Rutkowski v. St. Sure, 10638.

• Citation: 143 F.2d 715
• Decision Date: 11 August 1944
• Docket Number: No. 10638.,10638.
• Parties: RUTKOWSKI v. ST. SURE, District Judge.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

143 F.2d 715 (1944)

RUTKOWSKI v. ST. SURE, District Judge.

No. 10638.

Circuit Court of Appeals, Ninth Circuit.

June 30, 1944.

Rehearing Denied August 11, 1944.

Frank Rutkowski, in pro. per.

Frank J. Hennessy, U. S. Atty., and A. J. Zirpoli, Asst. U. S. Atty., both of San Francisco, Cal., for respondent.

Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

Frank Rutkowski, petitioner herein, has applied to this court for the issuance by it of the writ of mandamus directed to Honorable A. F. St. Sure, United States District Judge for the Northern District of California, commanding him to entertain and decide Rutkowski's petition for the issuance of the writ of habeas corpus.

Judge St. Sure is the senior judge of a court consisting of four judges and as such is the executive head of the court. An order to show cause was issued out of this court to respondent Judge St. Sure to which Judge St. Sure has made his return, and petitioner has filed his traverse thereto. All statements of fact made in this opinion are taken from the pleadings mentioned or from documents made parts thereof.

Heretofore Rutkowski's petition for the writ of habeas corpus was received at the office of the above-named district court, and on July 26, 1943, it was filed in the office of the clerk of that court, and the proceeding was assigned to Judge Louis E. Goodman, a judge of that court, for his judicial action in accordance with the following rule of the court.

Rule 1: "All actions and proceedings of whatsoever kind or nature — including criminal, admiralty and bankruptcy — shall be assigned to the several Judges in regular rotation, by the Clerk. Such assignment shall be made immediately upon the filing of the first document, and shall be indicated by placing the initial letter of the Judge's surname after the case number. No change in any assignment shall be made except by Court order approved by the Judges affected."¹

The petition was headed in the following manner:

"In the United States District Court For the Northern District of California, Southern Division

Frank Rutkowski Petitioner vs. > 23,875G James A. Johnston, Warden United States Penitentiary Alcatraz California.

Petition for Writ of Habeas Corpus.

To the Honorable Judge St. Sure, United States District Court Judge."

Judge Goodman as the judge of the court entertained the petition and on August 4, 1943, issued an order to show cause to James A. Johnston, respondent in the habeas corpus proceeding. To the order to show cause, respondent duly made return and made a motion to dismiss the petition. The traverse to the return and motion is entitled "In the United States District Court for the Northern District of California, Southern Division," as are all the instruments filed by Rutkowski and the respondent, and is addressed "To the Honorable Judge Goodman." It is in this instrument that petitioner sets out his reasons why the motion to dismiss his habeas corpus petition should not be granted and why he should be released from restraint, and it is in this instrument that he sets out his supporting argument and authority. The instrument closes with a request that "this Honorable Court" permit the instrument to be filed in its informal form. Subsequently, at a regular session of court, Judge Goodman presiding, the motion to dismiss the petition was granted.

Petitioner bases his prayer for mandamus upon the erroneous assumption that his petition for the writ of habeas corpus was addressed to Judge St. Sure individually and that Judge St. Sure, instead of acting upon it, permitted it to be assigned to Judge Goodman under the court rule as though it had been filed with the court. Upon this assumption he claims that all of Judge Goodman's actions relating to the petition were and are entirely void, and that the petition, in contemplation of law, still rests with Judge St. Sure, who declines to do his duty and act upon it.

The assumption is wrong as is also the conclusion drawn therefrom. Following the heading of the petition, which has already been set out herein, the first reference to court or judge in the body of the instrument is, that petitioner is confined "* * * within the jurisdiction of the above entitled court." (Emphasis added.) The next such reference is: "Jurisdiction is conferred on this court to hear and grant this writ under § 451, 452 and 453 of Title 28 U.S.C.A." The very first citation is: "Quoting the section in full Section 451. Power of Courts. The Supreme Court and the district courts shall have power to issue writs of habeas corpus." The next cited section gives like power to judges. There is nothing in the record to indicate that the petition was delivered to or mailed to Judge St. Sure personally. It appears to have been received in no unusual way and to have been assigned in the regular way.

It appears to us that there was no error or mistake when this petition was deemed one addressed to the district court and assigned for attention under the court rules. There is more, however, Judge Goodman issued the show cause order, and respondent made a motion to dismiss because of the lack of merit revealed in the petition. To this, petitioner replied by his traverse. Again the pleading was headed "In the United States District Court * * *" with the case number followed by "G" (meaning Judge Goodman) in accordance with the court rules. And the pleading begins: "To the Honorable Judge Goodman," and proceeds with argument upon the merits of the application. The pleading closes with: "Petitioner further respectfully requests this Honorable Court * * *." The dismissal order is couched in terms indicating that Judge Goodman was hearing and deciding not as an individual judge but as the judge of the court.

From this record it cannot be held that the proceeding was intended to be one directed to the presiding judge of the court of four judges for his action as distinguished from that of the court. Furthermore, if such...