In re Allied Signal
In re Allied-Signal, Inc., 891 F.2d 974, 975-76 (1st Cir. 1989), an opinion rendered by future U.S. Supreme Court Justice Stephen Breyer which declines a request to declare a mistrial or remove a judge due the possibility of his bias:
| “ | The reason that disqualification is not now required is that the plaintiffs have now settled their differences with Mr. Matos' clients; he will no longer appear in Phase Two; and, as far as we can tell, he will not again appear in this litigation. There is no claim that Judge Acosta is, or was, actually partial, nor do we have any reason to believe that the financial relationship with Mr. Matos would lead Judge Acosta to be other than impartial in the future. As to the future, the settlement cures the problem of appearances. Cf. In re Webster, 382 F.2d 79, 83 n. 3 (9th Cir. 1967) (describing Ninth Circuit's dismissal of mandamus petition for judicial disqualification as moot when the relevant part of the case had been settled and a judgment of dismissal entered).
As to the past, our reasons for refusing to order a mistrial are similar to those set forth in Allied Signal I, Slip Op. at pp. 16-19. As we there pointed out, where no actual bias is at issue, where the question is solely one of appearances, judicial actions already taken are not necessarily rendered invalid because of a circumstance that violates § 455(a). As we read the Supreme Court's Liljeberg opinion, we are to fashion retrospective relief with an eye towards a just result. See Liljeberg v. Health Services Acquisition Corp., 108 S. Ct. at 2194, 2204, 2206 (1988). And, we believe it would be unfair to interrupt the present trial. As we noted in Allied Signal I, Slip Op. at p. 18, the parties have invested an enormous amount of time and expense in the Phase Two proceedings, as indicated, for example, by the 2,210 docket entries relating to that phase entered by September 14, 1989. Moreover, the declaration of a mistrial could threaten to undo settlements that have been made or that are in the offing. At the same time, the comparatively small role that Matos played in the litigation, as well as the fact that he represented parties on the same side as the petitioners, suggests that our refusal to order a mistrial would not create a serious crisis of confidence in the impartiality of the judiciary. Thus, we see no basis for issuing a writ of mandamus. |
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