Petition for Writ of Certiorari — Hvass v. Graven (No. 259)

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« IN THE

SUPREME Seri OF THE UNITED STATES.

“Oétober 1 Term, I ok

o.— ry

CHARLES T. LIVASS | by

Petitioner,

¢ vs.

“THI OXOMABLE HENRY NX. GRAVEN, AS JUDGE -OF

THE-CNELED STATES OFSTRICT COURT FOR THE

NOKTHERN DISTRICTJOF IOWA, AND- THE-HON-

ORABLE EDWIN ROHICKLIN, AS JUDGE OF THE

UNEPED STATES” DISTRICT COURT FOR THE

NOKIHERN DISTRICT OF TOWA, BY ASSIGNMENT, -

= EE ,

ee | _ Respondents.

PRETITION FOR A WREE OF CERTIORAREL TO THE

_ UNLTPED STATES COURT OF APPEALS

FOR THE EIG HTH C IRCU i

CHARLES ALAN WRIGHT

301 ‘Townes Hal!

“Austin I Texas

WARREN B. KING

45 Northwestern Bank Bldg.

Minneapolis 2.) Minnesota

-“*

Attorneys for Petitioner

WHEL TAM J BAWEINGS | <

6] {) jib iyis be tric Blde : “ ‘

S “tr\ { its ling :

CIP Cig unvel

_ INDEX

Opinion below 1

4 Jurisdiction ae a » l

Question presented: | 9

Statutes involved 2

‘Statement ss ; Doe? ee ee’ eure

iS Reasons for granting the writ 6

Conclusion : a , me 9

- Appendix — Opinion below _. mr ar " 9

| Judgment below , eae .'

| _ CITATIONS

. ao Sa

Frad v. Kelly, 302 U.S. 312 (1937 ) a 7

_ Sunrise Mayonnaise, Inc., v. Swift & Co, 88 F. —

187 (E.D.Pa. 1949): ax

United States v. Brooks, 176 F.2d 482 (ath Cir. 1949) is a

*: United States v. Hvass, 355 U.S. 570 (1958) - 4

United States v. Hvass, 147 F. —_ 994 (N. D.lowa.

_ 1956)" ‘oe 4

United States Vv. isailiniche. 213 F. od. 235 (7th ( Cir.

1954), cert. denied 348 U.S. 826 (1954) S

‘STATUTES: ; ! oer :

28 U.S.C. § 292 (b) er ere

2 USC. ¢S6- . =... *. _ ce: . 26,7, 8

28 U.S:C. § 1254 (1) 1

Judicial Code of 1948, — 13. ‘sw. U.S.C} §\291- |

eo eee ae Oe aN ww Me 6

1 +) F

MISCELLANEOUS:

Annual Report of the Director of the Administrative --

Office of the United States Courts, 1957, p. 123. 6

2 IN THE

SUPREME COURT OF THE UNITED STATES

‘October Term, 1958

CHARLES T. HVASS,

’ Petitioner,

° : . sts }

vs.

“THE HONORABLE HENRY N. GRAVEN, AS JUDGE OF

THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF LOWA, AND THE HON-

ORABLE EDWIN R. HICKLIN, AS JUDGE OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF IOWA, BY ASSIGNMENT,

eer

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner prays that a writ' of certiorari ‘ice to review -

the judgment of the United. States Court of Appeals for the

5 entered in the above-entitled case on June

26! 1958 Par

CITATIONS TO OPINION BELOW

The opinion of the Court of Appeals, printed in bina

A he reto, p. 9 infra, is not vet reported. ;

“hee _ JURISDICTION

The judgme nt of the Court of Appeals was entered on

June 26, 1958. The’ jurisdiction of this Court is invcked

under 25U. S.C. § 1254(1). oe

LS, e

2 .

