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Full text of "Chief judge, grandfather clause : hearing before the Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, United States Senate, Ninety-fourth Congress, second session, on S. 1130 ... May 18, 1976"

CHIEF JUDCi— GRANDFATHER CLAUSE 



ary 



HEARING 

BEFORE THE 

SUBCOMMITTEE ON 
IMPROVEMENTS IN JUDICIAL MACHINERY 

OF THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

NINETY-FOURTH CONGRESS 

SECOND SESSION 
ON 

S. 1130 

A BILL RELATING TO CHIEF JUDGE— GRANDFATHER CLAUSE 



MAY 18, 1976 



Printed for the use of the Committee on the Judiciary 




U.S. GOVERNMENT PRTNTING OFFICE 
78^78 WASHINGTON : 1976 

arch FRANKLIN n^UCE LAW CENTER 

Concord, New Hampshire 03301 



ON DEPOSIT "**" ' ° '^^^ 



CHIEF JUDG^GRANDFATHER CLAUSE 



■■ f 



HEARING 

BEFORE THE 

SUBCOMMITTEE ON 
IMPROVEMENTS IN JUDICIAL MACHINERY 

OF THE 

COMMITTEE ON THE JTIDICIARY 

UNITED STATES SENATE 

NINETY-FOURTH CONGRESS 

SECOND SESSION 
ON 

S. 1130 

A BILL RELATING TO CHIEF JUDGE— GRANDFATHER CLAUSE 



MAY 18, 1976 



Printed for the use of the Committee on the Judiciary 




m 



U.S. GOVERNMENT PRINTING OFFICE 
78^78 WASHINGTON : 1976 

FRANKLIN n^UCE LAW CENTER 

Concord, New Hampshire 03301 



Boston P'Mlc Libiary 

I, MA 02116 



- icni 



COMMITTEE ON THE JUDICIARY 



JAMES O. EASTLAND, 

JOHN L. McCLELLAN, Arkansas 
PHILIP A. HART, Michigan 
EDWARD M. KENNEDY, Massachusetts 
BIRCH BAYH, Indiana 
QUENTIN N. BURDICK, North Dakota 
ROBERT C. BYRD, West Virginia 
JOHN V. TUNNEY, California 
JAMES ABOUREZK, South Dakota 



Mississippi, Chairman 

ROMAN L. HRUSKA, Nebraska 
HIRAM L. FONG, Hawaii 
HUGH SCOTT, Pennsylvania 
STROM THURMOND, South Carolina 
CHARLES MCC. MATHIAS, Jr., Maryland 
WILLIAM L. SCOTT, Virginia 



Subcommittee on Improvements in Judicial Machinery 
QUENTIN N. BURDICK, North Dakota, Chairman 

JOHN L. McCLELLAN, Arkansas ROMAN L. HRUSKA, Nebraska 

PHILIP A. HART, Michigan HUGH SCOTT, Pennsylvania 

JAMES ABOUREZK, South Dakota WILLIAM L. SCOTT, Virginia 

William P. Westphal, Chief Counsel 

(n) 



CONTENTS 



statement of : Page 

Hon. Jake Gam, U.S. Senate, Senator for the State of Utah 

Hon. Ramon M. Child, U.S. district attorney, Salt Lake City, ac- 
companied by James Dewey O'Brien, Acting Deputy Assistant 
Attorney General of the Tax Division, William C. MeBride, As- 
sistant Chief of the Criminal Section of the Tax Division, and 

Rudolph W. Giuliani, Associate Deputy Attorney General 

Hon. Robert B. Hansen, Deputy Attorney General, Salt Lake City, 

Utah 

Mr. William J. Lockhart, Salt Lake City, Utah, professor of law. 

College of Law, University of Utah 

Hon. David T. Lewis, chief judge, U.S. Court of Appeals, Salt Lake 

City, Utah 

Subcommittee inserts 

(III) 



S. 1130 

A BILL RELATING TO SERVICE AS CHIEF JUDGE 
OF A U.S, DISTRICT COURT 



TUESDAY, MAY 18, 1976 

U.S. Sexate, 
Subcommittee ox Improvemexts ix Judicial 
Machixery of the Committee ox the Judiciary, 

Washington. B.C. 
The subcommittee met, pursuant to notice, at 10 a.m., in room 6202, 
Dirksen Office Building, Hon. Quentin N. Burdick (chairman of the 
subcommittee) presiding. 

Present : Senator Burdick (presiding) . 

Also present: William P. "Westphal, chief counsel; Kathryn M. 
Coulter, chief clerk; and Harry Dixon, staff of Senator Hruska. 

Senator Burdick. Today the subcommittee has scheduled a hear- 
ing on S. 1130, a bill to repeal the so-called grandfather clause which 
exempted the existing chief judges of two-judge districts from the 
statute which prohibits service as chief judge beyond 70 years of age. 
When this age limitation was enacted on August 6, 1958, there were 
32 chief judges affected by the grandfather clause. 

It is my understanding that today only one of the 32 chief judges 
still is serving as a chief judge. He is Willis W. Bitter, the chief 
judge of the District of Utah. Judge Bitter was appointed to the 
bench on October 21, 1949. 

The subcommittee has received a number of letters on this bill, 
both pro and con. These letters evidence a great interest in this legis- 
lation; but because they present essentially hearsay or personal 
opinions, I, as one member of the committee, will give them less 
weight than the sworn testimony we will receive here today. 

One of the letters which has been written by one TTtah lawyer to 
every member of the Judiciary Committee, reads as follows: "In all 
fairness without reo-ard to the judicial temperament or capacity or 
integrity of Judge Willis W. Bitter, is there really legitimate reason 
for having the only chief judge in the iudiciarv system over the age 
of 70 saddled on the lawyers and people of Utah ? '' 

In answer to that question, a "leo-itimate reason" is that in 19.58 
a Federal statute provided that this judse, and 31 others, were ex- 
empt from the aqe 70 requirement. But this letter illustrates the reason 
why I believe that before we receive the testimony of witnesses, it 
would be helpful if we can identify the specific issue raised by S. 
1130. 

S. 1130 does not raise the issue of whether the judge should be re- 
moved from judicial office, because under present law that issue can 

(1) 



only be decided after impeachment by the House of Representatives. 
Nor does S. 1130 raise any issue concerning possible disability of the 
judge, because section 372 of title 28 U.S. Code covers such a situation. 

The issue, as I perceive it to be, is whether the judge in question, who 
continues to serve as chief judge of the District of Utah by virtue of the 
exception made by the Congress in 1958, is for some reason unable to 
perform the duties of a chief judge in an eifective and expeditious 
manner. 

If it can be demonstrated that he is unable to so perform, then the 
subcommittee will have to make the further decision of whether repeal 
of the grandfather clause is appropriate legislative action under all of 
the circumstances. And, it seems to me, that one of those circumstances 
involves the separation of powers principle from which has grown the 
phrase "independence" of members of the Federal judiciary. 

While this analysis is not intended as any ruling by the Chair on 
these or other issues, it has been put forth in an effort to clarify the 
matter before the subcommittee this morning. 

A copy of S. 1130 will be included in the hearing record at this time 
without objection. 

[The above referred to bill follows : J 

[S. 1130, 94th Cong., 1st sess.] 

A BILL To amend the Act of August 6, 1958 (72 Stat. 497), relating to service as chief 

judge of a United States district court 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, That section 3 of the Act of August 6, 1958 
(72 8tat. 497), is amended by changing the nist comma to a period and by striking 
all of the remainder of the sentence. 

The Chair now recognizes the junior Senator from Utah who is the 
principal sponsor of the bill, and at whose request this hearing was 
scheduled. Senator Garn, you may proceed. 

Senator Garn. Thank you very much, Mr. Chairman. I do have a 
very lengthy statement with a large number of inclusions. I Avould like 
to summarize the statement and ask that it be included in its entirety in 
the hearing record and that all of the attachments, letters, and edito- 
rials also be included in the record without me taking the time of the 
subcommittee to read all of them. 

Senator Burdick, They will be so received without objection. 

[The above referred to statement with attachments follow :] 

Statement of Senator Jake Gaen Before the Subcommittee on Improvements 
IN Judicial Machinery of the Senate Judiciary Committee on S. 1130 

Mr. Chairman : Let me begin by expressing my personal gratitude to you for 
scheduling this hearing. The assistance of the distinguished Ranking Minority 
Member is also greatly appreciated. This hearing has been sought for years by 
leading members of the Judicial Branch, the Bar, and concerned citizens, and 
on behalf of these interested parties I express my sincere thanks. 

S. 1130 will repeal the exemption to 28 U.S.C. 136 which now allows the Chief 
Judge of only one United States District Court ^ to maintain his chief judgeship 
after age seventy. Other witnesses will provide information of a specific nature 
concerning the Judge's court administration and I will supplement that informa- 
tion — leaving details to the experts. I will provide the Committee with back- 



1 Some question lias arisen concerning the number of district court judges affected by 
passage of S. 1130. The Administrative Oftice of the United States Courts has contirmed 
that Chief Judge Willis Ritter of the United States District Court for the District of 
Utah will be the only judge affected. Letter from R. Glenn Johnson, Chief, Division of 
Personnel, to Jake Garn, Feb. 6, 1976. 



ground information, policy considerations, and the sentiment of Utahans who 
resent and regret the way the Lnited States District Court for the District of 
Utah is being managed. 

On April 4, 19o7, the Committee on the Judiciary of the House of Representa- 
tives reported to the full House H.R. 985, a bill to require the relinquishment 
of the office of chief judge of federal courts at the age of seventy-five years. 
The bill was accompanied by Reijort No. 301 which contained the recommenda- 
tion of the Committee that the bill pass as amended. The Committee proposed 
two amenuments : first, that the age of relinquishment be raised from seventy 
to seventy-five years, and second, that no judge act as chief judge until he has 
been a member of the court for one year. The report also contained documents 
showing the approval of the Judicial Conference of the United States, the House 
of Delegates of the American Bar Association, the Attorney General's Confer- 
ence on Court Congestion and Delay in Litigation, and the Department of Justice 
for the seventy-year relinquishment date of the original bill. 

The Committee had adopted the amendment raising the reliquishment age to 
afford "proper llexibility," which presumably means that the impact on judges 
and courts would be less severe when the Act took effect than if a seventy-year 
relinquishment date had been retained. Although the House Committee extended 
the date by five years, the basic policy of the bill remained the same : 

"It is the opinion of the committee that the enactment of H.R. 985, as amended, 
will improve the administration of justice in the Federal courts. There can be 
no doubt that many judges who have passed the age of 75, do. are capable of 
doing, excellent work in their judicial capacity, and indeed may well function 
as efficient administrators of the business of their courts. Nevertheless, it cannot 
be denied, as indicated in the experience of private business, that the toll of 
years has a tendency to diminish celerity, promptitude and effectiveness. H.R. 
Rep. No. 301, 85th Cong., 1st Sess. 2-3 (1957)." 

Following the unanimous report of the Committee on the Judiciary, the House 
considered H.R. 985 on May 23. 1957, and pas.sed the bill as amended by voice 
vote after a motion to recommit failed 47 to 292. 103 Cong. Rec. 7575-6 (1957). 

During the debate preceding passage of the bill, the following exchange 
occurred which helps explain the amendment of the House Committee : 

"Mr. Feighax [Ohio] ... [I]t seems to me reasonable that the age limitation 
be reduced to 70, so that undue burdens would not be placed upon these elderly 
distinguished jurists. 

"Mr. Walter [Pennsylvania (and author of the bill)] I strongly suspect that 
within a very short time there will be an attempt made to amend the bill, 
because actually, as the gentleman well knows, there were two judges who did 
not want to be relieved of these duties because they felt that by so doing perhaps 
some of the patronage that they enjoyed might be interfered with. That was 
the reason the age was changed from 70 to 75. Id at 7571." 

This dialogue is included here so that we may better understand the motiva- 
tions behind the Committee amendment — the motivations were political, rather 
than policy. Political motivations and considerations are often justifiable, and 
sometimes commendable, but they must not be confused with policy justifications 
unless there is some identifiable nexus. I can find no nexus is this case. The 
amendment was not made in the interest of improving the administration of 
justice since it was contrary to the recommendation of the exi)erts in judicial 
administration and inasmuch as it was admittedly offered to allay the opposition 
of two judges. I emphasize that these facts do not demonstrate that the amend- 
ment was unwise, only that it was politically motivated. 

Following passage in the House, H.R. 985 was referred to the Senate Judiciary 
Committee which recommended the bill's passage with one technical amendment. 
8e(\ S. Rep. No. 1780, 85th Cong., 2nd Sess (1958). The bill passed the Senate 
on July 8 by voice vote. 

The following day. Senator Church of Idaho entered a motion to reconsider 
the vote whereby H.R. 985 was passed and said motion was entered without 
objection. 

On July 28, 1958, Senator Church called up his motion to reconsider and by 
unanimous consent the bill was reconsidered. At that time. Senator Eastland 
offered two amendments, the second of which is the so-called "grandfather 
clause." The first amendment changed the relinquishment age back to seventy 
years', and the second amendment provided" . . . the amendment made by section 
136 [relating to district courts] shall not be effective with respect to any district 
having two judges in regular active service so long as the district judge holding 
the position of chief judge of any such district on such date of enactment con- 



4 

tinues to hold such position." 104 Cong. Rec. 15250 (1958). "These amendments," 
explained Senator Eastland, "meet the approval of tne Administrative umoe 
of the United States Courts and meet any known objections to the bill." Id. The 
amendments were agreed to and the bill passed by voice vote. 

On July 30, the House concurred in the Senate amendments and on August 
6, 1958, the President approved and signed H.R. 985. 

The legislative history is given for the twofold purpose of acquainting mem- 
bers of this Committee with the general background of Section 3 of the Act of 
August 6, 1958 (72 Stat. 497) which S. 1130 will repeal and laying a foundation 
for challenging the wisdom of continuing the exception created by the "grand- 
father clause." 

I will not attack the principle of "grandfather clauses." It is well known that 
such clauses are occasionally used to lessen opposition to pending legislation and 
we recognize that this kind of compromise allows prompt legislative progress in 
areas that otherwise would receive no attention, or at best delayed attention. 
Such procedures are sometimes praiseworthy — falling within the best tradition 
of democratic compromise — and I do not doubt that such was the case with the 
Act of August 6, 1958 (also, P.L. 85-593). It is clear that Senate and House 
amendments were proposed and adopted to allay political opposition to the un- 
amended bill, and I think it equally clear that if such opposition would have 
defeated the unamended bill then the Congress showed wisdom in passing the 
compromise version. Further, Mr. Chairman, I may say that I am sympathetic 
with your sentiments expressed to me in a recent letter : "... I believe that it 
is bad policy for the Congress to renege on a grandfather provision which is 
adopted in order to allay opposition to a bill." Letter from Quetin N. Burdick to 
Jake Garn, December 1, 1975. There is wisdom in your desii'e to keep 
commitments. 

The above statements, however, are general statements — statements that must 
permit exceptions. And just as in 1958 when circumstances persuaded Congress 
to permit an exception to the general rule that chief judges relinquish that role at 
age seventy, so today the facts compel us to adopt another exception and repeal 
this "grandfather clause." This exception need not be based on political reality, 
but can stand on merits of fact, reason, and justice. 

I have stated that "grandfather clauses' ' are sometimes necessary and accepta- 
ble, I have also agreed with the Distinguished Chairman that they ought not 
to be reneged except under unusual circumstances, but I am resolved to see 
this particular clause revoked because this situation contains more than enough 
facts to classify it as "unusual." The following facts and policies have convinced 
me that S. 1130 shotild pass and that this Committee ought to repeal any "grand- 
father clause" when the weight of evidence becomes as burdensome as it does 
in this case. 

I. S. 1130 ought to pass because the same organizations that supported the 
original act — and its amendments — now support repeal of the clause of exemp- 
tion. Who were those organizations that supported H.R. 985 in 1957 and 1958? 
The Judicial Conference, the A.B.A., and the Department of Justice : the most 
objective, deliberative, and influential entities of the American judicial system. 
What organizations now support S. 1130';' The Judicial Conference, which says: 

"The Judicial Conference believes that this exception, . . . has outlived its 
usefulness and should be eliminated. Letter from Rowland F. Kirks, Director, 
Administrative Office of the United States Courts to Carl Albert, Speaker of the 
House of Representatives, September 21, 1973, appended to this statement. See 
also, letter of confirmation from Rowland F. Kirks to Jake Garn, May 7, 1976." 

The Department of Justice, which says : "The Department of Justice concurs 
in the recommendation of the Judicial Conference that this legislation be enacted. 
Letter From W. Vincent Rakestraw, Assistant Attorney General, to Peter W. 
Rodino, Jr., Chairman, House Judiciary Committee, May 2, 1974, appended to 
this statement." ; and — although the House of Delegates of the American Bar 
Association has taken no specific stand on repeal of the clause — it is believed 
that its position has not changed from 1957 when it supported a bill identical to 
H.R. 985, as introduced, i.e. with a relinquishment date set at seventy years and 
ivithout a "grandfather clause." The Committee on Federal Judiciary said : 

"Your committee is of the view that this legislation is desirable and should be 
enacted. Accordingly, it recommends that the house of delegates adopt the 
resolution endorsing [the identical bill]. H.R. Rept. No. 301, 85th Cong., 1st Sess. 
4 (1957)." 



The House of Delegates adopted the language." 

II. S. 1130 ought to pass because the above-cited eminent authorities are joined 
by other leaders of the bar and bench in calling for its passage. Chief Judge 
David T. Lewis of the United States Court of Appeals for the 10th Circuit says : 

"... I have publicly supported earlier versions of this Bill as a member of 
the Judicial Conference ... but such efforts have been to no avail. . . . [T]he 
Bill has merit and should be enacted . . . and my support for it is not dependent 
on any personal opinion as to whether Judge Ritter is a good, bad, or indif- 
ferent judge. Letter from David T. Lewis to Jake Garn, April 2, 1975, appended 
to this statement as are the following four documents." 

Calvin L. Rampton, Governor of the State of Utah, says : 

"I feel [S. 1130] should be passed. If it were passed, in my opinion it w^ould 
vp_sult in improved administration and supervision of the calendar in the United 
States District Court for the District of Utah. Whether the "grandfather clause" 
was ever justified from a standpoint of principle is questionable. Undoubtedly, 
it was adopted as a matter of expediency to facilitate the passage of the act. 
Howevtr, if it were ever justified now that there is only one Judge serving pur- 
suant to the "grandfather clause", and he is a substantial number of years 
beyond the cut-oft age, the continuation of the "grandfather principle" can no 
longer be justified. Letter from Calvin L. Rampton to Jake Garn, May 10, 1976." 

l^rwin N. Griswold. former Solicitor General of the United States, says : 

"The situation with respect to the Chief Judge in the United States District 
Court in Utah is unique, and, I think, unfortunate. 

"The basic policy of 28 U.S.C. 136— namely, that a judge shall cease to be 
Chief Judge upon reaching the age of 70 — is sound, as has been shown by a 
great deal of experience in our judicial system. It is quite unwarranted, it 
seems to me, to have a special provision in our statutes which makes this policy 
inapplicable in a single case. The time has clearly come, in my opinion, when 
that exception should be repealed, and the same rule should be applicable in 
Utah as in all of the other States of the Union. Letter from Erwin N. Griswold 
to Jake Garn, July 10, 1975." 

The Utah State Bar has gone on record twice favoring repeal of this "grand- 
father clause." On January 11, 1974, a resolution was passed at the Mid-Winter 
meeting of the Bar authorizing a secret poll of the Bar membership concerning 
this issue. 77.7% of those responding favored repeal. Similarly, at the Mid- 
Winter meeting in January, 1976, the Utah State Bar passed a resolution by a 
vote of 106 to 62 stating . . . the official action of those members of the Utah 
State Bar assembled ... is aflarmed to be in favor of S. 1130. 

Copies of properly signed and attested resolutions are appended. 

