The proceeding to retire for personal bias or prejudice a trial
judge of a United States court from further hearing a case of which
he has jurisdiction had its origin in the new Judicial Code, § 21,
and is only applicable in rare instances in which not merely
adverse, but biased and prejudiced, rulings are shown and facts and
reasons given.
Section 21 of the Judicial Code is not intended as a means for a
discontented litigant ousting a judge because of adverse rulings,
or as a method of paralyzing the action of a judge who has heard
the case by disqualifying him between the hearing and the
determination of the matter heard.
Page 230 U. S. 36
Quaere, and not decided, whether, under § 21, Judicial
Code, any affidavit of bias and prejudice is sufficient, or whether
the judge can pass upon its sufficiency.
The authority of a judge whose attempted designation under §§ 14
and 21 of the New Judicial Code is beyond the judicial power of the
Senior Circuit Judge may be excepted to, and any order or decree
made by him while acting under such designation may be reviewed in
due course of law.
The writ of mandamus will be granted by this Court only when it
is clear and indisputable that there is no other legal remedy.
Where a Senior Circuit Judge, in designating under § 14 of the
Judicial Code a judge to act in place of one retired under § 21 of
the Judicial Code, acts in the exercise of his legitimate
jurisdiction, this Court cannot correct a mistake, if he makes one,
by the writ of mandamus.
The facts, which involve the construction of § 21 of the
Judicial Code of 1911 and the jurisdiction of this Court to issue
writs of mandamus, are stated in the opinion.
MR. JUSTICE LURTON delivered the opinion of the Court.
This is a proceeding for a rule on the Honorable Thos. I.
Chatfield, District Judge of the United States for the Eastern
District of New York, the Honorable Julius Mayer, District Judge
for the Southern District of New York, and the Honorable E. Henry
Lacombe, Senior Circuit Judge for the Second Judicial Circuit of
the United States, to show cause why a writ of mandamus shall not
be issued commanding the Honorable Thos. I. Chatfield to resume
jurisdiction and
Page 230 U. S. 37
proceed to hear and determine all matters which may arise or
have arisen in a certain proceeding pending in the said District
Court for the Eastern District of New York, wherein the Iron Clad
Manufacturing Company has been adjudicated a bankrupt, and
directing the vacation of an order made in said case by the
Honorable E. Henry Lacombe, as Senior Circuit Judge, on April 2,
1912, designating and appointing the said Judge Mayer district
judge to hear and exercise in the Eastern District of New York, the
same powers that are now vested in the district judges of said
district, or either of them,
"and quashing and setting aside all proceedings in said matter
of Iron Clad Manufacturing Co., Bankrupt, had before said Honorable
Julius M. Mayer . . . subsequent to the said order of Judge Lacombe
. . . , and especially commanding the said Judge Chatfield to
exercise the jurisdiction thereof which he had and was exercising
on and prior to the 29th of March, 1912."
A rule to show cause issued, and a return has been made.
The question now is whether a writ of mandamus shall issue.
Shortly stated, the facts necessary to be understood are
these:
1. Creditors of the Iron Clad Manufacturing Company filed on May
23, 1911, a petition in the District Court of the United States for
the Eastern District of New York praying its adjudication as a
bankrupt. The proceeding was long contested, but, on December 2,
1911, the company was adjudged judged a bankrupt by Judge
Chatfield.
2. In the meantime, controversies had arisen as to what
constituted the assets of that company. On June 20, 1911, certain
of the creditors filed a petition in the case, charging that the
corporate capital, property, and assets of another corporation, the
American Steel Barrel Company, belonged to the Iron Clad
Manufacturing Company, and had been controlled and managed in the
interest of the
Page 230 U. S. 38
latter, and praying that the receivership under the proceeding
against the Iron Clad Manufacturing Company should be extended to
the American Steel Barrel Company.
3. This was bitterly resisted, and the independent ownership of
the Steel Barrel Company asserted. Elizabeth C. Seaman was the
president and manager of both companies, and the nominal owner of
all of the shares in each, save a few qualifying shares in the
hands of directors. Mrs. Seaman seems to have been not only active
in resisting the proceedings against the Iron Clad Company, but
also in resisting every claim to the property of the Steel Barrel
Company made by the creditors of the Iron Clad Company.