"2... 4QUESTION PRESENTED

Dues ‘a judge who, while sitting by designation and as-

‘igimenit in another district; has granted a motion: to dismiss ©

wcruninal indictment on on¢ of several available grounds,

have jurisdiction, conferred’ by 28 U.S.C. § 296, to make

final disposition of ‘the motion on the other grounds urged

in ity support where, after expiration of the period for which

le was designated and assigned to-the district, this Court

has reversed dismissal ‘of the indictment on the ground

originally relied on by the judge? . ;

STATUTES INVOLVED

The statutory provisions itivolved are 28 U.S.C. § 292(b)

_ and U.S.C. § 296, which provide as follows:

a * 292. District judges

°° *(b) The chief judge of a circuit may, in the public.

-interest, designate and assign temporarily any district

judge of the circuit to hold a district court in any district

within the circuit, ’

- . . § 296. Powers upon designation and assignifent

A. justice or judge shall discharge, during the period of

his designation and assignment, all judicial duties for

which he is designated and assigned.. He may be required

to perform any duty which might be required of a judge

of the court or district or circuit to which he is dé&ignated

and assigned. . i

Such justice or judge shall have all the powers of a

judge of the court, circuit or district to which he is desig-

nated and assigned, except the power to appoint any

person to a statutory position or to designate permanently

a depository of funds or a newspaper for publication of

legal notices. °

te

a

3°

A justice or judge who has sat hy désignation and as-

. sijiement in another distritt or -circuit may, nothwith-

standing-his absence from such district or circuit @r the

expiration of the period of his designation and assignment.

decide or join:in the decision and final disposition of ‘all

matters submitted to him during such period. and in the

- consideration-and disposition of applications -for rehe “aring |

or ‘further proceedings i in such matters. J

je

| STATEMENT ee 4 C

* Sleiiine was indicted for perjury in the Northern’ Distr ict ©

of Iowa on March 20, 1956. e he indictment charged that

he had committed perjury in a hearing held in that court,

respondent Judge Henry N. Graven presiding; pursuant to* -

Local Rule 3 of that district. (R. 2). On March: 21, 1956, ~ 4

"Judge Graven ordered that “all proceedings” in. the case be)

handled by Judge G seorge T. Mickelson, of the District Court’

of South Dakota. (R™10). Judge Mickelson had been desig- |

nated and assigned to the Northern District of Iowa by the

chief judge of the Eighth C ircuit, in accordance with ,25

U.S.C. § 292(b), for periods finally es are 1, 1957.

(R. 35).

Subsequently petitioner moved, to dismiss the indictment

for failure to state.facts sufficient to constitute an offense

against the United States. (R. 28): In connection with this

motion petitioner and the United States filed exteng@Ve briefs

ard furnished exhibits to the court, and lengthy argument

was heard, by Judge Mickelson on November 13, 1956. (R:

4). On December 20, 4956, Judge Mickelson filed a menio-

randuny granting the notion to dismiss, and judgment was

entered aecordingl” ‘on December 27, 1956. (R. 1I- 18).

Petitioner's principal contention had been that Local Rule 3

under .which he was examined, wis invalid, but Judge

Mickelson did not’ pass on that. question, saving:

The nar ie that Rule 3 js‘ invalid upon several

grounds and contends that his motion to dismiss the in-

é

« ft

amt

jlowa 1956). 4

i

- . y. Heaés,355 U.S. 570, 5781

; 4

ig } ,

dhetinent must be sustained for. this reason. In my opinion

Jit is not necessary’ for me"to pass upon thig“G estion. I

sunply hold that Rule 3, under, which the-deféndant took

lis oath, Is not such a law of the United States as was in-

tended by Congress*to support an indictment for perjury.

Ko 1S); United States. v.,,Hvass,« 147 F.Supp. 597 (N.D.

| " 9 |

The United ‘States appealed the dismissal of the indict-

ment’ to this Court, under. the Criminal Appeals Act, 18

ie ‘ 3731, and thi$ Court, holding Judge Mickelson’s

cdustruction of the perjury statute to be erroneous, reversed

istrict Court “for further

ith this opinion.” United States

958). The Court was at pains.

in its opinion twice tO indicate that the question, of the

validity of Local Rule 3 was not béfore. the Court, because

vuml remanded the ‘case to the

proceedings not inconsistent

.' of the restricted scope of-appeal under the Criminal Appeals

Act, and that the Court was not deciding whether‘ or ,ot-

Rule 3 is invalid for any reason. Id. at 574, 576.

