Earl Warren: Number 27, Honorable Walter J. La Buy versus Howes Leather Company, Incorporated, and Montgomery Ward & Company. Mr. Sprowl, you may proceed.
James A. Sprowl: Thank you. When we adjourned last evening, I had just referred to a memorandum of the defendants including Howes Leather Company and Montgomery Ward by Judge La Buy below, in support of a motion to strike the amended complaint. They said it will be next to impossible for this Court to try the case, as the pleading now stands. The trial will be reminiscent of a battle royal. There are 104 plaintiffs and 10 defendant manufacturers. Considered as price discrimination case, there are 1040 separate distinct and unrelated price discrimination claims. There may be 10 in each count, from count two through count 105. Each plaintiff was shown, not only the price in which purchases were made from a manufacture by a defendant department or a chain store in competition with him, he must also show that he'd want to go to like a greater quality from the same seller at a higher price and that the effect thereof was to substantially less than competition. The trial would be fantastically complicated. And in their brief, they underlined the words "fantastically complicated." Now, the number of counts remains the same less one, 104 counts. However, there will only be 87 counts to try because some of the plaintiffs have been dropped by the wayside for one reason or another, but at least some 600 separate claims. The type of evidence in this type of case, of course, will be tedious and documentary. At the hearing, just preceding the reference to the master, the plaintiffs' lawyer stated, and it's in the record, he did have to fire -- hire eight express stenographer just to answer the defendant's interrogatories. Judge La Buy mentioned in the same hearing that he thought he'd heard more motions in this case as Rohling case than in any other case he ever had. And the -- the docket which is set up in the record, covers 28 large pages of just the entries of the orders. Judge La Buy has become quite familiar with the general scope of the case and has written six opinions of which four of them reported, one, in 15 federal rules decisions striking the original complaint, dismissing certain defendants, quashing certain services, 17 federal decisions overruling a motion to strike the second amended complaint, that's the one we're here of. 20 federal rules decisions allowing Howes Leather Company and their motion to inspect certain agreements to dismiss, entered into by the plaintiffs or other defendants to see if they didn't, perhaps, release them. And in 20 federal rules decisions there's a -- two opinions refusing summary judgements to two defendants, I think Armour & Company and Gold Glass. The basis for that was they claim they had not made any sales to the -- the plaintiffs but the Court pointed out they were charged with conspiring with others. So nothing could be decided on summary judgment. I think the record shows that Judge La Buy knew the scope of this case when he made these references, had done a great deal of work in it and that it is a very unusual, complex case involving a peculiar kind of tedious, probably uncontroversial testimony, consisting largely of records of sales.
Earl Warren: Could you estimate how long the trial would take, Mr. --
James A. Sprowl: The judge estimated it would take two months.
Earl Warren: Two months.
James A. Sprowl: The plaintiff estimated it would take six weeks and he said that the defendants counsel has previously told them it would take two months for the plaintiff's case but on the hearing, the defendant's counsel, he shortened up his estimate. The judge said two months and I think that's a fair estimate.
Earl Warren: So I understand that both sides objected to the point (Voice Overlap) --
James A. Sprowl: Everybody objected to the reference probably on the ground that it would cost some money. However, nobody has objected on the ground that he couldn't afford to pay his or rate of share. There isn't any impossibility of their paying. No showing at all that they couldn't pay whatever reasonable fees are involved. That would be a special case. I recognize it. If -- if the judge insisted on referring a case and one of the party says, “I can't pay” so there couldn't be any decision, that's a different cast than this.
Felix Frankfurter: Has there been a defendant case in your Circuit? The District -- the District Court has made reference (Inaudible)
James A. Sprowl: I would answer that no, from my own experience of 27 years. However, in the reply brief, the other side referred to one sentence in a case where the judge who wrote this opinion, I believe, said that they thought they were too common, too common in the district. The references were too common.
Felix Frankfurter: And without any --
James A. Sprowl: Judge La Buy, the record shows this. In six years, now and despite the difficulties that I mentioned yesterday with the long cases, Judge La Buy has personally made only nine references of which only five were general references and the other four were limited issues. That's in the record. So, he hasn't been guilty of that persistent refusal to follow the rule that was condemned in one of these --
Speaker: What -- what happens as a practical matter if both parties object to the point of the referee and declined to pay. Where does the referee get payed?
James A. Sprowl: He gets paid from the party as I assume because he has the right to say --
Speaker: (Voice Overlap) -- but do you how or I don't. It carries the stipulation directly.
James A. Sprowl: Well, that's covered by the rule. Before the -- the present rule was adopted, the master could attach for his fees. Now, he gets an execution. He collects them like any other creditor. Now, let's take that part, because I think the court below had the idea that if the only agreed cases could be referred. Now, of course, you never have any trouble about that if everybody agrees. I participated on that when nobody objects. However, the rule provides farther on that there may be references. It -- it clearly implies that there can be references from absent agreement because Rule 53 (e) (4), part of the same rule provides, "the effect of a master's report is the same whether or not the parties have consented to the reference”. Now, that was put in there, I think, because of the Armour's case, where there used to be, long ago, a difference in the finality of the findings where it was a consent reference and where it wasn't. What this obviously indicates and contemplates references absent consent, if you can't read it otherwise. Now, actually, if the rule is to be helpful to the Court, and I'm speaking now from the point of view with the trial court, consent should not be important because the case he finds he needs to refer and calls for it on his nature may be one where somebody doesn't wish to have it referred.
Stanley Reed: Is the only additional expense in the last dispute?
James A. Sprowl: I think that's fair to say. The -- perhaps the court reporters fee might be different. I don't think I can answer that. In our federal court, I guess everywhere, now, we have reporters, official reporters and some of the judges insist those official reporters be used before the master and there'd be no difference. If you had a private reporter, there might be a difference, I'm not sure. Otherwise, there's no difference.
Felix Frankfurter: And they insisted this. Is there any suggestion with the -- they compare to the situation brought to the terms of the reference in that sense?
James A. Sprowl: No.
Felix Frankfurter: Definitely, the proceedings before the master would be more than or would be drawn out to Congress if files (Inaudible)
James A. Sprowl: He does until Rule 53, the master rules on admission of evidence.
Felix Frankfurter: Just like that.
James A. Sprowl: He -- he's a master under Rule 53 operates just like a judge and he rules on questions of evidence but he also frequently reports excluded evidence under Rule 43 something or rather just as the trial judge does for the help of the Court above.
Felix Frankfurter: Let me ask you one more question. May I, Mr. Sprowl? The question of fees as the -- as the amount of the fee allows the master and referees (Inaudible) subject to the of controversy before the Court of Appeals have alleged that the abuse of excessive fees turned off the decision for the District Court.
James A. Sprowl: I think I can answer that, no. There are -- that the cases in our Circuit on masters are cited on the various briefs. There's allusions to fees as being an item. There has been no flagrant abuse of fees r in any of the reported cases in our Circuit. And I would say this. That, I think Judge La Buy should be entitled to have his conduct judged on its own merits. If some other judge, and I doubt it myself, has been guilty of abusing this rule, I don't think Judge La Buy should be made to vacate this particular reference if it was a proper one.
Felix Frankfurter: I'm not (Inaudible) in regards to him or any other judge. I want to know of the Circuit.
James A. Sprowl: What we would like to --
Felix Frankfurter: (Voice Overlap) -- this isn't just one case.
James A. Sprowl: No.
Felix Frankfurter: The Jennings case -- the Jennings decision where they rested on non-desirable tenets not by the Court as the Court's focus it's really considered as the case, is that right?
James A. Sprowl: That's why we're here to find out just what the Court meant on that case and the Cosgrave case and I don't' really know because this case was a memorandum opinion and I have my idea, which if it coincides, I would say, where the judge made on his dissent. Mr. Levy has his opinion which is reflected by the majority. Now, let me say this, too. We're here construing Rule 53 as it is. It obviously permits references with limitations. It doesn't forbid though, I think the ruling of the court below has forbidden them in our Circuit except in matters of account. And for all practical purposes there it had meant. Now, that wasn't, I don't believe, the purpose of the rule. If this Court feels that the time for doing away with masters that's here, and there is some movement that way, that maybe the party shouldn't ever be required to pay for their hearing the way you do with a master's hearing. That should be done by an amendment of the rule. There are several reasons why that should be that way. In the first place, if that disrupts things in various circuits so they need more judges, the rules go before Congress for a period of time where they laid fallow until they become effective and Congress could maybe apply -- provide more judges where they're needed or other things could be done. I don't think that that should be accomplished by a nullification of the present rule, which clearly contemplates the use of masters.
Earl Warren: The decision below wouldn't affect the appointment of a master in the jury case would it?
James A. Sprowl: No. Now --
Speaker: Do you conceive that mandamus was properly issued here?
James A. Sprowl: I don't. I argue that it wasn't under Roche and of the Harlan cases. And I think our Court has not followed those cases as scrupulously as it says it has followed Cosgrave in this case. I -- I say all this with no -- I -- I would like to pay some credit to our Court of Appeals. It's a good court. There isn't any feed in this case. We'd like to get the rule clarified but nobody is excited. Our Court is very -- our Court of Appeals is very diligent and it is in court, decides its case very punctually and expects good service from the lower judges. So, in anything I say here, I'm not against the Court of Appeals. I think they have made some errors in this decision and that's why I asked this Court to review it.
