William J. Green, Jr. v. Honorable John W. Murphy, United States of America, Intervenor
259 F.2d 591
3rd Cir.
1958
Check Treatment

*1 though representative was in fact such a GREEN, Jr., Petitioner, William J. represent- present. p. Union At 2 m. the agreed minutes and delay ato ative agent end of that time MURPHY, Honorable John W. charge Respondent, Regional count Director deter- inquired reception desk to America, at the States of Intervenor. Re- representative of whether mine No. 12616. Re- spondent had arrived. Since Appeals United States Court of spondent’s representative not made had Third Circuit. receptionist, known to the himself Argued July 1958. agent negative given The answer. was agent opened ballots then counted Sept. 25, Decided 1958. presence the Union question representative. agents its Board concluded arbitrarily capri- not acted and/or agree.

ciously. We findings and We conclude that amply sup Board of the conclusions prop

ported by should be the record and by appropriate order.2

erly enforced

However, insofar as the order requires respondent to cease Board any manner” “in other inter from desist restraining coercing

fering with, its

employees relation those matters with protected posting the Act Sec. of effect, to that believe that

notices we Respondent’s activi is too broad.

order require ties are so onerous as May provision. Depart Cf. a blanket Labor Rela Co. National ment Stores Board, U.S. 145; Geigy Co., N.L.R.B. v. L.Ed. Inc., Cir., 211 de certiorari 33, 99

nied 348 Paragraph 1(e) of the or Board’s order, stricken from the

der shall be Employees” the “Notice to All found “Appendix” to that order shall be

amended to conform. thus modified the order As Board’s will enforced Court. seniority requires modifications; order of the Board with certain Re- of- spondent cease and from fer against; desist reinstatement to those un- discriminated practices found, and, persons alia, labor inter make those fair discrimi- any interfering pay “in other manner” nated whole for loss of policy; statutory the exercise of caused with make records avail- employees. Respondent rights agents its able N.L.R.B. to deter- bargain collectively ordered mine further the amount due to discriminatees Union; post and to rescind discrimina- the notice attached tha tory seniority pre-strike policy; restore order. *2 Savitt, Philadelphia, Pa., for

