Warren E. Burger: Number 41, Choctaw Nation against Oklahoma and others.
Speaker: As with some other consolidated cases.
Warren E. Burger: Oh, yes, and with 59, the Cherokee Nation or Tribe of Nations in Oklahoma, against Oklahoma. Mr. Kile you may proceed whenever you're ready.
Lon Kile: Mr. Chief Justice, may it please the Court. This action is on certiorari to the Tenth Circuit Court to review this decision affirming a pretrial order of the District Court for the Eastern District of Oklahoma which in effect vested title to the map -- of course to the Arkansas River within the Oklahoma, in the state.
Warren E. Burger: Mr. Kile, would you raise your voice a little -- the acoustics are less prefect here.
Lon Kile: Yes Your Honor, thank you. This action involves the ownership of the ablest beds and the soil and the minerals and a short stretch of the Arkansas River that lies within Oklahoma. The stretch of the river with which this case is concerned is navigable. Oklahoma contends that in colonial days the crown on the beds are the navigable streams and then when the 13 colonies became independent, they succeeded to rights of the crown so that they then became the owners of the navigable -- of the beds of the navigable streams within their limits. And that afterwards, as each state entered the union, it entered on an equal footing with the original 13 colonies and thus said the state, when Oklahoma became a state in 1907, it succeeded to the title that the United States had in the navigable portion of the rivers within its borders and that it owns the ablest beds and the soil and minerals underlying the navigable portion of the Arkansas River within its borders --
Potter Stewart: Mr. Kile.
Lon Kile: -- under the equal footing doctrine.
Potter Stewart: Is there any place, a map or a sketch or a drawing of --
Lon Kile: Yes, Your Honor.
Potter Stewart: -- what we're talking about. I find on page 89A of the appendix a -- what's denominated, exhibit b --
Lon Kile: The --
Potter Stewart: -- which I have a little trouble understanding, I wanted to know --
Lon Kile: The brief from the Choctaw and the Chickasaw Nations has a map. It is page 25 Your Honor of the brief of the Choctaw (Voice Overlap) --
Warren E. Burger: I believe (Voice Overlap) maps for distribution here, is that correct or someone has?
Lon Kile: Yes, Your Honor.
Speaker: Here is the map for this -- they have --
Lon Kile: Yes. That is correct. May it please the Court.
Speaker: What page of your brief?
Lon Kile: 25 Your Honor. The Choctaw and Chickasaw Nations' brief.
Warren E. Burger: Oh! Would you give us some idea as how we can make use of this? Can you relate the factual background to the map which has been distributed to us?
Lon Kile: Yes -- yes Your Honor. The significance of this map which actually was prepared by Mr. Ford in connection with his argument on -- and he will follow me in this. The shaded portion in Arkansas was the lands originally allotted to the Cherokee Indians. They moved there from Georgia in 1817 then it shows the area ceded to the Cherokees later by their treaties of 1828 and 1835. The map that is on page 25 of the -- of our brief may be a little more helpful to the Court in following the argument. The map on page 25 of our brief shows the lands allotted to the Cherokees and shows the lands allotted to the Choctaw. It shows the confluence of the Grand River with the Arkansas and it is that portion of the Arkansas that lays below the confluence of the Grand River that is the subject matter of this lawsuit. The Indian Tribes --
Potter Stewart: From Fort Gibson, Southeast and --
Lon Kile: Yes, Your Honor. And the -- as an aid to the Court we colored that just lightly heavier so that it would be easier to identify, but we so stated in our brief so that wouldn't be considered misleading. The Indian Tribes contend that through a series of treaties commencing in 1820 and grants continuing through 1842, the United States ceded to the Indian Tribes the bed of all of the streams within what is now the portion of Oklahoma that's involved. They say that the United States did that for these reasons the explosive development of the cotton economy around 18 hundred resulted in great pressures by the white planters upon the Federal Government to move the Indians out of the Southern States. At the same time, the white planters were bringing great pressures to bear upon the Federal Government, the Governments of the Southern States themselves systematically harassed the Indians for the purpose of making their life in the Southern States unendurable. By way of example, Georgia tore up the Federal Treaties with the Cherokees and annexed the territories of the Cherokees and the Creeks Nation within its territory. And Samuel Worcester, the principal figure in the celebrated case of Worcester versus Georgia, was a Presbyterian Minister, sentenced to four years of hard labor in a penitentiary in Georgia because he dared to live on Cherokee land without getting permission of the Governor of Arkansas. Alabama tore up its --
Hugo L. Black: In the Georgia or Arkansas?
Lon Kile: Arkansas, I'm sorry, Georgia Your Honor, I had the Arkansas River on my mind. Alabama likewise tore up the Federal Treaties with the Choctaws and Mississippi by way of example made it a penitentiary events for any Indian to exercise the office of chief, mango (ph), headman or other post established by tribal customs. The Louisiana purchase of 1803 provided a good place to move the Southern Indians if they could be induced to move there. As a part of its efforts to persuade the Indians to give up their ancestral homes in the Southern States and move to the wild lands west of the Mississippi, the Federal Government constantly reminded them that it could not protect them either from the white people in the south or from the Governments of the Southern States. And just as constantly, it pledged to these Indian tribes that if they would give up their ancestral homes in the Southern States that the lands to be ceded to them west of the Mississippi would never be embraced in any state or territory. Now the Southern Indians did move west of the Mississippi. They did give up their ancestral homes in the Southern States, but they did not do that because they were getting more land. They did not do that because they were getting better land. They did not do that because they were going to live under better conditions in the wild lands west of the Mississippi than they were in their ancestral homes. They did it for one reason, and for reason alone. Their reliance upon the promises of the United States given to them in their negotiations with the United States and reflected in their treaties with the United States that if they would move out of the Southern States, on to the wild lands west of the Mississippi, the land ceded to them would never be embraced in any state or territory. That pledge was not only reflected in the negotiations leading up to the treaties, it was reflected in the treaties themselves and as they further assurance, the United States gave to the Southern Tribes and it gave this to no other tribe in the United States, a fee simple title to the lands west of the Mississippi.
Hugo L. Black: What date was that?
Lon Kile: Sir?
Hugo L. Black: What date was that?
Lon Kile: The treaty with the --
Hugo L. Black: I mean the title -- fee simple title?
Lon Kile: The fee simple title, 1835 for the Cherokees, 1842 for the Choctaws. Now it is well established by Shively versus Bowlby and other decisions of this Court that the United -- that while the United States holds land in territorial status, Congress has the power to make grants of land below high water marks of navigable waters in order to carry out a public purpose appropriate for the (Inaudible) for which the United States hold the territory. There is just one question in this case if it please the Court, and that case is correctly stated by respondents at page 9 of their brief. The respondents say and we agree, the question to be resolved is simple and direct. Did the United States convey or agreed to convey the river bed to the Cherokees or the Choctaws? There is no other question, there is no other issue before the Court.
Byron R. White: Well, I take it that the Choctaws were on this side of the river, the Cherokees in the other?
Lon Kile: Yes Your Honor.
Byron R. White: Let's assume that if 1936, the question that came up with respect to the Cherokees' referred, I take it, for the (Voice Overlap) --
Lon Kile: No sir. The Cherokee -- the Choctaws were first in Oklahoma. The Cherokees were first west of the Mississippi, but they came to Arkansas.
Byron R. White: Alright. Because they -- who got the first grant here in Oklahoma?
Lon Kile: The Choctaws.
Byron R. White: Immediately after that at least it should came up as to the ownership of the Arkansas River bed, would you say that Choctaws own the whole bed?
Lon Kile: Your Honor, that --
Byron R. White: If the Arkansas River for being granted land on the bank, the Arkansas River?
Lon Kile: It was not granted on the banks of the Arkansas, Your Honor.
Byron R. White: What was it granted?
Lon Kile: It was granted, the bed of the Arkansas, the language --
Byron R. White: You mean to the Choctaws?
Lon Kile: To the Choctaws.
Byron R. White: They were granted the bed of the Arkansas River?
Lon Kile: Yes sir. It was --
Byron R. White: Well then, what did the Cherokees have to give?
Lon Kile: Well, there is a dispute between the Choctaws and the Cherokees as to whether the Choctaws own it all or the Cherokees own the half of it. Now the District Court just --
Byron R. White: Are you saying that at least the grant to the Cherokees and the Choctaws of land adjoining the river carried with it the title to the river bed at least to the middle?
Lon Kile: No sir. I'm not saying it exactly that way. The treaties set down the Arkansas, up the Arkansas, where the Arkansas border crosses the Arkansas River, then we say, “How shall that be construed? Shall it be construed this up the Arkansas Main that you go up it till where it becomes non-navigable on one side and then you go down it where it is navigable?”
Byron R. White: Well either the United States had the river bed left --
Lon Kile: Or it did not.
Byron R. White: -- to give some other to the current -- to the Cherokees --
Lon Kile: Yes sir.
Byron R. White: -- after having giving land to the Choctaws or it didn't, one or the other?
Lon Kile: That's right sir. Yes sir.
Byron R. White: Now did it convey a way all the river bed to the Choctaws?
Lon Kile: Yes sir. That will be our position when the matter is reheard in the lower courts later if we prevail here.
Byron R. White: And if you were (Voice Overlap) --
Lon Kile: We will --
Byron R. White: You are representing the Cherokees alone, I suppose you would say that the -- that language didn't convey all the river bed away.
Lon Kile: Well, I -- since I -- alright, for example the Choctaws, I would hate -- I would have to say what I would do if represent.
Byron R. White: You deny that the Cherokees have an interest in the river bed then?
Lon Kile: Yes, Your Honor We say that either are (Voice Overlap) --
Byron R. White: Because you got the title -- because you got title to it first under the same language?
Lon Kile: Yes.
