Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY, and HASTIE, Circuit Judges.
A petition for a writ of mandamus or prohibition was filed by the petitioner, William J. Green, Jr., against the Honorable John W. Murphy, Chief Judge of the United States District Court for the Middle District of Pennsylvania, as respondent, praying this court to order Judge Murphy to proceed no further with the criminal case of the United States of America v. Green (the petitioner), and others, in the United States District Court for the Middle District of Pennsylvania, at Criminal Docket No. 12,880. The petition is based on the refusal of Judge Murphy to disqualify himself because of the allegations of an affidavit filed by the petitions purportedly pursuant to the provisions of Section 144, Title 28, U.S.C.*fn1 The petition prays also that another judge be assigned to hear the criminal case, asserting that Judge Murphy "has a personal bias and prejudice against * * * [the petitioner, Green]". We issued a rule to show cause directed to Judge Murphy. He answered and the United States, intervening, also responded. After certain preliminary proceedings in this court which need not be recited here, the case came on for hearing. Because of the importance of the questions of law involved and to effect an expeditious disposition of the issues, the case was heard by the court en banc.
Certain facts must be stated. On March 29, 1957, motions to dismiss the indictment, for a bill of particulars, for severance, for a transfer of the trial from Scranton to some other place of holding court within the Middle District of Pennsylvania, and for inspection of certain records within the possession of the United States were filed by the petitioner, Green. These were passed upon by Judge Murphy, who denied all of them save the motion for inspection, the latter being agreed to by the United States Attorney. Thereafter, on March 2, 1958, on inquiry by the petitioner's counsel of Judge Murphy, as to at what term of court and by what judge*fn2 the petitioner would be tried, petitioner's counsel was informed that the petitioner "most probably" would be tried by a court over which Judge Murphy would preside at Scranton. On March 7, 1958, the petitioner filed a motion seeking to have Judge Murphy replaced as the presiding judge at the trial by some other judge and an affidavit of bias and prejudice was filed in the court below pursuant to Section 144, Title 28 U.S.C. Note 1, supra. The affidavit alleged, inter alia, that the petitioner believed Judge Murphy was personally "prejudiced against me by reason of our long continued and close political and social relationship and that by reason of his desire to prove his integrity and lack of favoritism, he will be unable to afford me a fair and impartial trial * * *". We will not state the contents of the affidavit in this opinion for we do not find it necessary now to reach the question of the legal sufficiency of its allegations as the basis for disqualification. Judge Murphy concluded that the allegations of the affidavit were insufficient and refused to disqualify himself, stating his reasons in an opinion filed concurrently with an appropriate order.
We are of the opinion that the case at bar is ruled by legal principles which, although they may have been cloudy in the past, are now clearly defined. It is now settled law that the judge against whom an affidavit of bias and prejudice is filed under Section 144, must himself pass on the legal sufficiency of the facts alleged and that in so doing he must accept the allegations of the affidavit as true. A United States district judge therefore possesses the jurisdiction, the power, to pass upon the question as to whether he must withdraw from the case by reason of the allegations of his disqualification contained in the affidavit. This necessarily includes the power to decide the question wrongly as well as rightly. Behr v. Mine Safety Appliances Co., 3 Cir., 233 F.2d 371, certiorari denied 1956, 352 U.S. 942, 77 S. Ct. 264, 1 L. Ed. 2d 237, rehearing denied 1957, 352 U.S. 976, 77 S. Ct. 353, 1 L. Ed. 2d 329; In re Greene, 3 Cir., 1947, 160 F.2d 517, 518; Voltmann v. United Fruit Co., 2 Cir., 1945, 147 F.2d 514, 517. Only what is set forth in the affidavit of bias and prejudice is material to the issue of disqualification. Berger v. United States, 1920, 255 U.S. 22, 41 S. Ct. 230, 65 L. Ed. 481. It follows, therefore, that only questions of law are presented by the respondent judge's refusal to disqualify himself. There can be no dispute either in the district court or on appeal as to the truth or falsity of the allegations of the affidavit. This does not mean, however, that the legal sufficiency of what is alleged in the affidavit becomes moot on appeal for what is stated therein and the inferences, if any, which may be drawn properly therefrom constitute the very basis on which the issue of disqualification of the judge must be decided ultimately. See Korer v. Hoffman, 7 Cir., 1954, 212 F.2d 211, 212-213, 45 A.L.R.2d 930, and the authorities cited therein.*fn3
An adjudication by the judge against whom the affidavit is filed that its allegations are legally insufficient is not a final appealable decision under Section 1291, Title 28 U.S.C., at the stage of the proceedings presently reached at Criminal Docket No. 12,880, in the court below. Nor does such a decision fall within the provisions of Section 1292, Title 28 U.S.C., which gives jurisdiction to the courts of appeals to hear and determine certain interlocutory decisions. Judge Murphy's present decision is subject to review only when and if the petitioner is convicted and sentenced. It will then become appealable to this court. What we wish to make very plain is that a remedy is afforded the petitioner by way of appeal. Korer v. Hoffman, supra; Hurd v. Letts, 1945, 80 U.S.App.D.C. 233, 152 F.2d 121; Dilling v. United States, 1944, 79 U.S.App.D.C. 47, 142 F.2d 473; Minnesota & Ontario Paper Co. v. Molyneaux, 8 Cir., 1934, 70 F.2d 545. We think that the remedy which can be afforded the petitioner by appeal is adequate for this court can strike down a judgment of conviction if we should find that the affidavit filed by the petitioner was legally sufficient to disqualify Judge Murphy under the provisions of Section 144.
