conclude that Named Defendants and/or their Counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) did knowingly and willing submit their D “Defendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss and Memorandum In Support Of Motion To Dismiss; Defendants’ Response In Opposition To Plaintiff’s Motion For Rule 11 Sanctions Of And Against Defendants; and Defendants’ Response In Opposition To Plaintiff’s Motion For Default Judgment” with fraudulent intent – i.e. purposes of committing fraud upon this Court.15. Newsome believes that the record evidence will sustain that “Named Defendants” come before this Court with DIRTY HANDS! Moreover, may rely and encourage WILLFUL participants as their legal counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) to this action to come before this Court with DIRTY HANDS!!!16. Newsome believes that it is important for this Court to be fully aware as to what is going on in matters outside this lawsuit so that this Court can better understand the unlawful/illegal acts of Named Defendants and/or their Counsel. Moreover, see through their HIDDEN MOTIVES and AGENDAS!17. The allegations set forth in Motions to which this Affidavit supports can be supported by factual evidence in the record of “Named Defendants” as well as pleadings in this lawsuit.18. There is sufficient facts, evidence and legal conclusions contained in the Complaint to sustain the 13 Counts (i.e. while misnumbered does NOT take away from the merits, facts, evidence and legal conclusions sustaining them): (1) Count I - 42 USC § 1981: Equal Rights Under The Law Against Defendants; (2) Count II - 42 USC § 1985: Conspiracy To Interfere With Civil Rights and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (3) Count III - 42 USC § 1986: Action For Neglect To Prevent and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (4) Count IV - Negligent Interference with Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (5) Count V - Discrimination in Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (6) Count II [Sic] – Retaliation and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (7) Count IIIII [Sic] - Breach Of Express Employment Agreement 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Page 3 of 6 USDC Southern District Mississippi (Jackson) CIVIL ACTION NO. 3:12-cv-00342
    • (8) Count VIII – Breach Of The Covenant Of Good Faith And Fair Dealing 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (9) Count IX – Negligent Infliction Of Emotional Distress and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (10) Count X – Fraud Against [sic] and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (11) Count XI – Negligent Interference With Employment – Malicious Conspiracy To Cause Discharge From Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (12) Count IVII – Violation of the Fourteenth Amendment of the U.S. Constitution – Due Process and 42 USC § 1981: Equal Rights Under The Law; and (13) Count VII – Violation of the Fourteenth Amendment of the U.S. Constitution – Equal Protection and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s) set forth. Furthermore, to sustain that this Court is to take “all the allegations in the complaint as TRUE even if doubtful in fact” - i.e. in a light more favorable to Newsome.19. There is sufficient facts, evidence and legal conclusions to sustain the approximate 34 Pages with approximately 145 distinctly numbered paragraphs containing statements and/or issues, legal conclusions and approximately 42 supporting Exhibits to MOTION TO STRIKE MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) along with the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS.20. Newsome believes that when this Court allows the UNLAWFUL/ILLEGAL practices as that in the submittal of Defendants’ Response In Opposition To Plaintiff’s Motion To Strike Motion To Dismiss and Memorandum In Support Of Motion To Dismiss; Defendants’ Response In Opposition To Plaintiff’s Motion For Rule 11 Sanctions Of And Against Defendants; and Defendants’ Response In Opposition To Plaintiff’s Motion For Default Judgment it sends a message that such criminal and unethical practices are accepted – i.e. all you have to do is have BIG MONEY and be a BIG LAW FIRM with influences in HIGH PLACES.21. Newsome believes that Foreign Countries/Nations and Foreign Leaders are tired of the United States of America coming to them PREACHING to clean up their CORRUPTION, HUMAN RIGHTS VIOLATIONS, etc., yet and still the United States continue to engage in such unlawful/illegal practices itself – i.e. sending a message of HYPOCRISY and TWO-FACEDNESS. This instant lawsuit is a classic example of the BLATANT corruption, discrimination, employment violations, etc. that employers engage in because they feel they are above the laws of the United States and/or feel they do not have to comply.22. Newsome believes that there is sufficient evidence in the record of this Court to sustain that the law firm (Baker Donelson Bearman Caldwell & Berkowitz [“Baker Donelson”]) that provides United States President Barack Obama with legal Page 4 of 6 USDC Southern District Mississippi (Jackson) CIVIL ACTION NO. 3:12-cv-00342
    • counsel and advice, may also be playing a role in the CONSPIRACIES and criminal/civil wrongs leveled against her. Rather than take this matter into her own hands, Newsome has initiated the appropriate legal action in the United States Supreme Court under its “ORIGINAL JURISDICTION.”23. Newsome believes that AFTER going public in regards to Baker Donelson’s role in the criminal/civil acts leveled against her and the HIGH POWER positions they hold in the Government – i.e. which includes the United States White House – Baker Donelson went out and SCRUBBED information from their Internet website. Baker Donelson advertising holding key positions as: Chief of Staff to the President of the United States United States Secretary of State United States Senate Majority Leader Members of the United States Senate Members of the United States House of Representatives Director of the Office of Foreign Assets Control for United States Department of Treasury Director of the Administrative Office of the United States Chief Counsel, Acting Director, and Acting Deputy Director of United States Citizenship & Immigration Services within the United States Department of Homeland Security Majority and Minority Staff Director of the Senate Committee on Appropriations Member of United States President’s Domestic Policy Council Counselor to the Deputy Secretary for the United States Department of HHS Chief of Staff of the Supreme Court of the United States Administrative Assistant to the Chief Justice of the United States Deputy under Secretary of International Trade for the United States Department of Commerce Ambassador to Japan Ambassador to Turkey Ambassador to Saudi Arabia Ambassador to the Sultanate of Oman Governor of Tennessee Governor of Mississippi Deputy Governor and Chief of Staff for the Governor of Tennessee Commissioner of Finance & Administration (Chief Operating Officer) - State of Tennessee Special Counselor to the Governor of Virginia United States Circuit Court of Appeals Judge United States District Court Judges United States Attorneys Presidents of State and Local Bar Associations Page 5 of 6 USDC Southern District Mississippi (Jackson) CIVIL ACTION NO. 3:12-cv-00342
    • Rule 38. Right to a Jury Trial; Demand | Federal Rules of Civil Procedure ... http://www.law.cornell.edu/rules/frcp/rule_38 RULE 38. RIGHT TO A JURY TRIAL; DEMAND (a) RIGHT P RESERVED. The right of trial by jury as declared by the Seventh Amendment to the Constitution—or as provided by a federal statute—is preserved to the parties inviolate. (b) DEMAND. On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule 5(d). (c) SPECIFYING ISSUES. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may—within 14 days after being served with the demand or within a shorter time ordered by the court—serve a demand for a jury trial on any other or all factual issues triable by jury. (d) WAIVER; WITHDRAWAL. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent. (e) ADMIRALTY AND MARITIME CLAIMS. These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h). NOTES (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) N OTES OF A DVISORY C OMMITTEE ON R ULES —1937 This rule provides for the preservation of the constitutional right of trial by jury as directed in the enabling act (act of June 19, 1934, 48 Stat. 1064, U.S.C., Title 28, §723c [see 2072]), and it and the next rule make definite provision for claim and waiver of jury trial, following the method used in many American states and in England and the British Dominions. Thus the claim must be made at once on initial pleading or appearance under Ill.Rev.Stat. (1937) ch. 110, §188; 6 Tenn.Code Ann. (Williams, 1934) §8734; compare Wyo.Rev.Stat.Ann. (1931) §89–1320 (with answer or reply); within 10 days after the pleadings are completed or the case is at issue under 2 Conn.Gen.Stat. (1930) §5624; Hawaii Rev.Laws (1935) §4101; 2 Mass.Gen.Laws (Ter.Ed. 1932) ch. 231, §60; 3 Mich.Comp.Laws (1929) §14263; Mich.Court Rules Ann. (Searl, 1933) Rule 33 (15 days); England (until 1933) O. 36, r.r. 2 and 6; and Ontario Jud.Act (1927) §57(1) (4 days, or, where prior notice of trial, 2 days from such notice); or at a definite time varying under different codes, from 10 days before notice of trial to 10 days after notice, or, as in many, when the case is called for assignment, Ariz.Rev.Code Ann. (Struckmeyer, 1928) §3802; Calif.Code Civ.Proc. (Deering, 1937) §631, par. 4; Iowa Code (1935) §10724; 4 Nev.Comp.Laws (Hillyer, 1929) §8782; N.M.Stat.Ann. (Courtright, 1929) §105–814; N.Y.C.P.A. (1937) §426, subdivision 5 (applying to New York, Bronx, Richmond, Kings, and Queens Counties); R.I.Pub.Laws (1929), ch. 1327, amending R.I.Gen.Laws (1923) ch. 337, §6; Utah Rev.Stat.Ann. (1933) §104–23–6; 2 Wash.Rev.Stat.Ann. (Remington, 1932) §316; England (4 days after notice of trial), Administration of Justice Act (1933) §6 and amended rule under the Judicature Act (The Annual Practice, 1937), O. 36, r. 1; Australia High Court Procedure Act (1921) §12, Rules, O. 33, r. 2; Alberta Rules of Ct. (1914) 172, 183, 184; British Columbia Sup.Ct.Rules (1925) O. 36, r.r. 2, 6, 11, and 16; New Brunswick Jud. Act (1927) O. 36, r.r. 2 and 5. See James, Trial by Jury and the New EXHIBIT F d lR l fP d (1936) 45 Y l L J 1022 “B"1 of 2 8/10/2012 12:23 PM
    • Rule 38. Right to a Jury Trial; Demand | Federal Rules of Civil Procedure ... http://www.law.cornell.edu/rules/frcp/rule_38 Federal Rules of Procedure (1936), 45 Yale L.J. 1022. Rule 81(c) provides for claim for jury trial in removed actions. The right to trial by jury as declared in U.S.C., Title 28, §770 [now 1873] (Trial of issues of fact; by jury; exceptions), and similar statutes, is unaffected by this rule. This rule modifies U.S.C., Title 28, [former] §773 (Trial of issues of fact; by court). N OTES OF A DVISORY C OMMITTEE ON R ULES —1966 A MENDMENT See Note to Rule 9(h), supra. N OTES OF A DVISORY C OMMITTEE ON R ULES —1987 A MENDMENT The amendments are technical. No substantive change is intended. N OTES OF A DVISORY C OMMITTEE ON R ULES —1993 A MENDMENT Language requiring the filing of a jury demand as provided in subdivision (d) is added to subdivision (b) to eliminate an apparent ambiguity between the two subdivisions. For proper scheduling of cases, it is important that jury demands not only be served on other parties, but also be filed with the court. C OMMITTEE N OTES ON R ULES —2007 A MENDMENT The language of Rule 38 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. C OMMITTEE N OTES ON R ULES —2009 A MENDMENT The times set in the former rule at 10 days have been revised to 14 days. See the Note to Rule 6.2 of 2 8/10/2012 12:23 PM
    • CRS/LII Annotated Constitution Seventh Amendment http://www.law.cornell.edu/anncon/html/amdt7frag1_user.html#amdt7_hd4 SEVENTH AMENDMENT CIVIL TRIALS In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re–examined in any Court of the United States, than according to the rules of the common law. TRIAL BY JURY IN CIVIL CASES The Right and the Characteristics of the Civil Jury History.—On September 12, 1787, as the Convention was in its final stages, Mr. Williamson of North Carolina “observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it.” The comment elicited some support and the further observation that because of the diversity of practice in civil trials in the States it would be impossible to draft a suitable provision.1 When on September 15 it was moved that a clause be inserted in Article III, § 2, to guarantee that “a trial by jury shall be preserved as usual in civil cases,” this objection seems to have been the only one urged in opposition and the motion was defeated. 2 The omission, however, was cited by many opponents of ratification and “was pressed with an urgency and zeal . . . well–nigh preventing its ratification.”3 A guarantee of right to jury in civil cases was one of the amendments urged on Congress by the ratifying conventions4 and it was included from the first among Madison’s proposals to the House.5 It does not appear that the text[p.1452]of the proposed amendment or its meaning was debated during its passage.6 Composition and Functions of Civil Jury.—Traditionally, the Supreme Court has treated the Seventh Amendment as preserving the right of trial by jury in civil cases as it “existed under the English common law when the amendment was adopted.”7 The right was to “a trial by a jury of twelve men, in the presence and under the superintendence of a judge … empowered to instruct them on the law and to advise them on the facts and (except in acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.”8 Decision of the jury must be by unanimous verdict.9 In Colgrove v. Battin,10 however, the Court by a five–to–four vote held that rules adopted in a federal district court authorizing civil juries composed of six persons were permissible under the Seventh Amendment and congressional enactments. By the reference in the Amendment to … the “common law,” the Court thought, “the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various incidents of trial by jury.”11 The Amendment has for its primary purpose the preservation of “the common law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are resolved by the court and issues of fact are to be determined by the jury under appropriate[p.1453]instructions by the court.”12 But it “does not exact the retention of old forms of procedure” nor does it “prohibit the introduction of new methods of ascertaining what facts are in issue” or new … rules of evidence.13 Those matters which were tried by a jury in England in 1791 are to be so tried today and those matters which, as in equity, were tried by the judge in England in 1791 are to be so tried today,14 and when new rights and remedies are created “the right of action should be analogized to its historical counterpart, at law or in equity, for the purpose of determining whether there is a right of jury trial,” unless Congress has expressly prescribed the mode of trial.15 Courts in Which the Guarantee Applies.—The Amendment governs only courts which sit under the authority of the United States,16 including courts in the territories17 and the District of Columbia,18 and does not apply generally to state courts. 19 But when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial EXHIBIT part the States may not eliminate trial by jury as to one or more elements 20 Ordinarily a “C"1 of 3 8/10/2012 12:27 PM
    • CRS/LII Annotated Constitution Seventh Amendment http://www.law.cornell.edu/anncon/html/amdt7frag1_user.html#amdt7_hd4 part, the States may not eliminate trial by jury as to one or more elements. 20 Ordinarily, a federal court enforcing a state–created right will follow its own rules with regard to the allocation of functions between judge and jury, a rule the Court based on the “interests” of the federal court system, eschewing reliance on the Seventh Amendment but noting its influence.21 Waiver of the Right.—Parties may enter into a stipulation waiving a jury and submitting the case to the court upon an agreed[p.1454]statement of facts, even without any legislative provision for waiver.22 Prior to adoption of the Federal Rules, Congress had, “by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing.”23 Under the Federal Rules of Civil Procedure, any party may make a timely demand for a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing, and failure so to serve a demand constitutes a waiver of the right.24 However, a waiver is not to be implied from a request for a directed verdict.25 Footnotes 1 2 M. Farrand, Records of the Federal Convention of 1787, at 587 (rev. ed. 1937). 2 Id. at 628. 3 J. Story, Commentaries on the Constitution of the United States 1757 (1833). “[I]t is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty.” Id. at 1762. 4 J. Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 326 (2d ed. 1836) (New Hampshire); 2 id. at 399–414 (New York); 3 id. at 658 (Virginia). 5 1 Annals of Congress 436 (1789). “In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.” 6 It is simply noted in 1 Annals of Congress 760 (1789), that on August 18 the House “considered and adopted” the committee version: “In suits at common law, the right of trial by jury shall be preserved.” On September 7, the Senate Journal states that this provision was adopted after insertion of “where the consideration exceeds twenty dollars.” 2 B. Schwartz, The Bill of Rights: A Documentary History 1150 (1971). 7 Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1913) ; Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446–48 (1830). 8 Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899) . 9 Maxwell v. Dow, 176 U.S. 581 (1900) ; American Publishing Co. v. Fisher, 166 U.S. 464 (1897) ; Springville v. Thomas, 166 U.S. 707 (1897) . 10 413 U.S. 149 (1973) . Justices Marshall and Stewart dissented on constitutional and statutory grounds, id. at 166, while Justices Douglas and Powell relied only on statutory grounds without reaching the constitutional issue. Id. at 165, 188. 11 Id. at 155–56. The Court did not consider what number less than six, if any, would fail to satisfy the Amendment’s requirements. “What is required for a ‘jury’ is a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross section of the community. . . . It is undoubtedly true that at some point the number becomes too small to accomplish these goals . . .” Id. at 160 n.16. Application of similar reasoning has led the Court to uphold elimination of the unanimity as well as the 12– person requirement for criminal trials. See Williams v. Florida, 399 U.S. 78 (1970) (jury size); Apodaca v. Oregon, 406 U.S. 404 (1972) (unanimity); and discussion supra pp.1408–10. 12 Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935) ; Walker v. New Mexico & So. Pac. R.R., 165 U.S. 593, 596 (1897) ; Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 497–99 (1931) ; Dimick v. Schiedt, 293 U.S. 474, 476, 485–86 (1935) . 13 Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 498 (1931) ; Ex parte Peterson, 253 U.S. 300, 309 (1920) . 14 Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446–47 (1830); Slocum v. New York Life Ins. Co., 228 U.S. 364, 377–78 (1913) ; Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935) ; Dimick v. Schiedt, 293 U.S. 474, 476 (1935) . But see Ross v. Bernhard, 396 U.S. 531 (1970) , which may foreshadow a new analysis. 15 Luria v. United States, 231 U.S. 9, 27–28 (1913) . 16 Pearson v. Yewdall, 95 U.S. 294, 296 (1877) ; Edwards v. Elliott, 88 U.S. (21 Wall.) 532, 557 (1874); The Justices v. Murray, 76 U.S. (9 Wall.) 274, 277 (1870); Walker v. Sauvinet, 92 U.S. 90 (1876)2 of 3 8/10/2012 12:27 PM
    • CRS/LII Annotated Constitution Seventh Amendment http://www.law.cornell.edu/anncon/html/amdt7frag1_user.html#amdt7_hd4 (1874); The Justices v. Murray, 76 U.S. (9 Wall.) 274, 277 (1870); Walker v. Sauvinet, 92 U.S. 90 (1876) ; St. Louis & K.C. Land Co. v. Kansas City, 241 U.S. 419 (1916) . 17 Webster v. Reid, 52 U.S. (11 How.) 437, 460 (1851); Kennon v. Gilmer, 131 U.S. 22, 28 (1889) . 18 Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899) . 19 Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211 (1916) . See also Melancon v. McKeithen, 345 F. Supp. 105 (E.D.La.) (three–judge court), aff’d. per curiam, 409 U.S. 943 (1972) ; Alexander v. Virginia, 413 U.S. 836 (1973) . 20 Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952) . Four dissenters contended that the ruling was contrary to the unanimous decision in Bombolis. 21 Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958) (citing Herron v. Southern Pacific Co., 283 U.S. 91 (1931) ). 22 Henderson’s Distilled Spirits, 81 U.S. (14 Wall.) 44, 53 (1872); Rogers v. United States, 141 U.S. 548, 554 (1891) ; Parsons v. Armor, 28 U.S. (3 Pet.) 413 (1830); Campbell v. Boyreau, 62 U.S. (21 How.) 223 (1859). 23 Baylis v. Travellers’ Ins. Co., 113 U.S. 316, 321 (1885) . The provision did not preclude other kinds of waivers, Duignan v. United States, 274 U.S. 195, 198 (1927) , though every reasonable presumption was indulged against a waiver. Hodges v. Easton, 106 U.S. 408, 412 (1883) . 24 Fed. R. Civ. P. 38. 25 Aetna Life Ins. Co. v. Kennedy, 301 U.S. 389 (1937) ; Fed. R. Civ. P. 50(a).3 of 3 8/10/2012 12:27 PM
    • Rule 26. Duty to Disclose; General Provisions Governing Discovery | Fed... http://www.law.cornell.edu/rules/frcp/rule_26 RULE 26. DUTY TO DISCLOSE; GENERAL PROVISIONS GOVERNING DISCOVERY (a) REQUIRED DISCLOSURES. (1) Initial Disclosure. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. EXHIBIT “D"1 of 1 7/25/2012 10:07 AM
    • 28 U.S.C.A. § 455 Page 1 Effective:[See Text Amendments]United States Code Annotated Currentness Title 28. Judiciary and Judicial Procedure (Refs & Annos) Part I. Organization of Courts (Refs & Annos) Chapter 21. General Provisions Applicable to Courts and Judges § 455. Disqualification of justice, judge, or magistrate judge(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding inwhich his impartiality might reasonably be questioned.(b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed eviden- tiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he pre- viously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; EXHIBIT “E" © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • 28 U.S.C.A. § 455 Page 2 (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the pro- ceeding; (iv) Is to the judges knowledge likely to be a material witness in the proceeding.(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable ef-fort to inform himself about the personal financial interests of his spouse and minor children residing in hishousehold.(d) For the purposes of this section the following words or phrases shall have the meaning indicated: (1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation; (2) the degree of relationship is calculated according to the civil law system; (3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian; (4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: (i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund; (ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial in- terest” in securities held by the organization; (iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest; (iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the pro- ceeding could substantially affect the value of the securities.(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any groundfor disqualification enumerated in subsection (b). Where the ground for disqualification arises only under sub-section (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for dis-qualification. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • 28 U.S.C.A. § 455 Page 3(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bank-ruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has beendevoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, thathe or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has afinancial interest in a party (other than an interest that could be substantially affected by the outcome), disquali-fication is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as thecase may be, divests himself or herself of the interest that provides the grounds for the disqualification.CREDIT(S)(June 25, 1948, c. 646, 62 Stat. 908; Dec. 5, 1974, Pub.L. 93-512, § 1, 88 Stat. 1609; Nov. 6, 1978, Pub.L.95-598, Title II, § 214(a), (b), 92 Stat. 2661; Nov. 19, 1988, Pub.L. 100-702, Title X, § 1007, 102 Stat. 4667;Dec. 1, 1990, Pub.L. 101-650, Title III, § 321, 104 Stat. 5117.)HISTORICAL AND STATUTORY NOTESRevision Notes and Legislative Reports1948 Acts. Based on Title 28, U.S.C., 1940 ed., § 24 (Mar. 3, 1911, c. 231, § 20, 36 Stat. 1090 [Derived fromR.S. § 601] ).Section 24 of Title 28, U.S.C., 1940 ed., applied only to district judges. The revised section is made applicableto all justices and judges of the United States.The phrase “in which he has a substantial interest” was substituted for “concerned in interest in any suit.”The provision of section 24 of Title 28, U.S.C., 1940 ed., as to giving notice of disqualification to the “seniorcircuit judge,” and words “and thereupon such proceedings shall be had as are provided in sections 17 and 18 ofthis title,” were omitted as unnecessary and covered by section 291 et seq. of this title relating to designation andassignment of judges. Such provision is not made by statute in case of disqualification or incapacity, for othercause. See sections 140, 143, and 144 of this title. If a judge or clerk of court is remiss in failing to notify thechief judge of the district or circuit, the judicial council of the circuit has ample power under section 332 of thistitle to apply a remedy.Relationship to a partys attorney is included in the revised section as a basis of disqualification in conformitywith the views of judges cognizant of the grave possibility of undesirable consequences resulting from a less in-clusive rule.Changes were made in phraseology. 80th Congress House Report No. 308.1974 Acts. House Report No. 93-1453, see 1974 U.S.Code Cong. and Adm.News, p. 6351. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • 28 U.S.C.A. § 455 Page 41978 Acts. Senate Report No. 95-989 and House Report No. 95-595, see 1978 U.S. Code Cong. and Adm.News, p. 5787.1988 Acts. House Report No. 100-889, see 1988 U.S.Code Cong. and Adm.News, p. 5982.Amendments1988 Amendments. Subsec. (f). Pub.L. 100-702 added subsec. (f).1978 Amendments. Pub.L. 95-598 struck out references to referees in bankruptcy in the section catchline and insubsecs. (a) and (e).1974 Amendments. Pub.L. 93-512 substituted “Disqualification of justice, judge, magistrate, or referee in bank-ruptcy” for “Interest of justice or judge” in section catchline, reorganized structure of provisions, and expandedapplicability to include magistrates and referees in bankruptcy and grounds for which disqualification may bebased, and added provisions relating to waiver of disqualification.Change of Name“United States magistrate judge” substituted for “United States magistrate” in text pursuant to section 321 ofPub.L. 101-650, set out as a note under 28 U.S.C.A. § 631.Effective and Applicability Provisions1978 Acts. Amendment by Pub.L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub.L. 95-598, set out asa note preceding section 101 of Title 11, Bankruptcy. For procedures relating to bankruptcy matters duringtransition period, see note preceding section 151 of this title.1974 Acts. Section 3 of Pub.L. 93-512 provided that: “This Act [amending this section] shall not apply to the tri-al of any proceeding commenced prior to the date of this Act [Dec. 5, 1974], nor to appellate review of any pro-ceeding which was fully submitted to the reviewing court prior to the date of this Act.”CROSS REFERENCES Application to other courts, see 28 USCA § 460. Arbitrators subject to disqualification rules under this section, see 28 USCA § 656. Bias or prejudice of judge, see 28 USCA § 144. Disqualification of trial judge to hear appeal, see 28 USCA § 47. United States Court of Veterans affairs, judges and proceedings of subject to this section, see 38 USCA § 7264. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • 28 U.S.C.A. § 455 Page 5LAW REVIEW COMMENTARIES Adjudicatory independence and the values of procedural due process. Martin H. Redish and Lawrence C. Marshall. 95 Yale L.J. 455 (1986). Adversary proceedings in bankruptcy. John Silas (“Si”) Hopkins, III, 39 Prac.Law. 55 (Sept.1993). Conflicts of interest in Bush v. Gore: Did some justices vote illegally? Richard K. Neumann, Jr., 16 Geo. J. Legal Ethics 375 (2003). Disqualification of Judges in California. J. Maloney. 