Opposition Brief — Southern Pacific Communications Co. v. American Telephone & Telegraph Co.

Supreme Court, U.S.

FILED

f) FEB 2 wes

No. 84-1080 ALEXANDER 1 STEVARg

ae CLERK

In The

Supreme Court of the United States

October Term, 1984

SOUTHERN PACIFIC COMMUNICATIONS

COMPANY, et ai.,

Petitioners,

v.

AMERICAN TELEPHONE AND TELEGRAPH

COMPANY, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION

GeorGE L. SAUNDERS, JR.*

THEODORE N. MILLER

One First National Plaza

Chicago, Illinois 60603

(312) 853-7000

Of Counsel:

Howarp J. TRIENENS MICHAEL S. YAUCH

Jim G. KILPATRIC C. JOHN BURESH

KATHLEEN F. CARROLL STEWART A. BLOCK

J. Davip STONER 1722 Eye Street, N.W.

Washington, D.C. 20006

Sip_ey & AUSTIN (202) 429-4000

February 2, 1985

ina Attorneys for Respondents

*Counsel of Record

QUESTION RESTATED

Petitioners do not seek review of any portion of the court of ap-

peals’ decision on the merits of the antitrust issues involved in this

case. Instead, they seek only to have this Court review that por-

tion of the decision finding that petitioners had failed to establish

the factual predicates to their claim of bias against Judge Charles

R. Richey—the judge who presided over the case for four years,

who tried it as a bench matter after petitioners waived a jury, and

against whom petitioners had never remotely suggested bias until

after his decision in the case was rendered.

Under these circumstances, the question presented by the peti-

tion has nothing to do with antitrust law or telecommunications

regulation. Instead, the question is:

Whether this Court should review the findings of the court

of appeals that petitioners have shown neither disqualifying

bias nor any improper influénce of personal views upon the

trial court’s decision where the petition repeats the same fac-

tual contentions that were considered and rejected as “un-

supported” by the court of appeals after a full review of the

record, and where the court of appeals applied established

legal principles in reaching that conclusion.

il

STATEMENT REQUIRED BY RULE 28.1

Respondent American Telephone and Telegraph Company

(“AT&T”) has no parent company. In addition to other wholly-

owned subsidiaries, AT &T has ownership interests either directly

or through wholly-owned subsidiaries in the Cuban American

Telephone and Telegraph Company, Inc.; Ing. C. Olivetti and

C., S.P.A.; Gold Star Fiber Optics Co., Ltd; Western Electric

Saudi Arabia, Ltd.; Gold Star Semiconductor, Ltd.; Communica-

tions Software Development, Inc.; AT&T and Philips Telecom-

munications, B.V.; and ShareTech, Inc.

The complaint in this case also named as defendants twenty-

four operating telephone companies that were then subsidiaries of

AT&T. The current parents, subsidiaries and affiliates of these

operating telephone companies are as follows:

Illinois Bell Telephone Company, Indiana Bell Telephone

Company, Incorporated, Michigan Bell Telephone Company and

Wisconsin Bell Inc. (formerly the Wisconsin Telephone Com-

pany) are all wholly-owned subsidiaries of American Information

Technologies Corporation and have no subsidiaries. The Ohio

Bell Telephone Company is a wholly-owned subsidiary of Amer-

ican Information Technologies Corporation and has ownership

interests in The Chillicothe Telephone Company and The Cham-

paign Telephone Company. American Information Technologies

Corporation has no parent company. In addition to wholly-owned

subsidiaries, American Information Technologies Corporation

has an ownership interest in Northern Information Technology,

Inc.*

The Bell Telephone Company of Pennsylvania, The Diamond

State Telephone Company, The Chesapeake and Potomac Tele-

*Bell Communications Research Corp. is jointly owned by American

Information Technologies Corporation, Bell Atlantic Corporation, Bell-

South Corporation, NY NEX Corporation, The Pacific Telesis Group,

Southwestern Bell Corporation and U S WEST, Inc., either directly or

through wholly-owned subsidiaries.

phone Company, The Chesapeake and Potomac Telephone Com-

pany of Maryland, The Chesapeake and Potomac Telephone

Company of Virginia, The Chesapeake and Potomac Telephone

Company of West Virginia, and New Jersey Bell Telephone

Company are all wholly-owned subsidiaries of Bell Atlantic Cor-

poration and have no subsidiaries. Bell Atlantic Corporation has

no parent company. In addition to wholly-owned subsidiaries,

Bell Atlantic Corporation has an ownership interest in Telecom-

munications Specialists, Inc.

South Central Bell Telephone Company and Southern Bell

Telephone and Telegraph Company are wholly-owned subsidi-

aries of BellSouth Corporation and have no subsidiaries other

than wholly-owned subsidiaries. BellSouth Corporation has no

parent company and has no subsidiaries other than wholly-owned

subsidiaries.

New England Telephone and Telegraph Company and New

York Telephone Company are wholly-owned subsidiaries of

NYNEX Corporation. New York Telephone has no subsidiaries

other than wholly-owned subsidiaries and New England Tele-

phone has no subsidiaries. NY NEX Corporation has no parent

company and has no subsidiaries other than wholly-owned sub-

sidiaries.

Pacific Bell (formerly The Pacific Telephone and Telegraph

Company) is a subsidiary of The Pacific Telesis Group and has no

subsidiaries other than wholly-owned subsidiaries. Nevada Bell

(formerly Bell Telephone Company of Nevada) is a subsidiary of

The Pacific Telesis Group and has no subsidiaries. The Pacific

Telesis Group has no parent company and has no subsidiaries

other than wholly-owned subsidiaries.

Southwestern Bell Telephone Company is a wholly-owned sub-

sidiary of Southwestern Bell Corporation and has no ownership

interests in any companies other than wholly-owned subsidiaries.

Southwestern Bell Corporation has no parent company and has

no subsidiaries other than wholly-owned subsidiaries.

iv

The Mountain States Telephone and Telegraph Company,

Pacific Northwest Bell Telephone Company, and Northwestern

Bell Telephone Company are all wholly-owned subsidiaries of

U S WEST, Inc. and have no subsidiaries other than wholly-

owned subsidiaries. U S WEST, Inc. has no parent company and

has no subsidiaries other than wholly-owned subsidiaries.

The Southern New England Telephone Company (“SNET’”’)

has no parent company. In addition to wholly-owned subsid-

iaries, SNET has an ownership interest in SONECOR Credit

Corporation.

Cincinnati Bell Telephone Company (formerly Cincinnati Bell

Inc.) is a wholly-owned subsidiary of Cincinnati Bell Inc.

Cincinnati Bell Enterprises Inc. is a wholly-owned subsidiary of

Cincinnati Bell Inc. Cincinnati Bell Supply Company, a wholly-

owned subsidiary of Cincinnati Bell Enterprises Inc., is a 49 per-

cent partner in a joint venture with Anixter Bros., Inc. Cincin-

nati Bell Cellular Systems Company, a wholly-owned subsidiary

of Cincinnati Bell Enterprises Inc., is a 46 percent pariner

in a joint venture with American Information Technologies

Corporation. |

Vv

TABLE OF CONTENTS

Page

QUESTION RESTATED «oc cccsvcviccsidivanevsses i

STATEMENT REQUIRED BY RULE 28.1 .......... ii

TABLE OF AUTTHIOIRITIES «0 coe visccatccanncsveeas vi

COUNTERSTATEMENT OF THE CASE .....s006: 2

A. The Proceedings In The Trial Court .......... 2

B. The Decision Of The Court Of Appeals........ 8

REASONS FOR DENYING THE WRIT ............ 12

I. The Writ Is Predicated Upon The Same Factual

Contentions Of Bias That Were Rejected As “Un-

supported” By The Court Of Appeals ......... 12

Il. The Court Of Appeals Applied Established Legal

Principles In Concluding That, Under The Factual

Circumstances Presented, Petitioners Had Not

Established Reversible Error in the Trial Court’s

DOOMED 6 sik aces danke eaneeensdebnke boeeee 18

CONCLUBBTS cvs a ckcccissteesnecnueseavewepuees 25

vi

TABLE OF AUTHORITIES

Afshar v. Department of State, 702 F.2d 1125 (D.C.