III. S. 1130 ought to pass because its passage would not frustrate Congres- 
sional policy intent as established in 1957 and 1958. We must remember that 
H.R. 985 passed both the House and the Senate without the "grandfather clause" 
and w^as apparently acceptable to both bodies for over a year until the bill was 
reconsidered and amended for political reasons. It is true that the bill as passed 
by both Houses (before reconsideration) contained a relinquishment age of 
seventy-five years, but the sitting chief judge in the Federal District Court for 
Utah is seventy-seven years old (having been born January 24, 1899) and would 
have had to relinquish his chief judgeship nearly two and one-half years ago 
even if the more liberal version of the bill had been signed. Unfortunately, that 
version passed both Houses without being signed. I caution us against assuming 
that S. 1130 will frustrate the intention of the 85th Congress. It will not as the 
record shows. 

IV. S. 1130 .should pass because the policy forecasts given by Senator Eastland 
in 1958 for adoption of the "grandfather clause" have proven to be just the 
opposite of what he reasonably expected them to be. In proposing adoption of 
the "grandfather" amendment. Senator Eastland said : 

". . . [Iln a distiict having only two judges, the administrative duties are 
not such a heavy burden upon the chief judge and do not require him to spend 
a substantial part of his time in pursuing duties other than judicial. For this 
reason, it is deemed desirable not to change the present relationship of the 



2 Relevant by analogy is the Report of the Standing Committee on Federal Judiciary 
of the A.B.A. which recommends that persons not already in the Federal judicial system 
not be recommended for district or appeals court judge if over the age of 64 ; a district 
judge over the age of 68 who is being considered for appointment to an appeals court 
"will be considered not qualified by reason of age." Proceedings of the 1970 Midyear 
Meeting of the House of Delegates, p. 206. 



judges in districts where there are only two judges in active service. 104 Cong. 
Rec. 1525U (1958)." 

The fact is, Mr. Chairman, that this expectation has not come to pass and 
that the experience of two-judge district court.s has been sufficient to show that 
any amendment to the 1958 bill should have specifically included two-judge 
courts, not specifically exempted them. This conclusion is reached on the basis 
of the experience of many, including the man who has perhaps been most 
affected, A. Sherman Christensen, Senior United States District Judge who 
formerly was in active service with Judge Ritter in the United States District 
Court for Utah. Judge Christensen explains the dilemma of the two- judge court 
as follows : 

•When the grandfather clause was originally approved by the Congress, 
there could have been an impression that in two-judge courts the general rule 
for chief judges to step down at the age of 70 was not as important as in larger 
courts. My experience and observation has demonstrated that the application 
of the general rule may be more important in two-judge courts than in larger 
courts where rules may be adopted by majority vote of the judges and incon- 
siderate decisions with respect to supporting personnel may be controlled by 
majority vote. In a two-judge court, if the judges cannot agree upon generally 
applicable local rules of court, no such rules can be adopted without interven- 
tion of the Judicial Council, and in the event of disagreement among the judges 
in a two-judge court concerning the employment or discharge of supporting 
personnel and with respect to various other decisions on which the majority of 
the judges in larger courts have final say, in a two-judge court the chief judge 
has unrestricted power. Letter from A. Sherman Christensen to Jake Garn, 
May 11, 1976." 

James L. Treece, United States Attorney for the District of Colorado, adds 
a brief, but definitive, confirmation : 

"I see no valid basis for distinguishing between large and small districts in 
providing for the tenure of chief judges. History has .shown, in fact, that a tragic 
mistake occurred when the exception was made. Letter from James L. Treece 
to Jake Garn, May 11, 19'. 6." 

V. Perhaps the most important reason that S. 1130 ought to pass is the failure 
of Judge Ritter to maintain acceptable standards of judicial conduct. Surely 
any judge who continues to serve as chief judge under the provision of a "grand- 
father clause" that now applies solely to him ought to be required to maintain 
at least "acceptable" standards of judicial conduct, pertaining both to his duties 
as chief judge and his regular duties as a federal district court oflicer. This is 
minimum standard of conduct, I believe. 

The ideal would be an expectation that any judge so protected and exempted 
would maintain exemplary standards of conduct. Congress can reasonably ex- 
pect that when it carves out a special exemption in the law for a certain class 
of persons that those persons act in a manner consistent with their special legal 
status. If "exemplary" conduct is too high a standard, then it is reasonable to 
require at least "acceptable" behavior. 

Further, the standards of conduct can be applied to the judge's total behavior, 
not just his behavior in the area in which he operates under the statutory exemp- 
tion. That is, when Congress creates an exemption for certain chief judges, it 
ought to maintain that exemption only so long as the exempted judges maintain 
standards of "acceptable" behavior both in their capacity as chief judges and 
in their capacity as active federal judges. I believe the standard of conduct as 
to the chief judgeship is self-evident : if a judge is not adequately i^erformlng 
his duties as chief judge he renders himself unfit to serve under a special stat- 
utory exemption. This rule is based on fair play ; political exemptions may be 
necessary, but they need not be maintainetl in .spite of persistent abuse. My be- 
lief that even non-chief judgeship duties (i.e. non-administrative duties) are 
relevant in determining whether a statutory exemption which relates solely to 
the chief judgeship ought to continue is based on the belief that Congress has an 
affirmative duty to end privileges and i>erquisites specially extended when 
abuse occurs in an area so intertwined with the chief judgeship that performance 
in one area cannot be separated from i>erformance in the other. What kind of 
cockamamie rea.soning is it which argues that a special, one-man exemption 
should be continued after it has been shown that the only man still serving under 
the exemption abuses both his administrative and regular judicial duties? Must 



we continue to reward intemperate and injudicious behavior with a special exemp- 
tion? I earnestly hoi)e we do not. 

Let me give one example of the problems we have with the administration ot 
tlie Utah Court. In 1957, a formal request to divide the business of the U.S. Dis- 
trict Court lor Utah was submitted to the Judicial Council. The request came 
from disputing judges Kitter and former active (now senior) district judge, 
A. Sherman Christensen. On January 20, 1958, the Council issued an order setting 
out the manner in which cases in the Utah Court would be divided. For example, 
civil cases were to be assigned in the following manner : the clerk of the court 
was to take between lifty and one-huudred cards and write "chief judge" on half 
and "associate judge" on half. The cards were then to be shuffled and placed in 
opaque envelopes and the envelopes were to be numbered so as to correspond 
with the next fifty to one-hundred cases to be filed. This was to be done in such 
a manner as "no one shall know the designation appearing on such card."' There- 
after, as each case was filed, the clerk would take an envelope from the place 
where they had been safely kept and assign the case to the judge whose name 
appeared on the card in the envelope. In re Division of Business and Assignment 
of Cases in the U.S. District Court for the District of Utah, Order of the Judicial 
Council of the 10th Cir., Jan. 20, 1958. 

This order was amended in 1962 by agreement of the district judges and in 
1965 by another order of the Judicial Council. 

On August 17, 19.1, Judge Christensen retired from active service and was suc- 
ceeded by Aldon J. Anderson who was duly qualified the same day, therefore "no 
vacancy occurred in the position." By unilateral action, Judge Ritter on October 4, 
and November 24, 1971, issued orders transferring to himself certain cases pre- 
viously assigned to Judge Christensen and i>ending in Judge Christensen's court 
the day he assumed senior status. By order of December 20, 1971, the Judicial 
Council of the Tenth Circuit reversed Judge Ritter's unilateral action after de- 
termining that Ritter, Christensen, and Anderson had "i-esponded in writing . . . 
[and indicated] that a controversy does presently exist, and has existed, as to the 
division of business and the assignment of cases in [their court]." 
The Judicial Council further ordered and decreed : 

"1. The former order of the Council, as amended, remained in full force and 
effect and was not "in anywise affected' by Judge Christensen's retirement ; 

"2. Judge Anderson was to succeed to all of Judge Christensen's pending 
cases ; 

"3. Judge Ritter was ordered to vacate his unilateral orders 'purporting to 
assign to himself certain cases. . . . ;' 

"4. Judge Ritter was ordered to vacate 'each and every other order that he 
has unilaterally entered' affecting Judge Anderson's cases unless Judge Anderson 
'specifically consents and agrees' to any such order. In re Division of Business 
and As.signment of Cases in the I'.S. District Court for the District of Utah, 
Order of the Judicial Council of the 10th Cir., December 20, 1971." 

In a case with parallel issues growing out of the same facts, Utah-Idaho Sugar 
Company brought a mandamus action in the Court of Appeals to require Judge 
Ritter to reassign petitioner's case which he (Ritter) had taken through his 
order of October 4 although the case had originally been assigned to Judge 
Christensen. In granting the petition, the Court summed up many years of ex- 
perience in the United States District Court for Utah : 

"* * * It was therefore entirely proper for the Judicial Council to declare 
Chief Judge Ritter's order void. . . . His act of choosing which cases to keep and 
which to assign to Judse Anderson did not comply with the Council's mandate 
that the assignment of civil cases be equal and random. ... In sum then the 
Judicial Council was justified, first, by reason of the fact that Chief Judge 
Ritter acted unilaterally and not in conjunction with Judge Anderson, and, 
secondly, because there was continued disagreement between the judges of the 
district. We find and conclude that this writ of mandamus is essential to con- 
tinuation of fair division of ca.s^es within the District of Utah and in implemen- 
tation of the prior orders of the Judicial Council. Utah-Idaho Sugar Co. v. Ritter, 
461 F. 2d 1101, 1104 (10th Cir. 1972)." 

Let me turn now to a criticism of Judge Ritter that does not directly concern 
his administrative work, but does seriously concern his general judicial role, 
and therefore the justification for his continued protection under the "grand- 
father clause." 



8 

This criticism concerns Judge Ritter's restrictive grand jury policies that 
continually hamper the administration of federal law in Utah. 

'•. . . LI]u the past five years, a grand jury has met in Utah's central district 
only SI days. During 1972, grand juries sat only on day, during 1973 not at all. 

"That record is in sharp contrast to neighboring jurisdictions. In Arizona, two 
grand juries are always impaneled, and sometimes there are as many as four. 
In Colorado, a grand jury is always impaneled, and a second one has been called 
if needed for spercial investigations. 

"Spokesmen for the offices of the U.S. attorneys in those states said they had 
never heard of their grand juries being limited to specified ca>:es [as Judge Ritter 
did with the 1975 Utah grand jury]. Nor, so far as they knew, had federal judges 
in their states arbitrarily dismissed grand juries before their term was up [as 
Judge Ritter did]. Decker, 'Ritter Blocks Juries,' Deseret News, December 10, 
1975." ^ 

The Decker article was written shortly after Judge Ritter dismissed a grand 
jury that was investigating what one juror called "a very large, involved case." 
On December 4, l97o, the day the grand jury was dismissed, the following 
dialogue took place after the Judge had dismissed the jury : 

"The Foreman. Could I take a moment of your time, please? 

"The CotjBT. Sure. 

"The FoKEMAS. The Grand Jury would like to thank you for the opportunity 
that we have had of serving as federal grand jurors in representing the people 
of the United States of America ; but we are deeply concerned, and we have been 
for some time about the fact of unfinished business. 

"We haven't felt it a hardship, you know, to meet and to act in this capacity ; 
and we would like to at this time, with your permission, to complete tne in- 
vestigations that we still haven't completed. 

"The Court. Well, I tnink I'm acquainted with that, and I've already alluded 
to it. So we will do as I say. You're discharged. Go to the Clerk's Office." 

Report of the Grand Jury, United States District Court for for the District 
of Utah, December 4, 1975, at 26-7. 

According to news accounts, the Grand Jury was not aware of a.i\y deadline 
and was surprised by the dismissal. The foreman of the Jury was quoted as 
saying, "We didn't know of any deadline. The jurors were unaware of any dead- 
line." "Grand Jurors Miffed at Ritter's Ruling," Deseret News, December 5, 1975. 
Another grand juror estimated that it would take "roughly three months" to 
present the case to another grand jury. 

The U.S. Attorney pursued appropriate and timely remedies without success. 
On December 4, 19 1 5, ne filed a request that the Grand Jury impaneled on 
February 10, 1975 (and dismissed on December 4, 1975) be permitted to continue 
to sit. The request was ignored. On January 23, 19(6, the U.S. Attorney filed a 
motion for impaneling a grand jury. Again, Mr. Child was ignored. On April 20, 
1976, the U.S. Attorney filed a Petition for Writ of Mandamus with the United 
States Court of Appeals for the Tenth Circuit, requesting that court to issue an 
order compelling the convening of a grand jury and to order certain protections. 
Mr. Child was joined in the petition by Richard L. Thoriiburgh, Assistant At- 
torney General, Criminal Division, and Mr. Thomas E. Kauper, Assistant 
Attorney General, Antitrust Division. On April 23, Judge Ritter signed orders 
calling members for a new grand jury, therefore mooting one of the points of the 
Petition for a Writ of Mandamus. Tlie circuit court maintained jurisdiction over 
other requests of the petition, including that the Grand Jury be allowed to sit for 
its full term unless both the U.S. Attorney and the foreman agree to an earlier 
dismissal ; that the Grand Jury be permitted to investigate any matter it deems 
proper ; and that the Court be required to sign and enforce all immunity orders 
obtained in accordance with law. Petition for Writ of Mandamus, United State» 
V. Ritter, (10th Cir. April 20, 1976). 

Mr. Chairman, time and space do not permit further discussion of these 
problems or other problems that trouble our district court, but these two areas of 
concern — assignment of cases and grand jury impaneling — will give the Com- 
mittee an idea of the obstacles facing those of us who seek a better brand of 
justice in the United States courts in Utah. Appendix I of this statement includes 
three articles from a recent issue of Utah Holiday Magazine that detail some of 
the Judge's problems with the press, the Bar, the Court of Appeals, and others. 



^ See also. Affidavit of Lois Groesbeck. administrative clerk and custodian of the grand 
jury minute book, wliieh shows only 57 days of grand jury work since March of 1971. 
United States v. Willis W. Ritter, Appendix to Petition for Writ of Mandamus, p. 1 
(10th Cir. Apr. 20, 1976). 



9 

VI. Finally. S. 1130 onglxt to pass because the facade of detached impartiality 
and judicial" sufficiency has crumbled from Willis W. Ritter. Utabans no longer 
uudei-stand— ii indeed they ever did— why this man continues to receive special 
and tmiqiic protection from the simple rules that apply to everyone else. We 
yearn for an equal treatment, and it ought to start with judicial fairness. 

Let me share with you part of the parade of items that fill my tiles. I will take 
just one item from each month in 1976. 

On Januarv IS. 1976, the Ogden, Utah Standard-Examiner editorialized "Time 
Has Come for Fvderal Judge Willis W. Ritter to Step Down." On the 27th of that 
month the same paper carried a letter from Val "J"' Hallstrom of Sandy, Utah 
which concurred with the editorial. Mr. Hallstrom said : 

"* * * I had the displeasure of observing Judge Ritter ... a few months ago 
and still can't believe what I saw and heard in his court. Before I spent time as an 
onlooker in hi> court I believed in only one God, now I believe there [are] two. 

••***! wonder how many individuals who have appeared before Judge Ritter 
and their loved ones feel about having faith in the judiciary system [?] * * * You 
say have faith in the judiciary system. Mister, he is the system." 

Letter from Val J. Hallstrom, Ogden Standard-Examiner, Jan. 27, 1976. 

In February 1976, I received a letter from a constituent who complained of 
the treatment his father had received before Judge Ritter. Names, dates, and other 
identifying information in this letter and the following two letters will not be 
revealed because I do not have the writers' permission to do so and because I am 
afraid that disclosure will work to their prejudice. The letters for February, 
March, and April follow : 

"If you think he [Judge Ritter] has abused defense attorneys before, get and 
read the transcript of [case name omitted]. Ritter has put my father, [name 
omitted] in the hospital with a near massive heart attack. If you can get ahold of 
that transcript (good luck, because we couldn't) you might even have your 
evidence for a full-scale impeachment. It was so bad in court on [days and dates 
omitted] that we even suspect Judge Ritter of ordering the transcript destroyed. 
The reporter would give no reason, but he said he could not make a copy of the 
transcript for us." 

The March entry in this parade is from a California attorney : 

"It was shocking to me the evidence which was kept from the trial and the 
various rulings which the judge made which I felt were inconsistent, not only 
with morality, but sound principles of law. 

"His submission to the jury was probably the most inflammatory piece of 
judicial work that one could imagine and, although this matter is in the Appellate 
Courts at the present time. I wish to compliment you for your attempt to bring 
about a much more equitable judicial system under which citizens may litigate 
their various issues and disagreements at law. 

"This case is probably the most flagrant abuse of judicial discretion which 
we have been apprised on in the last 15 years." 

The March entry comes from a Utah attorney : 

"I recently completed a trial before a jury in Judge Ritter's court. The 
tyranny that takes place withm those walls cannot be felt by or described to 
others who do not witness it. When a description is attempted the listener simply 
shakes his head in disbelief. The abuse of Utah citizens who are called as jurors 
is painful to observe. Litigants who have the misfortune to find themselves in 
his court are battered from side to side at the judge's irrational whim. Witnesses 
are ridiculed and dimissed, hardened criminals are allowed to go free because 
of an expressed hatred the judge has for the United States Attorney. The list can 
go on and on." 

The examples for May are contaiend in Appendix II. 

Let me conclude with the conclusion of another : Joseph C. Goulden, author of 
a recent book on federal judges. After discussing Judge Ritter for several pages, 
Mr. Goulden says : 

"At one point I had decided that Judge Willis Ritter, the perpetual-fury ma- 
chine of Salt Lake City, deserved the honor [of ultimate Expletive Deleted 
judge of the federal courts]. Ritter's bad temper, however, seems to be fired by age 
and whiskey more than by innate meanness and, as is true of any ricocheting 
object, he occasionally lands on the right side of an issue." 

J. Goulden, The Ben clue armers, p. 378 (Ballantine Books: 1974). Judge Ritter 
had to settle for second ; first place went to a Los Angeles judge. 

These kind* of points are made over and over in letters, in newspapers, and now 
in books. It's time we no longer reward such behavior with special "grandfather" 
protection. This is the very least that can be expected of a government of laws. 



10 

Mr. Chairman, whui more can be said? Who else needs to speak? What further 
actions need to be taken? How much more time needs to pass? "The condition in 
the State of Utah has been a scandal among the Bar in Utah and Idaho and the 
Western States for many years." * Let's take the time now to correct it. 

Thank you. 

* Letter from Marion J. Callister, United States Attorney for the District of Idalio, 
to Jake Gam, May 12, 1976. 



FEBRUARY W. 1976 

VOLUME V NUMBER 5 




A DISCERNING GUIDE TO THE STATE 

Tne Af.s ■ C■^,■^■■".^^'fr ■ D" '^g ■ Med. a ■ People ■ Politics ■ Spons ■ Tt^vel 



RITTER 

Paranoia & Paradox 
on the Federal Bench 




Ski ioiirin^: 

IhatOldWhiteMaiiii 'g- 
Breakfast in Bed: 
UH Re>ic\vs Hospital I ikhI 



Pabanoia and Paradox on the Federal Bench 

"Chief Judge Willis W. Ritter has established a reputation as one 
of the most cantankerous and frequently overturned jurists in American 
jurisprudence." 

(By M. Dallas Burnett and Nelson Wadsworth) 

At first glance, the short, rotund man with silvery white hair appears Jovial 
and kindhearted. Dress him in a red, fur-lined suit and a beard and he could 
easily pass for Santa Claus ... but not for long. 



11 

As he sits in his courtroom in the Post Olfice Building in Salt Lake City, 
glowering down at a steady parade of lawyers, defendants, witnesses and law 
enforcement officers, his demeanor quickly dispels the notion and image of a 
good-humored government St. Nick. 

In 25 years on the Federal bench, Chief Judge Willis W. Ritter has established 
a widespread reputation as one of the most eantanKerous ana frequently over- 
turned jurists in the history of American jurisprudence. 

One California lawyer, his legal pride recently trampled underfoot in Ritter' s 
courtroom, put it this way : "That Federal judge in Salt Lake City has got to be 
the meanest s.o.b. east of the Pacific Ocean . . ." 

On the other hand, a handful of respected Utah lawyers — most of them Rit- 
ter's friends — call him "one of the most brilliant legal minds on the Federal 
bench." They claim the judge's irrascible image was created by a hostile press 
in retaliation for the bullying reporters and photographers receive in his court. 