David N. petitioner. C., Washington, Kiernan,

Frank J. D. respondent. for Judge, BIGGS, Chief Before McLAUGHLIN, GOODRICH, MARIS, HASTIE, KALODNER, STALEY, and Judges. Circuit Judge. BIGGS, Chief petition or A for a writ of mandamus petitioner, filed against Green, Jr., Hon- J. William Murphy, orable John Chief W. District Court the United States Pennsylvania, as the Middle District respondent, praying order this court to Judge Murphy proceed no further United criminal case of the (the peti- of America v. Green States tioner), others, in the United States District District for the Middle Pennsylvania, Docket at Criminal 12,880. petition based on No. dis- refusal of the qualify allega- himself because of peti- of an affidavit filed pursuant pro- purportedly tioner 144, Title U.S.C.1 visions of Section prays petition also that another assigned hear the criminal be asserting ease, Murphy “has against prejudice personal bias * * petitioner, We Green]”. [the directed to issued a rule to show cause Judge Murphy. He answered and intervening, States, respond- also proceed- preliminary certain ed. After ings in this which need not be preju provides: “Bias or “The affidavit shall state the facts 1. Section any party judge. for the belief that bias dice proceeding Whenever the reasons prejudice exists, a district court makes shall be filed not days beginning timely ten before the and sufficient less than files proceeding whom matter term at which the of the before prejudice heard, good shall pending bias cause be shown has a any ad him or in favor of failure to file it within such time. A either proceed party, no party shall one such verse file affidavit in therein, accompanied by shall but another further It shall be case. proceeding. assigned stating hear such of counsel record certificate good made in faith.” it is ing opinion con- hear- filed here, on for his reasons an came the case recited ing. appropriate importance currently order. with an Because effect and to questions involved lawof issues, disposition expeditious We are of the *3 by legal banc. by princi en heard the court case was the the case at is ruled bar ples although they may which, have On be stated. facts must Certain clearly cloudy past, been are now the the 29, 1957, to dismiss motions March indictment, It now settled law the defined. particulars, for a bill against judge an affidavit of bias whom severance, trial for a transfer the 144, prejudice and is filed under Section place of other to some from Scranton legal pass himself the must ciency on suffi holding the Middle District within court alleged the facts inspection Pennsylvania, and for allegations doing accept so he the must possession of the records within certain A United of the affidavit as true. by peti- filed the the United were States possesses States district therefore passed tioner, These were Green. power, pass upon jurisdiction, the the Judge Murphy, by who denied all question as whether he must the inspection, motion for save the them by reason the withdraw from the case allegations being agreed by the United the latter of his Attorney. Thereafter, con on March States necessarily tained in affidavit. This by petitioner’s inquiry power ques includes decide the Judge Murphy, as to at what counsel wrongly rightly. as Behr as well judge2 by term petitioner court what Safety Cir., Appliances Co., v. Mine 3 tried, petitioner’s would 1956, 371, 233 F.2d certiorari denied petitioner informed that counsel was 942, 264, 352 1 U.S. L.Ed.2d by probably” would be tried “most rehearing 1957, 237, denied 352 Judge U.S. Murphy over court preside which would 976, 353, 329; 77 1 1958, S.Ct. L.Ed.2d 7, On March at Scranton. Greene, 1947, 517, Cir., 3 seeking re 518; 160 F.2d petitioner filed a motion Co., Voltmann v. United 2 Fruit Murphy replaced pre- have Cir., 1945, 514, Only 147 F.2d siding judge trial some other what is forth in the set affidavit of bias preju- and an affidavit of bias and prejudice is material to pursu- the issue filed in the below dice was Berger disqualification. 144, v. United to Section Title 28 ant U.S.C. Note States, 22, 1920, 230, 255 1, supra. 41 alleged, U.S. S.Ct. inter affidavit therefore, follows, alia, 65 L.Ed. 481. petitioner that the believed only questions presented of law Murphy personally are “prejudiced respondent judge’s against long refusal to dis byme reason of our con- qualify dispute himself. There political can be no tinued and close lationship and social re- appeal either in district court or on and that reason of his de- falsity allega prove integrity as to the truth sire his and lack of favoritism, of the affidavit. tions mean, however, This will does be unable to afford * * * legal sufficiency impartial me fair and ”. alleged of what is in the affidavit We will becomes not state the contents of appeal moot on what is stated there for we affidavit in this do not inferences, any, necessary ques- and the reach find it now to properly legal sufficiency allega- be drawn therefrom constitute of its tion of the very disqualification. basis on which the issue of tions the basis for allega- disqualification that the must be concluded ultimately. decided See Korer v. Hoff of the affidavit were insufficient man, Cir., 1954, disqualify himself, 212-213, and refused to stat- pursuant Judges regu-; presently 371(b), to Section There are two retired Title U.S.C. active service in the Middle District of lar Judge presently Pennsylvania, and one Hoffman, supra. A.L.R.2d authorities Section 1651. Korer v. Berger States, cited therein.3 Cf. 65 L.Ed. 481.4 adjudication An Mandamus are extraordi- whom the filed nary employed remedies can be allegations legally insufficient justifiably excep- when rare appealable not a under final decision present. tional circumstances are U.S.C., Section Title 28 stage proceedings presently petitioner The fact is that will 12,880, reached No. at Criminal Docket put expense and trouble of a trial Nor does such court below. Congress provided because for the *4 provisions of decision fall within the judge’s review of a district determina- 1292, U.S.C., which Section 28 Title complained tion of kind the here of and gives ap the courts of to present, under the circumstances here peals in to hear and determine certain only judgment on the review final of a Judge Murphy’s terlocutory decisions. if, of conviction. It is not as present subject decision is to review Evaporated Ass’n, in Roche v. Milk only petitioner con when and if the is 1943, 944, 938, 319 U.S. 63 S.Ct. will be victed and sentenced. then 1185, sought 87 L.Ed. the writ appealable come court. What to this judicial power, relief “from an abuse of very plain we wish make that to or refusal to exercise func- it.” It is the remedy petitioner afforded the tion mandamus such er- correct Hoffman, supra; way appeal. Korer v. rors. We find no here circumstances Letts, U.S.App.D.C. 1945, 80 Hurd v. justify issuing which would our the Dilling 121; 152 F.2d v. parte Fahey, 1947, writ. Ex 332 U.S. States, 1944, U.S.App.D.C. 47, 142 79 2041. We 473; Paper Minnesota & Ontario prayers peti- conclude the of the that Molyneaux, Cir., 70 F.2d Co. be denied. must remedy 545. We think that which holding In so we petitioner by appeal desire to can be make it afforded the plain passing presently we are not that adequate for court this can strike down sufficiency allegations on the of the judgment of conviction if we should prejudice. the affidavit of bias and We peti filed find affidavit state the circumstances legally disqualify tioner was sufficient to we, not such as to us convince provisions under light legal discretion, of our should Section 144. power our exercise to issue a writ of pro A of mandamus or writ prohibition. mandamus be issued in aid hibition denying An jurisdiction. order will be entered court’s See