Byron R. White: Although United States didn't try to give it away again to the Cherokees?
Lon Kile: Well, we don't think they tried to give it away. They --
Byron R. White: Well, they tried to convey it away.
Lon Kile: They referred to it in some of their treaties with the Cherokees. I'm not --
Byron R. White: In the same way (Voice Overlap) --
Lon Kile: I'm not begging the question.
Byron R. White: In the same way they dealt with the Choctaws?
Lon Kile: Yes sir and we say that they didn't have anything to give at that time. They had already received it. So that brings us, I think to this point --
Hugo L. Black: Well, is that -- is the sum of your dispute then as to whether the State of Oklahoma, the Indians own the bed of the stream?
Lon Kile: Yes sir. And --
Potter Stewart: There is then, if it's decided that the Indians own the bed of the stream, then there is a further dispute which was not reached by the District Court between the two Indian Nations, by the two Indian (Voice Overlap) --
Lon Kile: Yes, that is entirely it.
Potter Stewart: But the -- that's not an issue here before us?
Lon Kile: No sir, it is not.
Byron R. White: Well, (Inaudible) that you would be -- in order to settle, it -- between the tribe, would still be giving -- the same language as if, you're dealing with here?
Lon Kile: No sir.
Byron R. White: Why not? I suppose you would (Inaudible) on words of this forever and walk down the Arkansas River, carried the title to the bed --
Lon Kile: Yes sir.
Byron R. White: -- the United States didn't have anything more to give in writing?
Lon Kile: That is right sir, yes, that is right. The --
Byron R. White: But if the down the road -- down the Arkansas means along the Arkansas, then you have lost your claim?
Lon Kile: No sir. I do not think so because we come to this question then, first, how shall that language be construed? What shall down the Arkansas, because that's a critical thing you see, because when you deal with Indian Nations and Indian Tribes and Treaties, you have to give the construction that is most favorable to the Indian Nation. Indeed the treaty with the Choctaws specifically provided, the Article 24, that if any reasonable doubt existed, it must be construed most favorably to the Choctaws. So speaking generically now as the Indian Tribes, we say this, “How shall down the Arkansas be construed?” Well the Court must say it must construed most favorably to the Indian Tribes. Then what is the most favorable construction down the width of the Arkansas, not down one bank or the other bank of the Arkansas, that's -- we deal with that in our briefs, perhaps that short statement is no over simplification of it.
Warren E. Burger: And I have some problems with that when you and the Cherokees come to settle your problems --
Lon Kile: Yes.
Warren E. Burger: -- is that ever comes about, won't you?
Lon Kile: Yes sir. We will probably knock heads on that.
Warren E. Burger: But the -- must not a court in reaching that problem also bear in mind the historical background of coming from the colonial times of reservation, of the title to the bed of all navigable waters, isn't that part of the total equation?
Lon Kile: Yes and I think that Your Honor reached the real crux of this case by that inquiry. When the United States held territorial lands, it held the beds on navigable rivers for the benefit of a future state, but the United States during territorial status had full authority to convey the river bed for purposes that were appropriate to the objects for which it held. There have been any number of decisions on that. So then we -- this point comes up, well why would the United States have held this bed back in 1820? What would it did -- wanted to hold the bed of the Arkansas, give everything all around it but withhold, not the whole Arkansas but just the navigable portion of it. Would it be holding it for a future state? They promised the Indians time after time that no -- that this area would never be embraced in any state or territory. They not only promised it to them, they put it in their treaties. They therefore could not have been in 1820, contemplating that they were reserving the navigable portion of the Arkansas for the benefit of a future state. Well, would it have been reserving it for the minerals that were in it? It gave the Indian Tribes all the minerals that lay above the navigable portion, why would it hold it for the navigable portion? Why would it want the ablest beds in 1820? Why would it want the ablest beds of the Arkansas when it was giving all the lands on both sides to the Indian Tribes?
Warren E. Burger: Well if we accept your argument, Mr. Kile, would that mean that if the Indian Tribes controlled both banks and the bed, forgetting for a moment which tribe claimed which part --
Lon Kile: Yes sir.
Warren E. Burger: -- that they could exact a toll for example for boats using that navigable stream?
Lon Kile: No sir because under the Commerce Clause of the Constitution, the United States always has and controls the navigation of all of the navigable waters in Oklahoma, I mean the United States.
Warren E. Burger: But if we apply literally your argument to what the Indians had a reason to believe, the Indians may have thought they were going to have control of that navigable stream, under that language of that treaty as I read it.
Lon Kile: No sir. If the language of the treaty is and we've mentioned that in our brief, reserved to the United States, the navigation easement and it does so in a rather specific way. It says that the United States, that the Choctaw shall have the right to use it just like any other people have. In the treaty with the Cherokees, they specifically provided that the United States would have the right to use the river to supply its forts, its post offices and its post roads. So all the United States did and the United States did that in its treaties with the Indians and we point that out in our brief that they reserved the navigation easement. It has just never been disputed. They've always exercised it. They exercised it long after the Indians moved to Oklahoma. They exercised it in fact until the railroads came.
Warren E. Burger: Well, what about other citizens other than the United States, would they be able to use that navigable water freely?
Lon Kile: Yes sir, subject to the regulations of the United States.
Warren E. Burger: But not subject to any limitation by the Indian Tribes?
Lon Kile: No sir. No, the land -- the Indian Tribes could not impose any limitations on them.
Warren E. Burger: I'm not sure what that signal meant, we have a confusing signal here. I have --
Lon Kile: Yes, that is five minutes.
Warren E. Burger: Five?
Lon Kile: Five minutes. My time is rather brief and -- but I should like to call the Court's attention to the reliance on the three cases that Oklahoma relies on. Two of them were decisions on the Supreme Court of Oklahoma and in none of these decisions, I will say were the Indian Tribes represented or was the Government represented on behalf of the Indian Tribes in any of these case nor were these treaties brought to the attention of the Court. The two Oklahoma decisions are predicated upon the belief of the Supreme Court of Oklahoma and the stated belief of the Supreme Court of Oklahoma that the bed of the river was being held for the benefit of a future state. And if it was the intention of the United States and the Indian Tribes in the early 1800's that this area would never be embraced in any state, then the premise upon which the decisions of the Supreme Court of Oklahoma are bottomed are paux. Now, there is one case, and counsel for Oklahoma must comment on it at great length and he must try to show that it is related to the facts in this case. I challenge him that he will not be able to do so and that is the Holt State -- United States versus Holt State Bank which is a decision of this Court. Holt State Bank arose in Minnesota when the Chippewas ceded their aboriginal lands to the United States, reserving to themselves a right of occupancy within a certain area. Now, it's important -- now later, they did in their session and the Chippewas were the granting party, they were the moving party and that distinguishes and interdicts the application of Holt State Bank to this case because in our case, the United States was the granting party. Now, in Holt State Bank, this Court said of the Chippewas, if they had wanted to keep the bed of Mud Lake, they should have made some provision for it in their cession to the United States, but when the teaching of Holt versus State -- the United States versus Holt State Bank is applied to the facts in our case, then we submit this Court would have said had the United States being the granting party wanted to reserve the bed of the Arkansas River, then it should have accepted it from its grant. Now, we say to the Court, that there was no grant moving from the United States to the Chippewas in Holt State Bank. We say that it was a cession by the Chippewas to the United States. I notice at page 34 of the respondent's brief that they say that the petitioners and amici curiae, that they find in our briefs persistent misunderstandings in the constructions of the holding of this Court at Holt State Bank. But on the same page --
Hugo L. Black: What page?
Lon Kile: Page 34 of Oklahoma's brief, but at -- in the first sentence on that page, they say that in Holt State Bank, the United States had granted an area by treaties to the Chippewas and on page 36, they again say that the United States was the granting party and on page 37, they say that the title was vested in the Chippewas when in fact the title was always vested in the United States, the Chippewas had only a right of occupancy. This Court said in the last page of its decision in Holt State Bank or rather with the minute that's left of me, most of the reservations said this Court in Holt State Bank, including the part -- the vicinity of Mud Lake was relinquished and ceded by the Chippewas. The session became effective through the President's approval, marks the board in 1890. And in the last page of the Court's decision, this Court said, “The reservation came into being through a succession of treaties with the Chippewas whereby they ceded to the United States for aboriginal right of occupancy to the surrounding lands. There was no formal setting apart of what was not ceded. The effect of what was done in a general way, the effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory thus again be known and recognized as a reservation. Now that fact is the distinguishing fact which interdicts the application of Holt State Bank to this case, but if the Court were applying the rule, the teachings in Holt State Bank to the facts in this case, it would have said this I believe. The United States was the granting party and had it wanted to reserve the bed of the Arkansas River, the navigable portion of the Arkansas River, it should have done so in its grant. The fact that it agreed with the Indians that this area would never be embraced with any future state or territory evinced the intent to depart from the established purpose of reserving the beds of navigable streams for the benefit of future states. We respectfully submit that the United States had nothing, but a navigation easement on the Arkansas when Oklahoma became a state and Oklahoma therefore took no interest in the bed in the Arkansas River by being -- by a reason of it being admitted to the state, to the Union.
Peyton Ford: If the Court please --
Warren E. Burger: Mr. Ford.
