In re JP Linahan

• Decision Date: 08 November 1943
• Docket Number: 143.,No. 142,142
• Citation: 138 F.2d 650
• Parties: In re J. P. LINAHAN, Inc.
• Court: U.S. Court of Appeals — Second Circuit

138 F.2d 650 (1943)

In re J. P. LINAHAN, Inc.

Nos. 142, 143.

Circuit Court of Appeals, Second Circuit.

November 8, 1943.

Weinstein & Levinson, of New York City, for answering stockholders and answering creditor.

Baar, Bennett & Fullen, of New York City (Frank Weinstein, Samuel J. Levinson, and John P. Hurley, all of New York City, of counsel), for debtor.

Raymond J. Scully, of New York City, for petitioning creditors.

Edward Robinson, Jr., of Oyster Bay, L. I., N. Y., for debtor in possession.

Trachman & Krosner, of New York City (Raymond J. Scully, of New York City, Harry Robinson, of Oyster Bay, L. I., N. Y., and Hilbert I. Trachman and Irving R. Krosner, both of New York City, of counsel), for minority stockholder.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. Appellants complain that the District Court, having appointed Referee Olney as Special Master in Chapter X proceedings begun by involuntary petition and contested by appellants, denied appellants' application to remove that Special Master because of bias. Appellants point to matters alleged to show such bias, most of which are so frivolous as to deserve no discussion. Special emphasis is put on these facts: The Master has heretofore entered orders, accompanied by findings, adverse to appellants; the District Court's orders, approving these orders of the Master, were, in some instances, reversed by this court on previous appeals;¹ some of the findings of the Special Master are alleged to have been, at least by inference, disapproved on these appeals and, in one instance, to have been based on hearsay. These facts do not call for removal of the Special Master.² Appellants entertain a fundamentally false notion conception of the prejudice which disqualifies a judicial officer.³

Democracy must, indeed, fail unless our courts try cases fairly, and there can be no fair trial before a judge lacking in impartiality and disinterestedness. If, however, "bias" and "partiality" be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions; and the process of education, formal and informal, creates attitudes in all men which affect them in judging situations, attitudes which precede reasoning in particular instances and which, therefore, by definition, are pre-judices. Without acquired "slants," pre-conceptions, life could not go on. Every habit constitutes a pre-judgment; were those pre-judgments which we call habits absent in any person, were he obliged to treat every event as an unprecedented crisis presenting a wholly new problem he would go mad. Interests, points of view, preferences, are the essence of living. Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference. "To live is to have a vocation, and to have a vocation is to have an ethics or scheme of values, and to have a scheme of values is to have a point of view, and to have a point of view is to have a prejudice or bias * * *"⁴ An "open mind," in the sense of a mind containing no preconceptions whatever, would be a mind incapable of learning anything, would be that of an utterly emotionless human being, corresponding roughly to the psychiatrist's descriptions of the feeble-minded.⁵ More directly to the point, every human society has a multitude of established attitudes, unquestioned postulates. Cosmically, they may seem parochial prejudices, but many of them represent the community's most cherished values and ideals.⁶ Such social pre-conceptions, the "value judgments" which members of any given society take for granted and use as the unspoken axioms of thinking, find their way into that society's legal system, become what has been termed "the valuation system of the law."⁷ The judge in our society owes a duty to act in accordance with those basic predilections inhering in our legal system (although, of course, he has the right, at times, to urge that some of them be modified or abandoned). The standard of dispassionateness obviously does not require the judge to rid himself of the unconscious influence of such social attitudes.⁸

