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records in these cases reveal this and the danger lurking in any kind of appellate supervision of trial judges.

To furnish only one flagrant example of trial de novo in the Tenth Circuit, the court is invited to read the record and briefs in Neely v. Houston Oilers, cert. den. 385 U.S. 840, 17 L.Ed.2d 74, 87 S.Ct. 92 (October 10, 1966), reh. den. 389 U.S. 942, 17 L.Ed.2d 224, 87 S.Ct. 285. In U.S.D.C.-W.D. Oklahoma v. Lutes, 371 U.S. 941, 9 L.Ed.2d 275, 83 S.Ct. 320 (1962); same case below, 306 F.2d 948, 308 F.2d 574, reh. den. 371 U.S. 970, 9 L.Ed.2d 540, 83 S.Ct. 550; and Chandler v. United States (Burbridge), 389 U.S. 568, 19 L.Ed.2d 777, 88 S.Ct. 691 (1968), Mandamus issued below by minute order only, writs were arbitrarily issued in specific cases without jurisdiction.

In Lutes the Court of Appeals substituted its judgment for the discretionary order of the district judge staying temporarily the trial awaiting an early decision by the Supreme Court of Okoahoma on an important question of substantive oil and gas law not theretofore determined by the State Court. It was later determined by the Oklahoma Supreme Court contrary to an earlier circuit court ruling, Rogers v. Westhoma, 291 F.2d 726 (see dissent by Judge Bratton).

In Neely the Court of Appeals tried the case de novo and set aside findings of fact based on conflicting oral testimony, made its own findings directly contrary to the admissions in open court of the appellant, and in the opinion reversing the case snidely suggested that the trial judge was "irrational".

Neely and Burbridge were decided since the pendency of the instant action; Lutes prior thereto, but the records and briefs would make highly interesting and profitable reading for any member of the court who thinks that the great principles involved in this case justify finding out just what has been going on out on the frontier while this court has been so busy it could not review by certiorari these cases that appeared to affect no one but the parties involved.

The national effort to preserve our institutions is no more important in any area than the restoration of respect for the Constitution and laws of this country. This court should curb the Circuit Judges who have "legislated" themselves virtually limitless power to enforce their whims, brazenly thwarting the teaching of this Court and Congressional limitations of their jurisdiction.

In Ritter, Occidental, Texaco and the instant case it should not be overlooked that there were very serious violations of legal and judicial ethics, and also a grave moral issue false character assassination.

The Justices of the Supreme Court, the Judges of the Courts of Appeals and the District Courts are all Constitutional judges serving "during good behavior" with the sole power to shorten their life tenure vested in the Congress. Courts of Appeals and District Courts are "inferior" courts with only such jurisdiction as is specifically granted to them by the Congress.

The United States Courts of Appeals, except in the four specific instances involving certain interlocutory orders set out in 28 U.S.C. 1291, "have jurisdiction of appeals from all final decisions of the district courts of the United States * * * 28 U.S.C. 1291. This is the full extent of the jurisdiction of the Courts of Appeals insofar as their functions pertain to the activities of district courts and judges.

Some 400 district judges sit alone, each judge constituting a trial court of original jurisdiction whose statutory function is to try and determine controversies, to hear evidence, find the facts, apply the law and enter final judgments.

Congress has never granted to the Supreme Court jurisdiction to supervise the "inferior" courts, nor has it granted to the Courts of Appeals jurisdiction to supervise the District Courts. Courts of Appeals and District Courts have separate and distinct, entirely different, functions. Each is

supreme in its own sphere. The functions do not and cannot overlap at any point without completely shattering the dual system of courts of original and review jurisdiction. Intervention by the Court of review in any manner at a point prior to final judgment puts the cart before the horse, and not only frustrates the system but destroys it.

Nor have Courts of Appeals power to increase their jurisdiction by claiming "inherent" power to do so. "Inherent” power comes into play only when clear jurisdiction over the subject matter is already present, and then for the sole purpose of implementing an already vested jurisdiction. There is no such judicial vehicle as "inherent power" to create or enlarge jurisdiction. That is tyranny!

