In re Spencer

RESPONDENT:In Re Spencer
LOCATION:Riverbed of the Arkansas River

DOCKET NO.: 513
DECIDED BY: Burger Court (1969-1970)
LOWER COURT:

CITATION: 397 US 817 (1970)
ARGUED: Apr 28, 1970
DECIDED: May 04, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – April 28, 1970 in In re Spencer

Warren E. Burger:

513, we’ll hear arguments in the matter of Dan A. Spencer.

Now as to number 4, Younger against Harris, we’ll ask counsel to standby for a while and perhaps at the half break when we’re certain that we are going to have this case completed with no emergencies then counsel could be excused at 2:30 if no emergencies arise.

Mr. Wulf, you may proceed whenever you’re ready.

Melvin L. Wulf:

Mr. Chief Justice and may it please the Court.

This contempt — conviction of an attorney is here on appeal from the Louisiana Supreme Court.

There — jurisdiction was postponed pending argument on the merits and there are some jurisdictional problems.

Before discussing those, I would like to describe the facts of the conviction itself because of the facts of the conviction also involved some of the jurisdictional problems.

The appellant in this case, Mr. Spencer is an attorney, member of the Louisiana Bar who appeared before a Judge Dixon, a District Court judge in the Louisiana courts representing one, Mr. Hopkins in a hearing in a divorce case.

It was an uncontested divorce suit and the purpose of the hearing was, according to Louisiana practice, to confirm default in Mr. Hopkins favor.

After testimony was taken by — was given by Mr. Hopkins and witness on his behalf, Judge Dixon denied the divorce because the testimony didn’t show abandonment by the spouse but showed only that Mr. Hopkins and Mrs. Hopkins have had argument and that they decided that one of them should leave and Mrs. Hopkins was the one to leave.

The following day after the denial of the divorce, the appellant filed a motion for a new trial on behalf of his client Mr. Hopkins on the ground that the decision by Judge Dixon was erroneous in fact and in law.

Simultaneously with filing the motion for a new trial, he also filed a motion to recuse Judge Dixon.

The motion to recuse which he filed was set out in the back of our brief.

Warren E. Burger:

Did that motion contain any new matter that he hadn’t known the day before or the week before?

Melvin L. Wulf:

The record doesn’t show, Your Honor.

Warren E. Burger:

Well, is it reasonable, can any inferences be drawn as to whether this was some discovery overnight or whether it was a new idea after he learned that he had received an adverse decision?

Melvin L. Wulf:

Oh, I don’t know what one — I believe that one cannot draw inferences from the record because there isn’t anything in the record at all to suggest when this impeachment proceeding was initiated, if it was initiated and was initiated and what the — what any of the facts surrounding that proceeding were.

What if any of the facts are on that petition were but the —

Potter Stewart:

But we don’t even know whether this is true or false, is that correct?

Melvin L. Wulf:

We don’t know —

Potter Stewart:

The factual statement?

Melvin L. Wulf:

We don’t know it’s true or false, Your Honor.

One of the reasons we don’t know whether it’s true or false is that the judge who sat on the contempt proceeding itself the year later wouldn’t allow any such testimony to be entered.

Now the record is ambiguous as to whether any such testimony was attempted to be put in by the appellant but it becomes perfectly clear from the statement of Judge Williams himself that he was the judge who sat on the contempt hearing that — and this is contained in the record of the case and also in the back of the jurisdictional statement.

He, Judge Williams in opposing Mr. Spencer’s application for writs of certiorari to Louisiana Supreme Court said in and I quote, well, I’m sorry I don’t quote, but in his application with — in his opposition to the application which is in the record, Judge Williams said himself that he refused to admit any such evidence concerning the truth of the assertion in the motion to recuse.

Potter Stewart:

And we don’t know if Mr. Hopkins was a lawyer or what he was so far as the record goes?

Melvin L. Wulf:

We don’t know, I don’t — I think Mr. Hopkins was not a lawyer.

Potter Stewart:

And we — do we know and we don’t know anything about Mr. Charles Anderson, III?

Melvin L. Wulf:

No sir, less in about him than about that of Mr. Hopkins.

Potter Stewart:

And do we know anything — suppose we could take judicial notice, although I certainly don’t have any actual notice of how in New Orleans you get a judge remove from office as being unfit therefore or for any other reason.

Potter Stewart:

We don’t know if these are members of the state legislature, if they are what — we don’t know anything about this case, do we?

Melvin L. Wulf:

Well, we do know that there was then a procedure under the Louisiana Constitution, Article 9 of the Constitution which provided that upon the petition of any 25 citizens of the state in which they alleged that a judge was guilty of one of a fairly long list of offenses ranging from high crimes and misdemeanors to habitual drunkenness and including incompetency, corruption, favoritism, extortion, oppression in office, and gross misconduct that upon a filing of a petition with the district attorney by 25 citizens so alleging that the district attorney had to initiate impeachment proceedings.

Potter Stewart:

Where, before what form?

Melvin L. Wulf:

The Supreme Court of Louisiana, Your Honor.

However that statute which was in effect at the time — this motion to recuse was filed was repealed not long afterwards.

Do we know Mr. Wulf how judge — how it came about that Judge Dixon ceased to hold office as a judge?

Melvin L. Wulf:

He was elevated to the — to an appellate court in Louisiana not long after this trial also, Your Honor.

Warren E. Burger:

Are you — you’re going to address yourself to whether you are legally here at all on the question whether there is an appeal here, are you?

Melvin L. Wulf:

Yes, sir, I am and if I may just finish the recital of facts I —

Potter Stewart:

I’m sorry to have interrupted, I shall —

Melvin L. Wulf:

The motion to recuse contained the following paragraphs.

Paragraph 4 and it’s set out at page 8 of the appendix, the separate appendix.

It says, “The plaintiff herein, Louis B. Hopkins, Jr. and his chief witness in this case, Mr. Charles Anderson, III are presently engaged in the process of attempting to have Judge Dixon removed from office as being unfit therefore by virtue of corruption, favoritism, oppression and misfeasance in office.”

And the next paragraph said that because of the — this activity by Mr. Hopkins that the Judge is therefore interested in the cause and bias, prejudice and harbors personal animosity towards the plaintiff.

In the motion to recuse was filed pursuant to a Louisiana statute which permits motions to recuse on allegations that filed.

Warren E. Burger:

At some point, will you develop what could be the nexus or what is the nexus as you see it between the allegations of corruption and the allegations of bias or perhaps indicate?

Melvin L. Wulf:

Well, —

Warren E. Burger:

If there is none, I’m puzzled by that.

Melvin L. Wulf:

Well, the nexus is that judge inferentially knowing about the motion to impeach about the proceeding to impeach initiated by the plaintiff in the case would necessarily be biased against him on the fair assumption that it certainly isn’t something that we’re going endear the plaintiff to the judge.