this prayers petition. Statute”, “All Writs U.S.C. falsity allegations Compare provisions of the affi- Section 3. passed judge davit were to be on with those in Section Title 28 U.S.C. remedy himself, judice. U.S.C., afforded the defend- now sub Title 28 appeal ant would then be inade- petitioner strongly relies 4. The on the quate. Connelly Cf. v. United States Berger decision. We think that he does Court, Cir., 1951, District 191 F.2d 692 misapprehension so under a as to the and footnote 1 cited to the text at Supreme ruling. Court’s nature directing there was its atten- The Court Connelly We think it clear judge tion to the issue whether Appeals the Court of case for the Ninth against whom the affidavit was filed was misapprehended Circuit the tenor of the pass on the truth of the entitled to al- Supreme Berger. Court See the Berger con legations of the affidavit. The curring Pope actually in Glad reached the Court after the case McLaughlin, Cir., 1955, stein and conviction of the accused. The F. in effect stated that if the truth 2d objections HASTIE, Judge, appeals whom piecemeal Circuit ordinarily deciding STALEY, Judge, joins (concur- on Circuit militate ring). mandamus an issue which can be re- viewed after trial. Another normal ob- and I concur because STALEY jection mandamus, as a its character peti- present denial of we think challenge addressed him- the same tion is a time, result. At correct self, has no force affi- here because the reach the refusal of the prejudice challenged already davit of im- final decision at time personal way in the most portant petition seems issue this raises imaginable. to us to be a mistake. reasons, majority opinion For these understand we would decide We enough say prejudice extraordinary now cir- whether the might disqualify proper in this case is cumstances sufficient to Judge Murphy. plainly In our view use mandamus or it is arbitrarily prevent insufficient. Under from the statute a suffi- a district charge disregarding scandalously plain cient affidavit must or duty his against” hearing prejudice disqualify “has a bias or himself *5 seeking party disqualification. his a 28 of case under Section of Title Congress preju- We used think “bias or Code, such the United States but that enmity dice” in appear the conventional sense of circumstances do this case. in not hostility. very opposite Here the is Accordingly, relief is denied this at charged. special proceeding. The accused in How- avers that time ever, this there history friendship majority open ais of and a sense of choose to leave community question judge’s between himself and the whether the trial judge, obliga- enough wrong as well as sense require action some of to on running judge appeal any from The future him. reversal of to convic- complaint judge may may sole is now over- tion that ensue. this compensate postponement for his inclination toward decision ultimate by leaning charge disqualification the accused backward. with which teachings disagree. psychology we invoked danger show that this exists. we But very special, challenging and often simply persuaded pos- are not charge partiality sensational psychological overcompensation sible justice administration of which is ini- party an inclination favorable “personal ato is the prejudice tiated against a formal against prejudice bias or him” judge should receive final ad- Congress with reference which judication opportunity, only first at if legislated. Therefore, we would sustain public in the interest confidence in ruling Murphy’s on its merits Moreover, courts. the ly a trial is like- not that no such affidavit as Section re- proceed very satisfactory way in a quires has been filed him. judicial if an unsettled claim of bias is present an ever source of tension and judge This does mean not that the trial Only ruling irritation. a final on the or should in cannot not all of the cir- higher matter a disinterested court including case, cumstances of this dispel trial can before indignation unwholesome understandable and irrita- Thus, appellate if an aura. re- ques- tion disclosed his on the fuses, properly petitioned, pre- when disqualification, tion of consider wheth- disqualified judge trying from vent a er, may feel, however free of bias he say challenged case, judge important appearance complete also impartiality disqualified, postponement is not in administration of jus- decision hurts the justice administration of would not best be maintained though tice, Judges even the court stepping reserves the his aside. from time right pass try cases, they after matter trial. to time not to elect outweigh they try fairly far objec- Such considerations are sure can tively, procure of their concern to avoid office for because a lucrative State friend;2 (3) he circum- whom doubt which lifetime substantial may beyond enjoyed political create stances control a close beginning public impartiality relationship in mind serv about the with their justice Congress; (4) their administration ice as members of (Herbert Mc- matters hand. But this consideration whose co-defendant W. allegedly Glinehey) friend must be left to the discretion sensi- an intimate gave perception tive each material assist who obtaining judicial appoint the circumstances each It can- case. ance his effectively by appellate ment, al not controlled and as to whom the rulings. Certainly leged “prejudiced involve of”.4 does favor any mandatory under di- have refused to Would this Court Section 144. Judge Murphy’s rect from withdrawal they ap- the Green case on the facts KALODNER, (dissent- Circuit pear petitioned for had the Government ing). disqualification? have his Would it grant di- the writ would forthwith grounds premised refusal on the recting Judge Murphy’s withdrawal All “A writ under the Writs Statute participation in the Green case. be issued mandamus or ju- in aid preside of this court’s A should not held, does spon (1) risdiction” and as the criminal trial of one whose “Judge here, Murphy’s present deci- sought sorship received obtain he subject when and ing sion judicial appointment to review and confir his petitioner sen- ;1 importuned is convicted (2) mation whose aid *6 Prej- paragraph denying of page opinion 4. In 8 of his “Affidavit 1. At in Green’s 20 Ms part: May 9, disqualification, in udice” Green stated filed motion for 1958, Judge Murphy Murphy “I believe that Hon. John W. stated: prejudiced co-defendant present purposes in favor of that “For we assume prejudiced McGlinchey Congressman and is Herbert J. against he whatever Green did help to circumstances, and be unable could, me shall to under the impartial from him and bring receive a fair and con- the nominations about ”* support * * following facts in and aver the firmations of that belief: McGlinchey also a for- “Co-defendant to 2. At 18 of the referred Congress Mc- of . . . mer member Judge referring Murphy, his in to Note guilty’. plea Glinchey ‘not of has entered action, stated: possible trial, course of the it is judge wrote a letter of recom- “The questions may involving that there be and mendation to the Governor-elect to myself credibility veracity and of both Policy Committee six members McGlinchey. I know from co-defendant might be consulted on the matter who my experience and state as a fact own (Emphasis (including defendant)”. Murphy more Hon. John W. supplied.) personally closely with and associated with Herbert McGlin- intimate J. more myself. chey Murphy when failed to 3. In Hon. John than with W. son, McGlinchey his then overseas with the hear from at- and Herbert J. forces, as- he asked Green to of the Democratic armed conventions tended whereabouts; Judge many Party together; in 1955 official certain his went together Murphy private parties a transfer Green obtain asked Harris- and son, Philadelphia Washington, burg, cago. then still in the his service. Chi- for Mur- when I am informed December co-defendant On phy bespeaking sup- McGlinchey Green his that he was of material as- wrote appointment Murphy port for his a State Hon. John in ob- sistance to taining tacting W. judicial 2) appointment (see with Note concluded this his con- friend paragraph good Congressmen wishes the best other Hon. “With Myers Judge Murphy’s holiday happy joyous season to Francis J. re- his for a quest purpose furthering looking forward to for the all the Greens Inauguration, seeing you I am ambition to become a United States Dis- at the Judge.” regards.” triet Court warm ap- independent “Disqualification become tenced” and “It will then pealable Statute”.10 to this Court”? done so. I think it would have holding errs Putting Murphy’s bluntly, contrary. Its error arises out participation case continued Green given narrow construction it has re-

