Amicus Curiae Brief — Chandler v. Judicial Council of the Tenth Circuit of the United States
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pe ie SC OER ESC.
———
ie
gn the Supreme Court af the Waited States |
~ OoroBeR TERM, 1969
SrePHEN S. CHANDLER, Uyrrep Staves District Jupar
SroR THE WESTERN District OFr‘OKLAHOMA, PETITIONER
oS oar!
JupictaL Counct, or THE TENTH CIRCUIT
ON cand FOR LEAVE TO, FIDE A PETITION FOR A WRIT OF
PRORUBTTION AND/OR MANDAM os
‘BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
_ ERWiN N. GRISWOLD,
Solicitor General,
PHILIP A. LACOVARA,
Assistant to, the Solicitor. General, .
Department of Justice,
Washington, D.C. 20530.
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Na.
INDEX
Page
NE 6. ab bedniimgucdamnacsnidnnasecnen aga 1
Tig IA ES a REET EARNS EDR SK RE Aly Par BS 2
Ne PE. ds cca kedcksi wees eonemnneen 2
NP I nt aa 3
a al ara ow at Layo ghana acdsee teas A SRT ae 4
Senne tn OROUNIDDS. oo oo aca ok oe sneed neues 12
_ Argument:
; I. This Court has jurisdiction to entertain the peti-
tion for a writ of mandamus or prohibition _ - - - 14
A. At least when its orders are directed to a
district judge to regulate the exercise of
his official duties, a judicial council is
acting as a judicial tribunal for purposes
of this Court’s appellate jurisdiction
under Article III of the Constitution. —- 15
B. This Court possesses sufficient statutory
authority to entertain this petition for
an extraordinary remedy____.-___---- 21
II. In the present posture of the case, petitioner is not
entstied to any reliel. _ ... 2. 255k e eee ec eoese 31
A. The first order entered by the judicial
counsel, even if objectionable, has been
i cg OO EE Nor 32
B. The assignment order currently in effect
is within the lawful authority of the
euaneel Coaneal. ........ ...2-6<00-- 39
Rs wtinudaend cu deGe une Weadusteh ened yeas 51
CITATIONS
Cases:
ACF Industries, Inc. v. Guinn, 384 F. 2d 15, certiorari
memien, O00 US. ONO... ow wenn ccc teens 34
Bradley, Ex parte, 7 Wall. 364...--.------------ 21, 27, 29
Se eee eee 40
Carroll v. United States, 354 U.S. 394... _._.___----- 21, 26
(1)
362-689—69——-1
Pe Veta
Cases—Continued wee
Case v. United States, 14 F. 2d 510__-__--_-----_____ 40
Clark v. United States, 109 Ct. Cl. 444, certiorari
ied, $6 OS. Oe .. ......-...-. 36
Ce, et I, OU On cnc cacccbannncnemen 17, 23
DeBeers Consolidated Mines, Lid. v. United States, 325
Se RANEY, api peepipaperr ery Ure 2essilerpefiey genoa eed 22, 31
Federal Trade Commission v. Dean Foods Co., 384 US.
REP NG ae SIN oS esol ad gode See 2 omnes 31
Gladstein v. McLaughlin, 230 F. 2d 762_.___.-_---__- 35
es ee a; BE he Bi boa cen neces edsccua oe. 31
Sa, 2 Ps BOE Wis BO irene ewes Nodncaewlene 21
Hlennen, Matter of, 13 Pet. 230...............-..... 34
Hobson v. Hansen, 265 F. Supp. 902 certiorari dis-
es BE On ss oan vrcen ad dadeuenaes -cecdc 33
Humphrey's Executor v. United States, 295 U.S 602. a 33
Jimenez v. Aristeguieta, 311 F. 2d 547, certiorari
OO ee ie ce ew a hank ancan ewan 42
Josephoon, In re, 218 F. 2d 174... ........-..2----02 24, 25
La Buy v. Howes Leather Co., 352 U.S. 249.._.__---- 26, 34
Laughlin v. Wheat, 95 F. 2d 101_-...---------.------ 28, 38
Marbury v. Madison, 1 Cranch 137_-------- 15, 16, 21, 23, 27
Maryland v. Soper (No. 1), 270 U.S. 9..._-.-------- 17, 24
Massachusetts, In re, 197 U.S. 482__-.____-------__- 31
McCardle, Ex parte, 7 Wall. 506___..-------------- 26
McClellan v. Carland, 217 U.S. 268..........------- 31
Myers v. United States, 272 U.S. 52_-..-------------- 33
National Labor Relations Board, In re, 304 U.S. 486__ 24
O’ Bryan v. Chandler, 352 F. 2d 987, certiorari denied,
Sn ee er ee ee 5
Occidental Pvtroleum Corp. v. Chandler, 303 F. 2d 55,
certiorari denied, 372 U.S. 915............-...-- 6, 35, 37
Republic of Peru, Ex parte, 318 U.S. 578____---- 17, 27, 28, 31
Robinson, Ex parte, 19 Wall. 505___--------------- 21, 27, 37
Roche v. Evaporated Milk Association, 319 U.S. 21___- 31
Gispeld, Ha parte, 100 US. S71... .~ 5.225255 33
Sniadach v. Family Finance Corp. of Bay View, 395
SER eee at non nae aha asladiwe whe 38
Stephan v. United States, 319 U.S. 423___._---------- 21, 26
Stern v. South Chester Tube Company, 390 U.S. 606. -- 28
Texaco, Inc. v. Chandler, 354 F. 2d 655, certiorari
te Be SAGs WIG bo rea mode tneoecaesaon. _. 6,35
Cases—Continued Page
Textile Mills Securities Corp. v. Commissioner of
Internal Revenue, 314 U.S. 326_._.-.------ Pa a 20
United States, Ex parte, 297 U.S. 241_____---------- 31
United States v. King, 395 U.S. 1__---.------------ 28
United States vy. Malmin, 272 Fed. 785____---------- 29, 30
United States v. Ritter, 273 F. 2d 30, certiorari denied,
I a keel 35
United States Alkali Export Ass’n, Inc. v. United
ee Ete Se Ceacans wun ined awanaonee 22
Vapeie v. Ret, 100 UB. 913. ... 2... nce esncnses 24
Wall, Ex parte, 107 U.S. 265---.--------------- 21, 33, 37
Will v. United States, 389 U.S. 90......------------ 28
ee Oe PE Ee SI Bick we ccnscccccncacuasasens 17, 21
Pe, Fee ONE 6 Wee OB 6 win ns ken ncawensccsecns 17
Constitution and statutes:
United States Constitution:
Asticte I, Sections 3 and 3..............-.0:.. 33
St ae SE rs oi nace chow dannudakuan 33
5. eae Mpc tienes. 14, 16, 17, 21, 27, 33
Act of April 30, 1790, §21, Stat. 117 (mow 18
Se. ee an a Sawa eeee Gekko 34
Act of August 7, 1939, 53 Stat. 1223, Section 302___-- 17
Administrative Procedure Act, 5 U.S.C. 551(1)(B)-- 28
All Writs Act:
ee ee tS, FP feds ve 4, 13, 24, 29, 31
er Ma eS oe 22, 25, 26
Declaratory Judgment Act, 28 U.S.C. 2201__-__-_-- 28
First Judiciary Act, 1 Stat. 80, et seq.:
I el he ae 23, 25, 25, 26, 29
TI Oo a | ee audee ke 23, 24, 25, 26
Judicial Code of 1911, 36 Stat. 1090:
Section 23 (28 U.S.C. (1940 ed.) 27____-------- 39
Section 234 (28 U.S.C. (1940 ed.) 342)__._____-- 25
Section 262 (28 U.S.C. (1940 ed.) 377)_____-_-- a 25
Revised Statutes §} 688 and 751_______---------_-- 25
See Seats Re oon ook eos wnone sauces oe 34
Ses i anGuacdensocscedanesneeseauns 46
we SG tering okteuowaskecenecess 4
gis te. ore ager a dee a pice tres nae heats 29
Ee Sh, le onncauee. «csacks 3, 9, 10, 14, 39, 41, 50
Si YO OORT ORO
PNR aE POS PS Sve
Constitution, statutes, and regulations—Continued
IV
P,
MN WA oss cre adie cacehanc ide saaditccacec sd
, gir toe eee 3, 5, 6, 9, 14, 18, 20, 39, 41, 46, 48, 50
Ue eee 35
DN ici ecigs 5S cosas dake. 18
er ee ee 1g
ON BO ln octets dacs eo wkavc aks. 98
Ue eg 28
28 U.S.C. (Supp. IV) 1407 (d) and (e)____-__-______. 29
§ U.S.C. (Supp. IV) 551(1)(B)_---.-.....-....._..- 28
Miscellaneous:
Annals of Congress, 4th Cong., 2d Sess., col. 2320..._ 35
- Annals of Congress, 7th Cong., Ist Sess., cols. 71-72-. 35
Brown, The Impeachment of the Federal Judiciary, 26
Bene Ea Bee. NE CEO oo oo ke voce eokennce 36
Chandler, Some Major Advances in the Federal Judicial
Ne ae; | ee 18, 42
De OE ac eS cual pete vote aeaceks 35
a es Ws Meee A os es cae ens wid ewe ck 18
Hearings on Administration of United States Courts
before the House Judiciary Committee, 76th Cong.,
Se egg acs eh tte ae he 18, 42, 44, 45, 48
Hearings on Administration of United States Courts
before a Subcommittee of the Senate Judiciary Com-
mittee, 76th Cong., 1st Sess. (1939) - __-- 19, 42, 43, 45, 49
Hearings on The Judicial Reform Act, S. 3055., etc.,
before the Senate Subcommittee on Improvements in
Judicial Machinery, Committee on the Judiciary,
oe a | eee 36, 37
Hearing on S. 1506 before the Senate Judiciary Sub-
committee on Improvements in Judicial Machinery,
91st Cong., Ist Sess. (held in June 1969)________-- 36
3 Hinds, Precedents of the House of Representatives, p.
982, American State Papers (Misc.), Vol. 1, p. 151-. 34
H. Rep. No. 814, 75th Cong., Ist Sess.__________--- 36
H. Rep. No. 702, 76th Cong., Ist Sess. (1939) -__---- 19
Se ey oe ee eee eee 36
Mason, William Howard Taft; Chief Justice (1965) - - - 42
Moore, Judicial Trial and Removal of Federal Judges,
a ees ak eee eee Cent. |. os ne ee woue 36
Note, The Exclusiveness of the Impeachment Power
under the Constitution, 51 Harv. L. Rev. 330 (1937)__ 20, 36
Miscellaneous—Continued Page
Note, 22 Mass. L. Quar. 52 (July—Sept., 1937)_.----- 36
Note, Trial of Good Behavior of Federal Judges, 29 Va.
i eS I ae eel in oe wow a le 36
Otis, A Proposed Tribunal: Is it Constitutional? 7
Cenees Cite ia Boe. © C08)... ----.+.......-6-- 36
Report on the Powers and Responsibilities of the Judicial
Councils, H. Doc. No. 201, 87th Cong., Ist Sess.
