SUPERIOR COURT OF STATE OF CAL. v. United States Dist. Ct.

• Citation: 256 F.2d 844
• Decision Date: 07 April 1958
• Docket Number: No. 15807.,15807.
• Parties: The SUPERIOR COURT OF The STATE OF CALIFORNIA, IN AND FOR The COUNTY OF LOS ANGELES, Petitioner, v. UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

256 F.2d 844 (1958)

The SUPERIOR COURT OF The STATE OF CALIFORNIA, IN AND FOR The COUNTY OF LOS ANGELES, Petitioner, v. UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, Respondent.

No. 15807.

United States Court of Appeals Ninth Circuit.

April 7, 1958.

Harold Kennedy, County Counsel, William E. Lamoreaux, Asst. County Counsel, County of Los Angeles, Cal., Pacht, Ross, Warne & Bernhard, Clore Warne, Leo Altschuler, Harvey M. Grossman, Los Angeles, Cal., for appellant.

Phillip Barnett, W. A. Lahanier, San Francisco, Cal., Maxwell Sturges, Newport Beach, Cal., for appellee.

Before FEE and CHAMBERS, Circuit Judges, and CHASE A. CLARK, District Judge.

JAMES ALGER FEE, Circuit Judge.

This proceeding arises upon a petition filed by the California Superior Court, seeking to compel the United States District Court to vacate an order directing an alternative writ of certiorari to issue to petitioner, California Superior Court.

This Court gave leave that the petition be filed, and, after notice to all parties involved, held several hearings.

In a proceeding pending in the United States District Court for the Northern District of California, Southern Division, a receiver had been appointed to receive the salary and other assets of a judgment debtor upon execution unsatisfied. The answer of the District Court in this proceeding indicates that, from the monthly proceeds coming into the hands of the receiver, distributions were to be made to the judgment creditor, other creditors and also to the judgment debtor for his living expenses, subject to the ex parte approval of the court. The record reveals that, within the three months following the appointment of the receiver, distributions totaling at least $2,000.00 were made to the judgment debtor out of receivership funds by the court on ex parte application for his "support and maintenance" and "living expenses."

Another suit by a creditor was commenced in the Superior Court of the State of California in and for the County of Los Angeles against the judgment debtor in the federal court, to whom reference has been made. The Superior Court ordered said defendant to pay specified monthly sums due the creditor. Upon failure, the court found defendant in contempt and ordered him to purge himself thereof or be confined in the Los Angeles County Jail for a period of five days. From this order, defendant petitioned the California District Court of Appeal for a writ of prohibition directed to the Superior Court. When the petition was denied, defendant unsuccessfully sought hearing in the California Supreme Court. Thereafter, defendant discharged the obligation, and the contempt was purged.

Subsequently, further payments to the creditor became due, and, upon failure to discharge these new obligations, the defendant was again adjudged in contempt. Upon appropriate proceedings, a receiver was appointed by the Superior Court to impound the assets of defendant. The court, with knowledge of the prior appointment of a receiver by the federal District Court, declined to make order for disbursement until the receiver had assets of the defendant in his possession. Further proceedings on the contempt order were postponed.

Thereupon, the District Court, based upon a "Petition for Writ of Review (Certiorari) after Exhaustion of Remedies in the Supreme Court of the State of California" presented by the judgment debtor there, who was defendant in the state court, issued a process entitled "Alternative Writ of Certiorari," wherein the Superior Court of the State of California in and for the County of Los Angeles were directed and commanded that they certify and return to the United States District Court "in the City of San Francisco, State of California, on the 25 day of November, 1957, at the hour of 2 P.M., a full, true, and complete transcript of the record and proceedings in the action" there pending against said defendant, "to the end that the same may be received by this Court District Court and such action taken thereon as of right and as according to law shall be taken and done, and that you then and there have this Alternative Writ." The Superior Court was ordered to desist from further proceeding in the matter to be reviewed and to show cause why the writ should not be made permanent.

The lawyers who represent the respective courts in this proceeding are in fact the attorneys for the various parties involved. In order to prevent unseemly conflict between tribunals of different sovereignties until disposition, this Court accepted assurances from representatives of the respective courts that no further action would be taken until disposition.

The issuance of a writ of certiorari by a federal District Court directed to a state court is unprecedented. Such process was designed to fulminate from the court of the sovereign to the inferior court of a retainer. The vivid language of the writ, "We, Therefore, Command you that you certify and return * * *" bodies forth the mandate of an overlord to a vassal. In England, where this verbiage was wrought, the writ probably developed out of the supervisory powers of the Curia Regis. In any event, in this form it was issued by Chancery and King's Bench to the treasury, sheriffs, coroners, commissioners, escheators and itinerant justices.¹ Under the Federal Constitution, its use has been confined exclusively to the United States Supreme Court and directed to the "inferior courts" of the federal system or to the final appellate tribunals of a state solely when a question under the paramount authority of that instrument was involved. Here no doctrine of federal supremacy is valid. The two courts have coordinate jurisdiction in the same territorial limits.² The federal court cannot command the state court to produce its record. The state court cannot command a federal court to produce its record.

By a clever twist, the lawyers persuaded the District Court to pronounce the theory, after the issuance of the writ and in spite of its superscription and clear language, that the process was a writ of habeas corpus. This rationalization was of no help.

The Great Writ is never directed to the court which has made the alleged offending order, but only to the custodian of the body. The command is to produce the body in court.³ But here the judgment debtor or defendant was not in custody. His body could not have been produced in any court, except voluntarily or after arrest. The United States District Court of the Northern District of California had no jurisdiction to command anyone in the Southern District of California to produce any body in court in San Francisco.⁴ If a federal question had been involved in the nonexistent detention, there was no showing that the defendant had exhausted state remedies available by asking certiorari from the Supreme Court of the United States to the California...