would not with that be “consonant jurisdiction” phrase “appellate gard for which should fastidiousness “All con- has Writs Statute”. It govern performance of a court” 6in the phrase mean “a case strued appeal”. judicial function. apparent That is so consideration is appearance invoked to obtain his own proceeding the action of draw from be stant Applying These “ * * * disinterested as well as justice case, principles should participation it cannot be these [J] justice”6; that the ustice reasonably principles to are well one whose refusing must be so in fact.” administration in a gainsaid “The settled: judicial ap satisfy the aid he had appear to criminal to with guiding in opinion: court’s then become ent decision only convicted and sentenced. [*] “A writ mandamus or “ # these * * when and if the appellate jurisdiction statements * issued appealable Judge Murphy’s pres- subject in aid petitioner is to this court. prohibi- majority’s review * * will pointment political petitioner life favor for a “The fact is friend, beneficiary put time of his inter expense will and trouble est, “satisfying ap Congress falls far short has of a trial because pearance justice.” Add to provided review a dis- ingredient long-standing personal of a judge’s determination trict political friendship, addi complained kind here and under tion be needed.8 present, here the circumstances present This judgment on the review a final apply sup- principles under the conviction.” stated *7 11 plied.) provisions of “All Writs Statute”9 impenetrable question; an barrier that Universal Oil Products Co. v. Root Re 5. judicial fining Co., 1946, 575, robe the hallowed vest- 581, is not 328 66 U.S. S. investing divinity, 1176, Ct. 90 ment with all the its wearer L.Ed. 1447. attributes. divine speaking 6. Mr. Justice for Frankfurter Supreme in Court Offutt v. United Statute, The All 28 U.S.C. Writs Sec. 9. States, 1954, 11, 14, 11, 348 75 U.S. S.Ct. provides: 1651(a) 13, 11; 99 L.Ed. In see also re Murchi “(a) Supreme The and all Court courts son, 1955, 133, 623, 349 U.S. 75 S.Ct. 99 Congress by established Act of issue L.Ed. 942. necessary appropriate all writs in aid jurisdictions respective 7. Mr. Justice in participate Frankfurter his state agreeable usages principles ment anent his failure to in the consideration law.” and decision Public 1952, Pollak, Utilities Commission v. 343 Title 28 144 10. U.S.C. Sec. set forth in 451, 467, U.S. 72 S.Ct. 96 L.Ed. majority’s opinion. Note 1 of the 1068. true, concluding para- yield This must be said. I to no one my regard graphs Judge Murphy majority, of its after able, citing earlier conscientious and dedicated settled law that “man- unquestioned probity extraordinary are damus inflexible whose * * * employed justifiably unsullied robe worn has never remedies stain. exceptional my add to when rare statement conviction circum- “ * * * present”, stances are would be the first agree regard must circumstances are not such as not to con- light sacrosanct, we, legal his office as or his vince us that in the of our robe as 598 I shall over- later cite and discuss the Ninth Circuit whelming weight authority which es- Connelly v. United States District “appellate jurisdiction” tablishes that Court, 692; 1951, not determined of an circumstance 1955, McLaughlin, Gladstein v. pendency appeal, actual the ma- of an 230 F.2d 762. jority holds, solely by disposi- but In cited, applications the instances proceeding tive factor whether writs prohibition, of mandamus and/or sought lower court which is based prejudice, on bias and enter- were pro- affected the writ of mandamus affecting pending litigation tained ultimately hibition is reviewable district courts which had not attained appellate court. disposition status of final and/or doing immediately so, Before I must appealability. majority’s state view that cases, Barsky In two of the Holtzoff v. cannot consider and act Connelly v. United States District Murphy’s after until Court, granted. ju- the writs were (should Green has been convicted risdiction courts transpire) appealed and he has from that challenged. complete Court,

