exclusive function to determine whether he should "in his opinion" under Section 455 disqualify himself.

Thus have the judges of the Tenth Court of Appeals and Judicial Council effectively arrogated unto themselves unlimited general original jurisdiction over every case pending in the district courts of six states from the moment they are filed with the district court Clerk. And this has been the Federal law of the six states of the Tenth Circuit since 1959.

The usurpation of this power and jurisdiction may have been suggested or at least encouraged by a strange sentence appearing in La Buy, 352 U.S. 249, 1 L.Ed.2d 290, 77 S.Ct. 309 (1957) where it is stated by Mr. Justice Clark in the last paragraph of the opinion that:

"We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system." Since it was used as "the entering wedge", the Court may wish to review carefully the decision in the light of the questions raised here.

The extension of the All-Writs Act to cases other than those in which a court has exceeded or refused to exercise. its jurisdiction or in which appellate review will be defeated if a writ does not issue is fraught with danger. The temptation for Courts of Appeals to arbitrarily find “clear abuse of discretion" and "exceptional circumstances" seems irresistible. Too often writs have been arbitrarily issued under one plausible guise or another when a careful analysis will disclose the writ to be "supervisory" in nature.

It is assumed that neither the Congress nor this Court is aware that their clear enunciations have been thus so openly and arrogantly nullified since to one who was not a district judge in the Tenth Circuit and watched the game from his ringside seat this complete distortion of the judicial process may not actually have been noticeable. Hence the need for the filing of this paper. But the "old timers", those who were privileged to serve several years as inde

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pendent trial judges of general original jurisdiction before 1948 when the scheme gained momentum and new words were surreptitiously slipped into Section 332, know from experience that "supervision" is a bad word and means improper meddling in their cases at the trial level by appellate judges avid for power.

The Circuit Judges now are able to "suggest" specific discretionary decisions to district judges and if the district judges cannot be politely coerced into "cooperating" with those who would "supervise", the new double-barreled writ is available to compel acquiescence and defame them. 362 U.S. 946, 4 L.Ed.2d 866.

In order to get by with such clear usurpation of power it was necessary for the Judges to justify their unlawful acts. They did so by making it appear that the “unseated" judge had an improper interest in the case, by the use of paternal phrases, and by couching findings based on no competent evidence in such flagrant half-truths as to make it appear falsely to the public eye that the district judge was incompetent, derelict or corrupt and that the end justified the means. And they did not hesitate to avail themselves of this unwholesome strategy of character assassination. The trial judge in each instance was gravely discredited by the issuance of a clearly punitive defamatory Writ and Order.

The Circuit Judges of the Tenth Circuit have already cut this shabby pattern and reduced the district judges of the Circuit to the status of subordinate trial examiners. The whole Congressional plan of separate trial and appellate courts has been circumvented and destroyed by usurpation by the Circuit Court and Council of District Court functions thus dangerously concentrating both original and appellate jurisdiction in that one court.

This case furnishes a vehicle in which this court can avail itself of the opportunity to speak and restore Constitutional government in the Tenth Circuit.

It is no more a proper function of appellate judges to supervise the administration of a trial court that it is for trial judges to supervise the administration of appellate courts. It is their statutory appellate function to administer their own courts and review final decisions of district courts. It is not their proper function to tamper in any way at the trial stage with the work (administration) or discretionary judicial decisions of the trial judges. It is their limited function to review only the final orders of trial judges.

Other Circuit Courts now review the size of jury verdicts, set them aside as against the weight of the evidence, substitute their judgment for that of trial courts when findings are based on documentary evidence, try cases de novo where the findings of fact are clearly based on conflicting testimony and, not content with this, they also use Extraordinary Writs to control the discretionary acts of District Judges.