A writ of mandamus or prohibition may be issued only in aid of this court's appellate jurisdiction. See the "All Writs Statute", 28 U.S.C. Section 1651. Korer v. Hoffman, supra. Cf. Berger v. United States, 1951, 255 U.S 22, 36, 41 S. Ct. 230, 65 L. Ed. 481.*fn4 Mandamus or prohibition are extraordinary remedies and can be employed justifiably only when rare and exceptional circumstances are present.
The fact is that the petitioner will be put to the expense and trouble of a trial because Congress has provided for the review of a district judge's determination of the kind here complained of and under the circumstances here present, only on the review of a final judgment of conviction. It is not as if, as was said in Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 31, 63 S. Ct. 938, 944, 87 L. Ed. 1185, the writ is sought for relief "from an abuse of judicial power, or refusal to exercise it." It is the function of mandamus to correct such errors. We find no circumstances here which would justify our issuing the writ. Ex parte Fahey, 1947, 332 U.S. 258, 67 S. Ct. 1558, 91 L. Ed. 2041. We conclude that the prayers of the petition must be denied.
In so holding we desire to make it plain that we are not passing presently on the sufficiency of the allegations of the affidavit of bias and prejudice. We state only that the circumstances are not such as to convince us that we, in the light of our legal discretion, should exercise our power to issue a writ of mandamus or prohibition.
An order will be entered denying the prayers of the petition.
HASTIE, Circuit Judge, with whom STALEY, Circuit Judge, joins (concurring).
Judge STALEY and I concur because we think the denial of the present petition is a correct result. At the same time, the refusal of the majority to reach a final decision at this time on the important issue this petition raises seems to us to be a mistake.
We understand the majority opinion to say that in extraordinary enough circumstances it might be proper for this court to use mandamus or prohibition to prevent a district judge from arbitrarily or scandalously disregarding his plain duty to disqualify himself from hearing a case under Section 144 of Title 28 of the United States Code, but that such circumstances do not appear in this case. Accordingly, relief is denied at this time in this special proceeding. However, the majority choose to leave open the question whether the trial judge's action was wrong enough to require on future appeal a reversal of any conviction that may now ensue. It is this postponement of ultimate decision on the charge of disqualification with which we disagree.
The very special, challenging and often sensational charge of partiality in the administration of justice which is initiated by a formal affidavit of prejudice against a judge should receive final adjudication at first opportunity, if only in the interest of public confidence in the courts. Moreover, a trial is not likely to proceed in a very satisfactory way if an unsettled claim of judicial bias is an ever present source of tension and irritation. Only a final ruling on the matter by a disinterested higher court before trial can dispel this unwholesome aura. Thus, if an appellate court refuses, when properly petitioned, to prevent a disqualified judge from trying a case, or to say that the challenged judge is not disqualified, this postponement of decision hurts the administration of justice, even though the court reserves the right to pass upon the matter after trial. Such considerations far outweigh the objections to piecemeal appeals which ordinarily militate against deciding on mandamus an issue which can be reviewed after trial. Another normal objection to mandamus, its character as a challenge addressed to the judge himself, has no force here because the affidavit of prejudice has already challenged the judge in the most personal way imaginable.
For these reasons, we would decide now whether the affidavit of prejudice in this case is sufficient to disqualify Judge Murphy. In our view it is plainly insufficient. Under the statute a sufficient affidavit must charge that the judge "has a personal bias or prejudice against" the party seeking his disqualification. We think Congress used "bias or prejudice" in the conventional sense of enmity or hostility. Here the very opposite is charged. The accused avers that there is a history of friendship and a sense of community between himself and the judge, as well as some sense of obligation running from the judge to him. The sole complaint is that the judge may over-compensate for his inclination toward the accused by leaning backward. The teachings of psychology are invoked to show that this danger exists. But we simply are not persuaded that such possible psychological overcompensation for an inclination favorable to a party is the "personal bias or prejudice against him" with reference to which Congress has legislated. Therefore, we would sustain on its merits Judge Murphy's ruling that no such affidavit as Section 144 requires has been filed against him.