16 U.S.F.L.Rev. 229 (1982). Disqualification of Supreme Court Justices: The certiorari conundrum. Steven Lubet, 80 Minn.L.Rev. 657 (1996). Divergence of standards of conduct and standards of review in corporate law. Melvin Aron Eisenberg, 62 Fordham L.Rev. 437 (1993). Expanding the reach of alternative dispute resolution in bankruptcy: The legal and practical bases for the use of mediation and the other forms of ADR. Ralph R. Mabey, Charles J. Tabb, and Ira S. Dizengoff, 46 S.C.L.Rev. 1259 (1995). Extrajudicial source doctrine and its implications for judicial disqualification. 48 Ark.L.Rev. 1059 (1995). Illegitimacy of the extrajudicial source requirement for judicial disqualification under 28 U.S.C. § 455(a). Note, 15 Cardozo L.Rev. 787 (1993). Impeach Brent Benjamin now!? Giving adequate attention to failings of judicial impartiality. Jeffrey W. Stempel, 47 San Diego L. Rev. 1 (February/March 2010). Informal methods of judicial discipline. Charles Gardner Geyh, 142 U.Pa.L.Rev. 243 (1993). Judicial bias and financial interest as grounds for disqualification of federal judges. Seth E. Bloom, 35 Case W.Res.L.Rev. 662 (1984-85). Liteky v. United States: Jeopardizing judicial integrity. 40 Loy.L.Rev. 995 (1995). On the danger of wearing two hats: Mistretta and Morrison revisited. Ronald J. Krotoszynski, Jr., 38 Wm. & Mary L.Rev. 417 (1997). Protecting the appearance of judicial impartiality in the face of law clerk employment negotiations. 62 Wash.L.Rev. 815 (1987). Questioning the impartiality of judges: Disqualifying federal district court judges under 28 U.S.C. § 455(a). Comment, 60 Temp.L.Q. 697 (1987). Safeguarding the litigants constitutional right to a fair and impartial forum: A due process approach to improprieties arising from judicial campaign contributions from lawyers. Note, 86 Mich.L.Rev. 382 (1987). © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • 28 U.S.C.A. § 455 Page 6 Should bias and interest lead to dissimilar results in judicial qualification practice? 27 Ariz.L.Rev. 171 (1985).LIBRARY REFERENCESAmerican Digest System Judges 39 to 56. Key Number System Topic No. 227.Corpus Juris Secundum CJS Bankruptcy § 34, Bias or Knowledge. CJS Bankruptcy § 35, Personal or Family Involvement. CJS Bankruptcy § 36, Involvement of Former Law Associate. CJS Bankruptcy § 37, Financial or Other Interest. CJS Constitutional Law § 1624, Right to Qualified and Competent Judge--Disqualification of Judge or Ma- gistrate. CJS Federal Civil Procedure § 888, Disqualification. CJS Federal Courts § 525, Effect of Transfer of Cause or Proceedings Therefor. CJS Federal Courts § 630, Application of Rules to Particular Errors. CJS Judges § 235, Consent. CJS Judges § 243, Federal Statutes. CJS Judges § 248, Business, Political, and Social Relations. CJS Judges § 257, Judge as Witness. CJS Judges § 266, Particular Statements or Expressions--Public Comment. CJS Judges § 319, Review. CJS Justices of the Peace § 50, Disqualification to Act. CJS Mandamus § 83, Judges--Recusal.RESEARCH REFERENCESALR Library52 ALR, Fed. 2nd Series 227, Jurisdiction of and Standing Before the United States Judicial Conference or ItsCommittee on Judicial Conduct and Disability.34 ALR, Fed. 2nd Series 589, Disqualification of Federal Judge Under 28 U.S.C.A. § 455(B)(3), Providing forDisqualification of Judges Who Formerly Served in Government.11 ALR, Fed. 2nd Series 435, Bankruptcy Rule 9011 Sanctions in Chapter 7 Bankruptcy Proceedings.5 ALR, Fed. 2nd Series 31, Bankruptcy Rule 9011 Sanctions in Chapter 11 Bankruptcy Proceedings. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 1637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) United States Court of Appeals, Fifth Circuit. Unit A Barbara PHILLIPS, Cornell Green Rice, Melvin Phillips, and Mississippi Council on Human Relations, a cor- poration, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. The JOINT LEGISLATIVE COMMITTEE ON PERFORMANCE AND EXPENDITURE REVIEW OF the STATE OF MISSISSIPPI et al., Defendants-Appellees. The MISSISSIPPI COUNCIL ON HUMAN RELATIONS, a corporation, Barbara Phillips, Melvin Phillips and Cornell Green Rice, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v.The BOARD OF TRUSTEES OF the INSTITUTION OF HIGHER EDUCATION a/k/a The State College Board et al., Defendants-Appellees. Barbara PHILLIPS, Melvin Phillips and Cornell Green Rice, individually and on behalf of a class, Plaintiffs- Appellants, v. The STATE OF MISSISSIPPI AGRICULTURAL AND INDUSTRIAL BOARD et al., Defendants-Appellees. Nos. 79-2131, 79-2940 and 79-3550. Feb. 23, 1981. Rehearing Denied April 27, 1981. Employment discrimination actions were brought against three state agencies. The United States DistrictCourt for the Southern District of Mississippi, William Harold Cox and Walter L. Nixon, Jr., JJ., denied motionsfor recusal, denied most motions for class certification, and entered judgment on the merits in favor of the de-fendants and plaintiffs appealed. The Court of Appeals, Wisdom, Circuit Judge, held that: (1) evidence of state-ments made by district judge in prior cases involving racial discrimination did not provide basis for recusal; (2)class certification was improperly denied; (3) racial discrimination on a class basis on the part of one employerwas established; and (4) racial discrimination was shown in a number of the individual cases. Affirmed in part and reversed and remanded in part. West Headnotes[1] Judges 227 51(4)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(4) k. Determination of Objections. Most Cited Cases If affidavit of recusal is timely and technically correct, its factual allegations must be taken as true; judgemust pass on legal sufficiency of the affidavit but may not pass on the truth of the matters alleged. 28 U.S.C.A. §144. EXHIBIT "F" © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 2637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)[2] Judges 227 51(3)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(3) k. Sufficiency of Objection or Affidavit. Most Cited Cases Affidavit of recusal is legally sufficient if the facts are material and stated with particularity, the facts aresuch that they would convince a reasonable person that bias exists if they are true, and the facts show that the bi-as is personal as opposed to judicial in nature. 28 U.S.C.A. §§ 144, 455.[3] Judges 227 51(4)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(4) k. Determination of Objections. Most Cited Cases Under statute requiring a judge to disqualify himself in any proceeding in which his impartiality might bereasonably questioned, judge need not accept all the allegations by moving party as true and, in fact, no motionat all is required; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of howor by whom they are drawn to his attention. 28 U.S.C.A. § 455.[4] Judges 227 49(1)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(1) k. In General. Most Cited Cases The alleged bias of a judge must be personal as distinguished from judicial in nature in order to require re-cusal. 28 U.S.C.A. §§ 144, 455.[5] Judges 227 49(1)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(1) k. In General. Most Cited Cases Motion for disqualification ordinarily may not be predicated on the judges rulings in the instant case or inrelated cases nor on a demonstrated tendency to rule in any particular way nor on any particular judicial leaningor attitude derived from his experience on the bench. 28 U.S.C.A. §§ 144, 455.[6] Judges 227 49(1)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(1) k. In General. Most Cited Cases The fact that a judges remarks or behavior take place in the judicial context does not exclude them from © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 3637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)scrutiny and from requiring recusal if they reflect such pervasive bias and prejudice as would constitute biasagainst one of the parties. 28 U.S.C.A. §§ 144, 455.[7] Judges 227 49(2)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(2) k. Statements and Expressions of Opinion by Judge. Most Cited Cases Where most of the allegations of bias concerned the trial judges rulings or comments on the merits in previ-ous cases, where some of the older remarks reflecting racial reactions which were outmoded and improper werenot gratuitous insults and did not show overt hostility, and where all of the allegations concerned the judges fi-nal conclusions or immediate reactions on points of law or facts in the case before him, they did not require re-cusal. 28 U.S.C.A. §§ 144, 455.[8] Federal Courts 170B 819170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)4 Discretion of Lower Court 170Bk819 k. Change of Venue; Disqualifying Judge; Continuance. Most Cited CasesJudges 227 51(4)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(4) k. Determination of Objections. Most Cited Cases Recusal motion is committed to the sound discretion of the district judge and on appeal it will be asked onlywhether he has abused his discretion. 28 U.S.C.A. §§ 144, 455.[9] Federal Civil Procedure 170A 184.10170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represented 170Ak184 Employees 170Ak184.10 k. Discrimination and Civil Rights Actions in General. Most Cited Cases (Formerly 170Ak184) Where neither party could determine how many black applicants there were, let alone identify all of them,and where the class included future and deterred applicants who were necessarily unidentifiable, joinder was im-practicable even if the number was small. Fed.Rules Civ.Proc. Rule 23(a)(1), 28 U.S.C.A.[10] Federal Civil Procedure 170A 171 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 4637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak171 k. In General; Certification in General. Most Cited Cases Requirement that the district court decide whether to certify a class in any case as soon as possible after thecommencement of the action is a command to the district court, not to the parties, and the court has an obliga-tion to make the determination on its own motion if necessary. Fed.Rules Civ.Proc. Rule 23(c)(1), 28 U.S.C.A.[11] Federal Civil Procedure 170A 164170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class; Typicality. Most Cited Cases Fact that plaintiffs had delayed in making motion to certify the case did not show that they would be inad-equate class representatives, especially where a good deal of the time had been consumed in litigating motionsfor change of venue and for recusal.[12] Federal Civil Procedure 170A 171170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak171 k. In General; Certification in General. Most Cited Cases Even if attorney for plaintiffs would be disqualified from representing the class, it does not follow that theclass may not be certified; court may make certification contingent on replacement of counsel or on severance ofthe individual claim of the offending class representative.[13] Federal Civil Procedure 170A 164170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class; Typicality. Most Cited Cases Fact that one of the named plaintiffs was an attorney for the civil rights law firm representing the plaintiff,although she was not acting as an attorney in the case, did not preclude class representation on the theory thatshe was an inadequate representative because of a potential conflict with other class members where any attor-ney fees granted in the case would come directly from the defendants and not from any fund created for class re-lief. Civil Rights Act of 1964, § 706(k) as amended 42 U.S.C.A. § 2000e-5(k).[14] Federal Civil Procedure 170A 184.10170A Federal Civil Procedure © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 5637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represented 170Ak184 Employees 170Ak184.10 k. Discrimination and Civil Rights Actions in General. Most Cited Cases (Formerly 170Ak184) Where named plaintiffs did not seek to represent a class consisting exclusively of persons who had been de-terred from making applications because of the racial policies of the employer, but, rather, also sought to repres-ent unsuccessful applicants, the named plaintiffs could represent the persons who had been deterred from apply-ing.[15] Federal Courts 170B 858170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)5 Questions of Fact, Verdicts and Findings 170Bk855 Particular Actions and Proceedings, Verdicts and Findings 170Bk858 k. Civil Rights Cases. Most Cited Cases District courts finding of nondiscrimination is a determination of ultimate fact to which the clearly erro-neous standard does not apply.[16] Civil Rights 78 154578 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1545 k. Prima Facie Case. Most Cited Cases (Formerly 78k383, 78k44(1)) Evidence that general population of the state was 37.2% black, that total civilian work force was 29.8%black, that 31.6% of the persons registering at the state Employment Security Commission for professional jobswere black, that 27.8% of those registering for clerical or sales jobs were black, and that the percentage ofblacks at one employer was between 1.5% and 6.5% black made out a prima facie case of discrimination.[17] Civil Rights 78 114278 Civil Rights 78II Employment Practices 78k1142 k. Educational Requirements; Ability Tests. Most Cited Cases (Formerly 78k199.1, 78k199, 78k13.11)Civil Rights 78 1331(5)78 Civil Rights 78III Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1331 Persons Aggrieved, and Standing in General © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 6637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) 78k1331(5) k. Employment Practices. Most Cited Cases (Formerly 78k199.1, 78k199, 78k13.11) Named plaintiffs who all had college degrees lacked constitutional standing to challenge legality of employ-ers educational requirements for a college degree for certain positions.[18] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence of disparity between number of blacks in the work force and the number of blacks hired by em-ployer, evidence of employers history of discrimination in not having hired a single black during its first threedecades of existence, and evidence that hiring procedures relied heavily on subjective judgments of executivesfrom personal interviews demonstrated discrimination against blacks.[19] Civil Rights 78 112178 Civil Rights 78II Employment Practices 78k1121 k. Hiring. Most Cited Cases (Formerly 78k142, 78k9.10) Whether subjectivity in hiring is necessary or not, subjective judgments are suspect as job qualificationswhen they are exercised by members of an all white executive or supervisory staff.[20] Civil Rights 78 156278 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1559 Relief 78k1562 k. Affirmative Action; Recruitment and Hiring. Most Cited Cases (Formerly 78k393, 78k46(4), 78k46) In view of past discrimination against blacks by state agency, court should direct the agency to set goals ofapproximately 20% black employment, separately for clerical and nonclerical positions, should require it to un-dertake an aggressive campaign of recruitment and advertising to procure sufficient qualified black applications,and should, until those goals were achieved, require that one-third of all persons hired within a predeterminedsix-month period for permanent clerical or nonclerical jobs be black.[21] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k43) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 7637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Civil Rights 78 154578 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1545 k. Prima Facie Case. Most Cited Cases (Formerly 78k383, 78k44(1)) To raise a prima facie case of employment discrimination, plaintiff must show that he belongs to a racialminority, that he applied and was qualified for job which the employer was seeking applicants, that he was re-jected despite his qualifications, and that the position remained open after his rejection; burden then shifts to theemployer to show some legitimate, nondiscriminatory reason for the applicants rejection; plaintiff is then af-forded an opportunity to show that the employers stated reason is, in fact, a pretext.[22] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Employer bears the burden of showing a legitimate reason for rejection of minority applicant by a prepon-derance of the evidence.[23] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k44(1)) Evidence of employers belief that black applicant had taken another position did not rebut a prima facieshowing of employment discrimination where the employer claimed that an immediate decision to hire the ap-plicant had been made but the employer procrastinated for several weeks without making an offer and where theevidence showed that race was a consideration.[24] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k44(1)) Fact that black applicant had indicated that he left his previous position because it required excessive travelwas insufficient to rebut a prima facie case of discrimination against the black applicant on the theory that hehad expressed a reservation about job-related travel where the employer described the travel requirements to theapplicant but did not ask him if the travel requirements would be excessive. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 8637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)[25] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) In view of evidence that it was the routine practice of the employer to make no effort to further contact“walk-in” applicants, black walk-in applicant did not establish that denial of employment was due to racial dis-crimination.[26] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence established that black applicant was not qualified for any vacant position.[27] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence that, during the year following black applicants application, only one white applicant was hiredfor position for which the black applicant might have been qualified and that the white applicant was more qual-ified demonstrated that black applicant had not been discriminated against on the basis of race.[28] Civil Rights 78 112178 Civil Rights 78II Employment Practices 78k1121 k. Hiring. Most Cited Cases (Formerly 78k141, 78k9.10) “Vacancy” within the meaning of the McDonnell Douglas test need not exist on the precise day of the ap-plication; any vacancies within a reasonable time must be considered as well.[29] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 9637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) Evidence that white was hired as a secretary scarcely two months after black secretary applied and absenceof evidence that white was more qualified established that black was discriminated against because of her race.[30] Civil Rights 78 154578 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1545 k. Prima Facie Case. Most Cited Cases (Formerly 78k383, 78k44(1)) Establishment of liability on class claim of employment discrimination operates to establish a prima faciecase on behalf of each member of the class.[31] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence that, after employer obtained necessary federal funds for position which it intended to offer blackapplicant, it was informed that the black applicant had moved to another city to resume her law studies and thatit then abandoned its plans for the new job demonstrated that the failure to hire the black applicant was based ona belief that she was no longer interested in employment and not racial discrimination.[32] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k44(1)) Belief that black applicants were available for employment for only a short period of time based on the factthat they took other employment did not rebut prima facie case of racial discrimination.[33] Civil Rights 78 151178 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1511 k. Civil Actions in General. Most Cited Cases (Formerly 78k361, 78k38) Black applicant for a job is not required to either remain permanently unemployed or forfeit his cause of ac-tion for racial discrimination.*1017 Frank R. Parker, Nausead Stewart, Jackson, Miss., for plaintiffs-appellants Barbara Phillips et al. in No.79-2131. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 10637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Stewart & Parker, Nausead Stewart, Lawyers Committee for Civil Rights Under Law, Jackson, Miss., McTeer,Walls, Bailey & Buck, Charles Victor McTeer, Greenville, Miss., for plaintiffs-appellants Miss. Council on Hu-man Relations et al.Ross, Hardies, OKeefe, Babcock & Parsons, William Freivogel, Susan G. Lichtenfeld, Chicago, Ill., NauseadStewart, Lawyers Committee for Civil Rights Under Law, Jackson, Miss., for plaintiffs-appellants Barbara Phil-lips et al. in No. 79-3550.James M. Ward, Sp. Counsel, Starkville, Miss., Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., A. F. Summer,Atty. Gen., State of Miss., Dept. of Justice, Jackson, Miss., for defendants-appellees Joint Leg. Committee et al.Ed. Davis Noble, Jr., Asst. Atty. Gen., Bill Allain, Atty. Gen., Jackson, Miss., M. M. Roberts, Hattiesburg,Miss., for defendants-appellees Bd. of Trustees of Institution of Higher Ed. et al.Bill Allain, Atty. Gen., Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., Jackson, Miss., James M. Ward, Sp.Counsel, Starkville, Miss., for defendants-appellees State of Miss. Agricultural and Indus. Bd. et al.Appeals from the United States District Court for the Southern District of Mississippi.Before WISDOM, RUBIN and SAM D. JOHNSON, Circuit Judges.WISDOM, Circuit Judge: These appeals concern three allied lawsuits brought against Mississippi state agencies for employment dis-crimination. The named plaintiffs are the same in the three *1018 cases: Barbara Phillips, Melvin Phillips (notrelated), and Cornell Green Rice.[FN1] All are black. In each case the plaintiffs sought to represent a class ofblack job applicants. FN1. The Mississippi Council on Human Relations was an original party plaintiff in all three cases. It was dismissed for lack of a real interest in the outcome in the PEER and A&I cases. The defendant [FN2] in No. 79-2940 is the Joint Legislative Committee on Performance Evaluation and Ex-penditure Review (“PEER”), an arm of the Mississippi legislature with power to conduct performance evalu-ations, investigations, and critical examinations of all expenditures by any state agency. It is composed of fivemembers of each House. It employs a staff of about twenty research analysts and clerical workers. Its offices arein Jackson. FN2. In all three cases there are also individual defendants: the members of each defendant board or committee, certain staff executives, and other present and former state officers. The defendant in No. 79-2131 is the Mississippi Agricultural and Industrial Board (“A&I”), an agency cre-ated to promote industrial and agricultural development and tourism. Its members are the Governor, the Lieuten-ant Governor, the Speaker of the Mississippi House, four state legislators, three other state officials, and twenty-five public members appointed by the Governor. Among its functions are approval of industrial bond issues,study and recommendation of tax exemptions for Mississippi ports and harbors, and dissemination of tourist in-formation. The Board employs a staff of sixty to eighty persons at its main office in Jackson. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 11637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) The defendant in No. 79-3550 is the Board of Trustees of the Institutions of Higher Learning (commonlyknown as the College Board), the governing body for Mississippis state universities and colleges. Its membersare appointed by the Governor. The Board employs a staff of about eighteen financial analysts and clericalworkers in Jackson. This suit concerns the Boards employment practices with regard only to that staff and not tothe university system generally. All three suits were brought as class actions in the Northern District of Mississippi, alleging racial discrim-ination in the defendants employment practices in violation of Title VII of the Civil Rights Act of 1964 asamended. [FN3] The cases were transferred to the Southern District of Mississippi under 28 U.S.C. s 1404(a)(1976). Although the PEER and A&I cases were consolidated for some preliminary purposes, the three weretried separately.[FN4] In the PEER and A&I cases the plaintiffs moved for the district judges recusal. The mo-tions were denied, and this Court refused to issue a mandamus ordering recusal of the trial judge. In re Phillips,No. 76-4038 (5 Cir. Nov. 19, 1976). In the PEER and College Board cases, the court refused to certify the al-leged classes. In the A&I case the court certified a class of all past black unsuccessful job applicants, but refusedto broaden the class to include future black applicants or persons deterred from applying by A&Is alleged dis-criminatory practices or reputation. After full trials on the merits, the court granted judgments for the defendantson all claims. FN3. 42 U.S.C. ss 2000e to 2000e-17 (1976). The complaints also cited id. ss 1981, 1983. The plaintiffs appeal only on the Title VII judgments. FN4. The PEER and A&I cases were assigned to Hon. William Harold Cox. U.S. Magistrate John R. Countiss presided over the trials and most other proceedings in the cases. Judge Cox adopted Magistrate Countisss findings of fact and conclusions of law. The College Board case was assigned to and tried by Hon. Walter L. Nixon, Jr. On appeal, the plaintiffs contend (1) that the district judge erroneously refused to recuse himself in the A&Icase; [FN5] (2) that the court improperly refused to certify classes in the PEER and College Board cases; (3) thatthe court improperly narrowed the class certified in the A&I case; and (4) that the courts judgments on the mer-its are legally incorrect or clearly erroneous. We affirm the district courts decisions*1019 as to recusal and as tosome of the individual claims. We reverse, however, as to the remaining individual claims, as to the class certi-fication issues, and as to the merits of the class claim in the A&I case. FN5. As noted, the same judge refused recusal in the PEER case as well. The plaintiffs have chosen not to appeal that decision. I. RECUSAL Barbara Phillips, acting on behalf of her co-plaintiffs, filed an Affidavit of Personal Bias and Prejudice inthe A&I case, seeking the recusal of Judge William Harold Cox. Phillipss affidavit did not state any facts relat-ing to any bias against any of the particular plaintiffs or in favor of any of the particular defendants in the case.Rather, she attempted to show that Judge Cox is prejudiced against all blacks and that he is hostile to civil rightssuits. Some of her allegations are conclusory accusations, lacking in particularity. Others recite particular judi-cial rulings, quotations from written opinions, and alleged remarks from the bench, in five cases over JudgeCoxs nineteen-year judicial career. Phillips also recited statistics concerning the frequency with which thisCourt has affirmed or reversed Judge Coxs rulings in civil rights cases. [1][2] There are two statutes governing recusal of federal district judges. 28 U.S.C. ss 144, 455 (1976). Sec- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 12637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)tion 144 provides in part: Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. If an affidavit filed under section 144 is timely and technically correct, its factual allegations must be takenas true for purposes of recusal. The judge must pass on the legal sufficiency of the affidavit, but he may not passon the truth of the matters alleged. Berger v. United States, 1921, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Par-rish v. Board of Commissioners, 5 Cir. 1975, 524 F.2d 98, 100 (en banc), cert. denied, 425 U.S. 944, 96 S.Ct.1685, 48 L.Ed.2d 188 (1976); Davis v. Board of School Commissioners, 5 Cir. 1975, 517 F.2d 1044, 1051, cert.denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); United States v. Roca-Alvarez, 5 Cir. 1971, 451F.2d 843, 847-48. In Parrish, we stated that an affidavit is legally sufficient if it meets a three-part test: 1. The facts must be material and stated with particularity. 2. The facts must be such that, if true, they would convince a reasonable person that bias exists. 3. The facts must show the bias is personal, as opposed to judicial in nature. 