Whittemore v. Farrington

• Decision Date: 20 July 1956
• Docket Number: No. 14843.,14843.
• Citation: 234 F.2d 221
• Parties: Francis Farrington WHITTEMORE et al., Appellants, v. Elizabeth P. FARRINGTON et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

234 F.2d 221 (1956)

Francis Farrington WHITTEMORE et al., Appellants, v. Elizabeth P. FARRINGTON et al., Appellees.

No. 14843.

United States Court of Appeals Ninth Circuit.

June 6, 1956.

Rehearing Denied July 20, 1956.

COPYRIGHT MATERIAL OMITTED

Ernest C. Moore, Jr., J. Russell Cades, Blaisdell & Moore, Smith, Wild, Beebe & Cades, Honolulu, Hawaii, for appellants.

J. Garner Anthony, William F. Quinn, Robertson, Castle & Anthony, Honolulu, Hawaii, for appellees.

Before HEALY, ORR and POPE, Circuit Judges.

ORR, Circuit Judge.

Appellants are attempting to disqualify Circuit Judge Calvin C. McGregor of the Territory of Hawaii from hearing a matter pending before the court over which Judge McGregor presides.

A brief history of the litigation in which the disqualification is alleged to exist may be helpful. On July 30, 1954 one Edmund Leavey commenced an action in the Circuit Court of the First Judicial Circuit, Territory of Hawaii by petition asking "confirmation and authority to act as successor trustee" in the matter of the trust estate of Wallace H. Farrington, deceased. The petition was opposed and a cross-complaint filed by appellees Elizabeth P. Farrington and her two adopted children. The cross-complaint asserted that inasmuch as the said appellees constituted a majority in number and interest of those having interests in the trust estate the law of Hawaii¹ empowered them to name the successor trustees.

During the pendency of this action and on March 17, 1955, the expiration of the term of office of United States District Judge J. Frank McLaughlin occurred.^* By motion and supporting affidavit filed April 22, 1955 appellants asked Judge McGregor to disqualify himself and designate another judge to preside, alleging that such disqualification was required by § 9573, Revised Laws of Hawaii 1945. The affidavit supporting the motion for disqualification was to the effect that Judge McGregor was seeking appointment to succeed Judge McLaughlin in the Federal district court; that appellee Elizabeth P. Farrington was at the time a delegate to the Congress of the United States from the Territory of Hawaii; that as such delegate Elizabeth P. Farrington was in a position to influence the appointment of the successor to Judge McLaughlin and that, therefore, Judge McGregor was believed to have a personal bias and prejudice in favor of Mrs. Farrington. On April 25, 1955 Judge McGregor denied the motion for disqualification.

Appellants immediately petitioned the Supreme Court of Hawaii for a writ of prohibition to require Judge McGregor to disqualify himself and to request another judge to preside. The Supreme Court of Hawaii denied the writ. Appellants are attempting to appeal from that ruling to this court. Appellees have challenged our jurisdiction and have moved to dismiss.

Jurisdiction over appeals from the Supreme Court of Hawaii is conferred upon this court by 28 U.S.C.A. § 1293.² That section limits our jurisdiction to three classes of cases, viz.

(1) Cases involving the Constitution, laws or treaties of the United States,

(2) Habeas corpus proceedings, and

(3) All other civil matters where the value in controversy exceeds $5,000 exclusive of interests and costs.

Some suggestion has been made that in determining whether this appeal from the order of the Supreme Court of Hawaii denying the said writ of prohibition is within the jurisdiction conferred on this court by § 1293, supra, we may consider the petition in the supreme court as ancillary to and part of the main action in the circuit court. We think it important to emphasize at the outset that the proceedings before the said supreme court constitute a separate and independent action³ and our jurisdiction, if it exists, must arise from matters there involved.

Appellants contend that the petition before the Supreme Court of Hawaii presented a question arising under the "Constitution, laws or treaties of the United States". They cite the decision of the Supreme Court in the case of Tumey v. Ohio, 1927, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, for the proposition that a litigant's right to trial before an impartial tribunal is guaranteed by the 14th Amendment of the United States Constitution. Appellants further contend that the instant case involves a "law of the United States," viz. § 84 of the Hawaiian Organic Act,⁴ 48 U.S.C.A. § 636, which provides for disqualification of jurors and judges in certain cases.

