William J. Green, Jr. v. Honorable John W. Murphy, United States of America, Intervenor

259 F.2d 591, 1958 U.S. App. LEXIS 5366

• Court: Court of Appeals for the Third Circuit
• Decided: September 25, 1958
• Docket: 12616
• Status: Published

Opinions

BIGGS, Chief Judge.

A petition for a writ of mandamus or prohibition was filed by the petitioner, William J. Green, Jr., against the Honorable John W. Murphy, Chief Judge of the United States District Court for the Middle District of Pennsylvania, as respondent, praying this court to order Judge Murphy to proceed no further with the criminal case of the United States of America v. Green (the petitioner), and others, in the United States District Court for the Middle District of Pennsylvania, at Criminal Docket No. 12,880. The petition is based on the refusal of Judge Murphy to disqualify himself because of the allegations of an affidavit filed by the petitioner purportedly pursuant to the provisions of Section 144, Title 28, U.S.C.¹ The petition prays also that another judge be assigned to hear the criminal ease, asserting that Judge Murphy “has a personal bias and prejudice against * * * [the petitioner, Green]”. We issued a rule to show cause directed to Judge Murphy. He answered and the United States, intervening, also responded. After certain preliminary proceedings in this court which need not be recited here, the case came on for hearing. Because of the importance of the questions of law involved and to effect an expeditious disposition of the issues, the case was heard by the court en banc.

Certain facts must be stated. On March 29, 1957, motions to dismiss the indictment, for a bill of particulars, for severance, for a transfer of the trial from Scranton to some other place of holding court within the Middle District of Pennsylvania, and for inspection of certain records within the possession of the United States were filed by the petitioner, Green. These were passed upon by Judge Murphy, who denied all of them save the motion for inspection, the latter being agreed to by the United States Attorney. Thereafter, on March 2, 1958, on inquiry by the petitioner’s counsel of Judge Murphy, as to at what term of court and by what judge² the petitioner would be tried, petitioner’s counsel was informed that the petitioner “most probably” would be tried by a court over which Judge Murphy would preside at Scranton. On March 7, 1958, the petitioner filed a motion seeking to have Judge Murphy replaced as the presiding judge at the trial by some other judge and an affidavit of bias and prejudice was filed in the court below pursuant to Section 144, Title 28 U.S.C. Note 1, supra. The affidavit alleged, inter alia, that the petitioner believed Judge Murphy was personally “prejudiced against me by reason of our long continued and close political and social relationship and that by reason of his desire to prove his integrity and lack of favoritism, he will be unable to afford me a fair and impartial trial * * * ”. We will not state the contents of the affidavit in this opinion for we do not find it necessary now to reach the question of the legal sufficiency of its allegations as the basis for disqualification. Judge Murphy concluded that the allegations of the affidavit were insufficient and refused to disqualify himself, stating his reasons in an opinion filed concurrently with an appropriate order.

We are of the opinion that the case at bar is ruled by legal principles which, although they may have been cloudy in the past, are now clearly defined. It is now settled law that the judge against whom an affidavit of bias and prejudice is filed under Section 144, must himself pass on the legal sufficiency of the facts alleged and that in so doing he must accept the allegations of the affidavit as true. A United States district judge therefore possesses the jurisdiction, the power, to pass upon the question as to whether he must withdraw from the case by reason of the allegations of his disqualification contained in the affidavit. This necessarily includes the power to decide the question wrongly as well as rightly. Behr v. Mine Safety Appliances Co., 3 Cir., 233 F.2d 371, certiorari denied 1956, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237, rehearing denied 1957, 352 U.S. 976, 77 S.Ct. 353, 1 L.Ed.2d 329; In re Greene, 3 Cir., 1947, 160 F.2d 517, 518; Voltmann v. United Fruit Co., 2 Cir., 1945, 147 F.2d 514, 517. Only what is set forth in the affidavit of bias and prejudice is material to the issue of disqualification. Berger v. United States, 1920, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481. It follows, therefore, that only questions of law are presented by the respondent judge’s refusal to disqualify himself. There can be no dispute either in the district court or on appeal as to the truth or falsity of the allegations of the affidavit. This does not mean, however, that the legal sufficiency of what is alleged in the affidavit becomes moot on appeal for what is stated therein and the inferences, if any, which may be drawn properly therefrom constitute the very basis on which the issue of disqualification of the judge must be decided ultimately. See Korer v. Hoffman, 7 Cir., 1954, 212 F.2d 211, 212-213, 45 A.L.R.2d 930, and the authorities cited therein.³