That — and that was the essence of the claim of bias and personal animosity, a fair implication, I would think.

This motion to recuse having been filed the judge several days later issued an order for a rule to show cause why appellant, Mr. Spencer what not be held in contempt.

And the order is set out in page 10 of the appendix, it’s very brief and it says using the language of the Louisiana contempt statute that he did file a pleading which contains scandalous, insulting and abusive language and a relevant criticism of the judge of said court, which pleading is attached hereto and made a part hereof in which language particularly in paragraph 4 which is the paragraph I read relating to the impeachment proceedings thereof, impairs the dignity of the court and the respect for his authority contrary to the law of the State of Louisiana.

At that point the appellant here initiated collateral proceedings, United States District Court of Louisiana to enjoin the contempt proceedings.

I don’t think that’s directly relevant now.

That was an attack on the sta —

Byron R. White:

Did you — what was the basis though of your client, was it due process of the First Amendment or what?

Melvin L. Wulf:

In the collateral actions, Your Honor?

That was an 1983 civil rights action based partially on Dombrowski v. Pfister to enjoin the contempt proceeding against the —

Byron R. White:

As depriving you of what federal right?

Melvin L. Wulf:

I’m afraid I can’t recall, the free speech, yes, precisely.

Byron R. White:

And that was decided against you?

Melvin L. Wulf:

He alleged a free — he alleged that the statute — Louisiana contempt statute violated the First Amendment on its face.

Byron R. White:

And the —

Melvin L. Wulf:

That was —

Byron R. White:

That was decided against you?

Melvin L. Wulf:

That was decided against appellant, yes.

Byron R. White:

Under what, a summary judgment or just?

Melvin L. Wulf:

On a summary judgment, yes.

There was a — there was initially a three-judge court and then they — I think —

Byron R. White:

And he didn’t appeal that?

Melvin L. Wulf:

He filed those on appeal and then withdrew it afterwards, yes.

Another part of that proceeding was that I think it’s fair to say out of that proceeding, that Judge Dixon disqualified himself from sitting on the contempt hearing itself and another judge was assigned to actually hear the —

Byron R. White:

Is that — are the issues in that federal court action being raised in this action too?

Melvin L. Wulf:

Well, the only issue that was disposed of in the federal court action was the constitutionality of the contempt statute on its face although that was raised here initially in the jurisdictional statement from our supplemental brief you’ll see that we’re confessing that that ought not be here because it was not properly —

Byron R. White:

Yes.

And the — when was it — when was the — when were your other issues ever raised in the state court?

Melvin L. Wulf:

Well, the other issues by which you mean the whole three of the general issues, the three —

Byron R. White:

On the — the other issues you want litigate it here, you want to decide here?

Melvin L. Wulf:

They were raised — the invalidity of the conviction was raised in the motion to recuse in the course of the hearing before Judge Williams and in the appellant’s application for writs of certiorari to Louisiana Supreme Court.

Byron R. White:

Well, if you didn’t raise it in the trial court however, you might be at some trouble even if you raised it in the petition for cert in the state court, wouldn’t you?

Melvin L. Wulf:

Well, but it was raised in the —

Byron R. White:

Where?

Where was that?

It must be on the record here somewhere.

Melvin L. Wulf:

It is on the record.

That was most explicitly raised in the course of the oral argument before Judge Williams at page — well, its raised in a couple of places.

At page 18 (Voice Overlap) in the appendix in the first full paragraph, the first words are Holt versus Virginia, that’s Mr. Spencer engaging in colloquy with Judge Williams.

And at the bottom of that paragraph, what he — quote some of the language from the Holt case and then at the conclusion, it says under these circumstances, the decision decided by 8 judges, the one that said, the Supreme Court, meaning this Court found that these constitutionally protected, expressions of free speech that I would submit that the same thing is true here.

The other issue that he persistently raised was the issue of his right to —

Excuse me Mr. — do you mean, the — this addresses itself to 2 (22) (3) as applied, is that it?

Melvin L. Wulf:

Yes, the reference to Holt, yes, yes.

And this is —

Melvin L. Wulf:

Yes, Your Honor.

This is what — you say this addresses itself to the constitutionality of the Section we have before us, 2 (22) (3), isn’t that it, as applied?

Melvin L. Wulf:

Well, it addressed its — it addressed itself to the charge against — it addressed himself to the charge against —

Well, I know but what we’re dealing with here is the jurisdiction — our jurisdiction here this, aren’t we?

Melvin L. Wulf:

We are and I have in our supplemental brief conceded that —

What was that?

Melvin L. Wulf:

Conceded that —

That on its face, so you have no — you can’t —

Melvin L. Wulf:

I have — we have abandoned the attack on the contempt statute on its face because in my opinion it was impossible to assert that there — that it had been joined in issue properly —

Can I Mr. Wulf, then I come back to my question, then you go on as I read your supplemental brief to say that the — you do the constitutionality of 2 (22) (3) based upon the First Amendment as applied, is that right?

Is that what you’re saying there?

Melvin L. Wulf:

Well, what I’m say — what I’m saying now here is that what we are attacking is not the statute either on its face but certainly not on its face, what we’re attacking is the validity of the conviction itself.

I have had —

I know but you’re here by appeal.

Melvin L. Wulf:

I am here by appeal.

I am on — in a supplemental brief I confess that you — we are here incorrectly by appeal.

And in the supplemental brief I have asked the — pursuant to Section 20 103 —

And you got it as a cert?

Melvin L. Wulf:

— that we — that the case to be treated as a petition for certiorari which in fact was one of the alternative prayers in the jurisdictional statement and that certiorari would be granted and that the surviving issues apart from the constitutionality of the statute on its face, —

Oh, I know, what are these — alright, what are the cert issues now that you want us —

Melvin L. Wulf:

The cert issue — the central cert issue of course is the validity —

Warren E. Burger:

But the point — excuse me, before you get to the cert issue let me put this question to you.

If what is now disposed in your supplemental brief had been included in your jurisdictional statement, is it possible that the — it would’ve been a dismissal out of hand of the whole proceeding?

Melvin L. Wulf:

I wouldn’t make that prediction Your Honor.

If I had —

Warren E. Burger:

Well, why not?

If you admit now that you had no basis for being here on appeal.

Melvin L. Wulf:

I have no basis for being here on appeal I think that we have very excellent basis for being here by way of certiorari and if I have —

Warren E. Burger:

Well, but you — you hadn’t filed a petition for certiorari, you had filed an appeal, isn’t that correct?

Melvin L. Wulf:

But if — yes, the appeal, those appeal was filed from the decision of the Louisiana Supreme Court and then a jurisdictional statement was filed here.