Ne eae tO nan nh cha awe meen 45, 46, 48
Ross, ““Good Behavior’ of Federal Judges, 12 Kansas
Cie i. Sev. 100 C0... ...........-....----.-- 36
S. Rep. No. 426, 76th Cong., 1st Sess. (1939) __--- 19, 42, 43
Shafroth, Modern Developments in Judicial Administra-
tion, 12 Am. U. L. Rev. 150 (1963)_--.__.---- 18, 41, 46
Shartel, Federal Judges—Appointment, Supervision, and
Removal—Some Possibilities Under the Constitution,
28 Mich. L. Rev. 485, 723, and 870 (1930)____ 23, 34, 36
Sumners, Bill H.R. 146, 13 Pa. Bar Ass’n Quar. 150
ccna kkeaatvaneawanee madara ievny new ee dae 36
Tydings, The Congress and the Courts: Helping the
Judiciary to Help Itself, 52 A.B.A.J. 321 (1966) ___- 37
FEVER LOY SOMITE SPA RLS, TASCA ATONE ISR eters
. : : erry Sey LSS ITE FEIT LE
a
$n the Supreme Court of the Anited States
OcToBER TERM, 1969
No. 2 Misc.
SrePpHEN S. CHANDLER, UNiTED StTaTEsS DistRIcT J UDGE
FoR THE WESTERN District OF OKLAHOMA, PETITIONER
v.
JUDICIAL COUNCIL OF THE TENTH CIRCUIT
ON MOTION FOR LEAVE TO FILE A PETITION FOR A WRIT OF
PROHIBITION AND/OR MANDAMU,
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE*
OPINIONS BELOW
None of the orders and minute entries of the Judi-
cial Council of the Tenth Circuit has been reported as
a judicial opinion. The order dated December 13, 1965,
is set out in the Appendix to the petition for a writ
of prohibition and/or mandamus at pp. i-iii. The order
is reprinted at py. 5-7 of the Memorandum filed on
* The Solicitor General has determined, pursuant. to 28 U.S.C.
(Supp. IV) 516 and 518, that since federal officers are both the
petitioner and the respondent in this case, the United States s.ould
appear as amicus curiae, not as counsel for either party.
(1)
PAPE ALESIS TT TO bad
I YS F-K5
ERA EIEN RM
ao
~/
behalf of the Respondent in February 1966. The order
of February 4, 1966, apportioning the judicial busi-
ness of the District Court for the Western District of
Oklahoma will be found at pp. 10-16 of that Memo-
randum. Judge Chandler’s letter of August 28, 1967,
proposing that the district judges certify that no
change in the disposition of business was called foyr,
is appended to the Motion to Advance. The district
judges’ certification to that effect is also contained in
the appendix to the Motion to Advance, The minute
entry from the Council’s meeting on September 14,
1967, finding no further action necessary or appro-
priate at that time, is on file with the Clerk of this
Court.
JURISDICTION
Petitioner alleges that this Court has jursidiction
under the All Writs Act, 28 U.S.C. 1651(a), to enter-
tain his petition for relicf in the nature of mandamus
and/or prohibition, directed to the Judicial Council
of the Tenth Circuit. Since the cause is presently be-
fore the Court on peti*ioner’s motion for leave to file
his petition, and since jurisdiction to act on the peti-
tion is not free from doubt, we have briefed this juris-
dictional issue as a distinet question presented.
QUESTIONS PRESENTED
1. Whether this Court has constitutional jurisdic-
tion and statutory authority to entertain, in the first
instance, an application for an extraordinary writ to
review the determinations of a circuit judicial council.
3
2. Whether the determinations made by the Judi-
eal Council of the Tenth Circuit regarding the judi-
cial business to be assigned to petitioner as a district
judge were authorized by statute and consistent with
the Constitution.
STATUTES INVOLVED
The Judicial Code, 28 U.S.C., provides in pertinent
part:
362-689—69 ——-2
§ 137. Division of business among district
judges
The business of a court having more than
one judge shall be divided among the judges
as provided by the rules and orders of the court.
The chief judge of the district court shail be
responsible for the observance of such rules and
orders, and shall divide the business and assign
the cases so far as such rules and orders do not
otherwise prescribe.
If the district judges in any district are un-
able to agree upon the adoption of rules or
orders for that purpose the judicial council of
the circuit shall make the necessary orders.
§ 332. Judicial councils
The chief judge of each cireuit shall eall, at
least twice in each year and at such places as
he may designate, a council of the circuit judges
for the cireuit, in regular active service, at
which he shall preside. Each circuit judge,
unless excused by the chief judge, siall attend
all sessions of the council.
The couneil shall be known as the Judicial
Council of the circuit.
4
The chief judge shall submit to the council
the quarterly reports of the Director of the
Administrative Office of the United States
Courts. The council shall take such action there-
on as may be necessary. i
Each judicial council shall make all neces-
sary orders for the effective and expeditious
administration of the business of the courts
within its cireuit. The district judges shall
promptly carry into effect ail orders of the
judicial council.
§ 1651. Writs
(a) The Supreme Court and all courts estab-
lished by Act of Congress may issue all writs
necessary or appropriate in aid of their respec-
tive jurisdictions and agreeable to the usages
and principles of law.
* * * *% *
STATEMENT
Tn applying for leave to file a petition for a writ of
mandamus and/or prohibition, petitioner seeks to
challenge the statutory basis and the constitutional au-
thority for the determinations made by the responc-
ent, the Judicial Council of the Tenth Circuit, with
respect to petitioner’s activities as a district judge.
1. Petitioner, the Honorable Stephen 8S. Chandler,
was duly appointed a United States District Judge
for the Western District of Oklahoma in 1943, and he
has served in that capacity ever since, ineluding a
number of vears as chief judge of the district.
The Western District of Oklahoma is part of the
Tenth Cireuit. See 28 U.S.C. 41. By virtue of -s
5
U.S.C. 332, the circuit judges of a circuit are con-
stituted as the Judicial Council for that circuit, with
authority to ‘‘make all necessary orders for the effec-
tive and expeditious administration of the business of
the courts within its circuit.’’ District judges, the
statute provides, ‘‘shall promptly carry into effect all
orders of the judicial council.”’
On December 13, 1965, the Judicial Council of the
Tenth Cireuit, with the exception of Chief Judge Al-
fred P. Murrah who has disqualified himself from
participation in these proceedings, convened in ‘‘spe-
cial session’’ at Denver, Colorado. With the concur-
rence of four of the five circuit judges present the
Council adopted an ‘‘order” (Pet. App. i-iii) which
recited that:
[ijn the past four vears the Judicial Council at
many meetings has discussed and considered the
business of the United States District Court for
the Western District of Oklahoma and has done
so with particular regard to the effect thereon
of the attitude and conduct of Judge Chandler
who, as Chief Judge of that District, is pri-
marily responsible for the administration of
such business. * * *
The order noted that Judge Chandler had been a party
defendant in both civil and criminal litigation* and
had twice been before the court of appeals on appli-
cations to order him disqualified to handle certain
‘See O'Bryan ve Chaniler, 3i2 F. 2d 987 (C.A. 10) (en
banc), certiorari denied, 384 U.S. 926; and Pet. App. xii-xiv,
respectively.
6
- litigation.’ On the basis of the “entire situation”, the
Council found that “Judge Chandler is presently un-
able, or unwilling, to discharge efficiently the duties of
his office’’ and that a change in the assignment of busi-
ness was therefore necesssry for “the effective and
expeditious administration of the business” of the
district court. Invoking its powers under 28 U.S.C.
332, the order accordingly directed that:
until the further order of the Judicial Council,
the Honorable Stephen 8. Chandler shall take no
action whatsoever in ary case or proceding now
or hereafter pending in the United States Dis-
trict Court for the Western District of Okla-
homa; that all cases and proceedings now
assigned to or pending before him shall be
reassigned to and among the other judges of
said court; and that until the further order of
the Judicial Council no cases cr proceedings
filed or institut-d in the United States District
Court for the Western District of Oklahoma
shall be assigned to him for any action
whatsoever.
It is further ORDERED that in the event
the active judges of the United States District
Court for the Western District of Oklahoma,
including Judge Chandler, cannot agree among
themselves upon the division of business and
assignment of cases made necessary by this
2In both eases, including one decided after the signing of the
instant order, writs of mandamus were issued against Judge
Chandler. See Occidental Petroleum Corp. v. Chandler, 303 F.
2d SHG (C.A. 10) (en bane), certiorari denied, 372 U.S. 915;
and Tevaco. Inc. ve Chandler, 354 F. 2d 655 (CLA. 10) (en
banc), certiorari dez ied, 383 U.S. 936.
7
order, the Judicial Council, upon such disagree-
ment being brought to its attention, will act
under 28 U.S.C. $137 and make such division
and assignment as it deems proper.
Pursuant to the Council’s direction, duplicate original
copies of the order were “filed” by the clerks of the
Court of Appeals for the Tenth Circuit and of Dis-
trict Court for the Western District of Oklahoma on
December 27 and 28 respectively; a certified copy of
the order was to be sent to the United States Marshal
for that district for service upon Judge Chandler.
2, On January 6, 1966, petitioner filed with this
Court his motion for leave to file a petition for a
writ of mandamus and/or prohibition directed to the
Judicial Council, and sought a stay of its order. So-
licitor General Thurgood Marshall, “appearing on
behalf of the Judicial Council,” opposed the stay ap-
plication, on the basis of the Council’s representation
“that the order of December 13 was intended to be
temporary only, pending prompt further proceedings
inquiring into the administration by Judge Chandler
of judicial business in the Western District of Okla-
homa.’? Accepting this assurance that the counc'l’s
order was “entirely ‘nterlocutery in character pending
prompt further proceedings,” this Court on January
21, 1966, denied the stay application. 382 U.S. 1003.