conviction to this In the Gladstein case13 the Ninth Cir- disregard States, Berger v. United proper held cuit that mandamus remedy where district court expressed 481 and contra to the views disqualify refused to himself after following Appeals: Courts of filing prejudice. of an affidavit of District Columbia Circuit specifically rejected the District Barsky Holtzoff, No. 126 Misc. Judge’s sufficiency contention that ;12 April Term, 1947 should be considered doing appeal. so it stated. Second, Circuit pages 230 F.2d at 763-764: 898; Lisman, 1937, In re 89 F.2d agree “We do not that Gladstein Medina, 1948, F. Foster v. put should be to the time and ex 2d certiorari denied pense proceeding [suspen of such a 335 U.S. sion or We have- disbarment]. L.Ed. 442. prop- stated that mandamus is his Circuit Fifth per remedy Connelly in the case of Henry Speer, 1913, 869; 201 F. Court, v. United States District Cir., 191 F.2d 692. Here Sixth Circuit special irreparable circumstances of Kent, 1954, Williams v. 216 F.2d *8 injury deprivation of Glad- 342; right stein's practice, that is his- Eighth Circuit property likely irrepara loss and the Cuddy Otis, 1929, 577; v. 33 F.2d unjust smearing ble reputa of his Paper & Minnesota Ontario Co. during pro the course of the Molyneaux, 1934, ceeding below and the months of' 545; appellate procedure in this court.”" discretion, power “only should exercise our himself on the review of a final: prohibition”. issue a writ of judgment mandamus or of conviction.” nothing That statement dicta holding more than opinion reported. 12. The is not majority’s specific in view power actually that this Court is 13. The writ without was not in issued that except thought to issue the writ “in case aid of this because the Court it wouldi appellate jurisdiction” necessary expressed, court’s gress and “Con- not be in view of its provided opinion qualified. for the review of a that the District Court was dis- judge’s” disqualify district refusal applica- incidentally, my Circuit, In cited all of the other cases re- as far as discloses, on the tions for were denied search ing hold- the writs is the circuit pro- merits. that mandamus or the writ of compel hibition dis- issuable to pages Henry Speer, 201 F. In qualification because of bias. 871-872, the Court stated: Berger leading case is the case on “In of section the enactment disagree disqualification. with the plain pur- Section the [now 144] majority’s what view that was there Congress pose afford a was to applicable and held is not here. through which a method of relief party may majority before tried has failed take note to a suit avoid having judge very bias the fact the that at outset prejudice Berger opinion favor him or in the it was made clear opposite party.” of supplied.) was the statute presented crux for of the issue deter- judge’s mination trial and that it Paper Co. v. Minnesota & Ontario disqualify prior failure to himself to the Molyneaux, for which the cited premise trial which was the of the Su- remedy proposition is afford- that “a ruling preme Court’s the district petitioner ed the instant [in case] “ * * right judge no had lawful specifically way appeal” Court power preside as on the trial rejected contention it had no upon defendants indictment.” application to entertain the Indeed, 234. pending proceeding writ questions certified the third the three court. district Supreme to the Court Seventh Court, Cir., Greene, This in In re Circuit was: 160 F.2d considered filing “Upon affi- of the said application denied on the merits an prejudice of said davit prohibition, a writ of mandamus or based Landis, did the said have bias, pending proceeding, on though in a al- right preside power lawful specifically reserved for future plaintiffs in on trial of point decision the as whether the writ upon error said indictment.” 255 could issue in a meritorious case. page page U.S. at noted, parenthetically, that the majority, action case, the instant gave Supreme Court To that issue the passing presently in “not on the responsive specific answer: allegations sufficiency of the affi- prejudice” answer, davit of bias and in contrast we [issue] “To the third doing case, pre- No; is, to its so the Greene Landis baffling anomaly. right power preside sents a lawful no of defendants majority, In its in Note the indictment.” U.S. at rejected the view of the Ninth Circuit page 41 S.Ct. at Connelly Gladstein cases14 foregoing respect “distinguished” Berger It was v. United stated, Supreme States, supra on the fact that “The Ber- *9 imagination ger actually can its stretch case reached the no Court after regarded dicta, as fol- statement trial and conviction of the accused.” In pages (255 35-36, 41 “distinguishing” Berger U.S. at lows the case sub- it 233.): scribed to a similar distinction made opinion, the Seventh Circuit in Korer Hoff- there- are of “We man, 1954, upon fore, infor- F.2d 211. The an affidavit Seventh majority any- The concurrence of the of not noted District euit was Eighth Columbia, opinion, Second, Fifth and Cir- in its where cuits with the views of the Ninth Cir- belief, mation and disregard satisfies the sec- That construction in flat is upon filing, tion and that explicit ruling by if it Supreme objectionable just show the disposition inclination twenty-seven Court one hundred and judge, years ago, which we parte Crane, 5 in Ex condition, have said an is essential Pet. 8 L.Ed. 92. duty ‘proceed it is his to no further’ There Mr. Marshall Chief Justice in the case. And in this there (at page 193): stated no serious admin- detriment to the “ * ** a mandamus an in- to justice istration of nor inconven- court United States ferior worthy mention, for of ience appellate jurisdic- in the nature of what concern is it a to to (Emphasis supplied.) tion.” preside case; particular in a consonance with statement parties what concern to to other Supreme Court there held a that writ * ** preside? him have so directing mandamus could a federal issue accomplish “And to end the sign exceptions. district court to a bill of presid- section withdraws from the Earlier, Marbury Madison, ing judge upon a decision truth 137, 175, 1 Cranch 2 L.Ed. the Su- alleged. explicit matters Its preme speaking through Court, Mr. Chief making that, upon declaration is Marshall, respect Justice to filing affidavit, writs of mandamus: against whom it directed ‘shall then, court, “To enable