4. The hearing of this application was postponed from time to
time, and there was disagreement as to whether it should be heard
upon affidavits before Judge Chatfield or referred to a
commissioner to take proof and report. Finally, on March 15, 1912,
Judge Chatfield filed an opinion refusing to extend the
receivership to the property of the American Steel Barrel Company
or to take summary possession of its assets, as he had been asked
to do. The ground upon which he acted, as shown by his opinion (194
F. 906), was that the claim to the assets of the Steel Barrel
Company was one which should be asserted in a plenary suit. An
order in accordance with this opinion was not entered, because
counsel for the creditors asked for time to make a new application,
and such application was made on March 29, 1912, followed, however,
on the same day, by the filing of an affidavit under § 21 of the
Judicial Code to prevent further hearing of the case by Judge
Chatfield. That affidavit in substance alleged that, throughout the
proceedings in the case, Judge Chatfield had manifested
"a strong bias and prejudice against the petitioning creditors
and against their counsel, and has shown a strong bias toward Mrs.
Elizabeth C. Seaman,
Page 230 U. S. 39
who was and is the sole person interested in the subject matter
of the bankrupt corporation's property other than the
creditors."
The motion to rehear the application to extend the receivership
was made when district judge Veeder was holding the bankrupt court,
and was by him at once referred to Judge Chatfield. In view of the
filing of the disqualifying affidavit, Judge Chatfield declined to
hear the motion and application to reopen and rehear the motion
which had been decided by the opinion handed down on March 15th,
and made a certificate in these words:
"
UNITED STATES DISTRICT COURT"
"
EASTERN DISTRICT OF NEW YORK."
"IN THE MATTER"
"OF March 29, 1912"
"IRON CLAD MANUFACTURING COMPANY,"
"BANKRUPT"
"IN THE MATTER OF A MOTION TO REOPEN THE APPLICATION TO EXTEND
RECEIVERSHIP, FOR A DIRECTION THAT THE PETITIONERS BE AFFORDED AN
OPPORTUNITY TO TAKE TESTIMONY, ETC., AND FOR POSTPONEMENT OF THE
ENTRY OF ANY ORDER OR DECREE UPON THE APPLICATION DECIDED MARCH 15,
1912, AND FOR OTHER RELIEF."
"Before Veeder, J."
"Appearances: Whitridge, Butler & Rice, for petitioning
creditors, in support of motion, James A. Allen, specially for
Elizabeth C. Seaman and the American Steel Barrel
Page 230 U. S. 40
Co., Emanuel Hertz, specially for George A. Wheelock, in
opposition."
"Motion respectfully referred to Judge Chatfield."
"VAN VECJTEN VEEDER"
"
U.S.J."
"The within application having been referred upon the return day
to me, Judge Veeder, who called the motion calendar, and the motion
papers having been presented by the clerk, in the presence of James
A. Allen, appearing specially, and desiring to be heard in
opposition, as attorney for certain parties, Emanuel Hertz,
appearing specially for George A. Wheelock, and also desiring to be
heard in opposition, and Erskine B. Essig, representing certain
creditors, but not taking part in said motion, and no one appearing
before me on behalf of the petitioners, but a certain affidavit, by
Thatcher M. Brown, having been brought to the attention of the
court, which affidavit was filed after the motion was referred to
me by Judge Veeder and before any of the parties appeared before
me, in which said Thatcher M. Brown, as a party to the proceeding,
makes an affidavit that I have a personal bias either against the
creditors or in favor of the opposite party to the proceeding, and
asking that another judge be designated in the matter prescribed in
Section 20, to hear this motion,"
"I do hereby, in accordance with the provisions of Section 21 of
the law known as the Judicial Code, and now in effect, proceed no
further in this motion, and order that an authenticated copy of
this statement be forthwith certified to the Honorable E. Henry
Lacombe, Senior Circuit Judge now present in this circuit in order
that proceedings may be had under Section 14 of said act, it being
apparent that this motion cannot proceed under Section 23, which is
prescribed as an alternative method in said Section 21 of said
law."
