Alexander v. United States

• Decision Date: 14 March 1949
• Docket Number: No. 12081.,12081.
• Citation: 173 F.2d 867
• Parties: ALEXANDER v. UNITED STATES and nine other cases.
• Court: U.S. Court of Appeals — Ninth Circuit

173 F.2d 867 (1949)

ALEXANDER v. UNITED STATES and nine other cases.

No. 12081.

United States Court of Appeals Ninth Circuit.

Dissenting Opinion March 21, 1949.

March 14, 1949.

Gallagher, Margolis, McTernan & Tyre, Ben Margolis and John T. McTernan, all of Los Angeles, Cal., for appellants.

James M. Carter, U. S. Atty., of Los Angeles, Cal., and Max H. Goldschein, Frank De Nunzio and Vincent Russo, Sp. Assts. to the Atty. Gen., for appellee.

A. L. Wirin and Fred Okrand, both of Los Angeles, Cal., for American Civil Liberties Union, amicus curiae.

Daniel G. Marshall and Sam Houston Allen, both of Los Angeles, Cal., for Los Angeles and Hollywood-Beverly Hills Chapters National Lawyers' Guild, amicus curiae.

J. Bruce Fratis, George Olshausen and Benjamin Dreyfus, all of San Francisco, Cal., for San Francisco Chapter National Lawyers' Guild, amicus curiae.

Before DENMAN, Chief Judge, and MATHEWS, STEPHENS, HEALY, BONE and ORR, Circuit Judges.

PER CURIAM.

Judges Denman, Stephens and Orr think that the judgments in these cases should be reversed. Judges Mathews, Healy and Bone think that the judgments should be affirmed. The judgments are, therefore, affirmed by an equally divided court.

DENMAN, Chief Judge (dissenting).

This is a case in which the constitutional questions are of such importance that the court, sua sponte, ordered that it be heard in banc. When heard a vacancy existed, and the court was composed of six judges. By an even division of view of the six judges, there is an affirmance.

Now at the time of decision the vacancy has been filled, and this is a court of seven judges. Though of such importance that the appeal required a hearing before six judges, and though the result is such a judicial futility, the court nevertheless refuses to have a decision on the merits by a hearing before seven judges.

I dissent from the court's refusal to set aside its submission and order a rehearing to the end that the important issues before it be decided on the merits of the contentions urged by the litigants. My views, in such a situation, of the court's obligations to its litigants and the law of the circuit will be more fully expressed in an opinion to follow.

March 21, 1949.

DENMAN, Chief Judge.

This is (A) a dissent from the failure to set aside our submission and order a rehearing in banc of seven judges, and (B) a full statement of my reasons for a reversal of the district court, which the per curiam order discloses in part.

A. The denial of appellate justice in refusing to hear the appeals in a court of seven judges.

Because of the weight and importance of the constitutional issues of this litigation the court, sua sponte, required these ten appeals to be heard in banc. The death of Judge Garrecht had caused a vacancy making this a court of six judges. These six heard the appeals and now an evenly divided court fails to adjudicate their merits, and affirms the district court's judgments.

Prior to this decision Judge Pope has been appointed and has qualified. Though the constitutional questions are of such importance that the cases so required a court of six judges for their consideration and though that consideration ended in such a futility, the court refuses to set aside its submission and order a hearing in banc before its seven judges with the certitude that the constitutional issues will receive our decision on their merits.

My reasons for dissenting from such inconsistency and futility¹ are those underlying the contrary practice of the Supreme Court. Under our Rule 9 the practice in this court "shall be the same as in the Supreme Court of the United States so far as the same shall be applicable". Since over ninety-five per-cent of our decisions on the law of the circuit are final the practice of the Supreme Court in cases of even division of the court are clearly "applicable".

The Supreme Court early in its history adopted the practice of requiring, if practicable, constitutional questions to be heard by a full court in order that the judgment in such case might, if possible, be the decision of the majority of the whole court.

In Briscoe v. Commonwealth Bank of Kentucky, 8 Pet. 118, 8 L.Ed. 887, and Mayor, Alderman and Commonalty of City of New York v. Miln, 8 Pet. 120, 8 L.Ed. 888, when, as with us, the full Court consisted of seven members, this rule was announced by Chief Justice Marshall in the following language: "The practice of this court is, not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional questions are involved, unless four judges concur in opinion, thus making the decision that of a majority of the whole court. In the present case four judges do not concur in opinion as to the constitutional questions which have been argued. The court therefore direct these cases to be reargued at the next term, under the expectation that a larger number of the judges may then be present."