The press' view of Judge Ritter has resulted in the coining of a new word in 
Utah legal circles, "Ritterisms." These are the legions of stories, incidents and 
timely little anecdotes that surromid the legendary life of the 76-year-old jurist, 
making him one of the most controversial judges in the Federal judicial system. 
"Ritterisms" would fill volumes, but here are a few examples : 

Once in 1952, the judge had the U.S. Marshal haul the postmaster and scores 
of postal employees before the bench, threatening to hold them in contempt if 
they failed to silence some noisy mail elevators that "sounded like a bowling 
alley and disturbed the peace of the court." 

Another time he banned cameras and tape recorders from the entire Federal 
building to "protect the rights of defendants and witnesses who did not want 
to be photographed or interviewed." 

In 1969 he consolidated 69 habeas-corpus and civil rights cases filed by inmates 
at Utah State Prison. The order turned the second floor of the Post Office build- 
ing into an armed camp as the heavily-guarded convicts were brought into the 
courtroom en masse. 

In another case. Judge Ritter ordered a divestiture plan in the far-reaching 
El Paso Natural Gas-Pacific Northwest Pipeline antitrust action which was 
rejected by the U.S. Supreme Court. In handing down the decision, the high court 
ordered the federal judge in Utah to remove himself from the case because of 
prejudice, an almost imheard of procedure in Supreme Court opinions. 

Once in 1973 the judge issued a 10-day restraining order prohibiting police 
from issuing parking tickets in downtown Salt Lake City. Although the order 
was later overturned by the 10th Circuit Court of Appeals, it created temporary 
traffic chaos in the heart of the Utah capital city. 

And just two months ago. Judge Ritter dismissed a Federal Grand Jury right 
in the middle of what jurors called "a most important criminal investigation." 
He abruptly called the panel into his courtroom and without explanation ordered 
it to go home. 

Ritter's ban on photographers and artists in his courtroom deserves further 
comment because it illustrates his treatment of newsmen. The gap between the 
judge and the press culminated in the celebrated "TV sketching case" in 1973. 
Salt Lake City media, true to form, fearfully sidestepped any confrontation 
with the judge. 

The story unfolded just three years ago this month when a Salt Lake City 
television station broadcast sketches of a trial underway in Judge Ritter's court, 
apparently in violation of a 1969 order prohibiting drawings. A few days later 
station management and certain news personnel found themselves facing a con- 
tempt citation. 

During the contempt hearing, it was discovered the sketches had not been 
drawn in the courtroom. They were done from memory after the artist had 
visited the court. The judge conceded that the television news people may no_t 
have totally understood his order about courtroom sketching, so the contempt 
citation was not pressed. But the sketching order was promptly amended so 
no one else could misunderstand its intent. 



12 

The new order, issued Feb. 2, 1973, talked about a ban on drawings, "whether 
the cartoons, artists' sketches, caricatures, or whatever they may be called, are 
made on these premises or elsewhere." 

That order gave the Utah Federal District Court the distinction of being the 
only one in the United States where sketching from memory is prohibited. Only 
the state courts of Rhode Island also prohibit in-court sketching. 

The only other Federal court issuing an order similar to Judge Ritter's was 
in Florida, also in 1973. That judge was told by the Fifth Circuit Court of 
Appeals, however, that the rule was inappropriate and that "persons are per- 
mitted to unobtrusively make sketches within the Courtroom during public 
sessions ... or to sketch from memory and thereafter publish, or both." 

Unfortunately, the Utah rule was not challenged so there has been no oppor- 
timity for a higher court to rule on its constitutionality. There is little doubt 
that it would not stand up under a legal challenge. 

The neglect of the newspapers and uroadcusier-s in Salt Lake City in this mat- 
ter may be just as serious as the judge's order. The late Supreme Court Justice 
Hugo L. Black probably put his finger on this sort of media attitude in a 1967 
case comment : "If there is any one thing that could strongly indicate that the 
Founders were wrong in reposing so much trust in a free press, I would suggest 
that it would be for the press itself not to wake up to the grave danger of its 
freedom." 

The First Amendment to the United States Constitution, along with the 
Fourteenth Amendment, prevent the federal government and the states from 
restraining publication or otherwise interfering with the rights of free expres- 
sion. Those rights, of course, are not absolute, and there are some areas of ex- 
pression like sedition, obscenity and libel that may be punished after the fact. 
But preventing publication in advance has always been unacceptable to the 
U.S. Supreme Court except in a few rare instances. 

The Ritter order, it should be remembered, is a prohibition against reporting. 
In other words, the judge not only says what can take place in his courtroom, 
but he is dictating, at least in a narrow area, what may be reported. 

Several illustraaons may serve to put the sketching ban in perspective against 
the backdrop of First Amendment guarantees. 

In a 1972 case in Baton Rouge, La., a federal district judge said there could 
be no report carried by newspaper, radio, or televi.-ion of the testimony of a 
specific day. That order was struck down by the Fifth Circuit Court of Appeals 
in rather forthright language : "... a blanket ban on publication of Court pro- 
ceedings so far transgresses First Amendment freedoms that any such absolute 
proscription 'cannot withstand the mildest breeze emanating from the Constitu- 
tion' . . . Censorh^hip in any form — judicial censorship included — is simply in- 
compatible with the dictates of the constitution and the concept of a free press." 
Judge Ritter made an interesting and humanitarian argument for his sketch- 
ing ban. He suggested that people have a right to come to the court "without 
being held up to degradation by grotesque representations of their physical 
characteristics . . . and a constitutional right ... to be free from being made a 
public display of." 

His concern for the privacy and welfare of those who do business in his court 
may be ethically laudable, but it hardly stands as a legal right. There are neither 
statutes nor case law that grant a "constitutional right" to be free of publicity 
when you go before the federal courts. Even if one accepts the presumption that 
all courtroom drawings are "grotesque representations" and subject a person 
to "ridicule," the laws of privacy and libel, as interpreted by the Supreme Court, 
prevent recovery unless it can be shown that the statements or pictures are made 
with actual malice. 

The most telling argument against this order forbidding an artist from leav- 
ing the counroom, drawing the scene from memory and then having that sketch 
televised is the First Amendment itself. 

"A trial is a public evenc," according to Justice William O. Douglas in a 1946 
case. "What transpires in the courtroom is public property . . . Those who 
see and hear what transpires can report it with impunity. There is no special 
perquisite of the judiciary which enables it, as distinguished from other in- 
stitutions of democratic government to suppress, edit, or censor events which 
transpire in proceedings before it." 

Since the person who draws in a courtroom can do so, if he desires, with httle 
more distraction to tne participants than the person who takes pencil notes, it 
is unnecessary that the physical act of drawing interfere with the proceedings. 
The drawing Is simply another technique for reporting court activities. 



13 

In striking down the federal government s attempt to censor the Pentagon 
Papers in 19(1, the Supreme Court said tliat a prior restraint on expression 
carries a "heavy presumption against its constitutional validity." The weight 
of the presumption is established by the rarity of cases sustaining any activity 
that could be considered prior restraint. 

Judges can impose prior restraints that are constitutional only in extreme and 
limited circumstances. Ihe circuit court that knocked down the sketching order 
in Florida said, "Before a prior restraint may be imposed by a judge, even 
in the interest of assuring a fair trial, there must be an 'imminent, not merely 
a likely, threat to tiie administration of justice. The danger must not be remote 
or even probable ; it must immediately imperil.' " 

It is obvious that the gag order on sketches was not designed to protect from 
some terrible danger to the administration of justice. It was directed at getting 
privacy for the people coming to the courts and keeping the media out of the 
province that the judge considered exclusively his. 

That hardly justifies the prior restraint. 

In contrast to the Utah media's example, one eastern newsman boldly delved 
into Judge Ritter's alleged "ecumenical meanness." Investigative reporter Joseph 
Golden, formerly with the Philadelphia Inquirer and now a free-lance writer in 
Washington, D.C., recently wrote a book entitled The Benchicarmers, in which 
he explored the temperaments of the country's Federal judges, including Judge 
Ritter. In one chapter, Golden wondered if any of the jurists he had been 
writing about would qualify for the title of "ultimate Expletive Deleted judge 
of the Federal courts?" 

"At one point I had decided that Judge Willis Ritter, the perpetual-fury 
machine of Salt Lake City, deserved the honor," Golden wrote. "Ritter's bad 
temper, however, seems to be fired by age and whiskey more than by innate 
meanness and, as is true of any ricocheting object, he occasionally lands on the 
i-ight side of an issue. Let me say that again : Ritter sometimes makes a humani- 
tarian decision, but maybe only because he is madder at the bad guys in the 
case than he is at the good guys." 

And so Golden passed over Judge Ritter for the dubious "ultimate Expletive 
Deleted" title and gave it instead to Judge Charles Carr of Los Angeles. 

For many people in Utah, however. Judge Ritter has been in the process of 
earning such a title ever since a series of heated Senate hearings in 1949 and 
1950 ended in confirmation of his appointment by President Truman. Emotions 
about the judge's courtroom conduct have simmered behind the scenes for years 
in the law offices in Salt Lake City, but it \^asn t until 1973 that the Utah State 
Bar would publicly acknowledge there might be a problem. In that year, at the 
association's annual meeting in Provo, the public debate over Ritter's alleged 
"irregular conduct'' and supposed "bias'' against certain lawyers began. 

Calvin Behle, a well-known lawyer in Salt Lake City and then Utah delegate 
to the House of Delegates of the American Bar Association, introduced a resolu- 
tion to ask Congress to repeal the "grandfather clause" in the Judiciary Retire- 
ment Act of 1958. This clause had initially been tacked onto the Act as an 
amendment in the Senate, allowing Idaho Democratic Senator Frank Church's 
father-in-law to continue to serve as chief judge after retirement age. Under the 
act, federal judges must retire from chief judge status at age TO, except then 
incumbent chief judges in two-judge districts. Currently, Judge Ritter is the 
only one left on the bench. If the clause is repealed, he would remain as a Federal 
judge, but would have to relinquish his administrative powers, including the 
power to assign cases. 

Behle's resolution was adopted by a 2-to-l margin. But only about lOO of the 
Utah Bar's 1,383 members were at the convention. Some pro-Ritter lawyers w^ere 
enraged by the move. 

"The entire business was carried out in a most shoddy and Illegal manner," 
declared John J. Flynn, University of Utah law professor. "Such a procedure 
would do credit to those who planned Watergate and is just as unfair, illegal, 
and unethical." He also called it a "sneaky, underhanded attack on the inde- 
pendence of a Federal judge." 

The association's Board of Commissioners finally determined the resolution 
had been "improperly introduced" and declared the action in Provo to be "null 
and void." 

"They left me holding the bag," Behle said, shaking his head. "They are 
afraid because they have to plead cases before Judge Ritter." 



14 

But the Behle resolution didn't die. In secret, statewide balloting authorized 
at the association s mid-winter meeting a few months later, 815 of the 1,049 
lawyers who responded said they favored repeal of the grandfather clause. The 
Board of Commissioners voted to send copies of the resolution to Utah's con- 
gressional delegation. 

Then Rep. Wayne B. Owens, a Democrat serving on the House Judiciary 
Committee, received the resolution but did nothing. "I'm not going to get caught 
in the Utah Bar's popularity contest for a Federal judge," Owens said shortly 
before running on the Democratic ticket for the Senate seat vacated by Republi- 
can Wallace F. Bennett. His GOP opponent in that campaign was then Salt 
Lake City Mayor E. J. "Jake" Garn, an outspoken critic of Ritter. 

Shortly before the election, Garn lashed out at the judge's reversal rate in 
cases appealed to the 10th Circuit Court. "When a Federal judge is overruled 
80 per cent of the time," Garn declared, "... then it is obvious he is not 
doing his job. Judge Ritter has also displayed an obvious, strong bias against 
Salt Lake City in cases that have appealed ueiore hini. We leel we cannot get 
a fair hearing in his court." 

Garn went on to defeat Owens in the 1974 election. Just what effect the 
Ritter issue had on the outcome is not known, but it may have hurt the Demo- 
crat's campaign. At any rate, the Republican senator is now in Washington, 
pushing for repeal of the grandfather clause. 

Garn's estimate of appeals court reversals was based only on a survey of the 
habeas-corpus cases appealed irom Ltaa. Of 39 cases, 'do were overturned on 
appeal. Nevertheless, Judge Ritter's overall batting average in the higher courts 
is a little better. 

Deputy Attorney General Robert B. Hansen, another outspoken Ritter critic 
who is writing a book about the Federal judiciary, claims more than 60 percent 
of the judge's civil ca.ses eilher in whole or in part have been reversed by the 
10th Circuit Court since 1949. In 284 cases, Hansen said, only 111 have been 
affirmed. 

Hansen's analysis, prepared with the help of retired lawyer Randoph Collins, 
also showed 43 percent, or 22 out of 51 criminal cases reversed. 

Professor Flynn said Ritter had a poor i-ecord in what he called "the con- 
servative" Court of Appeals in Denver but had a "fair" record in the Supreme 
Court. "I don't agree with all his decisions," Flynn said, "but dammit, he makes 
them, and some pretty tough ones at that. . ." 

Despite Flynn's claim, Judge Ritter's record in the U.S. Supreme Court is 
apparently not impressive either. In at least two cases, the high court instructed 
him to step aside because of obvious bias and prejudice. In the El Paso Natural 
Gas antitrust case, Ritter announced from the bench that the government had 
lost and instructed company lawyers to prepare findings of fact and conclusions 
of law, which he later signed without change. 

"We would have to wear blinders," said Justice William O. Douglas after 
the subsequent appeal, not to see the illegality of the merger. The Supreme 
Court then ordered an immediate divestiture of Pacific Northwest Pipeline 
by El Paso. Later, even with the high court's mandate. Judge Ritter permitted 
the company to file its own divestiture plan which still reeked of the old 
monopoly. 

Finally, in an unprecedented move, the Supreme Court rejected Ritter's 
divestiture plan and ordered him removed from the case implying the trial 
judge's "personal and emotional involvement." 

A similar fate awaited the so-called "Indian pony case" in which an im- 
poverished group of Navajos claimed the Bureau of Land Management had 
rounded up their herds of horses and burros in southeastern Utah and drove 
them from the range, killing many in the process. The Indians sued the govern- 
ment for $100,000. Following a complicated back and forth exchange with the 
10th Circuit Court, and finally an affirmation of Ritter's ruling in the Supreme 
Court, the case was remanded to Utah to fix damages. Ritter ended up awarding 
the Indians more than $186,000, nearly double what they had asked in the 
original complaint. 

The government once more appealed, and after much wrangling back and 
forth, the circuit court and the Supreme Court instructed Ritter to remove 
himself from the case. In its ruling, the circuit court pointed out Ritter"s 
emotional involvement and failure to give calm, impartial consideration to the 
defendants. 



16 

Some attorneys in Salt Lake City claim there is a certain group of "fair- 
haired" lawyers, most of them liberal Democrats, who win every case in Ritter s 
court. But even some Democrats say they "do not get a fair shake." 

"Judge Ritter doesn't stand for any monkey business,"' says A. Wally Saudack, 
a Democrat and friend of the judge. "If you go into his court unprepared, or 
if vou trv to gas around a lot and act unprofessional, you are in serious trouble. 

'•If they reallv want to go after Judge Ritter," adds Professor Flynn, then 
they should impeach him, as specified by law. But they know damn well there 
are no grounds for impeachment." 

One group did try to have Ritter impeached in 1973, and petitions were 
actually circulated in Utah. The movement, however, had an extreme right 
wing tinge to it, and was led by disgruntled plaintiffs and defendants who had 
suffered defeat in Ritter's court. Their claim that the judge had accepted a 
$20,000 bribe from a defendant in a felony case was outlined in a "friend of 
the court" petition filed in the clerk's office, but the U.S. attorney said the 
accusations were groundless and the public gave the charge little credance. 
Thus, the impeachment petition fizzled. 

Ritter's brush with impeachment is perhaps miniscule compared to his diffi- 
culty with Federal Grand Juries. In 1970-71 he was accused of "manipulating" 
a grand jury called to investigate the Salt Lake County Jail. The late U.S. 
Attorney C. Nelson Day, shortly before he was killed in a traffic accident last 
year, told a group of journalism students from Brigham Young University that 
the judge had hand-picked the jurors, including foreman Maurice Warshaw, 
contrary to federal law specified for impaneling grand juries. 

"When it came time for charges," Day said, "the jury really didn't have 
anything to go on, but it wanted to return indictments anyway. I refused to sign 
them, with the backing of the Justice Department. The next thing I knew, Judge 
Ritter was releasing them to the press." 

Another grand jury debacle splashed into the headlines only two months ago 
when Ritter abruptly dismissed the last term jurors right in the middle of an 
investigation. Mrs. Tyko (Marjorie) Kangas, who said she was speaking for 
the resl: of the jurors, decried the judge's action as a horrendous waste of tax- 
payer's money and a grave handicap to federal law enforcement in Utah. 
"When I walked out of that courtroom I wanted to cry," she declared. "I 
wondered, 'is this really America?' It seemed to me more like a dictatorship, 
where the people have no where to turn." 

Mrs. Kangas fired off a scathing letter to U.S. Senator Frank E. Moss CD- 
Utah) who in the past has remained silent on the Ritter matter. The former 
juror, a registered Democrat, promised to campaign against Moss in the 
upcoming election if he failed to support repeal of the grandfather clause. 
Moss, somewhat reluctantly, admitted recently, he thought the time had come 
for Ritter to step down as chief judge. 

During World War II, Ritter was appointed regional director of the Office 
of Price Administration in Denver, supervising rent controls in Colorado, 
Montana, W^yoming, Idaho, Utah and New Mexico. In the Senate hearings on 
his appointment to the bench, one of his colleagues in the OPA, H. Grant Ivins, 
a former district director, wrote a fiery letter to the subcommittee declaring 
Ritter an "unfit candidate" for the judgeship. Ivins called Ritter "arbitrary, 
tyrannical, and arrogant." He said he had talked to many prominent Utah 
lawyers about the matter and "I have yet to find one who does not say that 
such an appointment would be little short of a calamity." 

Yet the Utah State Bar and Salt Lake County and Weber County Bar Asso- 
ciations endorsed Ritter, and it was their support that enabled Rep. Walter 
Granger and outgoing Sen. Elbert D. Thomas — who had made the nomination 
in the first place — to clinch the confirmation. 

Repeated attempts to interview the judge usually end in failure. He gen- 
erally refuses to talk to new-smen. Following the Utah State Bar's poll in 
1974, he did grant a rare, brief interview to a Salt Lake City television station. 
At that time he said he didn't "care two bits" about the Bar's move to take 
away his chief judge status. "This is a fumbling, bumbling political tactic by 
a poor chap who is trying to make a political name for himself and has no other 
issue," Judge Ritter declared. He said Deputy Attorney General Hansen — then 
a candidate for the Republican nomination for Congress — "Conceived and pro- 
moted" the poll among Utah lawyers. 



16 

At Zion'a Book Store a block from the Post Office, owner Sam Weller says 
Ritter is one of h's best customers. "He is a man greatly misunderstood by the 
public," Weller adds. 

"He is what a Federal Judge ought to be," says another lawyer friend, "an 
advocate of the law who cannot be blown to and fro by every special interest." 

LIST OF ALL CIVIL CASFS PUBLISHED IN FEDERAL REPORTER FOR THE lOTH CIRCUIT COURT 
OF APPEALS IN 1975 WHICH WERE TRIED BY CHIEF JUSTICE WILLIS W. RITTER 



R.S.C. 

lop No. N?me Citation Disposition 

189 AmeriMn Oil Co. v. McMiillln 508 F. 2d 1345 Reversed in part. 

Affirmed in part. 

190 Muller V. U.S. Steel Corp 509 F. 2d 923 Do. 

191 Shuput V. Heublem, Inc 511 F. 2d 1)04 Reversed. 

192 LittleReflHnusev.Oualitv Ford Sales, Inc. 511 F. 2d 210 Reversed in part. 

Affirmed in part. 

194 Slauggterv. Brigham Young University... 514 F. 2d 622 Reversed. 

195 G. M. Leasing Corn. v. United States 514 F. 2d 935 Reversed in part. 

Affirmed in part. 

196 Redd V. Shell Oil Co 518 F. 2d 311.. Reversed. 

197 United States V. Browning.. 518 F. 2d 714 Do. 

1S8 United States V. Hansen Niedertiauser Co 522 F. 2d 1037 Do. 