Tom C. Clark: But the other half which is made to any action to this.
James A. Sprowl: I cannot answer that. I don't know of any. I know occasionally there have been some. I noticed in Moore that he -- he says in his recent book that they're considering using masters that they -- that that's being considered in antitrust cases as and -- and perhaps they would amend the rules specially for that. And I refer to note 39 on page 2944 of this second edition. Because of the unusual complexity or difficulty in determining the economic and scientific facts underlying certain cases of great magnitude particularly many of the large antitrust cases. Many goes on to say that on the other hand, a commission on which Judge Lindley participated and I think this influenced him somewhat. He -- he was on the majority below, decided just without much comment in a report.They thought maybe that shouldn't be done. But I don't think that whether it should be done as a general practice, it should be controlling in this particular case. Now, the -- let me discuss the -- the rule a minute with you if I may. I don't think there's any prohibition in this rule. Certainly, there isn't of general references. They are used, they are contemplated, there is some special authority for limited issue references and Mr. Morris says on this, the scope of the reference maybe defined by the order of reference but is indicated by the use of the word "may" in the rule and the general grant of power given by the second sentence of subdivision (c) a reference containing no limitations is a general reference to report all the issues both the law in fact involved in a litigation, and most references are general references. That's my comment. The exceptional condition can't be limited to consent references that I think the court below would like to do, because the rule contemplates references without consent as I've already pointed out. That the special condition can't be matters of account because all are specially provided for. There isn't any limitation in the rule as to what type of circumstances the Court should consider but they must be exceptional. The lower courts and we review these cases, since the -- this really goes back to 1912, when they adopted the equity rules which are practically these same rules. Some differences but not in the most part (Inaudible0, and they have always considered congestion is one circumstance that could be from time to time considered. There are some cases to the contrary including the one we're reviewing. Now, the Court -- the Circuits have disagreed a little bit as to whether this exceptional circumstance must be inherent in the case or can be extraneous. In Kirkpatrick, the Third Circuit case and if we're doing the admiralty rule said the things must be inherent in the case, in the nature of the case. You couldn't consider the death of a judge or congestion. Perhaps, that's what's meant. I don't know. Other -- other courts such as our Circuit seem to think it should be extraneous are not in the case. That the case can't be in its nature such that it would be justified reference unless it's an accounting case. I think that both types should be considered, each case judged on its own and -- and either way you look at in this case, both the internal and the external circumstances were present. Now, the judge -- the judges below did some reasoning and I -- I can't follow this reasoning. It seems in like (Inaudible) to me. It says that in jury cases, this is a footnote to the majority claim. Only complicated cases can be referred. Now, of course, the jury thing came in with ex parte Peterson in the early 20s but under the immediate predecessors of these rules substantially the same. And they were justifying for the first time, the use of a -- of a master in a jury case. Now, obviously, the only reason for using it in the jury case is because it's too complicated for a jury, they want to straighten these accounts out a bit. That is the rational of that decision. The fact that that is the kind of a case that can be referred to a jury case, shouldn't at all mean that you couldn't consider the complication of the case in an equity case. That's the only kind of a jury case that can be referred and I think that's proper. Otherwise, your right to a jury trial becomes infringed. But the complicated cases have been the more common subjects of reference usually as the Court -- as our Court of Appeals said in that Adventures of Good Eating case that Mr. Levy quotes and the majority quotes and -- and what Judge Evans, who was a fine judge, used some good language in showing some of the evils of master's references, said there should have been one in that case. But that was a simple case and the reason he said it was, it only took eight hours to hear. Well, the judge could have heard it. The -- the -- what the judge says about a case that takes eight hours to hear, hardly should be applied, without at least some second thought and the case is going to take two months and involves 100 parties, each would claims against the other. Now, the complicated cases in equity are referred for a different reason in the law. It isn't because the judge can't handle them. Obviously, he can do better than his master. It's because, as Judge Hand said, in the Pennsylvania Railroad Number 32 case, which we cite in the brief. And -- and he said that the -- that the equity complicated case is referred because it takes a long time to hear and it's tedious. And it saves the judge's time and lets them get on with their business. I think it shouldn't be forbidden. Now, is -- the court below seemed to think that, as I read their footnote, that -- that you can refer more jury cases now than non-jury case. You can't refer complicated case in equity but you can at law with the jury. Well that seems ridiculous. Moore states that although, he says Rule 53 makes provisions for master and both jury and non-jury actions although, its chief use will be on non-jury actions. The court below doesn't seem to agree with that. And in ex parte Peterson where this Court authorized the use of a master, in a law case, in a jury case, the Court said this 253 U.S. at page 314, "But no reason exist." Now, owing to the differences in the character of the proceedings and of the questions ordinarily involved, the occasion for seeking such aid as is afforded by special masters' orders and examiners arises less frequently at law, than in equity. Well I think that's everybody's experience. We -- we never have reference in a jury case in Chicago. I never heard of one. And now, on the same case, ex parte Peterson, this Court said, "But no reason exists while a compulsory reference to an order simplify and clarify the issues and make tentative findings, may not be made at law when occasion rises as freely as compulsory references to special masters remain in equity." It's in -- in the non-jury cases that the references should be the more frequent. Now, then, why did the Court -- here's a discretionary order, it seems to be very reasonable, made by a judge who was very familiar with the case and had special problems because of du Pont. And why did they vacate it? Well they did it because they thought this Court simply had to. That's what they say. And they -- and they may base it on McCullough versus Cosgrave which in turn based on the James case that Judge Frankfurter mentioned. Now, in the James case, and in the McCullough case, the charges seemed to be very parallel. They charged that there was, in -- in effect, an agreement, a concert among the judges in a certain district in California to refer practically all patent cases to masters, to a master, a standing master, who heard nothing else and that they referred no other type of cases and they were discriminating against patent litigation.
Speaker: (Voice Overlap) -- Mr. Sprowl, is Mr. Collin practicing in actual practice?
James A. Sprowl: Yes, Mr. Collin is a -- a lawyer in a law firm and he's -- he engages in the practice of law.
Speaker: Well I gather then --
James A. Sprowl: He is not a standing master --
Speaker: No.
James A. Sprowl: -- but I will say, although the record doesn't show it that -- that -- because I know what, that Judge La Buy has referred cases more frequently than him than other masters.
Speaker: Have you standing masters?
James A. Sprowl: I'm not sure.
Felix Frankfurter: Do you put these in place now, rather (Inaudible) You know the ones standing by.
James A. Sprowl: Yes, they're authorized by the rule. I don't have a full --
Felix Frankfurter: Are there any -- are there --
James A. Sprowl: I -- I don't think Mr. (Inaudible) standing master, I'm not sure. If you would like to be informed I --
Felix Frankfurter: I just wondered, because if there are standing masters, then I think that -- that to me is wrong to employ on that.
James A. Sprowl: I'm not sure whether he is --
Felix Frankfurter: That's my recollection they are used in New York with Southern District of New York.
James A. Sprowl: The rule mentions them they can be had. I -- I'm trying to think he's not a standing master and that we have none. But I'm not sure.
Felix Frankfurter: That means there rather are profession on judiciary is rather hostile to what seems to me is the standard (Inaudible) This takes care of the reference question and those having received questions but that is not, as I understand it, the position or the attitude on part of (Inaudible)
James A. Sprowl: I will say because I know it so that Judge La Buy most frequently is -- referred to references when he asked them to this particular master.
William J. Brennan, Jr.: Does -- does this order contemplate to continuous years?
James A. Sprowl: I'd have to read the order. I -- I don't think so. I think master hearings are seldom continuous. They usually are discontinuous for the convenience of the parties.
William J. Brennan, Jr.: For the convenience of the parties?
James A. Sprowl: Well, I'm saying that's why they do it, I think. That's one of the reasons why we sometimes agree to a reference or don't object to it. The -- the orders are attached to the petitions for mandamus and one that says is, "shall commence the trial on May 2nd, 19 -- and shall thereafter continue with all reasonable diligence." It doesn't say it has to be continuous but obviously it should be more or less so. Now, I think that --
Felix Frankfurter: (Voice Overlap) -- when they come in on (Inaudible) once more. That I'm refreshing my recollection. I remember the McCullough case and I think the reference to the -- to the brief samples cited and filed and (Inaudible) As I remember that case, where just like the James case, it's not words, namely, there is a standing order to refer all type of cases to a master because there was congestion in the district.
James A. Sprowl: That was the charge and that's --
Felix Frankfurter: (Voice Overlap) -- that's a very -- and that -- that was precisely what was condemned in the James case.
James A. Sprowl: That's right.
Felix Frankfurter: In other words, the judges had been put conscious, leaving there too much to do, they will refer all patent cases to a master, and would copy the next order (Inaudible) to make something ordinary --
James A. Sprowl: That's right.
Felix Frankfurter: (Inaudible) that's the order of the condition.
James A. Sprowl: We have nothing like that here. Now, the -- the -- that is the fact in the -- in those two cases that led me and they have the dissenting judge below to feel that they didn't control this case.
Felix Frankfurter: I suppose the reason we disposed of the (Inaudible) by referring to the James case is because the James case fitted it like a glove, it was packed.