The decision of this Court was handed down on March 3,

1958. On March 10, 1958, petitioner, after first communicat- . .

ug with Judge Mickelson, renewed his motion to dismiss

the indictment. (R. 5). He did so by service on the United

"States Attorney of a motion in all Tespécts identical to that.

originally made (R. 20’), and a notice of motion specifying

that the invalidity of ‘Local Rule 3 would be telief: on. (R.

19). The following day Judge Gravtn made an order re-

citing that respondent Judge Edwin R. Hicklin, of the -

Southern District of Iowa, was-“the only out of district Judge’

who now holds a current assignmeiit ‘to this District,” and

ordering that all further proceedings in the case be. handled

by Judge Hicklin. (R. 21). , ae 3

m athe A

On March-22, 1958, the Court of Appeals granted leave

to file‘an original civil action for writ of prohibition-and man-"

damus against Judges Graven and Hicklin, and stayed all

¢

atid

proceedings in the criminal action until further.order‘of the.

court. (R. 23). In the eivil action a writ was sought to.re-

“strain the respondent judges from complying with the order

purporting to reassign the case to Judge. Hicklin, and, from

interfering in any way with disposition of the case by Judge

Mickelson. (R. 8).

On June 26, 1958, the Court af Appeals denied the writ.

ruling that the pending motion to — indictment was

not a matter submitted to Judge Mickelson within the time

of his assignment and designation ‘to the Northern District

ofdowa, and thus that Judge Mi¢kelson no longer had juris-

‘diction to dispose of the motion. °

o

°, w 10 be entitled to the writ of prohibition, petitioner. had

-” to establish not only. that Judge Mickelson: has juris-

jurisdiction, Judge Graven lacks power to assign the

case to another judge, and that the case is.a¥ proper

ty" one for issuance of an extraordinary writ. Petitioner

co expressly conceded below that if Judge Mickelson no

: press?) Z g

longer had jurisdiction, Judy Graven’s order resassign-

- ing the case was proper, and no writ should issue. The -

Court-of Appeals; having resolved the issue of Judge

Mickelson’s jurisdiction adversely to. petitioner, naturg-

_ ly ruled against him on the other issues. Thus, for

example, the Court of Appeals held that it was proper

for Judge Grayen to assign the case to Judge Hicklin

bgcause this-ogder merely “assigned it to the only jadge.

aside frog himself, who then had power to exercise

~ the jurisdiction of the court.” (P. 14 infra), These other

issues do not merit reyiew in this Court, at least on the

present record. Thus if this Court should grant cer-

tivrari.and hold that Judge Mickelson has jurisdiction,

the case should be remanded to the Court of Appeals

to consider the other issues in the light of such a hold-

diction of the motion, but also that if he has such

>

. 6

REASONS FOR GRANTING THE WRIT.

|. The proper construction of 28 U.S.C...4-.296, defining

* the powers of judges sitting by designation and assignment,

is a question of great importance to the administration of.

_ the’ federal courts. In order to permit the fullest and most

efficient use of judicial manpower, Congress has provided,

in Chapter 13 of the Judicial Code, 28 U.S.C. §§ 291-296,

avariety of procedures by which judges of one court may

be assigned to sit for a time in another court, and the services .

of retired judges may be utilized. These provisions are fre-

quently used. In 1957 there were 11 assignments of circuit

judges to sit in other circuits, and 26 assignments of district

judges to sit outside their circuit. Annual Report of the

Director of the Administrative Office of the United States

Cotdrts, 1957, p. 123.

Statistics.are not available as to the number of assignments

of district judges to sit in other districts within their circuit,

or of circuit judges to hold district court, or-of retired judges

or justices to active duty, but it is plain that these must be

very numerous. . The ‘statute Ynvolved inthe present case,.