524 F.2d at 100, quoting United States v. Thompson, 3 Cir. 1973, 483 F.2d 527, 528, cert. denied, 415 U.S.911, 94 S.Ct. 1456, 39 L.Ed.2d 496 (1974). [3] Congress rewrote the second statute, section 455, in 1974. Subsection (b) of that section lists a numberof specific situations in which a judge must recuse himself; none apply here. Subsection (a), a more general pro-vision, requires that Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455, unlike section 144, does not stipulate a formal procedure by which it must be raised. Like sec-tion 144, however, it may be raised by motion. Davis, 517 F.2d at 1051. Substantively, the two statutes are quitesimilar, if not identical.[FN6] FN6. To the extent that there is a difference, section 455 imposes the stricter standard: a movant under section 144 must allege facts to convince a reasonable person that bias exists, Parrish, 524 F.2d at 100, while under the broader language of section 455, he must show only that a reasonable person “would harbor doubts about the judges impartiality”, Potashnick v. Port City Constr. Co., 5 Cir. 1980, 609 F.2d 1101, 1111 (emphasis added), cert. denied, -- U.S. --, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). See Com- ment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 243-50 (1978). See also Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745-50 (1973). On the other hand, section 455, unlike section 144, does not require the judge to accept all allegations by a moving party as true. Indeed, the section requires no motion at all; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. See Fredonia Broadcasting Corp. v. RCA Corp., 5 Cir. 1978, 569 F.2d 251, 254-57, cert. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 13637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1979). Section 144, by contrast, requires allega- tion by affidavit within a stringent time limit and allows a party only one such affidavit in any case. If a party could bind a judge by his factual allegations in a section 455 motion, free from the formal re- quirements and more demanding standard of proof of section 144, the result would be a virtual open season for recusal. See 46 U.Chi.L.Rev. at 250. [4][5][6] *1020 Under either statute, the alleged bias must be “personal”, as distinguished from judicial, innature. Davis, 517 F.2d at 1052; Parrish, 524 F.2d at 100; Steering Committee v. Mead Corp., 5 Cir. 1980, 614F.2d 958, 964-65; United States v. Serrano, 5 Cir. 1979, 607 F.2d 1145, 1150, cert. denied, 445 U.S. 965, 100S.Ct. 1655, 64 L.Ed.2d 241 (1980); Whitehurst v. Wright, 5 Cir. 1979, 592 F.2d 834, 837-38; Heppele v. John-ston, 5 Cir. 1979, 590 F.2d 609, 613; United States v. Archbold-Newball, 5 Cir. 1977, 554 F.2d 665, 682, cert.denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1973). The point of the distinction is that the bias “muststem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judgelearned from his participation in the case”. United States v. Clark, 5 Cir. 1979, 605 F.2d 939, 942 (per curiam).Thus, a motion for disqualification ordinarily may not be predicated on the judges rulings in the instant case orin related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaningor attitude derived from his experience on the bench. United States v. Grinnell Corp., 1966, 384 U.S. 563, 583,86 S.Ct. 1698, 1710, 16 L.Ed.2d 778, 793; Berger, 255 U.S. at 31, 41 S.Ct. at 232; Steering Committee, 614F.2d at 964; Serrano, 607 F.2d at 1150; Clark, 605 F.2d at 942; United States v. Caicedo-Asprilla, 5 Cir. 1980,632 F.2d 1161, 1165. [FN7] FN7. The single fact that a judges remarks or behavior take place in a judicial context does not exclude them from scrutiny if they reflect “such pervasive bias and prejudice ... as would constitute bias against a party”. Davis, 517 F.2d at 1051; Whitehurst, 592 F.2d at 838. See also United States v. Ritter, 10 Cir. 1976, 540 F.2d 463 (per curiam), cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976). [7] Here, most of Phillipss allegations concern Judge Coxs rulings or comments on the merits in previouscases. Some of them are misleadingly quoted out of context. At times, especially in some of the older instances,his remarks reflected racial reactions not only outmoded but improper. These remarks were unseemly, and we donot condone them. Nevertheless, they are not enough to require recusal. The comments alleged are not gratuit-ous insults and do not show overt hostility or the like; in every instance they concern the district judges finalconclusions or immediate reactions on points of fact or law in the case before him. We would be reluctant, inany but an extreme case, to base a disqualification order on such allegations. It is a district judges duty to con-duct trials, weigh evidence, consider the law, exercise his discretion, and reach decisions in the cases on whichhe sits. If he understands that a seemingly harsh comment toward a party or an attorney, or a perceived tendencyto give severe sentences to some class of offenders, or an aggregate imbalance in victories for plaintiffs or de-fendants in a particular class of cases may subject him to a train of successful recusal motions in future cases, hemay consciously or subconsciously shape his judicial actions in ways unrelated to the merits of the cases beforehim. Whether his conclusions in every case are the same as those that we (or these plaintiffs) would havereached is immaterial. A judge is not a computing machine, and the judicial system is not constructed so thateach judge must reach the same result as all other judges in a given case. If a judges “error” amounts to incor-rect law or an abuse of discretion, appellate courts exist to correct it. Within that boundary, he not only may, butshould, exercise his independent judgment on the facts and on the law. Presumably, for this attribute, among*1021 others, he was appointed. See Serrano, 607 F.2d at 1150-51; United States v. Johnson, 4 Cir. 1976, 537F.2d 1170, 1175; Baskin v. Brown, 4 Cir. 1949, 174 F.2d 391, 394; B. Cardozo, The Nature of the Judicial Pro-cess 98-141 (1921); Davis, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 14637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Law 69, 73-74 (R. Pound, ed., 1964); Friendly, The Courts and Social Policy: Substance and Procedure, 33U.Miami L.Rev. 21 (1978); Advisory Committees Note, Fed.R.Evid. 201. We do not mean to hold that prejudice against a class, as opposed to a particular litigant, can never form thebasis for recusal. See Davis, 517 F.2d at 1051. Nor do we say that a clearly evinced policy of disregarding themerits in any class of cases can withstand a recusal motion. See United States v. Thompson, 3 Cir. 1973, 483F.2d 527, cert. denied, 415 U.S. 911, 94 S.Ct. 1456, 39 L.Ed.2d 496 (1974). See also United States v. Clements,5 Cir. 1981, 634 F.2d 183. But we caution against a district judge disqualifying himself on the basis of an allega-tion of a perceived history of rulings that a moving party dislikes. This case provides a good example of the res-ults that might follow. Phillipss affidavit contains nothing pertaining to the parties or subject matter of the A&Icase; it could be repeated, word for word, by literally any black civil rights plaintiff from now until Judge Coxsretirement. With only minor modifications, it could be used by any black party a black criminal defendant, say.This is a type of recusal for whole classes of cases, without the constitutional safeguards that protect a judgefrom removal from office save by impeachment. The Constitution does not contemplate that we dispense with ajudges service on such a grand scale on any but the most compelling showing. See Steering Committee, 614F.2d at 966; Archbold-Newball, 554 F.2d at 682; United States v. Partin, 5 Cir. 1977, 552 F.2d 621, 637 n.20,cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Congress has provided another remedy for ju-dicial intemperance. Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, Public Law96-458, s 3, 96th Congress, 94 Stat. 2035, 2036 (1980), amending 28 U.S.C. s 372. [8] We also do not suggest that Judge Cox was required not to recuse himself. Another judge, facing a simil-ar question, might well decide the other way. A recusal motion is committed to the sound discretion of the dis-trict judge, and on appeal we ask only whether he has abused his discretion. Davis, 517 F.2d at 1052; UnitedStates ex rel. Weinberger v. Equifax, Inc., 5 Cir. 1977, 557 F.2d 456, 463-64, cert. denied, 434 U.S. 1035, 98S.Ct. 768, 54 L.Ed.2d 782 (1978). We cannot say here that he has done so. II. CLASS CERTIFICATION The plaintiffs assert errors in all three cases concerning class certification. In the PEER case the districtcourt refused to certify a class of unsuccessful past black applicants, future black applicants, and persons de-terred from applying because of the Committees reputation or history as an employer given to race discrimina-tion. The court held that the purported class was not numerous enough under Fed.R.Civ.P. 23(a)(1). In the Col-lege Board case the court refused to certify a similar class on the ground that the plaintiffs did not show that theycould adequately represent the class, in light of their delay in moving for class certification. In both cases the de-fendants assert an alternative ground for the courts refusal: an alleged conflict of interest between the plaintiffscounsel and the purported class. The A&I case presents the issues differently. There the court certified a class ofactual black applicants but refused to include future applicants and deterred persons, citing problems of numer-osity, delay in moving, and lack of nexus between the named plaintiffs and the excluded persons. We find thatnone of the asserted reasons justify the courts decisions to refuse certification or to narrow the class certified.A. Numerosity The district court in the PEER case noted that the plaintiffs had met all the requisites *1022 for certificationof a class under Rule 23(b)(2), except the requirement of Rule 23(a)(1) that the class be so numerous that joinderof all members is impracticable. Since PEER did not record the race of its applicants, it is impossible to tell ex-actly how many black applicants there were. The plaintiffs nonetheless established at a certification hearing thatthere were at least 33 such applicants; there may have been many more.[FN8] © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 15637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) FN8. The defendants tentatively identified eleven unsuccessful black applicants, based on the recollec- tion of PEER executives or on the fact that some applicants graduated from predominantly black uni- versities or colleges. Nausead Stewart, an attorney for the plaintiffs, testified that she was personally ac- quainted with eight other applicants and knew them to be black. Finally, fourteen black applicants were identified by comparing PEERs applicant list with a voter registration list for the City of Jackson. The court accepted the figure 33. 3 Record at 73. There may have been many more. Any black applicant who attended an integrated college, who did not register to vote in Jackson, and who did not know Stewart would not have been identified as black. [9] The problem before the district court, and now before us, is not simply to say whether 33 class membersare enough or too few to satisfy Rule 23(a)(1). Ample case law can be cited to show that smaller classes havebeen certified and larger ones denied certification for lack of numerosity. See 3B J. Moore & J. Kennedy, Feder-al Practice P 23.05 (2d ed. 1980). Such number comparisons miss the point of the Rule. The proper focus is noton numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the classand all other relevant factors. Here, neither party can even count how many black applicants there are, let aloneidentify all of them. Moreover, the alleged class includes future and deterred applicants, necessarily unidentifi-able. In such a case the requirement of Rule 23(a)(1) is clearly met, for “joinder of unknown individuals is cer-tainly impracticable”. Jack v. American Linen Supply Co., 5 Cir. 1974, 498 F.2d 122 (per curiam); Jones v. Dia-mond, 5 Cir. 1975, 519 F.2d 1090, 1100; see B. Schlei & P. Grossman, Employment Discrimination Law1095-97 (1976). The same reasoning holds true in the A&I case, where the district court cited numerosity as a ground for ex-cluding future and deterred applicants from the class certified. Moreover, aside from the inherent impracticabil-ity of joinder of such parties, there is the fact that the court did certify a class of actual applicants. It is hard tosee how a class already numerous enough can become insufficiently numerous through the inclusion of an un-known number of additional members. See Hebert v. Monsanto Co., 5 Cir. 1978, 576 F.2d 77, 80, vacated onother grounds, 580 F.2d 178 (5 Cir. 1978).B. Delay [10] Rule 23(c)(1) commands the district court to decide whether to certify a class in any case “as soon aspracticable” after commencement of the action.[FN9] The district court invoked the principle of that rule in re-fusing to certify a class in the College Board case, finding that the plaintiffs had delayed too long in moving forclass certification. This lapse, it held, warranted denial of the motion because it cast doubt on the plaintiffs abil-ity to represent the class adequately. See East Texas Motor Freight v. Rodriguez, 1977, 431 U.S. 395, 404-05, 97S.Ct. 1891, 1897, 52 L.Ed.2d 453, 463. Similarly, the court cited delay as a reason for narrowing the class in theA&I case.[FN10] FN9. Rule 23(c)(1) is cast as a command to the district court, not the parties; hence, a district court has an obligation to make the determination on its own motion if necessary. Gore v. Turner, 5 Cir. 1977, 563 F.2d 159, 165; United States v. United States Steel Corp., 5 Cir. 1975, 520 F.2d 1043, 1052, cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976); Garrett v. City of Hamtramck, 6 Cir. 1974, 503 F.2d 1236, 1243; Castro v. Beecher, 1 Cir. 1972, 459 F.2d 725, 731. FN10. This, of course, is inconsistent with the courts certification of the narrowed class in the A&I case. Since we conclude that delay would not justify a complete refusal to certify either the lesser or the greater class, we need not decide how best to resolve the inconsistency. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 16637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) [11] *1023 We think the court went too far in both cases. Neither East Texas Motor Freight nor any otherprecedent that we have found has held that delay in moving for certification is sufficient in itself to disqualify aparty as a class representative. The case would be different if the plaintiffs motion had been untimely under anapplicable local rule, but here there was no such rule.[FN11] Although the plaintiffs doubtless could have beenmore diligent in making their motion, in the circumstances of these cases we do not think their delay was so in-excusable as to render their representation inadequate. The record reflects that a good deal of the time was con-sumed in litigating the defendants motions in all three cases for a change of venue, the plaintiffs motions in twocases for recusal, and the plaintiffs attempt to obtain mandamus relief in this Court on the recusal issue. The restof the time was spent in extensive discovery, much of which was relevant to the class certification question. Ac-cordingly, we find that the district court was too draconian in refusing certification on this ground. FN11. S.D.Miss. Local Rule 18, requiring that plaintiffs move for class certification within 45 days of the filing of the last answer, had not been adopted at the time of trial.C. Conflict of Interest [12] The defendants in the PEER and College Board cases raise another ground for noncertification, one notrelied on by the district court.[FN12] This Court has adopted a per se rule under Canon 9 of the Code of Profes-sional Responsibility [FN13] that an attorney who is the partner or spouse of a named class representative is dis-qualified from acting as counsel for the class. Zylstra v. Safeway Stores, Inc., 5 Cir. 1978, 578 F.2d 102, follow-ing Kramer v. Scientific Control Corp., 3 Cir. 1976, 534 F.2d 1085, cert. denied, 429 U.S. 830, 97 S.Ct. 90, 50L.Ed.2d 94 (1976). In the PEER and College Board cases, counsel for the plaintiffs are the Lawyers Committeefor Civil Rights Under Law and two of its attorneys. Barbara Phillips, one of the three named plaintiffs in thetwo cases, is one of the attorneys for the Lawyers Committee (although she is not acting as an attorney in thesecases). Accordingly, the defendants argue, if the class were certified, the Lawyers Committee would be disqual-ified as counsel. For that reason, they say the plaintiffs are not adequate class representatives under Rule23(a)(4). [FN14] FN12. The district court has expressly rejected this contention in a related case. Mississippi Council on Human Relations v. Mississippi Dept. of Justice, Civil No. J76-118(R) (S.D.Miss.) (Opinion of June 18, 1980, on motion to disqualify counsel). FN13. “A lawyer should avoid even the appearance of professional impropriety.” FN14. The defendants attempted use of the Kramer-Zylstra rule requires something of a leap in logic. Kramer and Zylstra both involved motions to disqualify counsel. Each of the cases before us, by con- trast, involves a contention that a would-be class representative should not be allowed to serve. As the Kramer Court noted, the issues raised in the two contexts are “related, but not identical.... (One) relates to who may serve as class representative, while the (other) relates to who may serve as counsel.” 534 F.2d at 1088. Supposing that the Lawyers Committee is disqualified from representing the class under Zylstra, it does not necessarily follow that the class may not be certified. For example, the district court could make certification contingent on replacement of counsel or on severance of the individual claim of the offending class representative. We need not reach this problem, however, since we hold that the Lawyers Committee may properly represent the classes. [13] Although we agree wholeheartedly with the rule announced in Zylstra and Kramer, we hold that it doesnot apply here. Our holding in Zylstra is an exception to our general rejection of per se rules under Canon 9 in © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 17637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Woods v. Covington County Bank, 5 Cir. 1976, 537 F.2d 804. The Zylstra rule is directed at a particular ethicalproblem: the potential conflict that arises when a class representative stands (or appears to stand) to gain finan-cially from an award of attorneys fees made out of a class fund. Put simply, the cause for concern is that theclass representative may be too generous with the classs money in granting a fee to his own partner or spouse.*1024 See Zylstra, 578 F.2d at 104; Kramer, 534 F.2d at 1089-90, 1091; id. at 1093 (Rosenn, J., concurring).Here the problem does not arise. Any attorneys fee granted in these cases will come directly from the defend-ants under 42 U.S.C. s 2000e-5(k) (1976), and not from any fund created for class relief; hence, Ms. Phillipswould never have the opportunity for overgenerosity.D. Nexus [14] The district court in the A&I case concluded that it should exclude from the plaintiff class persons de-terred by A&Is policies from applying there because the named plaintiffs lack any “nexus” with deterred per-sons. The court reasoned that, since the named plaintiffs did apply to A&I, they have no standing to representpersons whose grievance is that they have been prevented from applying. This ground for narrowing the class is faulty as a matter of law. The argument would be sound if theseplaintiffs sought to represent a class consisting exclusively of deterred persons; in such a case the plaintiffswould lack standing to represent the putative class, in the same sense that a high school graduate lacks standingto bring a class action challenging a high school requirement. Payne v. Travenol Laboratories, Inc., 5 Cir. 1978,565 F.2d 895, 898-99, cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978); see East Texas MotorFreight v. Rodriguez, 1977, 431 U.S. 395, 403-04, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453, 461-63. Here, however,the plaintiffs are members of the class they seek to represent, and the only issue is the breadth of the definitionof that class. The requirement that the named plaintiffs claims be “typical” of the claims of the class,Fed.R.Civ.P. 23(a)(3), does not mean that all claims must be identical. Rather, a named plaintiff who has al-legedly suffered from the defendants racial discrimination may bring an “across the board” class action to rep-resent all persons who have suffered from the same discriminatory policies, whether or not all have experienceddiscrimination in the same way. Satterwhite v. City of Greenville, 5 Cir. 1978, 578 F.2d 987, 993-94 n.8 (enbanc), vacated on other grounds, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1979); Hebert v. Monsanto Co.,5 Cir. 1978, 576 F.2d 77, vacated on other grounds, 580 F.2d 178 (1978); Long v. Sapp, 5 Cir. 1974, 502 F.2d34; Johnson v. Georgia Highway Express, 5 Cir. 1969, 417 F.2d 1122. Hence, we have approved the practice ofallowing rejected applicants to represent classes including those deterred from applying. E. g., Jack v. AmericanLinen Supply Co., 5 Cir. 1974, 498 F.2d 122 (per curiam). Indeed, if this were not the case, most such personswould go without relief entirely, since it is unlikely that one of them would sue and qualify as a class represent-ative. Because the district court erred in refusing to certify any class in the PEER and College Board cases, we re-mand them for trial as to the class allegations. [FN15] The A&I case went to trial as a class action. It does notappear that the courts error in restricting the class scope could have affected the trial in any important way. Wetherefore reach the class merits in that case. FN15. Despite counsels statements to the contrary, it is apparent from the record that the court in each case conducted the trial solely as an action on the named plaintiffs individual claims, and that evidence pertaining to class allegations was excluded. PEER Transcript at 17-18; College Board Transcript at 21, 44, 49. We therefore decline to reach the class merits of these cases. III. THE MERITS: THE A&I CLASS ACTION © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 18637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) [15] In reviewing the merits of the case as to alleged class discrimination, we keep in mind that the districtcourts finding of nondiscrimination is a determination of ultimate fact to which the “clearly erroneous” standardof review does not apply. (We are bound, of course, by the district courts findings of subsidiary fact and judg-ments of credibility unless they are clearly erroneous.) Fed.R.Civ.P. 52(a); Williams v. Tallahassee Motors, Inc.,5 Cir. 1979, 607 F.2d 689, 690; East v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 338-39; Causey v. Ford MotorCo., 5 Cir. 1975, 516 F.2d 416, 420-21. *1025 The record indicates that the A&I Board employed no blacks from its inception in 1942 through1972. In 1973 the first black was hired to form and head a new subunit, the Office of Minority Business Enter-prise (OMBE). According to a stipulated set of employee lists, the Board employed five blacks in December1974 (7.9 percent of the Boards total); eleven blacks in December 1975 (12.0 percent); fifteen blacks in Decem-ber 1976 (17.6 percent); and thirteen blacks in 1977 (12.5 percent). These figures are skewed, however, by theinclusion of the OMBE staff and short-term employees hired under the federal Comprehensive Employment andTraining Act (CETA).[FN16] Both programs derive most of their funds from federal sources. OMBE has its ownhiring procedure, separate from the rest of the Board.[FN17] Its staff has always been all or nearly all black. Therecord does not reflect how CETA employees are hired, but their positions are temporary. The CETA program issubject to closer federal scrutiny as to equal employment practices than is A&Is employment generally. Exclud-ing these persons, the figures are much lower: one black (1.5 percent) in 1974; one black (1.4 percent) in 1975;seven blacks (9.5 percent) in 1976; and six blacks (6.5 percent) in 1977. Even these statistics hide another keyfact: although roughly half of the Boards staff is professional, technical or managerial, A&I has never hired ablack permanent employee (outside of OMBE) for anything but a clerical position. FN16. Pub.L.No.93-203, 87 Stat. 839 (1973), later codified at 29 U.S.C. ss 801 to 999 (Supp. III 1979). FN17. There is much dispute between the parties as to whether OMBE is really “part of” A&I. The point is unimportant. Thomas Espy, the OMBE director, did all the hiring for OMBE (subject to the ap- proval of the executive director), while Harold Cross, administrative assistant to the executive director, hired the staff for all other parts of A&I (likewise subject to approval). Thus, whether or not OMBE is operationally part of A&I, we cannot consider it as all of a piece with the rest of the Board for purposes of evaluating the fairness of A&Is hiring procedures. Most of the real debate between the parties concerns the relevant labor market to which A&Is hiring statist-ics are to be compared.[FN18] Actual applicant flow, often the best measurement, is unavailable here becauseA&I does not identify its applicants by race. Other statistical measures are necessarily imperfect in differingways and varying degrees. The best the court can do is to accept what figures are available; allow for imperfec-tions, skewing factors, and margins of error; and then take the figures for what they are worth. Sometimes this ismuch, sometimes little. See United Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 340, 97S.Ct. 1843, 1856, 52 L.Ed.2d 396, 418; Williams, 607 F.2d at 693; Hester v. Southern Ry., 5 Cir. 1974, 497 F.2d1374, 1379-81. FN18. Besides the problem of which demographic measurement best suits the case, there is disagree- ment as to the proper geographical area. Here, perhaps, is where a purely numerical analysis fails most visibly. There is never any ascertainable demarcation line showing from where a particular employer can or cannot draw employees. Whether a potential employee will commute or relocate to take a job de- pends not only on his personal tastes, but also on the types of work he does, prevailing economic condi- tions, the features of the two communities concerned, and any number of other factors. Moreover, the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 19637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) problem is inevitably complicated by the effect of the employers own recruiting and hiring practices. See generally Hazelwood School District v. United States, 1977, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768. In this case, the parties dispute whether the proper area is the entire state or only the Jackson Standard Metropolitan Statistical Area. The relevant figures, however, are remarkably close for both areas in nearly all important measures. The only substantial difference is that blacks make up a higher fraction of applicants for white collar jobs (professional, technical, managerial, clerical, and sales) in the Jack- son area than in the state at large. [16] The general population of Mississippi was 37.2 percent black at the time of the 1970 census. Accordingto figures from the Mississippi Employment Security Commission, the total civilian work force was 29.8 percentblack in 1977. In February 1978, 31.6 percent of persons registering at that Commission for professional, tech-nical, or managerial employment were black; 27.8 *1026 percent of registrants for clerical or sales jobs wereblack. Although these statistics have their flaws, we think the disparity between them and the Boards hiring re-cord is sufficient to raise a prima facie case of class discrimination and to shift the burden to the Board to showthat the discrepancy results from other causes. Robinson v. Union Carbide Corp., 5 Cir. 1976, 538 F.2d 652,659-61, modified on other grounds, 544 F.2d 1258 (5 Cir. 1977), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54L.Ed.2d 78 (1977). [17] A&Is only substantial response is to point out that only 11.5 percent of all high school graduates in theMississippi work force were black (as of 1973, the latest year for which figures are in evidence).