199 Little Red House v. Oualitv Ford Sales, Inc. 523 F. 2d 1 Do. 



17 



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18 

Judge Ritter : The Man & The Myth 

"You're dealing with an enigma, there's no doubt about it," con- 
cedes a friend. "How can he be both compassionate and rude? He's 
human and 76." 

(by Blaine Jarvik) 

The man will not sit for his portrait. And so the artist goes to the man's 
family and asks: "What about his eyes? Are they brown or blue?" "No com- 
ment," says the family. "Why open old wounds?" 

And what about tne shape of the face? The artist asks the man's friends. 
"Ah," they say. "The shape of the face. Too private a matter." The artist goes 
to the man's colleagues. What about the smile? "No smile at all," say some of the 
colleagues with assurance. "A very big smile," insist the others. 

And so the artist does the portrait : One blue eye and one brown ; a face that is 
at once oval and square ; a smile that begins as a grin and ends in a sneer. 

Judge Willis Ritter did not authorize this "biography," as he would call it. 
And, to no one's surprise, he refused to be interviewed. But he did relay this 
message through his daughter : "If you and your editors continue to pursue 
this matter, you will have to accept the risks and consequences, whatever they 
may be." In accordance with his wishes, other members of his family have also 
declined interviews. 

What do we know, then about Willis William Ritter, Chief Judge of the U.S. 
District Court of Utah? That he has lunch very regularly at Lamb's Grill, and 
also frequently enjoys a Chinese meal. That perhaps his favorite song is Nat 
King Cole's Mona Lisa. That he has watched tiie entire Ascent of Man television 
series more than once. That he is a very private public man. 

It appears certain that this man was born on Jan. 24, 1899 in Salt Lake City, 
and that soon afterwards his parents moved to what is presently called "The 
Homestead" in Midway, Utah, but was then called "Ritter's Hot Pots." When 
he was still a young boy, he moved with his family (eventually to number four 
children) to Park City, where his father mined, went on strike, and often had 
to feed his family on credit. 

Young Willis did well in high school, was a private in the U.S. Army during 
World War I, and worked in the mines for one or two years when he was 
about 20. And sometime either between those occasions or afterwards, he nearly 
died of the flu. It was while recuperating, he once told a Deseret News reporter 
in one of his rare interviews, that he began reading a law book that was lying 
around the house. With money earned in the mines, he helped pay his way 
to law school at the University of Chicago, where he graduated with a LLD in 
1924. 

In those days it was possible to be admitted to law school directly from high 
school, and it wasn't until 13 years later, after he had already been teaching for 
many years as a professor at the University of Utah College of Law, that 
Ritter went back and got his bachelor's degree from the U. He made Phi Beta 
Kappa. In 1940 he received a SJD degree from Harvard Law School. 

According to Who's Who, Ritter practiced law in (liicago, Washington and 
Salt Lake City for a total of 16 years, some of those while he was also teaching 
and getting his bachelor's degree. During World War II he served as regional 
director of the Office of Price Administration in Denver. In 1948 he was nomi- 
nated for Congress from the Second District (Salt Lake and Tooele Counties) 
by Democrats. In January, 19.'50, he was appointed by Democrat Pre.sident 
Harry Truman to become Utah's federal judge, after serving an interim term, 
an appointment bitterly contested by many Republicans, some lawyers, and 
some members of the LDS Church (some of these fearing he would not rule 
to their liking). He became chief judge in 1956. 

He has four children, two of whom live in Salt Lake. He has a farm in Idaho, 
is separated from his wife and lives alone in the Newhouse Hotel. 

"You're dealing with an enigma, there's no question about it," concedes one 
lawyer who greatly admires the judge and has enjoyed a long personal rela- 
tionship with him. 

And perhaps the biggest enigmas are these : That a man whom even his 
detractors agree is "brilliant" can at times be vindictive and petty. And that a 
man whf)m even his critics agree has an overwhelming compassion for "the 
little guy," can at times be so intolerant of. and rude to. individuals. 

"How can he be both compassionate and rude?" asks the lawyer friend. 
"You're back to the fact that he's human . . . and 76." Ritter will turn 77 while 
this issue of Utah Holiday is on the newsstands. Only his very severest critics 



19 

feel that his intelligence has begun to show the effects of that age. (Ironically, 
the man he succeeded, Judge Tillman Johnson, didn't retire until age 91.) 

Kitter is an intellectual as well as an intelligent man. He appears to have 
few hobbies other than reading — but his reading interests are wide: history, 
politics, philosophy, biography, current events. He has a passion for Thomas 
Jefferson. He loves to philosophize, is an entertaining conversationalist, enjoys 
a good laugh. He is a collector of art— a legacy of a favorite uncle, Utah artist 
Willis Adams — and has recently donated a total of 111 Navajo blankets and 
rugs to the U of U Museum of Fine Arts. 

Many people consider him one of the brightest professors ever to have taught 
at the U law school. He may also have been one of the most arrogant and 
demanding (in a profession that has traditionally cultivated both), a man 
whose own capacity for detail and insight has made him intolerant of those 
who are less endowed. "He doesn't suffer fools gladly," notes one colleague. 

When he became judge, after 25 years as a professor, he took this style 
with him. 

"I've seen lawyers come out of his courtroom crying — and some who have 
literally thrown up," recalls one Salt Lake lawyer, who, like many other 
lawyers questioned, preferred to remain anonymous for fear of receiving court- 
room reprisals from the judge. 

He has been known to tell attorneys — and witnesses as well — to "shut up;" 
has told witnesses he doesn't believe them ; has threatened lawyers with "one 
of those 15-cent meals" at the County jail. Most often these insults are con- 
veyed in a loud voice. 

Some lawyers argue that he only humiliates those lawyers who are unpre- 
pared or incompetent, or those he feels are trying to abuse the legal system. 
But others argue that the unpreparedness is sometimes a result of the short 
notice he allegedly gives, and that his sarcasm and his wrath fall also upon 
competent, prepared lawyers who happen to be out of favor with the judge, or 
are representing a client the judge doesn't like. 

"I have very mixed emotions about him,"' admits one lawyer. "I have a deep 
respect and a feeling of warmth for him. But I despise the way he acts some- 
times." Irascible and unpredictable are the adjectives that seem to pop up most, 
even among his admirers. Those who like him less also call him tyrannical and 
capricious. 

All four traits may be due in part — or at least aggravated by — what is 
politely known as the judge's "drinking problem." It is reported he can be 
abu.sive when intoxicated, even to his friends. "Its like Dr. Jekyll and Mr. Hyde 
when he's been drinking," says a former drinking companion, although the 
judge has a reputation of holding his liquor well in some quarters. 

Although he may be less than discreet about such matters, no one seems to 
question his propriety on the bench. 

"I have no doubts that he is an honest judge," adds one lawyer. "But I some- 
times wonder if he is intellectually dishonest" — that he sometimes lets his 
bia.ses stand in the way of justice and/or legality. 

His compassion for Indians, poor widows and young first offenders is legend- 
ary, and probably stems in part from his poorer days in and near the mines. 

"Some of the more moving moments of my life have been sitting in his court- 
room listening to him counsel a convicted young person," says one very promi- 
nent Salt Lake lawyer. Outside the courtroom he has been known to spend hours 
with a hospitalized prisoner giving grandfatherly advice on the evils of drugs. 

"His colicky first grandson found relief on the ample slant of 
his grandfather's lap . . . Even panhandlers find him a soft touch." 

He is described by one close friend as sentimental. And when his first grand- 
son was a newborn, allergic to milk, the colicky baby often found relief by lying 
on the ample slant of his adoring grandfather's lap. Even panhandlers find him 
a soft touch. 

Sentencing of prisoners — the most critical and lonely of a judge's duties — 
is performed by Judge Ritter with great compassion and concern, say lawyers 
who have clerked for him. Sometimes, in fact, his compassion leads him to later 
mitigate harsh sentences if he learns of extenuating family circumstances (a 
sick mother, many mouths to feed). 

"The judge has a very open willingness to reconsider matters," notes one 
lawyer, who adds, however, that sometimes the compassion forgets what the 
evidence had originally dictated. 

On the other hand, Ritter is reputedly a man who holds on tightly to a grudge. 
After his nomination to the federal bench was finally approved by Congress, 



20 

according to a once close friend, the Judge found out which lawyers had written 
letters opposing that nomination. It has been reported that those attorneys later 
suffered his wrath when appearing in his court. 

Another of the Judge's grudges, apparently, is Gov. Calvin Rampton, who, 
as a lawyer, represented Ritter's wife in the couple's separation settlement 
in 1958. , ^ 

His biggest grudge, however, is reserved for the press, which he feels has 
reported inaccurately and unfairly during his years on the bench. He has at 
least twice thrown reporters from his courtroom, for no apparent reason, and Is 
reportedly the only judge in the country to ban sljetching for television reports 
of the trials in his courtroom. His view of the press is apparent in his contention 
that this ai-ticle for Utah Holiday was not "authorized." 

And then there are the lawyers for whom he has no particular vendetta, but 
for whom he has no great love either. Perhaps it is because he considers them 
incompetent; perhaps it is the firm they are with, or the clients they represent. 
One is never sure. 

Whatever the reasons, there are lawyers in this town who have to turn down 
potential clients whose cases are scheduled for Ritter's court, explaining : "In my 
current status with Judge Ritter, it would be unfair for me to take your case." 

Conversely, says one of these lawyers, who once liked the judge, "knowledge- 
able clients will go to cei-tain lawyers because they're more likely to win" (in 
front of Ritter) — or at least get kinder treatment and favorable rulings. Other 
lawyers strongly deny that Ritter judicially favors his favorite lawyers. 

There are people who feel Ritter is the best jurist Utah has ever had, and there 
there are people who have been trying for years to impeach him. 

His health is not as good as it once was, although since an oi>eration last year, 
apparently to remove one kidney, he seems in better form. 

As for resigning, his friends say he'll never do it — not until there is a Demo- 
crat president who will appoint a Democrat judge. And maybe not even then. 

One Man's Justice 

". . . his legal vendetta wells up from a reservoir of undisguised 
antipathy for judges' 'absolute immunity' and many Utah lawyers." 

Julius Petrofsky isn't intimidated by the physical and judicial altitude of 
U.S. District Court Judge Willis W. Ritter. After all, most of Petrof sky's oppo- 
nents (and allies as well) poke their heads at least a few inches higher into the 
atmosphere than he does. What Petrofsky may lack in height, he makes up in 
dogged determination. 

Petrofsky "grew up" in Jersey City, New Jersey, where Mayor Hague's slogan 
was, "I am the law." "And he was the law as in many boss-ruled cities," Petrof- 
sky' exclaims. 

Petrofsky's mother topped out at just over four feet and he left home at 15 
to join the Our Gang Comedy team in California where he was dwarfed by many 
of the adolescents. "My whole family is short, except my son who is 6'2" and 
traveling in Nepal right now. I just got a letter from him the other day asking 
for the $1000 I borrowed a while back. I don't have it." 

He doesn't have the money, Petrofsky says, because he wedged his whole 
bankroll into legal proceedings, most of which have something to do with Judge 
Ritter. 

Petrofsky's singleness of purpose in these matters led him to leave his Berkeley, 
California home and take an apartment in Salt Lake City for the duration of his 
legal struggles. "It takes only one person, but you have to be willing to stick your 
neck out as far as it will go," Petrofsky says. 

Oft-times overbearing in his steadfast determination to see "justice prevail," 
Petrofsky continually emphasizes his motives are not based on a case of "his per- 
sonal ox being gored," but an all consuming desire to "right some wrongs." 

The intense explosive-dealer's legal vendetta wells up from a reservoir of undi.v 
guised antipathy for "Judge Ritter, many Utah lawyers and 'absolute immunity' 
for judges." Beyond his current litigation he sees certain judicial decisions as 
more evil and long-lasting than the most self-serving U.S. president or Congress at 
Its worst. "Presidents and Congresses come and go, but when a corrupt jud^e 
gives a corrupt decision that's used as precedent, it keeps working its evil influ- 
ence for hundreds of years," he emotes. 



21 

Frustration with his own litigations and legal research have probably made 
Petrofsky a little cynical : "Most people don't know that lawyers are officers of 
the court and are not under oath in court and therefore cannot be had for perjury. 
It is up to the judge if he chooses to apply contempt of court deceit of the court." 

Petrofsky's leather satchel is nevertheless a supermarket of legal information. 
From it, he extracts maniia envelopes, dozens of them, and he hastily divests 
them of copied depositions, docket sheets, pages from lawbooks, the U.S. Code, 
one after another in a procession marching in time with his volatile verbiage. 

He has performed hundreds of hours of legal research over the past few years, 
presenting it to attorneys, hiring them, dismissing them, losing them, and serving 
as his own lawyer on at least one case. 

How well he has performed his research and how well his attorneys assemble 
and present it will be known in the next several months when the outcomes of at 
least three legal suits are determined. 

It all began about seven years ago when a California corporation of which 
Petrofsky is president sued a Utah corporation to which several million pounds 
of explosives had been sold. Petrofsky's firm and the Utah firm regularly bid 
against each other for the purchase of surplus government explosives 

According to Petrofsky, Judge Ritter gave a summary judgment to the defend- 
ant based on Petrofsky's refusal to give information to the defendant "which 
could later have been used by them in their bidding against my firm." 

The summary judgment by Ritter was reversed by the U.S. Appeals Court, 10th 
Circuit, according to Petrofsky. "It took me over a year to prevent the lawsuit 
from automatically going back to Judge Ritter's court until I found an attorney, 
(former Salt Lake City Commissioner) James L. Barker, who took legal action 
which resulted in getting the matter into Judge (Aldon) Anderson's court." There 
it currently waits further action. That's case No. 1. 

It was after Judge Ritter's summary judgment in this case that Petrofsky 
began to "suspect a connection between Ritter, his decisions and attorneys 
practicing in his court n'ho have also served Ritter as his private legal counsel." 

Petrofsky says that while he was researching this hypothesis in the clerk of 
the court's (Ritter's) office. Judge Ritter issued an oral directive to his staff ban- 
ning Petrofsky from the premises. Petrofsky countered with a suit aaginst Ritter, 
claiming that his ban from public records was illegal, violating his civil rights. 

The case went before Judge Aldon Anderson who agreed with defense attorneys 
that judges have absolute immunity in judicial acts and therefore Judge Ritter 
was within his rights to exclude Petrofsky from Ritter's court area. 

Petrofsky contends that Ritter's act of banning him from access to public 
records was an administrative act and not a judicial act. "Every case coming 
into a court could, by the judge in that court, be sealed in a judicial act," Petrof- 
sky says, "but if it isn't sealed by the judge, it becomes public record." 

"Those records I have been researching are not sealed, they are public records, 
and this is my concern," Petrofsky emphasizes. 

"The U.S. Statute pertaining to public inspection of Court records is an admin- 
istrative function. Title 28, U.S. Code, Section 753, pertains to administrative 
and not judicial acts," Petrofsky says. 

Petrofsky appealed Judge Anderson's decision to the 10th Circuit Court of 
Appeals, which affirmed the defense's claim of "absolute immunity" based on the 
alleged judicial act. 

Now Petrofsky's appeal is before the U.S. Supreme Court, pursued personally 
by him acting as his own attorney. He explains, "only a small percentage of cases 
presented to the Court are even considered and only about 10% of those go as far 
as oral argument. If mine goes that far, I will have to hire an attorney for that 
argument." That's case No. 2. 

Despite his ban by Ritter from the records, Petrofsky has uncovered some 
facts in his research that lead him to believe that Judge Ritter favors attorneys 
from several Salt Lake City law firms. Painstakingly checking lawbooks and 
documents in courthouses and at the University of Utah, Petrofsky has uncovered 
Judge Ritter's private involvements in litigation and took note of the law firms 
representing Ritter in those cases. He then reviewed docket sheets from Ritter's 
U.S. District Court to see how lawyers from these same firms fared in Ritter's 
court. 

His conclusion? "I believe tnere is a pattern of favoritism toward those repre- 
senting Judge Ritter personally in other legal action," said Petrofsky. "The 



22 

lawyers connected to Judge Ritter during the period of 1970-74 were involved 
in 40-some cases before him (not including those involving the state or federal 
government) and they didn't lose one of them." 

Petrofsky's secondary bone of contention in Ritter's outside legal involvements 
is the United States Code. Title 28, Section 455 : "Any justice or judge of the 
United States shall disqualify himself in any case in which he . . . is connected 
with any party or his attorney as to render it improper, in his opinion, for him 
to sit on the trial, appeal, or other proceeding therein." 

While the words "or his attorney" support Petrofsky's arguments, the phrase 
"in his (the judge's) opinion" seems to nullify them. Ritter can simply leave him- 
self on the case. Petrofsky hopes the legal system will remove that decision- 
making power, deeming it unjust. 

Petrofsky says that Title 28 U.S. Code, Section 144 states that it is procedure 
for the attorney of a litigant to file a motion based on the aflSdavit of his litigant 
concerning the prejudice of a judge against that attorney's client. "Judge Ritter 
and a number of attorneys did not reveal their connections in several cases in 
Ritter's court over the past few years and opposing attorneys and their parties 
therefore had no opportunity to file afladavits and motions concerning judicial 
prejudice," Petrofsky said. He therefore disclosed that he will file one or more 
lawsuits against them within the next few weeks. That's case No. 3. 

Another of Petrofsky's research "discoveries" is an alleged conflict between 
what Judge Ritter reported in a government document and that which he said 
in a deposition involving some of his personal litigations. 

Petrofsky says that Ritter testified in a case involving a Trust vs. a corpora- 
tion that he (Ritter) had been one of the Trust's five original trustees, and that 
he had resigned in April, 1970. 

A Public Report of Extra-Judicial Income filed by Ritter for the period 
January 1-June 30. 1970 shows that the judge wrote "none" under all sections 
of the report. Petrofsky points out that the trusteeship may not have necessarily 
involved income for Ritter. but Section V of the report entitled "Positions Held 
During Reporting Period" asks about any official positions. 

It reads : "List all positions held by you in any organization, business or chari- 
table, such as an officer, director or trustee, regardless of whether any compensa- 
tion was received therefore." 

Ritter wrote under the section, "none," and signed the report. Petrofsky says, 
"there's serious conflict there. Ritter leaves a gap of four months, from January 
to April, unaccounted for. His testimony and official report conflict." 

Petrofsky's data on this matter now rests in the hands of U.S. 10th Circuit 
Court of Appeals Judge David Lewis. It was referred to Judge Lewis, according 
to Petrofsky, by the Judicial Council of the United States, made up of only the 
Chief Judges of each of the U.S. Courts of Appeals (about 12). 

While these matters may rest in various stages of litigation and/or considera- 
tion, Julius Petrofsky does not rest. He continues his relentless pursuit for his 
justice. 

Administrative Office of the 

U.S. Courts. 
Washington, D.C., September 21, 1973. 
Hon. Carl Albert, 
Speaker, House of Representatives, 
Washington, D.C. 

Dear Mr. Speaker : On behalf of the Judicial Conference of the United States, 
I am transmitting herewith a draft of a bill, approved by the Conference, to 
amend the Act of August 6, 1958, 72 Stat. 497, relating to service as a chief 
judge of a United States district court. 

The bill would repeal a section of that Act permitting a judge of a two-judge 
district court, serving at that time as the chief judge of such a court, to retain 
his position as chief judge after reaching age 70. All other chief judges of district 
courts, including judges in two-judge district courts who became chief judges 
after the passage of the 1958 Act, must reliquish their positions as chief judges 
at age 70. 

The Judicial Conference believes that this exception, for chief judges of two- 
judge district courts, to the general rule of relinquishing chief judgeship positions 
at age 70 has outlived its usefulness and should be eliminated. 

Accordingly, it is recommended that the draft bill be referred to the appropri- 
ate committee for early and favorable consideration. Representatives of the 



23 

Judicial Conference and of this office will be glad to appear and testify at any 
hearing may be held, or furnish any additional information that may be 
requested. 

Sincerely yours, 

Rowland F. Kirks, 

Director. 

Enclosure. 

[H.R. 10615, 93d Cong., 1st sess.] 

A BILL To amend the Act of August 6, 1958 (72 Stat. 497), relating to service as chief 

judge of a United States district court 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, That section 3 of the Act of August 6, 1958 
(72 Stat. 497) , is amended by changing the first comma to a period and by striking 
all of the remainder of the sentence. 