In February 1966, Solicitor General Marshall sub-
mitted a Memorandum for Respondent suggesting that
the case had become moct. This contention was based
on certain intervening developments: On January 27,
1966, the Council had again convened in special ses-
8
sion, and, taking note of Judge Chandler’s appear.
ance before this Court and the Solicitor General’s
representations in opposition to the stay application,
ordered the matter set for a hearing on February 10
in Oklahoma City, when and where Judge Chandler
could appear in person and with counsel to “pre-
sent such matters to the Council as he may deem fit”
(Resp. Mem. pp. 5-7). Judge Chandler, however, ad-
vised the Council that he would not attend the hearing,
In addition, the Memorandum pointed out, by letter
dated January 24 (Resp. Mem. pp. 8-9), Judge
Chandler had indicated to his colleagues on the dis-
trict court that he agreed with the portion of a draft
order prepared by them to the effect that no cases
filed after December 28, 1965, would be assigned to
him, but disagreed as to the proposal to reassign
eases that were theretofore pending before him, over
which he asserted continuing authority. These facts
were communicated to the Council in a letter and an
agreement and order signed by the other district
judges on January 25, 1966. The Council reconvened
on February 4. Finding that no district judge wished
to be heard at the scheduled hearing, the Council
concluded that it would serve no purpose and vacated
the order for it. On the basis of Judge Chandler's
letter, the agreement and order of the district judges,
and its information about the state of business in the
Western District (information from the files of the
Clerk, from the Administrative Office of the United
States Courts, and from its own continuing review
of cases from the district), the Council found that a
9
disagreement existed as to the division of business
warranting the exercise of its powers under 28 U.S.C.
137 and 332 to provide for the “effective and expedi-
tious administration’’ of justice. The Council there-
upon entered an order allowing Judge Chandler to
continue to sit on cases filed and assigned to him
prior to December 28, 1965, but apportioning subse-
quent cases, on a ste+~7? proportion by lot, among the
remaining judges !'. order ‘‘supersede[d]” the
order entered on Jecember 13, 1965, and was to re-
main in force pending further order of the Council,
except that the division and assignment could be
amended by written order of all the active district
judges of the district (Resp. Mem. pp. 10-16).
In his Reply Brief, Judge Chandler disputed the
suggestion of mootness, stating that he had declined
the offer of a hearing because he challenged the
“very jurisdiction’? (p. 3) of the Council. He also
denied that the division of business had been settled
to everyone’s satisfaction by the intervening orders
of the district judges and the Judicial Council. Rather,
he contended, he had merely acquiesced, for reasons
of “‘strategy’’ (p. 4), in the post-December 28 assign-
ment proposal, in order to forestall a disagreement
whi-h would have given the Council clear power to
act under 28 U.S.C. 137; any disagreement as to pre-
viously assigned cases, he argued, did not fall within
* Judge Lewis, who had not joined i the December 13 order,
concurred on the basis of his view that the authority for the
new order was “clearly contained” within 28 U.S.C. 137 and
332.
10
the compass of Section 137, on the ground that that
statute only extends to newly filed cases.
In a Supplemental Memorandum for the Respond-
ent, it was conceded that, in light of Judge Chan-
dler’s subsequently expressed disagreement with the
February 4 order, and its rclationship to the order of
December 13, the case had not become moot. In that
Memorandum (p. 3) the Council expressed its con-
tinuing belief that it was ‘‘advisable that Judge
Chandler substantially dispose of his pending docket
before undertaking the assignment of new judicial
business’’.* The Memorandum continued (7bid.) :
At such time in the future as Judge Che:dler
certifies to the Council that he has substantially
disposed of the business before him which is
ready for disposition, and that he is willing and
able to undertake new business, the Council will
consider the modification of the present order
to permit such business to be assigned to Judge
Chandler. The Council believes that its present
order, thus withholding the assignment of new
business to Judge Chandler until his current
docket is significantly reduced, is clearly au-
thorized by 28 U.S.C. 137 and 322.
It was recommended that the petition be denied or
retained on the docket until the Council acted on any
future certification of willingness and ability to
undertake new assignments.
Later in March, Judge Chandler submitted a Reply
to that Supplemental Memorandum, asserting that the
* Judge Chandler had a backlog of approximately 160 cases
at the time.
11
(Council was continuing to act beyond its authority by
purporting to require that he certify to it his subse-
quent willingness and ability to undertake new busi-
ness. He contended that the Supplemental Memo-
randum setting forth the Judicial Council’s position
on this point was in effect a fourth order of the Coun-
cil fixing still another condition on the exercise of his
judicial office. He indicated that he would refuse to
comply with this suggested procedure, since he con-
tinued to believe the Council was without authority
in the matter and since he was attempting to litigate
that very issue.
3. No further action was taken until the Summer
of 1967. In June 1967, the Clerk of this Court wrote
to the parties to ask them to keep him apprised of
any further developments in the case. On July 12,
1967, the Judicial Council of the Tenth Cireuit con-
vened, and in light of a revort showing that Judge
Chandler had only twelve cases pending, concluded
that a modification of its order of February 4, 1966,
might be in order (Resp. Chronology of Events, p.
6). Cireuit Judge Lewis thereafter transmitted
to the district judges involved a copy of the minutes
of the meeting whereby they were asked to consider
anew and agree upon a division of business.
By letter of August 28, 1967, circulated among his
colleagues (Motion to Advance, App.), Judge Chandler
recounted the prior events in the controversy and
charged that the Judicial Council’s July request con-
stituted another “illegal effort” to produce a situation
wherein the Council could assert authority under 28
562-689—69——-3
12
U.S.C. 137 to apportion the district court’s business,
He noted that his prayer for relief from this Court
was still pending, and recommended that it would not
be “proper to disturb the status quo while the case
rests in the bosom of that Court.’’
On September 1, 1967 (Motion to Advance, App.),
all of the district judges of the Western District of
Oklahoma signed a letter addressed to the Judicial
Council stating that ‘‘under the circumstances” the
“current order for the division of business in this dis-
trict is agreeable.’’ The Tenth Cireuit Judicial Coun-
cil reconvened on September 14, 1967, took note of this
unanimous certification by the district judges, and
concluded that “‘no action of the Council is either nee-
essary or appropriate at this time.” The ‘‘Clerk of
the Judicial Council” was directed to send a copy of
the minutes to that effect to the Clerk of this Court,
and the Clerk of the Court of Appeals for the Tenth
Circuit did so under covering letter dated Septem-
ber 18, 1967.
4. There were no further developments until Judge
Chandler filed a Motion to Advance in June 1969. It
was in that posture that the Court, on June 16, 1969,
while denying the motion to advance, set the cause
for oral argument at the beginning of the 1969 Term.
SUMMARY OF ARGUMENT
[.
This Court)as jurisdiction to entertain the petition
for a writ of mandamus or prohibition.
13
At least when its orders are directed to a District
Judge to regulate the exercise of his official duties, a
Judicial Council is acting as a judicial tribunal for
purposes of this Court’s appellate jurisdiction under
Article III of the Constitution. The judicial character
of the councils established as Judicial Councils was an
indispensable ingredient in their creation. A Judicial
Council is no more and no less than the court of
appeals for the particular circuit sitting en bance.
This Court possesses sufficient statutory authority
to entertain the petition for an extraordinary remedy.
Congress has not expressly provided for review of
orders of Judicial Councils; and we are aware of no
ease holding that this Court has inherent power,
apart from some statutory predicate, to review the
actions of lower courts or tribunals. Examination of
the history of the All Writs Act shows that it does
provide a sufficient basis for this Court’s exercise of
appellate jurisdiction in a situation such as this. The
actions which Judge Chandler protests sufficiently
affect matters within this Court’s appellate jurisdic-
tion so as to bring his application for extraordinary
relief within the All Writs Act.
II.
In the present posture of the case, the petitioner is
not entitled to any relief. The initial order of the
Council which evoked his recourse to this Court was
long ago vacated and has been replaced by orders
‘early within the Council’s authority.
14
The assignment order currently in effect is within
the lawful authority of the Judicial Council. That
order rests on both 28 U.S.C. 137 and 332. These stat-
utory provisions were carefully prepared and enacted
by Congress on the recommendation of the Judicial
Conference of the United States, for the purpose of
assisting the judges to keep their own house in order,
These provisions are valid congressional responses to
the need for the federal courts to maintain themsei, -s
as effective and trustworthy instruments of justice.
ARGUMENT
I. THIS COURT HAS JURISDICTION TO ENTERTAIN THE PE-
TITION FOR A WRIT OF MANDAMUS OR PROHIBITION
The threshold question that must be considered is
whether this Court possesses the potential capacity
under Article III of the Constitution to entertain
Judge Chandler’s direct application for extraordinary
relief from the determinations by the Judicial Coun-
cil of the Tenth Circuit. If so, the jurisdictional
inquiry must decide whether specific statutory author-
ity is necessary for the exercise of such power and
whether such authority presently exists. Both branches
of this inquiry will illustrate that the Court’s juris-
diction over this matter is far from clear, but it is
the position of the United States that the Court does
possess the requisite jurisdiction to pass upon J udge
Chandler’s contentions.
4, AT LEAST WHEN ITS ORDERS ARE DIRECTED TO A DISTRICT JUDGE
70 REGULATE THE EXERCSE OF HIS OFFICIAL DUTIES, A JUDICIAL
COUNCIL IS ACTING AS A JUDICIAL TRIBUNAL FOR PURPOSES OF
THIS COURT’S APPELLATE JURISDICTION UNDER ARTICLE III OF THE
CONSTITUTION :
In dissenting from the denial of Judge Chandler’s
application fox a stay of the Judicial Council’s order
of December 13, 1965, two members of this Court
characterized the Council as simply a ‘‘governmental
agency’ entrusted only “‘with' limited administrative
powers.’ 382 U.S. 1003, 1005 (emphasis in orig-
inal). If that characterization is accurate, this Court
has. no jurisdiction under the Constitution to pass
upon Judge Chandler’s petition. No further authority
would be needed to sustain this vonclusion than JMar-
bury v. Madison, 1 Cranch 137.
In Marbury, it will be remembered, the petitioner
had been appointed ‘a justice of the peace in the Dis-
trict of Columbia, but the new Administration refused
to deliver to him his previously signed commission.
Applying directly to this Court for a writ of manda-
mus to:compel the Secretary of State to deliver the
- commission, Marbury invoked Section 13' of the Ju-
diciary Act of 1789 which by its terms conferred on
this Court (and only on this Court) the ‘‘power to
issue * * * writs of mandamus, in cases warranted
by the principles and usages of law, to any courts ap-
pointed, or persons holding office, under the authority
of the United States.’’ Chief Justice Marshall’s clas-
sic Opinion concluded, however, that insofar as this
statute sought to confer power to entertain proceed-
ings against federal officers in the first instance, it was
BEI PETE aE Ee Ren eeRORS HE
>...
