Cole v. Loew's Inc.

Decision Date29 March 1948
Docket NumberNo. 8005.,8005.
Citation76 F. Supp. 872
PartiesCOLE v. LOEW'S INC. et al.
CourtU.S. District Court — Southern District of California

Kenny & Cohn, by Robert W. Kenny and Morris E. Cohn, Charles J. Katz, and Gallagher, Margolis, McTernan & Tyre, by Ben Margolis, all of Los Angeles, Cal., for plaintiff.

Loeb & Loeb, Herman F. Selvin, and Milton A. Rudin, all of Los Angeles, Cal., for defendants.

YANKWICH, District Judge.

I The Bias and Prejudice Which Disqualifies

A. How the Question Arises:

On January 7, 1948, the plaintiff, Lester Cole, filed in the Superior Court of the State of California, for Los Angeles County, an action for declaratory and general equitable relief. California Code of Civil Procedure, Secs. 1060, 1061. On January 26, 1948, Loew's Inc., the defendant, filed a petition to remove the cause to the United States District Court for the Southern District of California, under the diversity statutes. 28 U.S.C.A. § 41(1) (b); 28 U. S.C.A. § 71.

These are the familiar sections which permit civil actions in which the matter in controversy exceeds the sum or value of three thousand dollars, and which is between citizens of different States to be removed to the Federal court, when the defendant is of different citizenship than the plaintiff. Corporations organized in one State and doing business in another, when sued by citizens of the State where their business is located, are thus enabled to have their causes tried in the Federal instead of the State Courts.

The defendant, being a Delaware corporation, was entitled to have the cause removed.

An Order of Removal was made on February 2, 1948. The delay which usually accompanies the transmission of the record to the District Court resulted in the cause not being filed in our court until February 28, 1948. When so filed, under the rotation system which obtains in assigning cases (Local Rule 2), the matter was first assigned to Judge McCormick and then to me. There are certain rules under which, when several cases of similar character are filed, the judge who has the case with the lowest number may have assigned to him more than one of these cases. Judges are not informed of the filings until copies of the pleadings begin to reach them. And I did not know of the filing of this action until a Motion for Judgment on the Pleadings, made by the plaintiff, with supporting memorandum, reached me on March 6, 1948. This Motion I heard on March 15, 1948. Notwithstanding reports to the contrary, which erroneously have crept into some of the press and radio, the matter is undecided.

It is true that during the course of the lengthy legal argument, as is the custom, certain colloquies occurred between the Court and counsel for both sides. They do not necessarily indicate what the decision will be. Often a Judge resorts to the Socratic method to ask questions to clarify the issues. And lawyers of experience know that in this and every other American court, they cannot claim a vested interest in any intimations given by the court as to its views on any phase of the matter. Matters of this importance are seldom decided from the Bench. They require further study. And, in many instances, lawyers are pleasantly surprised that the Judge, on further study, has ruled the other way. Lawyers are familiar with this phenomenon which is an accepted part of the American judicial technic, but lay persons are often baffled by it.

I refer to it in this case because of the intimation in some public channels of communication that, during the argument, I expressed definite views as to what my decision on some of the points of law involved might be. Actually, the entire controversy before me is very narrow. By the Complaint, the plaintiff, a writer with long experience in writing for motion pictures, seeks a declaration of his rights under his contract of employment with the defendant, dated December 5, 1945. The defendants, engaged in the production of motion pictures, exercising a right claimed under the contract, suspended the plaintiff on December 3, 1947, and stopped the payment of his salary, claiming that his conduct before the hearings of a Committee of the House of Representatives in refusing to answer certain questions violated his obligations under the contract of employment. Asserting that the statements are not true, the plaintiff, in his Complaint, claims that the defendants had no right to suspend him and to stop the payment of his salary. He seeks the Court to declare so and that he is entitled to compensation. He also seeks to restrain them from further enforcing the notice.