Administrative Office of the 

U.S. Courts, 
Washington, B.C., May 7, 1916. 
Hon. J,4.KE Garn, 

U.S. Senate, Dirksen Senate Office Building, 
Washington, D.C. 

Dear Senator Garn : Thank you for your letter of May 3, 1976 advising me 
of the hearings on S. 1130 scheduled to be held on May 18. I would appreciate 
it if you will introduce into the public record my letter expressing the support 
of the Judicial Conference for this measure. 

Inasmuch as Chief Judge David Lewis will be testifying in behalf of the 
Judicial Conference as well as in his capacity as Chief Judge of the Tenth Circuit, 
I am sure that much of the information relating to the proposed legislation will 
be submitted in Judge Lewis' testimony. Should you feel that this office can, 
however, be of any further assistance to you in this matter please feel free to 
call on me. 

Sincerely yours, 

Rowland F. Kirks, 

Director. 



Department of Justice, 
Washington, D.C, May 3, 1974. 
Hon. Peter W. Rodino, Jr., 
Chairman, Committee on the Judiciary, 
House of Representatives, 
Washington, D.C. 

Dear Mr. Chairman : This is in response to your request for the views of the 
Department of Justice on H.R. 10615, a bill "To amend the Act of August 6, 1958 
(72 Stat. 497). relating to service as chief judge of a United States district court." 

Under existing law, 28 U.S.C. 136, the chief judge of a district court is the judge 
of the court who is senior in commission and under seventy years of age, unless 
no judge of the district court is under seventy years old. 

The Act of August 6, 1958, which enacted the present version of this section, 
excepted from its coverage the chief judge of any district court having only two 
judges in regular active service so long as the chief judge .sitting on the date 
of enactment continued to be a district judge. H.R. 10615 would delete from the 
Act of August 6, 1958, that exception. 

H.R. 10616 was introduced on the recommendation of the Judicial Conference 
of the United States. The Department of Justice concurs in the recommendation 
of the Judicial Conference that this legislation be enacted. 

The Office of Management and Budget has advised that there is no objection 
to the submission of this report from the standpoint of the Administration'.s 
program. 

Sincerely, 

W. Vincent Rakestraw, 
Assistant Attorney General. 



24 

Jones Day, Reavis & Pogue, 
Washinffton, D.C., July 10, 1975. 
Re S. 1130 
Hon. E. J. Garn, 
Senate Office Building, 
Washington, D.C. 

Dear Senator Garn : Your letter of June 25th, relating to this bill, came to my 
office while I was away on a short vacation. This is the first opportunity I have 
had to respond. I am sorry for the delay. 

The situation with respect to the Chief Judge in the United States District 
Court in Utah is unique, and, I think, unfortunate. It is now nearly twenty years 
since Congress provided by law that no judge should serve as a Chief Judge after 
he reached the age of 70, with a few special exceptions. There is now only one 
judge in this special group, and the reason for any exception no longer exists. 

Several years ago, while I held the office of Solicitor General of the United 
States, I was concerned about this situation. I got in touch with Congressman 
Emanuel Celler, the Chairman of the House Judiciary Committee, and with Con- 
gressman William M. McCuUoch, then the ranking minority member of that com- 
mittee. I spoke to them because I had been dealing with them on a matter involv- 
ing an amendment of the Criminals Appeals Act. Both Congressmen Celler and 
McCulloch were interested in the repeal of the proviso in the Act of August 6, 
1958. However, they reported to me that neither Senator from Utah would sup- 
port such a statute, and that tliey felt that there was no prospect of proceeding 
successfully in such a matter without the support of at least one of the Senators 
from the area involved. Consequently, the matter was dropped. 

I am very glad to learn that you are interested in this provision, and I hope 
that you will continue to support S. 1130. The basic policy of 28 U.S.C. 136 — 
namely, that a judge shall cease to be Chief Judge upon reaching the age of 70 — 
is sound, as has been shown by a great deal of experience in our juaicial system. 
It is quite unwarranted, it seems to me, to have a special provision in our statutes 
which makes this poUcy inapplicable in a single case. The time has clearly come, 
in my opinion, when that exception should be repealed, and the same rule should 
be applicable in Utah as in all of the other States of the Union. 

If I can be of any other assistance to you, please let me know. 

With best wishes. 
Very truly yours, 

EiRwiN N. Griswold. 



U.S. Court of Appeals, Tenth Circuit, 

Salt Lake City, Utah, April 2, 1975. 
Hon. E. J. (Jake) Garn, 
U.S. Senate, Wasliington, D.C. 

Dear Senator Garn : I have received your letter of March 19, 1975, requesting 
appropriate information concerning your anticipated testimony relating to S. 1130 
and have instructed the clerk's office and circuit executive in Denver to promptly 
furnish the Administrative Office all information contained in that office that is 
pertinent to your inquiry. I understand you have made a similar request from 
the Administrative Office. 

As you may know, I have publicly supported earlier versions of this Bill as a 
member of the Judicial Conference of the United States but such efforts have 
been to no avail. Former Solicitor General Griswold has on more than one oc- 
casion taken an active interest in the legislation and you might be interested in 
talking to him about the Bill and the difficulty in getting Senate attention focused 
on the problem. 

As you note in your introductory remarks, the Bill has merit and should be 
enacted for the reasons you give and my support for it is not dependent on any 
personal opinion as to whether Judge Ritter is a good, bad, or indifferent judge. 

The specific information you seek, as reflected from our official court records 
in Denver, will be included in the Administrative Office's re.sponse. However, I 
am enclosing two very recent opinions of our Court which reflect consideration 
of a high incidence of complaint that comes from lawyers arguing appeals before 
us. Of course complaints from losing litigants should be considered with caution 
and such complaints are made against judges other than Judge Ritter. However, 
dissatisfaction and claims of prejudice are very freauent in Utah appeals. 
Sincerely, 

David T. Lewis. 



25 

Tempobaby Emekgency CotrsT of Appeals 

OF THE UlvlTED STATES, 

Salt Lake City, Utah, May 11, 1976. 
Hon. Jake Gabn, 
U.S. Senate, Washington, B.C. 

Dear Senator : I acknowledge receipt of your letter of May 5, 1976, renewing 
your suggestion that I submit a statement concerning the proposed repeal of the 
grandfather provision covering the chief judge of a two-judge court. 

As I indicated over the telephone \vhen I declined your previous invitation, I 
WIS not inclined to become embroiled again in the long-standing administrative 
difficulties in the District of Utah which finally led to my taking senior judge 
status in 1971 before ordinarily I would ha^e considered it. Several of these 
problems were explored by the Judicial Council of the Tenth Circuit, the record 
of which, including some corrective orders, should be available to you and a con- 
tinuum of which is treated in Utah Idaho Sugar Company v. Ritter, 461 F. 2d 1100 
(10th Cir. 1972). 

While the administrative problem has precluded my rendering any substantial 
judicial service to the District of Utah since I assumed senior judge status, I 
have been given more challenging and satisfying opportunities through my ap- 
pointment by the Chief Justice shorty after my retirement as a member of the 
Temporary Emergency Court of Appeals of the United States on which I continue 
to serve, as a member of the Advisory Committee on the Rules of Procedure of 
the Judicial Conference of the United States, and in special assignments in 
various parts of the country. Thus, I have not been anxious to be propelled back 
into the local administrative situation and, indeed, since my retirement have 
endeavored to keep free of involvement in the hope that some independent means 
might be discovered to achieve harmony which I had been unable to discover. I 
attempted to express that attitude and hope in my retirement statement to the 
bar and to promote additional improvements that I had been unable to achieve in 
the copy of my statement to the bar at the time of my retirement. I am not in a 
position to speak firsthand concerning the situation since. 

However, so that my position may not be interpreted as one of indifference 
toward the pending legislation, I hav^e decided that I should make clear that I 
continue to support it and urge its passage, and this I am confident would be my 
position apart from any personal exposure to the problem. 

I would prefer to have my position now emphasize rather than personal con- 
siderations, the overall policy commending the transfer of chief judge respon- 
sibilities at age 70 in all instances and that especially in two-judge courts is this 
desirable. 

When the grandtatner clause was originally approved by the Congress, there 
could have been an impression that in two-judge courts the general rule for 
chief judges to step down at the age of 70 was not as important as in larger 
courts. My experience and observation has demonstrated that the application 
of the general rule may be more important in two-judge courts than in larger 
courts where rules may be adopted by majority vote of the judges and incon- 
siderate decisions with respect to supporting personnel may be controlled by 
majority vote. In a two-judge court, if the judges cannot agree upon generally 
applicable local rules of court, no such rules can be adopted without intervention 
of the Judicial Council, and in the event of disagreement among the judges in a 
two-judge court concerning the employment or discharge of supporting personnel 
and with respect to various other decisions on which the majority of the judges 
in larger courts have final say, in a two-judge district court the chief judge has 
unrestricted po\ver. 

I believe that the statutes governing the designation, tenure and powers of 
chief judges could well be generally reviewed and perhaps amended as a long 
range project to bring them more in consonance with modern administrative con- 
ditions and problems of the federal courts. In the meantime, nowever, there seems 
no justification for continuing the statutory aberration which the proposed legis- 
lation is designed to correct. 
Sincerely yours, 

A. Sherman Chbistensen, 

Senior U.S. District Judge. 

Enclosure. 



26 

State of Utah, 
Office of the Governor, 
Salt Lake City, May 10, 1976. 
Hon. E. J. (Jake) Garn, 
Dirksen Senate Office Building, 
Washington, D.C. 

Dear Senator Gaen : It is my uuderstanding that hearings are to be held in 
the immediate future on S. 1130 of which you are the principal sponsor. This bill 
would repeal the "grandfather clause" pertaining to Chief Judges in United 
States Judicial Districts. 

I feel that the bill should be passed. If it were passed, in my opinion it would 
result in improved administration and supervision of the calendar in the United 
States District Court for the District of Utah. Whether the "grandfather clause" 
was ever justified from a standpoint of principle is questionable. Undoubtedly, it 
was adopted as a matter of expediency to facilitate the passage of the act. How- 
ever, if it were ever justified now that there is only one Judge serving pursuant 
to the "grandfather clause", and he is a substantial number of years beyond the 
cut-off age, the continuation of the "grandfather principle" can no longer be 
justified. 

I would appreciate it if you would place this letter in the hearing record on 
the bill. 

Sincerely, 

Calvin L. Rampton, 

Governor. 



WHEREAS a resolution was adopted by the membership of the Utah State 
Bar in attendance at the Mid- Year Meeting January 11, 1974, calling for a 
secret poll of the Bar membership concerning the "Grandfather clause" whereby 
certain District Judges continue to serve as Chief Judges after age 70 and with 
the results of said poll to be made available to the United States Congress, and 

WHEREAS said secret poll was conducted with 77.7% of those responding, 
constituting 50.8% of the active membership of the Utah State Bar, voting in 
favor of the repeal of the "Grandfather clause," and 

WHEREAS this information was transmitted to the Congress of the United 
States, to the two Utah members of the House of Representatives and to each 
of the United States Senators from Utah, and 

WHEREAS a resolution was submitted to the Board of Commissioners of the 
Utah State Bar for consideration of the membership of the Utah State Bar at 
its Mid-Year Meeting January 10, 1976, urging passage of S1130, action similar 
to that previously acted upon by the membership of the Utah State Bar, the 
Board of Commissioners of the Utah State Bar made no recommendation with 
respect thereto, the bar membership having previously acted thereon, but sub- 
mitted the same to the Bar membership in attendance, and 

WHEREAS the resolution was presented on the fioor for consideration of the 
membership, and carried by a vote of 106 for to 62 against, 

NOW THEREFORE the ofiicial action of those members of the Utah State 
Bar assembled at the January 10, 1976, Mid-Year Meeting of the Utah State Bar 
is affirmed to be in favor of S1130. 

Harold G. Christensen, 
President, Utah State Bar. 

Attest : 

Dean W. Sheffield, Executive Director. 



Utah State Bar, 
Office of the President, 

Ogden, Utah. 

To the Congress of the United States of America : 

WHEREAS, a resolution was duly adopted by the membership of the Utah 
State Bar in attendance at the Mid-Winter 1974 Meeting of the Utah State Bar, 
January 11, 1974, that a secret poll be taken of the entire active membership 
of the Utah State Bar, concerning the "grandfather" clause of Section 3, Public 
Law 85-593, whereby certain District Judges continue to serve as Chief Judge 
of their Districts after age 70, to determine whether the membership of the 
Utah State Bar favored the repeal of the "grandfather" clause, and 

WHEREAS, such a secret poll was undertaken, which resulted in 77.7% of 
those responding voting in favor of repeal and 22.3% voting against repeal, and 



27 

WHEREAS, the 77.7% voting for repeal constitutes 50.8% of tlie active mem- 
bership of the Utah State Bar, 

NOW, THEREFORE, this resolution is to memorialize Congress, in accord- 
ance with said resolution and poll, to repeal the "grandfather" clause of Section 
3, Public Law 85-593. to eliminate the exception under which certain U.S. 
District Judges continue to serve as Chief Judges of their respective Districts 
after age 70. 

By direction of the Board of Commissioners : 

La Vab E. Stark, 
President, Utah State Bar. 

Attest : 

Dean W. Sheffield, Executive Secretary, Utah State Bar. 



U.S. Depaetment of Justice, 

U.S. Attorney, 
DiSTBiCT OF Colorado, 
Denver, Colo., May 11, 1976. 
Hon. Jake Gabn, 
U.S. Senate, 
Washington, D.C. 

Dear Senator Gabn : I personally support S. 1130. My background is that I 
have engaged in a heavy trial practice in federal court for nearly 25 years, seven 
of those years as United States Attorney for the District of Colorado. 

I see no valid basis for distinguishing between large and small districts in pro- 
viding for the tenure of chief judges. History has shown, in fact, that a tragic 
mistake occurred when the exception was made. 
I thank you for permitting me to comment. 

Sincerely yours, James L. Treece, 

U.S. Attorney. 



U.S. Department of Justice, 

U.S. Attorney, 
District of Idaho, 
Boise, Idaho, May 12, 1976. 
Hon. Jake Garn, 
U.S. Senate, 

Dirksen Senate Office Building, 
Washington, D.C. 

Dear Senator Garn : I was happy to receive your letter dated May 6, 1976 
with regard to Senate Bill 1130. 

This bill has been needed for the last twenty years and the failure of the 
Congress to enact the bill has resulted in great diflBculties in a few districts. 

Unfortunately, age sometimes accentuates the tendency to become arbitrary 
dictatorial, and also causes a lessening of the abilities of a judge. 

The condition in the State of Utah has been a scandal among the Bar in 
Utah and Idaho and the Western States for many years. 

There is no sound reason for the "grandfather clause" pertaining to two-judge 
districts. The problems are the same with aged judges whether it be a small 
district or a large district. 

I most certainly urge the passage of Senate Bill 1130 and the prompt repeal 
of the so-called "grandfather clause." 
Very truly yours, 

Marion J. Callister, 

U.S. Attorney. 



TiBBALS AND StATEN, 

Law Offices, 
Salt Lake City, Utah, May 11, 1976. 
Re Senate Bill 1130. 
Senator E. J. Garn, 
U.S. Senate, 

Dirksen Senate Office Building, 
Washington, D.C. 

Dear Senator Gabn : Please accept my sincere thanks for your courtesy in 
keeping me advised as to the progress of this Bill above referenced. I hope it 



28 

may not be presumptious of me to reiterate at this time, my feeling that this 
amendment is essential in the interest of sound legislation. Experience seems 
to teach that the creation of exceptions to the enforcement or etfectiveness of 
legislation such as the exception created in the original enactment 72 Stat. 497 
inevitably lead to inequities, injustice and in many cases outright hardship. If 
legislation is proper, it should apply equally to all. 

In this case, the people of the State of Utah have been greatly imposed upon 
by the execption which permitted Chief Judge Ritter in our United States Dis- 
trict Court to retain that position far past the mandatory retirement age pre- 
scribed for others. The mere fact that he was, at the time of the original 
enactment, an incumbent and would be effected by the law seems hardly an 
excuse for making an exception. I urge the enactment of Senate Bill 1130. 

I am sure from your long tenure in public office in this City, you are aware of 
the many problems that the people of this State have been confronted with by 
virtue of the judicial intemperance of the Chief Judge. Perhaps it might not be 
amiss to bring to your attention the statements made by the Chief Judge as 
quoted in this mornings Salt Lake Tribune on the issue of a Grand Jury. As you 
are probably aware, he preempterly dismissed a Grand Jury which was in the 
middle of deliberations and consideration of matters which apparently, though 
the secrecy has not been violated to my knowledge, of violations by certain 
persons and the Judge refused to permit the Grand Jury to continue its delibera- 
tions. He has been forced to call a new Grand Jury by action of the United States 
District Attorney who requested the Tenth Circuit Court of Appeals to compel 
Ritter to call a Grand Jury. Before the matter w-as heard in the Tenth Circuit, 
Judge Ritter complied and called for a Grand Jury. I submit to you, the state- 
ments as quoted in the Tribune. I personally, have in years gone by, heard Judge 
Ritter hold forth on exactly the opposite side of this question, extolling the 
Grand Jury as one of the great democratic institutions which protected the 
citizens against the intemoerance of the Courts, the Magistrates and the 
Prosecutor. 

Would it be too much to assume that perhaps Judge Ritter's present dislike 
of the system stems from his inability to control the system in a few years past 
when in his desire to get at the Salt Lake County Sheriff, he irregularly im- 
paneled a Grand Jury, succeeded in getting this Grand Jury to pose indictments 
in an area in which the Grand Jury had no legitimate right of inquiry and was 
infuriated when the Department of Justice refused to permit the United States 
Attorney to sign the indictments thereby rendering them ineffectual. Nonetheless, 
despite this knowledge of the fact that the indictments were not lawful. Judge 
Ritter released them to the press. The damage to Sheriff Larson's reputation 
in the community cannot be assessed. It was an act which will long stand out 
in the opinion of many of the citizens of this state as an example of abuse of 
Judicial power. 

It is time that Judge Ritter was relieved, not only of his duties as Chief Judge, 
but of his duties as Judge. It is unfortunate the legislation under consideration 
cannot accomplish the second objective as well. Certainly the continuance in the 
office of Chief Judge is a disservice to the people of this State. Your Bill is well 
founded and should be enacted. 

With all good wishes, I remain, 
Very truly yours, 

Alj>en H. Tibbals. 

The Attoeney General, 

State of Utah, 
Salt Lake City, Utah, May 11, 1976. 
Re S. 1130 

Hon. E. J. "Jake" Gaen, 
U.S. Senate, 

Dirksen Senate Office Building, 
Washington, D.C. 

Dear Senator Garn : As the former City Attorney of Salt Lake City (1968- 
1974) and as a private practitioner since 1953, I have practiced law before the 
United States District Court for the District of Utah and am familiar with the 
provisions of the Act of August 6, 1958 (72 Stat. 497) under which Willis W. 
Ritter is the only remaining Chief Judge of a United States District Court who 
is over seventy years of age. 



29 

In view of the strong public policy expressed in the Act of August 6, 1958, 
relating to the maximum permissible age for chief judges of federal district 
courts, and my own experience before the United States District Court for the 
District of Utah, it is my opinion and recommendation to the yubcommittee on 
Improvements in Judicial Machinery of the Senate Judiciary Committee that 
the interests of justice will be served by the enactment of the subject bill which 
has my unqualified support. 
Respectfully yours, 

Jack L. Crellin, 
Assistant Attorney General. 

Cannon and Duffin, 

Attorneys at Law, 
Salt Lake City, Utah, May 10, 1976. 

Re Amendment to section 3 of the Acts of August 6, 1958, (72 Stat. 497) Hearing 

set for May 18, 1976. 
Senate Judiciary Committee, 
U.S. Senate, 
Washington, D.C. 

Gentlemen : My interest is in having the Committee act favorably on the 
proposed amendment to the subject act. 