16
void as inconsistent with the command of Article Il
that, except in a few defined situations, this Court’s
jurisdiction is im ‘‘all other cases”’ to be appellate,
But Marshall was quite careful to note that in regu-
lating the Court’s appellate jurisdiction, Congress
could provide any mode it chose for the Court to exer-
cise whatever aspects of its potential ‘‘appellate”
jurisdiction Congress elected to authorize. What was
viewed as critical, the opinion makes clear, is not the
form of action, but whether in substance it is the be-
ginning of a new lawsuit brought to the courts for the
first time or is instead the continuation of a judicial
controversy—including an application for de novo re-
examination of what a lower court has done. Mar-
shall’s analysis is pertinent here (1 Cranch at 175-
176):
To enable this court, then, to issue a mandamus,
it must be shown to be an éxercise of appellate
jurisdiction, or to be necessary to enable them
[sic] to exercise appellate jurisdiction. * * *
It is the essential criterion of appellate jurisdic-
tion, that it revises and corrects the proceedings
in a cause already instituted, and does not
create that cause. Although, therefore, a man-
damus may be directed to courts, yet to issue
such a writ to an officer, for the delivery of a
paper, is, in effect, the same as to sustain an
original action for that paper, and therefore,
seems not to belong to appellate, _ to original
jurisdiction.
17
As the Court later explained in awarding a writ of
maudamus, the authority conferred by the First Judi-
dary Act to issue writs of mandamus to infericr courts
of the United States is a manifestation ef ‘‘appellate”’
power because in such circumstances the writ ‘‘is for
the purpose of revis*ng and correcting proceedings in
a case alveady instituted in the court * * *.”’ In re
Winn, 213 U.S. 458, 465-466. See, also Hx parte Crane,
5 Pet. 190, 193 (Marshall, C. J.); Ha parte Yerger, 8
Wall. 85, 103; Maryland v. Soper (No. 1), 270 U.S.
9,28; He parte Republic of Peru, 318 U.S. 578, 582-
583.
The key question, therefore, is whether a judicial
council is, for these purposes, a ‘‘lower court” or ‘‘in-
‘ferior tribunal” whose decisions are reviewable in the
exercise of this Court’s appellate jurisdiction, rather
than an administrative agency whose personnel hap-
pen also to serve as circuit judges. In our view, at
least insofar as a Council is acting to direct the con-
-duct of judicial business by district judges, it is func-
tioning both in form and in substance as a judicial
tribunal within the compass -f Article ITI.
No extended discussion of the powers and functions
of a Judicial Council is necessary at this juncture,
since that subject must be developed fully below in
- connection with the examination of what the Tenth
Circuit Judicial Council has done in this matter. It
should be sufficient to note that the judicial character
of the councils bearing that description was an indis-
pensible ingredient in their creation. The entity known
as a “Judicial Council’’ was created by Section 302 of
Re
en Ae
TE ARODE SEMPRE RC: NMI Roe gener
SEE Te OE EES Ya I AEE NET ae
18
the Act of August 7, i925, 53 Stat. 1223, relating as a
whole to the “Administration of the United States
Courts.” That act created the Administrative Office of
the United States Courts, as part of the judicial
branch, to provide support services for the courts and
to collect, analyze, and disseminate to them statistics
on judicial administration. See 28 U.S.C. 601, 604.
But the Director of the Administrative Office, who is
appointed by this Court, was entrusted with no au-
thority cver the performance of judicial business. For
this purpose the Act created the judicial councils,
with the responsibility for considering his reports on
the dispatch of judicial business and with the power
to make determinations, binding on district judges,
for resolution of any impediments to proper court’
functioning.
A judicial council is no more and no less than the
court of appeals for the particular circuit sitting en
banc. Compare 28 U.S.C. 332 with F.R. App. P., Rule
35(a). See Shafroth, Modern Developments in Judicial
Administration, 12 Am. U.L. Rev. 150, 157 (1963);
(Henry P.) Chandler, Some Major Advances in the
Federal Judicial System, 31 F.R.D. 307, 384 (1963). The
decision to “center the responsibility [for judicial ad-
ministration] upon the personnel who constitute the
Circuit Court of Appeals”*® was made to place ‘‘the
responsibility for judicial administration where it be-
5 Hearings on Administration of United States Courts before
the House Judiciary Committee, 76th Cong., 1st Sess., 21 (1939)
(hereafter, House Hearings).
19
longs—with the judiciary * * *.”° Chief Justice
Groner of the United States Court of Appeals for the
District of Columbia, who had been appointed by
Chief Justice Charles Evans Hughes as chairman of
the committee of circuit judges that took an active
part in drafting the bill, explained to the Senate Com-
mittee that no ‘‘administrative officer’’ was given ‘‘any
supervision or control over the exercise of purely judi-
cial duties’’: *
To create such [an] office would be tu destroy
the very fundamentals of our theory of govern-
ment. The administrative officer proposed in
this bill is purely an administrative officer.
* * * It is his duty to observe and see that
whatever is wrong in the administration of
justice, from whatever sources it may arise, 7s
brought to the attention of the judicial council
that it may be corrected, by the courts them-
selves. That is, as I respectfully suggest, as it
ought to be.*
The bill as originally enacted made it the duty of
district judges to comply with the ‘‘directives”’ of the
Council, and in the 1948 Revision of the Judicial Code
a change in ‘‘phraseology’’ amended this mandatory
language to provide that “district judges shall
°H. Rep. No. 702, 76th Cong., 1st Sess., p. 4 (1939).
* Hearings on Administration of United States Courts Before
a Subcommitive of the Senate Judiciary Committee, 76th Cong.,
Ist Sess., p. 12 (1939) (hereafter Senate Hearings) (question by
Senator Hatch).
‘Senate Hearings. pp. 12-13 (emphasis added). See, also,
S. Rep. No. 426, 76th Cong., 1st Sess., p. 4 (1939).
362-689—69———-4
20
promptly carry into effect all orders of the judicial
council.” 28 U.S.C. 332 (emphasis added). The sub-
stance of what judicial councils are indisputely au-
thorized to do—in some manner ‘“‘direct’’ or ‘‘order”
district judges to carry out certain measures—demon-
strates, as the legislative history shows Congress un-
derstood, that the councils were regarded, consonant
with traditional notions of separation of powers, as
judicial entities.’
Review of such ‘‘orders’’ or ‘‘directives’’ comports
with the dual limitations that this Court pass only upon
“cases or controversies,’”’ within its “appellate jurisdic-
tion”. This is so at least where, as in this case, the
orders have the purpose and effect of limiting a dis-
trict judge’s performance of judicial duties and he
alleges illegal interference with the exercise of his
office. Direct judicial supervision of the efficiency and
responsibility with which a subordinate judge per-
forms his duties can be analogized to a disbarment
proceeding or order for purposes of the constitutional
reference to “cases’’ and “controversies’’,” since in
both instances 2 tribunal is controlling the individ-
ual’s authority to participate in the judicial process.
Similarly, this Court has often held that it can issue
writs of mandamus in the exercise of its appellate
jurisdiction to review and revise the action of inferior
® Courts of appeals, as courts, exercise a variety of functions
other than hearing appeals from district courts and administra-
tive agencies. See Textile Mills Securities Corp. v. Commissioner
of Internal Revenue, 314 U.S. 326, 332.
10See Note, The Eaclusiveness of the Impeachment Power
Under the Constitution, 51 Harv. L. Rev. 330, 334 (1937).
21
federal courts disbarring an attorney. See, e.g., Ez
parte Bradley, 7 Wa‘l. 364; Hx parte Robinson, 19
Wall. 505; Ea parte Wall, 107 U.S. 265.
Thus, assuming that a Judicial Council—generally,
or at least when issuing orders regulating the official
activities of district judges—is a “‘lower court” or “in-
ferior tribunal” within the meaning of Marbury v.
Madison and later cases, this Co-rt has the constitu-
tional capacity to entertain Judge Chandler’s petition
in the exercise of its appellate jurisdiction.
B. THIS COURT POSSESSES SUFFICIENT STATUTORY AUTHORITY TO
ENTERTAIN THIS PETITION FOR AN EXTRAORDINARY REMEDY
The somewhat more questionable aspect of this
Court’s jurisdiction to hear Judge Chandler’s prayer
for relief involves the search for statutory authority
to exercise what we believe we have shown is the
potential appellate jurisdiction allowed by Article
III. The clause of Article IIT conferring appellate
jurisdiction subject to regulatio.. by Congress has al-
ways been understood to mean that the exercise of
jurisdiction generally permitted to this Court by the
Constitution is dependent upon some affirmative legis-
lative action authorizing it. Thus, whatever the mode
of asserting appellate jurisdiction that a litigant may
invoke—ineluding mandamus—relief can be granted
only when statutory authority for entertaining the
suit can be found. Compare In re Winn, 213 U.S. 458,
466, with In re Green, 141 U.S. 325, 326-327. See, also,
Stephan v. United States, 319 U.S. 423, 426; Cari oll v.
United States, 354 U.S. 394, 399.
22
In his Motion for Leave to File, Judge Chandler in-
vokes as a premise for jurisdiction not only the All
Writs Act, 28 U.S.C. 1651(a), but also calls upon “the
Court’s ‘herent powers” (p. 4). We are aware of
no case holding that this Court has “inherent power”,
apart from some statutory predicate, to review the
action of lower courts. Congress bas not expressly
provided for review of the orders of Judicial Coun-
ceils. And the extent to which the All Writs Act
furnishes necessary statutory support for jurisdiction
is unclear, because in all prior cases, including those
cited by petitioner,” in which this Court has relied
on that statute to issue an extraordinary writ ‘‘in aid
of its jurisdiction”, what was involved was a particu-
lar lawsuit that would otherwise have come within the
Court’s statutory review jurisdiction, although at a
later stage. By contrast, Judge Chandler bases his re-
liance upon this statute on the theory that the action
of the Judicial Council ‘‘touches, through Judge
Chandler’s fate, hundreds of cases over which this
Court has appellate or review jurisdiction.” (Pet. 13)
To test the permissibility of this expansive use of the
All Writs Act, we believe it would be useful to con-
71 When Congress created a hybrid “judicial panel on multi-
district litigation,” composed of seven circuit and district judges,
to coordinate similar suits filed in different districts, it ex-
pressly addressed itself to the question of further review, and
authorized review by the court of appeals of the transferee dis-
trict under the All Writs Act. See 28 U.S.C. (Supp. IV) 1407 (a)
and (e@).
: pane States Alkali Export Ass’n, Inc. v. United States,
325 U.S. 196; DeBeers Consolidated Mines, Ltd. vy. United
States, 325 U.S. 212 (both cases: common law writs of cer-
tiorari in antitrust cases over which this Court had exclusive
direct appellate jurisdiction after final judgment).
23
duct a brief analysis of the historical development of
this Court’s power to issue extraordinary writs.