This does not mean that the trial judge cannot or should not in all of the circumstances of this case, including the understandable indignation and irritation disclosed by his opinion on the question of disqualification, consider whether, however free of bias he may feel, the also important appearance of complete impartiality in the administration of justice would not best be maintained by his stepping aside. Judges from time to time elect not to try cases, which they are sure they can try fairly and objectively, because of their concern to avoid any substantial doubt which circumstances beyond their control may create in the public mind about the impartiality of their administration of justice in the matters at hand. But this consideration must be left to the discretion and sensitive perception of each trial judge in the circumstances of each case. It cannot not effectively be controlled by appellate rulings. Certainly it does not involve any mandatory disqualification under Section 144.
KALODNER, Circuit Judge (dissenting).
I would grant forthwith the writ directing Judge Murphy's withdrawal from participation in the Green case.
A judge should not preside at the criminal trial of one (1) whose sponsorship he sought and received in obtaining his judicial appointment and confirmation;*fn1 (2) whose aid he importuned to procure a lucrative State office for a lifetime frined;*fn2 (3) with whom he had enjoyed a close personal and political relationship beginning with their service as members of Congress;*fn3 and (4) whose co-defendant (Herbert W. McGlinchey) is allegedly an intimate friend of the judge who gave material assistance in obtaining his judicial appointment, and as to whom the judge is alleged to be "prejudiced in favor of".*fn4
Would this Court have refused to direct Judge Murphy's withdrawal from the Green case on the facts as they appear had the Government petitioned for his disqualification? Would it have premised its refusal on the grounds that under the All Writs Statute "A writ of mandamus or prohibition may be issued only in aid of this court's appellate jurisdiction" and held, as the majority does here, that "Judge Murphy's present decision is subject to review only when and if the petitioner is convicted and sentenced" and "It will then become appealable to this Court"?
I think it would not have done so.
Putting it bluntly, Judge Murphy's continued participation in the Green case would not be "consonant with that regard for fastidiousness which should govern a court"*fn5 in the performance of the judicial function.
These principles are well settled:
"* * * [Justice] must satisfy the appearance of justice"*fn6; "The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact."*fn7
Applying these principles to the instant case, it cannot be gainsaid that the action of a judge in refusing to withdraw from participation in a criminal proceeding against one whose aid he had invoked to obtain his own judicial appointment and political favor for a lifetime friend, the beneficiary of his interest, falls far short of "satisfying the appearance of justice." Add to this the ingredient of a long-standing personal and political friendship, if such addition be needed.*fn8
This Court has present jurisdiction to apply the principles stated under the provisions of the "All Writs Statute"*fn9 independent of the "Disqualification Statute".*fn10
The majority errs in holding to the contrary.Its error arises out of the narrow construction which it has given to the phrase "appellate jurisdiction" in the "All Writs Statute". It has construed that phrase to mean "a case on appeal". That that is so is apparent from these statements in the majority's opinion:
"* * * Judge Murphy's present decision is subject to review only when and if the petitioner is convicted and sentenced. It will then become appealable to this court. * * *
"A writ of mandamus or prohibition may be issued only in aid of this court's appellate jurisdiction * * *
"The fact is that the petitioner will be put to the expense and trouble of a trial because Congress has provided for the review of a district judge's determination of the kind here complained of and under the circumstances here present, only on the review of a final judgment of conviction."*fn11
I shall later cite and discuss the overwhelming weight of authority which establishes that "appellate jurisdiction" is not determined by the circumstance of an actual pendency of an appeal, as the majority holds, but solely by the dispositive factor whether the proceeding in the lower court which is sought to be affected by the writ of mandamus or prohibition is ultimately reviewable by the appellate court.
Before doing so, I must immediately state that the majority's view that it cannot consider and act upon Judge Murphy's disqualification until after Green has been convicted (should that transpire) and he has appealed from that conviction to this Court, is in complete disregard of Berger v. United States, 1927, 255 U.S. 22, 41 S. Ct. 230, 65 L. Ed. 481 and contra to the views expressed by the following Courts of Appeals:
District of Columbia Circuit
Barsky v. Holtzoff, No. 126 Misc. April Term, 1947;*fn12
In re Lisman, 1937, 89 F.2d 898; Foster v. Medina, 1948, 170 F.2d 632, certiorari denied 1949, 335 U.S. 909, 69 S. Ct. 412, 93 L. Ed. 442.
Henry v. Speer, 1913, 201 ...