In addition to those acquired social value judgments, every judge, however, unavoidably has many idiosyncratic "learnings of the mind," uniquely personal prejudices, which may interfere with his fairness at a trial. He may be stimulated by unconscious sympathies for, or antipathies to, some of the witnesses, lawyers or parties in a case before him. As Josiah Royce observed, "Oddities of feature or of complexion, slight physical variations from the customary, a strange dress, a scar, a too-steady look, a limp, a loud or deep voice, any of these peculiarities * * * may be, to one, an object of fascinated curiosity; to another * * *, an intense irritation, an object of violent antipathy."⁹ In Ex parte Chase, 43 Ala. 303, Judge Peters said he had "known a popular judicial officer grow quite angry with a suitor in his court, and threaten him with imprisonment, for no ostensible reason, save the fact, that he wore an overcoat made of wolf skins," and spoke of "prejudice, which may be swayed and controlled by the merest trifles — such as the toothache, the rheumatism, the gout, or a fit of indigestion, or even through the very means by which indigestion is frequently sought to be avoided." "Trifles," he added, "however ridiculous, cease to be trifles when they may interfere with a safe administration of the law." Frankly to recognize the existence of such prejudices is the part of wisdom. The conscientious judge will, as far as possible, make himself aware of his biases of this character, and, by that very self-knowledge, nullify their effect.¹⁰ Much harm is done by the myth that, merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.¹¹ The concealment of the human element in the judicial process allows that element to operate in an exaggerated manner; the sunlight of awareness has an antiseptic effect on prejudices.¹² Freely avowing that he is a human being, the judge can and should, through self-scrutiny, prevent the operation of this class of biases.¹³ This self-knowledge is needed in a judge because he is peculiarly exposed to emotional influences;¹⁴ the "court room is a place of surging emotions * * *; the parties are keyed up to the contest, often in open defiance; and the topics at issue are often calculated to stir up the sympathy, prejudice, or ridicule of the tribunal."¹⁵ The judge's decision turns, often, on what he believes to be the facts of the case. As a fact-finder, he is himself a witness — a witness of the witnesses; he should, therefore, learn to avoid the errors which, because of prejudice, often affect those witnesses.¹⁶

But, just because his fact-finding is based on his estimates of the witnesses, of their reliability as reporters of what they saw and heard, it is his duty, while listening to and watching them, to form attitudes towards them. He must do his best to ascertain their motives, their biases, their dominating passions and interests, for only so can he judge of the accuracy of their narrations. He must also shrewdly observe the strategems of the opposing lawyers, perceive their efforts to sway him by appeals to his predilections.¹⁷ He must cannily penetrate through the surface of their remarks to their real purposes and motives.¹⁸ He has an official obligation to become prejudiced in that sense. Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.

His findings of fact may be erroneous, for, being human, he is not infallible; indeeds, a judge who purports to be superhuman is likely to be dominated by improper prejudices. When upper court judges on an appeal decide that the findings of a trial judge are at fault because they — correctly or incorrectly —¹⁹ think those findings insufficiently supported by relevant and competent evidence, that appellate decision does not brand him as partial and unfair. When, his decision reversed because of errors in his findings of fact or conclusions of law, the case comes back to his court for a further hearing, he will not, if he is the kind of person entitled to hold office as a judge, permit his previous decision in the case to control him.

These comments dispose of the issue here. Referee Olney has honorably discharged the duties of his office for many years. Nothing in his official career or in the record of this case justifies the suggestion that he did not and will not conform to the judicial standards of fairness as we have defined them. Judge Coxe, one of our ablest and most experienced trial judges, has refused to remove Referee Olney as Master in these proceedings. We see nothing to warrant us in interfering with Judge Coxe's discretion. Indeed, had he ruled otherwise, we would have been strongly inclined to reverse him.

2. The District Court made an order vacating a notice given by certain of appellants of the taking of the depositions of witnesses whose testimony might bear on the issue of solvency, but with leave to these appellants to make a new application for taking such depositions after the petitioning creditors had put in their evidence. It is argued that this order constituted reversible error. We cannot agree. Under General Order 37, 11 U.S.C.A. following section 53, the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in so far as they are not inconsistent with the Bankruptcy Act or with the General Orders, are to "be followed as nearly as may be" but "the court may * * * modify the rules for the preparation or hearing of any particular...