proceed therein, no an- further but mandamus, issue a be shown it must designated in other shall be ** juris- appellate to be an exercise of prescribed the manner diction, necessary enable to be twenty-three section hear appellate jurisdic- them to exercise easy matter.’ And the reason is ” * * * define. To commit to “appellate jurisdiction” ity’s Statute. ingredient.” (Emphasis supplied.) fortified mind in be more elusive ing can Coming or decision than a dice remedy by appeal which the section is tribunal is comes decision gives judgment narrow construction exist, chance for the evil after now by presumptions, and noth- which there is a it has worked precarious. the trial specifically the truth of the facts it disposition in a inadequate. directed. The in the All Writs and, its evil and goes reviewing estimate preju- there major- term It mencement and judgment of preme Court held court of mandamus to a district court16 direct- ing McClellanv. Again, not create that and corrects the cause appellate jurisdiction (Emphasis supplied.) it “It [*****] already is the essential appeals may almost half a proceed Carland, 1910, a suit in the state court. stayed instituted, prosecution that United States with a proceedings cause that it century ago, issue a await the com- criterion of pending 217 U.S. * * * and does revises the Su- writ in a final suit ” stated, Supreme- earlier In the As McClellan case con- jurisdiction” rejected “appellate strues contention mean jurisdiction appeals then court’s circuit to act “had no- a when case has achieved the status to issue the writ of manda- appeal, following mus, of a case its final writ can be issued in disposition appellate jurisdiction aid of district court. the.- *10 appeals”. Then a “circuit of Then a court “circuit court”.

601 * * parte Republic Peru, 1943, appeals; In Ex of circuit court 793, 578, 1014, 318 jurisdiction U.S. 63 S.Ct. 87 L.Ed. as the court had no Supreme jurisdic- application mandamus Court held it had when suit tion, ought power dis- filed, in the exercise its ultimate have been it was to review, a to issue writ of mandamus missed.” restrain a district court 1932, States, 287 parte Ex United In jurisdiction of further exercise 283, 129, 241, L.Ed. 53 77 U.S. S.Ct. admiralty rem, in an suit. re- of mandamus issued writ doing page In 318 so it stated at U.S. quiring in the a federal district court 583, page 796: S.Ct. at Pennsylvania to set District of Eastern denying petition pro- its order “The historic use of writs of aside by Attorney for the issuance hibition and mandamus directed States appellate of an an to an inferior court has of a warrant for the arrest bench directing revisory appellate individual, issue been to exert the it power over the inferior court. warrant. expeditious writs afford an thus doing stated 287 U.S. In so the Court confining means the in- effective 246, page page 130: at S.Ct. at court to a exercise lawful ferior Carland, 217 “McClelland v. prescribed jurisdiction, or of its 504, 501, 54 L.Ed. compelling it to exercise its author- general ap- down the laid rule duty ity when is its to do so it plicable both to and to this court ” * * * (Emphasis supplied.) Appeals, Courts of Circuit foregoing are in direct refu- cases power to issue the writ [mandamus] majority’s limited construc- tation of the is not 1651] under R.S. [now §716 § jurisdiction” “appellate and es- tion of issue is re- limited to cases where its beyond question pow- tablish Court’s quired jurisdiction al- in aid aof writ of mandamus or er to now issue a ready obtained, but that ‘where prohibition. jurisdic- appellate case is within the higher tion a writ here be observed that It must past may mandamus aid invoked its issue in Court has not “appel- appellate jurisdiction might present limited construction of respect appli- jurisdiction” with otherwise be unau- late defeated pro- thorized action the court below for writs cations mandamus [citing sup- hibition. cases].’” plied.) Eisenlohr, Kalodner, Inc. v. Webster Cir., 1944, certiorari de- holding Significantly, 325 U.S. nied jurisdiction directly writ, issue the point reasons extraneous to page 246, the Court said 287 U.S. at issue, prop- this Court held that it S.Ct. at 130: pro- a writ of * * * er to issue mandamus or put “We our deter- compel court, hibition to district upon ground mination broader withdraw, very inception, order that, appellate jurisdic- even investigate appointment of a master this court could not in alleged improper action a defendant. immediately directly view be in- disposition, ruling, There no final voked, the issue the writ rest appointment the mooted other than power the ultimate which we master, had been made the district have to review the case itself cer- court. Ap- tiorari to the Circuit Court of peals pertinent spokes- in which note such immediate case, direct man for the instant lodged.” although (Emphasis supplied.) Biggs, Chief he dissented *11 602

