Kinnear-Weed Corp. v. Humble Oil & Refining Co.

• Decision Date: 17 June 1971
• Docket Number: No. 29103.,29103.
• Citation: 441 F.2d 631
• Parties: KINNEAR-WEED CORPORATION, Plaintiff-Appellant, v. HUMBLE OIL & REFINING COMPANY, a Texas corporation (now dissolved and merged into Standard Oil Company, a New Jersey corporation) its successor and/or surviving corporations and its assigns, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 631 (1971)

KINNEAR-WEED CORPORATION, Plaintiff-Appellant, v. HUMBLE OIL & REFINING COMPANY, a Texas corporation (now dissolved and merged into Standard Oil Company, a New Jersey corporation) its successor and/or surviving corporations and its assigns, Defendants-Appellees.

No. 29103.

United States Court of Appeals, Fifth Circuit.

April 26, 1971.

Rehearing Denied June 17, 1971.

Fred Parks, Gail Borden Tennant, Jr., Houston, Tex., William E. Kinnear, Beaumont, Tex., W. Frank Stickle, Jr., Washington, D. C., for plaintiff-appellant.

Garrett R. Tucker, Jr., C. O. Ryan, Houston, Tex., for defendants-appellees.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

CLARK, Circuit Judge:

It is impossible to conceive of an issue judges would scrutinize more carefully than one which charges that a brother's breach of judicial ethics has produced a miscarriage of justice. Such an issue puts at stake more than the rights of the immediate litigants; it challenges the even, fair administration of law. Therefore our most attentive examination is commanded. This sensitivity is heightened in the case at bar because he who allegedly prostituted the office we ourselves are sworn to uphold, died long before the subject of his official misbehavior was ever broached. Only the combination of the nature of the issue itself and a defense so handicapped can explain why, when we look long and carefully again — this time aided by the hitherto unavailable light of our present hindsight — we see that plaintiff has traversed the whole weary journey through court after court after court solely upon insinuations, innuendoes, inferences and assumptions of wrongdoing, every one of which are wholly without substance in fact. Given this insight to the proof — or more aptly, the lack of it — we reject plaintiff's suggestions that we now create novel duties of disclosure and standards of ethical conduct to be applied ex post facto to overcome (and really reverse) the well established presumption that official duties were correctly discharged. Thus, we agree that the court below correctly declined to give this plaintiff yet another go at trying to prove what so clearly does not exist. The judgment, injunction and assessment of costs entered by the district court must be affirmed.

In the beginning — April 6, 1953 — Kinnear-Weed Corporation (Kinnear-Weed) filed a patent infringement suit against Humble Oil & Refining Co. (Humble). Since the opinion of the district court accurately and amply recites the history of this litigation from that point forward, the reader who wishes to retrace the route step by step is referred to 324 F.Supp. 1371. It is sufficient here to say that the charges of judicial disqualification, initially advanced on September 28, 1959 (one year, seven months and fourteen days after the judge involved had died), eventually resulted in our en banc order to the district court to conduct a hearing on all of Kinnear-Weed's allegations of wrongdoing and fraud and to file appropriate findings of fact and conclusions of law, 403 F.2d 437 (5th Cir. 1968).

The present appeal is from the findings and conclusions which we directed be made. Kinnear-Weed presents the following contentions here:

(A) United States District Judge Lamar Cecil, who presided over the original patent suit trial, was disqualified to discharge the judicial function in that case under the provisions of 28 U.S.C.A. § 455 (1968):¹

(i) Because of an improper relationship to and connection with the defendant, Humble;

(ii) Because of a substantial interest in the disposition of the case; and

(iii) Because of the cumulative effect of (i) and (ii).

(B) Judge Cecil did not properly exercise his discretion under § 455, supra, when he made the decision to continue to sit in the case.

(C) Judge Cecil had a duty to make a full disclosure to the parties of his interest in the outcome of the litigation and his connections with Humble.

(D) Humble had a duty to disclose the peculiar knowledge it had of the relationships between itself and Judge Cecil that might be relevant to the formation of an opinion that the Judge was disqualified by law to sit, and its failure to discharge this duty constituted a fraud on this Court and the Supreme Court.

(E) The district court from which the present appeal was taken erred in issuing an injunction preventing plaintiff from further litigating in any court the issues presented to that court and in taxing costs, including attorneys' fees of Humble, against Kinnear-Weed.