Peyton Ford: -- and I appear on behalf of the Cherokees. I had hoped to avoid any interest to say conflict between the tribes. All that I would say to that question very briefly is one, we have received the first patent of these lands in 1838, signed by President Van Buren and in that we are given the land dents down the Canadian River on the North to a junction with the Arkansas River and dents down the main channel of the Arkansas. And that is all we claim as the thalweg of the river. In that connection I might briefly show this map to Your Honors and that if you will notice between the 95th and 96th parallel on the lands marked to the Cherokees, I don't know what that section is, that the Arkansas River runs completely through the land of the Cherokees, i.e. it's bordered on both sides by the grant through the Cherokees in the Treaty of New Echota later -- of 1835 in the later patent, 1838. It's after it comes to that line that there's a border between the Cherokees and the Choctaw. That map asserted one other purpose too. If you will look on the the appendix, page, Roman page XIII of the respondents' brief, they have reproduced the map from Mr. Royce who is an authority, perhaps the authority. It's appendix 8, aren't we? No, appendix 7, Roman XIII, the respondents' brief. Justice Douglas has it.
Warren E. Burger: I think we all have it now Mr. Ford.
Peyton Ford: They have a fact, similarly of the map reproduced in which you will notice the -- there -- to the north bank of the Arkansas, there's a very fine black line, runs from call 6, 5, 4; 7 is the bottom which would appear to indicate that that is the grant to the north bank of the Arkansas and that the Cherokees or the Indian Tribes went no further. We have reproduced an exact reproduction of Royce's map which indicates merely a change in the color of the line for the river on that part of the Arkansas where the Cherokee lands meets the Arkansas at the 95th parallel, approximately. In other words, that's a mere color, the line of the river, their map would indicate that the -- and I just don't want the Court mislead that the dark line would be the boundary of the grant for the Cherokee. I would like briefly to give a little background of the Cherokee Nation that prior to the revolution, its principal lands were North Carolina, Virginia and Georgia that consisted approximately some 80 million acres. They had absolute dominion over this. Following the revolution, there was a Treaty of Hopewell entered into in 1785 where the Cherokees then swore allegiance to the U.S. and the U.S. Government in turn agreed to protect the tribe and recognize its sovereignty to all of those lands. Not too long after that that the conflict begun between the white settlers and the Cherokees and the Choctaws and the Chickasaws and the Creeks. The Southern Indians had became five civilized tribes. They were forced from Virgin -- North Carolina, Virginia, principally into Georgia. At that time Georgia passed laws in effect providing that they could enjoy no rights that if any man or white man was found upon their land, that he -- that they had to have permission of the State of Georgia. Following this Marshall opinion in Worcester came down in which he clearly recognized the sovereign of the tribe set aside although Georgia heeded and they find in -- with somewhat certainty saying that the Cherokees had sovereignty over their tribal lands, that they had control of the traffic over the Tennessee River. That they enjoyed all the rights of the river that the white man would have to get their permission in effect to use the river and the -- even in face of the Court's recognition of these rights and certainly the Cherokees were not going to accept less if they went west than what they had in Georgia. And even after Marshall spoke, the courts and the executive continued complete harassment of all these Southern Indian Tribes. First, the Cherokees moved to Arkansas in 1870 which became known as the old settlers and that was in exchange of land to move to Arkansas, but Arkansas was not satisfied with the Indians. There was again the conflict between the whites and the Indians. So following that, there was a treaty executed in 1828 between the Cherokees and the Government. After the Arkansas whites had again insisted that they move further west and this treaty in effect without detail moved the old settlers into Arkansas along the old settler Cherokees into the lands west of Arkansas which became Indian Territory along with the other Indians that were further east in Georgia and generally the treaty granted the same rights, all of these treaties of 1817 and 1828 and 1825. It provided that this land was to be as Mr. Kile has said, “Their permanent home, it was never to be encroached upon by any territory or state.” It granted further and which one -- I think one Indian Commissioner in which -- in their speeches to Cherokees trying to get them to sign the Treaty of New Echota which shortly followed the Treaty of Dancing Rabbit which was a treaty for the Choctaw that this was an awful, that they were getting fee simple title and as he expressed it, they were getting white man's title for the first time and this was the only title ever issued to any Indians and they were confined to the five civilized tribes that ultimately settled in Indian Territory. The rest of the title were aboriginal titles which gave them the right of reservation and occupancy and so forth and now they could be given a clear promise of how they could be given a more complete jurisdiction over their territory is beyond me. And they agreed to possess to the Cherokees some 7,000 acres of land within this grant, I mean 7 million, excuse me, which show -- they started out with 80, it's not in exactly an excessive grant. They also agreed by the treaties to issue the patent I have previously referred to, the patent granted this land in fee simple. They gave them white man's title and it was described by meats and bounds and encompassed a whole grant. Certainly the United States didn't intend to exclude a meandering stream running through this grant unless they had chosen to say so and this people knew how to draft instruments. They excluded the Fort Gibson, they excluded post roads, they excluded certain plains that would be available to all Indian Tribes. Now with that brief history, I'd like to go back and then to this Pollock case which is --
Byron R. White: Would you, before you finish your history, indicate what happened later, Mr. Ford? Was the -- what -- did there come a time when the tribe was dissolved or -- I don't know what that direct word or not, is it still an enrolled tribe?
Peyton Ford: Yes sir.
Byron R. White: Was there some (Voice Overlap) --
Peyton Ford: -- I might answer this shortly this way. In 1898, 192, the so-called Curtis Act, passed the 196, I guess you'd say the Enabling Act was passed, but those Acts of Congress at that time made allotments to the given Indians or at the time --
Byron R. White: All the Indian lands, all the Indian lands except what we're talking about here I suppose (Voice Overlap) --
Peyton Ford: Oh! Except tribal lands which includes which includes certain townships, schools, other lands that are owned in common by the tribe outside of the river.
Byron R. White: But the -- but individual Indians were allotted parts of what had been the tribal land?
Peyton Ford: Yes sir.
Byron R. White: And the -- are the Indians still -- they were free to transfer to those lands individually, I suppose?
Peyton Ford: Well, there's a known history of peace of the alien nation and what a full (Voice Overlap) --
Byron R. White: Yeah, but after allotment, after allotment?
Peyton Ford: Now still on that pre-allotment, there were some question of --
Byron R. White: How many Cherokees are there still there in the tribe?
Peyton Ford: There are approximately -- are you correct?
Byron R. White: 42,000.
Peyton Ford: 42,000.
Byron R. White: And --
Peyton Ford: Are these -- there is some -- I think 7,000 full bloods. If you take the -- speak the native language, many of them don't speak English, if you take the descendants of them, they'd run about a hundred thousand and there were approximately nine judicial districts under their tribal government which is, I mean, when they had enjoyed that from sovereignty before they became citizens.
Byron R. White: Do they -- the most of 42,000 live in -- on tribal lands or on their individually owned lands?
Peyton Ford: Well now, they live on their individually owned lands.
Byron R. White: Subject to the ordinary jurisdiction of the state?
Peyton Ford: Well, I'm saying subject to certain jurisdiction (Voice Overlap) --
Byron R. White: When they live outside of (Voice Overlap) --
Peyton Ford: Of their counsel, they still enjoy sovereignty under the Acts passed by Congress. There is a provision in the Act that that a river or any common held land as long as they exist to be a tribe --
Byron R. White: Yeah, but most of the common (Voice Overlap) --
Peyton Ford: -- shall revert to the United States.
Byron R. White: Those are the commonly held lands?
Peyton Ford: Yes sir.
Byron R. White: That way, you're living on your own land?
Peyton Ford: Yes sir.
Byron R. White: I suppose your subject to ordinary state law?
Peyton Ford: Yeah, I mean, you've got fee simple title as any other --
Byron R. White: Any Indians, individual Indians?
Peyton Ford: Yes sir.
Byron R. White: Subject to the Indian -- the jurisdiction of the state?
Peyton Ford: Yes, and subject to certain tribal jurisdictions. It's still a tribal council, a chief, --
Byron R. White: But subject to ordinary (Voice Overlap) --
Peyton Ford: -- the council is made up of the former old judicial districts before statehood.
Byron R. White: But do they run their own schools?
Peyton Ford: Yes, some of them.
Byron R. White: But they can go state schools (Voice Overlap) --Yes sir and they enter as a tribe into a construction of common efforts from encouraging industry.
Peyton Ford: There's a tribe for instance have a working now on a -- through the chief of the tribe, I mean the general counsel of the tribe, the chief (Inaudible) general counsel which as a Mr. Earl Boyd appears on the improvement of the housing and enjoying the public housing provisions and I might add in concluding that at this point, that this action was first brought by Mr. Earl Boyd Pierce as general counsel for the Cherokees and it was after this that the Choctaws were permitted to intervene in the action. We brought an action for counting Oklahoma, a counterclaimed for the suit to acquire a title.
Byron R. White: But do the Cherokees have some schools which they themselves finance?
Peyton Ford: Yes and vocation --
Byron R. White: At the tribe?
Peyton Ford: Yes.
Byron R. White: Out of tribal funds.
Peyton Ford: Yes sir and vocational effort. All the tribal funds came down the so-called outlet case had been devoted to the common efforts of the tribe and the funds that we hoped to receive if there'd be any, from the Arkansas River will be so usable.
Warren E. Burger: Thank you Mr. Ford. Mr. Claiborne.
Louis F. Claiborne: Mr. Chief Justice, may it please the Court. I hesitate to detain the Court much longer in these cases arguing on the same side but perhaps I can perform some service to the Court as an amicus curiae if I attempt to very briefly summarize and perhaps simplify the issues as we see them. The first fact which we would stress in this case is that here we have clear cut conveyances of large tracts of lands to these three Indian tribes, Choctaws and the Chickasaws, together with Cherokees separately. The sequence of those grants seems to us of no great importance. It happens that from the point of view of the treaties the Choctaws come first and the Cherokee is second. From the point of view of the patents, it's the other way around. The important thing however is that there were grants in fee simple to these tribes of very large tracts adjacent one to the other and between them, entirely surrounding and encompassing the navigable portion of the Arkansas River. But the fact that there's a conveyance in fee simple immediately distinguishes the Holt State Bank case which is invoked by the State of Oklahoma. There, there was no conveyance whatever nor was there even a setting aside of the portion of the aboriginal lands of the Chippewas which was reserved to the tribe. Those reserved lands, well lands which under the decisions of this Court, the United States always owned in -- always had the title to, the Indians simply had a right of occupancy. Therefore the United States always owned the beds of the navigable rivers and of the Mud Lake which was at issue in the Holt State Bank case and there was no act, no transaction which ever changed that situation, whereas here, there is. The United States cedes these tracts to the Indian tribes and the burden it seems to us is on the other side to show why the beds of the river did not go with the grants.