[FN19] This ismaterial, but, by itself, it is insufficient. Many of A&Is clerical positions do not require a high school diploma,according to the Boards own job descriptions. Moreover, almost all of the nonclerical positions require a collegedegree; blacks made up 18.1 percent of the Mississippi work force with degrees. Considered against the figurefor A&Is black nonclerical hiring zero, outside of OMBE that figure does much to deflate the rebuttal argument.[FN20] FN19. Actually, the defendants state that 14.9 percent of such graduates are black. Appellees Brief at 12. This is due to the Boards misreading of the M.E.S.C. table, Plaintiffs Exhibit 32 at table 6: what that table states is that 14.9 percent of Mississippi blacks in the labor force are high school graduates. The error becomes more serious with regard to college graduates: the Board reports that only 3.7 per- cent of Mississippi college graduates are black, but a little long division shows that the correct figure is 18.1 percent. FN20. Because the named plaintiffs all have college degrees, they lack constitutional standing to chal- lenge the legality of A&Is educational requirements under Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, and Scott v. City of Anniston, 5 Cir. 1979, 597 F.2d 897, cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980). See Payne v. Travenol Laboratories, Inc., 5 Cir. 1978, 565 F.2d 895, 898-99, cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978). Accordingly, that issue is not presented in these cases, either here or in the district court. [18][19] Even so, we might hesitate to find discrimination in this case on the basis of these statistics alone.Here, however, there are other indicators. The district court found that A&I has a clear history of discrimination,not having hired a single black during its first three decades of existence. Its hiring procedures rely heavily onthe subjective judgments of its executives from personal interviews, a procedure that can easily be used to mask © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 20637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)racially motivated hiring decisions.[FN21] Such facts can buttress statistical evidence by suggesting a qualitat-ive explanation for a quantitative result. FN21. To note this fact is not necessarily to find fault with A&Is procedure or job criteria. In fact, the Boards bulky set of job descriptions is about as detailed and specific as can reasonably be expected. Given the nature of A& Is work, some subjectivity in hiring is unavoidable, especially with regard to nonclerical positions. Whether necessary or not, however, subjective judgments are suspect as job qual- ifications when they are exercised by members of an all-white executive or supervisory staff. See Jen- kins v. Caddo-Bossier Assn for Retarded Children, 5 Cir. 1978, 570 F.2d 1227, 1229 (per curiam). [20] In light of these facts, as found by the district court and amply supported by the record, we concludethat the district court erred in its conclusion of nondiscrimination against the class. On remand, the district courtshould direct the Board to set goals of about twenty percent black employment outside OMBE, separately forclerical and nonclerical positions. A&I should undertake an aggressive campaign of recruitment and advertise-ment to procure sufficient qualified black applicants to make these goals feasible. Further, until these goals areachieved, one third of all persons hired within predetermined six-month periods for permanent clerical or non-clerical jobs outside OMBE shall be black. The district court shall take any other concurrent or later actions ne-cessary to eliminate the effects of past discrimination at A&I and to procure the rights of the plaintiff class andits members. See Morrow v. Crisler, 5 Cir. 1974, 491 F.2d 1053 (en banc), cert. denied, 419 U.S. 895, 95 S.Ct.173, 42 L.Ed.2d 139 (1979); *1027Franks v. Bowman Transportation Co., 5 Cir. 1974, 495 F.2d 398, 418-20,revd in part on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); NAACP v. Allen, 5 Cir.1974, 493 F.2d 614; Davis v. County of Los Angeles, 9 Cir. 1977, 566 F.2d 1334, 1342-44, vacated as moot,440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); United States v. City of Chicago, 7 Cir. 1977, 549 F.2d415, 436-37, cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1978); Boston Chapter, NAACP, Inc. v.Beecher, 1 Cir. 1974, 504 F.2d 1017, 1026-28, cert. denied, 421 U.S. 910, 96 S.Ct. 1561, 43 L.Ed.2d 775 (1975); United States v. Masonry Contractors Assn, 6 Cir. 1974, 497 F.2d 871, 877; Erie Human Relations Commis-sion v. Tullio, 3 Cir. 1974, 493 F.2d 371; Bridgeport Guardians, Inc. v. Members of Bridgeport Civil ServiceCommission, 2 Cir. 1973, 482 F.2d 1333, 1339-41, cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481(1975); Carter v. Gallagher, 8 Cir. 1971, 452 F.2d 315, 330-31 (en banc), cert. denied, 406 U.S. 950, 92 S.Ct.2045, 32 L.Ed.2d 338 (1972). IV. THE MERITS: THE INDIVIDUAL CLAIMS [21][22] The standard and order of proof in an individual claim under Title VII are by now familiar. Toraise a prima facie case, the plaintiff must show (1) that he belongs to a racial minority; (2) that he applied andwas qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he wasrejected; and (4) that, after his rejection, the position remained open. The burden then shifts to the employer toshow some legitimate, nondiscriminatory reason for the applicants rejection.[FN22] The plaintiff is then af-forded a fair opportunity to show that the employers stated reason is in fact a pretext. McDonnell Douglas Corp.v. Green, 1973, 422 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Furnco Construction Co. v. Waters, 1978, 438U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957. This formula must not be applied mechanically, but flexibly, with aview toward the particular hiring procedures and factual situation presented. McDonnell Douglas, 411 U.S. at802, 93 S.Ct. at 1824; Peters v. Jefferson Chemical Co., 5 Cir. 1975, 516 F.2d 447, 450. On appellate review, weare bound by the district courts findings of credibility and of subsidiary fact unless they are clearly erroneous.The clear error standard, however, does not apply to the ultimate conclusion of discrimination or nondiscrimina-tion. Williams v. Tallahassee Motors, Inc., 5 Cir. 1979, 607 F.2d 689, 690; East v. Romine, Inc., 5 Cir. 1975,518 F.2d 332, 338-39; Causey v. Ford Motor Co., 5 Cir. 1975, 516 F.2d 416, 420-21. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 21637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) FN22. This Court has consistently held that the employer bears the burden of showing his legitimate reason by a preponderance of the evidence. Burdine v. Texas Department of Community Affairs, 5 Cir. 1979, 608 F.2d 563, 567; Turner v. Texas Instruments, Inc., 5 Cir. 1977, 555 F.2d 1251, 1255; Whiting v. Jackson State University, 5 Cir. 1980, 616 F.2d 116, 121; Jefferies v. Harris County Community Ac- tion Assn, 5 Cir. 1980, 625 F.2d 1025, 1030. The Supreme Court has granted certiorari on the question, however. Texas Department of Community Affairs v. Burdine, 447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1112 (1980). We, of course, adhere to the Fifth Circuit rule pending the Supreme Courts de- cision, but it is not a matter of importance; under our view of the cases, none of the nine individual claims present turn on the applicability or nonapplicability of the Burdine rule.A. The PEER Case [23] 1. Barbara Phillips. Barbara Phillips applied to the PEER Committee on July 12, 1974. She had inter-views with John Hamilton, the Director of the Committee staff, and John Turcotte, a staff auditor. Both mentestified that they were very favorably impressed with Phillipss credentials, her manner, and her knowledge ofPEERs functions.[FN23] At their request, she brought in a writing sample. The two men decided right away tohire Phillips, but they did not inform her of that. After the initial interview, Phillips was never told *1028 thatshe was under serious consideration.[FN24] Three weeks after their interview with her, Hamilton and Turcottesaw reports on television and in a newspaper that Ms. Phillips had filed EEOC complaints against PEER andother agencies and that she was acting as a consultant to the Mississippi Council on Human Relations.[FN25]The district court found that she would have been hired but for these news reports. Hence, it concluded, PEERestablished a legitimate reason for not hiring Phillips Hamiltons and Turcottes beliefs that she was already em-ployed. The court also held that Phillips had not shown that reason to be a pretext.[FN26] FN23. Transcript at 114, 188-89, 397-98. Usually we do not give transcript and record citations. We make an exception in this case for the convenience of this Court, should there be a petition for a rehear- ing en banc, and for the convenience of the Supreme Court, should there be an application for a writ of certiorari. FN24. Transcript at 128, 188, 345, 400. FN25. Transcript at 114-16, 128, 430-31. FN26. Record at 676-77. After carefully examining the record, we believe that this finding is clearly erroneous. The defendants the-ory fails because it cannot adequately explain why, if Hamilton and Turcotte were so impressed with Ms. Phil-lipss qualifications that they decided immediately to hire her, they procrastinated for several weeks. In fact, therecord shows that race was very much on their minds. Hamilton testified that hiring Phillips was “an importantdecision” because she would have been the first black employee at PEER. He and Turcotte were concernedabout the reaction of the white legislators on the Committee and the white staff to such a step, as well as Phil-lipss own reaction to the “alien world” of the white-dominated agency. The reason for the delay, both men testi-fied, was that they were mulling over the “significance” or “complexities” of hiring blacks at PEER.[FN27] Oneneed not question the good faith of Hamilton and Turcotte to conclude that the ultimate decision not to hire Ms.Phillips was as much due to her race as was the delay in offering her a position. Given their enthusiasm for herqualifications, it is hard to believe that they would not have at least inquired as to the possibility of hiring heraway from her “consulting” position but for their apprehensions about her race. [FN28] We do not mean to say © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 22637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)that Title VII always requires an employer to pursue black applicants even after they are hired elsewhere. Wehold only that, on the record in this case, we cannot avoid the conclusion that the reason offered was a conveni-ent way out of an uncomfortable decision in other words, a pretext. FN27. Transcript at 113, 118-19, 128-29, 144, 346-47, 362; see id. at 210, 262-63. FN28. Her position was, in fact, unpaid. Transcript at 224-25. [24] 2. Melvin Phillips. Melvin Phillips applied to PEER on August 30, 1974. John Turcotte interviewedhim. When he called back the next day he was told that there were no openings. The district court found thatTurcotte rejected Mr. Phillips because he had expressed a reservation during the interview about job-relatedtravel.[FN29] FN29. Record at 672. The court also noted that the next person hired, Susan Hymel, was better qualified than Phillips. This is immaterial, since Turcotte testified that the hiring of Hymel was not at all connec- ted with the rejection of Phillips. Transcript at 441. This finding is clearly erroneous. There is literally no evidence that Mr. Phillips said in his interview that hewas unwilling to travel. On the contrary: although Turcotte testified that he had told Phillips about the travel re-quirements of the job, he was certain that Phillips had not expressed any reservation about them.[FN30] FN30. Transcript at 463-64. Presumably, what the district court had in mind was Mr. Phillipss statement on his employment applicationthat he had left his last job because it required excessive travel.[FN31] Turcotte testified that it was this expres-sion of reluctance that had led to the decision not to hire Phillips.[FN32] If this was indeed the reason for the re-jection, it is insufficient as a matter of law to rebut Phillipss prima facie case. Turcottes reason was, at best, abare assumption about *1029 Phillipss intentions at the time of his application an assumption made all the moreunreasonable by Phillipss silence about the travel requirements Turcotte described to him and Turcottes failureto ask the obvious question. We have held that an unchecked assumption that an applicant would not accept ajob cannot be a legitimate reason for failing to offer the job, or at least to make inquiry about the assumption.Davis v. Jackson County Port Authority, 5 Cir. 1980, 611 F.2d 577. Here, in fact, Phillips testified that he hadnot said anything about travel because he was unemployed and needed the job to support his family. He latertook a job requiring travel. [FN33] FN31. Defendants Exhibit 2; see Transcript at 327. FN32. Transcript at 412, 415. FN33. Transcript at 331, 483. 3. Cornell Green Rice. On September 19, 1974, Cornell Rice visited PEERs offices to apply for a clerical orsecretarial job. She left a completed (although unsigned) application form with a receptionist, but she did notspeak with anyone else or set up an interview. She never called back or made any further effort to keep in con-tact with PEER. [25] The district court found that Rice did not make out a prima facie case because there were no vacanciesfor which she was qualified. This is probably incorrect.[FN34] Even so, it is clear from the record that the de- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 23637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)fendants showed a valid, nondiscriminatory reason for not hiring Rice. According to the uncontradicted testi-mony of Turcotte and Hamilton, it was routine practice at PEER to make no effort to make further contact with“walk-in” applicants those who do nothing more than leave or mail in a resume or application form. [FN35]Rices attempt to impeach this explanation by counterexample only reinforced it.[FN36] It is not for us to saywhether this procedure is sensible, or even fair; it is sufficient for our purposes that it is race-neutral and that ithas not been shown to be pretextual. Accordingly, we decline to disturb the district courts ruling on this claim. FN34. As we shall discuss later, a vacancy within the meaning of the McDonnell Douglas test does not mean only an opening existing at the precise date of application, but any opening during the time that the application remains active. The record shows that two white secretaries were hired within two months of Rices application. Record at 185-86. FN35. Transcript at 178-79, 454-55; see id. at 135. FN36. Transcript at 452-55.B. The College Board Case 1. Barbara Phillips. On July 9, 1974, Barbara Phillips went to the receptionists desk on the first floor of thebuilding in which the Boards offices are located. She took an application form home, filled it out, and mailed itin. Ten days later, Dr. E. E. Thrash, the Boards executive director, sent her a letter stating that there were no va-cancies for a person of Phillipss qualifications. [26] We find no clear error in the district courts finding that Ms. Phillips was not qualified for any vacantposition. The Board employs a staff of about 18 persons; most of its work concerns the financial problems ofMississippi higher education. Thrash testified that he rejected Phillips because there was nothing in her applica-tion to suggest that she had any experience or expertise in financial matters or in higher education.[FN37] Hereducation had been in history and in law, proficiency at which would not qualify her for any of the Boards pro-fessional positions.[FN38] Nor did she appear to be qualified for most clerical jobs, since she left blank thespace on her application for typing and shorthand skills.[FN39] She was qualified, Thrash testified, for the posi-tion of file clerk, but that job has not been open since before 1974. [FN40] We believe that this evidenceprovides adequate support for the district courts ruling. FN37. Transcript at 72, 76, 94; Plaintiffs Exhibit 13. FN38. Transcript at 72-74, 76, 94, 98. The Board handles none of its own legal work. Id. at 94-95. FN39. Plaintiffs Exhibit 13; Transcript at 72, 79. FN40. Transcript at 74, 79. *1030 2. Melvin Phillips. Melvin Phillips testified that he went to the College Board on September 6, 1974.A receptionist informed him that there were no application forms, but he had an informal interview with CharlesCoffman, an associate director. Coffman, Phillips said, told him that there were no openings then and that therewere no positions for persons with B.A. degrees. [FN41] FN41. Transcript at 213-15. The district court rejected Mr. Phillipss testimony and found that he had not applied to the Board. This was © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 24637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)error. This finding rests on a misreading of Coffmans testimony; indeed, the parties stipulated in the pretrial or-der that Phillips did apply.[FN42] FN42. Record at 735. Coffman did not testify that he never interviewed Mr. Phillips, but only that he did not recall doing so. He pointed out that he interviews many applicants and easily might not remem- ber one in particular. Transcript at 265-66. [27] Despite this discrepancy, we affirm the district courts ruling. Examination of the record reveals that,during the year following Mr. Phillipss application, only one white applicant was hired in a position that Phil-lips might have filled. That one, Ward Shaw, had a masters degree in economics and experience as a college in-structor. He was hired on a temporary basis to do a study of the feasibility of certain proposed program additionsat Alcorn State University, a job for which he was better qualified than Phillips. [FN43] Given this absence ofany relevant vacancies, we must agree that Phillips did not make out a prima facie case of racial discrimination. FN43. Plaintiffs Exhibit 4; Transcript at 77, 96-97. 3. Cornell Green Rice. Cornell Rice interviewed with Thrash on September 19, 1974. He told her that therewere no jobs open then and would be none in the foreseeable future. She left her resume and application. Shenever heard from the Board.[FN44] FN44. Transcript at 227-28. [28][29] The district court found that Rice was not hired because there were no vacancies when she applied.[FN45] This is clearly erroneous. The evidence shows that Bonnie Childers, a white, was hired as a secretaryscarcely two months after Rices application.[FN46] The defense made no attempt to show that Childers wasbetter qualified than Rice, and there is no indication of how long the vacancy she filled had existed.[FN47] Avacancy, within the meaning of the McDonnell Douglas test, need not exist on the precise day of application;any vacancies within a reasonable time must be considered as well. [FN48] McLean v. Phillips-Ramsey, Inc., 9Cir. 1980, 624 F.2d 70, 72 (per curiam); Neely v. City of Grenada, 1977, N.D.Miss., 438 F.Supp. 390, 409; seeEast v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 338. Since no attempt was made to show a legitimate reason forhiring Childers instead of Rice, we hold that Rice is entitled to judgment. FN45. Record at 920. The court also adverted to testimony that Robert Harrison, a black member of the Board, had approached Rice about working at the Board and that Rice had said she was not interested. It is not clear how much the court relied on that fact, but any reliance would have been misplaced. The evidence shows that, when Harrison approached Rice, she was earning more than the Board would pay. At the time of her application, by contrast, she was unemployed. Transcript at 137-40, 227. FN46. Plaintiffs Exhibit 4. FN47. Childerss application is in the record, Record at 392, but it is not obvious that her credentials or experience exceed Rices. She was not mentioned at trial. Through an apparent clerical error, the depar- ture date for the person Childers replaced is plainly misreported. Record at 559, 569. FN48. There is at least one example on the record, occurring a few months before Rices application, of a white applicant being hired months after applying. Plaintiffs Exhibit 3 (Martha DAquino).C. The A & I Case © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 25637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) [30] The individual claims in the A & I case come to us in a different posture from those in the other twocases because of our holding that the plaintiffs proved that A & I is guilty of discrimination against the *1031plaintiff class.[FN49] The establishment of liability on the class claim operates to establish a prima facie case onbehalf of each member of the class. Once the individual plaintiff proves that he applied unsuccessfully, the bur-den shifts to the employer to establish that its failure to hire that individual was the result of legitimate nondis-criminatory reasons. International Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 357-62, 97S.Ct. 1843, 1865-68, 52 L.Ed.2d 396, 428-32; Franks v. Bowman Transportation Co., 1976, 424 U.S. 747,771-73 & n.32, 96 S.Ct. 1251, 96 S.Ct. 1267-68 & n.32, 47 L.Ed.2d 444, 466-67. FN49. We also note that in this case, unlike the other two, there is no claim for backpay or other money relief. The complaint is expressly limited to a cause of action for injunctive and declaratory relief, and neither party introduced any evidence as to the propriety or amount of backpay awards. [31] 1. Barbara Phillips. Barbara Phillips visited the A & I Board during July 1974. She testified that shewas interviewed by Harold Cross, administrative assistant to the director, but other evidence shows (and the dis-trict court found) that Phillips actually spoke with Robert Robinson, the executive director.[FN50] Robinsontestified that he was very impressed with Phillipss credentials and intelligence, but that he had no positions atthat time suitable for her. He offered to assist her in obtaining a job at another agency. At the same time,however, he described to her a new position that he wanted to create in the Industrial Department, for which hethought Phillips would be well suited. He took two telephone numbers for her and asked her to check back. Overthe next three weeks Robinson worked at arranging federal funds for the new position. When he succeeded, hecalled Phillipss telephone numbers to speak to her about the job. At one there was no answer; at the other, hewas told that Phillips had moved to Chicago to resume her law school studies at Northwestern University. Heabandoned his plans for the new job. [FN51] FN50. Record at 456; Transcript at 58, 145-46, 160-62. FN51. Transcript at 160-62, 164. The district court credited Robinsons testimony and found that the sole reason why Phillips was not hiredwas because Robinson believed she was no longer interested in employment in Jackson. There is abundant evid-ence to support this finding. In light of the facts, it is not clear that Phillips was rejected at all. Even if she was,we agree with the district court that Robinsons testimony adequately established a legitimate, nondiscriminatoryreason for the rejection.[FN52] FN52. This holding is not in conflict with Davis v. Jackson County Port Authority, 5 Cir. 1980, 611 F.2d 577, or our holding on Melvin Phillipss claim in the PEER case. In those cases the employers jumped to unwarranted conclusions while foregoing obvious opportunities to ask about them. The dif- ference here is simply a matter of reasonableness; there is a point at which Title VII does not require an employer otherwise acting in good faith to verify every possible logical assumption on which he might rely. We are influenced in this determination by Robinsons remarkable efforts to create a position for Phillips when he found none available. 2. Melvin Phillips. Melvin Phillips applied at the A & I Board on August 28, 1974. After filling out an ap-plication, he spoke briefly with Harold Cross. Cross said there were no jobs available in A & I, but referred himto Thomas Espy, head of OMBE. Espy also had no jobs. Phillips called Espy a few times, but he never heardfrom A & I again.[FN53] © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 26637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) FN53. Transcript at 72-80. [32][33] The district court held against Phillips because, it concluded, he was only available for employ-ment for a short period of time, and all white applicants hired during that period were better qualified than he.[FN54] We think that the court improperly constricted its scrutiny of the Boards hiring. Title VII does not re-quire a plaintiff to remain permanently unemployed or forfeit his cause of action for racial discrimination. Norcan the Board contend here, as it did in the case of Barbara Phillips, that *1032 Phillipss apparent departurefrom the job market was a legitimate reason for not hiring him, for there is no evidence that anyone at A & Iever learned that he had taken another job. According to A & Is own written procedures and Crosss testimony,applicants remain under active consideration for all openings within a year of the date of application.[FN55]During the year following Phillipss application, A & I hired seventeen non-clerical employees, fourteen ofwhom were white. Excluding OMBE and temporary CETA appointments, they hired four such persons, allwhite.[FN56] A & Is failure to show a legitimate business reason for hiring these persons instead of Phillips isfatal to its defense. FN54. Record at 458-59. FN55. Plaintiffs Exhibit 18; Transcript at 87-88, 150-51. FN56. Plaintiffs Exhibit 8. 3. Cornell Green Rice. Cornell Rice applied at A & I on September 18, 1974, and interviewed briefly withEspy. He said he would refer her application “upstairs” (i. e., to A & I). She later received a letter from Espy ad-vising her that there were no jobs available.[FN57] FN57. Plaintiffs Exhibit 1; Transcript at 23-27, 47-48. Rices case is similar to Melvin Phillipss. The district court ruled against Rice because it found that she hadbeen available for employment for only a few days, and there were no secretarial or clerical vacancies duringthat time. Again, though, there was no suggestion that Rices application was removed from consideration pre-maturely, for no one at A & I knew of her new job. During the year following her application, A & I hired nine-teen whites and six blacks in clerical jobs. If OMBE and CETA jobs are excluded, the figures are nine white,one black.[FN58] As with Melvin Phillips, the absence of any business justification for these hirings defeats theBoards rebuttal of the prima facie case established under Franks and Teamsters. FN58. Plaintiffs Exhibit 8. SUMMARY To summarize our disposition of these cases: We AFFIRM the judgment in the A & I case with regard to the issue of recusal. We REVERSE the district courts refusal to certify the alleged classes in the PEER and College Boardcases. Those cases are REMANDED for appropriate proceedings as to the administration of the class action andthe merits of the class allegations. We MODIFY the class certification order in the A & I case to include in thatclass future applicants and persons deterred from applying for jobs with A & I. We REVERSE the judgment in the A & I case that the plaintiffs did not establish discrimination against the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 27637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)class. The case is REMANDED for appropriate relief consistent with this opinion. We REVERSE the courts judgments on the merits with respect to Barbara Phillipss individual claim in thePEER case; Melvin Phillipss individual claims in the PEER and A & I cases; and Cornell Rices individualclaims in the A & I and College Board cases. We REMAND the cases for appropriate relief. We AFFIRM thedistrict courts judgments as to the remaining individual claims. Although we have refused to overturn the district courts denial of the plaintiffs recusal motion, in light oflater developments and all of the circumstances presented in these cases, we suggest that any proceedings on re-mand should be heard before a judge other than the Hon. William Harold Cox. We do so without in any wayquestioning the integrity or impartiality of that Judge; we act solely in the interest of preserving the complete ap-pearance of impartiality. See Webbe v. McGhie Land Title Co., 10 Cir. 1977, 549 F.2d 1358, 1361; Eckles v.Sharman, 10 Cir. 1977, 548 F.2d 905, 911; United States v. Bray, 10 Cir. 1976, 546 F.2d 851, 860; United Statesv. Ritter, 10 Cir. 1976, 540 F.2d 459, 464-65, cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976).C.A.Miss., 1981.Phillips v. Joint Legislative Committee on Performance and Expenditure Review of State of Miss.637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • CODE OF JUDICIAL CONDUCT Adopted by the Mississippi Supreme Court April 4, 2002 Table of RulesPREAMBLETERMINOLOGYCANON 1 - A Judge Shall Uphold the Integrity and Independence of the Judiciary.CANON 2 - A Judge Shall Avoid Impropriety and the Appearance of Impropriety inAll Activities.CANON 3 - A Judge Shall Perform the Duties of Judicial Office Impartially andDiligently.CANON 4 - A Judge Shall So Conduct the Judge’s Extra-judicial Activities as toMinimize the Risk of Conflict with Judicial Obligations.CANON 5 - A Judge or Judicial Candidate Shall Refrain From InappropriatePolitical Activity.APPLICATION OF THE CODE OF JUDICIAL CONDUCT . CODE OF JUDICIAL CONDUCT Adopted by the Mississippi Supreme Court April 4, 2002 PREAMBLE Our legal system is based on the principle that an independent, fair and competentjudiciary will interpret and apply the laws that govern us. The role of the judiciary iscentral to American concepts of justice and the rule of law. Intrinsic to all sections of thisCode are the precepts that judges, individually and collectively, must respect and honorthe judicial office as a public trust and strive to enhance and maintain confidence in our EXHIBIT "G"
