In re Union Leader Corporation, 5820 (Original)

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: PER CURIAM
• Citation: In re Union Leader Corporation, 292 F.2d 381 (1st Cir. 1961)
• Decision Date: 13 July 1961
• Docket Number: No. 5820 (Original),5820 (Original)
• Parties: In the Matter of UNION LEADER CORPORATION, Petitioner,

292 F.2d 381 (1961)

In the Matter of UNION LEADER CORPORATION, Petitioner,

No. 5820 (Original)

United States Court of Appeals First Circuit.

June 27, 1961.

Motion for Stay Denied July 13, 1961.

Ralph Warren Sullivan, Boston, Mass., with whom James M. Malloy and Morton Myerson, Boston, Mass., were on memorandum, for petitioner.

Robert H. Goldman, Lowell, Mass., with whom Frank Goldman, Lowell, Mass., Joseph F. Bacigalupo, Lawrence, Mass., and John J. Ryan, Jr., Haverhill, Mass., were on brief, for The Haverhill Gazette Co., intervenor.

Before HARTIGAN and ALDRICH, Circuit Judges, and GIGNOUX, District Judge.

ALDRICH, Circuit Judge.

This is a petition for a writ of mandamus to order a judge of the United States District Court for the District of Massachusetts to revoke his action striking an affidavit of bias and prejudice filed pursuant to 28 U.S.C. § 144 and to order him to disqualify himself from conducting further proceedings in the case of Union Leader Corporation v. Newspapers of New England, Inc. (Haverhill Gazette Company v. Union Leader Corporation), recently before this court on liability, 1 Cir., 1960, 284 F.2d 582, certiorari denied, 365 U.S. 833, 81 S.Ct. 747, now pending in the district court for a determination of damages suffered by Gazette. It is asserted that we have authority to act under the All Writs Act, 28 U.S.C. § 1651(a).¹

We have been traditionally reluctant to permit mandamus to be used as a means of circumventing the policy against intermediate review. See, e. g., In re Josephson, 1 Cir., 1954, 218 F.2d 174, 177. It now seems clear, however, that in In re Josephson we construed the words "in aid of * * * jurisdictions" too narrowly. See LaBuy v. Howes Leather Co., 1957, 352 U.S. 249, 255, 77 S.Ct. 309, 1 L.Ed.2d 290; Black v. Boyd, 6 Cir., 1957, 248 F.2d 156, 160-161. In a sense this may merely mean that the emphasis was placed at the wrong point. Our jurisdiction exists, but we must decide whether there are sufficient reasons for its exercise. In Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185, for example, the court explicitly stated that the question was "not whether the court below had power to grant the writ but whether in the light of all the circumstances the case was an appropriate one for the exercise of that power." 319 U.S. at pages 25-26, 63 S.Ct. at page 941. Although it referred to our power as a matter of "sound discretion," 319 U.S. at page 25, 63 S.Ct. at page 941, that case made very clear, by its firm reversal of the decision to issue the writ, that appellate courts must be sure of their grounds. As the court cautioned in LaBuy v. Howes Leather Co., supra, where the power was characterized in broad terms, "mandamus should be resorted to only in extreme cases." 352 U. S. at pages 257-258, 77 S.Ct. at page 314. In short, it is a power to be exercised "sparingly." Prater v. Boyd, 6 Cir., 1959, 263 F.2d 788, 790. But this is not to say that the sometimes confused distinction between jurisdiction and the proper exercise of it is wholly illusory. For, in addition to more traditional bases for issuing an extraordinary writ, if we properly find "exceptional circumstances," LaBuy, supra, 352 U.S. at page 260, 77 S.Ct. at page 315, or more loosely, and perhaps more practically, that a writ should issue "in the interest of justice," Ford Motor Co. v. Bisanz Bros., Inc., 8 Cir., 1957, 249 F.2d 22, 26; cf. United States v. Beatty, 1914, 232 U.S. 463, 467, 34 S.Ct. 392, 58 L.Ed. 686 ("furthering justice"), our power to hear the case in a mandamus proceeding is unquestioned.

Initially, we dismiss arguments based upon a claim that a judge against whom a sufficient affidavit of prejudice has been filed ceases to have power to act. Lack of jurisdiction in the district court is a classic example calling for exercise of the writ, Ex parte Republic of Peru, 1943, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; Ex parte Indiana Transp. Co., 1917, 244 U.S. 456, 37 S.Ct. 717, 61 L.Ed. 1253; see Roche v. Evaporated Milk Ass'n, supra, 319 U.S. at page 26, 63 S.Ct. at page 941, but this use of the writ is usually reserved for those cases where the absence of jurisdiction is plain. See Ex parte Muir, 1921, 254 U.S. 522, 534, 41 S.Ct. 185, 65 L.Ed. 383; Massey-Harris-Ferguson, Ltd. v. Boyd, 6 Cir., 1957, 242 F.2d 800, 803, certiorari denied, 355 U.S. 806, 78 S.Ct. 48, 2 L.Ed. 2d 50.² The very fact that the judge has power to decide whether the affidavit is sufficient or not, Berger v. United States, 1921, 255 U.S. 22, 36, 41 S.Ct. 230, 65 L. Ed. 481, makes this justification for exercising jurisdiction inapplicable. Likewise, we cannot accept the argument that, absent mandamus, a lengthy trial may ensue for nought. This argument would apply to every interlocutory ruling which might affect the outcome of a case. It has been repeatedly rejected. See, e. g., Roche v. Evaporated Milk Ass'n, supra, 319 U.S. at page 30, 63 S.Ct. at page 943.