No better authority should be needed than the erudite article by Professor Charles Alan Wright published in 41 Minnesota Law Review 751 (1957) entitled "The Doubtful Omniscience of Appellate Courts." To his everlasting credit and honor he paints the picture vividly, shows each of the four practices to be clearly unconstitutional, convincingly shows each to be destructive of the judicial system and inimical to the effort being carried on then and now to improve the judicial system. There are appended hereto for the convenience of the Court, thirteen copies of this article and of an equally important and pertinent article by Judge Merrill E. Otis, U.S. District Judge for the Western District of Missouri from 1925 to 1944 on the constitutionality of "schemes" to create tribunals to try federal judges, entitled "A Proposed Tribunal: Is It Constitutional?" published in Volume 7 of The University of Kansas City Law Review, page 3.

It is sincerely believed that a careful study of the splendid article by Professor Wright referred to above is

necessary for a complete understanding of just what has happened to our judicial system generally since the writer of this paper became a district judge. To one at the trial level who has seen it at first hand, the havoc wrought is clear and frightening.

The members of this Court occupied with problems seemingly of more general importance could not have been fully aware of the tyrannical usurpation and abuse of power by the judges of the Tenth Circuit at the time certiorari was denied in Ritter, Occidental and Texaco or the Circuit Judges would at that time have been confined to a lawful exercise of their statutory limited appellate jurisdiction. Nor would these cases have been cited as precedents in Cascade Natural Gas Corporation v. El Paso Natural Gas Company, et al., 386 U.S. 129, 17 L.Ed.2d 814, 87 S.Ct. 932 (1967) had this Court been aware of the fact that the trial judges were not personally or emotionally involved and had been falsely defamed by the Circuit Judges of the Tenth Circuit without jurisdiction or due process hearing.

The effect of the citation of these cases in Cascade was devastating. The Court of Appeals of the Tenth Circuit jubilantly considered this as approval of their unconscionable decisions in those cases. A few days after the decision in Cascade when the jurisdiction of the Court of Appeals to enter the Writ in Chandler v. United States (Burbridge), 389 U.S. 568, 19 L.Ed.2d 777, 88 S.Ct. 691 (1968) was challenged at oral argument, a judge of the Court smugly stated from the bench "We can now do anything we want to do" which is as accurate a statement of the power that Court claims and has for thirteen years arbitrarily exercised as should be needed.

It should now be apparent that the Council Order in the instant case stripping the district judge of all power is not as inimical to the independence of district judges as the threat of the asserted right to sua sponte summarily strip a district judge of power in specific cases at any moment in the preliminary stages or actual trial without due process

and to prohibit him from proceeding further by reason of any discretionary order he has entered in the case before or during trial. And in the Tenth Circuit the district judge knows what to expect if he does not agree. He must have in mind at all times that if he fails to follow "suggestions", oral or written, he can expect to be ordered to "step aside" and to be castigated, belittled and defamed as well.

It is hoped that this paper will expose the arbitrary usurpation and raw and injudicious exercise of this tyrannical power in the Tenth Circuit which concentrates all judicial power in the Circuit Judges sitting as a Court or as a Council, makes them the final arbiters in private litigation which constitutes most of the judicial business in six states since these cases are so seldom accepted for review by this Court. But it will be necessary to study Ritter, Occidental and Texaco to see the shocking picture clearly and understand the deep concern of the writer and others who know the facts. When these facts are known it is thought that neither the public, the Congress, nor this Court will tolerate its continued existence.

These are not isolated cases where the Judges of the Court of Appeals of the Tenth Circuit have arbitrarily usurped the discretionary functions of a trial judge. Such punitive and indefensible conduct has now become usual. If this course of injudicious and tyrannical conduct is not longer to be tolerated this Court must act. Both constitutional and statutory safeguards have been obliterated in six states. We now live without due process and without an independent Federal trial judiciary. The foundation of our freedom is gone.

The complete change of function of judges wrought by the usurpation of district court power by Courts of Appeals can be understood only if this court sees fit to study the records in Ritter, Occidental, Texaco and Professor Wright's article. The action of the Council and Court in each case was drastic, arbitrary, highly punitive, defamatory, unjustified by the facts and not in the interest of justice. The