»> 25 U.S.C. § 296, applies .to all these situations and defines

the powers of any judge sitting in a court other than that to

hich he is actively commissioned. The yauable procedures

*4or designation and) assignment of judges cannot be used to

their fullest poterftial ‘so long as the powers of such judges

» are not Clearly defined, or are left 'to varying interpretations

among the circuits. . ; *s

2. The decision bélow is contéary to the plain language of

. . the.statute. The statute expressly authorizes: the judge sit-

ting by assignment to make: “decision and final disposition”

of all niatters submitted to him during the period for which

he was assigned, and to dispose of “further proceedings in

such matters.” 28 U.S.C. § 296. Petitione’’s motion-to dismiss

. in 1956 challenged the sufficiency of the indictment to state’

an dttense against the United States. and, more specifically, °

the validity of Local Rule 3. These are precisely the issues

o°

i *

‘-necessaty delay .a

7 authorized by 28 U.S.C. ¥ * 296. Id. at 484.

6]

v. : a 7

now ponding in the Northern Districtsof eda: Until thes

“are resolved} there willnot havebeen any “decision and final

disposition” of the thatters submitted to Jiidge Mickelson in

1956. This Court; reversing Judge Mickelson’s order of dis”

anissal, remanded for ° ‘further proceedings : not inconsistent

with this opinion”; ; the statute entrusts such “further pro-

ceedings” to the visiting judge who has already once heard

the matter. The case is quite unlike Frad x: Kell y, 302 US

312 (1937), for there the application for termination of pro-

bation presented, to the visiting judge who had: presided at

the trial raised legal issues never considered by the visiting .

judge, and turned on facts which had occurred after the aS:

signmenit of the visiting judge .had expired, while in the

present case the niotion raises an issue-which has been before

Judge Mickelson“once and which he might have decided at

that time.

3. The decision below is inconsistent with decisions. of the

Fourth and Sev enth Circuits. The Fourth Circuit case arose

out of a judgmenit for claimants ordered by a visiting judge

- in-a suit «under the Tort Claims Act. Fhe Court of Appeals, ‘

thinking the Act- inapplicable, reversed, but was in tum

reversed by this Court, which held the Act applicable but

.remanded the | case to the Court of Appeals to determine

whether disability benefits and medical payments which the

claimants had received or would receive from the govern-

ment should be deducte their recovery under the Act.

On remand, the Fourth it held that such deductions

should be made, and remanded’ the case to the visiting jrdge, :

thofgh his assignment had purportedly expired, to make

findings as to the value of such payments and to enter judg-

_ ment accordingly. United States v. Brooks, 176 F.2d 482 (4th

Cir. 1949). Chief Judge Parker, speaking for the court, stated

that such a pies. grt the visiting judge would “avoid: un- .

duplication of effort,” and that it was

rd)

In the Seventh C inesit case, two persons indicted for >

perjury w ere arraigned j ‘before a visiting judge on July 9th.

7 |

ayes : , OX oi 2" , ee

8 ,

and pleaded not sige Yhe judge’s assignment to the dis-

trict purportedly expired on July 16th, but in October he

returned to the district and presided ver the trial of the -

defendants. On: appeal from their conviction defendants.

contended that the visiting judge's assignment had expired, = \

and that he had no jurisdiction to conduct’ the trial. The g

appellate court rejected this contention in a reasoned Opinion, | Fe

. saving that the issue of guilt or innocence framed by the de- —

tendants’ pleas of not guilty-remained unfinished business,

properly within the jurisdiction of the visiting judge, until

it was finally determined by verdict and ‘sentence. United |

States v. Marachowsky, 213. F.2d 235, 249-244 (7th Cir.

1954), cert. denied 348 U.S. 826 (1954). Similarly in the

present case 9 sap motion to dismiss the indictment

raised an issue of Iaw as to the sufficiency of the indictment

which has not yet been resolved and which is therefore

within the jurisdiction of Judge Mickelson.’