But we do find exceptional circumstances in the nature of the particular claim advanced by petitioner. A trial taking place before a judge alleged to be personally biased, particularly when the claimed bias has apparently become a matter of public notice and interest, may be incompatible with the proper administration of justice. If the claim is sufficiently meritorious, the proceeding should be aborted rather than corrected. Mandamus has been held to be an appropriate remedy to secure the right to jury trial, at least where the right is clear, Beacon Theatres, Inc. v. Westover, 1959, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed. 2d 988; Ex parte Simons, 1918, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094, and seemingly even where the right is debatable, compare majority opinion with dissenting opinion in Beacon Theatres, Inc. v. Westover, supra, both at page 511 of 359 U.S., at page 957 of 79 S.Ct. From the general standpoint of "the interest of justice," the right to be tried before an unbiased judge is also basic in our judicial system. Although there are differences of opinion, we agree with the concurring judges in Green v. Murphy, 3 Cir., 1958, 259 F.2d 591, 595, that public confidence in the courts may require that such a question be disposed of at the earliest opportunity.³ In addition to the cases cited therein, see also United States v. Ritter, 10 Cir., 1959, 273 F.2d 30, 32, certiorari denied, 362 U.S. 946, 950, 80 S.Ct. 863, 4 L.Ed.2d 869. This need not commit us to entertaining every rejected affidavit of prejudice; nor need we presently set forth the limits. It is to be borne in mind that mandamus is a discretionary writ.

Strictly, the district judge is the respondent in such mandamus proceedings, but with his assent, and in accordance with our customary practice, we have permitted intervenor Gazette to file an answer instead.⁴ We deal initially with its contention that the certificate of counsel accompanying the affidavit should have stated that counsel was acting in good faith, not that affiant was. The statute requires "a certificate of counsel of record stating that it is made in good faith." The question is what, or who, the word "it" refers to. While some courts have assumed that the statute was aimed merely at counsel's opinion that his client was acting in good faith,⁵ all agree that the affidavit has indispensable value. See Berger v. United States, 1921, 255 U.S. 22, 33, 41 S.Ct. 230, 65 L.Ed. 481; Beland v. United States, 5 Cir., 1941, 117 F.2d 958, 960, certiorari denied, 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541; Currin v. Nourse, 8 Cir., 1934, 74 F.2d 273, 275, certiorari denied, 294 U.S. 729, 55 S.Ct. 638, 79 L.Ed. 1259; Morse v. Lewis, 4 Cir., 1932, 54 F.2d 1027, 1032, certiorari denied, 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1291; United States v. Gilboy, D.C.M.D.Pa.1958, 162 F.Supp. 384, 391, petition for writ of mandamus denied sub. nom. Green v. Murphy, 3 Cir., 1958, 259 F.2d 591. One may well question the value of counsel's opinion of what is in his client's mind, and we certainly must disagree with Flegenheimer v. United States, 3 Cir., 1936, 110 F.2d 379, 381, that it is a client's "right" to have counsel's certification when counsel believes the affidavit's recitation to be false.⁶ If a certificate is to serve the purpose of shielding a court which cannot test the truth of claimed facts, it should at least carry the assertion that counsel believes the facts alleged to be accurate and correct.

Beyond this, there is the element of legal sufficiency. It would seem meaningless to ask a lawyer to certify that his client believed an affidavit to be legally sufficient while thinking it frivolous himself. Federal Rule of Civil Procedure 11, 28 U.S.C., states that counsel, in filing a pleading, impliedly certifies "that to the best of his knowledge, information, and belief there is good ground to support it." See also Rule 56(g). The disqualification of a judge scarcely merits a lower standard. See United States v. Gilboy, supra, 162 F.Supp. at page 392; Denis v. Perfect Parts, Inc., D.C.D.Mass.1956, 142 F.Supp. 263, 264; United States v. Lattimore, D.C.D.C.1954, 125 F.Supp. 295, 296. We interpret "it" in the statute as referring to the application as a whole, and hold that counsel's good faith must be stated.⁷ We intimated that this was our view in Craven v. United States, 1 Cir., 1927, 22 F.2d 605, 607, certiorari denied 276 U.S. 627, 48 S.Ct. 321, 72 L. Ed. 739, but we have never actually decided this question and other circuits have seemingly adopted a contrary rule. See footnote 5, supra. For these reasons, and because the court below did not reject the affidavit on this ground, we think it would be unfair to announce our interpretation now other than prospectively. We pass, therefore, to the merits.

In an editorial printed in 1950 petitioner, a publisher of a daily newspaper in Manchester, New Hampshire, criticized a group of prominent Bostonians for the position they were taking on Far Eastern...