Cae CO kv ccescdneadeeesaeae ee

City of Mishawaka v. American Electric Power Co.,

616 F.2d 976 (7th Cir. 1980), cert. denied, 449

CF COG CIGRE ie icicisccckekeoe cere

Crandell v. United States, 703 F.2d 74 (4th Cir.

Duplan Corp. v. Deering Milliken, Inc., 400 F.

See 497 COAG. PRIS) os vena ceaben deve

EEOC v. Union Camp Corp., 536 F. Supp. 64

Oe ee er re

FTC v. Cement Institute, 333 U.S. 683 (1948) ...

Gardiner v. A.H. Robins Co., 747 F.2d 1180 (8th

Cat, SOD o. a's 00d Ga carcae ee eee

Glictronix Corp. v. American Tel. & Tel. Co., 1985-1

Trade Cas. 966,340 (D.N.J. 1984) ...........

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

ee ee | errr eer ee ry

Hortonville Joint School Dist. No. 1 v. Hortonville

Educ. Ass'n, 426 U.S. 482 (1976).........e-

In re IBM Corp., 618 F.2d 923 (2d Cir. 1980) ...

In re Murchison, 349 U.S. 133 (1955) ..........

In re Union Leader Corp., 292 F.2d 381 (1st Cir.),

cert. denied, 368 U.S. 927 (1961) ............

Kincade v. General Tire & Rubber Co., 635 F.2d

Fae Ce Re Dee kkk ee veces se

Page

i, 20

Vil

Kotteakos v. United States, 328 U.S. 750 (1946) .

Knapp v. Kinsey, 232 F.2d 458 (6th Cir.), cert. de-

med, 352 US TREC icine ce cewceupedtends

Laird v. Tatum, 409 U.S. 824 (1972)...........

Lawtonvy. Tarr, 327 F. Supp. 670(E.D.N.C. 1971).

MCI Communications Corp. vy. American Tel. &

Tel. Co., 708 F.2d 1081 (7th Cir.), cert. denied,

oS eee 2 6 ery errr rere rere

Nicodemus v. Chrysler Corp., 596 F.2d {52 (6th

2 M.S reer rere ee ey ere

NLRB vy. Pittsburgh Steamship Co., 337 U.S. 656

bo | eee eT eee rr re eT rere ere

Ouachita Nat'l Bank v. Tosco Corp., 686 F.2d 1291

(8th Cir. 1982), on reh’g en banc, 716 F.2d 485

CO CO: FOE ks hea SGN i cn ¥5 een eed

Perkins v. North Carolina, 234 F. Supp. 333

efit fee, | reer rere rer Te rT re

Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir.

SRR cc cdvaceetineckeass been be saecevaas

Schweiker v. McClure, 456 U.S. 188 (1982) .....

Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378 (9th

Ce PEE vc kks we sek kd coke ae eeeeeeess

SEC v. Bartlett, 422 F.2d 475 (8th Cir. 1970) ...

Smith v. Danyo, 585 F.2d 83 (3d Cir. 1978) .....

Studiengesellschaft Kohle mbH v. Eastman Kodak

Co., 616 F.2d 1315 (Sth Cir.), cert. denied, 449

EEE HEGRE Siac bee cb ccc dsesedasekia

Page

18

22

23

24

i)

22

11

20

24

22

19

17

17

20, 24

Viil

Page

Tug Valley Recovery Center v. Watt, 703 F.2d 796

SPA SED cin ng dunn es edaes eabncbarbues 23

United States v. Baskes, 687 F.2d 165 (7th Cir.

oS Se ny eer ere ree eer re ee 20

United States v. Crescent Amusement Co., 323 U.S.

PERT Seip are a Sane Ray ae oth Sere eee eee 21

United States v. El Paso Natural Gas Co., 376 U.S.

SE CU 94nd ORES aC AW EEERD 21

“United States v. Fiat Motors of North America,

gic. S12 F. Sepp. 267 (DL. PCT). .s00kan. 20

United States vy. Grinnell Corp., 384 U.S. 563

SR 6 sac BOR eA aa bi 8 8 bee Mieeiiinn ae 17

United States v. Johnston, 268 U.S. 220 (1925) .. 17

United States v. Kelly, 539 F. Supp. 363 (D.D.C.

1982), rev'd on other grounds, 707 F.2d 1460

(D.C. Cir.), cert. denied, 104 S.Ct. 264 (1983) . 23

United States v. Kilpatrick, 575 F. Supp. 325 (D.

I OI che ae 24

United States v. Menk, 406 F.2d 124 (7th Cir.

1968), cert. denied, 395 U.S. 946 (1969) ...... 20

United States v. Morgan, 313 U.S. 409 (1941)... 19

United States v. PATCO, 527 F. Supp. 1344 (N.D.

8 ee eT rere eT rr eT Pree 20

United States v. State of Alabama, 582 F. Supp.

REPS CPt e es SD ks 5 Sheek bee ee ban wena 20

United States v. State of Washington, 641 F.2d

1368 (9th Cir. 1981), cert. denied, 454 U.S. 1143

| Se eee rere te 21

United States v. Western Electric Co., 569 F. Supp.

i057 (D.D.C. 1983)

Valentino v. United States Postal Service, 674 F.2d

56 (D.C. Cir. 1982)

Whitaker v. McLean, 118 F.2d 596 (D.C. Cir.

SR OCA SSH OOS OBR eeeeaegpanea en eeavwene es es 2 *

Page

21

23

24

20

No. 84-1080

In The

Supreme Court of the United States

October Term, 1984

SOUTHERN PACIFIC COMMUNICATIONS

COMPANY, e7 ai.,

Petitioners,

v.

AMERICAN TELEPHONE AND TELEGRAPH

COMPANY, e7 al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION

Petitioners (hereinafter “SPCC”’)' seek to have this Court

review that portion of the decision of the Court of Appeals for the

District of Columbia Circuit finding that they had failed to estab-

lish the factual predicates to their claim of bias against Judge

Charles R. Richey.’ Respondents (hereinafter “AT&T” ) demon-

strate below that this case does not warrant review by this Court.

The petition simply repeats the factual assertions presented by

‘Although petitioners herein are formally listed as Southern Pacific

Communications Company and Transportation Microwave Corpora-

tion, both companies were sold by the Southern Pacific Company to

GTE Corporation in 1983. The cause of action in this case was retained

by the Southern Pacific Company.

’The court of appeals’ decision is set forth in petitioners’ Appendix A

(hereinafter “App. A- °’). The trial court's decision is set forth in peti-

tioners’ Appendix B (hereinafter “App. B- "’).

?

®

2

SPCC to the court of appeals, while ignoring the court of appeals’

conclusion, after reviewing the matter thoroughly, that each of

these factual assertions was unsupported by the record. Thus, the

question actually presented by the case relates to factual issues,

not legal issues, and would require virtually de novo review by this

Court of the full record—a function which to respondents’ know-

ledge this Court has never undertaken in circumstances such as

these.

COUNTERSTATEMENT OF THE CASE

Although SPCC has submitted a “Statement of the Case”

focused upon the allegations underlying its antitrust claim (Pet.

at 4-10)—-allegations which AT&T disputes and which have al-

ready been rejected by the trial court and the court of appeals’ —

the merits of SPCC’s antitrust claims are not raised by the peti-

tion. Set forth below are the background facts relevant to an un-

derstanding of SPCC’s bias claim raised anew in this Court.

A. The Proceedings In The Trial Court

SPCC filed its complaint in 1978, alleging violations of Sec-

tions | and 2 of the Sherman Act and demanding a trial by jury.

AT&T promptly filed a motion to dismiss on the ground that the

conduct challenged by SPCC was subject to pervasive regulation

by the FCC and state agencies and was therefore immune from

challenge under the Sherman Act. In October 1978, the case was

assigned to Judge Richey. '~ July 1979, Judge Richey denied

AT&T's motion and ordered discovery to commence. After

’The conclusions of the court of appeals on the merits of SPCC’s

claims are set forth at App. A-42-60. SPCC’s Statement principally dis-

cusses SPCC’s claim that AT&T sought to drive out competition

through AT&T's “Telpak” and “Hi/Lo” tariffs. Not only did the court

of appeals here uphold the trial court's findings that neither tariff was

predatory or otherwise unlawful (App. A-42-53), but the Court of

Appeals for the Seventh Circuit in the MCI case similarly found both

Telpak and Hi/Lo to be lawful. MCI Communications Corp. v.