In 1789, the First Judiciary Act was passed, and
it contained two distinct sections dealing with the is-
suance of extraordinary writs, Sections 13 and 14, 1
Stat. 80-82. Section 13, which was involved in Marbury
v. Madison, conferred upon this Court, and only on
this Court, the “power to issue * * * writs of manda-
mus, in cases warranted by the principles and usages of
law, to any courts appointed, or persons holding vifice,
under the authority of the United States.”’ In light of
the historical antecedents of that statute and its inter-
pretation in subsequent decisions, we would have no
doubt that it encompassed the type of review for
which Chandler presses—but it may have been ef-
fectively repealed.
In Ex parte Crane, Chief Justice Marshall. after
poir.ting to Section 13, explained that under a compa-
rable New York statute the state court (5 Pet. at 194) :
possesses the power to issue this writ [of manda-
mus], in virtue of its general superintendance of _
inferior tribunals. “No other tribunal exists
by which ié can be exercised.
The responsibility entrusted and accepted was clearly
patterned on the “‘supervisory authority” exercised
by the Court of King’s Bench in England over the
conduct of inferior courts and judges.** As Chief
Judge Magruder noted after analyzing the experience
*See Shartel, Federal Judges—Appointment, Supervision,
and Removal—Some Possibilities Under the Constitution, 28
Mich. L. Rev. 723, 731 sand
act confers the power expressly on this court."
24
under Section 13 (In re Josephson, 218 F. 2d 174, 178
(C.A. 1)):
After Marbury Vv. Madison, the Supreme Court
continued to recognize that * * * Section 13 of
the Judiciary Act of 1789 was still good to
authorize that Court to exercise the essentially
appellate function of reviewing and revising a
judicial proceeding in a lower court by appro-
priate use of the common-law writ of manda-
mus, whether or not it had been given by
Congress some other statutory appellate juris-
diction, or potential appellate jurisdiction, by
way of an appeal or writ of error or other-
wise. * * *
See, e.g., Virginia v. Rives, 100 U.S. 313, 323-324;
Maryland vy. Soper (No. 1), 270 U.S. 9, 30; In re Na-
tional Labor Relations Board, 304 U.S. 486, 496.
Section 14 of the Judiciary Act of 1789, by contrast,
is the predecessor of the All Writs Act, and was dis-
tinctly viewed as an ancillary provision designed to
supplement the fulfillment of separately conferred
jurisdiction by providing an open-ended category of
remedies; it provided that this Court and other Fed-
eral courts were to have: ‘
power to issue writs of scire facias, habeas
corpus, and all other writs not specially pro-
vided for by statute, which may be necessary for
the exercise of their respective jurisdictions, and
agreeable to the principles and usages of lew.
| aici Tee
25
Sections 13 and 14 of the First Judiciary Act re-
tained their independent identity over the years ™ :
until the revision of the Judicial Code in 1948. At ;
i
that time, they were repealed in favor of the All Writs
Act, 28 U.S.C. 1651(a), which, it was said by the
Reviser, “consolidates” the sections. Nevertheless, be-
cause the note also explained that the “special pro-
visions” that had been carried forward from Section
13 “were omitted as unnecessary in view of the re-
vised section,” there has been some interpretation indi-
caung that this change was meant to, and did, (
withdraw the unique supervisory power which had ;
theretofore been entrusted to this Court alone, so that ;
thenceforth, this Court, as wi other federal
courts, may issue only those extraordinary writs that
may be “necessary or appropriate in aid of their re-
spective jurisdictions and agreeable to the usages and :
principles of law.” Judge Magruder in the Joseph- f
son case supra, 218 F. 2d at 179, noting that the Re-
viser’s Note termed this Court’s special statutory
power “unnecessary” in light of the clarification of
the “all-writs” provision as extending to all federal
courts, concluded :
Thus, it seems that since 1948 Congress has
withdrawn from the Supreme Court its special
appellate power to supervise proceedings in the
lower federal courts by means of the writ of
mandamus; so that a!l federal courts, including
the Supreme Court, are now limited to the is-
se .
ik ala aT ol en ag
ane dee
PALER AR IUCN LR Re acs mentees cn, ——
*They were codified respectively as Rev. Stat. §$ 688 and
751 and then as Sections 234 and 262 of the Judicial Code of
1911 (28 U.S.C. (1940 ed.) 342 and 377).
26
suance of ‘‘all writs necessary or appropriate
in aid of their respective jurisdictions.’’
Apparently accepting this analysis, Justice Brennan’s
dissenting opinion (joined by Justices Frankfurter,
Burton, and Harlan) in La Buy v. Howes Leather
Company, 352 U.S. 249, 260, 265-266, argued that the
Court’s pre-1948 opinions supporting the issuance by
this Court of writs of mandamus to lower courts could
not fairly be relied on as suggesting similar authority
for courts of appeals to proceed under the All Writs
Act; Section 13, the dissent pointed out,
unlike the All Writs Act, was not restricted in
its use to aiding the jurisdiction of the appellate
court, and therefore might be deemed to have
granted a broader power to this Court than that
conferred on the Courts of Appeals by the
latter statute. [Emphasis added.] *
While Congress undoubtedly had the power to cut
back on this Court’s appellate jurisdiction, we believe
that such an intentior should not lightly be inferred.
Compare Carroll v. United States, 354 U.S. 394, 411-
415; Stephan v. United States, 319 U.S. 423, 426; Ex
parte McCardle, 7 Wall. 506, 512. The relevant mate-
rial surrounding the 1948 codification is quite con-
sistent with the conclusion that the special power econ-
ferred by Section 13 in 1789 is now simply merged
with the authority that all federal courts, including
this Court, possess to issue writs in aid of their juris-
diction. The Reviser’s Note explains that the new
Section 1651(a) makes ‘‘explicit the right to exercise
** This point was not discussed by the majority.
27
powers implied from the. creation of such courts.’’
This Court, specifically created by Article III of the
Constitution to be ‘‘supreme’’, may properly conclude
that the explicit authority uniquely conferred by
Congress in 1789 in light of its special status was not —
withdrawn either deliberately or accidentally in 1948.
A number of sound principles support this conclu-
sion. First, it is a fundamental principle of Anglo-
American law, recognized by this Court at least as
long ago as Marbury v. Madison, that every right de-
mands a remedy; in Marbury, for example, the Court
concluded that the office of justice of the peace, a posi-
tion of trust, honor, and profit, surely had to be sub-
ject to the protection of the law. See 1 Cranch at 163.
Second, Judge Chandler, who asserts that the Judicial
Council has illegally exceeded its bounds by interfer-
ing with the exercise of his judicial office, has un-
doubtedly selected the proper remedy, a writ in the
nature of mandamus. Mandamus is the proper remedy
when the case is outside of the exercise of this
[judicial] discretion, and. outside the jurisdic-
tion of the court * * * to which * * * the writ
is addressed. One of its peculiar and more com-
mon uses is to restrain inferior courts and to
keep them within their lawful bounds. [Vzr-
ginia Vv. Rives, 100 U.S. 313, 323-324.]
Accord, Ex parte Republic of Peru, 318 U.S. 578,
082-583. This concept extends to use of a writ of man-
damus, either issued by this Court, e.g., Ex parte Rob-
inson, 19 Wall. 505, 512; Ex parte Bradley, 7 Wall.
364, 375-376, or by an intermediate appellate court,
ETE TREN TE RTE Site eT
a a a
28
e.g., Laughlin v. Wheat, 95 F. 2d 101 (C.A. D.C.), as
the proper remedy for reviewing the action of a court.-
in disciplining an attorney or conditioning the exer-
cise of his office. t
But if Judge Chandler cannot resort to this Court
for scrutiny of what he contends were the luwless ex-
cesses of the Judicial Council, he will be without any.
practical remedy. It requires no extended discussion
to point out that no serious or appropriate remedy
could be sought from the district court or from the
court of appeals itself.’° While it is axiomatic that
necessity cannot create jurisdiction, Ex parte Rexublic
of Peru, supra, 318 U.S. at 583-584 n. 3, ef. Will v.
United States, 389 U.S. 90, 97, this consequence can
permissibly illuminate the inquiry whether Congress
*® Apart from the anomolous conflict that would exist if a _
district judge were called upon to pass directly upon the law-
fulness of the action of circuit judges, it is doubtful whether
there are any statutes Judge Chandler could invoke to bring his
grievances into a district court. The federal-question statute, 28
U.S.C. 1331, contains a jurisdictional-amount limitation; Judge
Chandler’s salary is unaffected by the Council’s orders, and it
is doubtful that he could assert or establish that the “matter in
controversy” exceeds $10,000. Cf. Stern v. South Chester Tube
Company, 390 U.S. 606. The district court mandamus statute,
28 U.S.C. 1361, extends to officers, employees, and agencies of
the United States, but probably does not include other tribunals.
There is no plausible basis for invoking an ancillary statute like
the All Writs Act, since the relief would not be “in aid of”
the district court’s jurisdiction. The Declaratory Judgment Act,
28 U.S.C. 2201, applies only where the court would otherwise
have jurisdiction over the matter. See United States v. King,
395 U.S. 1. And the Administrative Procedure Act, which is not
generally thought to be an independent source of jurisdiction,
excludes from the scope of the agencies to which it applies “the
courts of the United States.” 5 U.S.C. (Supp. TV) 551(1) (B).
ai
eee ae.
29
has left a substantial lacuna in the statutory scheme
for litigating substantial legal claims. See Ez parte
Bradley, 7 Wall. 364, 376, holding that disbarment pro-
ceedings, which would not support a writ of error, were
reviewable upon mandamus under Section 13 of the
Judiciary Act because some flagrant abuses might other-
wise go uncorrected. Mandamus, the Court explained,
may be awarded directly “in the supervision of the pro-
ceedings of inferior courts, in cases where there is a
legal right, without any existing legal remedy.’ Ibid.
The one case that research has uncovered bearing
most directly on this point supports Judge Chandler’s
reliance upon the All Writs Act. In United States v.
Malmin, 272 Fed. 785 (C.A. 3), the United States, as
sovereign, filed with the Circuit Court of Appeals for
the Third Circuit—which then as now (28 U.S.C. 42)
had review jurisdiction over the federal courts in the
Virgin Islands—a petition for a writ of mandamus
to compel the respondent, a judge of the district court
there, to return to the Virgin Islands to resume the
exercise of his judicial office. The territorial governor
had purported to replace Judge Malmin and the judge
had acquiesced in the removal, which the United
States believed was ultra vires and void. The govern-
ment rested its application for the writ upon the pred-
ecessor to the All: Writs Act; mandatory relief was
sought in order that (272 Fed. at 788) :
the purposes of his appointment shall be ful-
. filled by the completion of cases formally begun
before him and in order also that parties liti-
:
3
t
;
:
g
E
4
F
:
.
crane tea
CERIO IRS
setee,
Te
30
gant may have their cases heard before the
only judge warranted by law to hear and final-
ly dispose of them, to the end that, if
aggrieved by final judgments, they have had op-
portunity, under the laws of the United States,
to apply to this appellate court for review of
the same * * *.
