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In a hotly contested civil rights lawsuit against Temple University, the lawyers for the plaintiff are asking a federal appeals court to assign the case to a new judge, claiming that U.S. District Judge Petrese D. Tucker of the Eastern District of Pennsylvania suffers from at least the appearance of bias due to her strong ties to the university, both as a double alumna and former adjunct professor, and more recently as the recipient of awards from two university groups while the case was pending. In a mandamus petition filed this week, attorneys Brian Fahling, Michael J. DePrimo and Stephen M. Crampton of the American Family Association Center in Tupelo, Miss., also argue that the appearance of Tucker’s impartiality was further compromised by another award she received this year from the Barrister’s Association, a predominantly black group of lawyers. The problem, they argue, is that the former president of the Barrister’s, who presented the award and made glowing remarks about the judge, is attorney Joe H. Tucker (no relation to the judge), who is also defending the university in the civil rights suit before her. And despite the fact that Michael Marcavage’s lawsuit was pending, they say, Judge Tucker never disclosed any of the awards to plaintiff’s counsel. In the suit, Marcavage, who is Christian, claims that his free-speech rights were violated when he tried to stage a protest to the university’s staging of the play “Corpus Christi” — which Marcavage claims blasphemously portrays Jesus as gay — the university retaliated by having him involuntarily committed to a mental institution. In court papers, Temple concedes that it had Marcavage committed briefly, but says its security officers did so only because they feared Marcavage, who had locked himself in a room, might harm himself, and that he was in custody less than two hours. The university also insists that it respected Marcavage’s right to protest the play, but that Marcavage became unreasonable when the university refused to build a stage for him. Marcavage’s lawyers say Judge Tucker’s appearance of bias only grew worse when she refused to take herself off the case and issued an opinion that, they say, painted them as racists. In an opinion handed down Sept. 30, Tucker denied the recusal motion, saying, “Plaintiff seeks to use innuendo and speculation to cast suspicion on attachments that are not only routine amongst members of the legal profession, but which are justifiable sources of personal pride for members of the judiciary in general, and myself in particular.” Tucker found that the recusal motion fell far short of the case law for establishing even the appearance of bias. “Neither my professional membership nor my academic affiliations, as well as any activities or awards associated with them, provides a sufficient basis for my recusal,” she wrote in a 10-page opinion. Instead, Tucker found that the motives of the plaintiff’s lawyers were suspicious because they seemed to have waited to demand her recusal until after she issued rulings they didn’t like. “This research into my background was conducted in anticipation of an adverse ruling on that discovery motion, and my rulings, not any appearance of partiality, are the basis of this recusal motion,” Tucker wrote. “Simply put, plaintiff’s counsel is attempting to ‘solve the problem’ by removing, from their perspective, its real source — me. Unfortunately, plaintiff’s basis, taken to its logical conclusion, would make all African-American and/or Temple alumni who are members of this court presumably subject to similar disqualification motions until plaintiff’s counsel found a judge more to their liking.” Tucker quoted extensively from a 1974 opinion in Commonwealth of Pa. v. Local Union 542, Int’l Union of Operating Engineers, authored by the late Judge A. Leon Higginbotham, one of the first black judges on the Eastern District bench. In the decision, Higginbotham explained why he would not disqualify himself from presiding over a race discrimination lawsuit despite the defense lawyers’ arguments that the judge had “personal and emotional commitments to civil rights causes of the black community.” Tucker found the recusal motion before her was sadly similar. “I am heartened by the example of such distinguished jurists as the late Judge Higginbotham, and yet saddened by the fact that almost three decades later, a race-based tactic such as the one present in this recusal motion is still employed by those who continue to be guided by convenience, as opposed to candor and common sense,” she wrote. In their writ of mandamus filed this week with the 3rd U.S. Circuit Court of Appeals, the plaintiff’s lawyers argue that “Judge Tucker’s failure to disclose the relationships and events at issue in this writ — and her characterization of the motion for recusal as ‘race-based’ and ‘punishment’ — should be worrisome to this court.” The judge’s accusations of racism, they argue, seemed to spring from similar accusations made by Temple’s lawyer. In his brief opposing the motion for recusal, attorney Joe H. Tucker wrote: “Those lawyers like Mr. Fahling who would attempt to intimidate black judges and lawyers by arguing in effect that blacks should essentially not be allowed to practice law before black judges and black judges must disassociate themselves from their race. Unfortunately for Mr. Fahling, he must and will encounter judges who are black, who do not apologize for that obvious fact [and] take rational pride in [their] heritage, just as most other ethnics take pride in theirs.” As the plaintiff’s team sees it, Tucker has now shown a strong personal bias against them. “Defense counsel and Judge Tucker are in apparent agreement that petitioner’s counsel is a racist. It is difficult to imagine a more opprobrious epithet. It is even more difficult to fathom that such an accusation has been formally made by a judicial officer and an officer of the court,” they wrote.

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