American Tel. & Tel. Co., 708 F.2d 1081, 1111-31 (7th Cir.), cert.

denied, 104 S.Ct. 234 (1983).

3

three years of discovery supervised by Judge Richey, and shortly

before trial was to begin, SPCC waived its jury demand for the

specific purpose of trying its case before Judge Richey.

In its opening statement, SPCC claimed that its evidence

would show conclusively that AT &T had violated its interconnec-

tion obligations under FCC decisions and had engaged in preda-

tory pricing of every one of its services that was in competition

with SPCC’s services. SPCC further asserted it would offer inter-

nal AT&T documents and speeches by AT&T executives that

would show that all of the conduct of AT&T was an intentional

effort to flout clear FCC requirements in order to destroy SPCC

and other similar companies.

Judge Richey was clearly impressed by this opening statement,

characterizing it as “brilliant” (Tr. 3270) and, at least at the

beginning of its case, Judge Richey doubtless expected that

SPCC would introduce the evidence it claimed it had in the open-

ing statement. Thus, early in the trial, when AT &T’s counsel de-

scribed SPCC’s case as “fabricated,” Judge Richey severely chas-

tized counsel and demanded that he apologize to SPCC’s counsel

(Tr. 938).

As the evidence came in during SPCC’s case-in-chief, however,

it became perfectly obvious that SPCC was not proving its

charges. Again and again, the testimony of SPCC’s witnesses was

contradicted by their own contemporaneous documents or was

refuted by other SPCC witnesses. Again and again, SPCC’s wit-

nesses conceded that they were unable to substantiate their al-

legations. Again and again, the internal documents cited by

SPCC as evidence of AT&T's anticompetitive intent did not

remotely support the contention. And again and again, SPCC’s

witnesses admitted that SPCC had never been injured by the

challenged conduct of AT&T.‘

‘Although the details of the problems of SPCC’s proof are not neces-

sary to an understanding of the bias issues before this Court, many of

(Footnote continued on next page.)

4

The shortfalls in SPCC’s proof plainly dismayed Judge Richey,

who repeatedly stated his “concern” over the voids and inconsis-

tencies in SPCC’s case (e.g., Tr. 805, 2182-83, 3490-91) and

frequently asked SPCC’s counsel if the court had “overlooked”

something in SPCC’s evidence, stating that he was “willing to be

shown” if SPCC had the evidence to support its claims (e.g., Tr.

1654, 2174, 2182, 2232-33, 3443). Judge Richey gave SPCC

every opportunity to present its case and to supplement its

evidence to provide more convincing proof to support its claims.”

Judge Richey also allowed SPCC’s counsel frequent opportuni-

ties to argue, in the midst of trial, what SPCC believed the

evidence showed and how it fit into SPCC’s theory of the case

(Footnote continued from previous page.)

these conflicts and inconsistencies—particularly those most disturbing

to Judge Richey—are noted in the trial court's findings of fact. Thus, for

example, during the trial Judge Richey stated his concern that the

credibility of SPCC’s entire case was undercut by the testimony of

Southern Pacific’s Chairman that he had never raised any of SPCC’s

complaints of unfair treatment with AT&T until just before the com-

plaint was filed, even though he met frequently with AT&T's Chairman,

both in connection with business matters and socially, during the period

SPCC alleged it was mistreated (Tr. 3490-91). Judge Richey reiterated

that view in his opinion (App. B-234), contrasting the lack of complaints

by SPCC with the testimony of a senior executive of General Electric

who stated that he would have immediately complained to AT&T's

Chairman if he thought AT&T employees were not giving his company

fair treatment (id.).

*During the trial itself, Judge Richey deferred ruling on AT&T's mo-

tion to strike SPCC’s damage study as inadequate, thus permitting

SPCC a further opportunity to show that its damage model was based

on reasonable assumptions, and permitting SPCC eventually to in-

troduce three different damage models (App. B-406); he denied

AT&T's motion to strike certain of SPCC’s allegations (Order, May 21,

1982), leaving “open the opportunity for plaintiffs to further explicate

their positions” (App. B-250); he allowed SPCC an additional oppor-

tunity to supplement the record at the close of its case (Tr. 3106); and he

deferred AT&T's motion to dismiss under Rule 41(b) after SPCC’s

case-in-chief, thereby requiring AT&T to present its defense.

5

(e.g., Tr. 785-866, 921-44, 1202, 1381-1450). SPCC’s counsel

“welcomed” the opportunity to obtain the judge’s reactions to the

evidence during the trial (Tr. 930-31, 1202, 1381-82, 1422,

1759), and often asked Judge Richey to give his comments, con-

cerns or questions to counsel (e.g., Tr. 2182). Ironically, much of

what SPCC now cites as “evidence” of bias originated in Judge

Richey’s informal comments about the evidence and arguments

presented by SPCC-—comments SPCC’s counsel invited and

which, at the time, SPCC’s counsel said he welcomed, thanking

the judge for his helpful candor.’

Although, in the informal atmosphere of a bench trial, Judge

Richey felt free to express openly questions and comments about

SPCC’s evidence, the judge emphasized at the outset that his

remarks should not be taken as indicating that he had reached a

conclusion on the merits (Tr. 866).’ Moreover, Judge Richey

made clear that the personal views he occasionally expressed in

the informal banter during these colloquies would not affect his

application of the antitrust laws to the evidence presented (Tr.

3982). Throughout the trial, Judge Richey stated that he had not

yet reached a conclusion on the merits (e.g., Tr. 1827, 6155), and

that he intended to decide the case properly on the full record at

*For example, in concluding a lengthy mid-case summary of SPCC’s

theory of liability, SPCC’s counsel said (Tr. 1422):

“MR. AILES [SPCC lead trial counsel]: Your Honor, again I

want to express my appreciation to you for the opportunity to

address some of these matters. I hope I have at least clarified our

stance with respect to them. You said the other day that you had

questions and were going to have them; and I say, as I began, that

we absolutely welcome the opportunity to address them and get our

comprehension of what the problem is all about before you.”

"In discussing the facts as he saw them, Judge Richey was not dog-

matic; rather, he would specifically ask whether there was anything in

the record contrary to the court’s impression, or whether SPCC’s coun-

sel disagreed with the comment (e.g., Tr. 127, 804-05, 2241-42, 3423).

6

the end of the trial.’ Indeed, he stated that it was his fervent desire

to make this case a model of fairness (e.g., Tr. 3101):

“I know that the day is going to come when one side, or per-

haps both, are going to be disappointed. The only thing that I

hope and pray is that when it is over, that those who are dis-

appointed, one or both sides, will at least feel that the Judge

tried to be fair.”

As the trial progressed, SPCC was never able to deliver on its

repeated promises to fill in the voids identified by the trial judge.

At the conclusion of SPCC’s case-in-chief, AT&T moved to dis-

miss SPCC’s action pursuant to Rule 41(b) of the Federal Rules

of Civil Procedure. The court recessed the trial to receive briefs

and to allow the parties oral argument on that motion, and several

days later the court informed the parties that the ruling on the

motion to dismiss would be deferred until ail the evidence was in.

During the presentation of AT&T's case, SPCC was unable to

make any headway whatever in establishing a basis for its claims.

And SPCC’s rebuttal case was even weaker than its case-

in-chief. For example, one of SPCC’s rebuttal witnesses in-

troduced a study of SPCC’s profits and sales records which, he

candidly conceded, could be interpreted as demonstrating that

there was no basis for concluding that SPCC had suffered any in-

jury at all from any action by AT&T (Brown, PX6-0031 at 3;

Brown Tr. 5946).

At the close of the record, both parties submitted proposed

findings of fact and conclusions of law pursuant to the trial court’s

*This critical point was emphasized repeatedly: Tr. 212 (“You can be

assured .. . [that] this Court is going to judge this case on the evidence

which the Court receives”); Tr. 938 (“[This case] is going to be done

right, without regard to whose ox is gored”); Tr. 1638 (“I expect to

spend a great deal of time in study with no phones or anything else, after

this is over. i #m not going to deliver my opinion from the bench’’); Tr.