Byron R. White: (Inaudible) lands involved from one side of the river?
Louis F. Claiborne: I think there would be a -- we could make the same argument Mr. Justice White. I think it helps us here that the river is entirely enveloped in Indian lands.
Byron R. White: How about the service for a -- where a -- one tribe owns this land along this side of the river, on the other side of the river, its (Inaudible)
Louis F. Claiborne: There is no such situation with respect to the navigable portion of the Arkansas in this case. If perhaps Your Honor is --
Byron R. White: This is navigable?
Louis F. Claiborne: The navigable portion. Perhaps though the physical situation ought to be clarified. Once again referring to page 25 of the brief filed on behalf of the Choctaw Nation, to the rather small white brief, a very simplified map which seems to me presents the situation as clearly as it can be. You'll notice, there's a triangle, at the top of the triangle, Fort Gibson. On the right hand side of that triangle is a portion of the Arkansas River. On the left hand side of that triangle coming down is the more or less straight line which represents the western edge of the Cherokee grant and at the south is a portion of the Canadian River. Now that triangle is part of the Cherokee grant. So is of course the portion indicated as --
Byron R. White: How about the creeks seminal?
Louis F. Claiborne: The Creeks' seminal claim begins west of that so-called straight line.
Byron R. White: (Inaudible) Choctaw is one of the -- or the Cherokee, the (Inaudible) on one side of the Arkansas River and the Creeks' seminal is on the other end?
Louis F. Claiborne: No, Mr. Justice White that triangle belongs to the Cherokees. Therefore the Cherokees have land on both sides of the Arkansas River. That triangle south of Fort Gibson is Cherokee land as is what is north and east of that.
Byron R. White: Creeks' seminal, those lands bordering the Arkansas River?
Louis F. Claiborne: The non-navigable portion of the Arkansas River, but none which is relevant to the portion of the river which is in controversy here. But the fact that this portion of the Arkansas River between Fort Gibson and its confluence with the Canadian River is entirely within the Cherokee grant, hence to simplify the matter in that here we at least we need not talk about which grant came first and whether the United States reserved to itself the portion that was not yet granted to an Indian tribe and yet the State of Oklahoma is -- makes the same argument here as it does further east.
Potter Stewart: And then from the confluence of the Canadian River and the Arkansas River then along the side of the Arkansas River as it flows southeasterly, that river is the boundary between the Choctaw and the Cherokee grant, is that right?
Louis F. Claiborne: That is correct, Mr. Justice Stewart, that is correct.
Potter Stewart: And we're talking in totality of a segment of the river that extends about the 60 miles or so, is that right, looks likely on the scale?
Louis F. Claiborne: That would seem to be right, I think. Anyway from Fort Gibson to the --
Potter Stewart: We're talking about the bed of the -- bed under that river for about 50-60 --
Louis F. Claiborne: That's correct. Now I would say that whether or not at the time of the first grant any of the bed was granted or whether all of it was granted in that first grant and or the second grant only came to the river's edge or the other way around is a debate as between the two tribes that need not concern this Court, that its not presented here and that would of course be reached in the event the Indians were to prevail here. I should say that the Cherokees' only claim to the thread where the river is the boundary between them whereas the Choctaw has claimed the whole of the bed, but we certainly take no position as to who is right or wrong in that debate nor should this Court at this time concern itself with that intramural --
Potter Stewart: Well, except of the -- as Mr. Justice White's questions seem to point up the fact that there are two grants does go to the issues before the Court here, in this case?
Louis F. Claiborne: Mr. Justice Stewart of course only as to the portion east of the confluence of the Arkansas and Canadian River and as to that, it seems to us that to the extent that the bed had not been included in the first grant, it must have been included in the second to -- except that it was already fully included in the first, it could of course not be included in the second. The languages of the two events is not identical and is simply in each a reference to the river as a boundary without indicating, it seems to us in any clear way whether it goes to the thread, to the other bank or stops at the nearer bank.
Byron R. White: Mr. Claibrone (Inaudible) down the Arkansas River? Was there a claim that it meant alongside, along the bank of the Arkansas River?
Louis F. Claiborne: I think not Mr. Justice White.
Byron R. White: (Ianudible) a construction of that language?
Louis F. Claiborne: No, I don't think the disposition of this case in either the court's below turned on that technical reading of the patent or of the treaty.
Byron R. White: I suppose theoretically at least, the -- even if the Court of Appeals is wrong on the grounds that it used to (Ianudible) of this case, there could still be an argument that after all, the patent only granted lands, to the bank of the river.
Louis F. Claiborne: I can't say that they couldn't believe such an argument Mr. Justice White.
Byron R. White: Was there a (Inaudible) in the case? I -- certainly its in the briefs there?
Louis F. Claiborne: I think it is raised and certainly in a much more full fledged way now in the briefs in -- on the merits in this Court than it was before and really --
Byron R. White: You don't think the -- do you think that you'd have to (Inaudible)
Louis F. Claiborne: It seems to me evident that one cannot resolve the controversy simply by looking no further than the language of these conveyances. One must construe them because they are ambiguous in terms of the apparent intent of the conveyor and the recipient. And it's to that -- it's on that basis, the Court of Appeal disposed of this case and to that extent, we agree that that's the correct basis.
Warren E. Burger: Would it not depend in part on the status of the convey -- the vendor's title at the time too?
Louis F. Claiborne: There is no quarrel Mr. Chief Justice at the time that the vendor, the United States had full on incumbent title. Whether it is --
Warren E. Burger: Put it this way, what -- what the vendor conveyed out at the time he had this full title. If he conveyed out to the banks only on the first transfer, you have one result and if he conveyed to the far bank, you have another result, isn't that right?
Louis F. Claiborne: Quite so but it is our intent to show that the realities then prevailing would indicate that these conveyances ought to be construed so as to include and not exclude the bed of the Arkansas River in these large grants to Indian tribes in what was then thought to be a forever more Indian Territory.
Warren E. Burger: In both the grants, is that it?
Louis F. Claiborne: In one or either or both grants taken together. We must remember that these grants were both contemplated at the time either one was finalized because they had both had prior histories in the prior treaties that simply without finalizing made indications that this lands would become available to one tribe or the other. As to --
Warren E. Burger: I think we're ready to terminate Mr. Claiborne.
Louis F. Claiborne: Yes sir, Mr. Chief Justice.
Warren E. Burger: We'll finish up with you, you will have minutes left in the morning.


William H. Rehnquist: Mr. Farr, you may proceed whenever you are ready.
H. Bartow Farr, III: Mr. Chief Justice, and may it please the Court: Our disagreement with the Fifth Circuit decision in this case rests upon two basic grounds. First, we think that final judgments should not be set aside because of after the fact recusal motions, unless there is a showing of actual judicial impropriety. Second, we think that such relief is particularly inappropriate when at the time of judgment that the district judge did not even know of possible grounds for recusal. Because a judge without knowledge cannot possibly favor one side or the other, it is in fact is more unfair in this case to throw out the judgment than it is to give it effect. Now I would like to just spend a few minutes at the outset on the facts of the case. The findings made by a separate district judge showed that at the time that he rendered his judgment and at the relevant time that the case was before him, that Judge Collins had no recollection of and no knowledge of any discussions between Petitioner and Loyola University regarding the possible purchase of some Loyola land. The judge found that there were numerous individuals who had been discussing the possible purchase with Loyola, and that Judge Collins did not have any recollection that Petitioner was among them. Now the Court will recall that this case did not involve Loyola University in any way. Loyola was not a party to the case. Its land was never mentioned in the case, and its interest was never mentioned in the case. There was some discussion of land in the opinion, but that is completely different land that has nothing to do with Loyola University. Judge Collins was said to have known at an earlier time, because he was present at some board meetings where the matter was discussed and after his judgment, but the specific finding is that at the time of his judgment that he did not know. Now I should take this opportunity to correct a statement that I did make at the first argument, which is that he did not have earlier knowledge either. The Court did find that he had had earlier knowledge, but said that at the time that the case was before him that he did not have any knowledge of these discussions.
Anthony M. Kennedy: Was the finding that he did not know or that he did not remember?
H. Bartow Farr, III: I am sorry.
Anthony M. Kennedy: Was the finding that he did not know or that he did not remember?
H. Bartow Farr, III: Well, I think both. I think that the specific finding actually is stated in terms of knowledge. But I think that it is implicit in that that he would not have remembered any earlier information that he might have had by virtue of having attended the board meetings. Now the Fifth Circuit did not reverse its finding. In fact, it reaffirmed that Judge Collins did not know at the time of his judgment about the discussions. What it held was simply that the judgment had to be set aside, because in effect he should have known. Now in discussing this decision, I would like to begin with what I think is an obvious but important point. That the question here is not simply one of getting another judge at the beginning of the case, which is what Section 455 is basically aimed at. The question here is one of setting aside a final judgment based on a motion that was made after the judgment was entered. Now usually, this Court has set a high threshold for claims raised for the first time after judgment. There are, of course, plain error rules on appeal and things like that. And for Rule 60(b)(6), which is the rule under which this particular motion has been made, usually the Court has required a showing of exceptional circumstances before it would find a basis for a judgment being set aside.
