Tjosevig v. United States

• Decision Date: 06 January 1919
• Docket Number: 3167.
• Citation: 255 F. 5
• Parties: TJOSEVIG et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

255 F. 5

TJOSEVIG et al. v. UNITED STATES. ^[1]

No. 3167.

United States Court of Appeals, Ninth Circuit.

January 6, 1919

The plaintiffs in error, Tjosevig and Lund, were respectively client and attorney in an equitable suit pending at Juneau in the District Court of Alaska. The client signed, and the attorney filed in court, an affidavit in which the following was stated: 'That affiant is informed and verily believes that the plaintiff, T. J. Donohoe, is the national committeeman for the Democratic party for the territory of Alaska; that as such he controls the appointment of judges or to a great extent influences all appointment and confirmation of judges; that he is a personal friend of the honorable judge of this court before whom this cause is pending; that such friendship is very intimate and of long standing, and that affiant is informed and verily believes that, prior to the appointment of the honorable judge of this district to the judgeship, said plaintiff spent his time in Washington City, at great personal expense and loss of time to himself, urging upon the President and Senate the appointment and confirmation of the honorable judge of this district; that affiant is informed and verily believes that the said plaintiff, by reason of such friendship and such political services rendered by the said plaintiff, Donohoe for and on behalf of this honorable judge, claims and intends to thereby influence the decision of the court in this case in his favor; that affiant in no way intends to reflect upon the honor or integrity of the honorable judge of this district, but owing to the circumstances above set forth he feels that he is at a disadvantage in submitting the issues of facts in this case to the decision of said honorable judge, and therefore asks that the issues of facts be submitted to the determination of the jury, and in event that that is denied affiant asks and demands that some other judge be called in to hear and determine said costs. ' With the affidavit a motion was presented that the issues of fact in the suit be submitted to a jury, or that the cause be transferred to some other judge for trial, or that some outside judge be called in to try the same. Thereupon the court ordered plaintiffs in error to appear and show cause why they and each of them should not be adjudged guilty of contempt of court in making, filing, and presenting said affidavit. It was charged in the order, and upon the hearing it was found, that the affidavit was intended to obstruct and embarrass the administration of justice in said cause, and to scandalize and degrade the court; that it was not filed in good faith, but was for the purpose of intimidating and influencing the court; and that the filing of the same constituted contempt of court. The plaintiffs in error were each adjudged guilty of contempt of court, and fined each in the sum of $100 and costs.

John Rustgard, of Juneau, Alaska, for plaintiffs in error.

James A. Smiser, U.S. Atty., and John J. Reagan, Asst. U.S. Atty., both of Juneau, Alaska.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

GILBERT Circuit Judge (after stating the facts as above).

(1) The defendant in error contends that the filing of an affidavit in the district of Alaska, alleging prejudice or bias of a judge of the district, of itself constitutes contempt of court, and cites In re Jones, 103 Cal. 397, 37 P. 385, and Johnson v. State, 87 Ark. 45, 112 S.W. 143, 18 L.R.A. (N.S.) 619, 15 Ann.Cas. 531, in which it was held that an affidavit filed for the purpose of disqualifying a judge on account of alleged prejudice or bias, or for the purpose of changing venue, is contempt of court, in the absence of a statute rendering such prejudice or bias ground for such a motion. Upon principle, and upon a careful consideration of the few adjudicated cases concerning the question, we think that the reasonable view is as it is expressed in 6 R.C.L. 494:

'An attorney may in a proper case, in a respectful manner, as, for example, on an application for change of venue, allege that the judge is prejudiced against his client, and unless the act is done with reckless disregard of truth, or with the express intention to reflect upon the honor and integrity of the judge, it is not a contempt.'

There is no statute of Alaska authorizing change of venue on the ground of the prejudice or bias of a judge. On March 3, 1911 (Judicial Code (36 Stat. 1090, c. 231) Sec. 21 (Comp. St Sec. 988)), Congress made provision that upon a showing by affidavit that the judge before whom an action or proceeding is to be tried has a personal bias or prejudice against a party or in favor of any opposite party to the suit, such judge shall proceed no further therein, but...