Nee

Also in point is Sunrise: Mayonna.se, Inc., v. Swift & Co.,

5S F.Supp. 187 (E.D.Pa. 1949), where the-regular judge of —

- a district held that he lacked jurisdiction to hear reargument -

.y of a motion which had been presented to a visiting

*” =judge, since “the particular motion which this court is asked

to rule upon was in‘cofitroversy and was subject to a ruling (85

by the visiting judge at the time of his’ departure.” jee ang

The facts in these cases are sufficiently different from

those in the present case that it may be that the degisions

are not technically-conflicting. But it. is @pparent that the:

construction placed on 28 U.S.C. § 296 by the Eighth Circuit

in the present case is far mpte restrictive than that of the

other courts whose decisions’ are here noted.

> : ae i

teers fh

. ~@

Garpner, Chief Judge.

9,

CONCLUSION

For the foregoin@ isons, this petition “for a writ of

certiorari spiraled be granted.

a | Respectfully ices

4, CHARLES ALAN WRIGHT

301 Townes Hall

Austin 12, Texas - ~

- WARREN B. KING :

945*Nerthwestern Bank Bldg.

Minneapolis 2, Minnesota’ .

Attorneys for Petitioner *

WILLIAM J. RAWLINGS — 8

561 od aba Electric Bldg. .

Sioux City, I owa

Of Counsel :

APPENDIX A

OPINION BELOW

This is an original proceeding hioaaaik: by petitioner I

-Charles T. Hvass seeking writ of prohibition and manda-

mus agwainst respondents, the Honorable Henry: N. Gravén.

as Judge of the United States District Court for ‘the Northeth

District of Iowa, and the Honorablé Edwin R. Hicklin, as

- Judge of the United Stages District Court for the Norther .

District of Iowa, by assignment.

. Petitioner Hvass was on March 20, 1956, indicted in the

Northen District of Iowa for perjury allegedly committed

in a proceeding before Judge Graven. Thereafter, on March

21, 1956, Judge e E an order assigning the case

for trial to the Honorable George T. Mickelson, United

States, District Judge for the District of = Dakota, then

ie

&

| Py

‘ Following the entry of this order and: before any proe -

&

10

sitting in the Northern. District of -lowa by assignment.

Without arraignment petitioner filed a motion to dismiss

the indictmerit on the ground that it failed to state facts

sufficien to Constitute an offense against the United States.

On hearing of this motion Judge Mickelson sustained Same

and entered an order dismissing the indictment. From this

order the United States perfected a direct appeal to the

"United States Supreme Court and in due course, on the’ 3rd

dav of March? 1958. the Supreme Court reversed the order

and remanded the case to the United States District Court

* for the Northern’ District of Iowa for further proceedings.

In the méantime and on January 1, 1957, Judge Mickelson’s

assignment to the Northern District of Iowa expired and |

respondent Judge Hicklin was duly assigned to the Northe

- District. of Towa on the 1st dav of September, 1957, for a

period expiring the Ist day. of September, 1959. On March -

Il, 1958, petitioner, still without arraignment, filed a néw

" motion to. dismiss the indictment. Therettpon Judge -Graven

entered the following ordey: e°

“On March 20th, 1956, when the Indictment was re-

turned in this case the then United States District Judge

for the Southern District of Iowa was disabled. He died

in December; 1956. Since August, 1957, the, Honorable —

Edwin R. Hicklin has been the United States District

Judge for the Southern District of Iowa. He is the only

out of district judge who now holds a current assignment

to this District. : ,

IT IS, THEREFORE, ORDERED that all further pro-

‘ceedings in the above-entitled case will be handled by

the Honorable Edwin R. Hicklin, United States District

Judge for the Southern District of Iowa, with whom

counsel in the case will take up all matters directly

which relate to the case.” |

La)

**

s

ceedings had been had hefore Judge Hicklin, the present ,

proceeding was commenced, seeking writ of prohibition and.“

mandamus against respondents restraining, prohibiting and

4

r

ll --

preventing them from making, entering or enforcing, or in

any manner complying with said order reassigning the case.