James A. Sprowl: I read the records, they're the same, except that in the second one, you have a conviction because of the fact that they never referred anything but these patent cases to the master and he was a standing master and he couldn't practice law and did nothing else that they were just sticking to that rule. Now -- now this Court --
Felix Frankfurter: But you didn't answer to the judiciary, Congress for one reason or the other, where there is sovereign of rights, didn't make the addition to the judiciary out of California had been requested to go judges said, “We'll dispose of it this way.” And the rule is against them.
James A. Sprowl: That's --
Felix Frankfurter: This Court says, they can't do it.
James A. Sprowl: That's the case. Incidentally, in the Roche case, that is what this Court said in the Roche opinion and that's how it characterized that McCullough versus Cosgrave and it was because they wanted the Court to have a clue in the Roche opinion that we heard is on the judge and what was it condemned was this persistent refusal to follow the rule. The -- the I'm referring all those with the kind of cases to the master. Now then, I -- I don't want to take very much more of your time but I am -- I would like to also discuss with you the power of the court that below, the issue of mandamus to correct an interlocutory order. On the basis of the Roche case and Bankers Life versus Holland, we think the court below did not have authority to review this interlocutory order since its jurisdiction was in no way threatened. It was going to get this case on appeal sooner or later. The -- I won't -- now, I won't take time to discuss those cases. They're discussed in the briefs and are recent and they're familiar to Your Honors. They are based on this. That the jurisdiction of the Court of Appeals is wholly statutory. That it has only appellate jurisdiction and that it's -- the right to review interlocutory appeals is strictly limited to certain types of appeals not including this one. And Roche and Bankers both condemned the efforts of Courts of Appeals to review interlocutory orders by using these extraordinary writs particularly mandamus and thereby, just slipping around at the end of the congressional bar. Now, it's important that they not be encouraged to interrupt. Now, take this case. It's been interrupted for a year and three quarters while we argue this one. Now, they might have had to pay some thousands of dollars to get the masters hearing but the case would have probably been decided if this hadn't occurred. And that evil is very eloquently discussed in the (Inaudible) case in the Third Circuit by Judge Goodrich or he -- he says talking now about forms now inconvenience reviews that they're going to just ruin the rule. If the courts review all those by mandamus and stop the cases while they do it. That they want to gain a thing we have lost. Now, I've already said that I have a good opinion of our Court of Appeals and there's a good feeling in the Circuit and there's no heat in this case. But, having said that, I want to say that I think the -- that our Court of Appeals does think it can review any order at once that it considers wrong by mandamus and I will rely on the two cases it cites for its right. And those were the two cases against Judge Igoe and filed in the Chicago Rock Island & Pacific. One is the 212 F.2d 378 and both of them are subsequent to the Roche and Bankers Life decisions in this Court. In that case, at page 380, the objection made to the issues of mandamus was the same as we're making, stated and this is from the Court's opinion, stated in the light most favor to respondent. The contention is that the granting or denying of a motion to transfer rests in a sound discretion of the trial court and the mandamus will not lie to review its disposition. So let me discuss Roche and Bankers and decide they can do it. They -- they that decided those don't stop them and they -- then they have remanded it. In this case, Judge Igoe had refused to send the case to another more convenient jurisdiction or one alleged to be over in Iowa, but he hadn't considered or the Court felt he hadn't considered the true ground specified in the statute. So, they remanded the cause of the District Court with directions to vacate the order and to reconsider petitioner's motion in the light of the views herein expressed. Then they said, on the decision on that motion is within the promise of the District Court and we cannot as petitioner would have us do, usurp its function and decide the question in this Court. But what have they do? Judge Igoe went back and heard it again including some new facts, including that the plaintiff had moved to Chicago and married a Chicago man or something. He refused the transfer and they issued another mandamus and made him transfer. And in that case, now this is the second time they certainly are controlling as to discretion. The -- the -- Judge Finnegan wrote a rather cogent dissent. He was all alone. It was an en banc decision. And he said, he refer -- use these words. That they were currently usurping the District Court's function to decide in the question in this Court. I think we now usurp where we once refrained. If we are substituting our discretion for that of respondent, we ought to say so and be done with it. I think they did in that case. I think they did in this case. Now, I don't think they do have the power or if they have the power and I don't care whether they have the power and shouldn't use it or whether they don't have the power. But they shouldn't use it. That's what Roche and Bankers Life say and they are using it. And perhaps it's trying to do a very good job in the Circuit but what, to be the effective it is, it interrupts these trials. And it's -- it's -- it does bother the District Courts in the carrying out of their work. Now, this idea of Roche and Bankers Life isn't new. The -- as long ago was, Maryland versus Soper, 270 U.S. 9. They said mandamus is an extraordinary remedy. This is the decision of this Court which in civil cases doesn't rely to compel the reversal of a decision either interlocutory or final made in the exercise of a lawful jurisdiction, especially where in regular course the decision maybe reviewed upon writ of error repealed.
Felix Frankfurter: If that was the case, that there is no -- that was a criminal case.
James A. Sprowl: It was a --
Felix Frankfurter: That would be non-exercise of mandamus made a man to have to stand a trial and conviction, all the rest of that.
James A. Sprowl: Not only that --
Felix Frankfurter: A convenience merely to determine the exercise of mandamus. You have it there and the (Inaudible)
James A. Sprowl: That's right. In the Soper case, they issued a writ to make them remand -- remand to the state court for a criminal trial and in all of those state court criminal cases, they have to do that because if there is an acquittal in the federal court there is no review at all. And the only way the -- there is no other remedy you see and the -- the right of this Court to review it is threatened. So, in the criminal cases they had this -- said in the Hardin case are all different because there is no review from an acquittal in a criminal case. Well, now, that is really all I have to say, I don't -- I thought that the court below had misconstrued the McCullough verus Cosgrave, I wasn't sure of it. I'm not sure of it yet. We would like a -- an interpretation and I think perhaps the Court of Appeals should not be encouraged to issue this peremptory writs of mandamus to control this question of trial judges. Thank you.
Earl Warren: Mr. Levy.
Jack I. Levy: May it please the Court. I should like at the outset to refer to some of the questions that were asked to Mr. Sprowl during the course of his argument. The first, Justice Frankfurter asked about any tendency in the Seventh Circuit to refer cases to masters. And Mr. Sprowl made reference to a case in which a judge said that there was some practice of that sort. Well, that case is Krinsley versus United Artists Corporation. It was decided on July 19th, 1956, and the judge who made that statement is the Chief Judge of the Seventh Circuit writing for a unanimous court. And what he said was, that references to masters are a practice all too common in the Northern District of Illinois.
Felix Frankfurter: When was that case?
Jack I. Levy: July 19th, 1956.
Felix Frankfurter: Is there a reference to that such?
Jack I. Levy: Yes, sir. It's cited in our brief.
Felix Frankfurter: Well I -- I -- in this case, are you prepared to say that there is a systematic or continuous practice comparable to the gain (Inaudible)
Jack I. Levy: I think sir that the remark of the Chief Judge who knows the situation on the circuit better that should be presumed, they know it better than anyone else, supplies that element if that element is necessary, but I'm prepared to demonstrate that that element is not necessary in order to invoke McCullough.
Felix Frankfurter: I understand it.
Jack I. Levy: Yes, sir.
Speaker: (Inaudible)
Jack I. Levy: Krinsley, K-R-I-N-S-L-E-Y versus United Artists. Secondly, I believe that Justice Clark asked whether any other antitrust cases have been referred recently in that Circuit. I off hand can think of four, Reivera versus Eastman Kodak Company, there's Krinsley case, the Meat Packers case which was brought by the Government and the Borden case which was also brought by the Government. As a matter of fact, in the the Borden case, when the reference was made, the Government filed a petition for mandamus in this Court to revoke the reference. It was filed to the October term in 1952 and immediately upon its filing, the District Judge who had referred the case revoked the order of reference so that the matter was never heard.
Felix Frankfurter: What's the name of that case, Krinsley?
Jack I. Levy: Krinsley.
Felix Frankfurter: Is it in your brief, respondent's brief?
Jack I. Levy: Yes, it is. Yes, sir.
Felix Frankfurter: (Inaudible) Krinsley.
Jack I. Levy: Krinsley, yes, sir. The question was asked as to what is the additional expense in these cases. The additional expense is, first of all, the master's fee and incidentally I know that the master's fee in the Krinsley case was $30,000. And I know all too well that although there had -- were never any proceedings before the master in this case, that pursuant to the order that he had the right to require the posting of security for his fees and the parties were called upon to post cash in the amount of $10,000. Neither Montgomery Ward & Company nor Howse Leather Company posted anything because of our objection to the reference and I don't know whether any of the other parties just what they did in that regard. But that's not the only additional expense. There is the expense of the court reporter which is extremely substantial. In our District Courts in Chicago, when we try a case, we have the services of the official reporter. And if I want part of the transcript, I order what I want and I pay for it, but that's all I pay for. I don't pay for the recorder's time. And ordinarily, in Chicago, our District Judges don't ask for a transcript of all of the testimony at the trial, and if they do, there is authority to the effect that the District Judge has a right to ask of the official reporter a transcript for his personal use without any additional compensation. In this case, Master Collin made it very clear at the outset that it would be his reporter, his choice of reporter who would take the -- the case. Another element of expense is the expense of Attorney's fees because when you try a case before a master, you try it, you brief it, you argue it, and the master issues his report. And then you go to the District Court and you brief it, first you have your delousing party files as objections to the report and you brief it and you argue it and you're really arguing it before a sort of intermediate appellate court because when you get before the District Judge, this master's findings are not reversible unless they are clearly erroneous. And that was the very point of the two appeals in Krinsley because when the first one came up, the Court of Appeals said, “You say the master is wrong, but you don't tell us exactly how.” And then when it came up the second time, the trial judge had told them exactly how. So that there are these additional Attorney's fees and I, in this case, am not only concerned about the additional Attorney's fees that will be chargeable to Howes Leather Company because of the additional work that I do. But I'd better worry about the additional work that Mr. Heisler does for the plaintiffs in this case, because if he wins, then, under Section 4 of the Clayton Act, he is going to recover a reasonable attorney's fee from the defendant and, of course they're reasonable most of the fee and the amount will depend on how much work he does.