fied writ of stated follows 70 F.2d pendency should issue Co. v. fically risdiction disposition from determined, not alone appellate tertain such writs Therefore Courts tions.’ cise [*] ormus be included in writs statute tion seems to be tion of lenge application diction The “One of “In Appeals ‘may ‘necessary for the Molyneaux, stated prevailing rule that in Minnesota appellate of their limine, [*] of this broad prohibition]. The is of an use of federal [the such statutory not jurisdiction. to the jurisdiction of respondent of the necessary for the exer- mandamus or [for judicially declared rule Webster purely writs we are limitations of appellate jurisdiction. jurisdiction sweep determined court to entertain All original appeal respective earlier referred legislative declara- courts as to such a writ district agreed and Ontario of this Writs Appeals appellate * * * met Eisenlohr, exercise writs where 546: of manda- appellate that alone the Court character court. Whether exists is prohibition jurisdic- Statute] jurisdic- penden- majority’s can en- succinctly might juris- a ** they chal- This by the sec- Paper to, modi- speci- of’ ju- cited 58 So. pearance of phy’s Railroad Co. v. association this dissent —“Justice appearance priate tion on the here should question as and Green case in “may sion in possible, completely eliminated.” jealously utmost suspicion to the honest, portant judges presiding government. interested in rity, ity As On That issue the writ Green “All are principles was so well * * * issue all writs in aid of continued brings premise independence, 710, 834, the “All Writs Statute” importance unbiased, impartial, Ky. 410, approval in score justice.” guarded would be accordance judiciary, interested in the view of the record powerful tome justice” Kirk, whether of law.”17 fact, agreeable I will issued. stated at Not * participation of mandamus over the contrary consideration necessary against, and, but ** Petrey Holliday, not only L.R.A.,N.S., in Yazoo & M. must S.W. “satisfy and branch of the most the writ with dwell it is all doubt 102 Miss. impartial- must courts be must be satisfy the outset or jurisdic- integ- 71: of their that usages sought sought appro- length dis- provi- our im- Mur- ap- V. rel. Childers, and in State ex Bennett cy appeal, but whether the Okl.1940, 105 P.2d proceeding 764: in the lower court to by the writ is ‘within the [judges’] is it their affected “Not jurisdiction higher adjudge duty to decide parte States, Ex court.’ litigants rights honestly, fairly 129, 130, impartially, but it is also their (Emphasis supplied.) 283.” duty scrupulously refrain from sitting any case, flogging or under might would be a dead horse to It circumstances, which majority’s reason- on the dwell further view that give ably tend to rise doubt jurisdiction without is- complete suspicion as dis- prohibition writ mandamus sue * * * interestedness sought by Green in the case. instant “ ** * * amply regretted authorities cited establish is to be try present should case in this Court prej- qualification Appellate based fourteen states cases on bias courts cases have thirty-four issued writs udice. dis- mandamus and/or *12 ground upon stepping which there is the least aside” and their further state- that, which claim for his dis- ment to base a and, ever qualification, if an error is “Judges from elect time time disqualification, it made as should try cases, they not to are sure be in favor of the they try fairly objectively, can and ” against rather it.’ than because of their concern to avoid again Payne Lee, 1946, any