"The Court further certifies that it does not make an entry
Page 230 U. S. 41
upon the records of the court (nor does it admit) that it has
any personal bias or prejudice, but, on the contrary, might call in
question many of the statements or controvert many of the
allegations contained in said papers. And this Court feels that, if
any disqualification exists, it was also present when this Court
directed a verdict of adjudication and made other decisions in
favor of said creditors, and when the judge now holding the court
upheld the findings of the Special Commissioner as to charges of
contempt against Mrs. Seaman."
The Court however feels that the intent of Section 21 is to
cause a transfer of the case, without reference to the merits of
the charge of bias, and therefore does so immediately, in order
that the application of the creditors may be considered as speedily
as possible by such judge as may be designated.
"THOMAS I. CHATFIELD"
"
U.S.D.J."
Thereupon, Circuit Judge Lacombe made the order which it is now
sought to have set aside, in these words:
"
UNITED STATES DISTRICT COURT"
"
EASTERN DISTRICT OF NEW YORK."
"IN THE MATTER"
"OF March 29, 1912"
"IRON CLAD MANUFACTURING COMPANY,"
"BANKRUPT"
"Upon the affidavit of Thatcher M. Brown, the certificate of
Charles A. Riegelman, Edwin T. Rice, and John
Page 230 U. S. 42
M. Garver, counsel for petitioning creditors, and certificate of
the senior district judge of this district, all filed in this Court
on March 29, 1912, and which have been examined by me;"
"I, E. Henry Lacombe, Senior Circuit Judge of the Second
Circuit, under the authority conferred by Section Twenty-one of the
Judicial Code of the United States, do hereby designate and appoint
the Honorable Julius M. Mayer, District Judge of the Southern
District of New York, to have and exercise, in the above-entitled
proceeding within the Eastern District of New York, the same powers
that are now vested in the district judges of said eastern district
or either of them."
"April 2, 1912."
"E. HENRY LACOMBE"
"Senior Circuit Judge"
"Second Circuit"
"Counsel for the respective parties may communicate with Judge
Mayer, who will inform them at what time or times it may be
convenient for him to hold Court in the Eastern District."
"E. HENRY LACOMBE"
"Senior Circuit Judge"
Thereupon Judge Mayer assumed jurisdiction, and has since made
many interlocutory orders and rulings in the case, to all of which
the opposite parties in the proceeding objected and excepted upon
the ground that his designation was null and void. Nevertheless,
Judge Mayer continued to exercise jurisdiction from the time of his
designation, in April, 1912, down to the filing of this petition in
February, 1913.
The fundamental proposition maintained by the petitioners is
that all of the proceedings before Judge Mayer are null and void
for the lack of jurisdiction, and that Judge Chatfield still
retains jurisdiction, and that all of the interlocutory orders made
by Judge Mayer should be vacated,
Page 230 U. S. 43
and Judge Chatfield commanded to proceed with the hearing of the
matters pending before him when he refused to proceed further with
the case upon the filing of the affidavit objecting to his further
exercise of jurisdiction.
The proceeding to retire a trial judge of a United States court
from further hearing a case of which he has jurisdiction had its
origin in the new Judicial Code, effective January 1, 1912, and
constitutes § 21 of that Code. It is as follows:
"Whenever a party to any action or proceeding, civil or
criminal, shall make and file an affidavit that the judge before
whom the action or proceeding is to be tried or heard has a
personal bias or prejudice either against him or in favor of any
opposite party to the suit, such judge shall proceed no further
therein, but another judge shall be designated in the manner
prescribed in the section last preceding, or chosen in the manner
prescribed in section twenty-three, to hear such matter. Every such
affidavit shall state the facts and the reasons for the belief that
such bias or prejudice exists, and shall be filed not less than ten
days before the beginning of the term of the court, or good cause
shall be shown for the failure to file it within such time. No
party shall be entitled in any case to file more than one such
affidavit, and no such affidavit shall be filed unless accompanied
by a certificate of counsel of record that such affidavit and
application are made in good faith. The same proceedings shall be
had when the presiding judge shall file with the clerk of the court
a certificate that he deems him self unable for any reason to
preside with absolute impartiality, in the pending suit or
action."