The jurisdictional statement in its conclusion at page 13 said that the questions presented by appeals, substantial, etcetera, then alternatively in the event that this appeal shall either reject the appellant, prays that the papers herein be treated as a petition for a writ of certiorari.

If I have joined that that docket — I can’t say, I would’ve made the petition for certiorari in the first place and necessarily we are now here asking that it be treated as a petition for certiorari.

Now, where else Mr. Wulf did you raise this in any federal constitutional matters in the trial court other than the page 18?

Melvin L. Wulf:

I think that was the most explicit, if I may just look through here a second.

And while you’re about it Mr. Wulf, will you then point out what the issues on cert are that you thinking now before us.

Melvin L. Wulf:

Yes, sir.

I gather this is First Amendment issues, isn’t it?

You rely on —

Melvin L. Wulf:

Well, it’s essentially a Holt versus Virginia issue —

Yes, I mean —

Melvin L. Wulf:

— which is a due process First Amendment and the void of evidence issue as I read that case.

Byron R. White:

We know, do you — anything that Holt against Virginia dealt with is raised by —

Is was raised by that comment?

Melvin L. Wulf:

Yes, sir.

Byron R. White:

You hope?

Melvin L. Wulf:

Yes, I hope.

Yes, sir.

Well, what other cert issues are there?

Melvin L. Wulf:

Well, certainly the central Holt issue is raised here, I mean by referring explicitly to Holt in the course of the argument at the trial court and by repeating those assertions in his applications for writs to the Louisiana Supreme Court, he certainly raised — he certainly properly raised and preserved the Holt issue.

He raised it I think in a way that —

But they denied certiorari.

We don’t know whether they — didn’t — they may have denied it because you haven’t raised anything in the lower court.

Melvin L. Wulf:

Well, they not only denied certiorari Your Honor but if you — they also have said there is no error of law in the ruling —

And what’s that mean in Louisiana, I used to know I don’t remember now, it has something to do with merits, doesn’t it?

Melvin L. Wulf:

I haven’t frankly examined that precise question in terms of what it means Louisiana law.

I would think that its plain meaning is that there is no error of law in the ruling —

Well, I think it has some technical significant system, the substantive quasi, but I don’t know.

Which would be for you of Virginia?

Melvin L. Wulf:

Well, perhaps, I don’t think —

(Voice Overlap) the determination on the merits, you see.

Melvin L. Wulf:

Well, I don’t think that this position by Louisiana Supreme Court is particularly — is directly relevant to whether we properly raised the certiorari issues here as long as we properly raised them in the applications to the Supreme Court of Louisiana for certiorari, the fact that they declined to exercise jurisdiction doesn’t denigrate the fact that we properly raised them in the first place.

I know but if there were a rule in Louisiana that you must raise the issues in the trial court to have them considered in the appellate court then you haven’t raised the issue as soon as you can in the state court.

Melvin L. Wulf:

Well, we raised the Holt — our assertion is that we raised the Holt issue in the trial court.

Well, the other side of it anyway, what I’m suggesting Mr. Wulf is something about this Louisiana practice that makes that form a disposition on the merits not merely a denial of review where cert would be here but when I used that form for disposition of a petition for a writ as I recall that constitutes also a disposition on the merit that no merit in the points raised.

Melvin L. Wulf:

Well, I —

Assuming they were raised.

Melvin L. Wulf:

Yes, I didn’t look into that.

If the Court wants a supplementary brief —

Well, perhaps your adversary put a light on that.

Melvin L. Wulf:

But, in any case I — if it were a disposition on the merits, obviously the case would be strong.

I don’t think frankly it’s any less weak if it’s a discretionary denial because the question isn’t whether or not the Louisiana Supreme Court decided it.

The question is whether it was presented to them, entertained and rejected either just on — by denial of certiorari or on the merits.

I know I’m taking it too much of your time and apologize but what other cert issues are there that you think are before us?

Melvin L. Wulf:

These — the three cert issues which are before us all revolved around the Holt issue and they are that the conviction violates the First Amendment right of courtroom advocacy by an attorney.

The whole Holt versus Virginia issue itself that denial of due process because of the Sixth Amendment right to counsel and for counsel to plead and the no evidence rule.

And frankly all of this, Holt is the centerpiece of these three questions because I think Holt can be looked upon as something of a free speech case.

We looked upon as the right of free speech advocacy in the courtroom as Mr. Justices Douglas and Black once referred to in Fisher v. Pace in a dissenting opinion there.

So it has been treated or considered to be a First Amendment right.

The second issue is the square Holt versus Virginia issue vainly the right of a lawyer on behalf of his client to file relevant pleadings in order to try to secure a floor which is free of bias so that could be either a motion to recuse as in this case or a motion for a change of venue as was the case in Holt.

And the last issue is a no evidence issue along the line of Thompson v. Louisville which in fact was one of the grounds in the Holt case although it didn’t precisely refer to Thompson v. Louisville in any of its progeny but the Court here did say in Holt that speaking of the convictions for contempt, they rest on nothing whatever except allegations made in motions for change of venue.

The — each of those issues were raised below and are here properly having been raised and preserved below —

Potter Stewart:

Well, they’re here now as you concede only if we grant petition for certiorari, am I correct —

Melvin L. Wulf:

Yes, part of it.

Potter Stewart:

— in your submission?

Melvin L. Wulf:

And —

Potter Stewart:

This therefore is a — I gather is of inadvertent misstatement in the — in your opening brief to the effect that the jurisdictional statement was filed on August 1969 and probable jurisdiction was noted on February 2, 1970.

Melvin L. Wulf:

Yes, that —

Potter Stewart:

That’s a misstatement of facts.

Melvin L. Wulf:

That is a misstatement which I corrected in the —

Potter Stewart:

We postponed jurisdiction.

Melvin L. Wulf:

— in the supplemental brief.

Potter Stewart:

And you now concede that there is no proper appeal here and that what you’re presenting here is of now a petition for certiorari, that you —

Melvin L. Wulf:

Yes, Your Honor.

Potter Stewart:

— are asking us to grant?

Melvin L. Wulf:

Yes, Your Honor.

And grant and deal on with the merits precisely as it would’ve dealt with the merits of the appeal if the appeal were properly here.

And I just might say that with respect to the application for certiorari that this Court has — not infrequently considered issues of contempt on law — visited on lawyers by the bench as a very important aspect both of its constitutional duty and as its supervisory duty over the conduct of litigation on the lower federal courts.

There have been several dozen contempt cases here in one form or another.