William J. Brennan, Jr.: How about the stenographic cost, it's under the master's fees. Are they assessed as part of the cost against the losing party?
Jack I. Levy: The reporter's fees and the master's fees are ordinarily assessed as cost against the losing party. Of course, in Adventures in Good Eating, that case had been mentioned when that went up on appeal. The party who (Inaudible) the reference was charged with the cost of the reference even though he had won the case for the course here all parties have objected to their reference. With respect to the question of what has our Circuit felt about fees, our -- our Circuit expressed itself very ably and succinctly in the Adventures case. And they said litigants are entitled to a trial by the Court in every suit, say where exceptional circumstances are shown, it is a matter of common knowledge that references greatly increase the cost of litigation and delay and postpone the end of litigation. References are expensive and time consuming. The delay in some instances is unbelievably long. Likewise, the increase in cost is heavy. And they go on to say that for nearly half a century people have been railing against this thing and the litigants prefer and are entitled to the decision of the judge of the Court before whom the suit is brought. Now this delay is not inconsequential.
Earl Warren: May I ask what -- what you're reading from, Mr. Levy?
Jack I. Levy: Adventures in Good Eating versus Best Places to Eat which was decided by the Seventh Circuit in 1942, it's 131 F.2d 809.
Earl Warren: Yes.
Jack I. Levy: And it's cited in the brief. This delay, Mr. Sprowl mentioned that if we had been before the master we would evolve then round up by this time. Well if this case is as complicated as Mr. Sprowl makes it out and I assure you that it is not, and I am prepared to demonstrate, then, I would have to doubt that we would be through because this case, as Mr. Sprowl describes it is far more complicated than the Krinsley case for example, and you might be interested in what happened there. Hearings before the master commenced on February 20th, 1952. The proofs were closed on December 4, 1952. Now, someone asked about continuous hearings. Well, there were exactly 22 days in that period of nine months on which testimony was taken in the Krinsley case. The master filed his report four months later, April 21,1953 but the decree of the trial court wasn't entered until a year after that, March 17, 1954. So that when this Court of Appeals and our Circuit said that this delay is serious and not inconsequential, they knew what they were talking about. Now, there's one other item which I wanted to touch on before I go to the other points. Mr. Sprowl, has made much of this memorandum in which the defendants describe count one of the amended complaint as fantastically complicated et cetera. I was one of the signatories to that brief. That brief was filed in support of a motion to strike count one of the amended complaint. This was a long time ago in this case. Judge La Buy struck count one of the amended complaint, and mind you, that brief was only filed in the Rohlfing case, not in the Shaffer case. And, of course, here Judge La Buy referred two cases. When that brief was filed, there were 25 defendants in the Rohlfing case. There are now five, there were six at the time the reference was ordered in February, 1955. Since then, one other defendant has dropped by the wayside and they are now five. And I had great -- I would subscribe to that statement today if Rohlfing had 25 defendants and were in its original posture, but that wasn't the situation when this case was referred. And I don't really know what Mr. Sprowl's point is. He illustrates how complicated this case is. Certainly, he doesn't mean to say that Mr. Cowen, who is just a practicing lawyer like I, he doesn't mean to say that he's better qualified to decide this case with this Judge La Buy. That -- that would be ridiculous as he doesn't have the training and he doesn't have the experience that Judge La Buy has. And so the more complicated the case, I think perhaps, that's an argument for keeping it before the judge. And that's the basis, of course, for the difference in Rule 53 (b) with respect to the reference of jury cases where the issues are complicated and non-jury cases where complexity isn't mentioned. But the language there is that a non-jury action and Rohlfing and Shaffer are both non-jury actions. It shall be referred only upon a showing of some exceptional condition, which requires the reference. And there's good reason for that difference. Juries certainly complicated issues frequently are -- will escape them or will perhaps be dealt -- better dealt with if the case is referred. Now, as I have said, these cases, Rohlfing and Shaffer, which are private antitrust actions, they look bad when you look at the complaints. But all these private travel damage actions today look bad when you look at the complaint. The complaint isn't any -- isn't a reliable estimate of the complexity of the case. The judicial conference said that in the cases with which this report is concerned, and they weren't concerned with Rohlfing and Shaffer, they were concerned with cases like du Pont, Hartford-Empire, Ferguson versus Ford Motor, Alcoa. Now, you just can't talk about Rohlfing and Shaffer in the same breadth with those cases. In cases with which this report is concerned, complaints and charges are usually couched in broad terms and are met with general denials or demands for strict proof or for lack of information under the views of the function of pleadings which has prevailed in the Federal Rules of Civil Procedure. The complaint and answer cannot, in most cases, of the type now under discussion, be relied upon as the means of framing the issues with sufficient (Inaudible). And Mr. Brackmann Calister in his well-known article on the big case in 64 Harvard Larry. You said very often the complaint is of Gragner. The issue is imposed by it being far more comprehensive and elusive than any other put before a court. Of course, that's precisely the case here.
William J. Brennan, Jr.: (Inaudible) trial procedure of these cases before the reference?
Jack I. Levy: Sir.
William J. Brennan, Jr.: Was there any pretrial procedure in these cases?
Jack I. Levy: There never was a pretrial conference on either case.
William J. Brennan, Jr.: And he sought --
Jack I. Levy: The parties hadn't made any motion for pretrial conference.
William J. Brennan, Jr.: Is that the practice they're not to have one unless there is a motion?
Jack I. Levy: No, no. As a matter of fact, cases are quite generally as a regular proposition set for a pretrial. Now, these cases were never set.
William J. Brennan, Jr.: Any reason why not?
Jack I. Levy: I don't -- I can't answer that, sir.
Hugo L. Black: Are you going to tell us just exactly what are the issues as you see them?
Jack I. Levy: In that case, in Rohling and Shaffer?
Hugo L. Black: Yes, yes.
Jack I. Levy: Yes sir. I'll -- I'll be glad to do that right now. In Rohlfing 87 cobblers, shoemakers are suing for travel damages. And they are suing five defendants. They charged conspiracy to restrain trade and monopolize commerce trade Section 1 and Section 2 in Sherman.
Hugo L. Black: May I ask you if there's any complication added by the fact that there are 87 cobblers instead of one or would the issues be the same?
Jack I. Levy: I don't think so, Your Honor and as I'll care to demonstrate. They also charged violation of the Robinson-Patman Act, Section 2 (a) of the Clayton Act. Now, the charges made here that they also charge violation of Section 3 of Robinson-Patman. I don't think it's worthwhile taking the time of this Court to show that they don't, in either case. But if they do charge that then on the same basis which would support that statement they also charge violation of the interlocking bank director section of the Clayton Act and competitive bidding and securities dealings as they mentioned in their complaint, those sections too. Now, Rohlfing brought by this 87 shoemakers, they claimed that they have been discriminated against in the sales of shoe findings as contrasted with chains or with large buyers. As I have said, there are five defendants in that case. The two manufacturing defendants in that case didn't sell anything to any plaintiff. Judge La Buy acknowledged that and that's referred to in our brief. So, there weren't any sales by them to any of these plaintiffs. Two of these defendants are allegedly preferred buyers, the people who got the break. So, they didn't sell anything to any of these plaintiffs. And the remaining defendant in Rohlfing, the fifth defendant is a wholesaler who went out of business in September 1950, about four months after the case was started, and it appears from the record that he only sold to two of the plaintiffs. So, how you get these fantastic bunch or mess of sales that will have to be probed in this case, I fail to see it.
Felix Frankfurter: Did you see the plaintiff -- do you say the plaintiff will just ordinary Chicago cobblers?
Jack I. Levy: Yes, sir.
Felix Frankfurter: You mean people (Inaudible)
Jack I. Levy: Yes, sir, a shoe repairman.
Felix Frankfurter: (Inaudible)
Jack I. Levy: Yes, sir.
Felix Frankfurter: Now, what was the (Inaudible) the Sherman law in violation?
Jack I. Levy: I -- I've read the complaint many times. They claim that there was a conspiracy to monopolize the shoe repair trade in the Chicago area. That there was a conspiracy to restrain them in their trade. It's the usual general sort of thing that --
Felix Frankfurter: To file the issue (Inaudible) or any question of (Inaudible) in the State were raised?
Jack I. Levy: There is a question of commerce raised by some of the --
Felix Frankfurter: How was it raised?(Voice Overlap) --
Jack I. Levy: -- by some of the answers.
