DISTRICT COURT, S.D. NEW YORK
September 30, 1933
AMERICAN BRAKE SHOE & FOUNDRY CO.
INTERBOROUGH RAPID TRANSIT CO.
By failing to refer to one phase of the matter discussed in the foregoing memorandum, the implication should not arise that it has been lost sight of. It seems reasonably clear that the submission of a belated affidavit of prejudice to a judicial officer before whom litigated matters are pending undecided involves contempt of court, as an improper effort to influence the decision of the particular judicial officer. It is not a matter in any sense personal with me. I consider it only as a grossly improper gesture directed toward an officer of the court. In this spirit, I shall confer with some of my associates before deciding whether a citation for contempt for all persons implicated in the misconduct described shall issue.
In order that this memorandum may be easily understood, though its length is limited, brief reference should be made to the opinion of the United States Supreme Court in the two cases of Johnson v. Manhattan Railway Co. and Boehm v. Manhattan Railway Co. (both cases having been heard together) 289 U.S. 479, 53 S. Ct. 721, 77 L. Ed. 1331, rendered by Mr. Justice Van Devanter and concurred in by his associates of the court. In these cases, the same litigant to whom reference will be made later questioned the longestablished practice of self-designation to hold a District Court by the Senior Circuit Judges of the different circuits of the United States.
The attack made upon my jurisdiction and powers as Senior Circuit Judge had been so energetic and characterized by such newspaper publicity that I decided in favor of a continuance of the exercise of the functions which I believed to be vested in the Senior Circuit Judge by statute and in the performance of my judicial duties, as I understood and conceived them, instead of retiring from the very onerous proceeding and thankless responsibilities, which added a heavy burden indeed, in addition to my administrative work as senior judge of the circuit and my judicial work in the consideration of causes and the preparation of opinions in matters coming before the Circuit Court of Appeals.
As is now fully established, the Supreme Court sustained my construction of the amended Judiciary Act completely, even to the extent of declaring invalid certain rules of the United States District Court, the effect of which was deemed to conflict with certain of the powers conferred upon the Senior Circuit Judge by statute.
At the conclusion of Justice Van Devanter's opinion, in which my jurisdiction and construction of the law was completely sustained, certain observations were made in which it was suggested, in substance, that continuance by me to judicially supervise the duties of the receivers of the Interborough and Manhattan Companies would embarrass the receivership and that such embarrassment might be relieved by my retiring from the supervision and direction of the proceedings. There were then pending before me a number of important issues, all of which I felt it was my duty to dispose of before passing along to the shoulders of another the burden which had weighed so heavily upon my own.
This decision I expressed in my memorandum (D.C.) 4 F. Supp. 68, 74, dated June 28, 1933, in which the following language was used:
"Every judge worthy of judicial office ought to be keenly sensitive to and deeply concerned at any intimation of any action on his part approaching impropriety in the discharge of what always ought to be regarded as a sacred duty. In the present case, I was acting in the performance of my judicial duty according to my conscience and in the belief which I still entertain that I was authorized and called upon by the Act of Congress to do exactly what I did if in my judgment the public interest so required.
"In the light of these profound convictions and with great respect, I cannot for the present bring myself voluntarily to withdraw from this case, whatever may be my ultimate decision. Applications involving vital property rights and interests have been partially argued and are to be further argued which require my study and decision."
Anticipating, however, the carrying out of my plan to retire from the proceedings, which I had in mind in July last, I conferred with a Circuit Judge, one of my associates, explaining to him my intention to retire and my desire to designate him to continue the supervision and direction of the proceedings in these receiverships. The judge expressed, naturally, extreme reluctance to undertake the additional work involved, but agreed as a matter of public interest and judicial service to take over the burden when the issues then pending before me had been determined. One of these issues was an application for the removal of the Receiver Roberts of the Manhattan Railway Company and the appointment of Nathan L. Amster in his stead. Another motion made later was for the appointment of Mr. Amster as coreceiver.
While these and other applications were pending before me, the affidavit of personal bias or prejudice was filed by the same parties who had but recently failed in the United States Supreme Court in the question raised concerning my jurisdiction.
Though my personal preference was, and the inclination of any judge whose fairness was challenged naturally would be, to retire from the proceedings, I felt it my duty to remain, however unpleasant and distasteful, and not to retire simply on the filing of an affidavit held by me to be untimely and insufficient.
Thus in the case of Benedict v. Seiberling (D.C.) 17 F.2d 831, 841, District Judge Killits, holding that an affidavit was insufficient, said that it would be improper to withdraw voluntarily because "to allow a disinclination to further sit in this case to work our voluntary retirement would be to permit the authors of this attack * * * to gain unlawfully that which they are not justly entitled to have."
More recently a motion for leave to file a petition for writs of prohibition and/or mandamus has been filed in the United States Supreme Court by the same litigant. That application is so lacking in merit that I do not deem it necessary to await the determination of the motion.
At the present time, entirely apart from the proceedings mentioned above which disclosed no reason which would permit withdrawal from the case, reasons appear which I deem sufficient to justify the assignment of another judge. The Circuit Court of Appeals in which I preside convenes the first Monday of October. Added to my duties as presiding judge of that court, it is my duty alone as Senior Circuit Judge, a duty from which other Circuit Judges are free, to perform the not inconsiderable administrative work of the Second judicial circuit. The task of supervising these receiverships, added to these other duties, is too onerous to continue another year. For this reason I have decided to withdraw.
While it is within my authority to assign another Circuit Judge in my stead, still I prefer that the assignment be made by the Chief Justice of the United States.
Accordingly, I have advised the assignment of a Circuit Judge to hold a District Court and to hear and determine all issues which may be brought before him in this proceeding, and I have consented that such assignment be made. If reason is necessary to explain the selection of a Circuit Judge rather than a District Judge, it is sufficiently set forth in my opinion of June 28, 1933.
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