The court agreed that it had authority under the
statute to issue the writ “in aid of” its jurisdiction,
explaining (272 Fed. at 792):
- The appellate jurisdiction of this court does
not arise from prior invocation alone; it is con-
tinuously existent. Matters which disturb that
jurisdiction, either before or after it is invoked,
are, therefore, cognizable here. If the absence
of a lawfully appointed judge of a District
Court, from which appeals lie to this court,
thereby affects the right of litigants to take
appeals and the right of this court to enter-
tain them, confessedly this court has power to
restore the orderly proceedings of the trial
court by commanding the absent judge to re-
turn and transact its business.
On the merits, the court agreed that the judge’s re-
moval was ineffective. “Therefore’’, the court ex-
plained, “it becomes essential to the appellate
jurisdiction of this court that orderly proceedings in
the District Court of the Virgin Islands be restored”
(ibid.), and a peremptory writ of mandamus issued.
In the present ease, it is the Judge himself who is
complaining of illegal interference with the exercise
of his office, and his interest supplements those of
the litigants before the district court in demonstrating
that the actions which Judge Chandler protests suffi-
31
ciently affect matters within this Court’s appellate
jurisdiction so as to bring his application for ex-
traordinary relief within the All Writs Act. This con-
clusion is reenforced by the now settled understanding
that an extraordinary writ may be issued when the
lower court’s action or inaction might defeat this
Court’s eventual jurisdiction, which could be invoked
on the merits only after proceedings in an intermedi-
ate court.”
I, IN THE PRESENT POSTURE OF THE CASE, PETITIONER IS
NOT ENTITLED TO ANY RELIEF
If the Court concludes that it has jurisdiction to en-
tertain Judge Chandler’s application for extraordi-
nary relief from the orders issued by the Judicial
Council, he has failed to make out a case on the merits
for the award of such relief. The initial order of the
Council which evoked his recourse to this Court was
iong ago vacated and has been replaced by orders
clearly within the Council’s authority.
17 See, e.g., McClellan v. Carland, 217 U.S. 268 (mandamus) :
Ee parte United States, 287 U.S. 241 (mandamus); Ex parte
Republic of Peru, 318 U.S. 578 (mandamus and prohibition) :
DeBeers Consolidated Mines, Ltd. v. United States, 325 U.S. 212
(common-law certiorari) ; cf. Federal Trade Commission v. Dean
Foods Co., 384 U.S. 597 (injunction) ; Roche v. Evaporated Milk
Association, 319 U.S. 21 (mandamus). These cases have limited
or overruled the earlier position taken in such cases as Jn re
Massachusetts, 197 U.S. 482, 488, and Jn re Glaser, 198 U.S.
171, 173, which had held that resort could be made to this
Court for a writ “in aid of” its jurisdiction only when it
had direct review jurisdiction over the court wherein the casu
was then pending.
32
A. THE FIRST ORDER ENTERED BY THE JUDICIAL COUNCIL, EVEN Ip
OBJECTIONABLE, HAS BEEN REVOKED
Judge Chandler submitted his prayer for relief
shortly after he was notified that on December 13,
1965, the Judicial Councii of the Tenth Circuit in
closed session had prepared an order directing him to
take no further part in any case or proceeding then
or thereafter pending in the Diswict Cour‘ for the
Western District of Oklahoma, where he served as
Chief Judge. That order, which was entered without
any notice or opportunity to be heard, was based on
the Council’s own prior discussions of the conduct of
business in that district and Judge Chandler’s appar-
ently adverse effect on it; the order also, however,
recited that he had himself been a party defendant
in civil and criminal litigation, including disqualifica-
tion proceedings, and that the Council was convinced
from all these circumstances that he was ‘‘presently
unable, or unwilling, to discharge efficiently the duties
of his office’? (Pet. App. ii).
Judge Chandler argues that this action constituted
removal from the bench, and contends that Section 332
of the Judicial Code, on which the Council had relied,
does not purport to confer such power, but that if it
does the statute would be unconstitutional.
In dissenting from the denial of a stay of that order,
Justices Black and Douglas expressed their opinion
that no statute could constitutionally authorize the
circuit judges, or a Judicial Council, to ‘‘inquire into
the fitness of a district judge to hold his office”; to do
so, they argued, would trench upon the constitutional
33
responsibility of Congress under Article I, §§ 2 and 3,
and Article II, §4, to exerciss the power to impeach
malfeasant federal officers, including federal judges.
In our view, however, the Constitution would not for-
bid such legislation, providing for judicial trial of the
fulfillment of the condition of federal judicial tenure
under Article [1I—that the judge maintain his ‘‘ good
behavior.” The power of impeachment—which applies
to all federal officers, not only to federal judges—is
not defined in Article III but rather embodies the
sole method by which the legislature may directly
remove government officials—to the exclusion, for
example, of the English practice of passing bilis of
attainder. Thus, just as the impeachment clause does
not prevent the President from removing executive
officers in his own discretion, even though they are
also subject to removal by Congress through impeach-
ment, Myers v. United States, 272 U.S. 52, so also
there is nothing in the Constitution to suggest that
Congress cannot, consistently with the separation of
powers, } -ovide procedures by which the courts could
try the right of a judge to continue to hold office.
Compare Humphrey’s Executor v. United States, 295
U.S. 602."
* See Lx parte Wall, 107 U.S. 265, 288:
[T]he courts ought not to hesitate * * * to protect them-
selves from scandal and contempt, and the public from
prejudice, ky removing grossly improper persons from par-
ticipation in the administration of the laws.
It is noteworthy that Article II, § 2, cl. 2 of the Constitution
expressly authorizes Congress to entrust to “the Courts of Law”
the power to appoint federal officers. See, generally, Ex parte
Siehold, 100 U.S. 871; Hobson vy. Hansen, 265 F. Supp. 902,
34
Nothing in this position is inconsistent with the bed-
rock principle of our constitutional system: the inde-
pendence of the federal judiciary. The Constitution
states only that federal judges shal] hold office during
their good behavior; necessarily implicit in this vro-
vision is that the official conduct of judges is subject to
supervision and control by appropriate agencies. The
first Congress in 1790 provided an alternative to im-
peachment for removal of federal judges: discretion-
ary disqualification from office as part of the judgment
of conviction for accepting a bribe. Act of April 30,
1790, § 21, 1 Stat. 117 (now codified as 18 U.S.C. 201
(e)). Compare 18 U.S.C. 203(b) (mandatory disqual-
ification). Manifestly, the hierarchipl judicial system
contemplated by the Constitution assumes that judges
of ‘‘inferior courts” are subject to the supervision and
control of superior courts and are accountable to them
for the performance of their duties. See, e.g., La Buy
v. Howes Leather Co., 352 U.S. 249, 259-260; ACF
Industries, Inc. v. Guinn, 384 F.2d 15, 20 (C.A. 5),
certiorari denied, 390 U.S. $49 (mandamus may be
used to exert ‘‘supervisory contiol’’ by courts of ap-
peals over district courts). This relationship extends
beyond mere review of rulings on questions of law,
911-915 (D. D.C.) (three-judge court), Ehdenns sicmissed pur-
suant to Rule 60, 393 U.S. 801. This clause provides clear and
direct authority for Congressionally authorized appointment of
federal judges by federal judges, see Shartel, Federal Judges—
Appointment, Supervision, and Removal—Some Possibilities
Under the Constitution, 28 Mich. L. Rev. 485 (1930), a fune-
tion which would necessarily carry with it implied authority to
determine when the Judge should be removed, see Matter of
Hennen, 13 Pet. 230.
35
and also authorizes the appellate court to pass upon
the propriety and fairness of the district judge’s de-
termination that he harbored no personal bias against
a litigant and possessed no personal interest in the out-
come of the litigation. See 28 U.S.C. 144, 455. Indeed,
on two occasions writs of mandamus have been issued
against Judge Chandler himself ordering him to take
no further part in cases pending before him, and in
both instances this Court denied his petitions for cer-
tiorari. See Texaco, Inc. v. Chandler, 354 F. 2d 655
(C.A. 10) (en banc), certiorari denied, 383 U.S. 936
(relationship to counsel) ; Occidental Petroleum Corp.
vy. Chandler, 303 F. 2d 55 (C.A. 10) (en bane), cer-
tiorari denied, 372 U.S. 915 (personal bias). It was,
no doubt, in this tradition that the Judicial Confer-
ence of the United States on June 10, 1969, adopted
and promulgated a prophylactic resolution limiting the
outside activities of federal judges, subject to review
and exception by the relevant circuit judicial councils.
There has been general agreement from the earliest
times that Congress could constitutionally provide al-
ternative procedures to impeachment, particularly
judicial trials or hearings, for determining whether
federal judges have abided by the requirement of good
behavior.” And the proposed Judicial Reform Act,
See, also, United States v. Ritter, 273 F. 2d 30, 32 (C.A.
10), certiorari denied, 362 U.S. 946; Gladstein v. McLaughlin,
230 F. 2d 762 (C.A. 9).
*°See 3 Hinds, Precedents of the House of Representatives,
p. 982, American State Papers (Misc.), Vol. I, p. 151; Annals of
Congress, 4th Cong., 2d Sess., col. 2320; Annals of Congress, 7th
Cong., 1st Sess., cols. 71-72; 81 Cong. Rec. 6164; H. Rep. No.
36
now pending before Congress, would create a Commis-
sion composed of judges assigned by the Chief Justice
with power to make an effective recommendation to
the President, if its judgment is sustained by this
Court on review, that a judge be removed for disabil-
ity or conduct inconsistent with good behavior. §.
1506, 91st Cong. See, gonerally, Hearings on S. 1506
before the Senate Judiciary Subcommittee on Im-
provements in Judicial Machinery, 91st Cong., 1st
Sess. (held in June 1969 ; to be available in September)”
This case, however, does not appropriately raise for
this Court’s ultimate decision the question whether
judicial panels may validly be authorized to discipline
and, if necessary, to remove federal judges. All au-
thorities agree that any such procedures would have
921, 77th Cong., Ist Sess.; H. Rep. No. 814, 75th Cong., Ist
Sess.; Sumners, Bill H.R. 146, 13 Pa. Bar Ass’n Quar. 150
(1942). The initial and most thorough examination of the
question was done by Professor Shartel, Federal Judges—Ap-
pointment, Supervision, and Removal—Some Possibilities Un-
der the Constitution, 28 Mich. L. Rev. 870 (1930). See, also,
Moore, Judicial Trial and Removal of Federal Judges, 20 Texas
TL. Rev. 352 (1942); Ross, “Good Behavior” of Federal Judges.