Felix Frankfurter: You may be denied if you came with (Inaudible)
Jack I. Levy: Yes. Some of the --
Felix Frankfurter: -- but that issue to that brief for the master, of course. A raise in the business or radiation?
Jack I. Levy: I should think so because they're confined if they only talk in terms of the Chicago Metropolitan area. And I think the facts will show that none of these cobblers ever bought anything except from local wholesalers in Chicago, who didn't do business anywhere else. Of course, that's -- remains to be seen whether that proof will show them.
Stanley Reed: You mean the sole chief of the sales (Inaudible) reward to these other people.
Jack I. Levy: Correct. Correct, that's really the -- the case. But nobody left in this Rohlfing case ever sold to any plaintiff except one defendant and that defendant's been out of business in September, 1950. And the record shows he only sold to two of -- of the 87. Now, in the other case, Shaffer by -- and no one can possibly claim that Shaffer is -- is fantastically complicated. Shaffer started out, there were 10 wholesalers in the Chicago area. They sued a number of companies claiming that they didn't get the same break as some favored that wholesalers got or even some retail chain defendants. Well, there again, it's true it was a -- there were a lot of people in the case when it got started. But today, there are six wholesalers suing five defendants two are leather manufacturers. One makes shoe polish, one is a shoe repair chain, and the other is a wholesaler who went out of business from September, 1950, the same wholesaler.
Stanley Reed: You say the day, what -- what were the facts in time in order (Inaudible)
Jack I. Levy: The time the order reference, Your Honor in -- now there are five defendants in each case at the time of the order of reference. There was one other defendant in each case, Griffin -- Griffin shoe polish -- Griffin shoe polish. There again, in Shaffer, I -- I could detail what the sales -- the sales of the defendants but there again there's only one defendant who sold to five of the present plaintiffs. These cases are monumental, there -- we see cases like this all the time and this either Rohlfing at one time was a class action. We got rid of that. There were 200 -- I believe 257 antitrust cases filed in the -- in the federal courts, government and private in the year which ended June 30th, 1956. Well, I would venture to say that most of those cases would make Rohlfing and Shaffer in its present posture look very tame indeed as they are. They certainly dealt -- stand in the class with du Pont, which Mr. Sprowl has mentioned. These orders of reference of these two cases were entered without there having been any previous mention of a reference. These cases have been in this Court for several years. And then the references were made. And they were made over the objections of all of the parties. And a motion made by all of the parties to revoke the orders of reference were denied. And then the petitions were filed with the Court of Appeals for a writ of mandamus.
Speaker: What was the occasion for the question or reference coming out? Was the case about to be tried?
Jack I. Levy: The Rohlfing case had come on for a trial, Your Honor. And the plaintiffs made a motion for a continuance. And the -- the judge referred the cases. That's not the first time that case had been up for up for a trial, however.
Felix Frankfurter: What were the grounds for continuing on which it continue throughout?
Jack I. Levy: By the plaintiffs?
Felix Frankfurter: Yes.
Jack I. Levy: They said they wanted to pursue some more discovery.
Felix Frankfurter: What?
Jack I. Levy: Pursue some more discovery.
Felix Frankfurter: Did you ask for any trial?
Jack I. Levy: I asked for a trial on that day I was ready, but I -- I was ready for a trial before a judge not before a master.
Felix Frankfurter: Had there been a discovery in part already?
Jack I. Levy: Oh, yes considerable discovery, very extensive discovery.
Felix Frankfurter: What -- what kind of issue this occasionally except what you indicated, what was the discovery about?
Jack I. Levy: Oh there, I -- I agree with you Justice Frankfurter. I never saw any -- I didn't see any reason for most of it and I -- I --
Felix Frankfurter: (Inaudible)
Jack I. Levy: No I -- well I agree with you and I -- I can't answer that. I can't explain it.
Felix Frankfurter: If (Inaudible) the -- the discovery was -- was directed by the judge on appropriate motion?
Jack I. Levy: I objected for example to --
Felix Frankfurter: I know. Was that passed on by the judge?
Jack I. Levy: Oh, yes. Yes.
Felix Frankfurter: And that was a private issue when we passed on?
Jack I. Levy: Objections to interrogatories? Answer The interrogatories and so on.
Felix Frankfurter: And that good many of them were all standing still and they wanted some more? Is that --
Jack I. Levy: No, I think that these last ones were dreamed up in the -- the very few days before the case came up on the trial court. Some of them sounded brand new to me. I haven't heard of them before.
Felix Frankfurter: And the suggestion of reference was spontaneously made by the judge is it not?
Jack I. Levy: Yes, sir.
Felix Frankfurter: The question to the plaintiff.
Jack I. Levy: No, suggestion.
Felix Frankfurter: They were in this --
Jack I. Levy: Oh, yes. There was only one reason assigned in this order for the reference. And that was the Court being confronted with an extremely congested (Inaudible) and finding that exceptional conditions exists for this reason is the -- the opinion that this case can be most adequately and intelligently presented to the Court for ultimate disposition by reference to a master. When Judge La Buy filed his answer to the petitions for mandamus, he expanded that somewhat and said that the cases were very complicated and complex and would necessarily take considerable time to try and that his calendar was congested with many cases long delayed.
William J. Brennan, Jr.: How much time has been set aside from the trial at the time when the continuance was sold?
Jack I. Levy: He hadn't said any time sir.
William J. Brennan, Jr.: Except for the continuance that you'd contemplated going right through the trial?
Jack I. Levy: Oh yes.
William J. Brennan, Jr.: And to pleading it however long it took.
Jack I. Levy: But he -- he told us that there -- that he wouldn't -- he want to refer the case to the master.
William J. Brennan, Jr.: Whether except for the application for continuance, was he prepared then for the trial?
Jack I. Levy: I believe he said not.
William J. Brennan, Jr.: He said not.
Jack I. Levy: Yes.
William J. Brennan, Jr.: So that the application for continuance then to take further discovery was not the reason, he made the reference.
Jack I. Levy: Oh no. I -- I -- he said that his reason was the -- the congestion of his calendar as he stated in the order and as he -- and of course as he stated in the answer. Now, those reasons have now been expanded and they were expanded in the briefs in the Court of Appeals. There that the cases are complicated that a detailed accounting analysis was required. I don't believe that he means to say this is a matter of account under Rule 53 (b) which would -- is one of the exceptions for reference (Voice Overlap) --
Felix Frankfurter: Mr. Levy, may I (Inaudible) to tell me what's the date of the order of reference was?
Jack I. Levy: The date of the order of reference was February 24, 1955.
Felix Frankfurter: Would it be easy that's even directed here, the administrative law doesn't show on what judicial business Judge La Buy was engaged in the six months following? What kind of case did he try? Or --
Jack I. Levy: I don't --
Felix Frankfurter: -- or judicial business?
Jack I. Levy: I don't know whether the records of the administrative office would show them or not.
Felix Frankfurter: Even if he got and referred to the office if it's the northern district.
Jack I. Levy: That seems so.
Hugo L. Black: What was the showing made yesterday? Complicated nature in cases, do you say that the -- the judgment ordered the master.He relied on one ground only.
Jack I. Levy: That's correct.
Hugo L. Black: How does -- how do we get before us additional grounds?
Jack I. Levy: Judge La Buy in his answer to the petitions for mandamus said that the cases were complicated.
Hugo L. Black: Was that denied?
Jack I. Levy: No, sir. There was no reply filed to his answer, but at the time that he was --
Hugo L. Black: We accept -- we have to accept that because it was denied or do we --
Jack I. Levy: No, I don't believe so.
Hugo L. Black: -- the judgment or what do we know.
Jack I. Levy: No, I don't believe so because I think that the matter before this Court is whether or not, the writ of mandamus should have issued to revoke the order of reference.
Felix Frankfurter: Well, this, the answer from the judge was after the petition of mandamus by the Court of Appeals, is that right?
Jack I. Levy: Yes sir, it was.
Felix Frankfurter: Because the matter came to the Court of Appeals was a (Inaudible) on the basis of which petition for mandamus.
Jack I. Levy: Yes, sir.
Felix Frankfurter: And he could justify on whatever way he could justify.
Jack I. Levy: Well, yes.
Hugo L. Black: And that was not denied but we have to take it as truth.