And I would suggest that that itself indicates the significance of these kinds of cases where lawyers are held to contempt by the bench and I think that the issue quite apart from that even if there had never been a case of this sort here before that quite apart form that it is an important question on its own merits and does implicate the independence of the bar and raise serious questions about the bar being free from the imposition of arbitrary sanctions by judges and members of the bench.

I would just like to concentrate for a moment on the — on this case in its relationship to Holt versus Virginia.

I think that — looked at in that light, it’s a very easy and that it is controlled directly and entirely by Holt versus Virginia.

In Holt there are two — two lawyers were held in contempt for filing a motion for change of venue in that case in which they charged that the judge there “is now in effect and or in fact acting as police officer, chief prosecution witness, adverse witness for the defense, grand jury, chief prosecutor and judge.”

And it also charged that the judge had intimidate and harass Attorney Holt at an earlier hearing on the contempt proceeding and the judge thereupon hearing this motion read in open court said, “I think the plea is contemptuous.”

And the Virginia Supreme Court held that the language in that motion violated the Virginia contempt statute which authorized summary punishment of a person who “misbehaves” in the presence of a court so as to obstruct justice or uses “vile, contemptuous or insulting language” which is language not unlike that contained in the Louisiana contempt statute.

I don’t have this quite clear Mr. Wulf.

Melvin L. Wulf:

Yes.

The language, I’m looking at page 8 of the motion on order for recusation, paragraph 4 refers to the client Hopkins as engaged in the process of attempting —

Melvin L. Wulf:

Yes.

— and removed from office for “as being unfit therefore by virtue of corruption, favoritism, oppression and misfeasance in office.”

Melvin L. Wulf:

Yes.

Now, do I understand you that that’s the exact language from the statute under which Hopkins was bringing his proceedings?

Melvin L. Wulf:

Yes, except misfeasance is not included in the statute.

I see, now —

Melvin L. Wulf:

But corruption, favoritism and oppression is included in Article 9, Section 1 of the Louisiana Constitution.

Now, it was his use of that language in the motion which was a basis for the discipline, wasn’t it?

Melvin L. Wulf:

The sole basis for the contempt was this paragraph of the motion to recuse which you must note is not the words of the appellant, the lawyer himself but as merely an assertion by Mr. Spencer that his client, Mr. Hopkins, had initiated a petition for removal of Judge Dixon and that it — and that that petition was written in terms of corruption, favoritism, oppression and misfeasance.

They are not Mr. — they’re not the appellant’s words.

They’re not the words of the lawyer.

Melvin L. Wulf:

They’re merely the assertion by the lawyer in a pleading that this was an activity in which his client was presently engaged and that therefore the judge would be prejudiced against it.

Potter Stewart:

Well, it surely do — the lawyer drafted that, I suppose some typist actually did the writing on it but the lawyer drafted that language.

Melvin L. Wulf:

Well, the lawyer drafted the —

Potter Stewart:

And they’re his therefore they are his words and —

Melvin L. Wulf:

The lawyer drafted —

Potter Stewart:

— we don’t know if they’re true or false.

Melvin L. Wulf:

The lawyer drafted the motion for recusation.

Potter Stewart:

Right.

Melvin L. Wulf:

I don’t know who drafted the petition to remove Judge Dixon.

Potter Stewart:

No, no we’re talking now about paragraph 4 here.

Melvin L. Wulf:

Oh, that’s right.

Yes, of course, I assume that the lawyer drafted —

Potter Stewart:

Those are lawyer’s words.

Melvin L. Wulf:

— drafted and signed this pleading.

There’s no question about that.

But this isn’t the characterization of the (Voice Overlap) by the lawyer.

This is merely, if you’ll read it, it merely asserts that his client, Mr. Hopkins is engaging in the process of attempting to have Judge Dixon remove from office as being unfit therefore by virtue of corruption —

John M. Harlan:

Do you say this is just the equivalent if he said, my client has got a proceeding to remove the judge brought under Section so and so, the Louisiana statute?

Melvin L. Wulf:

Precisely.

Indeed, in this language except for the use of misfeasance which made the —

John M. Harlan:

What sentence, what was the penalty that was imposed?

Melvin L. Wulf:

24 hours and a hundred dollars which was a statutory maximum for a first contempt offense by an attorney of Louisiana.

Is it a basis for a disbarment and conviction?

Melvin L. Wulf:

It could be, I’d fair, I don’t know whether there are disbarment proceedings.

I suppose it could be.

Warren E. Burger:

Do you suppose it would’ve been more a lawyerlike to have filed a document in the form that Mr. Justice Harlan just suggested —

Melvin L. Wulf:

Well, that’s where the other —

Warren E. Burger:

— where he is incorporating by reference and drawing the court’s attention to it?

Melvin L. Wulf:

Well, that’s what the other side suggested too in one of their briefs in opposition to the jurisdictional statement but I don’t know that any of us can really say that the way we draw papers as opposed the way some (Inaudible) draws papers is the proper way to do it.

Some lawyers prefer to be more precise.

Melvin L. Wulf:

I think that this is more precise than merely referring to the statutory language.

I might have preferred to statutory language, I don’t know.

John M. Harlan:

More precise but also less polite.

Melvin L. Wulf:

Well, it’s certainly more distinct which may be a consideration when you’re trying to show to a judge that he may be biased against your client.

You want to make this, I would think, I have — myself have never filed such a motion so I can’t claim any great experience in the area but I would think that if I were to file such motion that I would want to make as explicit and as possible what I believe the basis for the possible bias might be.

Warren E. Burger:

Well, are you suggesting that the judge in question wasn’t aware of the existence of this document?

Melvin L. Wulf:

Well, the implication is that he was.

Warren E. Burger:

Well, and therefore would it not have been at least more lawyerlike to have simply called attention to the existence, dependency of such a matter by reference to the document and let the document speak for itself.

Melvin L. Wulf:

It may have been more prudent, I don’t know whether it would’ve more lawyerlike, I don’t know if those two terms are interchangeable.

Warren E. Burger:

Well, you perhaps wouldn’t be here if that course had been followed, is that likely in your judgment?

Melvin L. Wulf:

I really can’t say, I think that would depend on Judge Dixon temperament.

And I don’t know anything about Judge Dixon.

Warren E. Burger:

Well, it might have been done in the Supreme Court of Louisiana, too?

Melvin L. Wulf:

It might depend on that also but I think primarily it would depend on the temperament of Judge Dixon.

As contempt proceedings, I think, it ought always depend on the temperament of the judge who issues the contempt and I think its precisely the over sensitive judge who is the danger to the independent court but I think it’s this Court’s duty to interpose itself between such insensitivity and the right of a lawyer aggressively to represent the interest of his client and I think that’s what the appellant is doing here.

Yes, Sixth Amendment issue.

Warren E. Burger:

Thank you Mr. Wulf.

Mr. Dixon.