John Paul Stevens: Mr. Farr, can I interrupt you. If you draw the line at when the judgment was entered. Can you refresh my recollection, what was the date on which this judgment was entered?
H. Bartow Farr, III: The judge signed the judgment on the 12th of March, and the judgment was entered formally on the 16th.
John Paul Stevens: And what was the date when he found out about the possible appearance of impropriety arising?
H. Bartow Farr, III: The date that the Court is using is the 24th of March, perhaps the 25th, but I think the 24th.
John Paul Stevens: And my question is what in your view was the Trial Judge's duty under the statute at that point in time?
H. Bartow Farr, III: I do not think that the judge in the case after the judgment essentially had been entered had any specific duty under the statute. I think, frankly, that it would have been better practice, since it was so close to the time of judgment, if he had informed the parties, but it would not make any difference to our position in this case even if he had.
John Paul Stevens: And what would you say if a motion had been made on say the 26th or 27th of March, whatever the dates were?
H. Bartow Farr, III: We would take exactly the same position, Justice Stevens.
John Paul Stevens: That it was too late?
H. Bartow Farr, III: That is right. I mean what we are talking about here is essentially a situation where he enters a judgment and he decides a case, and he has no reason to favor one party or the other. And although, as I say, that I think that it would have been better practice had he made that clear eight days later, it would not have made any difference to the decision.
John Paul Stevens: And if he had happened to open his mail three of four days earlier. I guess that there were just a couple of days before he got those letters. And that would have been a critical difference too, I guess.
H. Bartow Farr, III: Your Honor, I am not sure that it would have. I guess that it depends whether we are talking a couple of days meaning before he had entered judgment. I think in that case, because the case would have still have been before him, that he would have not entered a judgment. I think that at that point that he might well have had a duty to step aside and let another judge take over at that point.
Antonin Scalia: I mean "might well", he would have knowledge, would he not?
H. Bartow Farr, III: That is right. That would be my understanding of the statute. The only reason in fact that I used the phrase "might well" is that there is the unusual circumstance in this case that he did announce his ruling from the bench.
Anthony M. Kennedy: Well, then he had no authority on the 60(b) motion, did he, or the new trial motion?
H. Bartow Farr, III: What happened in fact when the Rule 60(b) motion was filed and it was filed approximately a year and a half after the time that we are talking about now, he sought to reassign it to another judge for decision. However, they sent it back to him. At that time, he was no longer a trustee of Loyola University.
Anthony M. Kennedy: But as of March 24th, he was mandatorily disqualified from this case under any view, was he not?
H. Bartow Farr, III: That is correct.
Anthony M. Kennedy: And he had no authority to make any further rulings in the case.
H. Bartow Farr, III: As long as he was a trustee of Loyola University, that is correct. At the time that the motion was made, the Rule 60(b) motion, in fact he was no longer a trustee of Loyola University. So for example, if the case had been filed the first time at that point, then he might well not have had an obligation to recuse himself.
Anthony M. Kennedy: Suppose that he did not remember the fact that his wife owned this property. Let us just assume that his wife owned the adjoining property. And as a result of his judgment, his wife is greatly enriched. Is that grounds for recusal, mandatory recusal?
H. Bartow Farr, III: If there was a finding that he did not know about his wife's interest, Your Honor, I do not think that there would be grounds for recusal.
Anthony M. Kennedy: The same case?
H. Bartow Farr, III: The same case. The specific statutory provision that we would be dealing with in terms of the wife's interest in Section (b)(4), which specifically requires that he know of the interest before he is disqualified. Now the question then would be if he did not in fact know, if he sat in perfect good faith in ignorance of this interest that his wife had, and that was part of the factual findings of the case, would that then have been a disqualifying interest. I think not.
Anthony M. Kennedy: Suppose that you add the fact that he was negligent in not knowing, is there any difference?
H. Bartow Farr, III: No. I think that the point that we are making here is that the remedy of throwing out a final judgment for something which is merely negligence is too strong a remedy. That there is no indication that in a situation like that that Congress intended that at any time that a judge inadvertently did not know about something that could be grounds for recusal if he had known about it, that the judgments automatically ought to be thrown out.
Anthony M. Kennedy: Well, does the court below have discretion to set aside the judgment; did the Fifth Circuit say that this was automatic, that it had no choice?
H. Bartow Farr, III: Well, it accepted the finding, and then said that it found that there was an appearance of impropriety. Our position certainly is that we do not see how there is an appearance of impropriety; if a judge is sitting without knowledge of a possible disqualifying interest. Under those circumstances, what possible ground would he have to favor one side or the other. In that particular case, there is not the kind of temptation, which in the words that the Court has used, which would lead him to hold the balance other than straight and true. It is only if he has knowledge.
Anthony M. Kennedy: Again the same argument if he is negligent?
H. Bartow Farr, III: That is correct, that is correct. And we think that Congress in fact specifically framed Subsection (b) in terms of knowledge for just that reason. Because if you say that as long as you can show that a judge should have known of something, just to take the negligence standard.
Thurgood Marshall: You are not ignoring appearances, are you?
H. Bartow Farr, III: Your Honor, I am not ignoring appearances. What I am saying is that here you have a specific finding that he did not know. And I think that that is a very important aspect of the question of how this appears.
Thurgood Marshall: Everybody but him.
H. Bartow Farr, III: He understood that he was a trustee. What he did not know that there was any interest in the case before.
Thurgood Marshall: I know, but it seems to me that appearances are there.
H. Bartow Farr, III: Well, Your Honor, what I am submitting here is that when you are talking about a situation where he in fact did not have knowledge, you can only create the appearance essentially by doubting the fact that he did not have knowledge.
John Paul Stevens: Mr. Farr, is that not the very point of the appearance of impropriety, that the public really does not know exactly what the judge's state of mind was, or whether he remembered, or deliberately forgot or what. And the appearance concept is designed to take care of in part of public perceptions of act when you do not in fact until months later have a finding of fact that he did not actually know.
H. Bartow Farr, III: Can I make two points about that, Justice Stevens. First of all, of course, the appearance standard is something which is supposed to be used on going forward basis. That is the normal intent of it. And the expectation is--
John Paul Stevens: On a what kind of standard? I did not understand.
H. Bartow Farr, III: --On a going forward basis, on a prospective basis. That the facts will be known, and that essentially will be a guideline for a judge to use in deciding whether to sit or in fact to transfer the case to another judge. And I think that the question here is a somewhat more difficult one, which is in a situation where he did not know, would we just apply the same rule.
John Paul Stevens: Would you say that 455(a), which I think is the relevant provision here, can never be violated if the judge is not aware of a disqualifying fact. Judges do this. They have portfolios of stock, and they forget that they own a hundred shares of some stock, but the newspapers check this up. Would you say that there was no violation of that section, if the judge has honestly forgot about it, if there was no appearance of impropriety?
H. Bartow Farr, III: I would say so in the example that you have given me, Justice Stevens. I have not been able to think of an example in which I think if a judge honestly did not know of any reason to be partial, that that would legitimately create an appearance of partiality.
Antonin Scalia: Wait a minute. Let us suppose in this case that he is a big booster for Loyola and has been, and everybody in town knows that he is a trustee of Loyola. And this is a big case and the caption is Loyola versus somebody else. And he for some very strange reason forgets that he is a trustee, and he continues to sit in that case. Do you not think that that would create an appearance of impropriety. The only reason that I thought that you could argue that there was not one here is that the impropriety did not at all consist about the fact, that is was very hidden, even the other side did not realize that this land or that this company had a bid in on land, and if the company went under that the land would not be bought by that company, and that the land belonged to Loyola. I can understand that that is no appearance of impropriety, because the public at large would not know that. But the other example that I just gave you, would that not be an appearance of impropriety?
H. Bartow Farr, III: But of course, in that case, Justice Scalia, I cannot imagine that there would be a determination that he did not about it. To begin with, just to give you a technical answer.
Antonin Scalia: It is my hypothetical. I mean there is a determination that he did not know about it.
H. Bartow Farr, III: And that finding is made on the basis of a record as accepted by the Court of Appeals.
Antonin Scalia: Then there is no appearance of impropriety?
H. Bartow Farr, III: I think that in a situation where he does not know about the particular grounds to give rise to recusal that the appearance can only be achieved essentially by not accepting the finding. But the problem is that while that may be a situation that happens in lots of cases where people looking at it say here is a particular finding that a judge has made and I personally do not accept it, if you follow that course with Section 455(a) or even 455(b), you are going to open up all sorts of situations where the findings are controlling.
John Paul Stevens: Yes. But under your view, as I understand you, you really will not know whether there was an appearance of impropriety until you have had a finding of fact on the judge's state of knowledge.
H. Bartow Farr, III: Well, Justice Stevens, I think that that occurs in lots of cases, whether it is something that the judge knew, or whether it is something that the judge did, or something that the judge said.
John Paul Stevens: Well, I am not disagreeing with you that that is not true, but that is a little different from one's normal concept of what an appearance of impropriety is. It seems to me that the appearance either exists or it does not exist, and sometimes there is a wholly innocent explanation for it. But it seems to me that that does not really affect the public perception. The public sometimes is suspicious of us, even though they really should not be.
H. Bartow Farr, III: Except, I think, that 455(a) talks in terms of reasonable suspicion. Now I suppose that the public may be suspicious, even after a judge has said that there is no basis here for believing that this judge did anything wrong. The public looks at it and says, gee, if we had been the judge, we think that something looks worse than that, we are troubled about that.
Sandra Day O'Connor: Mr. Farr, how does Subsection (c) enter into this. It says that the judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort, and so forth. Does that enter into the picture at all?