The Constitution imposes exclusively on the Congress the power and duty to police the judiciary. This is one of the cardinal checks and balances and is a power and duty which the Congress cannot constitutionally delegate to any other person or Governmental body. It naturally follows that the Congress cannot delegate this police power over the judiciary to the judiciary itself and specifically and especially cannot constitutionally delegate it to any judge or court of the judiciary. To do so would constitute abdicating its constitutional duty to exercise the power itself which duty is necessarily implied from the exclusive grant of power.

Every individual judge of the judiciary, no matter on what court he sits, is himself subject to the congressional power of impeachment. He, himself, has not the power, whether designated judicial or administrative, to inquire into the fitness of any other judge, because that power and duty to sit as a court and try the fitness of any and every member of the judiciary is, by the Constitution, exclusively and solely vested in the United States Senate, sitting as a Court. The Congress cannot constitutionally permit the judiciary to police itself nor can it side-step its own duty to do so.

By the same token the Congress cannot constitutionally permit any part of the judiciary to exercise police power over any other part, any court or body composed in whole or in part of judges, or any judge to exercise police power over any other court or judge.

Nor can any court, body of judges, or any judge legally, constitutionally or ethically seek, accept or exercise this exclusive congressional function.

To delegate the power or any part of it to any judge or court of the judiciary, whether designated a judicial or administrative agency, under guide of the power to supervise in any way, assist in "housekeeping" or "housecleaning" or inquire into the fitness of any member of the judiciary. would be equally unconstitutional for the additional reason that such a delegation of power, even if reciprocal, would constitute class legislation, violative of the equal protection concept.

And how would the judges who espouse the supervision of district judges enjoy being supervised by district judges if the provisions for supervision were made reciprocal? With the shoe on their foot, they would at once see how laughable is the very thought that any judge can be supervised. In seeking power for themselves they have not sought reciprocity and have objected to district judges sitting on Judicial Councils on the theory that there should be a "chain-of-command", a difference of importance status between circuit and district judges. This paternal attitude of some Circuit Judges apparently blinds them to the fact that there might actually at this moment be an active circuit judge who is lazy, senile, arbitrary, mentally incompetent, alcoholic, emotionally unstable, too ambitious, tyrannical or even corrupt and that they themselves might ba a judge who should "step-aside”.

Of course Circuit Judges may properly assume that it is one of the primary duties of a circuit judge to supervise himself, but apparently they have never thought of that nor properly assumed that it is not only the duty but the right

of every district judge to supervise himself. This is the kind of self-supervision which is implicit in the wholesome and rational constitutional concept of an entirely independent judiciary: each judge answerable to no man, subject only to the limited impeachment power of the Congress and the criminal laws of the land. 18 U.S.C. 201.

No judge is properly a judge of the qualifications of his associates. He is exclusively a judge of legal controversies. His only police power over any judge is over himself. When his critical judicial eye looks other than inward it is off the ball and there is grave danger that he is neglecting his official duties. It is obvious that he is neglecting to police his own house where his most precious treasure is stored.

The framers of the Constitution knew that complete judicial independence was vital; that the kind of judges they envisioned could not and would not be supervised; that any sort of supervision would be evil; that it would destroy the very concept of independence; and that supervision would not be needed. They circumscribed it very, very carefully and effectively prohibited it by limiting it, in effect, to corruption in office.

CONCLUSION

The following statements are made as constituting the hopefully dispassionate thoughts of a trial judge with reference to the questions which seemed to interest the Court at oral argument.

If a Judicial Council is an administrative agency vested by the Congress with any supervisory power over judges, assuming that the Congress can constitutionally delegate any such power, it is an agency of the Legislative Branch, not the Judicial Branch, and would be subject to the Administrative Procedure Act which provides for appeal and review. 5 U.S.C. 701 et seq.

The Congress has not vested any supervisory power over judges either in the Judicial Conference of the United

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