The basis of the disqualification is that "personal bias or
prejudice" exists by reason of which the judge is unable to
impartially exercise his functions in the particular case. It is a
provision obviously not applicable save in those rare instances in
which the affiant is able to state facts
Page 230 U. S. 44
which tend to show not merely adverse rulings already made,
which may be right or wrong, but facts and reasons which tend to
show personal bias or prejudice. It was never intended to enable a
discontented litigant to oust a judge because of adverse rulings
made, for such rulings are reviewable otherwise, but to prevent his
future action in the pending cause. Neither was it intended to
paralyze the action of a judge who has heard the case, or a
question in it, by the interposition of a motion to disqualify him
between a hearing and a determination of the matter heard. This is
the plain meaning of the requirement that the affidavit shall be
filed not less than ten days before the beginning of the term.
The case of
In re Iron Clad Mfg. Co. had been pending
since May, 1911. This affidavit was not filed until March 29, 1912,
less than ten days before the April term of the court. In the
meantime, that company had been adjudged a bankrupt against much
opposition and as the result of a jury trial, and Judge Chatfield
had made many interlocutory orders in reference to the bankrupt
estate. The principal matter which was then pending before him was
the petition of certain creditors of the Iron Clad Manufacturing
Company to have the receivership for the property of that company
extended so as to include the corporate property of the Steel
Barrel Company. This was very earnestly contested. On March 15,
1912, Judge Chatfield handed down the opinion reported in 194 F.
906, denying the application upon the ground that the matter was
one which should be asserted by a plenary suit. The order denying
that application did not go down, because of the interposition of
the motion for a rehearing or to file a new application, on March
29, 1912, while Judge Veeder, another of the judges of the eastern
district, was presiding, which was immediately referred by Judge
Veeder to Judge Chatfield. Thereupon, and before the latter could
act upon it, and on the same
Page 230 U. S. 45
day, the disqualifying affidavit was filed. The action of Judge
Chatfield is fully shown by the order and certificate set out
heretofore.
We shall not pass upon the timeliness of the affidavit, nor upon
the legal sufficiency of the facts therein stated as affording
ground for the averment that "personal bias or prejudice" existed.
If Judge Chatfield had ruled that the affidavit had not been filed
in time or that it did not otherwise conform to the requirement of
the statute, and had proceeded with the case, his action might have
been excepted to and assigned as error when the case finally came
under the reviewing power of an appellate tribunal.
Henry v.
Speer, 201 F. 869;
Ex Parte M. K. Fairbank Co., 194
F. 978;
Ex Parte Glasgow, 195 F. 780, affirmed by this
Court in
225 U. S. 225 U.S.
420. But this is not what happened. Judge Chatfield held that the
affidavit was sufficient in law to make it his duty to proceed no
further. Acting upon that determination, he certified his
withdrawal and the affidavit to the Senior Circuit Judge that he
might, in the exercise of his jurisdiction under § 14 of the new
Judicial Code, designate another judge to proceed with the hearing
of the case. It is obvious that, if the designation of Judge Mayer
under these conditions was wholly beyond the judicial power of the
Senior Circuit Judge, his authority to make any order or decree
acting thereunder might have been excepted to, and thus made the
subject of review in due course of law.
The writ of mandamus will be granted by this Court only when it
is clear and indisputable that there is no other legal remedy.
Ex Parte
Newman, 14 Wall. 152,
81 U. S. 165;
Bayard v. United States, 127 U. S. 246;
In re Morrison, 147 U. S. 14.
Judge Lacombe was clearly called upon to determine, in the
exercise of his jurisdiction as the Senior Circuit Judge, whether
the situation was one in which he should designate a judge in the
room and place of Judge Chatfield. He determined the matter
adversely to the petitioners. If
Page 230 U. S. 46
in this he made a mistake, it was one made in the course of the
exercise of his legitimate jurisdiction under § 14 of the new
Judicial Code, and we cannot compel him, through a writ of
mandamus, to undo what has thus been done.
Ex Parte
Burtis, 103 U. S. 238;
In re Parsons, 150 U. S. 150.
Aside from what has been said, the long delay in asking the
extraordinary remedy of mandamus would fully justify this Court in
the exercise of a sound discretion in denying relief.
The rule must be discharged.