It may be that my feelings might be dismissed as being biased and prejudiced. 
At the hearing in Salt Lake City prior to the appointment of Judge Willis W. 
Ritter. I appeared and testified that he did not have a judicious temperment and 
therefore I was opposed to his appointment. Time has not change my opinion. 
Noting those testifying in his behalf, one finds those who api>ear before him on 
behalf of clients. Prudence would so dictate. Once I appeared before his court 
after his apix>intment. I will never appear again. I feel clients of mine would not 
be given judicious consideration. It is almost thirty years since he was appointed. 
I have been in the federal court but once. That is a sad commentary on our 
system. Not only have I felt limited, but my associates have felt it is a disadvan- 
tage to be associated with me in our practice. 

The law itself is unfair as it makes an exception. Everyone should play under 
the same rules and especially in federal courts. 

It is respectfully urged that the committee recommend passage of the pro- 
posed amendment to have the law apply to all equally. 
Respectfully yours, 

T. Quentin Cannon. 

Meredith, Barber & Day, 

Attorneys at Law, 
Salt Lake City, Utah, May 7, 1976. 

Re The Honorable Willis W. Ritter, Chief Judge, United States District Court 

for the District of Utah. 
Hon. Jake Garn, 
Senate Office Building, 
Washington, D.C. 

Dear Senator Garn : I have been informed that the Senate Judiciary Com- 
mittee is contemplating hearings related to the repeal of the Grandfather Clause 
under which the Honorable Willis W. Ritter retains his position as Chief Judge 
of our District. 

Though I am philosophically opposed to congressional tampering with the 
bench, I am in full agreement that the Grandfather Clause should be repealed 
solely because it will effect the status of the Honorable Willis W. Ritter and 
the quality of justice which is dispensed by the United States District Court 
in Utah. 

I have had significant experience before the Honorable Willis Ritter and 
have many times witiies.«ed the arrogant, tyrannical, arbitrary, and insulting 
manner in which Judge Ritter conducts his court and treats the individuals 
who appeared therein. Of particular concern to me is the manner in which the 
calendars of trials and events are conducted in that court and the fact that 
Judge Ritter does not conduct either trials or rule days on a regular basis, but 
seems to hold the entire legal community of the District of Utah at his beck and 
call and exercises his apparent prerogative to demand immediate appearance 



78-678 O - 77 



30 

with no consideration for the scheduling difficulties and the other business of the 
participants in proceedings before him. 

The last occasion upon which I had tlie pleasure of appearing before Judge 
Ritter was in a trial of United States v. Karl J. Bray, No. (5-14b2 in the United 
States District Court for the District of Utah, in Information under which 
Mr. Bray, a tax protester, was tried on two counts of violations of the Internal 
Revenue Code. The case is presently on appeal with one assignment of error 
relating to the refusal of the Honorable Chief Judge to recuse himself from 
trial of the case. I have taken the liberty of enclosing herewith a copy of the 
brief in that case which contains significant vei'batim quotes from the record 
which I hope will be useful to you in demonstrating the egregious manner in 
which Judge Ritter conducted this trial. The areas which I have indicated by 
red markings, though I cannot state that they are typical, are not so atypical 
as to fail to give me great concern for the overall judgment and competence of 
this man and his overall ability to properly conduct the judicial business of 
the District courts in our State. The records of a significant number of other 
cases will reflect the same kind of comments and actions from the bench, and 
I feel they would be most interesting to the members of your committee. 

I would be happy to respond to any questions you may have related to my 
experiences in Judge Ritter's court or, in particular, his conduct of this case, 
and would welcome any opportunity to discuss these matters with you either 
personally or by further correspondence. 
Yours very truly, 

Jamks N. Barber, 

Attorney at Law. 

Calvin A. Behle, 
Ogden, Utah, May 13, 1976. 
Re: S. 1130 

Hon. Jake Gaen, 
Dirksen Senate Building, 
Washington, D.C. 

Dear Senator Garn : Through your legislative assistant Lincoln Oliphant 
you have asked me to confirm any public statements that I have made pertain- 
ing to the incumbent Chief Judge of the Federal District Court of Utah, in 
connection with the hearing on S. 1130. I have strongly supported this Bill 
designed to remove the discrimination against the State of Utah by way of 
having its citizens alone suffer as our Federal judicial affairs continue to be 
presided over administratively by an incumbent who is now well over the age 
of 75. 

At the outset may I state that I have known this Judge, and generally 
favorably, since I was one of his students at the University of Utah Law 
School more than 45 years ago. No one can fault him for not having a brilliant 
mind. However, a lack of judicial temperament (which on candid occasion he 
freely admits) has made the trial of cases in his court on too frequent occasion 
most difficult for counsel, clients, court personnel and indeed all attending or 
participating. Ample support for this will come from the News Media, Members 
of the Bar, court personnel who are in a position to talk, his judicial associates 
and from official records on appeal. But personally I do not know of anything 
in his conduct which would justify impeachment. 

It has been primarily and upon much too consistent occasion that his lack of 
judicial temperament is displayed in his administrative capacity as Chief Judge. 
These instances too may be collected from sources suggested. The situation 
seems to have become aggravated to an almost impossible point now that his 
normal retirement age from that position was achieved, and it was discovered 
that he could apparently go on until death because of the legislative provision 
commonly designated "The Grandfather Clause." 

In 1972 as State Delegate elected by Utah lawyers and then also the member 
from the Intermountain Area on the American Bar Association Board of Gov- 
ernors I was approached from several sources as to why the Bar could or would 
not do something to call the attention of Congress to the discrimination against 
Utah. Many instances were cited — some known to me personally — where the 
incumbent Chief Judge had seemed to be most arbitrary in his administrative 
actions. One item only of particular concern to Bench and Bar alike was his 
refusal to establish court rules pertaining to such matters as the assignment to 



31 

cases between the Federal Judges of Utah — requiring special action by the 
United States Court of Appeals for the Tenth Circuit. 

In seeking an answer to this question above I was advised by the Chairman 
of the American Bar Association Committee on the Federal Judiciary and also 
by the Office of the Chairman of the Judiciary Committee of the Senate (1) 
that the reason why the incumbent continued as Chief Judge beyond the age 
of 65 was the courtesy provision of The Grandfather Clause; and (2) that 
until the Bar of Utah took exception there seemed no reason why this courtesy 
should not continue to be extended for a long as the last Federal Judge in the 
whole United States Incumbent at the time the mandatory 65 retirement rule 
from administrative position was enacted, remained in office. 

Accordingly at the June, 1973 meeting of the Utah State Bar at Provo, Utah 
a written resolution was submitted by me for action whereby the Utah State 
Bar respectfully was to request Congress to repeal the clause which was result- 
ing in the discrimination against Utah and its citizens. The incumbent was an 
outstanding example of just why the mandatory age had been passed. The reso- 
lution also would require the Board of Commissioners of the Utah State Bar 
to so advise Congress and the Congressional delegation from Utah, of the official 
position of Utah's Bar. This motion was duly presented at the time set by the 
President of the Utah State Bar ; was fairly and fully debated ; and by standing 
vote was adopted by more than two-thirds of the members present. Thereafter 
(the number present was far short of the entire membership — the Utah State 
Bar is integrated for all lawyers) a written ballot was submitted. More than 
a majority of the entire memhership returned their ballots in favor of requesting 
Congress to repeal the discriminatory Grandfather Clause exception. The Bar 
so notified the Utah members of Congress. This position was maintained after 
debate as recently as this year. 

Here we have a balancing of whether the continued courtesy extended the 
particular incumbent of the office of Chief Judge of the Federal District Court 
of Utah is justified in the cause of justice, as against removal for the public 
good of the exception existing now for him. 

In my opinion as stated above there is no justification for the continuance 
in the administrative office of one who has so flagrantly and frequently per- 
formed in the very manner which led to legislation for mandatory retirement 
at age 65. Otherwise this situation which reflects upon the Federal Judiciary, 
the Bar. and indeed the entire administration of Jiistice in the eyes of the 
citizens of Utah will no doubt continue indefinitely until death eventually will 
strike. We would not wish such a solution. 
Sincerely, 

Galvin a. Behle. 

STATEMENT OF HON. JAKE GARN, U.S. SENATOR FROM UTAH 

Senator Garx, Let me begin, Mr. Chainnan, by expressing my per- 
sonal gratitude to you for scheduling this hearing. The assistance of 
the distinguished Ranking Minority Member is also greatly appre- 
ciated. This hearing has been sought for years by leading members 
of the judicial branch, the bar, and concerned citizens, and on behalf 
of these interested parties, I express my sincere thanks. 

S. 1130 will repeal the exemption to 28 U.S.C. 136 which now allows 
the Chief Judge of only one U.S. District Court to maintain his chief 
judgeship after age 70. Other witnesses will provide information of 
a specific nature concerning the judge's court administration and I 
will supplement that information, leaving details to the experts. 

I will provide tlie committee with background information, policy 
considerations, and the sentiment of Utahans who resent and regret 
the way the U.S. District Court for the District of Utah is being 
managed. 

The first section of my testimony is a judicial history of the grand- 
father clause and I will skip that over to the middle of page 5. 
Mr. Chairman, I would say that I am sympathetic with your senti- 



32 

ments expressed to me in a recent letter :"...! believe that it is bad 
policy for the Congress to renege on a grandfather provision which 
is adopted in order to allay opposition to a bill" — letter from Quentin 
N. Burdick to Jake Garn, December 1, 1975. And I certainly think 
there is wisdom in your desire to keep commitments. 

The above statement, however, is a general statement, a statement 
that must permit exceptions. And just as in 1958 when circumstances 
persuaded Congiess to permit an exception to the general rule that 
chief judges relinquish that role at age 7. , so today the facts compel 
us to adopt another exception and repeal this "grandfather clause." 
This exception need not be based on political reality as the 1958 ex- 
emption was, but can stand on merits of fact, reason, and justice. 

I have stated that ''grandfather clauses" are sometimes necessary 
and acceptable. I have also agreed with the distinguished chairman 
that they ought not to be reneged except under unusual circumstances, 
but I am resolved to see this particular clause revoked because this 
situation contains more than enough facts to classify it as "unusual." 

The following facts and policies have convinced me that S. 1130 
should pass and that this committee ought to repeal any grandfather 
clause when the weight of evidence becomes as burdensome as it does 
in this case. 

S. 1130 ought to pass because the same organizations that supported 
the original act and its amendments now support repeal of the clause 
of exception. AVho were those organizations that supported H.R. 985 
in 1957 and 1958 ? The Judicial Conference, the American Bar Asso- 
ciation, the Department of Justice: The most objective, deliberative, 
and influential entities of the American judicial system. What organi- 
zations now support S. 1130? The Judicial Conference, which says, 
"The Judicial Conference believes that this exception . . . has outlived 
its usefulness and should be eliminated" — letter from Rowland F. 
Kirks, director, administrative office of the United States Courts to 
Carl Albert, Speaker of the House of Representatives, September 21, 
1973 — it's added to this statement — and also a letter of confirmation 
from Rowland F. Kirks to Jake Garn on May 7, 1976, reaffirming this 
position of the Judicial Conference. 

The Department of Justice, which says : "The Department of Justice 
concurs in the recommendation of the Judicial Conference that this 
legislation be enacted"— letter from W. Vincent Rakestraw, Assistant 
Attorney General to Peter W. Rodino. 

Although the House of Delegates of the American Bar Association 
has taken no specific stand on repeal of the clause, it is believed that 
its position has not changed from 1957 when it supported a bill iden- 
tical to H.R. 985, as introduced, with a relinquishment date at age 
70 years and without a "grandfather clause." The committee on the 
Federal Judiciary said, "Your committee is of the view that this 
legislation is desirable and should be enacted. Accordingly, it recom- 
mends that the House of Delegates adopt the resolution endorsinj^ 
(the identical bill)." ^ 

The House of Delegates adopted the language. S. 1130 ought to 
pass because the above-cited eminent authorities are joined by other 
leaders of the bar and bench in calling for its passage. 

Chief Judge David T. Lewis of the U.S. Court of Appeals for the 
10th Circuit says : 



33 

... I have publicly supported earlier ver.sions of this bill as a member of the 
Judicial Conference . . . but such efforts have been to no avail. * * * [T]he 
bill has merit and should be enacted . . . and my support for it is not dependent 
on any personal opinion as to whether Judge Ritter is good, bad, or an indifferent 
judge. 

Governor Calvin L. Kampton — whom I'm sure you know, ]Mr. Chair- 
man — elected three times as Governor of Utah and probably the most 
popular governor in the history of the State of Utah, said : 

I feel [S. 1130] should be passed. If it were passed, in my opinion it would 
result in improved administration and supervision of the calendar in the U.S. 
District Court for the District of Utah. AVhether the "grandfather" clause was 
ever justified from a standpoint of principle is questionable. Undoubtedly, it 
was adopted as a matter of expediency to facilitate the passage of the act. 
However, if it were ever justified now that there is only one judge serving 
pursuant to the "grandfather clause" and he is a substantial number of years 
beyond the cut-off age, the continuation of the "grandfather principle" can no 
longer be justified. 

This was a letter from Governor Rampton to me on May 10, 1976. 

Erwin N. Griswold. former Solicitor General of the United States, 
says: 

The situation with respect to the Chief Judge in the U.S. District Court in 
Utah is unique, and I think, unfortunate. 

The basic policy— namely, that a judge shall cease to be a Chief Judge upon 
reaching the age of 70 — is sound, as has been shown by a great deal of experience 
in our judicial system. It is quite unwarranted, it .seems to me, to have a special 
provision in our statutes which makes this policy inapplicable in a single case. 
The time has clearly come, in my opinion, when that exception should be re- 
pealed, and the same rule should be appJicable in Utah as in all of the other 
States of the Union. 

The Utah State Bar has gone on record twice favoring repeal of 
ihis '"grandfather clause." On January 11, 1971, a resolution was 
passed at the midwinter meeting of the bar authorizing a secret poll 
of the bar membership concerning this issue — 77.7 percent of those 
responding favored repeal. 

Similarly, at the midwinter meeting in January 1976, the Utah 
State Bar passed a resolution by a vote of 106 to 62 stating ". . . the 
official action of those members of the Utah State Bar assembled . . . 
is affirmed to be in favor of S. 1130." 

S. 1130 ought to be passed because its passage would not frustrate 
congressional policy intent as estabJished in 1957 and 1958. We must 
remember that H.R. 985 passed both the House and the Senate with- 
out the "grandfather clause" and was apjDarently acceptable to both 
bodies for over a year until the bill was reconsidered and amended 
for political reasons. 

It is true that the bill as passed by both Houses (before reconsid- 
eration) contained a relinquishment age of 75 years, but the sitting 
chief judge in the Federal District Court for Utah is 77 years old, 
liaving been born January 24, 1899, and would have had to re- 
linquish his chief judgeship nearly 2i/^ years ago even if the more 
liberal version of the bill had been signed without the "grandfather 
clause." 

Unfortunately, that version passed both Houses without being 
signed. I caution us against assuming that S. 1130 will frustrate the 
intention of the 85th Congress. It will not, as the record shows. 

S. 1130 should pass because the policy forecasts given by Senator 
Eastland in 1958 for adoption of the "grandfather clause" have 



34 

proven to be just the opposite of what he reasonably expected them 
to be at that time. Proposing adoption of the "grandfather" amend- 
ment, Senator Eastland said: "* * * [I]n a district having only two 
judges, the administrative duties are not such a heavy burden upon 
the chief judge and do not require him to spend a substantial part 
of his time in pursuing duties other than judicial. For this reason, 
it is deemed desirable not to change the present relationship of the 
judges in districts where there are only two judges in active service." 

The fact is, Mr. Chairman, that this expectation has not come to 
pass and that the experience of two-judge district courts has been 
sufficient to show that any amendment to the 1958 bill should have 
specifically included two- judge courts, not specifically exempted them. 

This conclusion is reached on the basis of the experience of many, 
including the man who has perhaps been most affected, A. Sherman 
Christensen, senior U.S. district judge, who formerly was in active 
service with Judge Kitter in the U.S. district court for Utah. 

Judge Christensen explains the dilemma of the two-judge court 
as follows. I will skip over that and have it included in the record. 

Perhaps the most important reason that S. 1130 ought to pass is 
the failure of Judge Ritter to maintain acceptable standards of judi- 
cial conduct. Surely any judge who continues to serve as a chief judge 
under the provisions of a "grandfather clause" that now applies solely 
to him ought to be required to maintain at least acceptable standards 
of judicial conduct, pertaining both to his duties as chief judge and 
his regular duties as a Federal district court officer. 

This is a minimum standard of conduct. I believe. The ideal would 
be an expectation that any judge so protected and exempted would 
maintain exemplary standards of conduct. Congress can reasonably 
expect that when it carves out a special exemption in the law for a 
certain class of persons that tliose persons act in a manner consistent 
with their special legal status. 

If "exemplary" conduct is too hi*Th a standard, then it is reason- 
able to require at least "acceptable" behavior. Further, the standards 
of conduct can be applied to the judge's total behavior, not just his be- 
havior in the area in which he operates under the statutory exemption. 

That is, when Congress creates an exemption for certain chief judges, 
it ought to maintain that exemption only so long as the exempted 
judges maintain standards of "acceptable" behavior, both in their ca- 
pacity as chief judges and in their capacity as active Federal judges. 

I believe the standard of conduct as to the chief judgeship is self- 
evident: if a judge is not adequately performing his duties as chief 
judge he renders himself unfit to serve under a special statutory 
exemption. 

This rule is based on fair play ; political exemptions may be neces- 
sary, but they need not be maintained in spite of persistent abuse. 
My belief that even non-chief judgeship duties are relevant in deter- 
mining whether a statutory exemption which relates solely to the chief 
judgeship ought to continue is based on the belief that Congress has an 
affirmative duty to end privileges and perquisites specially extended 
when abuse occurs in an area so intertwined with the chief judgeship 
that performance in one area cannot be separated from performance 
in the other. 

What kind of reasoning is it which argues that a special one-man 
exemption should be continued after it has been shown that the only 



35 

man still serving under the exemption abuses both his administrative 
and regular judicial duties? Must we continue to reward intemperate 
and injudicious behavior with a special exemption ? I earnestly hope we 
do not. 

I have many examples, Mr. Chairman, of this intemperate and in- 
judicious action as a chief judge and also as a sitting Federal judge. 
I will not take the time of the committee to read them. I will skip 
over them and have them included in the record. 

Finally, S. 1130 ought to pass because the facade of detached im- 
partiality and judicial sufSciency has crumbled from AVillis W. Ritter. 
Utahans no longer understand — if, indeed, they ever did — why this 
man continues to receive special and unique protection from the simple 
rules that apply to everyone else. We yearn for an equal treatment, and 
it ought to start with judicial fairness. 

Again, I have a parade of items that fill my files from letters from 
various people to examples of mistreatment in his court to editorials. 
On January 18, 1976, the Ogden, Utah Standard-Examiner editorial- 
ized, ''Time Has Come for Federal Judge Willis W. Ritter to Step 
Down." Again, I will skip over all of these examples and not take the 
thne of the chairman to read them. 

Even books have been written about Judge Ritter. I will just read 
one quote from Joseph C. Goulden, author of a recent book on Federal 
judges. He said, after discussing Judge Ritter for several pages, "At 
one point I had decided that Judge Willis Ritter, the perpetual-fury 
machine of Salt Lake City, deserved the honor [of ultimate expletive 
deleted judge of the Federal courts]. Ritter's bad temper, however, 
seems to be fired by age and whiskey more than by innate meanness 
and, as is true of any ricocheting object, he occasionally lands on the 
right side of an issue.'' 

Thpse kinds of points are made over, and over, and over again in 
letters and in newspapers and now in books. It's time we no longer 
reward such behavior with special "grandfather" protection. This is 
the veiy least that can be expected of a Government of laws. 

]Mr. Chairman, what more can be said? "\Vho else needs to speak? 
AYhat further actions need to be taken ? How much more time needs to 
pass ? A quote from the attorney general of the State of Idaho : "The 
condition in the State of Utah has been a scandal among the Bar in 
Utah and Idaho and the Western States for many years." Let's take 
the time now to correct it. 

Thank you, Mr. Chairman. 

Senator Burdick. Thank you. Senator. 

Our next witness is the Honorable Ramon M. Child, U.S. district 
attorney of Salt Lake City, Utah. 