-and restraining, prohibiting and preventing them from in

any manner interfering with, directly or indirectly, any.

fusther proceedings in said action or the disposition the reot

by Judge. Mickelson. ~

- In this proceeding petitioner challenges the validity of

the order designating Juggé Hicklin to try- the case on sub.

stantially the followin grounds: (1) the case of Upited

a — v. Hvass is properly pending before Judge Mickelson,

2) Judge Graven lacks jurisdiction .to reassign a pending.

case, and (3) issuance of an extraordinary writ in these

cire umstances is appropriate.

Judge Mickelson was designated and assigned to the

Northern District of Iowa, for periods finally expiring Janu-

ary 1, 1957. The designation was a general one * *'° to

hold or assist in holding the District Court of .the United

States in and for the several divi ‘isions of the Northern Dis-<—

trict of Iowa ° * * in place or in aid of the Honorable

Henry N. Graven, United States District Judge for the said -

Northern District of Iowa.” The designation was made _

pursuant ‘to statutory authority providing that:

“The chief judge of a circuit may, in the public in-

terest, designate and assign temporarily any district

judge of the circuit to hold a district court in any wed

trict within the circuit.” Section 292(b), Title 25.

WSCA. . : *

The powers that: may be exercised by a district judge so

designated .and assigned are prescribed by statute. Section

296, Title 28, U.S.C.A. The statute, after providing that a

designated and assigned’ judge shall have all powers of a-

judge of the court to which he is designated and assigne d.

provides that: =.

“A justice or judge hie has sat by designation and

assignment in another district-or circuit may. not-* :

withstanding his absence from such district or circuit

a

ee

or the expiration of the period of his designation and

assignment, decide or join in the decision and final

disposition of. all matters submitted to him during

such périod and in the consideration and disnesition

of applications for rehearing or further proceedings |

in such matters.”

As herein recited, immediately following petitioner's in-

dictment Judge Graven referred the case to Judge Mickel-

son who was then acting under assignment to the Northern

District of Iowa. Petitioner then presented to Judge Mickel-

. Son a motion to dismiss the indictment. That Jnotion was

sustained and Judg@Mickelson entered an order on the only |

matter submitted to him, and so far as he was concerned °

the case was terminated by an order of dismissal. Petitioner

had not been arraigned and the question of his guilt or in-

nocense had tiot been made an issue by the entrance of

any plea. The assignment and designation of Judge Mickel-

son specifically provided that, “This assignment shall extend

to cover disposition of any matters submitted during the

above period of assignment.” At the expiration of the ‘period

of his assignment there were no undisposed of matters which

had been submitted to him during his period of assignment. -

The extent and limitations of the power-of an assigned dis- -

trict judge ate well defined by the United States Supreme

* Court in Frad vy. Kelly, 302 U.S. 312, as follows: ;

3 ‘

nd . When ‘an assigned judge has presided at the trial

of a cause, he is to have power, though the period of

his service -has expired, and though he’ may have re-

turned to his own district, to perform the functions

Which are incidental and supplementary to the duties

performed by him while . present and acting in the

. designated district. And where a cause has heen sub-

mitted to him in the designated district, after his re-

. turn to his own district he. may enter-decrees or orders

and file opinions necessar—te-dispose of the case, not-

withstanding the termination of his period of service

in the foreign district. But the Act goes no further.

would unduly lengthen this opinion and serve no ‘useful

13

It clearly does not contemplate that he -shall dhecide

any matter which has not been submitted to him within

the designated district.” (Emphasis supplied. }

oge : Z ‘ ‘. i ;

_ The power reserved-which-may . be exercised after the ex-

. piration of an assignment is illustrated by the decisions in

‘Clarke v. Chicago, B. & Q. R. Co., 10 Cir, 62 F.2d 440 anil

- United States v. Goldstein, 8 Cir., 271 F. 838: In the, instant

case the motion filed by petitioner does not seek a-rehearing

~~ on his prior decision, nor does he seek any further action on

that motion, but he appropriately files a new motion recog:

nizing that final action had theretofore been taken on his

_ first motion. We do not think the pending motion can be

said, within the purview of the statute, to present for con-

sideration .a matter ‘submitted to Judge Mickelson within

the time of his assignment and designation to the Norther

| pager lowa. The decisions in Sunrise Mayonnaise. Inc

- Swift & Co., E.D.Pa., 88 F. Supp. 187; United States v.

