The opinion of the court was delivered by: DUMBAULD
A defendant charged with failure to undergo a psychiatric examination directed by his draft board in violation of 50 U.S.C. App. 462(a) has timely filed an affidavit of bias, duly certified by counsel, under 28 U.S.C. 144.
That section provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
Not having attained, as has our long-time friend the illustrious Judge Charles Wyzanski of Massachusetts, unto the beatific status of senior judge where he is free to specify what types of litigation merit his personal attention and what types can be adequately handled by colleagues less endowed with genius, we are constrained to accept and dispose of whatever cases are assigned in rotation by the Clerk's office, unless a specific ground of disqualification exists. Recusation is not warranted merely because I might prefer to be trying some other type of case, or merely because the defendant might prefer that some other judge try his case. Under the individual calendar system now in force in this Court, once chance has resulted in assignment of a case to me, I am "stuck with it" and precluded by my duty to my colleagues and the Court as an institution from failing to persevere unto the end in handling and disposing of it, unless a valid ground of disqualification is demonstrated.
In accordance with the language of the statute, and cases construing it, the following procedure is to be observed. The filing of the affidavit does not itself automatically effect the ouster. Instead the legal sufficiency of the facts alleged (as distinguished from conclusionary assertions) must be passed upon by the target judge. He accepts as true the facts alleged, as on a common law demurrer, and determines merely their legal adequacy. He does not determine the truth of the allegations.
In fact no one ever passes upon the truthfulness of the allegations.
As stated by Judge Yankwich in Cole v. Loew's Inc., 76 F. Supp. 872, 877 (S.D. Cal. 1948), "the truth of the affidavit cannot be adjudicated by the judge involved or anyone else."
If the target judge finds them legally sufficient, then the disqualification is automatically effected. His determination is an interlocutory ruling reviewable on appeal along with other alleged errors in connection with the trial. Green v. Murphy, 259 F.2d 591, 593-594 (C.A. 3, 1958); Behr v. Mine Safety Appliances Co., 233 F.2d 371, 373 (C.A. 3, 1956); Simmons v. United States, 302 F.2d 71, 75 (C.A. 3, 1962).
The statute specifies that "personal" bias is the sole ground of disqualification. This involves antagonism or animosity toward the affiant,
or favoritism towards the adverse party. Berger v. United States, 255 U.S. 22, 32, 41 S. Ct. 230, 65 L. Ed. 481 (1921); Cole v. Loew's Inc., 76 F. Supp. 872, 877 (S.D. Cal. 1948). Personal bias is to be distinguished from "judicial" bias, and does not include views based upon matters arising during the course of the litigation or upon general attitudes common to the public generally. United States v. Gilboy, 162 F. Supp. 384, 394 (M.D. Pa. 1958); Knapp v. Kinsey, 232 F.2d 458, 466 (C.A. 6, 1956); Cole v. Loew's Inc., 76 F. Supp. 872, 877 (S.D. Cal. 1948).
In particular, views relating to legal questions, even strongly-held views in favor of law-enforcement, do not amount to personal bias. Knapp, supra, 232 F.2d at 466; United States v. Valenti, 120 F. Supp. 80, 85-86 (D.N.J. 1954); Baskin v. Brown, 174 F.2d 391, 394 (C.A. 4, 1949); Cole v. Loew's Inc., 76 F. Supp. 872, 876-877 (S.D. Cal. 1948).
Likewise, the severity of a sentence (within the statutory spectrum) is no indication of personal bias. Knapp, supra, 232 F.2d at 466; Calvaresi v. United States, 216 F.2d 891, 900 (C.A. 10, 1954).
The allegations of the affidavit in substance boil down to two: that in draft cases the Court imposes severe sentences, and is often reversed.
It is true that this Court considers violation of the draft laws to be a serious offense (contrary to the views of the head of the parole board, as stated in a recent interview in the New York Times).
The constitutionally conferred power "To raise and support Armies" [Art. I, sec. 8, cl. 12] and cognate powers, commonly referred to collectively as the war powers, are indisputably vital to national defense and national survival. Compulsory service is an integral part of the war powers. Selective Draft Law Cases, 245 U.S. 366, 377, 38 S. Ct. 159, 62 L. Ed. 349 (1918); Cox v. Wood, 247 U.S. 3, 6, 38 S. Ct. 421, 62 L. Ed. 947 (1918).
Eminent and respectable authorities have declared that in time of emergency even constitutional rights may be sacrificed for compelling national purposes of vital importance.
In the words of Thomas Jefferson: "A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger are of higher obligation. To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property, and all those who are enjoying them with us, thus absurdly sacrificing the end to the means."
Likewise, Abraham Lincoln thought it folly, for the sake of one particular provision of the Constitution [he was referring to suspension of habeas corpus], to refrain from measures to restrain those who were attempting to "destroy Union, Constitution and law, all together."
And Robert H. Jackson in Korematsu v. United States, 323 U.S. 214, 244, 65 S. Ct. 193, 89 L. Ed. 194 (1944) said: "The armed services must protect a society, not merely its Constitution."
If the measures of Congress to provide for protection of the nation could be nullified by a universal unwillingness to serve in the armed forces, the consequences would be disastrous and intolerable. Fortunately, there has not occurred a 100% simultaneous refusal to serve on the part of all draftees. But the efforts of Congress to deter refusal by imposing criminal sanctions must not be frustrated by reluctance on the part of "soft-hearted" judges
to carry out the policies of Congress.
As stated in the ancient maxim of Lord Coke, let no man consider himself wiser than the law. The law itself makes provision for bona fide conscientious objectors; but mere political dissent from government policies does not constitute an excuse for escaping from the performance of legal duties, including those relating to armed service when duly called upon to defend the nation.