Albert v. UNITED STATES DISTRICT COURT FOR WD OF MICH., 14308.

• Decision Date: 19 October 1960
• Docket Number: No. 14308.,14308.
• Citation: 283 F.2d 61
• Parties: Samuel G. ALBERT, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, NORTHERN DIVISION, and Hon. W. Wallace Kent, Judge of said court, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

283 F.2d 61 (1960)

Samuel G. ALBERT, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, NORTHERN DIVISION, and Hon. W. Wallace Kent, Judge of said court, Respondents.

No. 14308.

United States Court of Appeals Sixth Circuit.

October 19, 1960.

Peter E. Bradt, Port Huron, Mich., and Theodore G. Albert, Ironwood, Mich., for petitioner.

Charles M. Humphrey, Jr., Ironwood, Mich., Ivan D. Wright, Ironwood, Mich., William F. Pellow, Bessemer, Mich., William P. Pellow, Pros. Atty., Bessemer, Mich., for respondents.

Before MILLER, CECIL and WEICK, Circuit Judges.

WEICK, Circuit Judge.

This is an original action in mandamus and prohibition to compel the District Judge to certify his disqualification to hear a certain pending action and to prohibit him from conducting further proceedings therein because of his alleged personal bias and prejudice.

An affidavit alleging personal bias and prejudice on the part of the Judge in favor of and against certain parties and attorneys in said pending action in the District Court was filed by petitioner under the provisions of Title 28 U.S.C. § 144.

The District Judge, upon consideration of the affidavit of personal bias and prejudice, held that it was insufficient to require him to disqualify himself and refused to do so. The present proceeding followed in an attempt to obtain a review of the order entered by him.

The mere filing of an affidavit of personal bias and prejudice against the District Judge did not result in his automatic disqualification. The statute requires the affidavit to state something more than that the judge has a personal bias or prejudice. It provides that "The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists * * *." Title 28 U.S.C. § 144.

The District Judge had a duty to determine whether the statutory requirement has been met. To do so he was required to pass upon the legal sufficiency of the affidavit. In the consideration of the matter, he must accept the facts alleged in the affidavit as true, as they may not be controverted. Green v. Murphy, 3 Cir., 1958, 259 F.2d 591;¹ Eisler v. United States, 1948, 83 U.S. App.D.C. 315, 170 F.2d 273.

The order entered by the District Judge refusing to disqualify himself is not reviewable upon appeal until a final judgment has been entered in the case. Collier v. Picard, 6 Cir., 1956, 237 F.2d 234.

Before petitioner may resort to the extraordinary writ of mandamus, he must establish that he has a clear and certain right and that the duties of the respondent are ministerial, plainly defined and peremptory. United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 51 S.Ct. 502, 75 L.Ed. 1148; United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 57 S.Ct. 855, 81 L.Ed. 272; Rayborn v. Jones, 6 Cir., 1960, 282 F.2d 410.

In our view, the consideration by the District Judge of the sufficiency of the affidavit of bias and prejudice is not a ministerial, but a judicial act.

Mandamus does not lie to compel a judge of an inferior court to reverse a decision made by him in the exercise of a legitimate jurisdiction. Ex parte Flippin, 1876, 94 U.S. 348, 24 L.Ed. 194, or to compel him to decide according to the dictates of any judgment but his own, United States v. Lawrence, 1795, 3 Dall. 42, 1 L.Ed. 502, or to control the exercise of his discretion. Gottlieb v. Rubenstein, 6 Cir., 1958, 252 F.2d 779. This remedy is reserved for really extraordinary causes. It may not be used as a substitute for appeal. Roche v. Evaporated Milk Association, 1943, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185; Beneke v. Weick, 6 Cir., 1960, 275 F.2d 38.

The writ may be granted only where it is clear and undisputable that there is no other legal remedy. Ex parte American Steel Barrel Co., 1913, 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379.

Mandamus has been held not to be the proper remedy to compel a judge to recuse himself. Green v. Murphy, 3 Cir., 1958, 259 F.2d 591; Korer v. Hoffman, 7 Cir., 1954, 212 F.2d 211, 45 A.L.R.2d 930; Hurd v. Letts, 1945, 80 U.S.App. D.C. 233, 152 F.2d 121.

In Connelly v. United States District Court, 9 Cir., 1951, 191 F.2d 692, the Court issued a writ of prohibition, but the footnote on page 693 of the opinion indicates that no question was raised over its power to do so. This decision was followed in Gladstein v. McLaughlin, 9 Cir., 1955, 230 F.2d 762 wherein the Court of Appeals felt it was unnecessary to issue the writ as the District Judge upon consideration of its opinion would refrain from proceeding further. In concurring, Circuit Judge Pope was of the view that the Court, in this same footnote in Connelly, had misconstrued the language of Berger v. United States, 255 U.S. 22, 41...