12 Kansas City L. Rev. 119 (1944); Note, The Exclusiveness of
the impeachment Power under the Constitution, 51 Harv. L.
Rev. 330 (1937); Note, 22 Mass. L. Quar. 52 (July-Sep.,
1937); Note, Z'rial of Good Behavior of Federal Judges, 29 Va.
L. Rev. 876 (1943). But see Otis, A Proposed Tribunal: Is It
Constitutional? 7 Kansas City L. Rev. 3 (1938); Brown, The
Impeachment of the Federal Judiciary, 26 Harv. L. Rev. 684
694-695 (1913); Clark v. United States, 109 Ct. Cl. 444, 459,
certiorari denied, 333 U.S. 833.
21 See, also, [Tearings on The Judicial Reform Act, 8, 3056
etc., Before the Senate Subcommittee on Improvements in
Judicial Machinery, Comnittee on the Judiciary, 90th Cong., 2d
Sess. (1968).
37
to comport with the due-process requirements of ad-
yance notice of the charges and an opportunity to
defend against them. When it entered its order of
December 13, 1965, removing Judge Chandler from
any further participation in judicial activities, the
Judicial Council of the Tenth Cireuit recited that it
had been discussing his attitude and conduct for sev-
eral years, observed that he had been a defendent in
civil and criminal litigation, and noted that he had
twice been the subject of mandamus proceedings to
order him disqualified from continued participation in
particular cases (Pet. App. ii). This order, however,
was issued ex parte, without notice or hearing; and in
our view ne*ther the fact that the judges who com-
prise the Judicial Council had been reviewing the
records in Judge Chandler’s cases for years, nor the
fact that in one of the mandamus actions (Occidentai
Petroleum Corp. v. Chandler, supra, 303 F. 2d at 57)
the full court had conducted three days of factual
hearings before sustaining the charge of bias, suffices
to excuse the deficiencies in fair procedure.” At least
in the absence of the most compelling showing that the
fundamental integrity of the judicial process demands
such action, no tribunal can be allowed by summary,
ex parte procedures to assert non-feasance or mis-
feasance and to strip a federal judge of the incidents
of his office. Cf. Hx parte Robinson, 19 Wall. 505, 512;
compare Hx parte Wall, 107 U.S. 265, 271, 289-290.
See Hearings on the Judicial Reform Act, S. 3055, supra,
note 21, pp. 18, 38-39, 249-255; Tydings, The Congress and the
Courts: Helping the Judiciary to Help Itself, 52 A.B.A.J. 321,
323 (1966).
38
Even if the order is to be “‘purely interlocutory,”
elementary standards of fairness dictate that such
drastic action can not be taken unless grave: conse-
quences would surely follow from even the briefest
delay. Cf. Laughlin v. Wheat, 95°2d 101, 102 (C.A.
D.C.) ; see, also Sniadach v. Family Finance Corp. of
Bay View, 395 U.S. 337.
But whether or not 28 U.S.C. 332 can constitution-
ally be construed to authorize divesting a federal judge
of further duties, and even if it be assumed that the
procedures followed by the Tenth Circuit Judicial
Council in entering the December 13 order were in-
consistent with due process, Judge Chandler would not
be entitled to a writ of mandamus. The December 13
order was to be effective ‘‘until the further order of the
Judicial Council” (Pet. App. ii). But when neither
Judge Chandler nor any other judge indicated a will-
ingness to attend the hearing subsequently scheduled
for February 10, 1966, the Council reconvened on Feb-
ruary 4 and entered a new order—expressly super-
seding the order of December 13—by which Judge
Chandler was restored to the authority to hear and
determine (pending) cases. Thus, since that first order,
which impelled Judge Chandler to resort to this Court
for relief, has long since been annulled by the action
of the Judicial Council itself, it is both unnecessary
and inappropriate, on an application for an extraordi-
nary remedy, for the Court to discuss the difficult and
delicate statutory and constitutional issues it posed.
It is a fair prediction, we believe, that a recurrence
of such an incident is highly unlikely.
39
Bp. THE ASSIGNMENT ORDER CURRENTLY IN EFFECT IS WITHIN THE
LAWFUL AUTHORITY OF THE JUDICIAL COUNCIL
The order of the Judicial Council that is presently
in foree as effecting an assignment of business within
the Western District of Oklahoma was entered on
February 4, 1966 (Resp. Mem. pp. 10-16). That order,
which is rested on the Council’s authority under both
98 U.S.C. 137 and 332, restored to Judge Chandler
all civil, bankruptcy, and criminal cases assigned to
him prior to December 28, 1965, the date on which the
Clerk of the District Court filed the Council’s Decem-
ber 13 order. The present order also apportions new
business, on a defined basis, among the other judges of
| the district. It is the view of the United States that
: this order is both substantively and procedurally valid.
Whether the order could have been> issued under
Section 137 alone, it is unnecessary to decide. That
section authorizes and directs the judicial council for >
a cireuit to make ‘‘necessary orders’ for the division
, of business and assignment of cases in the event the
judges of a multi-judge district cannot agree among
themselves on these questions. In this capacity, judi-
cial councils are entrusted with the power originally
| conferred upon the senior circuit judge—now called
the chief judge of the circuit—by Section 23 of the
Judicial Code of 1911, 36 Stat. 1090, 28 U.S.C. 27
(1940 ed.).
The power conferred by Section 137 extends to
7 making binding, mandatory divisions not variable by
the district judges affected, although the order may, as
in this case, provide that it is subject to amendment
40
or modification upon the accord of the district judges,
Compare Ex parte Briggs, 15 F. 2d 84, 87 (Van Val-
kenburgh, J., at chambers in St. Paul, Minnesota), with
Case v. United States, 14 F. 2d 510, 513 (C.A. 8). Judge
Chandler, however, disputes the relevance of this section
because he claims there was no disagreement among the
district judges within the meaning of the statute, since
they disagreed only as to the disposition of matters
theretofore assigned (to him), a category of business
he argues is not encompassed by the statute. Neither
the language of the original legislation in 1911 nor its
present form provides much indication of congres-
sional intent on this question. While there is some
force to Judge Chandler’s position that the statute
was probably not concerned with. disagreement over
the division of work that has already been assigned,
the question need not be resolved here. (‘The Judicial
Council’s interpretation, that on these facts a disagree-
ment did exist, is also reasonable and is entitled to
considerable weight.) It is unnecessary to pass upon
Judge Chandler’s proposed construction of Section
137 because the Council’s outstanding order did not
affect previously assigned cases; instead, as Judge
Chandler insisted, it left them to him. Cases filed after
December 28, 1965, were apportioned among the other
district judges, an arrangement in which all judges,
including Judge Chandler, expressly concurred.
Whether under the circumstances the Council had au-
thority to fix definite ratios for the assignment of
future cases is a matter in which Judge Chandler, as
distinguished from his brethren, has no litigable inter-
est. And since the Council’s order (Resp. Mem. p. 13)
41
explicitly authorizes the district judges to alter the
arrangement by written agreement, it is difficult to
see how anyone can complain of the order. Indeed,
when, in July, 1967, the Council invited the district
judges to consider whether they wished to modify the
assignment designations, the judges unanimously
expressed the view that the present system is
satisfactory.
Supplementing the Council’s authority to act under
98 U.S.C. 137 is its power under 28 U.S.C. 332 to
“make all necessary orders for the effective and ex-
peditious administration of the business of the courts
within its circuit.” That statute, in our view, is inde-
penden!ly sufficient to sustain the Council’s February 4
order directing Judge Chandler to dispose of his back-
log of some 160 cases before certifying, as it was sub-
sequently explained, that he is willing and able to
- undertake new assignments. Indeed such an order has
been one of the more customary types of action taken
by the various judicial councils under this section. See
Shafroth, Modern Developments in Judicial Adminis-
tration, 12 Am. U. L. Rev. 150, 160 (1963).
Although Judge Chandler has sought to characterize
Section 332 as simply a “housekeeping” statute (Re-
ply to Suggestion of Mootness, p. 5), this contention
overlooks the deliberately broad responsibilities and
powers Congress conferred on circuit judicial coun-
‘ils when it created them in 1939. True, one of the
principal problems the councils were expected to deal
vith was the problem of the tardy trial judge who
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42
failed to respond to informal exhortations.* For
this reason the statute, which was in large measure
the brainchild of Chief Justice Hughes and other
Justices of this Court,” made it the express duty of
the judge to carry out the “directions”’ or “orders’’ of
the judicial council. See S. Rep. No. 426, 76th Cong,,
Ist Sess., p. 3 (1939) ; House Hearings, supra, pp. 13
(Chief Justice Groner), 21 (Judge John T. Parker);
Senate’ Hearings, supra, pp. 11, 14 (Chief Justice
Groner), 16, 18 (Arthur T. Vanderbilt), 34 (Alex-
ander Holtzoff).
But the language of the statute is not limited to the
mere abatement of delays in dispatching business, and
the legislative history confirms that Section 332 should
not be so narrowly construed.” Thus, Chief Justice
Groner of the United States Court of Appeals for the
District of Columbia, who was the Chairman of the
Committee of the Judicial Conference of the United
States that drafted the legislation, explained in the
In his biographical study of William Howard Taft: Chief
Justice (1965), AlpLeus Thoma: Mason quotes a letter in which
the late Chief Justice “helplessly” implored a district judge
to dispose of a case pending before him for four years (p.
191):
Of course I write this letter with no assumption that I
may exercise direct authority over you in the discharge of
your duties, but as head of the Federal judiciary I feel
I do have to appeal to you, in its interest and in the inter-
est of the public whom it is created to serve, to end this
indefinite situation.
24 See, generally, Chandler, Some Major Advances in the
Federal Judicial System, 31 F.R.D. 307, 383-392 (1963).
23 See Jimenez v. Aristeguieta, 311 F. 2d 547, 554 (C.A. 5),
certiorari denied, 373 U.S. 914.
43
Senate Hearings, supra, p. 11, after noting the prob-
lems of delay:
Those matters this bill undertakes to provide
for by outlining certain duties of the judicial
council. Under the present judicial set-up we
have no authority to require a district judge
to speed up his work or to admonish kim that
he is not bearing the full and fair burden that
he is expected to bear, ov to take action as to
any other matter which is the subject of criti-
cism, or properly could be made the subject of :
criticism, for which he may be responsible.
The bill also provides what is not now true, :
that it shall be the duty of the district judges,
when admonished or when matters are otherwise d
brought to his attention by the judicial council,
to take whatever steps are thought to be neces-
,
sary or declared to be necessary to correct those
things which ought to not exist in a well-run
judicial system. [Emphasis added. | *
Explaining the informational function to be served by
the Director of the proposed Administrative Office,
Chief Justice Groner later stated (Senate Hearings,
pp. 12-13) :
It is his duty to observe and see that whatever
is wrong in the administration of justice, from
whatever sources it may arise, is brought to the
attention of the judicial council that it may be |
corrected, by the courts themselves. * * *
And then again (id., p. 14):
4
I know that it may be said to be an acknowl-
edgement by the courts of the necessity of which
**This part of the testimony was included in the Senate Re-
port recommending passege of the bill. S. Rep. No. 426, supra,
p. 3.