H. Bartow Farr, III: I do not think that it enters into this picture, Justice O'Connor, and let me try to explain why. At the first argument, I indicated why I thought that that particular section did not really apply here. Because Section (b)(4) says knows, not should know. And there is nothing in (c) about a conclusive presumption. But I would like to supplement that answer by pointing to the particular language of Subsection (c). Because I think that under any reading of Subsection (c) that the knowledge that we are talking about here is not the kind of knowledge that he would be conclusively presumed to know under (c), even if it does have the conclusive presumption. What Judge Collins is said not to have known in this case is the names of possible purchasers of land from Loyola University. And if you look at what he is required to know under (c) or what he is required to inform himself about are fiduciary financial interests. And financial interests are defined in terms of ownership of a legal or an equitable interest.
Sandra Day O'Connor: Well, then what about the hypothetical that you were asked about the spouse owning shares of stock, I mean he deals with a case involving that company, do you not think that (c) suggests that he should know that his wife owns the stock?
H. Bartow Farr, III: Let me say that (c), of course, in the hypothetical of his wife, that there is a reasonable efforts clause under (c), not a specific knowledge clause. The legislative history gives an example which Justice Traynor gave of the difficulty of asking one's spouse about his or her investments, and indicates that they particularly had a lower threshold in that situation. But anyway to answer your question, Justice O'Connor, I think that there might be a possible reading under (c) which says that the way that we are going to enforce the provisions of Subsection (c) is to assume that a judge knows at least about what he is required to inform himself about, and perhaps what he is supposed to make reasonable efforts about. But even if that were so, that still would not mean that he would have to know not just what he owned, what his wife owned, what any private trust that he served as a trustee owned or any university, but also anybody who might buy that.
Sandra Day O'Connor: But in the case of other than this one then, do you concede that (c) affects (a) in the sense at least to the extent that the judge is supposed to inform himself about his own personal interests?
H. Bartow Farr, III: I guess that I think that it is possible, Justice O'Connor. I do not believe that I need to win those cases, so I think that the easy thing to do would be just to say yes. But I am quite honestly not sure that even in that situation that the remedy of invalidating a final judgment of all prior rulings would be proper, just because he did not carry out the duty under (c). (c) essentially is an ethical requirement. It is in the Code of Judicial Ethics.
Sandra Day O'Connor: Was there a finding that he did comport with his duties under (c) in this case?
H. Bartow Farr, III: Your Honor, there was no specific finding about that at all.
Anthony M. Kennedy: It seems to me that there could not very well have been. He is a fiduciary, and he has an obligation to make sure of what his beneficiaries' interests are. And this was not a small potatoes deal, as I understood it. Did not Loyola stand to have its adjacent land increase tremendously in value if this hospital went through?
H. Bartow Farr, III: That was the finding of the Court, that this was an important interest to Loyola. But let me explain again the situation.
Anthony M. Kennedy: And does not the judge have the duty to inquire as a fiduciary into all of the interests of Loyola, just to make sure that this does not happen?
H. Bartow Farr, III: Well, what I would like to point out here is that even if the judge had carried out that duty to its fullest degree, at least that I think is contemplated by (c), had learned everything that Loyola owned, that still would not have been enough to put him on notice necessarily about the case that was in front of him. I mean obviously if Loyola University had been a party or its land had been mentioned in the case, then you could say, well, he is supposed to know that they owned the land, and then he should recognize when it was mentioned. But what we are talking about here is a series of board meetings. We are really talking about I guess three board meetings over a period of several years, in which the name of the petitioner and the corporation that he owns are mentioned on a couple of occasions.
Anthony M. Kennedy: But not only that, but the hospital project. You would think that that would stick in his mind.
H. Bartow Farr, III: Well, except that was one of numerous things that they were talking about doing with this particular piece of land. I think that to some extent that you have to put yourself in the position that a trustee is in in these board meetings, where you are talking about numerous items that come up, for example. And any report by the real estate committee, for example, is one of ten, a dozen, or twenty things that are discussed at a meeting. And even then, the idea of using this as a hospital was one idea. The idea of using it as a shopping center was another idea. There is a part in the minutes about somebody wanting to use it for parking.
Thurgood Marshall: That was what I was going to mention. There were minutes of all of these meetings.
H. Bartow Farr, III: There were minutes.
Thurgood Marshall: Which he was supposed to have read.
H. Bartow Farr, III: He said that what he did is that he scanned the minutes.
Thurgood Marshall: Anybody in the public assumes that a trustee reads the minutes.
H. Bartow Farr, III: He said that he scans the minutes of the meeting, but that he took no particular interest in these financial dealings. And one of the things that I think is important to note--
Thurgood Marshall: How can you convince the public of that, that a judge does not understand what he is reading?
H. Bartow Farr, III: --Well, the public has to understand the position that a judge is in, particularly as a fiduciary of an institution like a university. The Code of Judicial Ethics in fact prohibits a judge from taking an active interest in the financial affairs of Loyola University. He is not allowed to do that ethically. He can a trustee for certain kinds of private trusts, and he can serve in a fiduciary capability for a public institution, but he cannot take an active role in the financing.
Thurgood Marshall: Well, did he in this case make his position clear?
H. Bartow Farr, III: He did not take an active role in Loyola's finances. In fact, that is precisely what he said.
Thurgood Marshall: Did he make that clear to the public, did he make that clear to the public or anybody else?
H. Bartow Farr, III: He testified under oath to that effect; yes, he did.
Thurgood Marshall: He made it clear to whom?
H. Bartow Farr, III: When a Rule 60 motion was filed a year and a half afterwards.
Thurgood Marshall: That is not what I am talking about. You said that under the law that he has to do this. But did he do that, did he make it clear that he was not interested in the fiduciary doings of that place, did he?
H. Bartow Farr, III: Your Honor, I am not sure that I understand your question quite honestly.
Thurgood Marshall: Did he say that I pursuant to the laws of the State of California am not allowed to participate in the fiduciary business of this corporation?
H. Bartow Farr, III: Your Honor, I do not know that he did that. But I do know that he did not serve on the real estate committee, that he did not serve on the investment committee, that he did not serve on the executive committee.
Anthony M. Kennedy: Did he disqualify himself from every vote on every financial transaction that came before the board of trustees?
H. Bartow Farr, III: The Code of Ethics allows you to vote as a general trustee on financial matters. What it does not allow you to do, however, is to actually participate in making the financial decisions. And I think that what is happening is that in a sense that we are looking to impose.
Anthony M. Kennedy: Do you think that it is appropriate for a judge to vote on a financial matter which is also appearing before his court?
H. Bartow Farr, III: Do I think that it is appropriate?
Anthony M. Kennedy: Do you think that it is appropriate for a judge to vote on a financial matter and financial transaction that is being reviewed in his court?
H. Bartow Farr, III: No, I do not. I think that if he knows that there is a financial matter either at the board meeting or in his court, that he should not vote on it if it is in his court, or that he should recuse himself if the matter is before him in his courtroom. But those are cases, of course, where we are talking about knowledge. And what we are talking about here is a situation where Judge Collins could not reasonably have had any reason to favor one party or another. And the question really then is is it appropriate--
Anthony M. Kennedy: Was that finding made by the lower court?
H. Bartow Farr, III: --Pardon me.
Anthony M. Kennedy: Was that finding made by the lower court?
H. Bartow Farr, III: Not that specific finding. But the finding that he had no knowledge, it seems to me, that it follows naturally from that that if you do not know about any reason to be partial, that there is no reason that you would favor one party over the other. And the court below accepted his testimony to the effect that he did not know at the time that he sat on the case. Now I would just like to make one brief point, and then save the remainder of my time, if I may. The type of thing that we are talking about, the issue of allegations about a judge and what is determined, and then what the public believes, does come up in several different kinds of cases. And in response to Justice Stevens' question, I wanted to say that there are cases, for example, where there is an allegation made that a judge made an out of court statement to a third party which indicates some sort of bias or prejudice. And in each of those cases, there is then a question as to whether in fact the judge made the statement. And there have been fact findings. There is a case in the Seventh Circuit, Balastrue; the Ninth Circuit, Conford; and the Fifth Circuit, Brown, which are examples of this. Sometimes the fact finding is not favorable to the judge. That was the situation in the Brown case. And sometimes it is. But it is that finding, whether he said it or what he said, that is then used as the basis for application of the statutory provision.
John Paul Stevens: Yes, but Mr. Farr, the facts that give rise to the violation of 455(a), if there was a violation of 455(a), would exist before the finding occurred. Whereas the ones that you described depend on whether the statement was made, which is an objective fact yes or no. What you in effect are saying is that later on you want to know the subjective state of mind of the judge here to determine whether there is an appearance. And I would suggest that the appearance might well have existed, even though he did not realize that there was a disqualifying fact.
H. Bartow Farr, III: Well, I guess that I do at some point part company on that.
John Paul Stevens: Is it your position that 455(a) was not violated, or that the vacation of a judgment is an impermissible remedy for a violation of 455(a)?
H. Bartow Farr, III: It is both.
John Paul Stevens: It is both.
H. Bartow Farr, III: Our initial position, as I meant to indicate, was that this is not a permissible remedy or not an acceptable remedy, simply for an appearance of impropriety, when you are talking about a motion filed after the fact. That is what the Seventh Circuit's rule is. What I am saying in addition though is that because of the finding of lack of knowledge, I think that if you credit that, there is not even an appearance of partiality in this case. Thank you. I will reserve my time for rebuttal.
William H. Rehnquist: Thank you, Mr. Farr. We will hear now from you, Mr. Lucas.
William M. Lucas, Jr.: Mr. Chief Justice, and may it please the Court: We submit to Your Honors that the single most important finding of fact by the Fifth Circuit was its finding that the public would not believe the Judge Collins forgot. If the public would not believe that Judge Collins forgot, it would therefore believe that his impartiality might reasonably be questioned. And it would therefore believe that the judgment was tainted. And the requirements of 455(a) would then have been met. And that was basically, I believe, the foundation of the Fifth Circuit's holding. The Fifth Circuit also said that the judge erred in failing to recuse himself.