Jack I. Levy: I am perfectly willing that -- that you -- that is because complicated issues are not a ground for reference to the jury case, and of course, what he said can't change the actual facts of the case. The -- the cases are whatever they are. The Rule 53 (b) which is -- Mr. Sprowl has indicated reflects a policy that is obtained ever since 1912 in Equity Rule 59. It does contain very strong language as -- as we have indicated. It seems to us that it is -- if you say that you can only refer a non-jury case upon a showing of some exceptional condition which requires the reference that -- that an order such as the order of reference entered here which says I refer these cases because my calendar has congested cannot stand, because there's nothing exceptional about congestion of the calendar. In Mr. Chandler's last report for the fiscal year entered July 30, 1956, he said as there all of us know at the present time the congestion and delay in the civil calendars of the District Courts are so much the most serious problem in the administration of justice that in this report I consider first the civil business. And that isn't a new thing. That isn't something that just happened in the last fiscal year, because as he points out there, in his report, that 1956 is the first year since 1951 in which the District Courts disposed the Moore cases and were filed. And, of course, if you read Judge La Buy's answers to the petitions for mandamus, you'll find that he has been in a congested state for at least six years prior to the time that he heard du Pont because his answer sets out the dates when he heard du Pont. He sets out these other so-called big cases that he heard prior to du Pont, so that he -- there was nothing exceptional about this with him. And there's nothing exceptional about -- about it so far as any of the federal courts are concerned. We all know their -- their problem. But in the -- but the significant thing is that no one in all this talk about curing congestion suggests that we cure it by reference of cases to masters. As a matter of fact, the recommendations are the contrary. They reject any such notion. The judicial conferences done at the (Inaudible) report. The practice and procedure committee of the antitrust section the American Bar Association which has struggled with this problem. And Los Angeles Brush, which has been mentioned, certainly, didn't hold that congestion is an exceptional condition which requires a reference. All that they said there was that we are not inclining to hold that there may not sometimes be such a congestion in the docket as to criminal cases. There's nothing said here about Judge La Buy sets out the number of types of all cases that he has but there's no finding here, there wasn't James but there were criminal cases which were entitled to be tried first if there was any congestion in the criminal docket as we justify a District Judge and not literally comply. And in McCullough versus Cosgrave, which I contend is the case which held that congestion plus wasn't enough. Because in that case, the Court said there's congestion, the judge to whom the case is assigned is ill. There is no other available judge. The case has been pending a long time, it's complicated, and it will require a long trial.
Felix Frankfurter: But they had a systematic practice.
Jack I. Levy: That's what I'm coming to, Justice Frankfurter. That case came on for hearing and original application in this Court on the petition and upon the sworn answer of Judge Cosgrave. And that was not disputed according to the record. And in his sworn answer, Judge Cosgrave denied that there was any general practice to refer cases. He denied that there was any general practice to refer patent cases. He denied that there was any discrimination against patent litigants. He alleged that compulsory references were very exceptional and were made only under exceptional conditions and that there was no deviation for patent cases. He denied the maintenance of a Special Masters Court from the time of James oath. And he pointed out that there had been 12 compulsory references in 13 years in that District Court.
Felix Frankfurter: He had a standing (Inaudible)
Jack I. Levy: He denied that they could maintained that Special Masters Court and I assume that's what was meant by standing masters.
Felix Frankfurter: (Inaudible)
Jack I. Levy: And that there had been 12 compulsory references in 13 years in January 1, 1927 and March of 1940.Three of those were McCullough. There were three cases referred in McCullough. And in seven of those cases where there were compulsory references over objection, in seven of them they were pure formal objections just so that the parties wouldn't be bound by the findings of the master. There was no objection on the ground, there's no exceptional condition of system. So, in essence, when you -- you look at the record in McCullough, McCullough isn't any different from our case except that the showing in McCollough was stronger in the order of reference. The showing of the exceptional condition was stronger than it was in these two cases. If an element of persistent disregard of the rules is necessary, that means then, of course, that the -- the trial judges can refer cases until somebody finally decides that there's a persistent disregard of the rules. I think if the Chief Judge of the Seventh Circuit is to be believed, I think that element has been supplied by this statement of principal.
Felix Frankfurter: I don't see how you could say that -- that remark. In the first place, he doesn't say Judge La Buy went under your (Inaudible) because of the tendency. He may make think you ought to have no reference of how you can say that that is comparable to the James situation or on the assumption that is going through the same and the way we act as the Cosgrave case -- case that we have because he says there's a tendency. I might be your (Inaudible) in the record, which I can understand. How you can present not just to say that this is a finding that there was a persistence. I'm not suggesting that, that alone is enough because it's true it doesn't say that. It goes to next order of decision. But I think if persistence. I haven't a standing way of doing it satisfied. That it can't be extraordinary but it's always done.
Jack I. Levy: He says a practice.
Felix Frankfurter: I've got the exact words here. All your practice (Inaudible) District of Illinois. Now, I don't know, maybe Judge La Buy is exceptional. How you can therefore say that this particular thing demonstrates an absence of those unusual circumstances, I don't quite see.
Jack I. Levy: I think it's significant to the note that Judge Cosgrave, who is the respondent in McCullough, had in two instances, in all the time he had been on the bench which at that time was ten years, had made two compulsory references, had made in -- in only two instances had made compulsory references over objection and the three references in McCullough were one of those instances.
Felix Frankfurter: Do you know how many references Judge La Buy made over a period of years in view of Mr. Sprowl's decision?
Jack I. Levy: Well, Judge La Buy says in his answer that in a period of -- in a period of six years, he referred nine matters exclusive of the two cases here so that would be 11 and I assume --
Felix Frankfurter: There were miscellaneous cases and one --
Jack I. Levy: I -- he says that four of them were unlimited matters I assume that.
Felix Frankfurter: On what matters?
Jack I. Levy: Limited -- limited matters on limited issues.
Felix Frankfurter: You mean unaccounted --
Jack I. Levy: Unlimited issue. I don't know that they were accounted but I assume those figures are right.
Felix Frankfurter: How many -- how many just (Inaudible) of this?
Jack I. Levy: Eight.
Felix Frankfurter: Eight.
Jack I. Levy: Yes, sir.
Felix Frankfurter: Could you tell us what the system is about trying criminal cases, do the -- do they -- how many accept the criminal cases is there?
Jack I. Levy: All of the judges.
Felix Frankfurter: Well, all the time?
Jack I. Levy: Yes, sir.
Felix Frankfurter: All the time?
Jack I. Levy: Yes, sir.
Felix Frankfurter: Do you mean the eight criminal trials are going on today?
Jack I. Levy: Well, oh -- there may or may not be. In other words, there are no judges who just try criminal cases.
Felix Frankfurter: Not just the criminal -- criminal statutes set aside in which judges A or B presides for two months.
Jack I. Levy: No, sir. Each judge has a counter and he takes things as they come. Cases are assigned in rotation. Civil --
Felix Frankfurter: Don't -- you don't mix up civil and criminal cases. That doesn't try a criminal case to set us up if there was any (Inaudible)
Jack I. Levy: It might be very well, yes sir.
Felix Frankfurter: Yes.
Jack I. Levy: Yes, sir.
Felix Frankfurter: All right then.
Tom C. Clark: And the civil cases now (Inaudible)
Jack I. Levy: It's rotation. I'm quite sure, Judge -- Justice Clark. You never know when you file your case what judge -- the judge's name whom it'd be assigned but it's a -- it is a rotation process --
Speaker: (Inaudible)
Jack I. Levy: -- so that there's a more or less even numerical distribution.
Tom C. Clark: And you can't talk through, well that's getting after (Inaudible) appears preliminary matters.
Jack I. Levy: No, sir. We have no motion judge.
Tom C. Clark: Same judge has the motion to cut out the case.
Jack I. Levy: Yes, sir. He may not ultimately try the case. There are instances where cases are transferred by the Executive Committee of the Court. As a matter of fact, I suggested to Judge La Buy in a -- the time I -- we were objecting these references that he considered asking the senior judge of the Northern District Judge Barns to consider reassignment of this case to another judge. I said that perhaps, if it were brought to the attention of the chief judge of the Seventh Circuit, he might get a retired judge or some other judge from within or without the Circuit to hear the case. Those suggestions were summarily rejected. And, of course, it isn't just a question of what is Judge La Buy's situation. These cases are pending in the District Court. We want a trial by a federal judge, not necessarily Judge La Buy. And the Court of Appeals didn't order to Judge La Buy to try these cases. The Court of Appeals said they shall be tried by the District Court just what Your Honor said or what this Court said in -- in McCullough. It's not -- this is not a -- a personal matter, as far as Judge La Buy is concerned. This is a -- a -- we -- we are convinced that there has been a violation of the rules and that we're entitled to a trial by a federal judge. His own particular calendar, what difference does that make? It's a -- a question of what is the situation in the district.
Tom C. Clark: And as I understood though, I misunderstood it then. The case is assigned, I don't know how, I suppose your Chief Justice. It goes to judge A and then he has to influence, doesn't he?
Jack I. Levy: Yes, but there are the cases are as Mr. Sprowl told Your Honors, yesterday, there are instances when cases are turned over. For example, when Judge La Buy had du Pont, other judges helped out. There is no -- nothing ironclad it. There's nothing wrong with transferring cases. As a matter of fact, as I recall it, the Shaffer case was not originally assigned to Judge La Buy. And I don't recall just how it did happen to get there. I think when they appointed some new judges, some of these cases were shuffled around.
Speaker: Well, is there someone who can order a transfer or is it a that there's a transfer only if one judge agrees to help another judge out?
Jack I. Levy: Oh, no. They -- they have in the District Court, I -- I believe, this is accurate. They have what they call the Executive Committee. They speak about transferring a case to the Executive Committee for reassignment. And I don't think it's just the senior judge. I'm not quite sure just how that works but they handle the administration with the courts.
William J. Brennan, Jr.: Well, otherwise, do I understand that each judge handles his own calendar pretty much as he --
Jack I. Levy: Yes.
William J. Brennan, Jr.: -- determines -- it should be --
Jack I. Levy: That he's on vacation or something like that then you will go and report to some other judge who'll be hearing that judge's motions.