1747-48 (“[T]he Court will . . . decide this case properly. If there is

anything I have ever wanted to do, it is to do that in this case because I

know how important it is”).

7

usual procedure. Not surprisingly given the huge record,’ each

side submitted proposed findings and conclusions that were sever-

al hundred pages in length. After working on his opinion for more

than five months, Judge Richey issued a 603-page decision giving

detailed consideration to the evidence presented on each of

SPCC’s claims. Although relying in large part on the proposed

findings prepared by AT&T (with editorial changes), and to a

lesser extent on those prepared by SPCC, Judge Richey also added

extensive additional findings— amounting to more than 100 pages

of material not taken from either party’s findings (see App. A-13).

Based on the entire record, the trial court concluded that SPCC

had not met its burden of proof and entered judgment for AT&T.

As a brief postscript to his comprehensive opinion, Judge

Richey included in the “Conclusion” section of his opinion some

personal observations about the nature of the issues in the case.

Noting the evidence that SPCC and other specialized carriers

served only routes between large cities where costs were low and

profits high, the judge stated his personal view that such competi-

tion would not promote the goal of universal service—reliable

low cost service for all (App. B-448-49). Quoting former FCC

Commissioner Benjamin L. Hooks, who had warned in a speech

in 1973 that such unequal competition might destroy the Bell

System and that destruction of the Bell System might have cata-

strophic effects upon the public (App. B-453-54), Judge Richey

expressed his concern that it may be necessary for Congress to

examine the problem of how the universal service goal can be

maintained in the future (App. B-449). Judge Richey further

stated his view that it was the FCC’s failure to take the initiative

and deal promptly with the issues, such as the proper costing stan-

dards to be used by AT&T in the pricing of its competitive service,

rather than any anticompetitive intent by AT &T, that had creat-

*The record below, which the court of appeals aptly described as

“enormous” (App. A-3), consisted of the written testimony of approx-

imately 175 witnesses, covering thousands of pages, over 5,900 pages of

oral testimony, and over 9,700 exhibits.

8

ed t.e series of disputes which eventually led to the antitrust

charyes litigated by SPCC. Judge Richey concluded: “Had the

FCC y\ot engaged in its usual regulatory lag and dealt forthrightly

and p.operly with the problems as they arose, then few, if any, of

the cases would now be before the antitrust Courts, such as this

one” (App. B-450).

These views were confined to the “Conclusion” section of the

opinion, and they were not relied on or mentioned by Judge

Richey as a basis for his findings that SPCC had failed to carry its

burden of proof under the Sherman Act. Indeed, far from reject-

ing the pro-competitive decisions of the FCC and the traditional

antitrust analysis of the Sherman Act, Judge Richey’s decision on

the merits found that AT&T’s conduct challenged by SPCC had

been in compliance with the FCC’s decisions and the Sherman

Act.

SPCC did not move for reconsideration by the trial court.

Several months later, however, it filed a Rule 60(b) motion

predicated on the argument—raised for the first time—that

Judge Richey should vacate his judgment for AT&T and enter

judgment for SPCC on collateral estoppel grounds. SPCC briefed

and argued this post-judgment motion before Judge Richey with-

out ever mentioning the bias claim that forms the only basis for its

petition to this Court.”

B. The Decision Of The Court Of Appeals

SPCC raised its bias claim for the first time in its appellate

brief. As in its petition in this Court, SPCC claimed in the court

of appeals that Judge Richey had approached the trial with a

fixed preconceived policy view that competition was wrong in the

telecommunications industry, and that this policy bias led him

"Judge Richey denied SPCC’s Rule 60(b) motion (App. D) and that

denial was affirmed by the court of appeals in a separate opinion (App.

C). SPCC has not sought review of that decision in this Court (see Pet. at

1 n.1).

9

to reject SPCC’s evidence, to discount the testimony of its key

witnesses, particularly those formerly employed by the FCC, and

to adopt mechanically the proposed findings submitted by

AT&T. To support these charges, SPCC pointed to a series of

quotations from Judge Richey’s comments and questions during

the trial as well as to the concluding portion of his opinion—the

same selected quotes presented in its petition here. Based on the

alleged bias, SPCC asked the court of appeals to reverse summari-

ly without further review of the record, or in the alternative, to

review the record only to determine whether or not the trial

court’s policy views “substantially influenced” the fact finding.

SPCC made no serious effort to seek reversal if the case were to be

reviewed under the clearly erroneous standard, effectively

conceding that there was substantial evidence in the record to

support each of the trial court’s findings (App. A-33 n.17).

The court of appeals, in an opinion for the unanimous panel

written by Judge Harry T. Edwards, was clearly troubled by the

fact that in this case the trial judge expressed personal opinions in

the concluding section of his findings of fact. While acknowledg-

ing that all judges have personal views on law or policy matters

that come before them (App. A-18-19), the court of appeals

apparently felt that given the importance of this case, this expres-

sion of personal views justified what it described as a “painstak-

ing” review of the entire record below in order to consider “‘with

the greatest of care” the bias allegation (App. A-4, A-5, A-31).

This thorough review delayed the issuance of the opinion for

several months (App. A-35). However, when it was completed,

the court of appeals concluded that SPCC had substantiated none

of its claims and indeed, that the full record contained strong

evidence contradicting SPCC’s assertions (App. A-31, A-34).

The court of appeals’ decision is based first on its finding that

SPCC had failed to establish “either prong” of its argument that

Judge Richey had approached the trial with a fixed, preconceived

policy bias (App. A-20). Although there was no question that, by

10

the end of the case, Judge Richey was convinced by the evidence

he had heard that AT&T had not violated the antitrust laws and,

indeed, had been correct in telling the FCC that competition

would have adverse effects on the public interest in universal tele-

phone service, the court of appeals found no support whatever in

the record for SPCC’s charge that Judge Richey held these views

before the trial. The court of appeals noted particularly that,

contrary to SPCC’s claim that Judge Richey never believed that

the antitrust laws should be applied to AT&T, he had denied

AT&T’s immunity motion before the trial and had revised that

view only in response to the evidence presented at trial (App. A-

20). As the court of appeals observed, this change in views, result-

ing from the evidence presented, “hardly supports SPCC’s charge

of bias” (App. A-20).

The court of appeals also found that, even assuming that Judge

Richey had begun the trial with personal views about competi-

tion, SPCC had failed to establish that he held these views with an

“irrevocably closed mind” (App. A-21). Citing Judge Richey’s

rulings denying AT &T’s motions to strike certain claims and dis-

miss at the close of SPCC’s case, the court found that “[o]nce

again, the evidence suggests the opposite” (App. A-21). The court

of appeals further emphasized Judge Richey’s repeated state-

ments during the trial that he had not yet reached a conclusion on

the merits, and the fact that Judge Richey had conducted a

scrupulously “fair trial’ —a fact which, the court of appeals

noted, even SPCC conceded when it expressly admitted that it

had never been foreclosed from introducing evidence or

arguments to support its position (App. A-16, A-21-22).

Having concluded that Judge Richey’s views were formed dur-

ing the trial, based upon the evidence presented, and that he did

not have an irrevocably closed mind during the trial, the court of

appeals went on to review SPCC’s claim that the judge’s personal

views, even if formed from the evidence presented, impermissibly

influenced his fact-finding on the merits. Again, after a detailed

1]

consideration of the record, the court of appeals rejected this con-

tention as unsupported, and indeed contradicted by the full

record.

The court of appeals found that there was “no evidence that the

Judge’s policy views impermissibly influenced” his rulings on the

merits (App. A-25). Indeed, the court of appeals observed, even

Judge Richey’s discussion of the ant ‘rust immunity question was

based upon his analysis of the antitrust question of whether

AT&T was subject to a pervasive scheme of regulation and not

his personal view on whether or not AT&T should have a mo-

nopoly in private line telecommunications services (App. A-24-

25). And the court of appeals found absolutely “no evidence” that

Judge Richey’s policy views influenced any other part of his opin-

ion on the merits of SPCC’s antitrust claim (App. A-25).