Antonin Scalia: Excuse me. That would show that he should disqualify himself in any proceeding in which his impartiality might reasonably have been questioned. And this says might reasonably be questioned. The proceeding was over. At the time that it was conducted, there was no reason for the public to question his impartiality. What you are saying is that the public will not believe that his colleagues' finding that he did not know about it was true later.
William M. Lucas, Jr.: At the time of the hearing, I believe that the public would question his impartiality, yes. If the public knew that he was a member of the board then.
Antonin Scalia: The public did not know. But the public did not know. At the time of the proceeding, even the parties did not know, who were much more familiar with all of the land involved in the case and all of that. It is hard to believe that the public would have known.
William M. Lucas, Jr.: The public, I believe, for purposes of 455(a) is presumed to know objective facts. The objective facts were that before that hearing and during that trial, this man, this judge, was a member of the board of trustees of Loyola University. At that time, the public is expected to know that, yes. I do not think that it matters when he learned it, Justice Scalia.
Antonin Scalia: The public is deemed to know every little detail, even though he is unaware of those details, and even though he has no obligation to inform himself of those details?
William M. Lucas, Jr.: No, I do not think that the public is deemed to know every little detail, and that is where the importance comes in. I think that the public is to know that if Loyola owns a 530 acre tract of land, which is what this is, the equivalent of about seventeen square city blocks, that if it is going to sell a piece of that land and it is going to have rezoned 115 acres around it which will increase the value by $9 million, I think those facts that the public would expect to be important and would know.
Antonin Scalia: The public did not know the connection between this company and that land any more than the judge here did. Do you seriously contend that at the time that the judgment was rendered that there was an appearance of impropriety?
William M. Lucas, Jr.: Yes.
Antonin Scalia: There was. To whom was this appearance manifest, since your client did not find out about it until how much later? Maybe you are guilty of laches then.
William M. Lucas, Jr.: Well, then, too, maybe the court is guilty of not having revealed it, as it is required to do and mandated to do. When it knew it, it did not tell the parties. It did not tell the attorneys. I do not think that under those circumstances that we should look back and say. In other words, it seems to me, Justice Scalia, that if a judge could just keep to himself some interest that would require his recusal under 455(a), if he could just keep it to himself under after the judgment is rendered, all is well.
Antonin Scalia: Because then he would come under another provision where he has personal bias or prejudice, or where he actually knows of a financial interest. But here, you are just saying that he did not know of it. I mean that is quite different. Here you are saying that this judgment was bad, because it appeared that he was biased. And I find it hard to say that at the time of the judgment that there was any appearance of impropriety.
William M. Lucas, Jr.: Justice Scalia, we do not say that he did not know. The judge himself said that he did not remember. He knew on January 24, 1980. The court found that as a finding of fact. He knew on September 25, 1981. He knew on November 12, 1981, and that is an important date. Because on that date, he attended a meeting, and he voted on a motion that was passed unanimously or presumably he voted. He was there, and the motion passed unanimously, to resume negotiations with Mr. Liljeberg. Eighteen days later, the suit was filed. And twenty-nine days later, he denied a TRO and refused a stay and injunction that suit, twenty-nine days after that meeting.
Antonin Scalia: You tried this and lost, did you not?
William M. Lucas, Jr.: Sir?
Antonin Scalia: Did you not argue this to the District Court?
William M. Lucas, Jr.: And lost on the merits.
Antonin Scalia: And lost on the merits.
William M. Lucas, Jr.: Yes, sir.
Antonin Scalia: We do not want to try that again here. Do we not have to accept the fact that he did not know, is that not the posture in which this case is going forward?
William M. Lucas, Jr.: No, I do not think. I think that what is before the Court is the Fifth Circuit, Judge Collins particularly saying that he did not remember. I think that there is a difference between he did not remember and he did not know. He did know initially. Now we are in the area of did he know and then forget. That is really what we are saying.
Thurgood Marshall: When did you or your client find out that he was on the board?
William M. Lucas, Jr.: We found out, sir, ten months after the judgment was rendered by the Fifth Circuit Court of Appeals.
Thurgood Marshall: You mean that you tried that case against the corporation, and you never examined its minutes; did you ever examine the minutes of Loyola?
William M. Lucas, Jr.: Loyola was not a party to the suit, Your Honor.
Thurgood Marshall: I know, but it was involved.
William M. Lucas, Jr.: No, it was not involved. It was not involved in the suit. The suit was over the ownership of a corporation, which in turn owned a certificate of need to build a hospital, a hospital which was going to be built if Mr. Liljeberg was successful on Loyola property.
Thurgood Marshall: But was it property of Loyola?
William M. Lucas, Jr.: On which it would be built; yes, sir.
Thurgood Marshall: And you did not look at the minutes?
William M. Lucas, Jr.: Did not even know of any connection between Loyola and Mr. Liljeberg.
Thurgood Marshall: Wait a minute, do not say that you did not even know that there were minutes.
William M. Lucas, Jr.: No, sir. Did not know of any connection between Mr. Liljeberg and Loyola.
Thurgood Marshall: But you never looked at the minutes, you said. I just think that it is strange. If you had looked at the minutes, you would have known that he was a trustee, would you not?
William M. Lucas, Jr.: Well, sir, I am perhaps not making myself clear. I had no reason to look at Loyola's minutes. Because Loyola was not a party to the suit, and I have no idea at that time that a hospital would be built on Loyola's property. It could have been built anywhere. So there was no reason to suspect. Loyola played no part in this case.
Antonin Scalia: You no more than the general public had any reason to believe that there was any impropriety. I mean that seems to me very telling. And yet you assert that there was an appearance of impropriety, although you did not see any.
William M. Lucas, Jr.: I can see impropriety in the fact that the judge knew on March 24th, two days before he lost jurisdiction of this case, and did not inform anyone and did not tell anyone. He had a mandatory duty to recuse himself at that point.
Antonin Scalia: That might be actual bias or actual impropriety, but it would not be an appearance of impropriety, which is what I thought that we were talking about. The discovery did not disclose that St. Jude was negotiating with Loyola as a prospective seller of the land?
William M. Lucas, Jr.: No, sir, it did not. The discovery on the merits of the case, you mean?
Antonin Scalia: Yes.
William M. Lucas, Jr.: No, sir, it did not.
Anthony M. Kennedy: You just assumed that a hospital would be built somewhere?
William M. Lucas, Jr.: Where the hospital was going to be built was really of no concern. You see, this was a contest between HSAC, which is a subsidiary of Hospital Corporation of America, and Mr. Liljeberg, who was negotiating with other companies. HSAC had land on which to build the hospital, and which the state had approved the site for the hospital. So where the hospital was going to be built was really of no concern to us, even if Mr. Liljeberg won. We were concerned with him not winning.
Anthony M. Kennedy: When the judge failed to disclose his interest on March 24th, how did that prejudice you. I take it that counsel for the Petitioner and Appellant argues that it really did not make any difference at that point, that the trial was over anyway.
William M. Lucas, Jr.: Well, again, looking back on it, a number of things could have happened. Number one, the judge on his own motion under Rule 59 could have declared a new trial right then and there. On the night of March 25th, the last date, on March 25th of 1982, the last date that it was still under Judge Collins' jurisdiction, he attended a meeting at which the details, the details of this land transaction were discussed. Those minutes are before Your Honors. No phone calls, certainly not to me, and certainly not to anyone else that I know about, to say, even on March 26th, 27th, or 28th, hey, I hear you are appealing this case, I think that you ought to know. And the onus is not on the lawyers, Your Honors, as I read the statute and jurisprudence. The onus is on the judge.
Anthony M. Kennedy: What conclusion do we draw from that, (a) that it would have been easier to make your motion, but does it tell anything about what the substantive ruling on the motion would have been. We are back in the same box that we are in now, that is to say that the trial is over.
William M. Lucas, Jr.: No. Except, of course, one of the arguments that is raised is the question, the opposing counsel's question is timeliness. And of course, it is directly involved there. We were in a position where it was ten months after the court ruled.
Anthony M. Kennedy: What about the merits?
William M. Lucas, Jr.: The merits?
Anthony M. Kennedy: The merits about the recusal motion or the new trial motion. Those are the same, are they not, on March 24th or ten months later, or are they?
William M. Lucas, Jr.: Yes, I think that they are, sir. I think so, sir. Now one of the points that this Court, of course, is well aware of is that a judge should not act as a judge in his own case. And this Court in Aetna v. Lavoie established that principle. Also the law does not look at just actual bias, but it looks at the question of the appearance of bias or the appearance of impropriety. And this was an important holding by the Court in the Commonwealth Coatings case back in 1968. In fact, it was that case that was used as a source of 455(a) in the Senate and House hearings. Therefore, in the absence of a designation of a remedy in Section 455, the remedy applied by this Court in Commonwealth Coatings is reasonable. I was asked before at the earlier hearing as to the basis for any remedy under 455. And I think that the basis for that remedy is the Commonwealth Coatings case. I do not think that I or anyone else will ever know what is only known to Judge Collins. I think that a terrible situation would face this Court and this nation under this statute if we ever got into a position where a judge stands in the position of the person being tried. And I would cite the Court to U.S. v. Brown in the purview of a fair trial, that it is the judge himself who is on trial. If we ever get to a situation where the judge can say I forgot or I do not remember and completely exculpate himself from any finding of impartiality, then I think that we would do violence under those circumstances to the congressional intent of 455(a). I think that the cases have clearly established that we must rely upon on objectively ascertainable evidence rather than the judge's memory or the judge's professing of not remembering.
