United States v. Fujimoto
Decision Date | 29 November 1951 |
Docket Number | Cr. No. 10495. |
Citation | 101 F. Supp. 293 |
Parties | UNITED STATES v. FUJIMOTO et al. |
Court | U.S. District Court — District of Hawaii |
Howard K. Hoddick, Acting U. S. Dist. Atty., Honolulu, T. H., for the United States.
Bouslog & Symonds, Honolulu, T. H., for defendants.
Five of the seven defendants have filed affidavits against me, charging bias and prejudice. The two who did not file were Dwight James Freeman and Eileen Toshiko Fujimoto.
The indictment charges the seven defendants with conspiring to violate the Smith Act, 18 U.S.C. § 2385, which prohibits the advocating of the overthrow of the Government of the United States by force or violence.
In 28 U.S.C. § 144 it is provided: "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
"The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, * * *."
On the threshold, it should be observed that the statute authorizing the disqualification of a judge for alleged bias or prejudice is, despite its remedial nature, strictly construed. Because of the opportunity for abuse of the privilege, rigid compliance with the provisions of the law is exacted. Scott v. Beams, 10 Cir., 1941, 122 F.2d 777, 787-788, certiorari denied, Brody v. Beams, 1942, 315 U.S. 809, 62 S.Ct. 794, 86 L.Ed. 1208; Skirvin v. Mesta, 10 Cir., 1944, 141 F.2d 668, 672; United States v. 16,000 Acres of Land, etc., D.C. Kan., 1942, 49 F.Supp. 645, 648; Burall v. Johnston, D.C.Cal., 53 F.Supp. 126, 128 (1943), affirmed, 9 Cir., 1944, 146 F.2d 230, certiorari denied, 1945, 325 U.S. 887, 65 S.Ct. 1567, 89 L.Ed. 2001.
It is well settled in the books and firmly established in this Circuit that, to support an effort to disqualify a judge, the affidavit must allege some "fact indicating that the judge has a personal bias or prejudice in favor of one party, or against the other". Loew's Inc. v. Cole, 9 Cir., 1950, 185 F.2d 641, 646, certiorari denied, 1951, 340 U.S. 954, 71 S.Ct. 570, 95 L.Ed. 688; Connelly v. United States District Court, 9 Cir., 191 F.2d 692.
The rationale of the rule is well stated in the leading case of Ex parte N. K. Fairbank Co., D.C.Ala., 1912, 194 F. 978, 989-990:
It is worthy of notice that the Fairbank case, supra, was cited with approval by the Supreme Court "as expressing power in the presiding judge to pass upon the sufficiency of the facts affirmed", in Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481.
See also Henry v. Speer, 5 Cir., 1913, 201 F. 869, 871-872; Beland v. United States, 5 Cir., 1941, 117 F.2d 958, 960, certiorari denied, 1941, 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541, rehearing denied, 1941, 314 U.S. 708, 62 S.Ct. 54, 86 L.Ed. 565; Price v. Johnston, 9 Cir., 1942, 125 F.2d 806, 811-812, certiorari denied, 1942, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750, rehearing denied, 1942, 316 U.S. 712, 62 S.Ct. 1289, 86 L.Ed. 1777; Hurd v. Letts, 80 U.S.App. D.C. 233, 152 F.2d 121, 122; Eisler v. United States, 1948, 83 U.S.App.D.C. 315, 170 F.2d 273, 278, certiorari granted, 1948, 335 U.S. 857, 69 S.Ct. 130, 93 L.Ed. 404, case removed from docket, 1949, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897, motion to dismiss granted and certiorari dismissed, 1949, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542; Foster v. Medina, 2 Cir., 1948, 170 F.2d 632, 633, certiorari denied, 1949, 335 U.S. 909, 69 S.Ct. 412, 93 L.Ed. 442; Saunders v. Piggly Wiggly Corporation, D.C.Tenn., 1924, 1 F.2d 582, 584; American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., D.C.N.Y., 1933, 6 F.Supp. 215, 218; United States v. Buck, D.C.Mo., 1938, 23 F.Supp. 508, 509, appeal dismissed, 8 Cir., 1938, 102 F.2d 976; United States v. 16,000 Acres of Land, etc., supra, 49 F.Supp. at page 649; Burall v. Johnston, supra, 53 F.Supp. at page 128.
By means of a unique type of oblique reasoning, the defendants Ariyoshi and Kimoto, in their joint affidavit, allege that, because of certain attacks appearing in the Honolulu Record, of which Ariyoshi is editor, the "Judge would be unable to give defendant Ariyoshi a fair and impartial trial." No act or statement by the judge is alleged to buttress this rank generalization or conclusion. Only a psychic pleader could allege that because a defendant has published uncomplimentary statements concerning a judge, the latter will be unable to give his critic a fair and impartial trial. If such a fantastic procedure were permitted, a defendant could get rid of a judge by the simple expedient of publishing a scurrilous article, truthfully alleging that the article was published, and clinching the matter by asserting the bald conclusion that, since the article was uncomplimentary, the judge must of necessity be prejudiced against the publisher!
It is precisely to such bizarre pleading that the admonition in the Fairbank case, supra, applies; namely, that Congress did not intend "that any reason that a litigant may choose to assign in his affidavit, however absurd or ridiculous in point of law or morals, will disqualify the judge".
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...States v. Valenti, supra, 120 F.Supp. at page 88; United States v. Parker, supra, 23 F. Supp. at page 883; United States v. Fujimoto, D.C.D.Hawaii 1951, 101 F. Supp. 293, 296) without basis in fact. What was said, supra, as to a ruling in the case applies with even greater force to an antic......
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...filed an abusive and irrelevant affidavit casting reflections both on the judge and on his father. See also United States v. Fujimoto, D.C.D.Haw.1951, 101 F.Supp. 293, 296 (newspaper attack on judge); Allen v. DuPont, D.C.D.Del.1948, 75 F.Supp. 546, 548 (party brought suit against judge per......
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