Finally, the court of appeals found no support for SPCC’s bias

claim in the fact that Judge Richey had ultimately ruled for

AT&T on virtually all of the disputed issues in the case. The court

rejected SPCC’s premise that a statistical analysis of the trial

court’s rulings could be used to show bias, noting (App. A-28)

that such an approach would leave the trial judge with “the

apprehension that if he makes a disproportionate number [of rul-

ings] in favor of one litigant, he will have created the impression

of bias” (quoting from In re IBM Corp., 618 F.2d 923, 929 (2d

Cir. 1980)). Relying on this Court’s decision in NLRB v. Pitts-

burgh Steamship Co., 337 U.S. 656, 659 (1949), the court of

appeals held that even a “total rejection of an opposed view can-

not of itself impugn the integrity or competence of a trier of fact”

(App. A-29).

Summarizing its review of the bias charges, the court of ap-

peals stressed again that it had (App. A-31).:

“examined the trial judge’s conduct in considerable detail.

We find the plaintiff's charges of bias to be unsupported by

the factors SPCC cites, whether considered individually or

together as a whole.”

12

As a result, the court of appeals “‘reject{ed]” the bias charge

and, based on that rejection, denied SPCC’s requests for sum-

mary reversal or abandonment of the clearly erroneous standard

in reviewing the merits (App. A-31). Affirming the trial court’s

decision, the court of appeals concluded that the decision could be

sustained on Judge Richey’s findings that AT&T’s conduct did

not violate the Sherman Act (App. A-42).

REASONS FOR DENYING THE WRIT

I. THE WRIT IS PREDICATED UPON THE SAME FAC-

TUAL CONTENTIONS OF BIAS THAT WERE REJECT-

ED AS “UNSUPPORTED” BY THE COURT OF AP-

PEALS.

SPCC’s petition for review of the court of appeals’ decision is

based upon a series of factual contentions—namely (1) that

Judge Richey “approached the trial of this case with the firm con-

viction that AT&T’s monopoly over private line services was in

the public interest” (Pet. at 12); (2) that his decisions on the mer-

its, including his credibility rulings and application of the Sher-

man Act standards to the facts, were “influenced” by these per-

sonal convictions (Pet. at 14); and (3) that as a result, he simply

copied in a “completely uncritical manner’ the proposed findings

submitted by AT&T (Pet. at 18). It is only because of “this com-

bination of factors” (Pet. at 20) that SPCC claims to be entitled

to a new trial. Moreover, implicit in SPCC’s entire argument is

the acknowledgement that absent SPCC’s factual contentions

that bias existed and that it improperly influenced the decision

and fact-finding process, SPCC has no claim that the court of ap-

peals committed error.

Every one of these factual contentions—and every single

record excerpt cited by SPCC to support these outlandish

charges—was examined by the court of appeals against the entire

record “with particular, even painstaking, care” (App. A-5). In

13

every instance, the court of appeals found that these factual con-

tentions were “unsupported by the factors SPCC cites, whether

considered individually or together as a whole” (App. A-31) and

further that the actual record “hardly supports SPCC’s charge of

bias” and indeed “suggests the opposite” (App. A-20, A-21).

Thus, SPCC’s first premise—that Judge Richey approached

the case from the outset with preconceived policy views opposed

to competition—is predicated entirely on the same record snip-

pets raised previously in the court of appeals, notwithstanding

the fact that in several instances the court of appeals took

specific note that the record citations reiicd on by SPCC were

quoted out of context or with a distorted meaning (see App. A-16

n.8; A-22 n.13)."" Moreover, SPCC does not even attempt to deal

with the court of appeals’ conclusion that Judge Richey’s early

ruling denying AT&T’s immunity motion effectively refutes

SPCC’s contention that Judge Richey had always believed that

AT&T’s conduct should be immune from the antitrust laws."

''There are numerous other examples of clear distortions of the record

in SPCC’s selective quotations. For example, SPCC asserts that the trial

court approached the trial from the outset with the firm belief that com-

petition in telecommunications was wrong as a matter of national policy

(Pet. at 14-15). Yet, very early in the trial, Judge Richey said, in a por-

tion of the transcript omitted from the excerpts quoted by SPCC, that he

viewed the competition permitted by the FCC as “a wholesome thing”

(Tr. 864).

SPCC also distorts the record below by changing Judge Richey’s

questions (Tr. 1415, 4146) into apparent affirmative statements (Pet. at

15 n.8). Other SPCC references (Pet. at 14 n.7) portray as Judge

Richey’s affirmative statements his quotations from the testimony of

former FCC Commissioner Benjamin L. Hooks (Hearing of March 30,

1983, Tr. 33) or his simple observation of the undisputed fact that many

federal and state regulators historically supported the Bell System's

franchised monopoly as being in the public interest (Tr. 6060).

"SPCC merely repeats in its petition its allegation raised in the court

of appeals that Judge Richey’s personal views “may” stem from his

service from 1967 to 1971 as General Counsel of the Maryland Public

Service Commission (Pet. at 17 n.12). However, SPCC fails to explain

(Footnote continued on next page.)

14

SPCC simply ignores these findings, and offers this Court no

reason for concluding that the court of appeals misinterpreted the

record on this question.

Likewise, SPCC’s argument that Judge Richey abdicated his

judicial responsibilities by “uncritically rubber-stamping” the

proposed findings submitted by AT&T (Pet. at 20) entirely

ignores the court of appeals’ finding that Judge Richey did not

mechanically copy AT&T's proposed findings in drafting his

decision, but rather edited those findings and elaborated on them

where he thought it necessary (App. A-26-27). Apart from

SPCC’s repeated insistence that Judge Richey’s findings were

copied uncritically, SPCC again does net provide any basis for

this Court to reexamine the record below.”’

SPCC’s claim that Judge Richey’s personal convictions im-

permissibly influenced his decision on the merits is also refuted

by the court of appeals’ finding that there was “no evidence that

the Judge’s policy views impermissibly influenced” his rulings

(Footnote continued from previous page.)

how this position, which did not directly involve SPCC or the issues in

this case, could have led the trial judge to a bias against SPCC or to a

prejudgment of the merits of SPCC’s claims. Moreover, SPCC clearly

knew of Judge Richey’s prior service when it waived its jury

demand—the fact was even mentioned at the pre-trial conference in

which SPCC announced its jury waiver (Hearing of February 22, 1982,

Tr. 3).

"SPCC asserts that mechanical copying is demonstrated by the fact

that Judge Richey adopted AT&T's proposed findings describing his

mental processes. In reviewing these same assertions, the court of

appeals found that AT&T's proposed findings had reflected Judge

Richey’s own comments expressed during the trial and thus the fact that

Judge Richey eventually adopted these findings did not lead to the

conclusion that they did not in fact represent his own thinking (App.

A-27). For example, SPCC cites an adopted finding Stating that “the

court has read every single document to which plaintiffs have directed its

attention.” As AT&T pointed out to the court of appeals, however, that

proposed finding was predicated on Judge Richey’s identical statements

during trial that he had, in fact, read every ducument offered by SPCC

(e.g.. Tr. 2182, 3146).

15

on the merits (App. A-25). (Emphasis supplied.) Nevertheless,

SPCC —citing the same matters it presented below as evidence of

improper influence —raises the issue in this Court as if the court

of appeals had never considered the question at all.”

The fact-bound nature of SPCC’s argument is perhaps best

exemplified by SPCC’s challenge to Judge Richey’s credibility

findings (Pet. at 26-28). SPCC claims that these credibility

findings “are based on grounds divorced from the accepted stan-

dards for judging credibility of expert witnesses” (Pet. at 28), and

thus can only be explained by an “FCC-phobia™ (Pet. at 16 n.11)

that led Judge Richey to disbelieve former FCC officials, such as

former FCC Common Carrier Bureau Chief Walter Hinchman,

who had played a role in opening up the telecommunications in-

dustry to competition (Pet. at 27). But SPCC’s fundamental

premise —that Judge Richey’s credibility conclusions had no

“SPCC asserts, for example, that Judge Richey did not base his im-

munity decision on the recognized standard of whether or not AT&T

was subject to “pervasive regulation” but rather on his personal views

(Pet. at 25). But the court of appeals found that Judge Richey had based

his decision on the fact that the conduct at issue was “pervasively

regulated,” a factual conclusion the court of appeals ultimately reversed

(App. A-25). The court of appeals, moreover, emphasized that the en-

tire immunity discussion, and Judge Richey’s expression of his own ob-

servations following that discussion, were all set forth in a “conclusion”

that was added “almost as an afterthought” (App. A-25 n.15) to his

opinion.

