United States v. 16,000 ACRES OF LAND, ETC.

• Decision Date: 09 November 1942
• Docket Number: Civ. A. No. 1233,1246,1262.
• Citation: United States v. 16,000 ACRES OF LAND, ETC., 49 F.Supp. 645 (D. Kan. 1942)
• Parties: UNITED STATES v. 16,000 ACRES OF LAND, MORE OR LESS, IN LABETTE COUNTY, KAN., et al.
• Court: U.S. District Court — District of Kansas

49 F. Supp. 645

UNITED STATES v. 16,000 ACRES OF LAND, MORE OR LESS, IN LABETTE COUNTY, KAN., et al.

Civ. A. Nos. 1233, 1246, 1262.

District Court, D. Kansas, Third Division.

November 9, 1942.

COPYRIGHT MATERIAL OMITTED

HOPKINS, District Judge.

These cases have to do with the war. The government in furtherance of the war effort has taken possession of perhaps in excess of 140,000 acres of farm land in Kansas. On application of the government, appraisers were appointed, who have filed reports from which the government has instituted countless appeals. These appeals should be heard and determined without further delay. The matter presently for consideration arises from affidavits filed by counsel alleging personal bias and prejudice of the judge of this court against the government and in favor of the landowners whose lands have been taken. The effect of these affidavits is to further delay, hamper and interfere with the due and orderly disposition of such suits, the burden and inconvenience of which will rest most heavily upon the large group of farmers whose homes and lands have been taken. The affidavits are made by Paul L. Aylward, Peter F. Caldwell and Jacob A. Dickinson, who style themselves special attorneys for the Department of Justice. The same attorneys certify that the affidavits are made in good faith.

Upon the filing of an affidavit of bias and prejudice it is the duty of the district judge to determine the legal sufficiency of the affidavit and, if insufficient, to refuse to disqualify himself. Scott v. Beams, 10 Cir., 122 F.2d 777. The affidavits have been examined with care and compel a decision that they are insufficient in law, and in time of filing.

A consideration of the facts underlying the present controversy may be helpful. They are substantially these:

The government the past year and a half has condemned and taken possession of perhaps in excess of 140,000 acres of land in Kansas for war purposes. In the first instance appraisers representing the government made preliminary appraisements in connection with which efforts were made to procure the land at private sale. Where this failed petitions in condemnation were filed by the government asking for immediate possession. After this was done, and in due course, the government filed applications with the court for the appointment of appraisers. These applications were allowed and special efforts were made by the court to secure in each community those men best qualified to appraise the lands taken. In many, and perhaps most, instances the government suggested the names of such appraisers. In due time, after investigation by the appraisers their reports were filed. Following this the government in approximately two hundred fifty cases appealed from the award of the court appraisers.

The court, in order to take care of any and all emergencies which might arise in connection with such matters, and during the war emergency now pending, remained constantly on duty practically all of the past year. At the regular term of court in Fort Scott in May, the court suggested a special term in June to try the government cases. Counsel for the government stated they "could not be ready." Early in the summer, realizing the increasing number of government appeals, the court suggested that during the summer months the court could hear many of such appeals if a jury was not necessary. Counsel for the government responding to these suggestions stated "Washington insists on juries in all cases." Jury trials were not practicable during the summer because of excessive heat and because the farmers were too busy to attend trials. The judge of this district has had the cooperation of practically all lawyers of standing in dispensing with juries in nearly all cases, both civil and criminal.

Regular terms of court began the middle of September since which time this court has sought to try appeals in the condemnation cases.

In order to speed up matters and not delay payment to farmers whose lands have been taken, the court has been of the opinion that trials could be had much more speedily without juries and, while the court urged this procedure, it has not in any instance denied a jury trial. One trial, involving ten tracts from the Fort Riley reservation, was tried at Topeka. A motion by the government for a new trial was denied.

The applicable statute is 28 U.S.C. A. § 25, which according to all the decisions should be strictly construed, and reads: "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, but another judge shall be designated, in the manner prescribed in section 24 of this title, or chosen in the manner prescribed in section 27 of this title, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The same proceedings shall be had when the presiding judge shall file with the clerk of the court a certificate that he deems himself unable for any reason to preside with absolute impartiality in the pending suit or action."

Several questions present themselves.

Do the affidavits establish personal bias against a party to the action (the government)? Did the party to the action (the government) file the affidavits? That is to say, has the government, as a party to the litigation, filed or authorized the filing of the affidavits in question? May an attorney who signs such an affidavit as a party to the action also certify it as attorney? May alleged errors, which are reviewable on appeal, form a proper basis for an affidavit of personal bias and prejudice against a party to the action? Did a suggestion by the court that "trials be had without juries" show personal bias or prejudice against the government? Did the refusal of the court to grant the right of inspection by the jury of lands involved in a trial show personal bias and prejudice? And, were the affidavits filed "in time" as required by the statute?

The significant word in the statute is the word "personal." By personal prejudice is meant an attitude against a party to a proceeding derived otherwise than through judicial proceedings. No opinion based upon evidence or the proceedings before a judge can form the basis of a personal prejudice against a party, as such term is used in the statute.

An examination of the authorities fails to disclose a single case which would lend support to the claim that these affidavits state facts sufficient in law. In considering the question of the legal sufficiency of the affidavits, there are certain guides which have been firmly fixed by the decisions. Soon after the enactment of section 25, the Supreme Court had occasion to comment on it. In Ex parte American Steel Barrel Co., 230 U.S. 35, 43, 33 S.Ct. 1007, 1010, 57 L.Ed. 1379, the court said: "The basis of the disqualification is that `personal bias or prejudice' exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. It is a provision obviously not applicable save in those rare instances in which the affiant is able to state facts which tend to show not merely adverse rulings already made, which may be right or wrong, but facts and reasons which tend to show personal bias or prejudice. It was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise, but to prevent his future action in the pending cause. Neither was it intended to paralyze the action of a judge who has heard the case, or a question in it, by the interposition of a motion to disqualify him * * *."

In Re Lisman, 2 Cir., 89 F.2d 898, part of the syllabus reads: "A disqualifying affidavit against judge must state facts and reason for belief that personal bias or prejudice exists, and it must be shown that such prejudice exists against affiant, or in favor of his opponent as to preclude impartial judgment by recused judge." (Syl. 2).

In Ryan v. United States, 8 Cir., 99 F.2d 864, we read: "A judge to be disqualified must have a personal bias or prejudice against a party or in favor of an opposite party, and judicial rulings cannot ordinarily be made basis of charge of bias, since any error in such rulings may be corrected on appeal." (Syl. 10).

In Price v. Johnston, 9 Cir., 125 F.2d 806, 811, it was said: "The statute requires that the bias or prejudice be `personal.' The allegations of the affidavit, as disclosed by the petition for the writ, do not indicate a `personal' prejudice or bias against the accused, but charge an impersonal prejudice, and go to the judge's background and associations rather than his appraisal of the defendant personally. This is not enough under the statute, and the affidavit must be here held to have been insufficient under the law. The plain purpose of the statute `was to afford a method of relief through which a party to a suit may avoid trial before a judge having a personal bias or prejudice against him or in favor of the opposite party. That sought to be relieved against is a personal bias or prejudice — a bias or prejudice possessed by the judge specifically applicable to or directed against suitor making the affidavit or in favor of his opponent.' Appellant's allegations reveal that `the facts and reasons advanced in support of the charge...