Hvass v. Graven

• Decision Date: 13 October 1958
• Docket Number: No. 15980.,15980.
• Parties: Charles T. HVASS, Petitioner, v. The Honorable Henry N. GRAVEN, as Judge of the United States District Court for the Northern District of Iowa, and the Honorable Edwin R. Hicklin, as Judge of the United States District Court for the Northern District of Iowa, by Assignment, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

257 F.2d 1 (1958)

Charles T. HVASS, Petitioner, v. The Honorable Henry N. GRAVEN, as Judge of the United States District Court for the Northern District of Iowa, and the Honorable Edwin R. Hicklin, as Judge of the United States District Court for the Northern District of Iowa, by Assignment, Respondents.

No. 15980.

United States Court of Appeals Eighth Circuit.

June 26, 1958.

Certiorari Denied October 13, 1958.

Charles Alan Wright, Austin, Tex. (Warren B. King, Minneapolis, Minn., and M. E. Rawlings, Sioux City, Iowa, on the brief), for petitioner.

Theodore G. Gilinsky, Asst. U. S. Atty., and F. E. Van Alstine, U. S. Atty., Sioux City, Iowa (Philip C. Lovrien, Asst. U. S. Atty., Sioux City, Iowa, on the brief), for respondents.

Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges.

Certiorari Denied October 13, 1958. See 79 S.Ct. 58.

GARDNER, Chief Judge.

This is an original proceeding brought by petitioner Charles T. Hvass seeking writ of prohibition and mandamus against respondents, the Honorable Henry N. Graven, as Judge of the United States District Court for the Northern District of Iowa, and the Honorable Edwin R. Hicklin, as Judge of the United States District Court for the Northern District of Iowa, by assignment.

Petitioner Hvass was on March 20, 1956, indicted in the Northern District of Iowa for perjury allegedly committed in a proceeding before Judge Graven. Thereafter, on March 21, 1956, Judge Graven entered an order assigning the case for trial to the Honorable George T. Mickelson, United States District Judge for the District of South Dakota, then sitting in the Northern District of Iowa by assignment. Without arraignment petitioner filed a motion to dismiss the indictment on the ground that it failed to state facts sufficient to constitute an offense against the United States. On hearing of this motion Judge Mickelson sustained same and entered an order dismissing the indictment. United States v. Hvass, D.C., 147 F.Supp. 594. From this order the United States perfected a direct appeal to the United States Supreme Court and in due course, on the 3rd day of March, 1958, the Supreme Court reversed the order and remanded the case to the United States District Court for the Northern District of Iowa for further proceedings, 355 U.S. 570, 78 S.Ct. 501, 2 L.Ed.2d 496. In the meantime and on January 1, 1957, Judge Mickelson's assignment to the Northern District of Iowa expired and respondent Judge Hicklin was duly assigned to the Northern District of Iowa on the 1st day of September, 1957, for a period expiring the 1st day of September, 1959. On March 11, 1958, petitioner, still without arraignment, filed a new motion to dismiss the indictment. Thereupon Judge Graven entered the following order:

"On March 20th, 1956, when the Indictment was returned in this case the then United States District Judge for the Southern District of Iowa was disabled. He died in December, 1956. Since August, 1957, the Honorable Edwin R. Hicklin has been the United States District Judge for the Southern District of Iowa. He is the only out of district judge who now holds a current assignment to this District.

"It Is, Therefore, Ordered that all further proceedings in the above-entitled case will be handled by the Honorable Edwin R. Hicklin, United States District Judge for the Southern District of Iowa, with whom counsel in the case will take up all matters directly which relate to the case."

Following the entry of this order and before any proceedings had been had before Judge Hicklin, the present proceeding was commenced, seeking writ of prohibition and mandamus against respondents restraining, prohibiting and preventing them from making, entering or enforcing, or in any manner complying with said order reassigning the case, and restraining, prohibiting and preventing them from in any manner interfering with, directly or indirectly, any further proceedings in said action or the disposition thereof by Judge Mickelson.

In this proceeding petitioner challenges the validity of the order designating Judge Hicklin to try the case on substantially the following grounds: (1) the case of United States v. Hvass is properly pending before Judge Mickelson, (2) Judge Graven lacks jurisdiction to reassign a pending case, and (3) issuance of an extraordinary writ in these circumstances is appropriate.

Judge Mickelson was designated and assigned to the Northern District of Iowa for periods finally expiring January 1, 1957. The designation was a general one "* * * to hold or assist in holding the District Court of the United States in and for the several divisions of the Northern District of Iowa * * * in place or in aid of the Honorable Henry N. Graven, United States District Judge for the said Northern District of Iowa." The designation was made pursuant to statutory authority providing that:

"The chief judge of a circuit may, in the public interest, designate and assign temporarily any district judge of the circuit to hold a district court in any district within the circuit." Section 292(b), Title 28 U.S. C.A.

The powers that may be exercised by a district judge so designated and assigned are prescribed by statute. Section 296, Title 28 U.S.C.A. The statute, after providing that a designated and assigned judge shall have all powers of a judge of the court to which he is designated and assigned, provides that:

"A justice or judge who has sat by designation and assignment in another district or circuit may, notwithstanding his absence from such district or circuit or the expiration of the period of his designation and assignment, decide or join in the decision and final disposition of all matters submitted to him during such period and in the consideration and disposition of applications for rehearing or further proceedings in such matters."

As herein recited, immediately following petitioner's indictment Judge Graven referred the case to Judge Mickelson who was then acting under assignment to the Northern District of Iowa. Petitioner then presented to Judge Mickelson a motion to dismiss the indictment. That motion was sustained and Judge Mickelson entered an order on the only matter submitted to him, and so far as he was concerned the case was terminated by an order of dismissal. Petitioner had not been arraigned and the question of his guilt or innocence had not been made an issue by the entrance of any plea. The assignment and designation of Judge Mickelson specifically provided that, "This assignment shall extend to cover disposition of any matters submitted during the above period of assignment." At the expiration of the period of his assignment there were no undisposed of matters which had been submitted to him during his period of assignment. The extent and limitations of the power of an assigned district judge are well defined by the United States Supreme Court in Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 191, 82 L.Ed. 282, as follows:

"When an assigned judge has presided at the trial of a cause, he is to have power, though the period of his service has expired, and though he may have returned to his own district, to perform the functions which are incidental and supplementary to the duties performed by him while present and acting in the designated district. And where a cause has been submitted to him in the designated district, after his return to his own district he may enter decrees or orders and file opinions necessary to dispose of the case, notwithstanding the termination of his period of service in the foreign district. But the act goes no farther. It clearly does not contemplate that he shall decide any matter which has not been submitted to him within the designated district." (Emphasis supplied.)

The power reserved which may be exercised after the expiration of an assignment is illustrated by the decisions in Clarke v. Chicago, B. & Q. R. Co., 10 Cir., 62 F.2d 440 and United States v. Goldstein, 8 Cir., 271 F. 838. In the instant case the motion filed by petitioner does not seek a rehearing on his prior decision, nor does he seek any further action on that motion, but he appropriately files a new motion recognizing that final action had theretofore been taken on his first motion. We do not think the pending motion can be said, within the purview of the statute, to present for consideration a matter submitted to Judge Mickelson within the time of his assignment and designation to the Northern District of Iowa. The decisions in Sunrise...