“SPCC challenges, for example, Judge Richey’s criticism of Mr.

Hinchman for removing documents from FCC files upon leaving the

Commission (Pet. at 16 n.11). Judge Richey found, and SPCC does not

dispute, that Mr. Hinchman removed documents from FCC files that

were subject to an AT&T subpoena and an outstanding retention order

issued by Judge Joseph C. Waddy in United States v. American Tel.

& Tel. Co., C.A. No. 74-1698 (D.D.C.) (Order dated February 20,

1975), and that Mr. Hinchman thereby deprived AT&T for several

years—up to the middle of the SPCC trial—of access to the only copy of

a crucial document supporting the reasonableness of AT &T’s tariffs. As

Judge Richey said, the removal of the document under these circum-

stances “{a]t the very least . . . impinges on the integrity of Mr. Hinch-

man” (App. B-116 0.94).

16

explanation apart from bias—was specifically rejected by the

court of appeals, which found that Judge Richey’s credibility

findings were in fact based on “legitimate considerations, such as

demeanor, objectivity, expertise, experience, and the logic of the

testimony” that “have a basis in the record” (A-30 n.16).”

And the court of appeals was unquestionably correct in viewing

the matter in these terms because the factual premise of SPCC’s

argument to the contrary —the existence of some kind of “FCC-

phobia”—cannot be squared with the fact that other FCC

officials, also prominent in opening up the telecommunications

industry to competition, were found to be credible by Judge

Richey.” The court of appeals’ holding that Judge Richey’s

credibility rulings did not demonstrate bias is, therefore, fully

supported by the record.”

Moreover, that holding is amply supported by precedent.

Courts relying on factual circumstances similar to those noted by

the court of appeals in this case have not hesitated to reject claims

of bias. This Court, for example, has found that a trial judge’s

statement during the trial that he had not yet made up his mind

"Indeed, District Judge Dickenson Debevoise, reviewing the

testimony of Mr. Hinchman from the SPCC trial in another case, con-

cluded, like Judge Richey, that the SPCC record called into question the

objectivity of Mr. Hinchman and his staff at the FCC and the

trustworthiness of the FCC decisions written under Mr. Hinchman’s

direction. Glictronix Corp. v. American Tel. & Tel. Co., 1985-1 Trade

Cas. € 66,340 (D.N.J. 1984).

"These former FCC officials included Jack Pettit, a former General

Counsel of the FGC, who assisted in the FCC's defense of its authority

to open the private line market to competition; Paul Darling, a former

Chief of the Common Carrier Bureau's Tariff Branch; and Stanford

Weinstein, one of Mr. Hinchman’s principal staff assistants.

"SPCC’s argument that Judge Richey uniformly found SPCC’s wit-

nesses to be unbelievable also rests upon a premise contradicted by the

record, for Judge Richey specifically found the testimony of SPCC’s

Chairman, Benjamin Biaggini, to be “convincing” and “forthright” and

Judge Richey described Mr. Biaggini as “a man whom I obviously re-

spected just almost on sight” (App. B-285; Tr. 3490).

a

17

was sufficient to refute a claim that the trial judge had determined

to rule against the defendant from the outset of the case. United

States v. Grinnell Corp., 384 U.S. 563, 583 (1966). Other cases

have found claims of bias to be unsupported by the record where

the trial judge had never prevented the party charging bias from

offering its evidence.” And bias charges have also been rejected

where the trial judge’s comments critical of a party or its wit-

nesses were supported by the record before him.”

In these circumstances, it is clear that SPCC’s petition is noth-

ing more than an effort to convince this Court with a few scat-

tered quotations from the record below that bias existed, notwith-

standing the court of appeals’ conclusion, after a review of the full

record, that the charges are unsupported. Such a purely factual

issue plainly does not warrant review by this Court.”

Moreover, the determination of the court of appeals that there

was “no evidence” to support SPCC’s claim that Judge Richey’s

personal opinions impermissibly influenced his decision on the

merits also puts to rest SPCC’s alternative claim here that the

court of appeals erred in reviewing the merits under the “clearly

erroneous” standard (Pet. at 23-24). SPCC’s claim that the clear-

ly erroneous standard is inappropriate in this case depends entire-

ly on a factual allegation that Judge Richey’s views in fact “sub-

"Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1383 (9th Cir. 1984)

(“Though he made no secret of his skepticism of appellants’ position, ap-

pellants were permitted to respond to the district court’s expressed con-

cerns to the best of their ability’’).

See, e.g.,SEC v. Bartlett, 422 F.2d 475, 481 (8th Cir. 1970) (“[a]

record which reflects an appropriate ground for a trial court’s observa-

tions refutes any claim of personal bias’’).

"See, e.g., United States v. Johnston, 268 U.S. 220, 227 (1925) (“We

do not grant certiorari to review evidence and discuss specific facts’’);

Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275

(1949) (the principal responsibility for assessing the record rests with

the court of appeals).

18

stantially influenced” his decision.” Because the court of appeals

first determined that there was “no evidence” to support such an

allegation, there can be no basis for concluding that the court of

appeals erred in then turning to review the merits under the clear-

ly erroneous standard. Indeed, once the factual contention of

“substantial influence” is disposed of, SPCC does not raise any

claim that the court of appeals erred in its review of the substan-

tive antitrust charges.

Il. THE COURT OF APPEALS APPLIED ESTABLISHED

LEGAL PRINCIPLES IN CONCLUDING THAT, UN-

DER THE FACTUAL CIRCUMSTANCES PRESENTED,

PETITIONERS HAD NOT ESTABLISHED REVERS-

IBLE ERROR IN THE TRIAL COURT'S DECISION.

In an effort to turn its argument into something other than a

purely factual controversy, SPCC also claims that the court of ap-

peals erred in engaging in a “presumption of regularity” (Pet. at

23)—that is, a presumption that the trial judge decided the case

on the merits, rather than on his personal views, and that the

findings of fact he signed did in fact reflect his consideration of

the case. SPCC argues that, under the circumstances it alleged,

the court of appeals should have abandoned the presumption of

regularity in this case (Pet. at 23).

“SPCC bases its claim on Kotteakos v. United States, 328 U.S. 750

(1946), holding that an error found by the court of appeals in the deci-

sion of a trial court will require reversal where the court of appeals de-

termines that the error had a “substantial influence” on the decision.

Kotteakos, however, also emphasizes that (id. at 764):

“If, when all is said and done, the conviction is sure that the error

did not influence the [trier of fact], or had but very slight influence,

the verdict and the judgment should stand... .”

The court of appeals’ finding that there was no evidence that Judge

Richey’s views impermissibly influenced the outcome of the case plainly

fulfills the requirements of Kotteakos.

19

Essentially, what SPCC is arguing is that even though a review

of the record provides no support for its claims, the court of ap-

peals should have assumed~ solely from the fact that Judge

Richey expressed personal views during the trial and ultimately

ruled for AT&T on the merits that he was biased and permitted

his personal views to intrude on his judicial role, unless it can be

proved otherwise. Such an argument is absurd and wholly without

precedent, as is apparent from the petition itself. Indeed, it is

flatly contrary to a whole line Of decisions of this Court.

United States v. Morgan, 313 U.S. 409 (1941), is directly in

point. In that case, the Court upheld the very presumption of

regularity attacked here. In doing so, the Court rejected a claim

that an administrative official charged with deciding an issue was

biased because he had written a letter to the New York Times cri-

ticizing a decision of this Court in a matter that was remanded to

him. Holding that disqualifying bias had not been shown, the

Court said (id. at 421):

“That [the Secretary of Agriculture] not merely held but ex-

pressed strong views on matters believed by him to have been

in issue, did not unfit him for exercising his duty in sub-

sequent proceedings ordered by this Court. . . . Cabinet

officers charged by Congress with adjudicatory functions are

not assumed to be flabby creatures any more than judges are.

Both may have an underlying philosophy in approaching a

specific case. But both are assumed to be men of conscience

and intellectual discipline, capable of judging a particular

controversy fairly on the basis of its own circumstances.