Neil Dixon:

Mr. Chief Justice, may it please the Court.

We would address ourselves first the jurisdictional problem.

We submit that even treating the petition is a petition for certiorari does not cross the jurisdictional issues raised here.

We have briefed the issue that appeal was from the wrong court.

The same holdings, same cases creating these rules were also had held that certiorari is from the wrong court.

Jurisdiction here is based only on Section 12 (57) either for appeal or for certiorari requiring that it be from “the highest court of a state in which a decision could be had.

This Court has of many occasions in the cases cited on the jade of brief held that when a higher state court declines discretionary review —

Well, will you tell me Mr. Dixon, what is the significance of there is no error of law in the ruling complained of.

It’s my impression if that somehow deals with the merits, am I wrong?

Neil Dixon:

Your Honor that is not — that is not my intention of (Voice Overlap) —

Well, then I’m quite wrong, you know better than I.

Neil Dixon:

Oh, it is — it may have been at one time, I do not know but that is not my opinion of Louisiana law, I would direct Your —

Yes.

Neil Dixon:

— Honors attention to the case cited by us on page 8 of American Express Company versus Levee came from Louisiana in which that same situation existed as I recall.

Yes.

Neil Dixon:

As I recall also in Levee that question was asked in this Court.

I think the Court said we find no error of law so this —

Yes.

Neil Dixon:

— this Court was wondering what that — in that or somebody raised the issue.

Again, the American Express Company versus Levee, the case came out of the Second Circuit, Louisiana Court of Appeals.

Certiorari was applied to Louisiana Supreme Court certiorari denied, writs applied to here from the Louisiana circuit, Second Circuit Court of Appeal.

The appellee filed a motion to dismiss saying that it — the writ should have come to the Louisiana Supreme Court, this Court said that the writs properly laid to the Court of Appeal, not the highest court declining it’s a discretionary review.

In the instant case, the highest court — involved is the First Judicial District Court of Caddo Parish, Louisiana.

No appeal was taken from that court.

No notice of appeal and conformity with the rules of this Court, it was filed within the first judicial District Court.

The record of the First Judicial District Court has never been filed in these proceedings except by respondent trial judge, Judge Williams, against support of his motion to dismiss.

Appellant has not complied either, we submit with the statute or with the rules of this Court or either certiorari or for appeal and for that reason we submit that this case is not properly before this Court on any issue.

Well, how about the question of – let’s assume that the writ was issued to the right court, do you have any object — other objections towards jurisdiction?

Neil Dixon:

The record was not filed, Your Honor.

The record in this case was filed by appellee so that this Court could pass on appellee or respondent (Inaudible) motion to dismiss.

Record has never been filed here by appellant in conformity with the rules of this Court.

Because they just filed a record before the Supreme Court of —

Neil Dixon:

Of the State of Louisiana.

Namely just their petition for a cert?

Neil Dixon:

There were other attachments to that petition.

The Supreme Court of Louisiana has its own rules as to what goes in a petition for certiorari but it does not include everything, it does not include the whole record.

It does not include what is printed in the appendix now.

This appendix would not exist but for the filing of appellee.

Would you think the questions were adequately raised in the trial court, these questions that contained in the petition for certiorari —

Neil Dixon:

No sir.

— or the statement of jurisdiction?

Neil Dixon:

I do not say or adequately raise under the standards of this Court.

Neil Dixon:

In fairness to appellant, there was another place other than pointed out in which an issue was raised and we refer to you on page 13 of the appendix.

Hugo L. Black:

Page what?

Neil Dixon:

Page 13 Your Honor.

In Article 4 of his response to the rule, you said, in further defense of the rule, respondent place the truth of all the charges against Judge Dixon on the motion to recuse.

The hearing above describe expressions by respondent are constitutionality protected exercise of free speech.

That’s the only other point than those pointed out by appellant that any constitutional issue was raised and I do not believe that they have been adequately raised below.

No, sir.

We would proceed then assuming that this Court had jurisdiction, first I would like to mention the statement of the case, appellant claimed in his first jurisdictional statement that he was denied the right to introduce testimony concerning the proof, the charge — the truth of the charges made against Judge Dixon.

We refer the court to appendix, page 22.

We have a full transcript of the hearing on contempt.

Appellant was not denied the right to introduce any covered evidence other than evidence of testimony of the co-judges of Judge Dixon in an attempt to inquire into the motive of Judge Dixon for filing the contempt.

Appellant was asked by Judge Williams, “Have you anything else to offer?”

Appellant said, “No.”

At no time has appellant attempted to introduce any evidence.

At no time has he been denied a constitutional right.

Thurgood Marshall:

Well, Mr. Dixon on this constitutional right, would you think it would be within due process to establish a rule that where a — you and I have a dispute as to facts of law that I should the arbiter as to which one of us is right?

Neil Dixon:

Your Honor, I think you must be the arbiter of which one of us is right.

Thurgood Marshall:

No, no.

Do you take that on the question of facts?

The dispute is not between two people.

It’s between you and me.

And I decide who is right.

Well, let’s put it on page 14 of the record, The Court: “Mr. Spencer, are you representing yourself?”

Mr. Spencer: “Yes, I am.”

The Court: “This shall we say will be treating yourself in this court?”

Now who was the umpire there?

Neil Dixon:

Your Honor, at this stage of the proceeding, Judge Williams is trying to contempt.

Judge Dixon is not.

Thurgood Marshall:

What do you mean by between you and me?

Neil Dixon:

This is —

Thurgood Marshall:

That is the actual (Voice Overlap) —

Neil Dixon:

— the status of every contempt hearing that has ever been held, every direct contempt hearing that has ever been held in the history of direct contempt, it is a question between the court and the counsel or the court and the party.

Potter Stewart:

But this was a different judge?

Thurgood Marshall:

This is a different judge.

Neil Dixon:

This is a different judge.

Thurgood Marshall:

Well, how can you say it’s between you and me?

Neil Dixon:

Because if contempt is always between the court and counsel or the court and the contemptor.

When the judge says it is between you, he means the contemptor and me, he means the court.

Thurgood Marshall:

Which court?

Neil Dixon:

He does not mean R. B. Williams, Judge, he means the First Judicial District Court, a court of the State of Louisiana.

Thurgood Marshall:

Well, he is not the District Court.

He’s one judge of it.

I don’t think this language is significant.

It will be between you and me.

Neil Dixon:

Your Honor, every contempt cite — every contempt conviction that this Court has sustained in history has been between the court and the counsel.

I’ll refer you to Sacher, that it — that probably the most famous case of contempt to come before this Court.

Came out of the Dennis trial.

It was between Judge Medina and Sacher.

Thurgood Marshall:

Did Judge Medina ever say it’s between you and me?