We are not called upon to resolve these questions because appellants failed, both in the circuit court and Supreme Court of Hawaii, to raise these federal questions. Having so failed they may not now rely thereon in this court. We have held that a federal question upon which it is claimed jurisdiction rests must be raised in the territorial courts, "and timely presented for consideration by the Supreme Court of the Territory. * * *," Warner v. Territory of Hawaii, 9 Cir., 1953, 206 F.2d 851, 852, and cases there cited, Lewis v. Territory of Hawaii, 9 Cir., 1954, 210 F.2d 552, and see also Herndon v. Georgia, 1935, 295 U.S. 441, 55 S.Ct. 794, 79 L.Ed. 1530, in which a similar rule was applied by the United States Supreme Court in exercising its powers of appellate review of state court decisions.

Appellants attempt to invoke the third provision of the statute, stating that the value of the trust res in the main action is in excess of $500,000⁵ and therefore, the value in controversy exceeds $5,000. We do not think so. The value of appellants' right to an impartial tribunal is the measure of the matter in controversy before the Supreme Court of Hawaii, and that right cannot be measured in dollars and does not meet the jurisdictional requirement,⁶ Barry v. Mercein, 1847, 5 How. 103, 120, 46 U.S. 103, 120, 12 L.Ed. 70 (custody of child); Potts v. Chumasero, 1875, 92 U.S. 358, 23 L.Ed. 499; Kurtz v. Moffitt, 1885, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458 (habeas corpus); Simms v. Simms, 1899, 175 U.S. 162, 20 S.Ct. 58, 44 L.Ed. 115 (divorce); Leon v. Torruella, 1 Cir., 1938, 99 F.2d 851.

It is argued that the measure of the value of appellants' right to a fair determination in the circuit court of the question of appointment of trustees is the value to them of securing such appointments.⁷ Should we adopt this yardstick there still appears no sufficient basis for jurisdiction.

The action before the circuit court concerned the appointment of new trustees for the Farrington trust. The relief sought was the designation of trustees. Whatever importance the determination between the candidates for appointment to fill the vacancy in the post of trustees may have had to the parties concerned the rights asserted are not susceptible of monetary measure. It has long been settled that the requirements of statutes predicating federal jurisdiction on the presence of a specified amount or value in controversy are not met by claims for relief not reducible to monetary statement, Barry v. Mercein, supra; Potts v. Chumasero, supra; Kurtz v. Moffitt, supra; Simms v. Simms, supra; Leon v. Torruella, supra.

Appellants seek to avoid the force of this rule by arguing that in the course of the circuit court's selection of successor trustees it was required that the court determine which group of beneficiaries constituted the majority in number and interest of those having an interest in the trust,⁸ thereby necessitating determination of the claims of the several parties to be beneficiaries. In particular, it is said, it became necessary to determine whether appellees Beverley Farrington Richardson and John Farrington, both adopted children of the trustor, were included in the class gift to "issue." Therefore, it is said that the determination of this question involves determination of a controversy the value of which is in excess of $5,000, the jurisdictional requirement.

There is no merit in this contention. It is well established that collateral questions necessary to a determination of the matter before the court, whether or not giving rise to an estoppel by judgment, may not be considered in computing the jurisdictional amount in controversy, Healy v. Ratta, 1934, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248; Town of Elgin v. Marshall, 1882, 106 U.S. 578, 1 S.Ct. 484, 27 L.Ed. 249; The Jesse Williamson, Jr., 1883, 108 U.S. 305, 2 S.Ct. 669, 27 L.Ed. 730; New Jersey Zinc Co. v. Trotter, 1883, 108 U.S. 564, 2 S.Ct. 875, 27 L.Ed. 828; Sociedad Espanola De Auxilio Mutuo y Beneficencia De Puerto Rico v. Buscaglia, 1 Cir., 1947, 164 F.2d 745, certiorari denied 333 U.S. 867, 68 S.Ct. 790, 92 L.Ed. 1145; 1 Moore's Federal Practice, 513-514, 1938.

It is further contended that a necessary effect of the appointment of trustees is the awarding of the right to receive trustee's commissions and that the value of such commissions satisfies the jurisdictional amount requirements of § 1293.

Appellants seek to name three trustees to the Farrington trust. Of these, Edmund Leavey alone is a party in the proceedings before the Supreme Court of Hawaii. Ostensibly what Leavey there sought was the right to have an impartial tribunal determine the disposition of his petition to be appointed a co-trustee. As heretofore noted, this right though valuable cannot be measured in terms of dollars and may not support jurisdiction.

Contention is made that the measure of the value of Leavey's right to a fair determination of whether he is to be appointed trustee is the value to him of such an appointment. Parenthetically, it should be noted that there is, of course, no "right" to be a trustee; the circuit court may exercise a wide discretion in making its selections, 1 Scott on Trusts, § 108.4 (1939). Leavey is not the inevitable choice. He may never have the right to collect one dollar in fees.

But, assuming for the moment that the compensation of trustees not yet appointed could be the measure of the controversy before us, we have a situation where, as yet, no compensation has been...