44
I spoke in the beginning of my remarks, the
duty and responsibility upon themselves of pro-
tecting themselves against the criticism or
against those things which produce criticism. To
that extent, it impinges upon what in the very
beginning of things was considered to be the
independence of the courts. At the present time
a circuit judge or district judge is responsible
to his conscience. This bill does impose some
sort of instrumentality whereby, if his con-
science is not sufficiently quickened, it may he .
quickened by some action on the part of the
judicial council.
It is not, I think, an unfair or an unwise in-
pingement on the independence of the courts.
I think the very necessities of the work, the
strengthening of confidence on the part of the
people is the first essential, and anything which
properly provides for and leads to the accom-
plishment of that purpose, I am for. * * *
Before the House he explained that the mandatory
nature of the Council’s authority would be consistent
with the traditional independence of the courts (House
Hearings, supra, p. 16):
I think, from the judges’ standpoint, that is of
primary importance; and give them a chance,
as I said, perhaps brutally, to clean their own
houses, and be certain that they have the con-
fidence, which is the only asset that I know of
that a judge has for sacrificing a professional
eareer for a career on the bench—the confidence
of the per ple will not be destroyed.
When Judge John J. Parker, Senior Judge of the
Fourth Cireuit, was asked whether the statute con-
45
tained “any restraint’’ on the authority of the coun-
cil, he responded that the statute would have the
widest scope practicable (House Hearings, p. 22):
I do not think this bill does. Of course, I assume
this is true: That the council will be restrained
by the inherent limitations of the situation. They
woula know that, if they commanded a judge
to do something, unnecessarily or unwisely, he
would refuse to do it, and that would probably
be the end of the matter.”
In light of these expansive statements, the Judicial
Conference of the United States in 1961 adopted a
report that rejects the narrow view of the power of
judicial councils that Judge Chandler here puts for-
ward. See Report on the Powers and Responsibilities
of the Judicial Councils, H. Doc. No. 201, 87th Cong.,
Ist Sess. (1961). The report (p. 6) quotes the analysis
reached by then Circuit Judge Warren E. Burger:
These [last] two sentences of section 332 * * *
are ia general terms, but they are all-embracing
and confer almost unlimited power. Any prob-
lem—whatever it may be—relating to the ex-
peditious and effective administration of justice
within the circuit is within the power of the
circuit judicial council.
On the basis of the empirical evidence collected by
the Judicial Conference Committee on the practical
* Arthur Vanderbilt explained to the Senate Committee that
the bill had “teeth” in it because contumacious refusal to obey
an order of a judicial council would be “perfectly just cause
for the remedy and method of impeachment.” Senate Hearings,
p. 18. Chief Justice Groner expressed the same view to the
House Committee. House Hearings, p. 14.
46
interpretation of Section 332 by the various judicial
councils, the Report stated (p. 7):
In other words, most of the councils appear,
from the things with which they have dealt in
these situations, to have recognized that their
responsibilities and power extend, not merely
to dealing with the questions of the handling
and dispatching of a trial court’s business in its
technical sense, but also to dealing with the
business of the judiciary in its broader or insti-
tutional sense, such as the preventing of any
stigma, disrepute, or other element of loss of
publie confidence occurring as to the Federal
courts or to the administration of justice by
them, from any nature of action by an individ-
ual judge or a person attached to the courts.
The importance of the judicial councils in the admin-
istration of justice in the federal courts, the Report
continued, is underscored by the variety of functions
entrusted to councils by special statutes, including the
authority, under 11 U.S.C. 62(b), to remove bank-
ruptey referees for cause (pp. 7-8).*
In concluding that Section 332 is entirely adequate
as presently drafted for the judicial councils to per-
form supervisory functions beyond mere “housekeep-
ing”, the Report summarized (pp. 8-9) :
% See, also, Shafroth, Mlodern Developments in Judicial Ad-
ministration, 12 Am. U. I Rev. 150, 160 n, 18:
A partial list of the statutes by which the judicial councils
are given certain powers and duties include the following:
28 U.S.C. §§ 134 [authorize district judge to live outside
his district], 137 [divide business among district judges in
the absence of tleir agreement], 140(a) [authorize preter
mission of session of court], * * * 294 [assign retired cir-
cuit or district judges to perform judicial duties], 29
al tll V—w"se ne 3 — SS”
47
On the basis of the foregoing, the Judicial
Conference of the United States is of the fol-
lowing views and conclusions:
(1) Under section 332, the judicial councils
are intended to have, and have, the responsi-
bility of attempting to see that the business of
each of the courts within the cireuit is effec-
tively and expeditiously administered.
(2) The responsibility of the councils “for
the effective and expeditious administration of
the business of the courts within its circuit”
extends not merely to the business of the courts
in its technical sense (judicial administration),
such as the handling and dis»vatching of cases,
but also to the business of the judiciary in its
institutional sense (administration of justice),
such as the avoiding of any stigma, disrepute, or
other element of loss of public esteem and con-
fidence in respect to the court system, from the
actions of a judge or other person attached to
the courts.
(3) The councils have the responsibility and
owe the duty of taking such action as may be
necessary, including the issuance of ‘‘all neces-
sary orders,” to attempt to accomplish these
ends.
(4) These responsibilities should ordinarily
be approached, in the spirit and tradition of
the judicial institution, in an attitude of at-
tempted cooperation and assistance to the dis-
[econseuc to assignment of active circuit or district judge],
832 [the general statute here involved], 457 [direct location
of
records]; 11 U.S.C. 62(b) [remove bankruptcy referee
for cause, after notice of hearing}, 65 (a), (b) [recommend
the number and territories of bankruptey referees], 68 (a),
(b), (c) [recommend salaries and fees of referees], 71 (b),
(c) [recommended filling referee’s vacancy]; * * *.
i
48
trict courts and not of purported policemap.
ship, since the purpose of the statute is to make
the Council an instrument to help prevent prob.
lems from arising, to help find solutions for
those which have arisen, as well as tu take such
corrective action for prevention or solution “as
may be necessary.”
We think that these conclusions are eminently sound,
and that the outstanding order of the Judicial Couneil
of the Tenth Circuit comports with them. The totality
of circumstances recited in the Council’s order of De-
cember 13 established a prima facie basis for taking
some appropriate action to correct what the judges
of the Council knew from their direct experiences and
from matters of official record were actual or ap-
parent threats to public confidence in the administra-
tion of justice. It was assumed throughout the con-
sideration of Section 332 that the councils would
ordinarily proceed ex parte. See, e.g., House Hearings,
p. 14 (Chief Justice Groner). In proposing a draft bill
to the Judicial Conference of the United States in
1938, Chief Justice Hughes had explained (as quoted
in the 1961 Report of the Judicial Conference, supra,
p. 3):
When you come to the supervision of the work
of the judges, * * * there you have the great
advantage of the supervision of that work by
the men who know. The circuit judges know the
work of the district judges by their records that
they are constantly examining, while the Sv-
preme Court gets only an occasional one. And
the circuit judges know the judges personally
in their districts; they know their capacities.
49
And if complaints are made, they have imme-
diate resort to the means of ascertaining their
validity. That direct supervision can be made
very effective, and I think far more so than
the more remote supervision, entailing a great
deal of labor and circumlocution, imposed upon
the Chief Justice.”
To the extent that due process of law demands that no
action be taken on the basis of ex parte assertions or
suspicions of impropriety or nonfeasance, the statute
certainly allows the council sufficient flexibility to
fashion whatever procedures constitutional values may
warrant in particular instances. In this case, the Coun-
cil did set the matter for a hearing after it entered its
interlocutory order, but Judge Chandler refused to at-
tend the hearing, even though he was authorized to be
accompanied by counsel. His refusal to participate in
the hearing that was offered cannot now be excused
by the argument that he was challenging the very ju-
risdiction of the Council (Reply to Suggestion of
Mootness, p. 3). By that time the issues and statutory
premises for the Council’s jurisdiction had sufficiently
crystallized that Judge Chandler was not entitled to
ignore with impunity the Council’s order (Resp. Mem.
pp. 5-7) setting the matter for a hearing. Nor, in our
view, can he fairly contend that the breadth of the
** Arthur Vanderbilt made the same point to the Senate Com-
mittee (Senate Hearings, p. 16) :
This bill bas at least that very great advantage that, the
circuit judges being responsible for the condition of (ue dis-
trict courts within the circuits, have it within their power
to know much more about what is going on in that cireuit
than could the Chief Justice or the Associate Justices of
the Supreme Court. here at Washington, * * *
50
invitation to ‘‘present such matters to the Council as
he may deem fit’’ (Resp. Mem. p. 6) did not contain
adequate notice of the subject matter of the hearing
(Reply to Suggestion of Mootness, pp. 3-4). In its
December 13 order, the Council had listed a number
of specific grounds on which it believed there. was a
basis for assertion of its authority under 28 U.S.C.
332 (Pet. App. ii). Taken together, the Council’s
preliminary orders provided sufficiently specifie infor-
mation about the nature and purpose of a hearing to
preclude Judge Chandler now from arguing that the
extant order of February 4, 1966, is procedurally
defective.
By the same token, the Council acted reasonably
and within the ambit of its continuing authority in
representing that it would consider modification of its
assignment order (assuming the district judges had
not agreed anong themselves, as they were authorized
to do, to alter it) upon Judge Chandler’s certification
that his backlog has been substantially reduced and
that he is willing and able to undertake new
assignments.
The United States appreciates the profound im-
portance of maintaining an independent federal judi-
ciary. But no judge of a lower federal court can claim
that the Constitution forbids supervision of his official
conduct—and his unofficial behavior insofar as it may
affect the administration of publie justice. Sections 137
and 332 of the Judicial Code are valid congressional
responses to the need for the federal courts to main-
tain themselves as effective and trustworthy instru-
al
ments of justice. The only outstanding order of the
Judicial Council of the Tenth Circuit, that entered on
February 4, 1966, is authorized by these constitutional
statutes and was validly promulgated. |
CONCLUSION
The motion for leave to file a petition for a writ of
mandamus and/or prohibition should therefore be
denied.
Respectfully submitted.
Erwin N. GRIswo.p,
Solicitor General.
Puintie A, Lacovara,
Assistant to the Solicitor General.
SEPTEMBER 1969.
U.S. GOVERNMENT PRINTING OFFICE: 1969
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.