Neil Dixon:

He didn’t say it, Your Honor he simply (Voice Overlap).

Thurgood Marshall:

Well, the other court —

Neil Dixon:

— and sentenced him to jail.

Thurgood Marshall:

Well, that difference is this is another judge.

It says, it’s a personal front to me, personally.

Warren E. Burger:

Well, what did the judge say here in fact on page 14, in the middle of the page, counsel?

Neil Dixon:

I do not think that there is any other party at interest other than the official body of the court.

Warren E. Burger:

Well, I’m speaking of the sentence that begins right in the middle, this shall we say will be — be between yourself and this Court, and this Court.

Neil Dixon:

Yes.

Yes sir, that is my view of it.

Warren E. Burger:

I don’t that he said between yourself and me.

Neil Dixon:

Well, —

Warren E. Burger:

At that point, does he say that’s —

Neil Dixon:

No sir.

Now it may say it elsewhere, I don’t know what page Justice Marshall is quoting from.

Thurgood Marshall:

At the same page, that’s just what I read to you.

Neil Dixon:

He starts out with (Voice Overlap) saying I do not think there is any other party in interest other than the official body of the court as I see it which is in the middle of page 14.

Which is what every contempt case is and I think that Judge Williams has done nothing more than say that.

That’s what Sacher was.

That was sustained by this Court.

That’s what Terry was cited in our brief.

That was sustained by this Court that came out of Texas.

That’s what every direct contempt is.

It was only in the rare instance that you have an out of court contempt with proof elements that a court calls on counsel.

Now, throughout the nation, I don’t know of any general practice of a court calling on counsel to handle direct contempts.

Certainly in no reported decision of this Court has that been the case that I have ever been able to find in a direct contempt case.

I have noticed an order from this Court doing it, yes sir in a contempt citation.

Thurgood Marshall:

Wasn’t there a case in the federal court in your state in which the lawyer was tried for contempt several weeks after the contempt by another judge?

Neil Dixon:

But we have a trial by another judge here, Your Honor.

Thurgood Marshall:

That’s right.

But I thought you said it can always happen the other way.

Neil Dixon:

No, sir, I am talking about —

Thurgood Marshall:

On the same statute?

Neil Dixon:

I’m talking about hiring about the court appointing counsel to prosecute which seems to be what Your Honor is intimating.

Thurgood Marshall:

No, no.

But —

Neil Dixon:

Because in this case we do not have the trial judge.

The trial — the judge making the contempt citation hearing it, this is another judge hearing it.

Could I ask you — I don’t suppose that it could be held contemptuous if a — if an attorney asks the judge to recuse himself for bias against this client because —

Neil Dixon:

Absolutely not, Your Honor.

And if the judge says, well, what makes you think I am biased?

And he says, well my client has — trying to get you impeached for biased and for corruption.

Now, that’s quite relevant to the bias charge, isn’t it?

Neil Dixon:

No sir, under this circumstance.

Why not?

Why not for having —

Neil Dixon:

We have first a multiple court judge in the First Judicial District Court.

We had an attorney who did not like a ruling of the judge.

The ruling was correct but the attorney didn’t like it.

So the attorney wanted to try again before anther judge.

So he advises the judge who has no other way of knowing it.

He advises the judge that judge my clients think you are corrupt therefore recuse yourself.

Byron R. White:

Well, let’s assume that were true that his clients had actually filed a formal petition against the judge to get him impeached and the lawyer then files a motion in court for a recusal saying my clients have filed this petition alleging that you’re corrupt and hence I think you should recuse yourself for bias.

Neil Dixon:

Like you need two things, you’d need —

Byron R. White:

But unless — just take those facts.

Neil Dixon:

Those facts haven’t set enough, Your Honor.

Byron R. White:

Why not?

Neil Dixon:

I think that the judge — that the counsel must have alleged, Louisiana is a fact pleading state.

It is not a — what do you call it in common law, issue pleading.

Louisiana is a fact pleading.

You have omitted the essential fact and that is you judge are aware that my client thinks you are corrupt.

Are you judge are aware that my client has filed a petition against you.

Well, I’ll put that —

Neil Dixon:

Now, put that in — he cannot be held for contempt.

Now he may be guilty of certain other disciplinary action but put that in and he cannot be held for contempt.

So you say can be held in contempt here because what?

Neil Dixon:

Well, I say he does —

Because he does allege that he is planning —

Neil Dixon:

Well, let me back up.

The corruption is unnecessary to the first charge, is unnecessary to the plea.

All he has to say is, I have filed a motion for your — or my clients are seeking your removal and I’ve filed a petition for your removal.

Neil Dixon:

He never has to repeat the allegation corruption anywhere in order to achieve his ends, that is obtain the recusation.

Anytime he uses the word corruption under our pleading he is using a word that is irrelevant to his pleading and is irrelevant — criticism of a trial judge.

Thurgood Marshall:

If it had been any quotes, would it have helped him?

Neil Dixon:

I don’t think so Your Honor.

Thurgood Marshall:

Yes, that’s right.

Neil Dixon:

And I would say this, there’s talk in the brief about it being a lawyerlike language.

It is no more lawyerlike than to file a motion before a court saying the court should recuse itself because it’s guilty of murder, burglary, rape or what have you.

All of these terms are lawyerlike when used in the proper context, every one of them.

But words that a lawyer uses in one case may not be appropriate to another case.

And the appropriateness of the charge is the one foundation and we submit the only foundation laid down by this Court in Holt versus Virginia, appellant has —

Thurgood Marshall:

Did I understand you correctly that if he had said that you know that my client has publicly charged you with corruption that would be alright?

Neil Dixon:

I think, Your Honor you — if we take that exact quotation that you used and nothing more.

I think that it could be.

You know that my client has charged you with you corruption.

Now we have here a different circumstances, we say —

Thurgood Marshall:

Yes but (Voice Overlap) —

Neil Dixon:

— we say, filed a — or attempting to remove you from office but just limited to the words that you used.

Mr. Justice, I think that it could not be contempt.

Thurgood Marshall:

Oh, you mean that he has filed a petition to remove him from office because he charges you with being corrupt.

That would be alright?

Neil Dixon:

I do not know that it would be alright.

We do not have that issue but I do not think it would be alright because then the word corrupt is unnecessary to the pleading.

In your first time with it the word was necessary to the pleading.

Here it is, is not necessary.

The standard that this Court said in Holt — set in Holt versus Virginia was whether or not the language was appropriate, the wording by this Court was wholly appropriate to the charge made.

Now we submit that our read — in our reading of Holt versus Virginia, this Court does not reach or come close to reaching a free speech issue and that Holt versus Virginia cannot be relied on as ever having raised a free speech issue.

