IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1969 No. 2 Miscellaneous STEPHEN S. CHANDLER, UNITED STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA, Petitioner, V. JUDICIAL COUNCIL OF THE TENTH CIRCUIT OF THE UNITED STATES, Respondent. ON PETITION FOR WRIT OF MANDAMUS MOTION FOR LEAVE TO FILE REPLY BRIEF AND Prior to oral argument I regarded this case as one which needed no oral argument. No material defense had been set up, jurisdiction of the court was found in the All-Writs Act, and all facts necessary to the granting of the relief prayed for were shown by the record. I still view the case in that light. However, in view of the interest shown at the time of oral argument in the broad legal and constitutional ques tions involved, I respectfully ask leave to file this short paper for the purpose of emphasizing matters of more universal importance than the resolution of this specific controversy. The judges of the Court of Appeals of the Tenth Circuit sitting in a dual role as a Court of Appeals and as a Judicial Council on various occasions during the past thirteen years, have usurped and exercised jurisdiction sua sponte in specific private cases pending in district courts. Usually those cases involved vast sums of money. The judges held evidentiary hearings without due process and even without hearing made findings of fact and entered writs and orders at various stages of the trial process affecting cases pending in the district courts of the circuit "to effectuate what seems to us to be the manifest ends of justice". Thus, district judges were effectually relegated to the status of subordinate trial examiners. This statement is not an exaggeration. The power assumed by the judges of the Court of Appeals is virtually unlimited, as this paper will demonstrate. The judges of this statutory court of limited appellate jurisdiction have constituted themselves a court of general jurisdiction, usurped the statutory functions of the district courts and completely circumvented the policy of Congress in the establishment of these constitutional inferior courts. This extreme condition exists in no other circuit. I shall refer later to the condition in other circuits by the citation of no less eminent an authority than Professor Charles Alan Wright, counsel for Respondent. The original sua sponte order of the Judicial Council in the instant case is not more astonishing than the progressive steps leading up to the complete usurpation of this tyrannical power. A very few decisions and orders of the Court of Appeals and Judicial Council of the Tenth Circuit will be sufficient to show the erosion of the independence of the district judges by the usurpation of power and jurisdiction to control or exercise all or any of their discretion ary acts at every stage of the trial process by what may factually be characterized as the "Tenth Circuit DoubleBarreled Defamatory Supervisory Writ" which was concocted by the combination of four nonexistent jurisdictional powers: the nonexistent "supervisory" power vested in judicial councils by 28 U.S.C. 332; the nonexistent "appellate supervisory control of the district courts"; the nonexistent "inherent powers of appellate jurisdiction to effectuate what seems to us to be the manifest ends of justice"; and the nonexistent jurisdiction "to take action to guarantee a fair and impartial trial." The decisions and orders of the Tenth Court of Appeals and Judicial Council referred to are not just remotely applicable to the instant case. They are an integral part of it, made so by specific reference thereto as the basis for the issuance of the order under attack here. The full significance of the unprecedented order under consideration in the instant case will be overlooked unless the similar writs and orders in these few closely related cases are clearly understood with the aid of a careful scrutiny of the briefs and records in the cited cases, which are all on file in this court, in each of which certiorari was unfortunately denied, thus delaying by many years the resolution by this Court of the vital questions involved here. Greater by far is the judicial significance of each of these related cases than the Council order in the instant case which, in retrospect and in comparison, seems somewhat laughable. It is merely the proverbial straw that broke the camel's back. In each of the other cases the result to the private litigants was a miscarriage of justice and a monumental misuse of the judicial process. The bellwether case is United States v. Ritter, 273 F.2d 30, 32 (C.A. 10, 1959), cert. den. 362 U.S. 950, 4 L.Ed.2d 869, 80 S.Ct. 863 (1960) and its Companion case, Ritter v. Murrah, 362 U.S. 946, 4 L.Ed.2d 866, 80 S.Ct. 873 (1960), the history of which is as follows: In 1955 in United States v. Hatahley, 220 F.2d 666, the Court of Appeals reversed Chief Judge Ritter of Utah. Certiorari was granted, Hatahley v. United States, 351 U.S. 173, 100 L.Ed. 1065, 76 S.Ct. 745 (1956). This Court reversed the Court of Appeals and remanded the case to the district court for the making of appropriate findings with reference to damages. In its opinion this Court stated, 351 U.S. page 177, 100 L.Ed. page 1072: "3. While the Government does not challenge particular findings, it does level a general charge that the trial was conducted in such an atmosphere of bias and prejudice that no factual conclusions of the court should be relied on. The Court of Appeals noted that the case was tried in an atmosphere of maximum emotion and a minimum of judicial impartiality.' 220 F.2d, at 670. After oral argument and a thorough consideration of the record, however, we do not find that the trial was conducted so improperly as to vitiate these findings." Upon remand the district judge took additional evidence, made findings of fact and entered judgment for damages. The United States again appealed to the Court of Appeals, United States v. Hatahley, 257 F.2d 920 (1958). The Court of Appeals found the damages awarded unsupported by the evidence and remanded the case for a new trial stating: "From his obvious interest in the case, illustrated by conduct and statements made throughout the trial, which need not be detailed further, we are certain that the feeling of the presiding Judge is such that, upon retrial, he cannot give the calm, impartial consideration which is necessary for a fair disposition of this unfortunate matter, and he should step aside. *** we suggest that when the case is remanded to the District Court, the Judge who entered the judgment take appropriate preliminary steps to the end that further proceedings in the case be had before another Judge. See La Buy v. Howes Leather Co., 352 U.S. 249, 259, 77 S.Ct. 309, 1 L.Ed.2d 290." 1 Italics herein added if not otherwise noted. Judge Ritter was not intimidated by the gratuitous "uncomplimentary" statements of the Court of Appeals and its "suggestion" that he "step aside". He refused to abdicate his duty to exercise his jurisdiction as his conscience dictated. As stated by the Court of Appeals, 273 F.2d 32, he "took note of our suggestions that the case be heard before another judge but stated for the record that he did not intend to follow that suggestion so you can lay that to one side'. " ("Supervisory suggestions" have at times also been made orally to district judges in the Tenth Circuit. The United States thereupon filed an original Mandamus Action in the Court of Appeals, United States v. Ritter, 273 F.2d 30 (1959) to disqualify the judge for bias and prejudice. (No attempt was made to disqualify him in the district court for personal bias and prejudice in compliance with 28 U.S.C. 144.) Judge Ritter filed no response and did not appear either in person or by counsel, but counsel for the parties in interest appeared and resisted the Application. The Court of Appeals issued a Writ prohibiting Judge Ritter from proceeding further in the case and providing that the Chief Judge of the Circuit designate another Judge (one he would choose) to hear the case. In this connection the Court of Appeals said on page 32: "[1] Plaintiffs in the principal case take the position that the government's application is premature and untimely, and that in any event, extraordinary relief is unauthorized either under the all-writ statute, Section 1651, Title 28 U.S.C., or appellate supervisory control of the district courts. But we have no doubt of our power and inescapable duty to grant the relief sought, whether it be found in the all-writ statute or in the exercise of the inherent powers of appellate jurisdiction to effectuate what seems to us to be the manifest ends of justice. See La Buy v. Howes Leather Co., supra." The Judges of the Court of Appeals who were sitting en banc when this unauthorized Extraordinary Writ was |