    • legal system. The judge is an arbiter of facts and law for the resolution of disputes and ahighly visible symbol of government under the rule of law. The Code of Judicial Conduct is intended to establish standards for ethical conductof judges. It consists of broad statements called Canons, specific rules set forth inSections under each Canon, a Terminology Section, an Application Section andCommentary. The text of the Canons and the Sections, including the Terminology andApplication Sections, is authoritative. The Commentary, by explanation and example,provides guidance with respect to the purpose and meaning of the Canons and Sections.The Commentary is not intended as a statement of additional rules. When the text uses"shall" or "shall not," it is intended to impose binding obligations the violation of whichcan result in disciplinary action. When "should" or "should not" is used, the text isintended as hortatory and as a statement of what is or is not appropriate conduct but not asa binding rule under which a judge may be disciplined. When "may" is used, it denotespermissible discretion or, depending on the context, it refers to action that is not coveredby specific proscriptions. The Canons and Sections are rules of reason. They should beapplied consistent with constitutional requirements, statutes, other court rules anddecisional law and in the context of all relevant circumstances. The Code is to beconstrued so as not to impinge on the essential independence of judges in making judicialdecisions. The Code is designed to provide guidance to judges and candidates for judicialoffice and to provide a structure for regulating conduct through disciplinary agencies. It isnot designed or intended as a basis for civil liability or criminal prosecution. Furthermore,the purpose of the Code would be subverted if the Code were invoked by lawyers formere tactical advantage in a proceeding. The text of the Canons and Sections is intended to govern conduct of judges and tobe binding upon them. It is not intended, however, that every transgression will result indisciplinary action. Whether disciplinary action is appropriate, and the degree ofdiscipline to be imposed, should be determined through a reasonable and reasonedapplication of the text and should depend on such factors as the seriousness of thetransgression, whether there is a pattern of improper activity and the effect of theimproper activity on others or on the judicial system. The Code of Judicial Conduct is not intended as an exhaustive guide for theconduct of judges. They should also be governed in their judicial and personal conduct bygeneral ethical standards. The Code is intended, however, to state basic standards whichshould govern the conduct of all judges and to provide guidance to assist judges inestablishing and maintaining high standards of judicial and personal conduct. TERMINOLOGY 2
    • "Appropriate authority" denotes the authority with responsibility for initiation ofdisciplinary process with respect to the violation to be reported. See Sections 3D(1) and3D(2). "Candidate." A candidate is a person seeking selection for judicial office byelection or appointment. Persons become candidates for judicial office as soon as theymake public announcements of candidacy, declare or file as candidates with the electionor appointment authority, or authorize solicitation or acceptance of contributions orsupport. The term "candidate" has the same meaning when applied to a judge seekingelection or appointment to non-judicial office. See Preamble and Canon 5. "Court personnel" does not include the lawyers in a proceeding before a judge. SeeSections 3B(7)(c) and 3B(9). "De minimis" denotes an insignificant interest that could not raise reasonablequestion as to a judges impartiality. See Sections 3E(1)(c) and 3E(1)(d). "Economic interest" denotes ownership of a more than de minimis legal orequitable interest, or a relationship as officer, director, advisor or other active participantin the affairs of a party, except that: (i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest; (ii) service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judges spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization; (iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest; (iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge 3
    • could substantially affect the value of the securities. See Sections 3E(1)(c) and 3E(2). "Fiduciary" includes such relationships as executor, administrator, trustee, andguardian. See Sections 3E(3) and 4E. "Independent persons, committees or organizations" shall mean an individualperson or organization not required to report as affiliated with a campaign for judicialoffice. See Section 5F. "Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of thefact in question. A persons knowledge may be inferred from circumstances. See Sections3D, 3E(1), and 5A(3). "Law" denotes court rules as well as statutes, constitutional provisions anddecisional law. See Sections 2A, 3A, 3B(2), 3B(7), 4B, 4C, 4F, 4I, 5A(2), 5A(3), 5B(2),5C, 5D, and 5F. “Major donor”, for the purposes of Section 3E(2), shall be defined as follows: (a) If the donor is an individual, "donor" means that individual, the individuals spouse, or the individual’s or the individual’s spouse’s child, mother, father, grandmother, grandfather, grandchild, employee and employees spouse. (b) If the donor is an entity other than an individual, "donor” means the entity, its employees, officers, directors, shareholders, partners members, and contributors and the spouse of any of them. (c) A “major donor” is a donor who or which has, in the judges most recent election campaign, made a contribution to the judges campaign of (a) more than $2,000 if the judge is a justice of the Supreme Court or judge of the Court of Appeals, or (b) more than $1,000 if the judge is a judge of a court other than the Supreme Court or the Court of Appeals. (d) The term “contribution to the judges campaign" shall be the total of all contributions to a judges campaign and shall be deemed to include all contributions of every kind and type whatsoever, whether in the form of cash, goods, services, or other form of contribution, and whether donated directly to the judges campaign or donated to any other person or entity for the purpose of supporting the judges campaign and/or opposing the campaign of the judges opponent(s). The term "contribution to a 4
    • judge’s campaign" shall also be deemed to include any publication, advertisement or other release of information, or payment therefor, other than a bona fide news item published by existing news media, which contains favorable information about the judge or which contains unfavorable information about the judges opponent(s). "Member of the candidates family" denotes a spouse, child, grandchild, parent,grandparent, siblings, or other relative or person with whom the candidate maintains aclose familial relationship. See Section 5A(3)(a). "Member of the judges family" denotes a spouse, child, grandchild, parent,grandparent, siblings, or other relative or person with whom the judge maintains a closefamilial relationship. See Sections 4D, 4E and 4G. "Member of the judges family residing in the judges household" denotes anyrelative of a judge by blood or marriage, or a person treated by a judge as a member of thejudges family, who resides in the judges household. See Sections 3E(1) and 4D. "Nonpublic information" denotes information that, by law, is not available to thepublic. Nonpublic information may include but is not limited to: information that is sealedby statute or court order, impounded or communicated in camera; and information offeredin grand jury proceedings, presentencing reports, dependency cases or psychiatric reports.See Sections 3B(11) and 4D(4). "Part-time judge" denotes a judge who serves for an extended, fixed term, but isallowed to practice law or any other profession or occupation. The term does not apply tomagistrates, court commissioners, special masters or referees. "Political organization" denotes a political party or other group, the principalpurpose of which is to further the election or appointment of candidates to political office.See Sections 5A(1). "Public election." This term includes primary and general elections; it includespartisan elections and nonpartisan elections. See Section 5C. "Require." The rules prescribing that a judge "require" certain conduct of othersare, like all of the rules in this Code, rules of reason. The use of the term "require" in thatcontext means a judge is to exercise reasonable direction and control over the conduct ofthose persons subject to the judges direction and control. See Sections 3B(3), 3B(4),3B(5), 3B(6), 3B(9) and 3C(2). 5
    • "Special judge" denotes a judge, including a retired judge, other than one who isserving to fill the unexpired term of a regularly elected or appointed judge who hasvacated the office, who serves by appointment for a limited period or in a particularmatter due to the unwillingness or inability of a sitting judge to hear a case or attendcourt, or who is appointed on an emergency basis. "Third degree of relationship." The following persons are relatives within the thirddegree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister,child, grandchild, great-grandchild, nephew or niece. See Section 3E(1)(d). Commentary In defining “members of the candidate’s family” and “members of the judge’sfamily” siblings of the candidate and judge are included. The phrase “major donor” isalso included. Likewise, no reference is made to retention elections. In these respects,this section differs from the ABA Model Code of Judicial Conduct. The ABA Model Code defines “continuing part-time judge,” “periodic part-timejudge,” and “pro tempore part-time judge.” Also, in the Application Section, the ABAmodel refers to “retired judge subject to recall.” In the adaption of the model forMississippi application, these are reduced to “part-time judge,” and “special judge,”which covers non-standard positions subject to special treatment. See ApplicationSection. CANON 1 A Judge Shall Uphold the Integrity and Independence of the Judiciary An independent and honorable judiciary is indispensable to justice in oursociety. A judge should participate in establishing, maintaining, and enforcing highstandards of conduct, and shall personally observe those standards so that theintegrity and independence of the judiciary will be preserved. The provisions of thisCode should be construed and applied to further that objective. Commentary Deference to the judgments and rulings of courts depends upon public confidencein the integrity and independence of judges. The integrity and independence of judgesdepends in turn upon their acting without fear or favor. Although judges should beindependent, they must comply with the law, including the provisions of this Code. Publicconfidence in the impartiality of the judiciary is maintained by the adherence of each 6
    • judge to this responsibility. Conversely, violation of this Code diminishes publicconfidence in the judiciary and thereby does injury to the system of government underlaw. CANON 2 A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities A. A judge shall respect and comply with the law and shall act at all times ina manner that promotes public confidence in the integrity and impartiality of thejudiciary. Commentary Public confidence in the judiciary is eroded by irresponsible or improper conductby judges. A judge must avoid all impropriety and appearance of impropriety. A judgemust expect to be the subject of constant public scrutiny. A judge must therefore acceptrestrictions on the judges conduct that might be viewed as burdensome by the ordinarycitizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance ofimpropriety applies to both the professional and personal conduct of a judge. Because itis not practicable to list all prohibited acts, the proscription is necessarily cast in generalterms that extend to conduct by judges that is harmful although not specifically mentionedin the Code. Actual improprieties under this standard include violations of law, courtrules or other specific provisions of this Code. The test for appearance of impropriety iswhether, based on the conduct, the judge’s impartiality might be questioned by areasonable person knowing all the circumstances. See also Commentary under Section 2C. B. Judges shall not allow their family, social, or other relationships toinfluence the judges’ judicial conduct or judgment. Judges shall not lend theprestige of their offices to advance the private interests of the judges or others; norshall judges convey or permit others to convey the impression that they are in aspecial position to influence the judges. Judges shall not testify voluntarily ascharacter witnesses. 7
    • Commentary 8
    • Maintaining the prestige of judicial office is essential to a system of government inwhich the judiciary functions independently of the executive and legislative branches.Respect for the judicial office facilitates the orderly conduct of legitimate judicialfunctions. Judges should distinguish between proper and improper use of the prestige ofoffice in all of their activities. For example, it would be improper for judges to allude totheir judgeships to gain a personal advantage such as deferential treatment when stoppedby a police officer for a traffic offense. Similarly, judicial letterhead must not be used forconducting a judges personal business. A judge must avoid lending the prestige of judicial office for the advancement ofthe private interests of others. For example, a judge must not use the judges judicialposition to gain advantage in a civil suit involving a member of the judges family. Incontracts for publication of a judges writings, a judge should retain control over theadvertising to avoid exploitation of the judges office. Although a judge should be sensitive to possible abuse of the prestige of office, ajudge may, based on the judges personal knowledge, serve as a reference or provide aletter of recommendation. However, a judge must not initiate the communication ofinformation to a sentencing judge or a probation or corrections officer but may provideto such persons information for the record in response to a formal request. Judges may participate in the process of judicial selection by cooperating withappointing authorities and screening committees seeking names for consideration, and byresponding to official inquiries concerning a person being considered for a judgeship.See also Canon 5 regarding use of a judges name in political activities. A judge must not testify voluntarily as a character witness because to do so maylend the prestige of the judicial office in support of the party for whom the judge testifies.Moreover, when a judge testifies as a witness, a lawyer who regularly appears before thejudge may be placed in the awkward position of cross-examining the judge. A judge may,however, testify when properly summoned. Except in unusual circumstances where thedemands of justice require, a judge should discourage a party from requiring the judge totestify as a character witness. C. A judge shall not hold membership in any organization that practicesinvidious discrimination on the basis of race, gender, religion or national origin. Commentary Membership of a judge in an organization that practices invidious discriminationgives rise to perceptions that the judges impartiality is impaired. Section 2C refers to thecurrent practices of the organization. Whether an organization practices invidious 9
    • discrimination is often a complex question to which judges should be sensitive. Theanswer cannot be determined from a mere examination of an organizations currentmembership rolls but rather depends on how the organization selects members and otherrelevant factors, such as that the organization is dedicated to the preservation ofreligious, ethnic or cultural values of legitimate common interest to its members, or that itis in fact and effect an intimate, purely private organization whose membershiplimitations could not be constitutionally prohibited. Absent such factors, an organizationis generally said to discriminate invidiously if it arbitrarily excludes from membership onthe basis of race, religion, gender or national origin persons who would otherwise beadmitted to membership. See New York State Club Assn. v. City of New York, U.S., 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988); Board of Directors of Rotary International v.Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987); Roberts v.United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Although Section 2C relates only to membership in organizations that invidiouslydiscriminate on the basis of race, gender, religion or national origin, a judgesmembership in an organization that engages in any discriminatory membership practicesprohibited by the law of the jurisdiction also violates Canon 2 and Section 2A and givesthe appearance of impropriety. In addition, it would be a violation of Canon 2 andSection 2A for a judge to arrange a meeting at a club that the judge knows practicesinvidious discrimination on the basis of race, gender, religion or national origin in itsmembership or other policies, or for the judge to regularly use such a club. Moreover,public manifestation by a judge of the judges knowing approval of invidiousdiscrimination on any basis gives the appearance of impropriety under Canon 2 anddiminishes public confidence in the integrity and impartiality of the judiciary, in violationof Section 2A. When a person who is a judge on the date this Code becomes effective learns thatan organization to which the judge belongs engages in invidious discrimination thatwould preclude membership under Section 2C or under Canon 2 and Section 2A, thejudge is permitted, in lieu of resigning, to make immediate efforts to have theorganization discontinue its invidiously discriminatory practices, but is required tosuspend participation in any other activities of the organization. If the organization failsto discontinue its invidiously discriminatory practices as promptly as possible (and in allevents within a year of the judges first learning of the practices), the judge is required toresign immediately from the organization. CANON 3 A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently 10
    • A. Judicial Duties in General. The judicial duties of judges take precedenceover all their other activities. The judges’ judicial duties include all the duties oftheir office prescribed by law. In the performance of these duties, the followingstandards apply: B. Adjudicative Responsibilities. (1) A judge shall hear and decide all assigned matters within the judge’sjurisdiction except those in which disqualification is required. (2) A judge shall be faithful to the law and maintain professional competencein it. A judge shall not be swayed by partisan interests, public clamor, or fear ofcriticism. (3) A judge shall require order and decorum in proceedings before the judge. (4) Judges shall be patient, dignified, and courteous to litigants, jurors,witnesses, lawyers, and others with whom they deal in their official capacities, andshall require similar conduct of lawyers, and of their staffs, court officials, andothers subject to their direction and control. Commentary The duty to hear all proceedings fairly and with patience is not inconsistent withthe duty to dispose promptly of the business of the court. Courts can be efficient andbusiness like while being patient and deliberate. (5) A judge shall perform judicial duties without bias or prejudice. A judgeshall not, in the performance of judicial duties, by words or conduct manifest bias orprejudice, including but not limited to bias or prejudice based upon race, gender,religion, national origin, disability, age, sexual orientation or socioeconomic status,and shall not permit staff, court officials and others subject to the judges directionand control to do so. A judge shall refrain from speech, gestures or other conductthat could reasonably be perceived as sexual harassment and shall require the samestandard of conduct of others subject to the judge’s direction and control. Commentary A judge must perform judicial duties impartially and fairly. A judge who manifestsbias on any basis in a proceeding impairs the fairness of the proceeding and brings thejudiciary into disrepute. Facial expression and body language, in addition to oralcommunication, can give to parties or lawyers in the proceeding, jurors, the media and 11
    • others an appearance of judicial bias. A judge must be alert to avoid behavior that maybe perceived as prejudicial. (6) A judge shall require lawyers in proceedings before the judge to refrainfrom manifesting, by words or conduct, bias or prejudice based upon race, gender,religion, national origin, disability, age, sexual orientation or socioeconomic status,against parties, witnesses, counsel or others. This Section 3B(6) does not precludelegitimate advocacy when race, gender, religion, national origin, disability, age,sexual orientation or socioeconomic status, or other similar factors, are issues in theproceeding. (7) A judge shall accord to all who are legally interested in a proceeding, ortheir lawyers, the right to be heard according to law. A judge shall not initiate,permit, or consider ex parte communications, or consider other communicationsmade to the judge outside the presence of the parties concerning a pending orimpending proceeding except that: (a) where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized: provided: (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond. (b) Judges may obtain the advice of a disinterested expert on the law applicable to a proceeding before them if the judges give notice to the parties of the person consulted and the substance of the advice, and afford the parties reasonable opportunity to respond. (c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judges adjudicative responsibilities or with other judges. (d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge. 12
    • (e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so. Commentary The proscription against communications concerning a proceeding includescommunications from lawyers, law teachers, and other persons who are not participantsin the proceeding, except to the limited extent permitted. To the extent reasonablypossible, all parties or their lawyers shall be included in communications with a judge.Whenever presence of a party or notice to a party is required by Section 3B(7), it is thepartys lawyer, or if the party is unrepresented, the party, who is to be present or to whomnotice is to be given. An appropriate and often desirable procedure for a court to obtain the advice of adisinterested expert on legal issues is to invite the expert to file a brief amicus curiae. Certain ex parte communication is approved by Section 3B(7) to facilitatescheduling and other administrative purposes and to accommodate emergencies. Ingeneral, however, a judge must discourage ex parte communication and allow it only ifall the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all partiesall ex parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding aproceeding pending or impending before the judge. A judge must not independentlyinvestigate facts in a case and must consider only the evidence presented. A judge may request a party to submit proposed findings of fact and conclusions oflaw, so long as the other parties are apprized of the request and are given an opportunityto respond to the proposed findings and conclusions. A judge must make reasonable efforts, including the provision of appropriatesupervision, to ensure that Section 3B(7) is not violated through law clerks or otherpersonnel on the judges staff. If communication between the trial judge and the appellate court with respect to aproceeding is permitted, a copy of any written communication or the substance of anyoral communication should be provided to all parties. (8) A judge shall dispose of all judicial matters promptly, efficiently andfairly. Commentary In disposing of matters promptly, efficiently and fairly, a judge must demonstratedue regard for the rights of the parties to be heard and to have issues resolved without 13
    • unnecessary cost or delay. Containing costs while preserving fundamental rights ofparties also protects the interests of witnesses and the general public. A judge shouldmonitor and supervise cases so as to reduce or eliminate dilatory practices, avoidabledelays and unnecessary costs. A judge should encourage and seek to facilitate settlement,but parties should not feel coerced into surrendering the right to have their controversyresolved by the courts. Prompt disposition of the courts business requires a judge to devote adequate timeto judicial duties, to be punctual in attending court and expeditious in determiningmatters under submission, and to insist that court officials, litigants and their lawyerscooperate with the judge to that end. (9) A judge shall not, while a proceeding is pending or impending in anycourt, make any public comment that might reasonably be expected to affect itsoutcome or impair its fairness or make any nonpublic comment that mightsubstantially interfere with a fair trial or hearing. The judge shall require similarabstention on the part of court personnel subject to the judges direction andcontrol. This Section does not prohibit judges from making public statements in thecourse of their official duties or from explaining for public information theprocedures of the court. This Section does not apply to proceedings in which thejudge is a litigant in a personal capacity. Commentary The requirement that judges abstain from public comment regarding a pending orimpending proceeding continues during any appellate process and until final disposition.This Section does not prohibit a judge from commenting on proceedings in which thejudge is a litigant in a personal capacity, but in cases such as a writ of mandamus wherethe judge is a litigant in an official capacity, the judge must not comment publicly. Theconduct of lawyers relating to trial publicity is governed by Rule 3.6 of the Rules ofProfessional Conduct. (10) A judge shall not commend or criticize jurors for their verdict other thanin a court order or opinion in a proceeding, but may express appreciation to jurorsfor their service to the judicial system and the community. Commentary Commending or criticizing jurors for their verdict may imply a judicialexpectation in future cases and may impair a jurors ability to be fair and impartial in asubsequent case. 14