William J. Brennan, Jr.: But he determines what the order of the trial shall be of the cases on his calendar whether criminal or civil.
Jack I. Levy: Yes, sir.
Felix Frankfurter: But it is true, isn't it true, that a judge keeps a case and the motion, as he is -- an interlocutory motion. Is that a motion calendar up there?
Jack I. Levy: No, sir.
Felix Frankfurter: So, does that continue to -- is it the fact that there -- you have it on a regular day when somebody makes a motion?
Jack I. Levy: No, sir. If I wish to --
Felix Frankfurter: If the motion has to be made, it's made before the judge who has that case, is that right?
Jack I. Levy: Yes, sir. If I were to make a motion on the Rohlfing case, I would decide what day I wanted to make the motion. I would serve notice that I would appear before Judge La Buy on that date. And I would be there and I would hand the motion slip to his clerk and his clerk would collate and I would present the motion.
Felix Frankfurter: Suppose you have a new -- suppose there's just -- it is -- to satisfy my curiosity (Inaudible) motion, suppose you want to enjoin from that from your safe court before whom do you go, anybody you wanted?
Jack I. Levy: An original proceeding like that, I would go --
Felix Frankfurter: (Inaudible)
Jack I. Levy: -- I would go if --
Felix Frankfurter: -- to the court?
Jack I. Levy: -- there were no pending case, I would go to the --
Felix Frankfurter: No pending case.
Jack I. Levy: Yes. I would go into the clerk's office and the clerk would tell me where to go.
Felix Frankfurter: Well, how would he determine that?
Jack I. Levy: That would be on the basis of his rotation system, very likely.
Speaker: (Inaudible)
Jack I. Levy: But that's how I would do it. I would do --
Felix Frankfurter: That's on regular motion counter.
Jack I. Levy: No, sir.
Felix Frankfurter: All right.
Jack I. Levy: The petitioner in this case denies that the Court of Appeals has the power to mandamus. He says right or wrong. Of course, if that is true, then Rule 53 (b) is what the Seventh Circuit said in the Irving-Austin case, a mere academic pronouncement. However, this Court will note that there is no question about the statutory authority of the Court of Appeals. It has the same statutory authority as this Court has because it's under Rule 1651 (a). And I think as has been delineated on our brief, precisely the same power that this Court had prior to the enactment of the All Writs Act in 1948. In ex parte Peru, all the Members of the Court, including the dissenting justices agreed that the Court of Appeals had the same power as the Supreme Court. The -- the reason that the Supreme Court Act is there in the view of the majority was because there were unusual circumstances which justified the -- this Court in acting on the original application.
Felix Frankfurter: You're -- you're familiar with the fact that judgment was (Inaudible)
Jack I. Levy: I certainly am, sir. And Judge Magruder in the Josephson case, in dealing with an application for mandamus to revoke an order transferring a --a case from Judge Wyzanski's calendar to the federal court in the southwest, said that the cases that this Court decided before 1948, before the passage of the All Writs Act, were not authority for issuance of mandamus by a Court of Appeals. I respectfully suggest that Judge Magruder is wrong because you can't read cases like Peru or Roche and without seeing that this Court has said on more than one occasion, that its power to issue mandamus under what was originally Section 13 of the Judiciary Act of 1789 was confined constitutionally to those instances in which the writ was in aid of its appellate jurisdiction. But getting the original jurisdiction to promote as the original jurisdiction would have no application here. It has defined the power of the Court of Appeals under what was Section 14 of that Judiciary Act as precisely the same -- precisely the same. And there are those cases where this Court said, we won't issue the writ of mandamus to the District Court on original application because there are no unusual circumstances which should make us take jurisdiction, take the case. But go to the Court of Appeals, that's where you belong. That's really what I think they said in James. And in McCullough versus Cosgrave, that persistent disregard of the rules or this policy which Justice Frankfurter speaks, that could very well be the reason for this Court's entertaining the original application. James was merely cited to the Court in that case in the petition for mandamus as authority for the power. That was the only mention made. I don't mean that this Court makes its own investigation of the law. But I think that fact is significant. As I have said, the All Writs Act changed nothing. Petitioner argues that it did. Well, petitioner must argue that, as Judge Magruder must argue that, in the Josephson case because that is vital if he is to get rid of the authority as McCullough. But the fact is that the powers were the same, and as a matter of fact when 1651 (a) was enacted, the revisers notes tell us that these former statutes, one of which dealt with the Supreme Court's power to mandamus, and one of which dealt with the Supreme Court and all other courts' power to issue extraordinary writs, they were eliminated as unnecessary. Now if they were unnecessary and certainly the old Section 13, which became Section 342 couldn't have given this Court some power that it doesn't have under the present statute, which applies to all courts alike. I want to call this Court's attention to the fact that there is no remedy by appeal in this case. In par, granted that it was a -- a rough remedy, perhaps, because he could have a very unpleasant experience in the mean time, but this Court was very careful to point out that he did have a remedy on appeal. In Bankers Life, it was conceded that there was a remedy on appeal. In Roche, there was a remedy on appeal. In Roberts, the case of the indigent prisoner, he had -- he could start over again. He had some other remedy. But here, there isn't any remedy.
Felix Frankfurter: That doesn't follow because there's no remedy from an interlocutory order, that an appeal is allowed by an Act of Congress. That's not a logical conclusion. That's merely an exercise by Congress in determining what is and wasn't appealable by a specific court.
Jack I. Levy: I understand that, sir. But whether or not, there is a remedy by appeal, is a factor which this Court and other courts take into consideration in determining whether in their sound discretion, they will issue the extraordinary writ of mandamus.
Felix Frankfurter: If they --
Jack I. Levy: And that's --
Felix Frankfurter: -- if they have, before you exercise sound discretion, you must have it.
Jack I. Levy: I think there's no question about that, sir --
Felix Frankfurter: (Inaudible)
Jack I. Levy: -- by reason of the statute --
Felix Frankfurter: Yes.
Jack I. Levy: -- the All Writs Act. And that's precisely what the Court of Appeals has done here. They have, in their sound discretion, issued mandamus.
Stanley Reed: When you say no remedy, you mean no remedy for the interlocutory order?
Jack I. Levy: No, sir. I mean this. That on final review, these parties who have objected to the reference and they would, of course, be the losing party, won't be able to say, this case should be reversed because it shouldn't have been tried by a master. Furthermore where (Voice Overlap) --
Felix Frankfurter: Why not -- why not?
Jack I. Levy: Adventures in Good Eating holds that in our Circuit.
Felix Frankfurter: Well I'm not talking about your Circuit. But why not? If a reference was made beyond the power of the Court, any result from that reference is something you haven't and that's contendedly determined, too.
Jack I. Levy: I can only say to Your Honor, that the two cases in which it was raised. I -- I can point to two cases. They're cited in our brief and -- and really three cases, where on final appeal, the appellate court condemned the references but did not reverse.
Felix Frankfurter: In your -- in your Circuit, they profess to have power to review the record.
Jack I. Levy: That wasn't only our Circuit.
Felix Frankfurter: Therefore -- therefore, if no question was made as to the reference when, at the time it was made, of course, you can't ask for a (Inaudible)
Jack I. Levy: In these cases to which I refer and which appear in our brief and which were not just Seventh Circuit cases, the point currently was made and preserved below, as a matter of fact.
Felix Frankfurter: Was -- was it that these cases arise in Circuit things which denied the power to review the order of reference?
Jack I. Levy: Well, the only Circuit I know like that, and there I would confine it to the limited situation before Judge Magruder, is the First Circuit.
Felix Frankfurter: What about the Third?
Jack I. Levy: The Third Circuit mandamus to revoke a reference in United States versus Kirkpatrick, which is cited in our brief. That was the case that Mr. Sprowl mentioned. That was the Third Circuit.
Felix Frankfurter: What about the earlier cases do they uphold Third Circuit should have sat en banc and pointed out the difficulties of this problem?
Jack I. Levy: That was a transfer case.
Felix Frankfurter: That was a transfer case.
Jack I. Levy: Yes. There is that case but the square case so far as this case is concerned is United States versus Kirkpatrick in the Third Circuit. And in the Adventures in Good Eating, for example, they said the -- the reference was wrong and, therefore, will lay the cost on the plaintiff who asked for the reference, even though he won the case. But of course, here, everyone is subjected to reference.
Tom C. Clark: Who could be laid on the other?
Jack I. Levy: Sir?
Tom C. Clark: Who could be laid on the other and is likely to do it?
Jack I. Levy: I don't know. I'm hoping it won't be me.[Laughter] There has been a -- a lot said here about this case is going to end references. This case won't end references. This is -- this case shouldn't end references, it can't. I don't think this case has done anything that we didn't know before. And there are still going to be cases referred, jury cases where the issues are complicated. There will be not -- there will be merits of account referred, there will be non-jury actions referred, where exceptional conditions required a reference. And, of course, there'll be any number of cases referred where the parties agree to the reference or where they don't object. This will not -- this decision does not hamper the courts -- it doesn't hamper the Court.
Felix Frankfurter: In your view that in each case the Court of Appeals is not what is for, must pass on the specific circumstances in a particular case an ex parte judgment under the conditions (Inaudible)
Jack I. Levy: No, sir.
Felix Frankfurter: How could you avoid that?