Mr. Child. Good morning. Chairman Burdick. I have with me from 
the Department of Justice certain persons who would like to make some 
comments. I have Mr. James Dew^ey O'Brien of the Tax Division, 
where he is the Acting Deputy Assistant Attorney General. He would 
like to present a statement, a written statement for the record. 

He has with him Willard C. jNIcBride, who is the Assistant Chief of 
the Criminal Section of the Tax Division, in case the committee has 
any questions to ask on specifics. I also have with me Mr. Rudolph W. 
Giuliani, who is the Associate Deputy Attorney General and he was 
Executive Assistant U.S. Attorney in the southern district of New 
York and has a great deal of experience in these matters. 



36 

He would like to say a brief comment before I start and then I have 
a statement. 

Senator Burdick. Have you got the names ? 

The Keporter. No — Giuliani 'i 

^Senator Burdick. We want the names for the Reporter at the con- 
clusion of the hearing, if you can give them then. 

The Reporter. Ill ask them afterward. 

Senator Burdick. Fine. Gentlemen, I hope you'll be brief as possible 
because we have a Joint Session today at 12 :30, but proceed in any way 
you wish. 

Mr. Giuliani. My name is Rudolph W. Giuliani, G-i-u-1-i-a-n-i. I 
am Associate Deputy Attorney General. Mr. Chairman, we will be 
very brief. And I'd "just like to say a few things to place in context 
before Mr. Child's testimony. 

We're here from the Department of Justice to testify in support of 
S. 1130 to repeal the "grandfather clause" of Public Law 85-593. The 
rationale of that law is simply that, as a general rule, the Congress has 
determined that it is inconsistent with the public interest for a judge 
to do double duty past the age of 70 — that is, to do duty as both a dis- 
trict judge handling a civil and criminal caseload and also to preside as 
an administrative judge over Federal litigation. 

In the 18 years since that statute was first passed, both facets of a 
chief judge's duty — namely, presiding over Federal trials and also 
administering a court — have become much more complicated, due, 
No. 1, just to the sheer increase in the number of cases, both civil and 
criminal, that have been filed in the U.S. courts, and even more impor- 
tantly, because of the complexity of those cases. 

Criminal law has changed significantly over that 18-year period 
and has become significantly more complex. The civil cases that are 
brought have also become more complex, so that the original rationale 
for that general rule is now underscored and emphasized by the sheer 
increase in numbers and, more importantly, by the increase in com- 
plexity of the kinds of cases that a Federal judge must preside over 
and the kind of court he has to administer. 

Mr. Child's testimony will present a practical example of the wis- 
dom of this general rule enacted by Congress 18 years ago. There's 
no doubt that in application a general rule like this, saying that a 
judge cannot serve in both capacities past the age of 70, may, in cer- 
tain circumstances, deprive the Government of the effective service 
of a man who, past the age of 70, who can, in fact, effectively do both 
jobs. 

The Department of Justice submits that the examples that will be 
given by Mr. Child, however, show us the other side of the picture 
and show us the wisdom of this general rule, that in Judge Ritter's 
case, he has demonstrated, certainly since the passage of that statute 
and certainly since the time he passed the age of 70, that he cannot 
perform both roles; namely, sit as a trial judge in complicated and 
important Federal cases, both civil and criminal, and also administer 
a court calendar. 

So that now I will turn over to Mr. Child for him to present to 
you examples of why Judge Ritter cannot perform both roles and 
why this Congress should repeal the "grandfather clause" now that 
it only affects Judge Ritter. Mr. Child. 



37 

STATEMENT OF RAMON M. CHILD, U.S. DISTRICT ATTORNEY, 

SALT LAKE CITY, UTAH 

Mr. Child, If it please this Committee and Honorable Chairman, 
my statement is largely directed to criminal matters and is divided 
into four areas : one, the manner in which Judge Ritter processes cases 
through his court. In the central division of the United States Court 
for the District of Utah there are no published rules of court. 

Judge Ritter uses the ''trailing calendar" system with very little 
advance notice to counsel of that calendar. During the last few years, 
the number of trial calendars set up by the chief judge each year has 
declined. And consequently, each trial calendar has contained a large 
number of cases for trial. 

On Friday, December 12, 1975, late in the afternoon, my office re- 
ceived notice of a criminal trial calendar to commence at 10 o'clock 
a.m. on Thursday, December 18th, 6 days before Christmas. On that 
calendar, 23 cases had been set for trial. Three of the first four cases 
were tax cases involving approximately 100 witnesses, many of whom 
resided out of the State of Utah. 

During this period of time in December, 1975, United Airlines was 
on strike. Christmas holiday traffic aggravated the situation. Con- 
sequently, on Monday, December 15th, I filed a motion with the court 
requesting that we be given 21 days to prepare for that trial calendar 
and informing the court of the tremendous difficulty we were having 
in preparing and serving subpenaes and securing witnesses on such 
short notice. Xevetheless, on Thursday, December 18th, Judge Ritter 
held a call of that trial calendar. 

Four cases were dismissed outright because the Government did 
not have its witnesses present. All four of those cases are now on 
appeal. In one of those cases, the court was informed by Government 
counsel that the case could be ready by the time it was reached on the 
following Monday. Notwithstanding the fact that this case was No. 
20 on the calendar, the court stated, "The case is reached now," and 
then dismissed it. 

Judge Ritter required the Government to try four other criminal 
cases on that calendar on the following day, Friday, December 19. 
Sensing the mood of the court, defense counsel waived jury and all 
four cases tried on the 19th were lost by the Government. Because jeop- 
ardy attached in three of those cases, only one is on appeal. 

Senator Burdick. May I ask a question at this point ? I don't want 
to interrupt your train of thought, but I think it's important. Was 
he acting as a chief judge then or just as a trial judge ? 

Mr. Child. He was acting as the trial judge at that point. The other 
cases on the trial calendar at that time the court reluctantly set over 
to January 5. There are numerous other examples. In May of 1974, 
19 cases were set on a trial calendar with only 7 days notice. In No- 
vember of 1974, 31 cases were set on a trailing calendar with only 3 
days notice. In October of 1975, 30 cases were set on a trailing cal- 
endar with zero days notice to my office. In November of 1975, 23 
cases were set on a trailing calendar with 6 days notice. And in Janu- 
ary of 1976, 14 cases were set with 2 days notice. 

Often when the cases are not ready because of the inability of the 
Government to secure attendance of witnesses within the time notice, 



38 

the cases are dismissed. Judge Eitter does not hold rule days — that 
is, days upon which arraignments will be taken or motions heard in 
cases on a regular or even a frequent basis. 

The last criminal rule day in the district of Utah was January 16 
of this year. There are presently 32 cases involving 46 defendants 
awaiting arraignment in the central division. Of these defendants, 
23 have either been arrested or served with summons and bound over 
for arraignment after preliminary hearing before the magistrate. 
However, none of these 23 defendants has yet been formally charged 
in an information or indictment. 

No indictment has been possible during this period because of the 
chief judge's refusal to convene a grand jury. No information could 
be filed or pleas taken during this period because of the chief judge's 
failure to schedule court time for the conducting of such business. 

Furthermore, at present 23 defendants have been formally charged 
by indictment or information and await arraignment in the central 
division. 

In 21 of these 23 instances, the chief judge has failed to meet the 
specific 30-day time requirement of section 2(a) of the interim plan 
for achieving prompt disposition of criminal cases in the district 
of Utah, which plan he and the associate judge adopted pursuant to 
the requirements of rule 50(b), Federal rules of criminal procedure. 

The judge's usual practice is to defer hearing motions to dismiss 
or suppress until the time of trial. That means he defers a ruling on a 
motion until after a jury has been picked and sworn, thereby causing 
jeopardy to attach and thus depriving the government of its right to 
appeal an adverse ruling. 

The chief judge made a statement in a recent case wherein he ad- 
mitted that his purpose in delaying pretrial motions until after the 
jury was sworn was to make certain that jeopardy attached so the 
government couldn't appeal. The instance is cited in my statement. 
I'll pass over it. 

Frequently the rights of those defendants who are in custody have 
been abused by the delays caused by the court. One of the more 
serious problems faced by the U.S. Office during the term of William 
Lockhart, my predecessor, was the inability to bring in custody de- 
fendants to trial before Chief Judge Ritter within a reasonable time 
after arrest. 

The following three cases are used to demonstrate the problem. 
One Rudy and one Kirkendahl were both charged with armed bank 
robbery involving separate incidents. Rudy was arrested on Septem- 
ber 23, 1974, and Kirkendahl was arrested December 1, 1974. Karl 
Stock Smith was incarcerated on August 28, 1974, after being charged 
in an interstate bank fraud and he, too, was being held in custody 
under a high bond. 

Despite repeated oral requests from U.S. Attorney Lockhart, 
Judge Ritter did not set these cases for trial until March 3. 1975, 
at which time he set all three cases for trial on the same day, giving 
the Government only 1 working day notice. 

Defendant Rudy spent 6 months in jail awaiting his trial, while 
defendant Kirkendahl waited more than 4 months. Defendant Smith 
was convicted on March 11, 1975, after waiting 7 months in jail. Judge 
Ritter also postponed Smith's sentencing until July 11, 1975, and 



39 

accordingly he spent the better part of 1 year before his case was 
concluded. 

I move to point 2 now : failure of the court to fully utilize the U.S. 
Magistrate. In the District Court of Utah, the U.S. Magistrate 
has been utilized very little. Several Federal agencies have made 
requests to the court that the U.S. Magistrate be utilized for the 
enforcement of minor offenses, but their requests have not been 
granted. 

Since 1970, each U.S. Attorney has made similar requests of the 
court. Recently, I also made a request that the U.S. Magis- 
trate be more fully utilized for the effective enforcement of minor 
offenses. That request was supported by letters of request and affi- 
davits of need from the heads of nine Federal agencies in the State of 
Utah. 

Based upon past history, however, I have little hope that this peti- 
tion will be granted, notwithstanding the fact that I know that the 
second judge in the district is strongly in favor of it. 

Although he refuses to delegate trial authority. Chief Judge Ritter 
resists hearing minor offenses and abuses the government prosecutor 
when such cases are filed with the court. For example, in March of 
1975 under the tenure of William Lockhart, a man charged with the 
petty offense of illegal entrance on a military reservation appeared 
before Judge Ritter for arraignment. 

The following excerpts from the transcript of that proceeding 
demonstrate the judge's attitude toward handling petty offenses in 
the district court. After some preliminaries, the court says, "What 
kind of petty offense was it? We don't entertain those petty offenses 
up there on the reservation. How did that one get in here?" 

And again, the court said, "I don't think this case will last very 
quick. I think it will go out the door with wheels under it. . . ." The 
clerk then is asked to take the plea and he says, "How do you plead 
to the information, guilty or not guilty?" And the defendant says, 
"Not guilty." And the court then responds : "Good. That's what you 
should do. There's a question whether I'm going to handle it or not. 
I may throw it out. I don't take these petty offenses, you see. The mili- 
tary up there ought to run that reservation. They ought to run it. 
And when they find out they can't run it, at that point, particularly 
with respect to traffic offenses, they can't manage the traffic up there, 
so they want me to be a traffic policeman, traffic examiner, and dish 
out $1.50 fines, that sort of business. I'm not going to do it. It looks to 
me like this thing ought not to be here." 

The prosecutor then tried to explain to the court that this was a 
complicated situation where the man had been given a bar letter, 
after he had been caught selling narcotics on the military reservation, 
and in violation of the bar letter had again come on the reservation. 
And so the prosecutor said, "I felt, your honor, that the petty offense 
justified the court's attention under the circumstances." 

And the court responded: "The plea is not guilty. That's a proper 
plea in this case and we'll look at your cards when we get it on the 
calendar. And I think chances are that you won't have a big enough 
hand to stay in the game." 

When this case came before the court for trial, he allowed the prose- 
cutor to put on his case and then dismissed it. The need for an effec- 



40 

tive method of handling minor offenses in the district of Utah is 
readily apparent. Utah has within its boundaries 5 Indian reserva- 
tions or areas of allotment, 5 major military installations, many 
Federal buildings, including a veteran's hospital, 5 national parks, 
and at least 10 other national monuments or recreation areas and 8 
national forests. 

In recent review of the need for better enforcement of the minor 
offenses in the district of Utah, it was disclosed : First, there is pres- 
ently no way of enforcing minor traffic and parking infractions at 
Federal buildings and facilities; second, in spite of some enforcement 
of minor offenses in tribal courts, many minor violations of Federal 
laws occurring within Indian reservations have gone without sanc- 
tion; third, within a 1-year period, it is estimated that over 2,500 
petty offense violations occur within the national parks and monu- 
ments in the State of Utah ; fourth, within the national forests it is 
estimated that over 250 cases in 1975 w^ould have been handled through 
a Federal magistrate if that forum had been available; and fifth, 
within the military installations in Utah, many traffic offenses com- 
mitted by nonmilitary personnel and minor offenses involving tres- 
pass or theft from the Government are committed without any law 
enforcement sanction because of the lack of an appropriate forum. 

For such offenses, the enforcement mechanism used in all of the 
surrounding States around Utah is that of a fine or forfeiture of 
collateral. Such enforcement mechanisms are implemented with the 
assistance of the U.S. magistrate who oversees the collection of fines 
and is able to try cases involving minor offenses when such trial is 
necessary. 

In the district of Utah, no such system exists because Chief Judge 
Hitter has failed to delegate minor offense trial jurisdiction to the 
magistrate or to institute a bail forfeiture system. 

I pass now to point three of my four points, having to do with the 
manner in which Judge Ritter has administered grand juries in the 
district of Utah over the last 5 years and has thus hampered law 
enforcement. 

At the present time, there is in the 10th Circuit Court of Appeals 
a petition for writ of mandamus to require Chief Judge Ritter to 
convene a grand jury for full term and to prohibit Judge Ritter from 
unlawfully interfering with or discharging the grand jury once it is 
convened. 

This action was filed Avith the court of appeals on April 20, 1976. 
On April 21, the court of appeals ordered Judge Ritter to respond 
to the Government's mandamus action by April 26. On April 22, 
Judge Ritter issued an order for the empaneling of a grand jury and 
it was empaneled on May 10. The Court of Appeals for the 10th 
Circuit has retained jurisdiction on the subject of whether there might 
be interference with that grand jury. 

During the last 5 years, a grand jury in the central division of the 
district of Utah has met to investigate crime on only 57 days During 
1971, a grand jury sat for 5 days. During 1972, a grand jury was con- 
vened only 1 day. A grand jury was not convened at all during 1973. 
During 1974, a grand jury sat only 15 days. During 1975, a grand jury 
sat for only 36 days. 

Chief Judge Ritter has refused to convene a grand jury from De- 
cember 4, 1975, until the filing of the petition for writ of mandamus 



41 

and this situation existed even thoug:h diirino; that period four de- 
fendants refused to waive their constitutional right to indictment. 
And in court when they are arraigned, he will try to press them to 
waive that right and criticize their attorneys for not so advising them. 

Because of the lack of a grand jury in the central division of the 
district of Utah, these four defendants could not be indicted nor 
prosecuted. On January 23 of this year, pursuant to rule 6 of the 
Federal Rules of Criminal Procedure, I filed a motion requesting that 
a grand jury be empaneled. 

That motion was ignored by the court until finally I filed the man- 
damus proceeding. Such conduct on the part of Judge Ritter is part 
of a long, but consistent history of actions taken by the judge which 
have frustrated the grand jury process. 

On Febniary 10, 1975, at the request of U.S. Attorney William Lock- 
hart, the Court convened a grand jury. Shortly thereafter, the Anti- 
trust Division of the U.S. Department of Justice and the U.S. At- 
torney's Office commenced presenting cases to that grand jury. Some- 
time during the early part of April of 1975. Judge Ritter told U.S. 
Attorney Lockhart that the court was going to discharge the grand 
jury. 

In order to salvage the work of that grand jui-y, which was then 
ongonig, Mr. Lockhart agreed to the entry of an order by the court 
limiting the function and scope of the grand jury. On April 25, 1975, 
Judge Ritter executed an order which limited the matters the Govern- 
ment could present to the grand jury to four specified investigations, 
including two antitrust investigations. 

Thereafter, the judge often threatened in open court to discharge the 
grand jury. The antitrust investigation was halted when Judge Ritter 
refused to sign immunity orders and when he ordered that other im- 
munity orders, signed, but not yet served, be returned to him. 

The testimony of the 14 witnesses covered by the immunity orders 
was essential to the grand jury's continued investigation into price 
fixing in the District of Utah. The grand jury had already heard over 
10 days of testimony from over 20 witnesses. Government attorneys 
assisting the grand jury had expended approximately 2,000 houi"S 
working on that investigation, including analyses of more than 250,000 
subpenaed documents. The United States filed a petition for writ of 
mandamus with the 10th Circuit Court of Appeals on November 25 
seeking an order to require Judge Ritter to sign the immunity orders. 
By reason of the court's declared intention to dismiss the grand jury, 
on December 4, 1975, I filed a motion requesting the grand jury be 
allowed to continue to sit to conclude its business. 

That motion also asked the court to lift the restrictions imposed in 
the April 25 limiting order. Xotwithstanding the plea made by the 
Government, and over the protests of the grand jury foreman. Judge 
Ritter discharged the grancl jury while it was still investigating fraud 
and antitrust matters and while it still had over 8 months to serve. 

Before convening a grand jury in 1974, the jud^e required the 
U.S. Attorney to submit to the court a list of those individuals who 
were to be investigated. Such conduct, together with the limitation 
order of April 25, constitutes an interference with the functions of the 
executive branch and with the processes of the grand jur3^ 

My final point is that Chief Judge Ritter uses his powers in a 
manner adverse to the legitimate interests of the Federal Govern- 



42 

ment. A review of all of the criminal cases coming before Judge Ritter 
between the dates of November 7, 1975 and January 30, 1976, reveals 
the following. 

One, a total of 22 cases were listed for trial. This does not include 
cases where pleas of guilty were entered. Two, out of those 22 cases, 
the Government prevailed in only two cases — 10 percent. The same 
prosecutorial staff of my office experiences approximately 90 percent 
success in the northern division of the Utah District, which is cer- 
tainly in keeping with the national average. 

Three, in two of the remaining cases, the Government was able to 
obtain a stay of the proceedings in the Court of Appeals so that 
mandamus actions against Judge Ritter could be filed, but otherwise 
those two would have been dismissed. 

And as a result of that 22-case experience, two mandamus actions 
and eight appeals have been approved by the Department of Justice 
and are now pending in the Court of Appeals. The extra workload 
caused by this large amount of appellate work necessarily affects the 
efficiency and quality of the important work assigned to the Office 
of the United States Attorney. 

And I wish to sincerely thank this committee for giving me the 
opportunity to present the picture. 

Senator Burdick. Well, thank you very much for your contribution 
this morning. 

Mr. Child. Mr. O'Brien would like to formally submit his written 
statement rather than read it. 

Senator Burdick. It will be received for the record. 

[The above referred to statement follows :] 

Statement of James D. O'Brien, Acting Deputy Assistant Attorney General, 
Tax Division, Department of Justice Before the Subcommittee on Improve- 
ments IN Judicial Machinery, Senate Judiciary Committee on S. 1130 

A BILL TO amend THE ACT OF AUGUST 6, 1958 (72 STAT. 497), RELATING TO SERVICE 
AS CHIEF JUDGE OF A UNITED STATES DISTRICT COURT. ON MAY 18, 1976 

My name is James Dewey O'Brien and I am an Acting Deputy Assistant 
Attorney General of the Tax Division. Department of Justice. In that capacity, 
one of the Sections under my supervision is the Criminal Section of the Tax 
Division in which I entered on duty as a trial attorney almost 24 years ago. 
I welcome the opportunity to appear before you to recommend the enactment 
of S. 1130 to amend an Act of August 6, 1958 (72 Stat. 497). 

As you know, the August 6, 1958, Act provides, generally, that the Chief Judge 
of a multi-judge district shall not retain that post beyond tiie age of 70 years. 
However, the portion of that Act which would be stricken by S. 1130 excepted 
the chief judge of any two-judge district so long as that chief judge sitting at 
the date of enactment continued in office. Only the Chief Judge of the United 
States District Court for Utah is presently within that exception. 

