On Petition for Writ of Prohibition or Mandamus.
Gibbons, Hunter and Garth, Circuit Judges.
This case arises in the context of an action brought by the Equal Employment Opportunity Commission ["EEOC"] against the City of Pittsburgh (at No. 83-2712) in which EEOC has claimed that the City has discriminated against firemen and policemen because of their age. EEOC contends that the City of Pittsburgh ordinance, which requires that policemen and firemen retire at the age of 65, violated the Age Discrimination in Employment Act. A good part of the pre-trial proceedings was conducted off-the-record. As a result of certain off-the-record exchanges between United States District Court Judge Simmons and Mr. Fein, attorney for the City of Pittsburgh, the City moved to have Judge Simmons recuse himself.
Underlying the City's Motion to Recuse, denied by the district court and then brought here in the form of a mandamus petition, were at least two circumstances. First, the City alleged that the district court judge had pre-judged the ADEA issue in favor of EEOC. In this connection, the City alleged that Judge Simmons had stated that the City's position could not prevail and that certain expert testimony to be offered by the City in support of its "bona fide occupational qualification" defense would not be admitted before the jury. Second, the City alleged that the district court judge had conducted a large part of the proceedings off-the-record despite requests by Mr. Fein to have the proceedings recorded. Both EEOC and Judge Simmons answered the City's petition. Because the thrust of the City's petition for mandamus is that Judge Simmons had ruled against recusal, we hold that mandamus will not lie. A refusal to recuse is reviewable only after final judgment. Green v. Murphy, 259 F.2d 591, 594 (3d Cir. 1958) (en banc).*fn1 See also Robinson v. Largent, 419 F.2d 1327, 1327 (3d Cir. 1970).
However, we have deep concern with one of the matters underlying the City's mandamus petition. The petition for writ of mandamus filed by Mr. Fein, Deputy City Solicitor, states, among other things, that after having been asked to place certain statements made by the district court judge on the record, Judge Simmons had refused to do so. The petition goes on to state that instead of preserving these matters in the record, the district court threatened to hold Mr. Fein in contempt because Fein asked to have the statements placed on the record. The petition alleges in pertinent part:
The conference [of January 4, 1984] lasted from 10:15 A.M. to 12:30 P.M. and from 2:15 P.M. to 3:45 P.M. At the request of Judge Simmons the entire morning session and most of the afternoon session was off the record. Mr. Fein asked at one time that the session be placed on the record, but Judge Simmons refused to do so.
Petition for Writ of Mandamus or Prohibition, para. 6.*fn2
At the meeting on January 4, 1984 there was a discussion as to what the City's experts would testify. Judge Simmons stated that based on his own personal knowledge the City's experts were wrong and he would not let them testify. Judge Simmons then made various statements concerning expert witnesses in which he called them "charletons".
Judge Simmons also stated at that meeting that he did not believe expert testimony was necessary and that he would instruct the jury on how to decide the case. When asked to place these statements on the record Judge Simmons refused to do so, but instead threatened to hold Mr. Fein in contempt for asking to place the statements on the record. Judge Simmons later recanted to some extent and did place some of his statements on the record. . . . When placing these prior statements on the record, Judge Simmons resisted the efforts of Mr. Fein to get all the prior statements on the record.
Petition for Writ of Prohibition or Mandamus, para. 7.
We recognize that many times conferences and settlement discussions are held dehors the record, and as has been pointed out by members of the bar and the bench, this practice may have a salutary effect on disposing of issues and indeed the case itself without the need for ultimate trial. Nevertheless, when counsel desires to go on the record, we can find no reason for a judge to decline to do so. This is particularly true where, as here, no objection from other parties is registered. This practice would allow, among other things, counsel to request the judge to repeat what the judge had said while off-the-record.
The record taken by a certified court reporter is always the best evidence of what has been said, what actions have been taken, and what rulings have been made. "Meaningful review requires that the reviewing tribunal must be able to review a decision of a trial court . . . to determine its correctness and if necessary control the course of the litigation whether by appeal or by use of a writ . . . ." Wood v. Zapata Corp., 482 F.2d 350, 358 (3d Cir. 1973) (Biggs, C.J., dissenting). Without a record of the proceedings "we are left with conflicting statements ...