the trial process and exercise the discretionary functions of trial judges, the appellate function and purpose is at least seriously impaired, and the independence of the trial judge is completely destroyed. The right to discredit and abuse a trial judge has now become settled law in the Tenth Circuit. The picture is very clear. The tyranny exhibited here strikes fear to the hearts of all trial judges, especially those who know they will refuse to be intimidated by character assassination. That such usurpation of power is not new in the world, brings to mind the thought "What meat does this our Caesar eat that he has grown so strong?" It is too late to nip the evil in the bud. Great damage has already resulted. But this Court by its decision in this case has the power to restore the American birthright to the citizens of six states. Judge Magruder of the First Circuit stated: "Contrary to the view which seems to have been occasionally taken, or at least sub silentio assumed, in other courts of appeals, we do not think that 28 U.S.C. § 1651 [the All-Writs Act] grants us a general roving commission to supervise the administration of justice in the federal district courts within our circuit. . ." In re MacNeil Bros. Co., 259 F.2d 386, 387. This is in direct contrast to the pronouncement of Chief Judge Murrah made and assented to by the other judges in Occidental: "We are not just sitting here to decide the legal sufficiency of an affidavit to disqualify a trial judge. We are sitting here in the exercise of our supervisory powers as a court ." (Respondent's Brief, p. 11) Three days of testimony were taken in Occidental. Certainly these words of the Chief Judge of that court are at odds with earlier utterances of this Court, to wit: "e.g., Whitney v. Dick, 202 U.S. 132, 137 ('It will be borne in mind that the circuit court of appeals, which is a court created by statute. . . is not in terms endowed with any original jurisdiction. It is only a court of appeal'); Ex parte Bollman, 4 Cranch 75, 93 (‘. . . [C]ourts which originate in the common law possess a jurisdiction which must be regulated by their common law . . . but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.'); Kentucky v. Powers, 201 U.S. 1, 24 ('We say . . . the subordinate judicial tribunals of the United States can exercise only such jurisdiction, civil and criminal, as may be authorized by acts of Congress.')" Serious and recurrent problems of judicial policy are graphically raised and ripe for adjudication by this court. The judges of the Court of Appeals and Judicial Council of the Tenth Circuit have "legislated" themselves limitless jurisdiction to do "anything we want to do" in violation of the division of powers concept of the Constitution and all American principles of judicial propriety. By their defense here they ask this Court to side-step decision of the compelling issues and thereby indirectly approve their tyrannical usurpation of power. Respondent asks leave to file this further expression in behalf of the maintenance of the great principles of the rule of law upon which our government is based. To legalize the power exercised would require Constitutional amendment and legislation by Congress. To supervise or defame another judge is not a proper nor acceptable judicial function. If a judge is corrupt, impeachment and the criminal laws are available. 18 U.S.C. 201. If he is not corrupt his fitness in other respects is not a justiciable issue under our Constitution. Neither the Judicial Conference of the United States nor the Judicial Councils of the Circuits can legally or constitutionally supervise any judge or Court whether it is called "housekeeping" or "housecleaning.” 52-459 O - 71 - 53 Power is not safe in the hands of those who would abuse it. Judicial abuse of power is defiance of law in its most malignant form. The shame and indignity of personal injustice is as nothing compared to the terrible blow to public respect for the judiciary occasioned by the intemperate use of the Extraordinary Writs referred to which substitute the will of men who take the law into their own hands for the rule of law. The fearless incorruptible United States District Judges of the past, by reason of their independence, were able to mete out justice at the trial leve. They were the glory of America. The decision in this case can restore the rule of law. Respectfully submitted, STEPHEN S. CHANDLER, United States District Judge, Petitioner, Pro Se NOTICE: This opinion is subject to formal revision before publication SUPREME COURT OF THE UNITED STATES No. 2, Misc.-OCTOBER TERM, 1969 Stephen S. Chandler, United States District Judge for the Western District of On Motion for Leave to MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. Petitioner, a United States District Judge, filed motion for leave to file a petition for a writ of mandamus or alternatively a writ of prohibition addressed to the Judicial Council of the Tenth Circuit. His petition seeks resolution of questions of first impression concerning, inter alia, the scope and constitutionality of the powers of the Judicial Councils under 28 U. S. C. §§ 137 and 332.1 The 128 U.S. C. § 137, 62 Stat. 897. "137. Division of business among district judges "The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court. "The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe. "If the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose the judicial council of the circuit shall make the necessary orders. "332. Judicial Councils "The chief judge of each circuit shall call, at least twice in each 2 Judicial Council of each federal circuit is, under the present statute, composed of the active circuit judges of the circuit. Petitioner has asked this Court to issue an order under the All Writs Act telling the Council to "cease acting [in] violation of its powers and in violation of Judge Chandler's rights as a federal judge and an American citizen." The background facts are of some importance. 1 3 On December 13, 1965, the Judicial Council of the Tenth Circuit convened in special session and adopted an order which reflected a long history of controversy between petitioner and the Council concerning the conduct of the work of the District Court assigned to petitioner. The Order of December 13 purported to issue year and at such places as he may designate, a council of the circuit judges for the circuit, in regular active service, at which he shall preside. Each circuit judge, unless excused by the chief judge, shall attend all sessions of the council. "The council shall be known as the Judicial Council of the circuit. "The chief judge shall submit to the council the quarterly reports of the Director of the Administrative Office of the United States Courts. The council shall take such action thereon as may be necessary. "Each judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit. The district judges shall promptly carry into effect all orders of the judicial council." 228 U. S. C. § 1651, 62 Stat. 944, as amended, 63 Stat. 102. "(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Chief Judge Alfred P. Murrah took no part in the proceedings. |