Holt versus Virginia dealt with a very basic, basic right, our right which Louisiana grants by statute and that is the right of a litigant to a trial before a fair tribunal.

For attempting to exercise that right in Virginia, Mr. Holt was cited for contempt.

Louisiana spells out the methods of exercising that right.

We have such things as motions for recusal.

Neil Dixon:

We have motions for change of venue.

In Holt versus Virginia, the language wasn’t a change of venue.

I would urge that your — that Your Honors review the language used in Holt and compare it with the language used by Mr. Spencer.

The language used in Holt is quoted in appellants brief on page 13 and 14 and we submit is — takes it entirely out of the realm of with what we are dealing with in the instant case.

The charge made in Holt was entirely appropriate to a charge of bias.

The strongest language used in Holt versus Virginia that could have possibly been considered as impinging upon the sensitivities of the trial judge was that the trial had been intimidating counsel.

But now that allegation under certain circumstances might be contempt.

But it could never be direct contempt when filed in a petition to recuse.

If a judge has been intimidating counsel, counsel is entitled to have the judge recuse.

Hugo L. Black:

As the exact language therefore, what do you think he was filing for contempt?

Neil Dixon:

In Holt versus Virginia.

Hugo L. Black:

I mean in our case.

Neil Dixon:

The exact language, Your Honor is —

Hugo L. Black:

In the appendix.

Neil Dixon:

Your Honor first, I would not limit it to the — to one group of words in the motion because the order of contempt does not so limit it.

The order of contempt refers to the petition as a whole and then says particularly Article 4 thereof on pages 8 and 9 in which the words are repeated, corruption, favoritism, oppression and misfeasance in office.

The — at the very top of page 9, corruption, favoritism, oppression and misfeasance in office.

These words are also conclusion, words of conclusion.

I mention before we are a fact-pleading state not an issue-pleading state.

There is no allegation in this motion connecting any corruption, favoritism, oppression or misfeasance with the trial of the separation suit then pending before the court.

These words do not have to be contempt if under some wild set of facts.

A — the corruption of a judge has some connexity with the litigation pending before it.

But absent such connexity which we submit that these words are in of themselves offensive and the word offensive again is the word of this Court in Holt versus Virginia.

In Holt versus Virginia, they said the words of counsel are not offensive in and of themselves.

We submit that with these words as here used are offensive in and of themselves.

The fact that a word may be contained in a statute or a constitution does not mean that within all context it cannot be offensive in and of itself.

The fact that favoritism, corruption, murder and rape may be all statutory words does not mean that they cannot be words if used in a charge against a judge that are offensive in and of themselves.

Hugo L. Black:

Was the statement in for the statement of fact?

Was it a fact?

Neil Dixon:

Your Honor?

Hugo L. Black:

Would you mind reading it and say whether or not it was a fact.

Neil Dixon:

The plaintiff herein, Luis B. Hopkins and his chief witness in this cause, Charles Anderson are presently engaged in the process of.

Your Honor this allegation was —

Hugo L. Black:

Was that true?

Neil Dixon:

— made on March the 21st.

Hugo L. Black:

Yes, was this true?

Neil Dixon:

No sir, it was not true.

Hugo L. Black:

It was not true that they had made that statement?

Neil Dixon:

Throughout —

Hugo L. Black:

I’m not talking about whether —

Neil Dixon:

— the protracted collateral federal proceedings and throughout this proceeding there is nothing anywhere to indicate that Mr. Hopkins or Mr. Anderson even had any ill-will to Judge Dixon.

Hugo L. Black:

Well, I understand that but that’s not what’s alleged here, is it?

What is alleged?

Neil Dixon:

It is alleged that Mr. Hopkins and Mr. Anderson are attempting to have him removed from office throughout —

Hugo L. Black:

As being unfit therefore by virtue of corruption, favoritism, oppression and misfeasance in office?

Neil Dixon:

Your Honor, —

Hugo L. Black:

Now was that true?

Neil Dixon:

Your Honor, that was not true, I’ve been attempting not to get beyond the record.

Judge Dixon of course is my brother but that was not true.

Hugo L. Black:

Well, I — that’s alright but I’m not asking if the statement is true.

I’m asking if the statement is true that they had made that statement in court.

Neil Dixon:

They have certainly did not made that statement in court, Your Honor.

No, sir.

Hugo L. Black:

Well, what was this referred to, was it a statement referred to in court?

Neil Dixon:

No, sir.

We don’t know what it referred to.

Now, presumably —

Hugo L. Black:

They say they are presently engaged in the process of attempting to have Judge Dixon removed from office being unfit therefore, was that true?

Neil Dixon:

I do not think it was true, Your Honor.

There has never been a petition for his removal filed.

Hugo L. Black:

Were they not engaged in that effort?

Neil Dixon:

To my knowledge they did not.

May I point this out Your Honor, it takes but 25 irate litigants within a large metropolitan area to file a mandatory petition for removal with the Attorney General.

Such a petition was never filed.

Warren E. Burger:

But was any petition filed anywhere?

Neil Dixon:

No sir, no where.

Hugo L. Black:

They had not proceeded against him on that basis?

Neil Dixon:

They have never proceeded, Your Honor.

Hugo L. Black:

At any way or time or place?

Neil Dixon:

Any where or time or place.

Hugo L. Black:

Now, is that shown to be untrue in the record?

Neil Dixon:

Only to this extent.

We argue it Your Honor to this extent only.

On March the 20th, the day of the separation hearing, there must have existed no ground for recusation for if they did, counsel was remiss in not having filed his motion within 24 hours, counsel —

Hugo L. Black:

I understand that —

Neil Dixon:

— then raises it.

Hugo L. Black:

— argument.

Neil Dixon:

Sir?

Hugo L. Black:

But here is a statement made and I judge that what you say, that is the basis of the conviction.

Now, does the record show that that statement was not true whether we just have to infer it.

Neil Dixon:

It depends on what the line between inference and showing.

My view is that it shows — I think your view would be that it infers it, Your Honor.

It infers it only that it no time in either the federal court proceeding which is fully reported we might add.

Or in this proceeding, the trial of which took place about 18 months after the occurrence.

Was there ever again any mention of the existence of such a petition?

During the federal court litigation with the intending — with the attendant ill-publicity Judge Dixon was elected by the voters of his district to the Second Circuit Court of Appeals, hardly an event consistent with an action for his removal for corruption, favoritism oppression and misfeasance in office.

Hugo L. Black:

Sometimes that happens to men.

You charge by the right person.

Neil Dixon:

In defense of the voters of the City of Shreveport, Your Honor, it never helps to be accused of corruption under any circumstances anytime.

Hugo L. Black:

But sometimes, I have known people that get great benefit out of it because it wasn’t true and they knew that the man made it, you avoid it.