and in v. substantial doubt which circum- citing beyond may Minn. 24 N.W.2d stances their control public Edu- State ex rel. Barnard Board of create in mind about cation, impartiality Wash. P. their administration of justice 40 L.R.A. 317: in the matters at hand.” “ (Emphasis supplied.) impartiality, principle ‘The disinterestedness, fairness substantial difference be- part is old as my tween view and concur- that of the history courts; fact, ring judges respect to the con- through justice administration of is, they siderations stated believe up- of courts mediation is based they “must be to the discretion left * * * principle on this Caesar preception” sensitive of the trial demanded that his wife should not effectively and “cannot be controlled beyond virtuous, but sus- appellate rulings”, believe, while picion; and the state should not problem presented since the is now exacting judicial less with its inescapably this Court it must exercise ** * officers, for, as was well percep- that “discretion and sensitive by Judge People Bronson in tion.” Pleas, Wend., Suffolk Common concurring judges I differ with the N.Y., 550: “ ‘ respects: two further importance “Next First, they construe duty rendering righteous judg- premising the denial of the ment, doing writ on the it in such a ground narrow dinary beget absence of “extraor- suspicion manner as will no enough and, circumstances” sec- integrity of the fairness and ’ ” ond, they believe judge.” that Green’s plainly bias “is insufficient” under Sec- against background Viewed “Congress because used ‘bias or stated, has been what what real differ- prejudice’ in the conventional sense of party ence does it make as to which enmity hostility” section, in disqualify the Green case moved to very opposite charged”, “Here the Murphy? “leaning viz., theory. backward” Judge Murphy disqualified Whether because he backward” respect: “lean As the first prior friendship Green because of their particularly stated, As earlier so in issue; association critical 11, majority premised Note its denial is critical is the what existence of friend- specific of the writ on the absence of ship association. “appellate jurisdiction”. That it did not concurring judges ground have evidenced do on the so absence of “ex- appreciation their enough this critical traordinary issue circumstances” is suggestion clearly majority’s evident state- “ * * whether, holding he consider “In so ment we desire to may feel, bias plain free of however that we passing make are not important appearance complete sufficiency also presently allega- on the impartiality in the administration bias preju- affidavit of justice not best supplied.) would be served his dice.” complaint is that “The sole *13 respect: As to the second overcompensate judge may his for concurring their judges focused The accused toward the inclination appli- the solely the issue attention leaning backward.” doing, and, cability in so of Section complaint I merits consid- such think certain, inadvertently, failed I ana sweep eration. give broad consideration gainsaid “All Writs Certainly the under of our be it cannot although they Statute”, indispensable subscribed which is an the detachment jurisdiction. ingredient judicial does the existence of that attitude judge presides at the exist where a not discuss conclusion, like to should long-time has been trial of one who his aspect of “leaning briefly backward” and benefactor. friend although make case, I desire my Judges premise view § clear I do not stated in C.J.S. As was aspect. granted 72, p. on that should be 1039: the writ However, mean that does not underlying principle of rules “The merit “leaning aspect not does backward” judges is that for consideration. judge preside should case no “leaning wholly back- free, he dis- sum of in which is not The Green’s Judge Murphy, interested, independ- impartial, is that and ward” contention prior long-standing supplied.) their because of ent.” association, con- friendship will and Can it be said through the subconsciously, sciously or “wholly free”? here is trial, existence. affected beings Judges human and not are put here: his brief it in As Green dispensing undis- mechanical machines judgment justice push-button ac- basis. on a tilled “If a motion judicial They mechan- before Univacs or quittal to be made are were not pass upon judge, respondent could he ized “brains”. considering, con- without that issue by Mr. Justice As well said was so subconsciously, sciously whether concurring opinion Frankfurter in his doing favor accused would be he Florida, Pennekamp v. State ** * friend? for his return page 328 U.S. grant mo- 1295: should “If the “-» * (cid:127)» public acquittal, judges will the hu- are also favoring an old friend? man, than did know better think and we deny proper motion powerful Must how our forbears Is criticism? pull unconscious forestall and how Constitution, defendant, process.” under the the rational treacherous * * * risk ? required to take Cardozo, speaking Mr. Justice “Obviously, rela- facts Element in Judi- “The Subconscious tionship defendant between Process” cial relationship respondent, and the spoken of the forces which “I have respondent and co-de- avowedly shape judges between avail to ample McGlinchey, present judg- fendant content their form might any mind which facts forces sel- Even these are ments. an inference bias properly They draw fully in consciousness. dom prejudice.” however, surface, near the lie so existence and influence contention was of Green’s nub * likely be disclaimed concurring judges by well-stated Deep consciousness are below other follows: Writings 168-69; pp. Process”, Hall’s “Selected of Judicial “Nature Cardozo’s Cardozo”, p. Benjamin Natlian dislikes, forces, the likes prejudices, predilections complex and emo- instincts convictions, habits man, whether he make the

which

litigant . . .

great en- tides and currents *14 men, gulf not turn do the rest pass in their course aside also, See 253 F.2d 238. by.” supplied.) judges gild say refined To more would be “to

gold”.19 grant writ.

I would TIEDE

Matter of the Petition OSKAR MANN & For Exoneration COMPANY Liability. From or Limitation Andanar,

Theodora Thomas Widow Deceased, Andanar, Etc., al., et Appellants.

No. 12556. Appeals

United States Court Third Circuit.

Argued June 1958. Sept.

Decided Sallust, li, Catilina, Chesterfield, Letters, sec. 1: “All April, Ch. Lord ques- prejudices men who deliberate difficult “Our 1752: arc our mis- tresses; should be from hatred very free reason is wife, at best our friendship, anger pity.” indeed, often heard but seldom minded.”