    • (11) A judge shall not disclose or use, for any purpose unrelated to judicialduties, nonpublic information acquired in a judicial capacity. (12) Except as may be authorized by rule or order of the Supreme Court, ajudge should prohibit broadcasting, televising, recording, or taking photographs inthe courtroom and areas immediately adjacent thereto during sessions of court orrecesses between sessions, except that a judge may authorize: (a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration; (b) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings; (c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions: (i) the means of recording will not distract participants or impair the dignity of the proceedings; (ii) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction; (iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and (iv) the reproduction will be exhibited only for instructional purposes in educational institutions. Commentary The ABA Model Code does not address broadcasting, televising, recording orphotographing in the courtroom. This provision is taken from the Section 3A(7) of theprior Mississippi Code of Judicial Conduct. Section 3B(12) prohibits broadcasting, televising, recording, or takingphotographs in the courtroom and areas immediately adjacent thereto except asauthorized by rule or order of the Supreme Court. The Supreme Court has now adoptedthe Rules for Electronic and Photographic Coverage of Proceedings which providesdetailed guidance for such coverage. 15
    • [Commentary amended effective April 17, 2003.] C. Administrative Responsibilities. (1) A judge shall diligently discharge the judges administrativeresponsibilities without bias or prejudice and maintain professional competence injudicial administration, and shall cooperate with other judges and court officials inthe administration of court business. (2) A judge shall require staff, court officials and others subject to the judgesdirection and control to observe the standards of fidelity and diligence that apply tothe judge and to refrain from manifesting bias or prejudice in the performance oftheir official duties. (3) A judge with supervisory authority for the judicial performance of otherjudges shall take reasonable measures to assure the prompt disposition of mattersbefore them and the proper performance of their other judicial responsibilities. (4) A judge shall not make unnecessary appointments. A judge shall exercisethe power of appointment impartially and on the basis of merit. A judge shall avoidnepotism and favoritism. A judge shall not approve compensation of appointeesbeyond the fair value of services rendered. Commentary Appointees of a judge include assigned counsel, officials such as referees,commissioners, special masters, receivers and guardians and personnel such as clerks,secretaries and bailiffs. Consent by the parties to an appointment or an award ofcompensation does not relieve the judge of the obligation prescribed by Section 3C(4). (5) A judge shall not appoint a major donor to the judge’s election campaignto a position if the judge knows or learns by means of a timely motion that the majordonor has contributed to the judges election campaign unless (a) the position is substantially uncompensated; (b) the person has been selected in rotation from a list of qualified and available persons compiled without regard to their having made political contributions; or (c) the judge or another presiding or administrative judge affirmatively finds that no other person is willing, competent and able to accept the position. 16
    • D. Disciplinary Responsibilities. (1) A judge who receives information indicating a substantial likelihood thatanother judge has committed a violation of this Code should take appropriateaction. A judge having knowledge that another judge has committed a violation ofthis Code that raises a substantial question as to the other judges fitness for officeshall inform the appropriate authority. (2) A judge who receives information indicating a substantial likelihood that alawyer has committed a violation of the Rules of Professional Conduct should takeappropriate action. A judge having knowledge that a lawyer has committed aviolation of the Rules of Professional Conduct that raises a substantial question as tothe lawyers honesty, trustworthiness or fitness as a lawyer in other respects shallinform the appropriate authority. (3) Acts of a judge, in the discharge of disciplinary responsibilities, requiredor permitted by Sections 3D(1) and 3D(2) are part of a judges judicial duties andshall be absolutely privileged, and no civil action predicated thereon may beinstituted against the judge. Commentary Appropriate action may include direct communication with the judge or lawyerwho has committed the violation, other direct action if available, and reporting theviolation to the appropriate authority or other agency or body. E. Disqualification. (1) Judges should disqualify themselves in proceedings in which theirimpartiality might be questioned by a reasonable person knowing all thecircumstances or for other grounds provided in the Code of Judicial Conduct orotherwise as provided by law, including but not limited to instances where: Commentary Under this rule, a judge should disqualify himself or herself whenever the judgesimpartiality might be questioned by a reasonable person knowing all the circumstances,regardless whether any of the specific rules in Section 3E(1) apply. A judge should disclose on the record information that the judge believes theparties or their lawyers might consider relevant to the question of disqualification, even ifthe judge believes there is no real basis for disqualification. 17
    • By decisional law, the rule of necessity may override the rule of disqualification.For example, a judge might be required to participate in judicial review of a judicialsalary statute, or might be the only judge available in a matter requiring immediatejudicial action, such as a hearing on probable cause or a temporary restraining order. Inthe latter case, the judge must disclose on the record the basis for possibledisqualification and use reasonable efforts to transfer the matter to another judge as soonas practicable. For procedures concerning motions for recusal and review by the Supreme Courtof denial of motions for recusal as to trial court judges, see M.R.C.P. 16A, URCCC 1.15,Unif. Chanc. R. 1.11, and M.R.A.P. 48B. For procedures concerning motions for recusalof judges of the Court of Appeals or Supreme Court justices, see M.R.A.P. 27(a). (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; Commentary A lawyer in a government agency does not ordinarily have an association withother lawyers employed by that agency within the meaning of Section 3E(1)(b); judgesformerly employed by a government agency, however, should disqualify themselves in aproceeding if the judges’ impartiality might reasonably be questioned because of suchassociation. (c) the judge knows that the judge, individually or as a fiduciary, or the judges spouse or member of the judge’s family residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (d) the judge or the judges spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding; 18
    • (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) is to the judges knowledge likely to be a material witness in the proceeding; Commentary The fact that a lawyer in a proceeding is affiliated with a law firm with which arelative of the judge is affiliated does not of itself disqualify the judge. Under appropriatecircumstances, the fact that “the judge’s impartiality might be questioned by areasonable person knowing all the circumstances “ under Section 3E(1), or that therelative is known by the judge to have an interest in the law firm that could be"substantially affected by the outcome of the proceeding" under Section 3E(1)(d)(iii) mayrequire the judges disqualification. (2) Recusal of Judges from Lawsuits Involving Major Donors. A party mayfile a motion to recuse a judge based on the fact that an opposing party or counsel ofrecord for that party is a major donor to the election campaign of such judge. Suchmotions will be filed, considered and subject to appellate review as provided forother motions for recusal. Commentary Section 3E(2) recognizes that political donations may but do not necessarily raiseconcerns about a judge’s impartiality. The filing, consideration and appellate review ofmotions for recusal based on such donations are subject to rules governing all recusalmotions. For procedures concerning motions for recusal and review by the SupremeCourt of denial of motions for recusal as to trial court judges, see M.R.C.P. 16A, URCCC1.15, Unif. Chanc. R. 1.11, and M.R.A.P. 48B. For procedures concerning motions forrecusal of judges of the Court of Appeals or Supreme Court justices, see M.R.A.P. 27(a).This provision does not appear in the ABA Model Code of Judicial Conduct; however, seeSection 3E(1)(e) of the ABA model. F. Remittal of Disqualification. A judge who may be disqualified by theterms of Section 3E may disclose on the record the basis of the judges possibledisqualification and may ask the parties and their lawyers to consider, out of thepresence of the judge, whether to waive disqualification. If following disclosure ofany basis for disqualification other than personal bias or prejudice concerning aparty, the parties and lawyers, without participation by the judge, all agree that the 19
    • judge should not be disqualified, and the judge is then willing to participate, thejudge may participate in the proceeding. The agreement shall be incorporated inthe record of the proceeding. Commentary A remittal procedure provides the parties an opportunity to proceed without delayif they wish to waive the possible disqualification. To assure that consideration of thequestion of remittal is made independently of the judge, a judge must not solicit, seek orhear comment on the remittal or waiver of the possible disqualification unless the lawyersjointly propose remittal after consultation as provided in the rule. A party may actthrough counsel if counsel represents on the record that the party has been consulted andconsents. As a practical matter, a judge may wish to have all parties and their lawyerssign the remittal agreement. CANON 4 A Judge Shall So Conduct the Judges Extra-judicial Activities as to Minimize the Risk of Conflict with Judicial Obligations A. Extra-judicial Activities in General. A judge shall conduct all of the judgesextra-judicial activities so that they do not: (1) cast reasonable doubt on the judges capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties. Commentary Complete separation of a judge from extra-judicial activities is neither possiblenor wise; a judge should not become isolated from the community in which the judgelives. Expressions of bias or prejudice by a judge, even outside the judges judicialactivities, may cast reasonable doubt on the judges capacity to act impartially as a judge.Expressions which may do so include jokes or other remarks demeaning individuals onthe basis of their race, gender, religion, national origin, disability, age, sexual orientationor socioeconomic status. See Section 2C and accompanying Commentary. 20
    • B. Avocational Activities. A judge may speak, write, lecture, teach andparticipate in other extra-judicial activities concerning the law, the legal system, theadministration of justice and non-legal subjects, subject to the requirements of thisCode. Commentary As a judicial officer and person specially learned in the law, a judge is in a uniqueposition to contribute to the improvement of the law, the legal system, and theadministration of justice, including revision of substantive and procedural law andimprovement of criminal and juvenile justice. To the extent that time permits, a judge isencouraged to do so, either independently or through a bar association, judicialconference or other organization dedicated to the improvement of the law. Judges mayparticipate in efforts to promote the fair administration of justice, the independence of thejudiciary and the integrity of the legal profession and may express opposition to thepersecution of lawyers and judges in other countries because of their professionalactivities. In this and other Sections of Canon 4, the phrase "subject to the requirements ofthis Code" is used, notably in connection with a judges governmental, civic or charitableactivities. This phrase is included to remind judges that the use of permissive language invarious Sections of the Code does not relieve a judge from the other requirements of theCode that apply to the specific conduct. C. Governmental, Civic or Charitable Activities. (1) A judge shall not make an appearance before, or otherwise consult with,an executive or legislative body or official or a public hearing except on mattersconcerning the law, the legal system or the administration of justice or except whenacting pro se in a matter involving the judge or the judges interests. Commentary See Section 2B regarding the obligation to avoid improper influence. (2) A judge shall not accept appointment to a governmental committee orcommission or other governmental position that is concerned with issues of fact orpolicy on matters other than the improvement of the law, the legal system or theadministration of justice. A judge may, however, represent a country, state orlocality on ceremonial occasions or in connection with historical, educational orcultural activities. Commentary 21
    • Section 4C(2) prohibits a judge from accepting any governmental position exceptone relating to the improvement of the law, legal system or administration of justice asauthorized by Section 4C(3). The appropriateness of accepting extra-judicial assignmentsmust be assessed in light of the demands on judicial resources created by crowdeddockets and the need to protect the courts from involvement in extra-judicial matters thatmay prove to be controversial. Judges should not accept governmental appointments thatare likely to interfere with the effectiveness and independence of the judiciary. Section 4C(2) does not govern a judges service in a non-governmental position.See Section 4C(3) permitting service by a judge with organizations devoted to theimprovement of the law, the legal system or the administration of justice and witheducational, religious, charitable, fraternal or civic organizations not conducted forprofit. For example, service on the board of a public educational institution, unless itwere a law school, would be prohibited under Section 4C(2), but service on the board ofa public law school or any private educational institution would generally be permittedunder Section 4C(3). (3) A judge may serve as an officer, director, trustee or non-legal advisor ofan organization or governmental agency devoted to the improvement of the law, thelegal system or the administration of justice or of an educational, religious,charitable, fraternal or civic organization not conducted for profit, subject to thefollowing limitations and the other requirements of this Code. Commentary Section 4C(3) does not apply to a judges service in a governmental positionunconnected with the improvement of the law, the legal system or the administration ofjustice. See Section 4C(2). See Commentary to Section 4B regarding use of the phrase "subject to thefollowing limitations and the other requirements of this Code." As an example of themeaning of the phrase, a judge permitted by Section 4C(3) to serve on the board of afraternal institution may be prohibited from such service by Sections 2C or 4A if theinstitution practices invidious discrimination or if service on the board otherwise castsreasonable doubt on the judges capacity to act impartially as a judge. Service by a judge on behalf of a civic or charitable organization may be governedby other provisions of Canon 4 in addition to Section 4C. For example, a judge isprohibited by Section 4G from serving as a legal advisor to a civic or charitableorganization. 22
    • (a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization: (i) will be engaged in proceedings that would ordinarily come before the judge, or (ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member. Commentary The changing nature of some organizations and of their relationship to the lawmakes it necessary for a judge regularly to reexamine the activities of each organizationwith which the judge is affiliated to determine if it is proper for the judge to continue theaffiliation. For example, in many jurisdictions charitable hospitals are now morefrequently in court than in the past. Similarly, the boards of some legal aid organizationsnow make policy decisions that may have political significance or imply commitment tocauses that may come before the courts for adjudication. (b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise: (i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organizations funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority; (ii) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice; (iii) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4C(3)(b)(i), if the membership solicitation is essentially a fund-raising mechanism; 23
    • (iv) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation. Commentary A judge may solicit membership or endorse or encourage membership efforts foran organization devoted to the improvement of the law, the legal system or theadministration of justice or a nonprofit educational, religious, charitable, fraternal orcivic organization as long as the solicitation cannot reasonably be perceived as coerciveand is not essentially a fund-raising mechanism. Solicitation of funds for an organizationand solicitation of memberships similarly involve the danger that the person solicited willfeel obligated to respond favorably to the solicitor if the solicitor is in a position ofinfluence or control. A judge must not engage in direct, individual solicitation of funds ormemberships in person, in writing or by telephone except in the following cases: 1) ajudge may solicit for funds or memberships other judges over whom the judge does notexercise supervisory or appellate authority, 2) a judge may solicit other persons formembership in the organizations described above if neither those persons nor personswith whom they are affiliated are likely ever to appear before the court on which thejudge serves and 3) a judge who is an officer of such an organization may send a generalmembership solicitation mailing over the judges signature. Use of an organization letterhead for fund-raising or membership solicitation doesnot violate Section 4C(3)(b) provided the letterhead lists only the judges name and officeor other position in the organization, and, if comparable designations are listed for otherpersons, the judges judicial designation. In addition, a judge must also make reasonableefforts to ensure that the judges staff, court officials and others subject to the judgesdirection and control do not solicit funds on the judges behalf for any purpose,charitable or otherwise. A judge must not be a speaker or guest of honor at an organizations fund- raisingevent, but mere attendance at such an event is permissible if otherwise consistent withthis Code. D. Financial Activities. (1) Judges should refrain from financial and business dealings that tend toreflect adversely on their impartiality, interfere with the proper performance oftheir judicial duties, exploit their judicial positions, or involve them in frequenttransactions with lawyers or persons likely to come before the court on which thejudges serve. 24
    • (2) Judges should manage their investments and other financial interests tominimize the number of cases in which they are disqualified. As soon as a judge cando so without serious financial detriment, the judge should divest himself or herselfof investments and other financial interests that might require frequentdisqualification. (3) Neither judges nor members of their families residing in their householdsshould accept a gift, bequest, favor, or loan from anyone reflecting the expectationof judicial favor. (4) Non-public information acquired by a judge in the judge’s judicialcapacity should not be used or disclosed by the judge in financial dealings or for anyother purpose not related to the judge’s judicial duties. Commentary The prohibition of Section 4D(3), limiting gifts which judges and their familiesmay accept, does not prohibit gifts incident to public testimonials to the judges, bookssupplied by publishers on a complimentary basis for official use, and invitations to judgesand their spouses to attend bar-related functions or activities devoted to theimprovements of the law, the legal system or the administration of justice. Judges andtheir families residing in their households may accept ordinary social hospitality, gifts,bequests, favors and loans from relatives, wedding and engagement gifts, loans fromlending institutions in their regular course of business on the same terms generallyavailable to persons who are not judges, and scholarships and fellowships awarded onthe same terms applied to other applicants. Judges and members of their familiesresiding in their households may accept any other gifts, bequests, favors and loans only ifthe donor is not a party or likely to come before them, and the gifts are reported as maybe required by law. Gifts, bequests, favors and loans are to be reported as may berequired by the Ethics in Government statutes. See Miss. Code Ann. § 25-4-27. Section4D differs from the provisions of the ABA model and retains in large part the provisionsof the Mississippi Code of Judicial Conduct as it existed prior to the current revision.Although this section does not prohibit holding specific extra-judicial positions orengaging in other specific business activities, it does require that judges refrain frombusiness activities which might reflect adversely on their impartiality and that theymanage their business activities so as to minimize the need for recusal. Regardingrecusals and disqualification, see Section 3E. E. Fiduciary Activities. 25
    • (1) A judge shall not serve as executor, administrator or other personalrepresentative, trustee, guardian, attorney in fact or other fiduciary except for theestate, trust or person of a member of the judges family, and then only if suchservice will not interfere with the proper performance of judicial duties. (2) A judge shall not serve as a fiduciary if it is likely that the judge as afiduciary will be engaged in proceedings that would ordinarily come before thejudge, or if the estate, trust or ward becomes involved in adversary proceedings inthe court on which the judge serves or one under its appellate jurisdiction. (3) The same restrictions on financial activities that apply to a judgepersonally also apply to the judge while acting in a fiduciary capacity. Commentary The Time for Compliance provision of this Code (Application, Section E)postpones the time for compliance with certain provisions of this Section in some cases. The restrictions imposed by this Canon may conflict with the judges obligation asa fiduciary. For example, a judge should resign as trustee if detriment to the trust wouldresult from divestiture of holdings, the retention of which would place the judge inviolation of Section 4D(3). F. Service as Arbitrator or Mediator. A judge shall not act as an arbitratoror mediator or otherwise perform judicial functions in a private capacity unlessexpressly authorized by law. Commentary Section 4F does not prohibit a judge from participating in arbitration, mediationor settlement conferences performed as part of judicial duties. G. Practice of Law. (1) A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, 26
    • give legal advice to and draft or review documents for a member of the judges family. (2) A judge must also make reasonable efforts to ensure that the judges staff, court officials and others subject to the judges direction and control do not practice law in a representative capacity. Notwithstanding this prohibition, staff, court officials and others subject to the judge’s direction may act pro se, and those otherwise licensed to practice law may, without compensation, give legal advice to and draft or review documents for members of their families. Commentary This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. Judges may act for themselves in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judges family. See Section 2(B). Certain officials and others are exempt pursuant to Section D of the Application Section of the Code of Judicial Conduct. The Code allows a judge to give legal advice to and draft legal documents for members of the judges family, so long as the judge receives no compensation. A judge must not, however, act as an advocate or negotiator for a member of the judges family in a legal matter. This provision does not imply any privilege to practice law to those judges, staff members, court officials or others subject to the judge’s control and direction who are not licensed to practice law. Amended May 31, 2007. H. Compensation, Reimbursement and Reporting. (1) Compensation and Reimbursement. A judge may receive compensationand reimbursement of expenses for the extra-judicial activities permitted by thisCode, if the source of such payments does not give the appearance of influencing thejudges performance of judicial duties or otherwise give the appearance ofimpropriety. 27
    • (a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity. (b) Expense reimbursement shall be limited to the actual cost of travel, food and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judges spouse or guest. Any payment in excess of such an amount is compensation. (2) Public Reports. A judge shall comply with those provisions of lawrequiring the reporting of economic interest to the Mississippi Ethics Commission. Commentary See Commentary to Section 4D(4) regarding reporting of gifts, bequests and loans. See also Miss. Code Ann. §§ 25-4-25 through 29 regarding the filing of statements ofeconomic interest with the Mississippi Ethics Commission. The ABA model suggests thatsince Canon 6 in the 1972 model code was drafted, reporting requirements in mostjurisdictions have become much more comprehensive, and that canons regulatingreporting of income should be tailored to the requirements of individual jurisdictions.Subsection 4H 2), therefore, simply requires compliance with the statutory provisions forreporting to the Ethics Commission. The Code does not prohibit a judge from accepting honoraria or speaking feesprovided that the compensation is reasonable and commensurate with the task performed.A judge should ensure, however, that no conflicts are created by the arrangement. Ajudge must not appear to trade on the judicial position for personal advantage. Norshould a judge spend significant time away from court duties to meet speaking or writingcommitments for compensation. In addition, the source of the payment must not raise anyquestion of undue influence or the judges ability or willingness to be impartial. I. Disclosure of a judges income, debts, investments or other assets isrequired only to the extent provided in this Canon and in Sections 3E and 3F, or asotherwise required by law. Commentary Section 3E requires judges to disqualify themselves in any proceedings in whichthey have economic interests. See "economic interest" as explained in the TerminologySection. Section 4D requires judges to refrain from engaging in business and fromfinancial activities that might interfere with the impartial performance of judicial duties;Section 4H requires judges to report compensation they received for activities outside 28
    • judicial office. Judges have the rights of any other citizens, including the right to privacyof the judges’ financial affairs, except to the extent that limitations established by law arerequired to safeguard the proper performance of the judges’ duties. CANON 5 A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity A. All Judges and Candidates (1) Except as authorized in Sections 5B(2), 5C(1) and 5C(2), a judge or acandidate for election to judicial office shall not: (a) act as a leader or hold an office in a political organization; (b) make speeches for a political organization or candidate or publicly endorse a candidate for public office; (c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other political functions. Commentary A judge or candidate for judicial office retains the right to participate in thepolitical process as a voter. Where false information concerning a judicial candidate is made public, a judgeor another judicial candidate having knowledge of the facts is not prohibited by Section5A(1) from making the facts public. Section 5A(1)(a) does not prohibit a candidate for elective judicial office fromretaining during candidacy a public office such as county prosecutor, which is not "anoffice in a political organization." Section 5A(1)(b) does not prohibit judges or judicial candidate from privatelyexpressing their views on judicial candidates or other candidates for public office. A candidate does not publicly endorse another candidate for public office byhaving that candidates name on the same ticket. However, Sections 23-15-973 et seq., 29