Jack I. Levy: I think --
Felix Frankfurter: Unless you got the same situation, it's just a matter of time.
Jack I. Levy: Well, I don't think this Court, in the first place, would ever entertain a writ unless there were some very important question on a -- on a national basis.
Felix Frankfurter: Well, here there was a company to abuse the Circuit on the mandate which is important?
Jack I. Levy: Well, I don't think -- well (Inaudible) which is the case in the First Circuit which wouldn't revoke the reference. The reference was 100% right in that case. There, they had eight jury cases consolidated for trial. They were (Inaudible) broad cases where the defendants counterclaim for travel damages on the antitrust laws, complicated indeed, jury cases. And the rule says where the issues are complicated, you can refer only where the issues are complicated. Well, they were complicated and that's what the District Judge said and he referred. And then there was a petition for writ of mandamus filed in the Court of Appeals. And they didn't say they didn't have the power. They said they didn't want to go into anticipatory review.
James A. Sprowl: If the Court please.
Earl Warren: Mr. Sprowl.
James A. Sprowl: I think I have a few moments for reply. I'd like to answer the last point first, just because in my mind, in that Narragansett case, the petition for mandamus was not filed in the Court of -- the First Circuit refused to permit it to be filed. They didn't reach the merits. They said it won't -- a remedy doesn't exist. The Kirkpatrick case in the Third Circuit that he mentioned just before, as a case exactly like Cosgrave. There was a practice in that Circuit in referring all admiralty cases to a standing master. It was the practice, it was the habit or the concerted habit of referring these admiralty cases in group to the master that was condemned in that case. It's a case exactly like Cosgrave. And that's very clear from the opinion. The -- the circuits that do not think they have the power are the Fourth Circuit which just decided a case since my original brief was filed and which is in the reply brief and is Clayton against Warlick, 232 F.2d 699, which joins the First Circuit and the Eighth Circuit and the Third Circuit, I would say, in the view we take of the All Writs Act. Now, I -- I must take exception to Mr. Levy's statement of the facts of the case. I didn't think I would have to do it. The brief he filed, and I read from, didn't move to strike count one of that complaint, as he said. I read from page 201 of the record. "Memorandum and support of motion to strike amended complaint." It was the entire complaint. If he says it makes no difference, there are 87 plaintiffs, why did he insist and get Judge La Buy to agree with them, that they must be set up in some 87 separate counts? That was because they were separate claims and he so argued and still so argues. I will let the Court look at the brief which is set forth in full at page 201 in the next two or three pages. They set up the -- the issues as they see them and these are the defendants now. I am reading from on page 203 as the monopolization complaints paragraph 13 (a).
Felix Frankfurter: Where are you reading from?
James A. Sprowl: Page 203. May I --
Felix Frankfurter: (Inaudible)
James A. Sprowl: Page 201 is where they show what they're attacking in the entire complaint and then -- the part I read to the Court before is from 207 where they're talking about the trial. Now, he sees they're all talking about count one, but from what I read before, they say there may be ten in each count from count two to count 105. They're not talking about count one. And this case, that I challenge, I don't represent this plaintiffs and I haven't had any water to carry for them. I'm a little disadvantaged and not be in the case to know exactly what the evidence will be, but this is very clear from reading the judge's opinions which I read, that the defendants are trying to get somewhere by showing that some of them didn't sell to the plaintiffs. And the thing complained of, obviously is, that there is a conspiracy altogether that certain middlemen give the break to certain favored customers. And it isn't the manufacturing defendants that do sell to the plaintiffs it's that some middleman who were involved. That doesn't make the case any less complicated or make it any less, 87 lawsuits, it just can't. Judge La Buy's opinion sets up the issues and that appears at 15 Federal Rules decisions, page 44, where he sets up the issues in the case. Now, Mr. Levy, has been out of the record more than any. I don't mind the Court having any information that is accurate. The Krinsley case was not an antitrust case. If you read the opinion, that it -- it arose out of an antitrust background. It was not an antitrust case. The Court expressly saw how. That's the one where the Court said there too many references. That was Judge Campbell's case not Judge La Buy's. There's nothing in the reporter of -- in this record about a court reporter before the master or anything about what the fees would be. Assuming that Mr. Levy is correct and I don't doubt that, that the master asked for a deposit, that is provided by the rule, Rule 53. It was provided by the order. It would amount to about $400 for reach of these defendants and around $80 for each plaintiff which is certainly nothing exorbitant. Now, he read at length from Adventures in Good Eating case about master fees being large and expensive. The fees there where it had said to be reasonable, there were about $450, as I remembered. It was an eight-hour hearing. The thing that the Court didn't like was that the Court would refer an eight-hour case to a master. Now, he said there are five defendants. The record shows six and at the time of these references, there were 12. That is very clear and I refer to the record on page 19 -- no, at page 17 where the Court on the day before he ordered the references or when the question the masters first came up said, in the Rohlfing case there are 12 defendants left. That's page 17. That's when he entered the order, there were now six. Now, the -- the case is complicated, whether Mr. Levy wants to admit it now or not. The kind of evidence that will be entered will be these accounts of these purchases of these shoemakers, as he calls them. He said that he didn't know why there was no pretrial contrast. Judge La Buy was a state court judge in Illinois before he was a federal judge. And he's been a federal judge a great many years. He originated pretrial conferences in the state court. He uses them extensively. But in this case, there had been then, as he said, more motions that in any case he ever heard of and the parties were not too cooperative and it was very obvious that there probably was nothing to be gained by a pretrial conference. There, the motion to revoke the reference was made, but it was limited to the fact that a new defendant had been added by the plaintiffs. There have been parties added as well as dropped, who demanded a jury trial. They thought it was going to be a jury case and that was the sole basis for that motion to revoke. Now, he said that the case came on for trial. That is inaccurate. Before I cover that, I'd like to answer a question. How do we assign this case? They have a good system in our district. The Court -- the court clerk prints up some opaque cards with the names of the judges one on each card. They make up a pack, we'll say of a hundred and we have eight judges, one-eighth of all the cards will have judge La Buy's name on and one-eighth will have each of the other judges. The clerk or someone under his supervision shuffles those cards and they are sealed up like a little pan so that you cannot see the name of any judge. In other words, we don't -- every fifth case doesn't go to Judge La Buy. He may not get any for 18, but he will get one-eighth of each hundred cases. And the clerk nor anybody else can tell who's going to get the next case. It's a -- a good system.
Speaker: Where is that?
James A. Sprowl: Once the judge gets the case, he keeps the case. He hears all motions in it, and Mr. Levy correctly said that he hears both criminal and civil cases and without any distinction, he accepted the criminal cases do have priority under the law. Now, this case, we also have a system on the trials that you put it on the trial call and that works its way up in a publish bulletin. This case has not been reached for trial. Still below the line. There's a line in there and they're a lot of cases above the line and they're supposed to be ready for trial and below the line they're coming on. This one was below the line, but this case have come up to number one below the line. It might not be reached for a month or two or so but it was coming on. And that was the situation as the record makes perfectly clear. Read that at page 17, where there -- where the motion is made and all of that transcript is in this record. So, the parties wanted an early trial and Judge La Buy explained to them that he had cases, said it would him to clear up through this summer at best. And that the way they should have a trial in this case this opinion would by a master. Now then, he said that the reason that the plaintiffs were objecting to the trial date, now it hasn't been raised. They did ask to have it reset for June. But it isn't discovery, they want to take some depositions for trial and they proceeded to do it as the record show. They took 16 depositions after that date and before this -- this mandamus petitions were filed.
Felix Frankfurter: Mr. Sprowl, I have mentioned (Inaudible) by one of my Brothers to do -- to document this case -- to this case.
James A. Sprowl: Yes, sir, Your Honor.
Felix Frankfurter: One of the (Inaudible) On page 30, beginning page 30 of the record, am I right in the finding defining that the 27 pages thereafter, those are all the documentaries in this case prior to reaching the present problem?
James A. Sprowl: That is true with this exception. That the order in question on -- on February 23rd appears on page 54. So, all of the entries from page 30 up to 54 are prior and there's a couple of pages subsequent. Those are proceedings in the trial court, subsequent.
Felix Frankfurter: What kind of -- what kind of proceedings were those?
James A. Sprowl: They were --
Felix Frankfurter: I thought -- I thought that within the reference and the objection to it stopped from using? But what was it? What happened thereafter?
James A. Sprowl: Or there's -- well, there was this additional party added. They had a jury demand. They had a motion about it. He was dismissed out. There were proceedings about discovery and interrogatories and depositions.
Felix Frankfurter: (Inaudible) is general defense and is alive. I suppose you he could write a whole book on this single exhibit.
James A. Sprowl: And that's just the one case. There are 19 pages of docket entries in the latter part of the record in the other case. And those appear at pages 22 (a) -- 220 (a) up through and including 240. That's in the second case which he says is extremely simple. These are not extremely simple cases and I think Judge La Buy's decisions should have been respected on that. I think that's all that I have to say, except to say that while Mr. Levy pointed out the -- the points of similarity between the Cosgrave case and this one, he didn't mention the reply in that case which pointed out that there was a standing master who heard only type of cases. It was not denied he ever heard anything but patent cases and that practically all of them have been assigned to him. I think that's all. Thank you.
Earl Warren: We'll recess now.