We consider these issues one by one:

(A) Kinnear-Weed denominated six descriptive categories of questioned relationships and activity by Judge Cecil. The opinion of the district court correctly analyzed the welter of allegations, claims and proof developed in each of these categories. At the outset, we note that the court correctly determined, as a matter of law, that the prior en banc decision of this court settled the question that the one time ownership of 100 shares of stock of Humble by Judge Cecil's wife did not constitute a statutory disqualification. (See 403 F.2d at 440.) As a second preliminary matter, we take cognizance of the rule that each of the other detailed findings in the trial court opinion must be examined under the clearly erroneous standard of review established in our en banc order directing entry of final judgment. 324 F.Supp. at 1385.

We now conclude that each finding was fully supported by the record developed originally before this Court of Appeals as amplified by the wide discovery and evidence gathering procedures allowed by the court below. In fact, Kinnear-Weed now differs in only one insignificant aspect with the lower court's specific fact determinations.² Its disagreement comes with the conclusions of fact and the inferences drawn by the district judge from what are, for the most part, undisputed basic facts.

Our attention is, however, directed to the fact that the lower court made no findings relative to Judge Cecil's ownership during his tenure in office of stock in seven companies engaged in or related to the petroleum industry, and to stock ownership in another oil company which was sold early in his judicial career and prior to the entry of judgment in the subject action. In judging the significance of this oversight we are compelled to note the glaring inconsistency in Kinnear-Weed's conclusion that a statutory violation was shown by virtue of this ownership. The very reason why these holdings are alleged to constitute a disqualifying interest is the action of Judge Cecil in determining that the validity of Kinnear-Weed's claims affected and concerned the entire oil industry. Why would a man who was determined not to hold the balance true, by his own decision, supply the connecting link that would show disqualification? Why would he make such a sweeping finding favorable to contentions Kinnear-Weed might raise against companies in which he held a stock interest? To ask these questions is to answer them. These ownerships did not influence the judicial function. We have no difficulty in determining that the failure of the district court to expressly deal with this stock interest issue would not have affected the determinations made and is not reversable error.

We have again reviewed the separate issues and the separate findings and conclusions of fact on each separate issue and found them to be supported by the record and free of clear error individually. We have also considered the totality of such circumstances collectively and agree with the district court that in their entirety they present no more than the speculative musings of a losing litigant.

The outcome of our review is predictable and, indeed, compelled on the basis of such findings and the conclusions drawn therefrom. Whether viewed bifocally for separate determinations as to (i) the propriety of Judge Cecil's relationship to or connection with Humble as an entity, and (ii) his possession of a substantial interest in the disposition of the case; or altogether to test (iii) the cumulative impact of the judge's relationship to, connection with and interest in the party and the subject matter, the district court was not clearly erroneous in determining that no one or combination of these contentions was well taken.³

(B) The district court's factual conclusion that Judge Cecil considered the matter of his possible disqualification and properly concluded that it was his duty and his obligation to continue to preside in this case, is correct. Kinnear-Weed had the burden of producing clear and convincing evidence that a public officer such as Judge Cecil, failed to discharge the duty mandated by § 455. Chaney v. United States, 406 F.2d 809 (5th Cir. 1969). Speculation and suspicion are just not any evidence at all that Judge Cecil, as a matter of fact or as a matter of law, violated his duty. Charlson Realty Co. v. United States, 384 F.2d 434, 181 Ct.Cl. 262 (1967). Kinnear-Weed has wholly failed to demonstrate that Judge Cecil's discretion was abused.

(C) Section 455 vests in the justice or judge the obligation to determine that a substantial interest or relationship to or connection with a party rendered it improper to sit in the seat of judgment. The mere restatement of the statute's rule really answers the contention advanced by Kinnear-Weed that Judge Cecil had a duty, even in the absence of any issue raised about it, to make affirmative disclosures so that the matter of his disqualification could be considered by the litigants. Congress made it expressly plain that it placed in the justice or judge the responsibility for making the determination "in his opinion" that he should disqualify himself. Thus, we reject the contention of Kinnear-Weed that the rationale of Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S. Ct. 337, 21 L.Ed.2d 301 (1968) should be applied here. That case held that an arbitration decision should be set...