Antonin Scalia: Mr. Lucas, such a holding would not stretch as far as you are suggesting. I mean if the thing that he claims not to have remembered is something obvious to all of the public and he is the only one in the world who did not remember, then you could say whether he remembered it or not, that there was an appearance of impropriety, because the whole public knew that this land was involved in litigation and that he was a trustee of Loyola. But it is a much narrower situation when you say that it is a little thing that the public would not know about, and that it is that he claims not to remember. What is so bad about letting that be adjudged by a separate court. And if the court is persuaded that he did not remember it, there has neither been an appearance of impropriety nor any actual impropriety.
William M. Lucas, Jr.: Well, Justice Scalia, I think that we get back to the question of is it a little thing or is it a big thing. Here, it was a big thing. Here, it was a case of a judge who attended three meetings where this matter was discussed apparently in detail. And the suggestion has made that he only heard it one, or two, or three times.
Antonin Scalia: Well, you are mistaking what I mean by a little or big thing. I mean a thing that is evident at the time of the trial. This was not evident at the time of the trial. Your client did not pick it up. It was a very remote connection. Now maybe he should have remembered it, but he did not, or at least it was found that he did not.
William M. Lucas, Jr.: But I believe that it is presumed that the public knew whatever the facts were at that time, not later. Whether the public finds out later or not is inconsequential. So we look at the facts at that time. The facts at that time were that he had any number of meetings and he got any number of minutes.
Antonin Scalia: I think that is the essence of what we are debating about here. Whether you use what the public reasonably knew at the time, or what ever detail of the fact was at the time. I think that you are right that if you say that that is the basis on which you do it, then there was an appearance of impropriety.
William M. Lucas, Jr.: I think that is it.
Anthony M. Kennedy: Were there findings on when both parties knew, when Liljeberg knew?
William M. Lucas, Jr.: I am sorry.
Anthony M. Kennedy: Were there any findings as to when Liljeberg knew of the judge's trustee position?
William M. Lucas, Jr.: That never entered the case, and that is another point. Presumably, he was negotiating for quite awhile, as later developed at depositions taken after the motion to vacate was filed, yes. That was never revealed to us. He was negotiating the whole time.
John Paul Stevens: May I ask you along that line, Mr. Lucas, something that has always puzzled me. In the minutes of the January 22nd meeting. What was the date of the trial, it was right at about the time?
William M. Lucas, Jr.: The trial was January 21 and 22; yes, sir.
John Paul Stevens: The minutes of the real estate committee on January 22 refer to the negotiations with St. Jude Hospital Corporation, and that Mr. Eckholdt report that the Federal Courts have determined that the certificate of need will be awarded to the St. Jude Corporation. That quite obviously refers to the judge's oral rule from the bench in this case. But is there anything in the record that tells us how the Loyola trustees came to be aware of that fact?
William M. Lucas, Jr.: No, sir, I do not know.
John Paul Stevens: Or whether they perhaps warned the judge that he should not be sitting in a case like this or anything like that?
William M. Lucas, Jr.: No, I do not know.
John Paul Stevens: That did not come out in discovery?
William M. Lucas, Jr.: I do not know. Obviously, they were keeping track of the case.
John Paul Stevens: The Loyola people were keeping track of the case?
William M. Lucas, Jr.: Yes. But again, I must stress the fact that we did not know. When I say we, HSAC did not know of Loyola's connection with this proceeding until ten months after the Court of Appeals, the U.S. Fifth Circuit. I would also like to point out one thing that I think also is very worthy of consideration. And that is that 455 applies to criminal cases as well as applying to civil cases. I think that if we were to give the interpretation that Petitioners wish to give to 455, then in U.S. v. Brown, the Defendant would still be in jail, or at least he would have served out his sentence. Because despite the fact that there was a great impropriety in that case, the judgment had already been rendered. It was some time eight years later between the time that the man was tried and the time of the reversal. He would still be in jail. Because it was not a case of actual bias, he could not proceed that way. It was a remark that the judge made that did not come to light until after the trial, four years I believe it was after the trial was over. So if we give the construction to this statute that once judgment is rendered that that is it, or once an appeal is exhausted that that is it, then I submit to Your Honors that an injustice in the criminal field as well as the civil could well take place.
John Paul Stevens: Do you think that if you apply a preponderance of the evidence standard in a criminal case to determine whether the judge in fact knew of the biasing factor, do you not think that you would have to apply a beyond a reasonable doubt standard?
William M. Lucas, Jr.: I do not know, Your Honor. I confess that I am out of my field when we are talking about criminal law.
John Paul Stevens: If there is more than a fifty percent chance that the judge was not biased, we are going to let the person go to jail. I doubt that.
William M. Lucas, Jr.: This judge in effect acted as a judge in his own case, once simply by saying I do not remember or I forget is taken as the basis for saying that he would not be responsible under 455(a). To the contrary, the Fifth Circuit finding that the public would not believe that he was impartial said that he because of constructive knowledge, things that he should have known, that he had a duty to inquire into, Justice O'Connor, under (c), requires that he be found to have had the requisite knowledge to indicate his impartiality under 455(a). The record clearly establishes that Justice Collins attended board meetings on these three occasions that I mentioned. Again I wish to particularly stress the November 21, 1981 board meeting, twenty-nine days before he ruled on a preliminary matter in this case, which you will find on page one of the joint appendix, within twenty-nine days. We, and when I say we, the members of the public have to ask ourselves if we were on a board of trustees that was getting ready to sell a piece of property that had discussed at a number of meetings that we attended, that was one of the principal assets of this institution that we serve, and the surrounding land was going to be increased in value by $9 million, and we voted on the motion to renew the negotiations with these people, Liljeberg and St. Jude, would be twenty-nine days later remember that. I think that we would. And I think that under that construction, that the court properly found that the public would not believe Judge Collins forgot. Thus, it is not a question really of whether he knew or he did not know, or whether he forgot or he did not forget. It is a question of whether the public would find that based upon the relevant objective facts that it appeared that the judge was not impartial. From the beginning, this Court has said that justice must satisfy the appearance of justice. And that the imprimatur must be placed on a sound judicial system that has the support of the people. And I believe that that was the purpose of 455(a). 455(a) is not to be applied in a speculative manner, not just any situation. Not just something, Justice Scalia, that it seems to me involves something quite minor should be used to try to set aside a judgment. I certainly do not think that that was the meaning that was ever intended to be given to it. But in a situation of extreme facts, strong facts, compelling facts, as we have in this case, that is the only vehicle by which we can preserve our right to a fair trial, if you will, a fair trial in a fair tribunal, which after all is the purpose of the statute. Thank you for your attention.
William H. Rehnquist: Thank you, Mr. Lucas. Mr. Farr, you have three minutes remaining.
H. Bartow Farr, III: Thank you, Mr. Chief Justice. Counsel talked briefly about Aetna Life Insurance v. Lavoie. And I think that the decision of this Court in that case points out what I think is a very important part of this case, which is that there is a difference between a judge who sits knowing of a possible interest and a judge who sits when he does not know it. In Lavoie, the Court did hold that one of the Justices of the Alabama Supreme Court should be disqualified, because he sat knowing of an interest. The Court was also asked, however, to disqualify all of the other judges of the Court because they were class members. And in discussing that claim, this Court pointed out that they were not even aware of any interest in the case when they sat on it up until the time of the rehearing. And the Court assumed, and I think correctly, that they could not have had any reason to be biased, at least up to the time that they knew about it. I think that what this case really is coming down to from the gist of Respondent's argument is the question as to whether you believe Judge Collins or not, and he says that reasonable people in this case will not believe him. And if in fact he did something wrong, certainly the judgment should be thrown out. But the question is what facts do you have to follow through on in order to reach that conclusion. You have to assume, first of all, that Judge Collins sat in a case violating his judicial oath, knowing that a university that he served as a trustee had an interest, and yet sat to favor that interest. When it was called to his attention eighteen months later in a motion, he falsely denied that he knew about it.
John Paul Stevens: Yes, but it was called to his attention very much more promptly than eighteen months.
H. Bartow Farr, III: It was called to his attention. But at that time, as he testified, he said that the case was disposed of.
John Paul Stevens: Do you not agree at that point that he had a duty to do something more than he did?
H. Bartow Farr, III: I agree at that time that it would have been better practice.
John Paul Stevens: Do you not think that he had a duty to do something more than he did?
H. Bartow Farr, III: I do not agree, Justice Stevens.
John Paul Stevens: You do not think that he had a duty to disclose to the parties what the true facts were?
H. Bartow Farr, III: As the Fifth Circuit said in addressing that issue, it would have been better had he done so.
John Paul Stevens: I understand that everybody knows that it would have been better. If it just would have been better, then you are saying that he had no duty to disclose at that point?
H. Bartow Farr, III: At that point, I do not believe that he had a duty to do so. But let me return. Even if he did, I think at that point that it just would have been a matter of recusing himself from any motions, and there were none made at that time. But let me again go back to these facts. The motion was made to Judge Collins. Judge Collins said I did not know about it. His deposition is taken under oath, and he says I did not know about it. Judge Schwartz makes a finding that says that he did not know about it. And three judges on the Fifth Circuit say we accept that finding, we do not believe that Judge Collins knew about it either.
Anthony M. Kennedy: And in each of those instances, you can substitute the word "remember" for the word "know"?
H. Bartow Farr, III: That is correct, that is correct.
Harry A. Blackmun: It is rather for one Federal Judge to call another one a liar, is it not?
H. Bartow Farr, III: Well, as I have indicated before, Your Honor, there is a procedure set up for disciplining judges, which Congress set up six years after it amended 455 that depends on judges taking responsibility for the conduct of other judges.
William H. Rehnquist: Thank you, Mr. Farr. The case is submitted.