    • Miss. Code Ann. (1972) impose restrictions on candidates and political organizations toassure the non-partisan quality of judicial elections for Supreme Court, Court of Appeals,Chancery Court, Circuit Court and County Court justices and judges. (2) A judge shall resign from judicial office upon becoming a candidate eitherin a party primary or in a general election for a non-judicial office, except that thejudge may continue to hold judicial office while being a candidate for election to orserving as a delegate in a state constitutional convention if the judge is otherwisepermitted by law to do so. (3) A candidate for a judicial office: (a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall encourage members of the candidates family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate; Commentary Although judicial candidates must encourage members of their families to adhereto the same standards of political conduct in support of the candidates that apply to thecandidates, family members are free to participate in other political activity. Familymembers are not prohibited by this subsection from serving on the candidates’ campaigncommittees and otherwise actively involving themselves in the campaigns. (b) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidates direction and control, from doing on the candidates behalf what the candidate is prohibited from doing under the Sections of this Canon; (c) except to the extent permitted by Section 5C(2), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon; (d) shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; 30
    • (ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or (iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent; Commentary Section 5A(3)(d)(i) prohibits a candidate for judicial office makingpledges or promises to decide cases in any particular way and statementscommitting the candidate with respect to cases, controversies or issues likelyto come before the court on which the candidate will serve if elected. Thissection does not prohibit or limit a candidate’s freedom to announce thecandidate’s current views on issues so long as the announcement does not bindthe candidate to maintain those views after election. See Republican Party ofMinn. v. White, 536 U.S. 765 (2002) (declaring unconstitutional restrictionsin the Minnesota Code of Judicial Conduct on the announcement of views onlegal and political issues.) The comparable offending language, referred toas the “announce clause”, formerly appeared in our Code of JudicialConduct, but was removed with the revision of the code on April 4, 2002.This Section does not prohibit an incumbent judge from making privatestatements to other judges or court personnel in the performance of judicialduties. Section 5A(3)(d)(ii) prohibits a candidate for judicial office makingstatements that appear to commit the candidate regarding cases, controversiesor issues likely to come before the court. As a corollary, a candidate shouldemphasize in any public statement the candidates duty to uphold the lawregardless of the candidate’s personal views. See also Section 3B(9), thegeneral rule on public comment by judges. Section 5A(3)(d) does not prohibita candidate from making pledges and promises respecting improvements incourt administration. Section 5A(3)(d) applies to any statement made in the process ofsecuring judicial office, such as statements to commissions charged withjudicial selection and tenure and legislative bodies confirming appointment.See also Rule 8.2 of the Mississippi Rules of Professional Conduct. Phrasessuch as “tough on crime,” “soft on crime,” “pro-business,” “anti-business,”“pro-life,” “pro-choice,” or in any similar characterizations suggestingpersonal views on issues which may come before the courts, when applied tothe candidate or an opponent, may be considered to be prohibited by Section 31
    • 5A(3)(d) only when used in a context which contain a pledge or promise to decide cases in a particular manner. [Commentary amended effective February 26, 2004.] (e) may respond to personal attacks or attacks on the candidates record as long as the response does not violate Section 5A(3)(d). B. Candidates Seeking Appointment to Judicial or Other Governmental Office. (1) Candidates for appointment to judicial office or judges seeking othergovernmental office shall not solicit or accept funds, personally or through a committeeor otherwise, to support their candidacies. (2) A candidate for appointment to judicial office or a judge seeking othergovernmental office shall not engage in any political activity to secure the appointmentexcept that: (a) such persons may: (i) communicate with the appointing authority, including any selection or nominating commission or other agency designated to screen candidates; (ii) seek support or endorsement for the appointment from organizations that regularly make recommendations for reappointment or appointment to the office, and from individuals to the extent requested or required by those specified in Section 5B(2)(a); and (iii) provide to those specified in Sections 5B(2)(a)(i) and 5B(2)(a)(ii) information as to the candidate’s qualifications for the office; (b) a non-judge candidate for appointment to judicial office may, in addition, unless otherwise prohibited by law: (i) retain an office in a political organization, (ii) attend political gatherings, and 32
    • (iii) continue to pay ordinary assessments and ordinary contributions to a political organization or candidate and purchase tickets for political party dinners or other political functions. Commentary Section 5B(2) provides a limited exception to the restrictions imposed by Sections5A(1) and 5D. Under Section 5B(2), candidates seeking reappointment to the same judicialoffice or appointment to another judicial office or other governmental office may apply forthe appointment and seek appropriate support. Although under Section 5B(2) non-judge candidates seeking appointment to judicialoffice are permitted during candidacy to retain office in a political organization, attendpolitical gatherings and pay ordinary dues and assessments, they remain subject to otherprovisions of this Code during candidacy. See Sections 5B(1), 5B(2)(a), 5E and ApplicationSection. C. Judges and Candidates Subject to Public Election. (1) Judges holding an office filled by public election between competingcandidates, or candidates for such office, may, only insofar as permitted by law, attendpolitical gatherings, speak to such gatherings in their own behalf while candidates forelection or re-election, identify themselves as members of political parties, andcontribute to political parties or organizations. Commentary Section 5C recognizes the distinction between appropriate political activities byjudges and candidates subject to non-partisan election and those subject to partisanelections. The language of Section 5C differs from that of corresponding provisions in theABA Model Code, Sections C(1)(a)(ii) and (iii), in recognition of Mississippi’s non-partisanelections for certain positions. Furthermore, Section 23-15-973 et seq., Miss. Code Ann.(1972) imposes restrictions on candidates and political organizations to assure the non-partisan quality of judicial elections for Supreme Court, Court of Appeals, Chancery Court,Circuit Court and County Court justices and judges. Section 5C(1) permits judges subjectto election at any time to be involved in limited political activity. Section 5D, applicablesolely to incumbent judges, would otherwise bar this activity. Section 5C(1)(b)(iv) of theABA Mode Code has not been incorporated. Attending or speaking at a political partygathering in the judge’s own behalf while a candidate does not constitute alignments oraffiliation with the party sponsoring the gathering. 33
    • (2) A candidate shall not personally solicit or accept campaign contributions orpersonally solicit publicly stated support. A candidate may, however, establishcommittees of responsible persons to conduct campaigns for the candidate throughmedia advertisements, brochures, mailings, candidate forums and other means notprohibited by law. Such committees may solicit and accept reasonable campaigncontributions, manage the expenditure of funds for the candidates campaign andobtain public statements of support for the candidacy. Such committees are notprohibited from soliciting and accepting reasonable campaign contributions and publicsupport from lawyers. A candidates committees shall not solicit or acceptcontributions and public support for the candidates campaign earlier than 60 daysbefore the qualifying deadline or later than 120 days after the last election in which thecandidate participates during the election year. A candidate shall not use or permit theuse of campaign contributions for the private benefit of the candidate or others. Commentary There is legitimate concern about a judges impartiality when parties whose interestsmay come before a judge, or the lawyers who represent such parties, are known to havemade contributions to the election campaigns of judicial candidates. Section 5C(2)recognizes that in many jurisdictions judicial candidates must raise funds to support theircandidacies for election to judicial office. It therefore permits a candidate, other than acandidate for appointment, to establish campaign committees to solicit and accept publicsupport and financial contributions. Though not prohibited, campaign contributions of whicha judge has knowledge, made by lawyers or others who appear before the judge, may, byvirtue of their size or source, raise questions about a judges impartiality and be cause fordisqualification as provided under Section 3E. Campaign committees established under Section 5C(2) should manage campaignfinances responsibly, avoiding deficits that might necessitate post-election fund-raising, tothe extent possible. Such committees must at all times comply with applicable statutoryprovisions governing their conduct. Section 5C(2) does not prohibit a candidate from initiating an evaluation by a judicialselection commission or bar association, or, subject to the requirements of this Code, fromresponding to a request for information from any organization. (3) Candidates shall instruct their campaign committees at the start of thecampaign not to accept campaign contributions for any election that exceed thoselimitations placed on contributions by individuals, political action committees andcorporations by law. 34
    • Commentary The ABA Model Code of Judicial Conduct is drafted for the insertion of specific limitson contributions for judicial campaigns. As adopted for Mississippi, this section simplymakes references to limits established by the Legislature by statutes which limit contributionsto $5,000 in appellate court races, to $2,500 in chancery, circuit or county court races, andgenerally limits corporate contributions to $1,000. See Miss. Code Ann. § 23-15-1021 (2000Supp.) (judicial races) and Miss. Code Ann. § 97-13-15 (1999 Supp.) (corporatecontributions.) (4) A candidate and the candidate’s committee shall timely comply with allprovisions of law requiring the disclosure and reporting of contributions, loans andextensions of credit. Commentary Section 5C(4) of the ABA Model Code of Judicial Conduct which makes specialprovision for reporting campaign contributions is replaced by the foregoing Section 5C(4)which requires compliance with all provisions of law. See Miss. Code Ann. §§ 23-15-805and 23-15-1023 (2000 Supp.) The ABA Model Code includes a Section 5C(5) which approves, under somecircumstances, a judicial candidate’s name being listed on election materials along with thenames of other candidates. This has not been incorporated in the revision of the Mississippicanons. D. Incumbent Judges. A judge shall not engage in any political activity except asauthorized under any other Section of this Code, on behalf of measures to improve thelaw, the legal system or the administration of justice, or as expressly authorized by law. Commentary Neither Section 5D nor any other section of the Code prohibits a judge in the exerciseof administrative functions from engaging in planning and other official activities withmembers of the executive and legislative branches of government. With respect to a judgesactivity on behalf of measures to improve the law, the legal system and the administrationof justice, see Commentary to Section 4B and Section 4C(1) and its Commentary. Sections 5A through 5D limit the participation of judges and candidates in politicalactivities. Section 5D expressly prohibits judges from engaging “in any political activity”not expressly authorized by the Code of Judicial Conduct or by law. These provisions do notprohibit voting in party primaries and general elections, which is not “political activity” asthe phrase is used in Canon 5. The statute governing non-partisan judicial elections, while 35
    • prohibiting candidates for judicial offices covered by the statute from campaigning orqualifying for the offices based on party affiliation, does not preclude the candidates fromvoting in party primaries. Miss. Code Ann. § 23-25-973 (Supp. 2000.) E. Applicability. Canon 5 generally applies to all incumbent judges and judicialcandidates. Successful candidates, whether or not incumbents, are subject to judicialdiscipline for their campaign conduct; unsuccessful candidates who are lawyers aresubject to lawyer discipline for their campaign conduct. Lawyers who are candidatesfor judicial office are subject to Rule 8.2(b) of the Mississippi Rules of ProfessionalConduct. However, the provisions of Canon 5F below shall not apply to elections forthe offices of justice court judge and municipal judge. F. Special Committee--Proceedings and Authority. In every year in which anelection is held for Supreme Court, Court of Appeals, chancery court, circuit court orcounty court judge in this state and at such other times as the Supreme Court maydeem appropriate, a Special Committee on Judicial Election Campaign Intervention("Special Committee") shall be created whose responsibility shall be to issue advisoryopinions and to deal expeditiously with allegations of ethical misconduct in campaignsfor judicial office. The committee shall consist of five (5) members. The Chief Justiceof the Supreme Court, the Governor, the Lieutenant Governor, the Speaker of theHouse of Representatives of the Mississippi Legislature and the chair of theCommission on Judicial Performance (Commission) shall each appoint one member.Those appointed by the Chief Justice, the Governor and the chair of the Commissionshall be attorneys licensed to practice in the state. No person shall be appointed toserve as a member of a Special Committee for the year in which such person is acandidate for judicial office. Should the Chief Justice expect to be a candidate forjudicial office during the year for which a Special Committee is to be appointed theChief Justice shall declare such expectation, and in such event, the appointment whichotherwise would have been made by the Chief Justice shall be made by the next seniorjustice of the Supreme Court not seeking judicial office in such year. Likewise, shouldthe Governor, Lieutenant Governor, Speaker of the House of Representatives or chairof the Commission expect to seek judicial office during such year, that official shalldeclare such expectation, and the appointment which otherwise would have been madeby such appointing authority shall be made, respectively: by the Lieutenant Governorif the Governor expects to seek such an office; by the President Pro Tem of the Senateif the Lieutenant Governor expects to seek such an office; by the Speaker Pro Tem ofthe House of Representatives if the Speaker expects to seek such an office; and by thevice-chair of the Commission if the chair expects to seek such an office. Any actiontaken by the Special Committee shall require a majority vote. Each Special Committeeshall be appointed no later March 1 in the year of their service, and it shall continuein existence for ninety (90) days following such judicial elections or for so longthereafter as is necessary to consider matters submitted to it within such time. TheCommission shall provide administrative support to the Special Committee. Should 36
    • any appointing authority fail to make an appointment, three members shall constitutea sufficient number to conduct the business of the Special Committee. The objective ofthe Special Committee shall be to alleviate unethical and unfair campaign practices injudicial elections, and to that end, the Special Committee shall have the followingauthority: (1) Within ten (10) days of the effective date of this rule or within the ten (10)days after formally announcing and/or officially qualifying for election or re-electionto any judicial office in this state, whichever is later, all candidates, includingincumbent judges, shall forward written notice of such candidacy, together with anappropriate mailing address and telephone number, to the Commission. Upon receiptof such notice, the Special Committee shall, through the Commission, cause to bedistributed to all such candidates by certified mail-return receipt requested copies ofthe following: Canon 5 of the Code of Judicial Conduct; summaries of any previousopinions issued by the Special Committee, Special Committees organized for priorelections, or the Supreme Court of Mississippi, which relate in any way to campaignconduct and practices; and a form acknowledgment, which each candidate shallpromptly return to the Commission and therein certify that the candidate has read andunderstands the materials forwarded and agrees to be bound by such standards duringthe course of the campaign. A failure to comply with this section shall constitute a perse violation of this Section authorizing the Committee to immediately publicize suchfailure to all candidates in such race and to all appropriate media outlets. In the eventof a question relating to conduct during a judicial campaign, judicial candidates, theircampaign organizations, and all independent persons, committees and organizations areencouraged to seek an opinion from the Special Committee before such conduct occurs. (2) Opinions as to the propriety of any act or conduct by a judicial candidate, acandidates campaign organization or an independent person, committee ororganization conducting activities which impact on the election and as to theconstruction or application of Canon 5 may be provided by the Special Committee uponrequest from any judicial candidate, campaign organization or an independent person,committee or organization. If the Special Committee finds the question of limitedsignificance, it may provide an informal opinion to the questioner. If, however, it findsthe questions of sufficient general interest and importance, it may render a formalopinion, in which event it shall cause the opinion to be published in complete orsynopsis form. Furthermore, the Special Committee may issue formal opinions on itsown motion under such circumstances, as it finds appropriate. The Special Committeemay decline to issue an opinion when a majority of the Special Committee membersdetermine that it would be inadvisable to respond to the request and to have soconfirmed in writing their reasoning to the person who requested the opinion. Allformal opinions of the Special Committee shall be filed with the Supreme Court andshall be a matter of public record except for the names of the persons involved, whichshall be excised. Both formal and informal opinions shall be advisory only; however, 37
    • the Commission on Judicial Performance, the Supreme Court and all other regulatoryand enforcement authorities shall consider reliance by a judicial candidate upon theSpecial Committee opinion in any disciplinary or enforcement proceeding. (3) Upon receipt of information facially indicating a violation by a judicialcandidate of any provision of Canon 5 during the course of a campaign for judicialoffice, or indicating actions by an independent person, committee or organization whichare contrary to the limitations placed upon candidates by Canon 5, the Commissionstaff shall immediately forward a copy of the same by e-mail or facsimile, if available,and U.S. mail to the Special Committee members and said Committee shall: (a) seek, from the informing party and/or the subject of the information, such further information on the allegations as it deems necessary; (b) conduct such additional investigation as the Committee may deem necessary; (c) determine whether the allegations warrant speedy intervention and, if so, immediately issue a confidential cease-and-desist request to the candidate and/or organization or independent committee or organization believed to be engaging in unethical and/or unfair campaign practices. If the Committee determines that the unethical and/or unfair campaign practice is of a serious and damaging nature, the Committee may, in its discretion, disregard the issuance of a cease-and-desist request and immediately take action authorized by the provisions of paragraph (3)(d)(i) and (ii), hereafter described. If the allegations of the complaint do not warrant intervention, the Committee shall dismiss the same and so notify the complaining party. (d) If a cease-and-desist request is disregarded or if the unethical or unfair campaign practices otherwise continue, the Committee is further authorized: (i) to immediately release to all appropriate media outlets, as well as the reporting party and the person and/or organization against whom the information is submitted, a public statement setting out the violations believed to exist, or, in the case of independent persons, committees or organizations, the actions by an independent person, committee or organization which are contrary to the limitations placed upon candidates by Canon 5. In the event that the violations or actions have continued after the 38
    • imposition of the cease and desist request, the media release shall also include a statement that the candidate and/or organization or independent person, committee or organization has failed to honor the cease-and-desist request, and (ii) to refer the matter to the Commission on Judicial Performance or to any other appropriate regulatory or enforcement authority for such action as may be appropriate under the applicable rules. (4) All proceedings under this Rule shall be informal and non-adversarial, andthe Special Committee shall act on all requests within ten (10) days of receipt, eitherin person, by facsimile, by U.S. mail, or by telephone. In any event, the SpecialCommittee shall act as soon as possible taking into consideration the exigencies of thecircumstances and, as to requests received during the last ten (10) days of the campaign,shall act within thirty-six (36) hours. (5) Except as herein specifically authorized, the proceedings of the SpecialCommittee shall remain confidential, and in no event shall the Special Committee havethe authority to institute disciplinary action against any candidate for judicial office,which power is specifically reserved to the Commission on Judicial Performance underapplicable rules. (6) The Committee shall after conclusion of the election distribute to theCommission on Judicial Performance copies of all information and all proceedingsrelating thereto. (7) This Canon 5F shall apply to all candidates for judicial offices of theSupreme Court, Court of Appeals, chancery courts, circuit courts and county courts,be they incumbent judges or not, and to the families and campaign/solicitationcommittees of all such candidates. Persons who seek to have their name placed on theballot as candidates for such judicial offices and the judicial candidates’ electioncommittee chairpersons, or the chairperson’s designee, shall no later than 20 days afterthe qualifying date for candidates in the year in which they seek to run complete atwo-hour course on campaign practices, finance, and ethics sponsored and approvedby the Committee. Within ten days of completing the course, candidates shall certifyto Committee that they have completed the course and understand fully therequirements of Mississippi law and the Code of Judicial Conduct concerning campaignpractices for judicial office. Candidates without opposition are exempt from attendingthe course. Commentary 39
    • This Section 5F does not appear in the ABA Model Code and was added with theadoption of this Section 5. Similar provisions have been adopted for South Dakota andGeorgia. See South Dakota Rules of Commission on Judicial Qualifications, Rule IV andRules of Georgia Judicial Qualification Commission, Rule 27. In Weaver v. Bonner, 114 F.Supp. 2d 1337 (N.D. Ga. 2000), a constitutional challenge to the Georgia rule was rejected,the court saying the government may “participate in the marketplace of ideas” and“contribute its own views to those of the other speakers. Weaver at 1345, quoting Muir v.Ala. Educ. Television Comm’n, 688 F. 2d 1033, 1037 (5 th Cir. 1982). In Weaver, the courtalso specifically found the procedures adequate to satisfy due process requirement. Provision is made for the Special Committee to issue opinions to judicial candidates.Ordinarily, absent extraordinary circumstances or statutory authority to the contrary, whena judge or candidate, relying on the opinion of the Special Committee, acts in accordancewith the opinion and the opinion is based on a full disclosure of facts and circumstances, thejudge or candidate will not be subject to disciplinary or enforcement action or liability. APPLICATION OF THE CODE OF JUDICIAL CONDUCT A. Parties Affected. Anyone, whether or not a lawyer, who is an officer of ajudicial system and who performs judicial functions, including an officer such as amagistrate, court commissioner, special master or referee, is a judge within the meaningof this Code. All judges shall comply with this Code except as provided below. B. Part-time Judge. A part time judge shall not be subject to the restrictions andlimitations of Sections 4C, 4D(2), 4F, and 4G, except as regards practice in the court inwhich the part-time judge serves [prohibition on practice of law], and 4H(1). C. Special Judge. A special judge shall not, except while serving as a judge, besubject to the restrictions and limitations of Sections 4A. A special judge shall not, atany time be subject to the restrictions and limitations of Sections, 4B, 4D, 4E, 4F, 4G,and 4H. A special judge, except while serving as a special judge or while a candidatefor judicial office, shall not be subject to the restrictions of Canon 5. D. Magistrates, court commissioners, special masters and referees shall not atany time be subject to the restrictions and limitations of Sections 4A, 4B, 4C(1), 4C(2)4D, 4E, 4F, 4G, and 4H. Magistrates, court commissioners, special masters andreferees, except while a candidate for judicial office, shall not be subject to therestrictions of Canon 5. E. Time for Compliance. A person to whom this Code becomes applicable shallcomply immediately with all provisions of this Code except Sections 4D(1), 4D(2) and4E and shall comply with those Sections as soon as reasonably possible and shall do soin any event within the period of one year. 40
    • F. Effective Date. The separate provisions of this Code shall govern acts, eventsand conduct of those subject to those provisions from and after the effective date of theadoption of each such provision. Acts, events and conduct which occur prior to theadoption of each provision shall be governed by the provisions of the Code effective atthe time of such acts, events and conduct. Commentary The ABA Model Code of Judicial Conduct provides for several non-standardcategories of judges who perform duties on a limited basis, which differ from thoserecognized for Mississippi by this Applications Section. If serving as a fiduciary whenselected as judge, a new judge may, notwithstanding the prohibitions in Section 4E, continueto serve as a fiduciary but only for that period of time necessary to avoid serious adverseconsequences to the beneficiary of the fiduciary relationship and in no event longer than oneyear. Similarly, if engaged at the time of judicial selection in a business activity, a new judgemay, notwithstanding the prohibitions in Section 4D(2), continue in that activity for areasonable period but in no event longer than one year.