The same cases were again called at the next term of court and the Chief Justice said the court could not know whether there would be a full court during the term; but as the court was then composed the constitutional cases would not be taken up. 9 Pet. 85, 9 L.Ed. 60. The rule laid down by Chief Justice Marshall has been frequently followed. See e. g. Home Ins. Co. of New York v. State of New York, 119 U.S. 129, 148, 8 S.Ct. 1385, 30 L.Ed. 350; Id., 122 U.S. 636, 30 L.Ed. 1241; Id., 134 U.S. 594, 597, 10 S.Ct. 593, 33 L.Ed. 1025; Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429, 586, 15 S.Ct. 673, 39 L.Ed. 759; Id., 158 U.S. 601, 15 S.Ct. 912, 39 L. Ed. 1108.

Nor has the rule been limited to cases of equal division, as a result of the illness of one of the justices, or a temporary vacancy, where the court could expect that a sufficient number of justices would ultimately be present to render a decision by a majority vote. It has also been given effect in the analogous situation where so many of the justices disqualified themselves that the Court, because of the absence of a quorum, could not make final disposition of the case. Thus, in United States v. Aluminum Company of America and North American Company v. Securities and Exchange Commission, 320 U.S. 708, 64 S.Ct. 73, 88 L.Ed. 415, the Supreme Court said: "As four Justices have disqualified themselves from participating in the decision in each of these cases, the Court is unable to make final disposition of them because of the absence of a quorum of six Justices as prescribed by 28 U.S.C. A. § 321 now § 1. * * * These cases will accordingly be transferred to a special docket and all further proceedings in them postponed in each case until such time as there is a quorum of Justices qualified to sit in it." Subsequently, one of the justices who had disqualified himself reconsidered his disqualification and participated in the decision in the North American case, which was ultimately decided by the Court with three of the justices who had previously disqualified themselves not participating in the decision. 327 U.S. 686, 711, 66 S.Ct. 785, 90 L.Ed. 945.

Similarly, judges have yielded on their disqualification to the necessity of decision in cases where such disqualification would prevent a determination of the issues presented. Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887, 11 A.L.R. 519; Koki Hirota v. General of the Army MacArthur, 335 U.S. 876, 69 S.Ct. 157.

Even in cases not involving constitutional issues the Supreme Court practice is the same. In the following recent cases the ninth justice was not available for the hearing, as here the seventh judge. As here, the full quota of the court became available before the decision was rendered. The Supreme Court, sua sponte, set aside the submission and ordered reargument to the full bench. Gibson v. United States, 329 U.S. 338, 67 S.Ct. 301, 91 L.Ed. 331; People of State of Illinois v. Campbell, 329 U.S. 362, 67 S.Ct. 340, 91 L.Ed. 348.

Similarly in several cases where by a divided court affirmances were adjudged and thereafter all the nine justices became available. Petitions for rehearing were filed and granted, and the decision by the full court followed. Halliburton Oil Well Cementing Co. v. Walker, Affirmed by a divided court, 326 U.S. 696, 66 S.Ct. 482, 90 L.Ed. 410. Rehearing granted before the full bench, 327 U.S. 812, 66 S.Ct. 677, 90 L.Ed. 1037. Lower court reversed, 329 U.S. 1, 67 S.Ct. 6, 91 L.Ed. 3. Bruce's Juices v. American Can Co., 327 U.S. 758, 66 S.Ct. 527, 90 L.Ed. 992, affirmed by a divided court. Rehearing granted before the full bench, 327 U.S. 812, 66 S.Ct. 801, 90 L.Ed. 1037. Lower court affirmed, 330 U.S. 743, 67 S.Ct. 1015, 91 L.Ed. 1219. MacGregor v. Westinghouse & Mfg. Co., 327 U.S. 758, 66 S.Ct. 527, 90 L.Ed. 992, affirmed by a divided court. Rehearing granted before the full bench, 327 U.S. 812, 66 S.Ct. 801, 90 L.Ed. 1037. Lower court reversed 329 U.S. 402, 67 S.Ct. 421, 424, 91 L.Ed. 380.

Beyond the judicial duty of this Court of Appeals to our litigants and to the determination of the law of the circuit is the possible relief of the Supreme Court by a decision which seems to that Court so clearly the law that certiorari will be denied.² Every reason of principle and practice makes it a wrong to the litigants here so to deny them the judicial consideration this court was created to give them.

B. Opinion fully stating my views, partially disclosed in the court's per curiam, on the error in the district court's decision that the answers to questions asked appellants would not tend to incriminate them.

These are ten appeals from judgments holding in civil contempt each of a group of witnesses appearing before the United States grand jury for the Southern District of California for failure to answer the same questions severally put to each and committing them to jail until they shall answer.

The grand jury was investigating the organization and objectives of the Los Angeles County Communist Party....