Warren E. Burger:

Let me go to the time of the hearing before Judge Williams —

Neil Dixon:

Yes, sir.

Warren E. Burger:

— the judge who was going to hear the contempt.

At that time did the petitioner here put into evidence any document or any evidence by any process indicating that before he filed this pleading, there had been a petition of some kind filed alleging these acts of misconduct?

Neil Dixon:

Mr. Chief Justice, he did not and we submit that that is a very significant fact.

Hugo L. Black:

Well, didn’t the court prevent him offering any evidence?

Neil Dixon:

No sir, no sir.

Hugo L. Black:

He didn’t.

Neil Dixon:

No, sir.

Hugo L. Black:

What was it they kept him from doing it?

Neil Dixon:

Mr. Spencer subpoenaed the three co-judges or four co-judges of Judge Dixon.

Those who sat on the bench with him and wanted to ask them specific questions set out in the record to establish —

Hugo L. Black:

I thought the court refused to let them ask any questions?

Neil Dixon:

To ask them the questions he’s — he was given the opportunity Your Honor.

Judge Williams said, “What do you want to prove by it, Mr. Spencer?”

He said, “Here’s what I want to prove by them.”

The judge says, “That is not admissible.

Mr. Spencer, have you anything else to offer?”

Hugo L. Black:

What was it he said he wanted to prove by?

Neil Dixon:

He wanted prove that Judge Dixon had filed — had conferred with them and filed a contempt charge without any expectation of obtaining a conviction.

He had had to make that condition across the street, in the federal court to bring it — to get him a three-judge court.

And that he wanted to file — he said something vaguely about his long disputation between himself and Judge Dixon.

Part of which is reported in the — its not rather reported but a case that arose out of it was Spencer versus Dixon to the Louisiana Supreme Court in which the Louisiana Supreme Court held Mr. Spencer in contempt for the same situation for having called the Louisiana Supreme Court corrupt.”

Thurgood Marshall:

But in no time, did he put on any evidence of the — about this petition that had been filed?

Neil Dixon:

At no time did he put on any and there’s no time once he denied the right to put on any.

And the last fact we submit is the significant fact that removes this from all of the constitutional issues raised by appellant.

Thank you, Your Honors.

Warren E. Burger:

Mr. Wulf, your time is up but I’d like to ask you a question and if you please confine yourself just to answering questions of any members of the court at this stage.

Do you claim that in this record anywhere, there is evidence of the filing of the kind of petition that was alluded to in paragraphs 4, 5, 6, or 7 or any other part of that petition which created all this problem?

Melvin L. Wulf:

Nothing whatsoever one way or the other?

In the record?

Melvin L. Wulf:

In the record.

However, Mr. Spencer did assert over and over again that he had been denied the right to file any evidence — to produce any evidence of that petition having been filed.

And as I read on my principal presentation, Judge Williams himself in his opposition to the appellant’s application for writs in the Louisiana Supreme Court, and you’ll find this at page 21 of the jurisdictional statement.

He says, this is Judge Williams who was on the hearing, he said, “Applicant in his petition, page 5, paragraph (e), section 5, assigns this error, the trial court not allowing a defense of truth to the contempt charge.”

Potter Stewart:

Sorry, sorry, because this is quite important.

Melvin L. Wulf:

Sir?

Potter Stewart:

You’re in the appendix?

Melvin L. Wulf:

No, I’m on the jurisdictional statement.

Potter Stewart:

I beg your pardon?

Hugo L. Black:

What page?

Melvin L. Wulf:

Page 21 of the jurisdictional statement which reproduces beginning at page 16, Judge Williams’ response to the application for writs of certiorari in the Louisiana Supreme Court.

That at page 21, I just read the first sentence, the second sentence says, Judge William, and this is Judge William himself speaking in the third person.

Judge William refused to admit any such evidence.

And then he goes on to cite a case, Getro v. Getro (ph) in Louisiana Supreme Court which held in 1952, the justification is not a defense for contempt of court.

Warren E. Burger:

You don’t suggest that when — that that’s statement refers to the kind of a petition that we’re talking about in the question I put to you.

Melvin L. Wulf:

Though this statement refers to the appe — to Mr. Spencer’s efforts to establish that such a petition was actually being circulated.

Warren E. Burger:

And I can’t read it that way?

Melvin L. Wulf:

Well, that’s why I read it.

The science is error.

The trial court —

Warren E. Burger:

That can relate only to the judge’s refusal to let the four judges testify on the grounds that you said it —

Melvin L. Wulf:

No, all of —

Warren E. Burger:

And if you look on page 21 of your appendix, you’ll see that Judge Williams asked him whether there was anything else he had to offer and said at the top of page 21, the court feels, he will be glad to see what you have to offer.

And he said, he couldn’t find it for a few minutes.

The judge gave him a recess for five minutes.

And all he came back with after the five minute recess was that he would like to point out some further cases, some citations, not facts, not documents, not reference to any kind of a petition that supported his statement in paragraph 4 or 5?

Melvin L. Wulf:

Yes.

I don’t disagree with that at all though the witness says he tried to bring back at that time had no relevancy at all to the existence or non-existence of such a petition.

John M. Harlan:

I’d like to ask you a further question in view of the colloquy with your adversary, Mr. Dixon here, would you care to comment on his statement that you said was going outside the record that in fact, no petition under the section has ever been filed.

Melvin L. Wulf:

All I can say as I was told that such a petition was circulated was drawn up and circulated.

It may not have been filed.

They may not have been able to secure the necessary 25 signatures.

But that isn’t the — that isn’t the assertion in the motion to recuse.

It isn’t that it was filed.

It was said that they’re presently engaged in the process of attempting to have Judge Dixon removed, the implication being that they were trying to get the necessary 25 signatures.

But I’m told that such a petition was typed up and was in existence.

Warren E. Burger:

Don’t you think it was incumbent on Mr. Spencer at some time to produce that and put it on the record so that you could have it here?

Melvin L. Wulf:

I surely do unless what Judge Williams says is accurate that he refused to admit any such evidence.

(Voice Overlap) —

Melvin L. Wulf:

But I perfectly — I agree 100% that there has nothing in the record one way or the other which shows whether or not such a petition exists.

Warren E. Burger:

Well, I can’t see how it’s possible to read Judge Williams statement as meaning what you say it means but only relating to the testimony of the four judges which he excluded on the ground that the justification was not admissible evidence.

But if any such document, if you wish to supplement this record, I think we would invite you to supplement the record in that regard.

Melvin L. Wulf:

Alright, Your Honor.

Warren E. Burger:

Thank you.

The case is submitted.

Thank you, gentlemen.

Melvin L. Wulf:

Thank you, sir.