    • U.S. District Court Southern District of Mississippi (Jackson) CIVIL DOCKET FOR CASE #: 3:12-cv-00342-TSL-MTP Newsome v. Page Kruger & Holland, P.A. et al Date Filed: 05/15/2012 Assigned to: District Judge Tom S. Lee Jury Demand: Plaintiff Referred to: Magistrate Judge Michael T. Parker Nature of Suit: 440 Civil Rights: Other Demand: $5,000,000 Jurisdiction: Federal Question Cause: 42:1981 Civil Rights Plaintiff Vogel Denise Newsome represented by Vogel Denise Newsome Post Office Box 14731 Cincinnati, OH 45250 601/885-9536 PRO SE V. Defendant Page Kruger & Holland, P.A. represented by William T. Siler , Jr. A Mississippi Corporation PHELPS DUNBAR, LLP - Jackson P. O. Box 16114 Jackson, MS 39236-6114 601/352-2300 Fax: 601/360-9777 Email: silert@phelps.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason T. Marsh PHELPS DUNBAR, LLP - Gulfport NorthCourt One, Suite 300 2304 19th Street Gulfport, MS 39501 228/679-1130 Fax: 228-679-1131 Email: marshj@phelps.com ATTORNEY TO BE NOTICED Defendant Thomas Y. Page represented by William T. Siler , Jr. In his official and Individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason T. Marsh EXHIBIT “H"1 of 6 8/10/2012
    • (See above for address) ATTORNEY TO BE NOTICED Defendant Louis G. Baine, III represented by William T. Siler , Jr. In his official and Individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason T. Marsh (See above for address) ATTORNEY TO BE NOTICED Defendant Linda Thomas represented by William T. Siler , Jr. In her official and Individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason T. Marsh (See above for address) ATTORNEY TO BE NOTICED Defendant Does 1-100 In their official and individual capacities Date Filed # Docket Text 05/15/2012 1 COMPLAINT with JURY DEMAND against Louis G. Baine, III, Does 1-100, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Filing fee $350.00 receipt number 34643015824), filed by Vogel Denise Newsome. (Attachments: # 1 Exhibit I- Registered Agent Information, # 2 Exhibit II-Email from Susan Carr # 3 Exhibit III-Email from Thomas Page # 4 Exhibit IV-Hinds County Court Complaint, # 5 Exhibit V-Conflic Check # 6 Exhibit VI-Memoralizing # 7 Exhibit VII-Motion # 8-Exhibit VIII-Indictment # 9 Exhibit IX-Impeachment # 10 Exhibit X-List of Judges/Justices # 11 Exhibit XI-Recusal Order # 12 Exhibit XII-Noblin Information # 13 Exhibit XIII-Phone Director # 14 Exhibit XIV-Duff Information # 15 Exhibit XV-Rawls Information # 16 Exhibit XVI-Vlanton Information # 17 Exhibit XVII-Leggitt Information # 18 Exhibit XVIII- Government Positions # 19 Exhibit XIX-MS Defense Lawyers Assoc. # 20 Exhibit XX-Computer Skills, # 21 Exhibit XXI- Google, # 22 Exhibit XXII-Website Information # 23 Exhibit XXIII - Docket Sheet # 24 Exhibit XXIV - Emergency Complaint #25 XXV- Letters(SEC) Modified on 5/15/2012 (SEC). (Attachment 23 replaced on 5/21/2012) (SEC). (Attachment 24 replaced on 5/21/2012) (SEC). (Additional attachment(s) added on 5/23/2012: # 25 Exhibit 10 part-1 photos email copies, # 26 Exhibit 10 PART 2 photos and email copies, # 27 Exhibit 10 -PART 3 photo and email copies) (SEC). (Additional attachment(s) added on 5/23/2012: # 29 Exhibit 10 Part 4 photos and email copies, # 30 Exhibit 10 Part 5 photos and email copies, # 31 Exhibit 10 Part 6 photos and email copies) (SEC). Modified on 5/23/2012 (SEC). (Entered: 05/15/2012)2 of 6 8/10/2012
    • 05/15/2012 2 MOTION Conflict of Interest Information by Vogel Denise Newsome (Attachments: # 1 Exhibit 1 Docket Sheet, # 2 Exhibit 2 Recusal Order, # 3 Exhibit 3 Baker Donelson ties, # 4 Exhibit 4 Baker Donelson listing, # 5 Exhibit 5 Leggitt Information, # 6 Exhibit 6 PKH Phone Directory)(SEC) (Entered: 05/17/2012) 05/17/2012 3 EXHIBIT-7 Judge G Thomas Porteous (IMPEACHMENT Article(s) by Vogel Denise Newsome Related document: 2 MOTION Conflict of Interest Information filed by Plaintiff Vogel Denise Newsome (Attachments: # 1 Exhibit 8 Filing Fee-FINAL, # 2 Exhibit 9 Senator Rand Paul mailing, # 3 Exhibit 11 President Barack Obama)(SEC) (Entered: 05/17/2012) 05/17/2012 4 EXHIBIT-12 by Vogel Denise Newsome Related document: 2 MOTION Conflict of Interest Information filed by Plaintiff Vogel Denise Newsome (Attachments: # 1 Exhibit 13 Green Card)(SEC) (Entered: 05/17/2012) 07/05/2012 5 MOTION to Dismiss by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Attachments: # 1 Exhibit A, May 16, 2006 E-mail)(Marsh, Jason) (Entered: 07/05/2012) 07/05/2012 6 MEMORANDUM in Support re 5 MOTION to Dismiss filed by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Attachments: # 1 unpublished court opinion: 2008 WL 4450295, # 2 unpublished court opinion: 310 FedAppx 623, # 3 unpublished court opinion: 2010 WL 3377626, # 4 unpublished court opinion: 2010 WL 3937942, # 5 unpublished court opinion: 1996 WL 33370660, # 6 unpublished court opinion: 2010 WL 1709980, # 7 unpublished court opinion: 2007 WL 2746786, # 8 unpublished court opinion: 116 FedAppx 19, # 9 unpublished court opinion: 150 FedAppx 286, # 10 unpublished court opinion: 2008 WL 5132047, # 11 unpublished court opinion: 2010 WL 4617147, # 12 unpublished court opinion: 2007 WL 295220, # 13 unpublished court opinion: 261 FedAppx 761)(Marsh, Jason) (Entered: 07/05/2012) 07/05/2012 7 NOTICE of Appearance by Jason T. Marsh on behalf of Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Marsh, Jason) (Entered: 07/05/2012) 07/05/2012 8 NOTICE of Appearance by William T. Siler, Jr on behalf of Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Siler, William) (Entered: 07/05/2012) 07/06/2012 DOCKET ANNOTATION as to #6: L.U.Civ.R. 7 requires that all supporting exhibits document be denominated by an exhibit letter or number and a meaningful description. Attorney is advised to follow this rule in future filings. (SEC) (Entered: 07/06/2012) 07/16/2012 9 MOTION to Stay Proceedings Pending A Ruling On Defendants Motion To Dismiss by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Attachments: # 1 Exhibit A, Court Order)(Marsh, Jason) (Entered: 07/16/2012) 07/16/2012 10 MEMORANDUM in Support re 9 MOTION to Stay Proceedings Pending A Ruling On Defendants Motion To Dismiss filed by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Attachments: # 1 Exhibit 1, unpublished court opinion: 2008 WL 4216108)(Marsh, Jason) (Entered: 07/16/2012) 07/17/2012 11 Corporate Disclosure Statement by Page Kruger & Holland, P.A. identifying Corporate Parent Page Kruger & Holland, P.A. for Page Kruger & Holland, P.A.. (Marsh, Jason)3 of 6 8/10/2012
    • (Entered: 07/17/2012) 07/17/2012 12 MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss, MOTION for Sanctions, MOTION for Default Judgment as to by Vogel Denise Newsome (Attachments: # 1 Exhibit 1 Affifavit of Vogel Denise Newsome, # 2 Exhibit 2 Rule 73, # 3 Exhibit 3 Declining Asssignment of Magistrate, # 4 Exhibit 4 Ruel 7-1, # 5 Exhibit 5 Plummer vs Chicago Jomrneyman, # 6 Exhibit 6 WALTON vs UTILITY, # 7 Exhibit 7 HEATH v BALDWIN, # 8 Exhibit 8 HOWARD vs SUNCase, # 9 Exhibit 9 TRUVILLION vs KINGS DA, # 10 Exhibit 10 051606 Termination Email)(SEC) (Additional attachment(s) added on 7/18/2012: # 11 Exhibit 11 Municipal Government, # 12 Exhibit 12 Motion Docket, # 13 Exhibit 13 Callahan vs Bancorpsouth, # 14 Exhibit 14 Phelps Dunbar & Baker donelson, # 15 Exhibit 15 Hambrick vs. Bear Stear, # 16 Exhibit 16 Walker vs Epps, # 17 Exhibit 17 Docket Sheet, # 18 Exhibit 18 Gates vs Spinks, # 19 Exhibit 19 Boykin vs Georgia Pacific, # 20 Exhibit 20 Garner vs. Ashley Furniture, # 21 Exhibit 21 Payne vs Travenol, # 22 Exhibit 22 Notice of Appearance, # 23 Exhibit 23 Waiver, # 24 Exhibit 24 Waiver, # 25 Exhibit 25 Waiver, # 26 Exhibit 26 Waiver, # 27 Exhibit 27 Phelps Dunbar & Page Kruger, # 28 Exhibit 28 Docket Sheet, # 29 Exhibit 29 Judge Tom S. Lee Recusal Order) (SEC). Modified on 7/18/2012 (SEC). (Additional attachment(s) added on 7/18/2012: # 30 Exhibit 30 Alexander vs Easy Finance, # 31 Exhibit 31 Mississippi Bar Directory, # 32 Exhibit 32 28-455, # 33 Exhibit 33 28-144 disqualification, # 34 Exhibit 34 Construction, # 35 Errata 35 Safeguard Litigant, # 36 Errata 36 Disqualification, # 37 Exhibit 37 Disqualification, # 38 Exhibit 38 Disqualification, # 39 Exhibit 39 Conduct or Bias, # 40 Exhibit 40 Fax, # 41 Exhibit 41 Liddell vs Northrop, # 42 Exhibit 42 Phelps Dunbar-Marsh letter) (SEC). Modified file date on 7/18/2012 (SEC). (Main Document 12 replaced on 8/10/2012) (SEC). (Entered: 07/18/2012) 07/17/2012 13 WAIVER OF SERVICE Returned Executed by Vogel Denise Newsome. Louis G. Baine, III waiver sent on 6/6/2012, answer due 8/6/2012; Thomas Y. Page waiver sent on 6/6/2012, answer due 8/6/2012; Page Kruger & Holland, P.A. waiver sent on 6/6/2012, answer due 8/6/2012; Linda Thomas waiver sent on 6/6/2012, answer due 8/6/2012. (SEC) (Entered: 07/18/2012) 07/17/2012 14 REQUEST FOR WAIVER of Service sent to Louis G. Baine III, Page Kruger & Holland, Thomas Y. Page, Linda Thomas on 6/8/12 by Vogel Denise Newsome. (Attachments: # 1 Wavier, # 2 Waiver, # 3 Waiver)(SEC) (Entered: 07/18/2012) 07/17/2012 15 Letter from Vogel Denise Newsome (SEC) (Entered: 07/18/2012) 07/30/2012 19 MOTION to Strike 10 Memorandum in Support of Motion, 9 MOTION to Stay Proceedings Pending A Ruling On Defendants Motion To Dismiss by Vogel Denise Newsome (Attachments: # 1 Exhibit 1 Affidavit, # 2 Exhibit 2 FRCP Rule26, # 3 Exhibit 3 28 USC, # 4 Exhibit 4 Phillips vs Joint LegislativeCommittee.pdf, # 5 Exhibit 5 Mississippi Code, # 6 Exhibit 6 Docket Sheet, # 7 Exhibit 7 Waiver, # 8 Exhibit 8 FRCP Rule73, # 9 Exhibit 9 Declining Assignment Of Magistrate., # 10 Exhibit 10 Ms Rules of Professional Conduct(SEC) (Additional attachment(s) added on 8/2/2012: # 11 Exhibit 11 Plummer vs Chicago Journeman, # 12 Exhibit 12 Hall vs Small Business Administration, # 13 Exhibit 13 Woldum vs Roverud Construction, # 14 Exhibit 14 Walton v s Utility - 1981, # 15 Exhibit 15 Heath vs Baldwin Case, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit) (SEC). Modified on 8/2/2012 (SEC). (Additional attachment(s) added on 8/2/2012: # 22 Exhibit 22 Walker v. Epps, # 23 Exhibit 23 Motion Docket, # 24 Exhibit 24 Callahan v. Bancorpsouth, #4 of 6 8/10/2012
    • https://ecf.mssd.uscourts.gov/cgi-bin/DktRpt.pl?60585361655047-L_452_0-1 25 Exhibit 25 Waiver, # 26 Exhibit 26 Waiver, # 27 Exhibit 27 Waiver, # 28 Exhibit 28 Waiver, # 29 Exhibit 29 Notice of Lawsuit, # 30 Exhibit 30 Notice of Lawsuit, # 31 Exhibit 31 Notice of Lawsuit, # 32 Exhibit 32 Notice of Lawsuit, # 34 Exhibit 33 Screen Shot, # 35 Exhibit 34 Fax to Phelps Dunbar, # 36 Exhibit 35 Docket Sheet) (SEC). Modified on 8/2/2012 (SEC). (Additional attachment(s) added on 8/2/2012: # 37 Exhibit 36 Judge Porteous (impeachmeng, # 38 Exhibit 37 Judge DeLaugher (indictment, # 39 Exhibit 38 Notice of Appearance, # 41 Exhibit 40 Hambrick v Bear Stear, # 42 Exhibit 41 Phelps Dunbar & Baker Donelson, # 43 Exhibit 42 Disqualification, # 44 Exhibit 43 Judge Lee Recusal Order, # 45 Exhibit 44 MS Directory, # 46 Exhibit 45 Member for Disqualification, # 47 Exhibit 46 Baker donelson (Ties to Govt., # 48 Exhibit 47 Disqualification, # 49 Exhibit 48 Disqualification, # 50 Exhibit 49 Construction and Application) (SEC). (Additional attachment(s) added on 8/2/2012: # 51 Exhibit 50 Safeguarding Litigat, # 52 Exhibit 51 Disqualificartion, # 53 Exhibit 52 Conduct or Bias, # 54 Exhibit 53 Alexander v Easy Fina, # 55 Exhibit 54 Phelps Dunbar Marsh Lett, # 56 Exhibit 55 Judge Law Clerk, # 57 Exhibit 56 Judge Knowledge of Evidentiary, # 58 Exhibit Judge as material witness, # 59 Exhibit 58 Henry Wingate (information, # 60 Exhibit 59 Baker-Howard (Bio, # 61 Exhibit Keight Ball (named Magistrate, # 62 Exhibit 61 Wingate - Henry (Appointed, # 63 Exhibit 62 Ball F Keith, # 64 Exhibit 63 Magistrate Keith Ball, # 65 Exhibit 64 Magistrate Keith Ball, # 66 Exhibit 65 Docket Sheet, # 67 Exhibit 66 PKH Corporate Annual Report) (SEC). Modified on 8/2/2012 (SEC). (Entered: 08/01/2012) 07/31/2012 16 RESPONSE in Opposition re 12 MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION for Sanctions MOTION for Default Judgment as to MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss filed by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Attachments: # 1 Exhibit 1, 2008 WL 2783348, # 2 Exhibit 2, 2008 WL 362682, # 3 Exhibit 3, 2008 WL 2374245)(Marsh, Jason) (Entered: 07/31/2012) 07/31/2012 17 RESPONSE in Opposition re 12 MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION for Sanctions MOTION for Default Judgment as to MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss filed by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Marsh, Jason) (Entered: 07/31/2012) 07/31/2012 18 RESPONSE in Opposition re 12 MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION for Sanctions MOTION for Default Judgment as to MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to5 of 6 8/10/2012
    • Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss filed by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Marsh, Jason) (Entered: 07/31/2012) 08/02/2012 20 ORDER granting 9 Motion to Stay Proceedings pending ruling on defendants motion to dismiss; denying 19 Motion to Strike. Signed by District Judge Tom S. Lee on 8/2/12 (LWE) (Entered: 08/02/2012) 08/10/2012 DOCKET ANNOTATION as to #12: This docket entry failed to select all pages of the document. Court staff has correctly refiled the document. (SEC) (Entered: 08/10/2012)6 of 6 8/10/2012
    • Rule 8. General Rules of Pleading | Federal Rules of Civil Procedure | LII ... http://www.law.cornell.edu/rules/frcp/rule_8 RULE 8. GENERAL RULES OF PLEADING (a) C LAIM FOR RELIEF. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. (b) DEFENSES; ADMISSIONS AND DENIALS. (1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party.  (2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. (c) AFFIRMATIVE DEFENSES. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: • accord and satisfaction; • arbitration and award; • assumption of risk; • contributory negligence; • duress; • estoppel; • failure of consideration; EXHIBIT “I”1 of 4 8/10/2012 12:22 PM
    • Rule 8. General Rules of Pleading | Federal Rules of Civil Procedure | LII ... http://www.law.cornell.edu/rules/frcp/rule_8 • fraud; • illegality; • injury by fellow servant; • laches; • license; • payment; • release; • res judicata; • statute of frauds; • statute of limitations; and • waiver. (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. (d) PLEADING TO BE CONCISE AND DIRECT; ALTERNATIVE STATEMENTS; INCONSISTENCY. (1) In General. Each allegation must be simple, concise, and direct. No technical form is required. (2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency. (e) C ONSTRUING PLEADINGS. Pleadings must be construed so as to do justice. NOTES (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 28, 2010, eff. Dec. 1, 2010.) N OTES OF A DVISORY C OMMITTEE ON R ULES —1937 Note to Subdivision (a). See [former] Equity Rules 25 (Bill of Complaint—Contents), and 30 (Answer—Contents—Counterclaim). Compare 2 Ind.Stat.Ann. (Burns, 1933) §§2–1004, 2–1015; 2 Ohio Gen.Code Ann. (Page, 1926) §§11305, 11314; Utah Rev.Stat.Ann. (1933), §§104–7–2, 104–9–1. See Rule 19(c) for the requirement of a statement in a claim for relief of the names of persons who ought to be parties and the reason for their omission. See Rule 23(b) for particular requirements as to the complaint in a secondary action by shareholders. Note to Subdivision (b). 1. This rule supersedes the methods of pleading prescribed in USC Title 19 §508 (Persons making seizures pleading general issue and providing2 of 4 8/10/2012 12:22 PM
    • Rule 8. General Rules of Pleading | Federal Rules of Civil Procedure | LII ... http://www.law.cornell.edu/rules/frcp/rule_8 U.S.C., Title 19, §508 (Persons making seizures pleading general issue and providing special matter); U.S.C., Title 35, [former] §§40d (Providing under general issue, upon notice, that a statement in application for an extended patent is not true), 69 [now 282] (Pleading and proof in actions for infringement) and similar statutes. 2. This rule is, in part, [former] Equity Rule 30 (Answer—Contents—Counterclaim), with the matter on denials largely from the Connecticut practice. See Conn.Practice Book (1934) §§107, 108, and 122; Conn.Gen.Stat. (1930) §§5508–5514. Compare the English practice, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r.r. 17–20. Note to Subdivision (c). This follows substantially English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r. 15 and N.Y.C.P.A. (1937) §242, with “surprise” omitted in this rule. Note to Subdivision (d). The first sentence is similar to [former] Equity Rule 30 (Answer —Contents—Counterclaim). For the second sentence see [former] Equity Rule 31 (Reply—When Required—When Cause at Issue). This is similar to English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r.r. 13, 18; and to the practice in the States. Note to Subdivision (e). This rule is an elaboration upon [former] Equity Rule 30 (Answer—Contents—Counterclaim), plus a statement of the actual practice under some codes. Compare also [former] Equity Rule 18 (Pleadings—Technical Forms Abrogated). See Clark, Code Pleading (1928), pp. 171–4, 432–5; Hankin, Alternative and Hypothetical Pleading (1924), 33 Yale L.J. 365. Note to Subdivision (f). A provision of like import is of frequent occurrence in the codes. Ill.Rev.Stat. (1937) ch. 110, §157(3); 2 Minn.Stat. (Mason, 1927) §9266; N.Y.C.P.A. (1937) §275; 2 N.D.Comp.Laws Ann. (1913) §7458. N OTES OF A DVISORY C OMMITTEE ON R ULES —1966 A MENDMENT The change here is consistent with the broad purposes of unification. N OTES OF A DVISORY C OMMITTEE ON R ULES —1987 A MENDMENT The amendments are technical. No substantive change is intended. C OMMITTEE N OTES ON R ULES —2007 A MENDMENT The language of Rule 8 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The former Rule 8(b) and 8(e) cross-references to Rule 11 are deleted as redundant. Rule 11 applies by its own terms. The force and application of Rule 11 are not diminished by the deletion. Former Rule 8(b) required a pleader denying part of an averment to “specify so much of it as is true and material and * * * deny only the remainder.” “[A]nd material” is deleted to avoid the implication that it is proper to deny something that the pleader believes to be true but not material. Deletion of former Rule 8(e)(2)s “whether based on legal, equitable, or maritime grounds” reflects the parallel deletions in Rule 1 and elsewhere. Merger is now successfully accomplished. Changes Made After Publication and Comment. See Note to Rule 1, supra. C OMMITTEE N OTES ON R ULES —2010 A MENDMENT Subdivision (c)(1) “[D]ischarge in bankruptcy” is deleted from the list of affirmative3 of 4 8/10/2012 12:22 PM
    • Rule 8. General Rules of Pleading | Federal Rules of Civil Procedure | LII ... http://www.law.cornell.edu/rules/frcp/rule_8 Subdivision (c)(1). [D]ischarge in bankruptcy is deleted from the list of affirmative defenses. Under 11 U.S.C. § 524(a)(1) and (2) a discharge voids a judgment to the extent that it determines a personal liability of the debtor with respect to a discharged debt. The discharge also operates as an injunction against commencement or continuation of an action to collect, recover, or offset a discharged debt. For these reasons it is confusing to describe discharge as an affirmative defense. But § 524(a) applies only to a claim that was actually discharged. Several categories of debt set out in 11 U.S.C. § 523(a) are excepted from discharge. The issue whether a claim was excepted from discharge may be determined either in the court that entered the discharge or — in most instances — in another court with jurisdiction over the creditor’s claim. Changes Made After Publication and Comment. No changes were made in the rule text. The Committee Note was revised to delete statements that were over-simplified. New material was added to provide a reminder of the means to determine whether a debt was in fact discharged.4 of 4 8/10/2012 12:22 PM
    • EXHIBIT "J"
    • Certified Mail Return Receipt No. 7006 0100 0000 9901 0081 AO 399 (01/09) Waiver of the Service of Summons UNITED STATES DISTRICT COURT for the __________District of Mississippi Southern District of __________ VOGEL DENISE NEWSOME ) Plaintiff ) v. ) Civil Action No. 3:12-cv-342 TSL-MTP PAGE KRUGER & HOLLAND, P.A, ET AL. ) Defendant ) WAIVER OF THE SERVICE OF SUMMONS To: VOGEL DENISE NEWSOME (Name of the plaintiff’s attorney or unrepresented plaintiff) I have received your request to waive service of a summons in this action along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you. I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case. I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service. I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within 60 days from 06/06/2012 , the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent. Date: Signature of the attorney or unrepresented party PAGE KRUGER & HOLLAND, P.A. Printed name of party waiving service of summons Printed name Address E-mail address Telephone number Duty to Avoid Unnecessary Expenses of Serving a Summons Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons and complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located in the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure. “Good cause” does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has no jurisdiction over this matter or over the defendant or the defendant’s property. If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service. If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served.NOTE: To save cost of litigation Plaintiff provided with "Notice of Lawsuit and Request for Waiver of Service of Summons" and "Waiver of Service of Summons"a document entitled, "Notification Accompanying Waiver of Service of Summons" which she believes contains pertinent information regarding ANSWERING ofComplaint - a copy of which is attached to this "Waiver of Service of Summons." EXHIBIT “K”
    • USPS.com® - Track & Confirm https://tools.usps.com/go/TrackConfirmAction_input?qtc_tLabels1=7006... Search USPS.com or Track Packages YOUR LABEL NUMBER SERVICE STATUS OF YOUR ITEM DATE & TIME LOCATION FEATURES 70060100000099010081 Delivered June 08, 2012, 1:16 pm FLOWOOD, MS 39232 Certified Mail™ Processed through June 07, 2012, 11:45 pm JACKSON, MS 39201 USPS Sort Facility Depart USPS Sort June 07, 2012 CINCINNATI, OH 45235 Facility Processed through June 06, 2012, 11:45 pm CINCINNATI, OH 45235 USPS Sort Facility1 of 1 7/9/2012 3:51 PM
    • Certified Mail Return Receipt No. 7006 0100 0000 9901 0029 AO 399 (01/09) Waiver of the Service of Summons UNITED STATES DISTRICT COURT for the __________District of Mississippi Southern District of __________ VOGEL DENISE NEWSOME ) Plaintiff ) v. ) Civil Action No. 3:12-cv-342 TSL-MTP PAGE KRUGER & HOLLAND, P.A, ET AL. ) Defendant ) WAIVER OF THE SERVICE OF SUMMONS To: VOGEL DENISE NEWSOME (Name of the plaintiff’s attorney or unrepresented plaintiff) I have received your request to waive service of a summons in this action along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you. I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case. I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service. I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within 60 days from 06/06/2012 , the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent. Date: Signature of the attorney or unrepresented party THOMAS Y. PAGE Printed name of party waiving service of summons Printed name Address E-mail address Telephone number Duty to Avoid Unnecessary Expenses of Serving a Summons Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons and complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located in the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure. “Good cause” does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has no jurisdiction over this matter or over the defendant or the defendant’s property. If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service. If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served.NOTE: To save cost of litigation Plaintiff provided with "Notice of Lawsuit and Request for Waiver of Service of Summons" and "Waiver of Service of Summons"a document entitled, "Notification Accompanying Waiver of Service of Summons" which she believes contains pertinent information regarding ANSWERING ofComplaint - a copy of which is attached to this "Waiver of Service of Summons." EXHIBIT “L”
    • USPS.com® - Track & Confirm https://tools.usps.com/go/TrackConfirmAction.action Search USPS.com or Track Packages YOUR LABEL NUMBER SERVICE STATUS OF YOUR ITEM DATE & TIME LOCATION FEATURES 70060100000099010029 Delivered June 08, 2012, 1:16 pm FLOWOOD, MS 39232 Certified Mail™ Processed through June 07, 2012, 11:45 pm JACKSON, MS 39201 USPS Sort Facility Depart USPS Sort June 07, 2012 CINCINNATI, OH 45235 Facility Processed through June 06, 2012, 11:42 pm CINCINNATI, OH 45235 USPS Sort Facility1 of 1 7/9/2012 4:00 PM
    • Certified Mail Return Receipt No. 7006 0100 0000 9901 0074 AO 399 (01/09) Waiver of the Service of Summons UNITED STATES DISTRICT COURT for the __________District of Mississippi Southern District of __________ VOGEL DENISE NEWSOME ) Plaintiff ) v. ) Civil Action No. 3:12-cv-342 TSL-MTP PAGE KRUGER & HOLLAND, P.A, ET AL. ) Defendant ) WAIVER OF THE SERVICE OF SUMMONS To: VOGEL DENISE NEWSOME (Name of the plaintiff’s attorney or unrepresented plaintiff) I have received your request to waive service of a summons in this action along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you. I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case. I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service. I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within 60 days from 06/06/2012 , the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent. Date: Signature of the attorney or unrepresented party LOUIS G. BAINE III Printed name of party waiving service of summons Printed name Address E-mail address Telephone number Duty to Avoid Unnecessary Expenses of Serving a Summons Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons and complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located in the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure. “Good cause” does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has no jurisdiction over this matter or over the defendant or the defendant’s property. If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service. If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served.NOTE: To save cost of litigation Plaintiff provided with "Notice of Lawsuit and Request for Waiver of Service of Summons" and "Waiver of Service of Summons"a document entitled, "Notification Accompanying Waiver of Service of Summons" which she believes contains pertinent information regarding ANSWERING ofComplaint - a copy of which is attached to this "Waiver of Service of Summons." EXHIBIT “M”
    • USPS.com® - Track & Confirm https://tools.usps.com/go/TrackConfirmAction.action Search USPS.com or Track Packages YOUR LABEL NUMBER SERVICE STATUS OF YOUR ITEM DATE & TIME LOCATION FEATURES 70060100000099010074 Delivered June 08, 2012, 1:16 pm FLOWOOD, MS 39232 Certified Mail™ Processed through June 07, 2012, 11:39 pm JACKSON, MS 39201 USPS Sort Facility Depart USPS Sort June 07, 2012 CINCINNATI, OH 45235 Facility Processed through June 06, 2012, 11:47 pm CINCINNATI, OH 45235 USPS Sort Facility1 of 1 7/9/2012 4:05 PM
    • Certified Mail Return Receipt No. 7006 0100 0000 9901 0067 AO 399 (01/09) Waiver of the Service of Summons UNITED STATES DISTRICT COURT for the __________District of Mississippi Southern District of __________ VOGEL DENISE NEWSOME ) Plaintiff ) v. ) Civil Action No. 3:12-cv-342 TSL-MTP PAGE KRUGER & HOLLAND, P.A, ET AL. ) Defendant ) WAIVER OF THE SERVICE OF SUMMONS To: VOGEL DENISE NEWSOME (Name of the plaintiff’s attorney or unrepresented plaintiff) I have received your request to waive service of a summons in this action along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you. I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case. I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service. I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within 60 days from 06/06/2012 , the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent. Date: Signature of the attorney or unrepresented party LINDA THOMAS Printed name of party waiving service of summons Printed name Address E-mail address Telephone number Duty to Avoid Unnecessary Expenses of Serving a Summons Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons and complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located in the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure. “Good cause” does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has no jurisdiction over this matter or over the defendant or the defendant’s property. If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service. If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served.NOTE: To save cost of litigation Plaintiff provided with "Notice of Lawsuit and Request for Waiver of Service of Summons" and "Waiver of Service of Summons"a document entitled, "Notification Accompanying Waiver of Service of Summons" which she believes contains pertinent information regarding ANSWERING ofComplaint - a copy of which is attached to this "Waiver of Service of Summons." EXHIBIT “N”
    • USPS.com® - Track & Confirm https://tools.usps.com/go/TrackConfirmAction.action Search USPS.com or Track Packages YOUR LABEL NUMBER SERVICE STATUS OF YOUR ITEM DATE & TIME LOCATION FEATURES 70060100000099010067 Delivered June 08, 2012, 1:16 pm FLOWOOD, MS 39232 Certified Mail™ Processed through June 07, 2012, 11:34 pm JACKSON, MS 39201 USPS Sort Facility Depart USPS Sort June 07, 2012 CINCINNATI, OH 45235 Facility Processed through June 06, 2012, 11:46 pm CINCINNATI, OH 45235 USPS Sort Facility1 of 1 7/9/2012 4:08 PM