Nothing in this record disturbs such an assumption.” (Em-

phasis supplied. )

In Schweiker v. McClure, 456 U.S. 188, 195-96 (1982), the

Court unanimously reaffirmed the presumption recognized in

Morgan and, in doing so, made clear that the very argument now

advanced by SPCC — that the burden of pursuasion ought to be

placed on the party defending regularity - will not be accepted:

“As this Court repeatedly has recognized, due process

demands impartiality on the part of those who function in

20

judicial or quasi-judicial capacities. We must start, however,

from the presumption that [judicial or quasi-judicial

officers ] are unbiased. This presumption can be rebutted by a

showing of conflict of interest or some other specific reason

for disqualification. But the burden of establishing a dis-

qualifying interest rests on the party making the assertion.”

(Emphasis supplied, footnotes and citations omitted. )”

Similar explicit acknowledgements of a presumption of rezularity

in the face of bias charges are found in other opinions of this

Court,” and in the opinions of lower federal courts.”

The presumption of regularity attacked by SPCC has also been

recognized and consistently applied in cases in which the trial

®SPCC relies on In re Murchison, 349 U.S. 133 (1955), for the gener-

al principle that a fair trial by an impartial judge is a fundamental

element of due process (Pet. at 13, 19). As the foregoing quotation from

Schweiker v. McClure, supra, makes clear, due process requirements do

not preclude the use of an initial presumption of regularity. Indeed, in

Withrow v. Larkin, 421 U.S. 35 (1975), this Court specifically held that

such a presumption existed (id. at 55) and stated that nothing in Mur-

chison required a different result (id. at 53-54).

*Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass'n, 426

U.S. 482, 493 (1976) (“Nor is a decisionmaker disqualified simply

because he has taken a position, even in public, on a policy issue related

to the dispute, in the absence of a showing that he is not ‘capable of judg-

ing a particular controversy fairly on the basis of its own circum-

stances’); Withrow v. Larkin, 421 U.S. 35, 55 (1975) (state adminis-

trators are “assumed” to be able to fairly decide an issue on the evidence

presented absent some “showing to the contrary”).

*See, e.g., Ouachita Nat'l Bank v. Tosco Corp., 686 F.2d 1291, 1300

(8th Cir. 1982), opinion adopted in relevant part by rehearing en banc,

716 F.2d 485 (1983); United States v. Baskes, 687 F.2d 165, 170 (7th

Cir. 1981); United States v. Menk, 406 F.2d 124, 127 (7th Cir. 1968),

cert. denied, 395 U.S. 946 (1969); In re Union Leader Corp., 292 F.2d

381, 389 (Ist Cir.), cert. denied, 368 U.S. 927 (1961); United States v.

State of Alabama, 582 F. Supp. 1197, 1201 (N.D. Ala. 1984); United

States v. Fiat Motors of North America, Inc., 512 F. Supp. 247, 251

(D.D.C. 1981); United States v. PATCO, 527 F. Supp. 1344, 1356

(N.D. Ill. 1981); Smith v. Danyo, 441 F. Supp. 171, 175 (M.D. Pa.

1977), aff'd, 585 F.2d 83 (3d Cir. 1978); Duplan Corp. v. Deering Milli-

ken, Inc., 400 F. Supp. 497, 515 (D.S.C. 1975).

21

court made extensive use of the proposed findings of a party, or

copied proposed findings verbatim. This Court has presumed,

absent some specific showing to the contrary, that findings of fact

signed by the trial judge do indeed reflect the trial judge’s con-

sidered opinion on the merits.” The decisions of the courts of ap-

peals uniformly hold that even findings copied verbatim are

nevertheless to be treated for purposes of appellate review as the

findings of the trial court.” Where, as here, there is affirmative

evidence that the trial judge in fact edited and expanded on the

proposed findings, the presumption that the adopted findings do

reflect the trial judge’s considered opinion on the merits is a

fortiori justified.”

The decisions relied on by SPCC (Pet. at 20) involved factual

circumstances entirely different from the case at bar. As the court

of appeals observed (App. A-30-31), in almost all of these cases,

*United States v. El Paso Natural Gas Co., 376 U.S. 651, 656-57

(1964) (the findings of fact “though not the product of the workings of

the district judge’s mind, are formally his; they are not to be rejected

out-of-hand and they wil! stand if supported by the evidence’’) (empha-

sis supplied); United States v. Crescent Amusement Co., 323 U.S. 173

(1944).

"See, e.g., United States v. State of Washington, 641 F.2d 1368, 1371

(9th Cir. 1981), cert. denied, 454 U.S. 1143 (1982); Kincade v. General

Tire & Rubber Co., 635 F.2d 501, 504 (Sth Cir. 1981); City of Misha-

waka v. American Electric Power Co., 616 F.2d 976 (7th Cir. 1980),

cert. denied, 449 U.S. 1096 (1981). Accord Afshar v. Department of

State, 702 F.2d 1125, 1144 (D.C. Cir. 1983), Valentino v. United States

Postal Service, 674 F.2d 56, 60 n.2 (D.C. Cir. 1982).

“See, e.g., Studiengesellschaft Kohle mbH v. Eastman Kodak Co.,

616 F.2d 1315, 1323 (Sth Cir.), cert. denied, 449 U.S. 1014 (1980):

“We note first that the District Court did not adopt Eastman’s

findings verbatim. There was considerable reworking of Eastman’s

proposed findings; some were omitted, while others were rear-

ranged, reworded, or otherwise revised. These revisions indicate

that the Court was working through the analysis on its own, but

finding itself in agreement with Eastman’s position. There is ab-

solutely nothing improper with this.”

22

the trial court’s conduct during the trial plainly deprived the

aggrieved party of due process by interfering with that party’s

ability to present its case or conduct cross-examination fairly and

completely And in all of these cases, the trial judge made state-

ments before rendering his final decision on the merits that

demonstrated persoral hostility towards a party, and a closed

mind on the merits.” Nothing of that kind happened in this case.

And certainly, none of these cases stands for the proposition that

the presumption of regularity in judicial proceedings is unwar-

ranted under the circumstances presented here.

Thus, SPCC’s attack upon the court of appeals’ reliance on the

presumption of regularity —like its direct attack upon that court’s

factual findings—must fail. The presumption of regularity is an

established principle recognized by this Court, applied throughout

the federal judicial system, and necessary to the effective admin-

“Crandell v. United States, 703 F.2d 74, 76-77 (4th Cir. 1983) (the

trial court committed “demonstrable @rror” in interfering with the tes-

timony of plaintiffs’ expert witness and in preventing effective cross-

examination of defendant’s expert witness); Reserve Mining Co. v. Lord,

529 F.2d 181, 185 (8th Cir. 1976) (the court held a hearing without giv-

ing notice to Reserve, permitted Reserve no opportunity to cross-

examine witnesses, sua sponte called witnesses to testify, testified on its

own behalf, and “dispensed with the usual adversary proceeding”’);

Knapp v. Kinsey, 232 F.2d 458, 462-64 (6th Cir.), cert. denied, 352 US.

892 (1956) (the court offered to pay personally for an auditor to be hired

by plaintiff for its case, had ex parte contacts with a witness for plaintiff,

sua sponte called a member of the audience to the stand to interrogate

him as to why he was present at the trial, and suggested possible wit-

nesses and lines of questions to plaintiff's counsel); Nicodemus v. Chrys-

ler Corp., 596 F.2d 152, 155 (6th Cir. 1979) (the trial judge made state-

ments about the motives of Chrysler during the trial that were “both

unsupported by the record and unnecessary in the circumstances’’).

The Eighth Circuit’s recent decision in Gardiner v. A.H. Robins Co.,

747 F.2d 1180 (8th Cir. 1984), is fully consistent with this exceptional

line of cases. In that case, the court of appeals focused on the fact that

the trial judge, without hearing any evidence, publicly censured in the

severest terms the top executives of Robins. The Eighth Circuit also

noted that the trial judge had freely admitted that he had become an

“advocate” for plaintiff and that “I am prejudiced at this point,” and

that Robins’ counsel had registered an immediate protest to the judge’s

comments—all factors missing in this case.