In an Answer filed March 2, 1948, the defendants admit the execution of the contract and the sending of the Notice, but deny the other matters. They assert their right to suspend. They have also demanded a trial by Jury.

In this state of the pleadings, the plaintiff made a motion for judgment on the pleadings upon the ground that the defenses raised by the Answer are not legally sufficient to raise an issue of fact and that, for this reason, the Court should forthwith render judgment in his favor.

It is to be noted from this brief summary of the pleadings that the question before me is not the constitutional validity of the resolution creating the House Un-American Activities committee, commonly known by the name of its Chairman, The Thomas Committee, or its right to pursue its inquiries. For that matter, I have no doubt of the constitutionality of its establishment. More, I believe, and have expressed the view repeatedly, that the right of congressional inquiry is a great adjunct of the democratic process and that fruitful legislation has resulted from the inquiries of special committees in the past, such as the Pujo, the Black and the LaFollette Committees. Nor, for that matter, is there before me the question of the right to ask the questions which were propounded to the witness before the Committee. The narrow question involved in this lawsuit which, because of diversity of citizenship, is governed by state law (see, Angel v. Bullington, 1947, 330 U.S. 183, 191, 67 S.Ct. 657; Barrett v. Denver Tramway Corporation, 3 Cir., 1944, 146 F.2d 701), is whether the plaintiff's conduct before the Committee was such as to warrant his suspension and the stoppage of his salary by the defendants.

In the motion for judgment on the pleadings, the sole question involved is whether, under the pleadings, there are issues left which call for a trial. This issue I did not decide at the hearing. It is still under submission.

Following the argument, on March 22, 1948, there was filed an application and affidavit to transfer the cause. It was based on an allegation that I have a personal bias and prejudice against the defendants and in favor of the plaintiff. The sole basis for this conclusion is the following statement appearing in the affidavit:

"Defendant is informed and believes and which, therefore, alleges that in the latter part of December, 1947, or the early part of January, 1948, (the exact date being unknown to defendant) and subsequent to the occurrence and publicization of the facts involved in this action, the Honorable Leon R. Yankwich, in the course of a discussion about the hearings before said Committee and of the ensuing indictments, suspensions and discharges, said in substance and effect that in his opinion there was no legal justification for the suspension or discharge of any of the persons whose conduct before the Committee resulted in their indictment; that he hoped that none of the cases arising out of such suspensions or discharges came before him but if they did, he would have no alternative but to render judgment for the plaintiffs in such actions; and that if he were the attorney for such plaintiffs, he could recover judgment in their favor for millions of dollars. Said statements, as defendant is informed and believes, and, therefore, alleges, were made during a social evening at the home of Mrs. Helen Melinkoff in Los Angeles, California, in the presence of several other persons including Mr. James Ruman, hereinafter referred to."

(B.) The Federal Law of Disqualification.

The affidavit was filed under Section 21 of the Judicial Code, 28 U.S.C.A. § 25, which provides, among other things:

"Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein * * * Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists."

The section is one-sided — a typical "shotgun" section. It is intended to cover extreme situations. It does not, as do State statutes, provide for counter-affidavits by the Judge and another judge to determine disqualification. California Civil Code of Procedure, Section 170. For this reason, and the opportunity of abusing the privilege it confers, ever since the enactment of the Statute in 1912, the Courts have sought to protect federal trial judges against the unilateralness of the procedure by limiting its scope strictly, and construing it literally and narrowly. See, Scott v. Beams, 10 Cir., 1941, 122 F.2d 777, 787, 788; Skirvin v. Mesta, 10 Cir., 1944, 141 F.2d 668, 672. The first and most important limitation came when the courts held that the bias and prejudice which disqualifies a judge is not some nebulous belief that he may have some preconceived ideas about a piece of litigation, but meant personal bias and prejudice or a bent or leaning against a litigant or in favor of another which, regardless of the merits of a cause, would make it impossible for him to judge the case dispassionately.

In an early case on the subject, Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 1010, 57 L.Ed. 1379, the Supreme Court said:

"The basis of the...

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