Brooks. 4 Cir., 176 F.2d 482; United States v. Garsson. S.D.

N.Y., 291 F. 646 and United States v. Marachow sky:7 Cy

213 F.2d 235, relied’ upon by petitioner on this pointy;

readily distinguishable. on their facts, and analysis of

purpose.

- But it is contended that Judge Graven was without juris-

diction to reassign this case to Judge Hicklin. There is no.

doubt that Judge Graven was the Chief Judge of the North-

ern District of lowa and as such had power f exercise whiat-

ever jurisdiction was vested in that court. Sections 136 and

137, Title 28 U.S.C.A.. The effect of petitioner's contention

is that this ase, havi ing once been: referred to Judge Mickel:

son while he had power to exercise the jurisdiction of the,

United States District Court for the Northern District at

lowa, vested in him exclusive power to hear and detersur

the. case. The statute is-permissive ‘in form and provides

- that an assigned judge, after the expiration of his assigininent

“may” act, etc. There ma, well be cases in which a talur

of the assigned judge to aet in matters submitted to hin

14°

during the time of his assigrment would result in’ a mis-

“carriage of justice, in Which event it would be an abuse of

_ discretion on the-part of the assigned judge not te act. and

there might well be circumstances under which it would be

an abnse of discretion on the part of the Chief Judge not to

reter the decision in such matters to the assigned judge, but

there are no such circumstances apparent inthe present case.

Carried to its logical conclusion petitioner's contention would

prevent any case once aissigned’ to a’ distgict judge for de-

cision and trial thereafter to be assigned to another district.

judge. The prevailing Practice of the district judges in this

circuit at.least is to the contrary. See Wisniewski v. United

States, § Cir., 247 F 2d 292: Segal vy. United States, 8 Cir.,

| 246 F.2d 814! American Surety Co. y. Schottenbauer, 8 Cir.,

Fd... In each of these cases there were two trials, -

each being had before a different judge,

°

: - S: 7“? : . Aa i

Jurisdiction to try’ petitioner's case is vested in the United p

States District Court for the Northern District of lowa and

it remains there notwithstanding the fact that. Judge’ Mickel-

son, while assigned to the Northern District’ of Towa, had

“power to exercise that jurisdiction. He did not, at the

expiration of ‘his period of assignment, retain or take with

him out of the district. the power to exercise that jurisdiction

_ &xcept as to matters submitted to him while he was’ so as-

signed. pines

.

- It is-argued that Judge Graven did not have authority

to revoke the old order by which he. assigned the case to

Judge Mickelson ‘for hearing, The short answer to this con-.

tention is that he did ‘not revoke his old order nor withdraw

the case from Judge Mickeison and assign it to Judge Hick

lin. He merely in dué Course as an administrative act routine-

_Wvassigned the case on his docket and assigned it to the only

indge. aside from himself. who then had power to exercise

the jurisdiction of the court. This is nade abundantly clear <

In Judge Graven’s memorandum Opinion wherein: it is said:

“It is the further view of the ( -ourt under the type

vf assignment referred to that the Judge of the District’ *

’ 15

<

retains control of the docket of his District and the

assignment of cases, subject only to the limitations that

- matters presently under consideration. by the outside

Judge should aw ait his consideration and that reviews

of his rulings and — should not be had. |

Manifestly, the orde® here enalied did not affect litiva-

tion hefore another judge, as was the case in Unite d States

. Heath, Hawaii, 103 F. Supp. 1, -relied on by petitianes

t hein is no suggestion that Judge Hicklin is “disqualifie “d

nor is there any doubt that he has the power to exercise. -

under his assignment to the Northern District of Iowa. the

jurisdiction of that court, and a litigant has no vested, ri; shit

to o hav e his case tried before any particular judge. In fect hu

_ United States, 8 Cir., 182 F.2d.556, we said:

: “But even if control over the acelin Of Cases

were not observed by the court under the rule the

judges have inherent power to administer the baisiness

of the courts in an orderly way. Litigants have no vested

right in the orde¥ in which cases are assigned for trial,

and it is not contendéd that tle judge to whom the case

was assigned was in. dny way disqualified ~

The issuance of, the extraordinary writs “sought in this .

proceeding should be confined to cases where the petitione:

has an unquestioned legal right to have the performance of

. the particular duties sought to, be enforced or enjoined. They

will not be issued as a matter of right. As said by the United

States ~~ Court. in Roche v. Evaporate id — Ayyn-

319 U.S. 21:

“The traditional use of the writ in aid of appellat

" jurisdittion both at common kaw and in the federal

courts has been: to confine an inferior court to a lawtu!

exercise of its prescribed jurisdiction or to conipel it"

exercise its authorits when it is its dtity to do So

The case of La Buy v. Howe s Leather Co... Tn 2s

249, may be said to have liberalized the rule some hei to

the exte nt that the Writs may issuc ine xceptional cases where

ey vee |

OR

there has been-a flagrant abuse of discretion by a trial judge.

In Great Northern Railway Company v. Hyde, 8 Cir., 245

F.2d 537, in discussing the La Buy case we pointed out that:

“The La Buy case, as the Supreme Court took pains

to point out, presented an extreme situation of a District

Judge abusing judicial power which ‘amounted 5

less than an abdiction of the judicial function depriving

the parties of a: trial before the court ‘on’ the basic

issues involved in the litigation.’ ”

_It is only in the exceptional case that the appellate court

will exercise its descretion to issue such writs and we have

consistently held that this discretion should be sparingly ex- .—

ercised. Sound Investment ¢- Realty Co. v. Harper, ‘8 Cir.,

ACS F.2d 274; Hydraulic Press Mfg. Co. v. Moore, 8 Cir., 185

‘F.2d 800: Leimer v. Reeves, 8 C ‘ir., 184 F.2d 441; Wabash R.

Co. v. Duncan, 8 Cir., 170 F.2d 38, In Sound Investment &

Realty Co. v. Harper, Supra, we said: : |

~The application is addressed to the sound judicial

discretion of the court but is subject to rules of pro-

cedure governing such matters. Before the court will

issue the writ it must be madesto appear that the pe-

. titioner has an unquestioned legal right to have the

_ performance of the particular duties sought. to be en-

-torced. It must also appear that petitioner has no other .

plain, adequate and complete method of obtaining the *

relief to which he is ultimately entitled. In other words:

it must appear that without the issuance of the writ :

there will be a miscarriage of justice.”

In the Harper case we also said:

“The writ however, may not be invoked as a sub-

stitute for appeal and it: will not lie as a general rule

Where there is a remedy by appeal even in cases where

such an appeal May involve ‘inconvenience. delay or

eCApCTSE to the petitioner.” ;

We do not think there are any such exceptional circuni-_

tances in this case as to require this court to exercise. its

17

discretion. On the contrary, we think ae facts rather clearly

demonstrate that there is no basis for invoking the power of |

this.court to grant the relief applied for in this proceeding.

_ For all the foregoing reasons the petition will be denied

r)

oe a

"JUDGMENT BELOW. :

‘This matter came on to be heard‘on Petition for a Writ of

Prohibition and Mandamus? against the Respondents, the

Honorable Henry:N. Graven, as Judge of: the United States .

District Court for the Northern District of Iowa; and the

Hondérable Edwin R. Hicklin, as Judge of the United States

District Court for the Northern District of Iowa, by Assign-

‘ment, ‘and was argued by counsel.

On Consideration Whereof, Tt is now here edad and

Adjudged by this Court that the said Petition for ,Writ of ~

Prohibition and Mandamus in this matter be, and it ‘is

- hereby denied. ;

June 26, 1955

-_—_-—

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