23

istration of justice. Without it, the court system would be overrun

with baseless claims of bias and prejudgment, for virtually all

trial judges have had some potentially relevant preappointment

experience that arguably might color their views of the merits, or

may have previously expressed their personal or professional

opinion on legal or policy issues involved in a case.” Moreover,

trial judges invariably form opinions on the matters at issue

before them, and will naturally express those views.” Nor is it

unusual or improper for trial judges to use their opinions to call a

perceived problem to the attention of the legislature, the respon-

sible regulatory agency or higher courts.” In none of these cases

See, e.g., Laird v. Tatum, 409 U.S. 824, 835 (1972) (Memorandum

of Rehnquist, J.) (“[I]t is not a ground for disqualification that a judge

has prior to his nomination expressed his then understanding of some

particular provision of the Constitution’). See also Tug Valley

Recovery Center v. Watt, 703 F.2d 796, 802 (4th Cir. 1983) (“A crimi-

nal defendant may be tried before a judge who was once a prosecutor,

and a former legal aid attorney appointed to the bench may preside over

a food stamp entitlement case’’).

"See, e.g., In re IBM Corp., 618 F.2d 923, 930 (2d Cir. 1980) (a

finding of bias cannot be based on the trial court’s rulings, or reactions to

the evidence or witnesses at trial, because it is the court’s duty to form

opinions on these matters in order to reach a decision based on the

evidence); Whitaker v. McLean, 118 F.2d 596 (D.C. Cir. 1941) (“[m]ild

expressions of feeling [by judges] are as hard to avoid as the feeling it-

self”’).

* Judge Harold H. Greene, in the course of ruling on issues related to

the modified final judgment in United States v. Western Electric Co.,

No. 82-0192 (D.D.C.), has expressed his personal views on the public

benefits of universal telephone s*rvice in comments that parallel those of

Judge Richey in the present case. Judge Greene has openly criticized the

FCC’s Access Charge Order as contrary to the public interest because it

“unnecessarily jeopardizes” the goal of universal service. See 569 F.

Supp. 1057, 1091 (D.D.C. 1983); Hearing of June 2, 1983 at Tr. 25465-

67; Address by Harold H. Greene before the Consumer Federation of

America, February 17, 1984 at 9-10 (calling on the FCC to modify its

policies).

Other cases in which the trial court’s vpinion contains strong state-

ments of personal views include: United States v. Kelly, 539 F. Supp.

363, 373, 377-78 (D.D.C. 1982), rev'd on other grounds, 707 F.2d 1460

(Footnote continued on next page.)

24

has the expression of such views been found to constitute bias.”

The court of appeals’ decision in this case thus falls squarely in

the mainstream of judicial precedent. As required by the pre-

sumption of regularity, the court viewed the issues of bias and

personal prejudgment as issues with respect to which SPCC had

the burden of persuasion. And as noted above, it examined every

argument advanced and every fact cited by SPCC in support of its

charges. Thus, SPCC’s real complaint is not that the court of ap-

peals failed to act in accordance with the law but that it found

more than sufficient evidence in the record to conclude that Judge

Richey did not approach the case with a preconceived view of

(Footnote continued from previous page.)

(D.C. Cir.), cert. denied, 104 S.Ct. 264 (1983) (criticizing the

““Abscam” operation as “offensive to me” and a “loose cannon rolling

around the deck of the criminal justice system”); Perkins v. North Caro-

lina, 234 F. Supp. 333, 340 (W.D.N.C. 1964) (Craven, J.) (calling on

the North Carolina legislature to revise its statute which made homosex-

ual acts a felony with a sentence of 5 to 60 years imprisonment); United

States v. Kilpatrick, 575 F. Supp. 325 (D. Colo. 1983) (sharply criticiz-

ing the conduct of the IRS in conducting the grand jury investigation at

issue); EEOC v. Union Camp Corp., 536 F. Supp. 64, 66 (W.D. Mich.

1982) (criticizing the litigation policies of the EEOC). See also Dronen-

burg v. Zech, 746 F.2d 1579, 1583 (D.C. Cir. 1984) (Statement of Bork,

J.).

*Indeed, the presumption of regularity has not been disturbed even

when the judge has expressed views that appear to indicate that the

judge does not personally agree with certain policies touching on an is-

sue in the case before him. See, e.g., Whitehurst v. Wright, 592 F.2d 834,

837-38 (Sth Cir. 1979) (district court’s statement did not constitute bias

where court, prior to ruling for defendants in suit against city mayor and

police chief for civil rights violation, said that “I don’t think people

ought to be sued lightly. To be sued within itself is a pretty severe pun-

ishment and it bothers me a good deal that people get sued for doing

their duty”); Smith v. Danyo, 585 F.2d 83, 87 (3d Cir. 1978) (rejecting a

bias claim in a diversity personal injury case based on prior statement of

the trial judge that he did not believe that diversity personal injury cases

belonged in federal court); Lawton v. Tarr, 327 F. Supp. 670 (E.D.N.C.

1971) (Judge Craven’s admitted “vehement opposition” to Vietnam

War, expressed in a speech and in letters to President Johnson, did not

require disqualification in a selective service case).

25

the merits; that he maintained an open mind throughout the

trial;* that the findings he signed in fact reflected his analysis of

the merits;* and that he did not permit his personal views to

influence impermissibly the decision on the merits.”

In sum, the court of appeals properly held, using well-estab-

lished principles laid down by this Court, that SPCC had not es-

tablished its claim of bias. SPCC has provided neither applicable

precedent nor any reasoned basis for this Court to review that

decision, and the petition should accordingly be denied.

CONCLUSION

By answering in some detail the charges raised by SPCC

against Judge Richey, AT&T does not mean to imply that these

charges are anything other than wholly baseless and irresponsi-

ble. As the court of appeals determined, a review of the record in

this case leads to only one conclusion—that Judge Richey con-

ducted a trial that was a model of fairness, that he carefully

reviewed the evidence before him, and that he ruled on the merits

using fully appropriate legal standards. In short, Judge Richey’s

resolution of the case was consistent with the highest standards of

the judicial system. Moreover, even the personal views expressed

by Judge Richey at the end of his decision are difficult to criticize.

Indeed, many believe that they only make him seem to be a proph-

“In reviewing the record the court of appeals specifically employed the

test annouaced by this Court in FTC v. Cement Institute, 333 U.S. 683,

701 (1948)—whether the record showed that the trial court manifested

“an irrevocably closed mind” to the merits of the case (App. A-19).

“In rejecting SPCC’s argument the court of appeals said: “[e]ven .

apart from our presumption of regularity, however, we find that there is

reason to believe that the Memorandum Opinion may reflect the actual

thinking of the District Judge on the issues” (App. A-26-27).

“Indeed, Judge Richey had emphasized during the trial that he would

not permit his personal views to interfere with the proper antitrust

analysis (Tr. 3982) and that he would decide the case “properly” after

“a great deal of time in study” (Tr. 1747-48, 1638).

e

26

et in light of the events that have occurred since those views were

expressed.

Litigants are entitled to one fair trial on the merits; but dis-

satisfaction with the result does not mean that the trial was not

fair. Nor does it justify a vicious attack upon the trial judge in the

hope that an appellate court will let the losing side start the case

again before another trier of fact. Yet, at bottom, that is what

SPCC did in the court of appeals and what it is now doing in this

Court. SPCC chose to try its case to Judge Richey, thanked him

at the end of the trial for his “patience” and “goodwill towards

the parties” (Tr. 6048), but now attacks him as biased and un-

professional because he ruled against SPCC on the merits. Re-

spondents respectfully submit that SPCC’s assertions are patent-

ly frivolous—as already determined by the court of appeals—and

do not belong in this Court.

For the above stated reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

GEORGE L. SAUNDERS, JR.*

THEODORE N. MILLER

One First National Plaza

Chicago, Illinois 60603

(312) 853-7000

Of Counsel:

HOWARD J. TRIENENS MICHAEL S. YAUCH

Jim G. KILPATRIC C. JOHN BURESH

KATHLEEN F. CARROLL STEWART A. BLOCK

J. Davip STONER 1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 429-4000

SIDLEY & AUSTIN Attorneys for Respondents

February 2, 1985

*Counsel of Record