An adjudication by the judge against whom the affidavit is filed that its allegations are legally insufficient is not a final appealable decision under Section 1291, Title 28 U.S.C., at the stage of the proceedings presently reached at Criminal Docket No. 12,880, in the court below. Nor does such a decision fall within the provisions of Section 1292, Title 28 U.S.C., which gives jurisdiction to the courts of appeals to hear and determine certain interlocutory decisions. Judge Murphy’s present decision is subject to review only when and if the petitioner is convicted and sentenced. It will then become appealable to this court. What we wish to make very plain is that a remedy is afforded the petitioner by way of appeal. Korer v. Hoffman, supra; Hurd v. Letts, 1945, 80 U.S.App.D.C. 233, 152 F.2d 121; Dilling v. United States, 1944, 79 U.S.App.D.C. 47, 142 F.2d 473; Minnesota & Ontario Paper Co. v. Molyneaux, 8 Cir., 1934, 70 F.2d 545. We think that the remedy which can be afforded the petitioner by appeal is adequate for this court can strike down a judgment of conviction if we should find that the affidavit filed by the petitioner was legally sufficient to disqualify Judge Murphy under the provisions of Section 144.

A writ of mandamus or prohibition may be issued only in aid of this court’s appellate jurisdiction. See the “All Writs Statute”, 28 U.S.C. Section 1651. Korer v. Hoffman, supra. Cf. Berger v. United States, 1951, 255 U.S. 22, 36, 41 S.Ct. 230, 65 L.Ed. 481.⁴ Mandamus or prohibition are extraordinary remedies and can be employed justifiably only when rare and exceptional circumstances are present.

The fact is that the petitioner will be put to the expense and trouble of a trial because Congress has provided for the review of a district judge’s determination of the kind here complained of and under the circumstances here present, only on the review of a final judgment of conviction. It is not as if, as was said in Roche v. Evaporated Milk Ass’n, 1943, 319 U.S. 21, 31, 63 S.Ct. 938, 944, 87 L.Ed. 1185, the writ is sought for relief “from an abuse of judicial power, or refusal to exercise it.” It is the function of mandamus to correct such errors. We find no circumstances here which would justify our issuing the writ. Ex parte Fahey, 1947, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041. We conclude that the prayers of the petition must be denied.

In so holding we desire to make it plain that we are not passing presently on the sufficiency of the allegations of the affidavit of bias and prejudice. We state only that the circumstances are not such as to convince us that we, in the light of our legal discretion, should exercise our power to issue a writ of mandamus or prohibition.

An order will be entered denying the prayers of the petition.

1 . Section 144 provides: “Bias or prejudice of judge. Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

“The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.”

2 . There are presently two Judges in regu-; lar active service in the Middle District of Pennsylvania, and one Judge presently retired pursuant to Section 371(b), Title 28 U.S.C.

3 . Compare the provisions of Section 455, Title 28 U.S.C. with those in Section 144, Title 28 U.S.C., now sub judice.

4 . The petitioner relies strongly on the Berger decision. We think that he does so under a misapprehension as to the nature of the Supreme Court’s ruling. The Court there was directing its attention to the issue of whether the judge against whom the affidavit was filed was entitled to pass on the truth of the allegations of the affidavit. The Berger case actually reached the Court after the trial and conviction of the accused. The Court in effect stated that if the truth or falsity of the allegations of the affidavit were to be passed on by the judge himself, the remedy afforded the defendant by an appeal would then be inadequate. Cf. Connelly v. United States District Court, 9 Cir., 1951, 191 F.2d 692 and footnote 1 cited to the text at page 693.

We think it clear that in the Connelly case the Court of Appeals for the Ninth Circuit misapprehended the tenor of the Supreme Court in Berger. See the concurring opinion of Judge Pope in Gladstein v. McLaughlin, 9 Cir., 1955, 230 F.2d 762, 764.