Almost two decades have passed since Congress concluded that senior judges 
over 70 years of age should be relieved of the administrative burdens of the 
court. This conclusion was based on many years of experience, and events since 
that date have proved the wisdom of that general rule. We believe that rule 
should be uniform throughout the United States, for, whatever the reasons that 
led to the creation of this exception many years aero, the time has come when it 
is eminently clear that it is in the interests of the uniform administration of 
the laws that this exception be eliminated. The Court of Appeals for the Tenth 
Circuit has attempted to limit the problems existing in the United States 
District Court for the District of Utah by creating a new Division and restricting 
the authority of the Chief Judge of the District in the assignment and handling 
of cases in that Division. For the history of that effort, see Utah-Idaho Sugar 



43 

Company v. Ritter, 461 F. 2d 1100 (C.A. 10, 1972). But that partial solution gives 
no relief at all to the remaining Division presided over by the Chief Judge. 

I am acutely aware of the seriousness that does, and should, attend a recom- 
mendation from a representative of the Executive Branch of Government which 
would affect the status of an incumbent federal judge. The Legislative Branch 
should, and will, I am sure, view these representations with some degree of 
skepticism. But, at the same time, we trust that, if this Committee has any 
doubt about the reality and extent of the problem or any of the statements 
outlined hereinafter, it will take appropriate action to assure itself of the facts. 
We are ready at all times to cooperate with this Committee toward that end. 
I also wish your Committee to understand that the following presentation is 
based primarily on representations to the Tax Division by successive United 
States Attorneys and their assistants and by attorneys of our own staff who 
have either .supervised or tried tax cases in the District of Utah. However, most 
of the events related hereinafter happened in open court or are reported in pub- 
lished cases. 

The matters complained of may be summarized under the following categories : 

(1) the refusal to call grand juries for extended periods of time, resulting in 
the running of the statute of limitations in criminal tax cases and attempts by 
the court to determine what cases will be presented : 

(2) a continued pattern of dismissal of indictments after the trial has com- 
menced, jeopardy has attached, and the Government is without recourse by 
appeal or otherwise ; 

(3) the refusal to permit the Government to put in admissible evidence; 

(4) refusal to instruct the jury in accordance with longstanding principles 
of law ; 

(5) setting large numbers of cases for trial on the same date and refusing 
to indicate in what order the cases will be called for actual trial, setting multiple 
hearings on short notice and reaching decisions without permitting arguaient ; 
and 

(6) last, but not least, for the dignity of a court and the treatment of its 
oflScers are of prime importance to our judicial system : an extended pattern 
of mistreatment in open court of United States Attorneys, Assistant United 
States Attorney.s, and other attorneys for the Government, in repeated instances, 
threatening them with contempt and excluding them from the courtroom. 

(1) As early as 1968 the then United States Attorney reported to us that the 
Chief Judge had refused a grand jury for approximately one year and had 
denied specific requests to do so. The refusal to call grand juries in 1973 with 
15 months elapsing between grand juries resulted In the running of the statute 
of limitations in criminal tax cases. A former United States Attorney, now 
deceased, reported to us by letter that the Chief Judge had ordered him not to 
present certain cases to the grand jury. 

(2) The Supreme Court held in United States v. Jom, 400 U.S. 470 (1971), 
that, where the court dismissed the information after the trial commenced, 
the case could not be retried even though (page 487) the trial judge "made no 
effort to exercise sound discretion." In that criminal tax case, the Chief Justice, 
in a concurring opinion, characterized the actions of the Chief Judge of the 
District of Utah as repre.senting a "i)lain frustration of the right to have this 
case tried, attributable solel.^ to the conduct of the trial judge." The dissenting 
Justices said (p. 488) that they could not agree that when a trial judge abuses 
his discretion in declaring a mistrial on his own motion that a trial on the merits 
is foreclosed. 

Since Jom, there has been a pattern of dismissal of indictments and infor- 
mations after the commencement of trial and there is no recourse for the Govern- 
ment luider present law. In January 1976, in United States v. Cloyd U. Hepworth 
(Cr. 75-102), the Government sought to introduce evidence of the usual type 
in criminal tax cases. The court refused to admit the evidence and then dis- 
missed the indictment on the ground of the Government's failure to produce 
evidence. The Government, of course, had no recourse. No written order was 
issued in the case. Recently, after a nontax ca.se had been disposed of in similar 
fashion, counsel for two other defendants moved for dismis.sal of the indict- 
ments as to their clients on the grounds that the charges were similar to those 
just dismissed. The United States .Attorney's office advises us that the Chief 
Judge then took these attorneys to task, stating, in effect, that it was the 
practice of the court to dismiss the indictment after the case goes to trial so 
that the case i.-: fully disposed of. If this statement was intended to convey what 



44 

it appears to mean, then the policy of dismissal of indictments after the com- 
mencement of trial is not merely to be inferred from a pattern of events, but 
is a professed policy. 

(3) and (4). In addition to the Hepworth case, the court did not allow in 1973 
clearly admissible evidence in United States v. Stout (Cr. 43-72) and refused 
to give the standard instructions in criminal tax cases. In United States v. 
Corbett (Cr. 75-75), another criminal tax ca.se, the court refused to give the 
usual instructions or, indeed, any instructions other than to tell the jury that 
the defendant had appeared to rely on another person. In both cases, the lack 
of the usual instructions and comments to the jury weighted toward the de- 
fendants resulted, in the views of the prosecutors, in the acquittals. 

(5) It is repeatedly reported to us by the Office of the United States Attorney 
and attorneys of our own Division that as many as 40 cases are set for trial 
on the same date without stating the order in which the cases will be tried ; that 
if the parties are not ready to go to trial, the case is sometimes dismissed or 
the parties are forced to go to trial without key witnesses. This, of course, 
takes up the time of attorneys for both sides and incurs additional costs by 
having the witnesses appear and reappear. More seriously, it interferes with the 
orderly administration of justice. On occasion, hearings are set with very little 
notice, with resettings, then counsel is sometimes given no chance to be heard 
after multiple appearances. This has been particularly burdensome on Govern- 
ment attorneys travelling from Washington, D.C., to Utah. 

(6) Successive United States Attorneys have reported to us that the Chief 
Judge has barred certain Assistant United States Attorneys from his courtroom. 
At times between the years 1967 and 1973, the then United States Attorneys re- 
ported that two of their four assistants were barred at times, and that this 
caused a great hardship on a small office. Successive United States Attorneys, 
their Assistants, and other Government attorneys have reported that the Chief 
Judge used abusive and threatening language to them in open court. 

The effect of the combined course of conduct described above has been to 
prevent the Government from carrying out its duty to enforce the criminal tax 
laws fairly and effectively in the Central Division of the District of Utah presided 
over by the Chief Judge. In connection with our supervision of criminal tax 
cases, it was brought to our attention that the Chief Judge had dismissed mail 
fraud charges against Thomas Dee Stoker fCr. 86-70, USDC Utah) and issued a 
restraining order against prosecution of that individual in Wyoming on similar 
but different charges (Cr. 8543, USDC Wyo.) after the defendant brought a pro- 
ceeding back in Utah. The United States District Court for the District of 
Wyoming ordered the trial to proceed and the defendant was convicted. The 
Chief Judge of the District Court for Utah then issued an order to the United 
States Attorneys for Utah and Wyoming to show cause why they should not be 
held in contempt. We understand the show cause matter was not pursued. 

It should be noted that this pattern of conduct has extended through several 
administrations, indicating that politics and personalities have nothing at all 
to do with the problem. 

The Government's difficulties before the Chief Judge of the United States 
District Court for the District of Utah have by no means been limited to criminal 
cases. For example, in one civil tax case, the Chief Judge was reversed five 
times by the Court of Appeals for the Tenth Circuit (Portland Cement Company 
of Utah v. United States, 293 F. 2d 826 ; 315 F. 2d 169 ; 338 F. 2d 798 ; 378 F. 2d 
91; 412 F. 2d 894). 

The Court of Appeals for the Tenth Circuit, as shown in the Utah-Idaho Sugar 
Company case cited above, has done what it can to limit the problem geographi- 
cally. We strongly urge the passage of S. 1130 as a solution to many of the 
problems in the United States District Court for Utah. Even if this .situation 
did not exist, we would recommend the enactment of S. 1130 as removing an 
outmoded exception to the general rule, the wisdom of which has been demon- 
strated in the course of almost two decade : that judges over 70 years of age should 
be relieved of the administrative burdens of the United States District Courts 
and the United States Courts of Appeals. 

Thank you for permitting me to submit this statement. 

Mr. O'Briex. Copies have been submitted previously. 
Mr. Child. Mr. Chairman, my reading of my statement deleted many 
parts and I hope the entire statement is received. 



45 

Senator Burdick. Your full statement will be received in the record. 

]Mr. Child. Thank you. 

[The above referred to statement with appendixes follows :] 

Statement of Ramon M. Child, United States Attorney fob the District of 
Utah to the Sub-Committee on Improvements in Judicial Machinery, of the 
Committee on the Judiciary of the United States Senate 

It is not a pleasant task to criticize the work of an important man ; however, I 
have been requested to briefly outline for this sub-committee the problems the 
United States Government, and in particular the Department of Justice, must 
face because of the manner in which the Honorable Willis W. Ritter, Chief Judge 
of the District of Utah, administers his court and cases. My statement is largely 
directed to criminal matters and is divided into four areas: (1) the methods 
utilized by the Chief Judge to pi'ocess his cases through court and resulting de- 
lays ; (2) the failure of the Chief Judge to implement a magistrate system which 
would iiermit the magistrate to try minor ofCenses and to establish a collateral 
system ; ( 3 ) a description of the way in which the Chief Judge has administered 
grand juries over the last five years ; and (4) a brief description of the effects of 
hostility demonstrated by the Chief Judge towards cases in which the United 
States is a party. 

I. the manner in which judge ritter processes the cases through his coubt 

A. Calendaring of Criminal Cases for Trial 

In the Central Division of the United States Court for the District of Utah 
there are no published Rules of Court. Chief Judge Ritter does not set criminal 
cases for trial at the time of arraignment nor does he give the usual 30 to 60 days 
notice. The Chief Judge rarely sets less than 20 cases for trial on any one calen- 
dar. That is, he uses the •trailing calendar" system. 

During the last few years the number of trial calendars set up by the Chief 
Judge each year has declined. Consequently each trial calendar has contained a 
large number of cases for trial. It becomes an almost impossible task to prepare 
20 to 30 criminal cases for trial when the government is given only a week's no- 
tice and often only two or three days" notice. 

Because a large number of criminal eases were backlogged for trial, on Au- 
gust 1, 1975, I sent a memorandum to Judge Ritter advising him that there were 
36 criminal cases awaiting trial and eleven criminal cases awaiting arraignment, 
including at least two important stock fraud cases (Exhibit 1). Upon inquiry 
from the Chief Judge as to when the government could be ready to try the two 
stock fraud cases, a subsequent memorandum was sent to the Judge on Sep- 
tember 17, 1975, wherein I informed the court we could be prepared to try the 
cases on October 6, 1975 (Exhibit 2). Prior to that I had informed the court that 
in view of the large number of witnesses in the stock fraud cases we would need 
at least two or three weeks lead time to assemble those cases for trial. There 
were aproximately 130 witnesses involved in three of those stock fraud cases. On 
September 22, 1975. at 5 :15 p.m. I received a memorandum from Chief Judge 
Ritter which stated that the two stock fraud cases would be tried commencing 
September 29, 1975, at 10 :00 a.m. (Exhibit 3) . It is of significance that these cases 
were being tried by Fraud Section attorneys who were residing in Washington, 
D.C. 

On Friday, December 12, 1975, late in the afternoon, my office received notice 
of a criminal trial calendar to commence at 10 :00 a.m. on Thursday, December 
18, 1975 ( Exhibit 4 ) . On that calendar 23 cases had been set for trial. Three of 
the first four cases were tax cases involving approximately 100 witnesses, many 
of whom resided out of the state. During this period of time in December 1975, 
United Air Lines was on strike, which created difficulty in getting people from 
one place to the other in this country. Christmas holiday traffic aggravated the 
situation as well. Consequently, on Monday, December 15, 1975, I filed a motion 
with the court requesting that we be given 21 days to prepare for that trial 
calendar and informing the court of the tremendous difficulty we would have in 
preparing and serving subpoenas and in securing witnesses on such short 
notice (Exhibit 5). Nevertheless, on Thursday. December 18 Judge Ritter held 
a call of the trial calendar. We had been able to get ready on only a couple of 
cases. Four cases were dismissed outright because the government did not 



78-678 O - 77 - 4 



46 

have its witnesses present (Exhibit 6). All four of those cases are now on 
appeal. In one of those cases the court was informed by government counsel 
that the case could be ready by the time it was reached on the following Mon- 
day. Notwithstanding the fact that this case was number 20 on the calendar 
the court stated: "The case is reached now," and then dismissed it (Exhibit 
7). Judge Ritter required the government to try four other criminal cases on 
that calendar on Friday, the 19th of December. Sensing the mood of the court 
defense counsel waived jury, and all four cases tried on the 19th were lost bv 
the government. Because jeopardy attached in three of those cases, only one is 
on appeal. The other cases on the trial calendar the court reluctantly set over 
to January 5. 

There are numerous other similar examples of such administration For 
example, on January 12, 1976, we received notice of a 14-case calendar to be 
tried commencing January 14, 1976 (Exhibit 8). On November 14 1975 the 
government received notice of a 23-case trial calendar to commence November 
.^0, 1975 (Exhibit 9). On October 21, 1975, the government received notice that 
a 30-case calendar was to commence October 21, 1975 (Exhibit 10). On November 
1, 1974, the government received a calendar which contained 31 criminal cases 
to commence on November 4, 1974 (Exhibit 11). On Mav 21, 1974, the government 
received a criminal calendar containing 19 cases to commence on Mav 28 
1974 (Exhibit 12). ' 

Often when the cases are not ready because of the inability of the govern- 
ment to secure attendance of witnesses within the time noticed, the cases are 
dismissed. A typical example of this was the case of United States v Will 
Henry Savage, CK-75-26. The case was noticed October 20, 1975, for trial on 
October 21, 1975 (Exhibit 13). The government filed a motion for continuance 
which Chief Judge Ritter ignored (Exhibit 14). Judge Ritter dismissed the 
case on October 22, 1975, because the government had not been able to locate 
Its witnesses (Exhibit 15). I have a staff of six assistants, but on a 20 to 30-case 
calendar, often we are talking upwards of 200 to 400 witneses to be subpoenaed 
and secured. Moreover, the attorneys need time to prepare their cases. Many 
cases, because of their complexity, merit definite trial dates. While I recognize 
that trailing calendars are used in some other courts, they are not used with 
such short notice. Further, most courts do not sandwich complicated stock and 
tax fraud cases in the middle of a trailing calendar as does Judge Ritter. You 
can perhaps recognize the difficulty in trying a complicated tax fraud case 
involving as many as one hundred witnesses in the middle of a calendar where 
that same attorney is required to try drug cases, theft from interstate ship- 
ment cases, and cases involving violence on an Indian Reservation. 
B. Law and Motion Days 

Judge Ritter does not hold rule days at which time defendants are arraigned 
on a regular or even frequent basis. The last criminal rule day in the District 
of Utah was January 16, 1976. 

It is axiomatic that effective administration of criminal justice demands 
that court machinery function swiftly. The present state of the Central Divi- 
sion criminal calendar is evidence of the prejudice to both the defendant and 
the government caused by delays in the calendaring of cases 

There are presently 32 cases involving 46 defendants awaiting arraignment 
in the Central Division. Of these defendants, 23 have either been arrested or 
served with summons and bound over for arraignment after preliminary hear- 
ing before the magistrate (Exhibit 16). However, none of these 23 defendants 
in-^-^'!u ,^ formally charged in an information or indictment. As of May 10, 
19 (b, the elapsed time since arrest or service of summons in these 23 instances 
ranged from 26 to 150 days. The average is 99 days. (Twenty-one of these 23 
cases exceed the 60-day time limit for filing an indictment or information under 
the Speedy Tnal Act 18 U.S.C. § 8161(b). However, § 3161(b) does not take 
ettect until July 1, 19 < 6, and the Interim Plan for Prompt Disposition of Criminal 
cases in the District of Utah contains no interim time limit for filing an indict- 
T?,^ or information.) No indictment was possible during this period because 
ot the Chief Judge s refusal to convene a grand jury. No information could be 
filed or pleas taken during this period because of the Chief Judge's failure to 
schedule court time for the conducting of such business. 

Furthermore, at present 23 defendants have been formally charged by indict- 
ment or information and await arraignment in the Central Division They have 
^?fp, iL^'^^^iHS arraignment for a period ranging from 26 to 158 days (Ex- 
hibit 16a). The average wait as of May 10, 1976, was 66 days. This is a period of 



47 

time in which these defendants have had no opportunity to plead not guilty and 
defend the charge or plead guilty and bring the matter to a swift conclusion. 
In 21 of these 23 instances, the Chief Judge has failed fro meet the specific time 
requirement of § 2(a) of the Interim Plan for Achieving Prompt Disposition of 
Criminal Cases in the District of Utah, which he and the Associate Judge 
adopted pursuant to the requirements of Rule 50(b), Federal Rules of Criminal 
Procedure. Section 2(a) of the Court's plan requires that a defendant musit be 
arraigned within 30 days from the date the information or indictment is filed. 

When a rule day is established a large number of cases appear on the rule 
day calendar. This limits the amount of time that the Judge can spend with 
each case. This is a particular problem when a motion to suppress evidence or 
when a motion to dismiss has been filed by defense counsel. The Judge's usual 
practice is to defer hearing motions to dismiss or suppress until the time of 
trial. That means he defers a ruling on the motion until after a jury has been 
picked and sworn, thereby causing jeopardy to attach and thus depriving the 
government of its right to appeal an adverse ruling. In point of fact, the Chief 
Judge made a statement in a particular case wherein he admitted that his 
purpose in delaying pretrial motions until after a jury was sworn, was to make 
certain that jeopardy attached so the government couldn't appeal (Exhibit 17). 
The Chief Judge had just ruled against the government in a case involving a 
crime of violence on an Indian Reservation and dismissed the case. Defense 
counsel, in a following and similar case, to wit : United States v. Gerald 
Moitntainlion and Ronnie Appaicoo, CR-75-72, was observing in the court- 
room. He addressed the Court and pressed to have his similar pretrial motion 
heard before the jury was picked : 

The Court. You are not representing your client very good. You are overlooking 
smething that a practical man ought to think about. Defendant in the preceding 
case ivas in jeopardy. 

Defense Counsel. I recognize that. 

The Court. He was confronting a jury. Now you are pushing your luck here. If 
I rule on this motion before you confront a jury and that constitutional question 
is litigated for the next ten years and goes up to the Supreme Court of the United 
States and in the meantime the government amends, you have done your client 
a very great disservice, because there is no bar to him being prosecuted. 

Defense Counsel. Well, that is a possibility, Your Honor. 

The Court. It is not only a possibility. That is what will happen. A'otf, / have 
teen trying to handle all these cases on this calendar by having a jury in the 
box there and not listening to your arguments about anything. You push in 
here now at a time when the motion isn't even set down for argument, and you 
have got your client in a fix where he may be twice tried for this thing. Now, 
that is poor legal representation from my point of view, and I am going to do 
what I can to protect him against his counsel, and we will just keep that right 
where it is and get a jury for you one of these daj's, and when we get the matter 
up before the jury we will get far enough down the way with the evidence to 
see what is involved and then we will entertain your motion. I don't want to be 
trying these cases again. I am interested in the court docket as much as I am the 
Indian boy, but he ought to have the benefit of double jeopardy defense. If he 
is prosecuted once that ought to be enough. That will be all. 

Regarding this particular problem, the Department of Justice has filed with 
the Tenth Circuit Court of Appeals a petition for writ of mandamus requiring 
the Chief Judge to hear pretrial motions in accordance with Rule 12(e) of the 
Federal Rules of Criminal Procedure. Rule 12(e) specifically provides : "A motion 
made before trial shall he determined before trial unless the court, for good 
cause, orders that it be deferred for determination at the trial of the general 
issue or until after verdict, but no such determination shall be deferred if a 
party's right to appeal is adversely affected. . . ." The Tenth Circuit has ordered 
Judge Ritter to respond to the government's petition for mandamus. To my 
knowledge, the Chief Judge has not filed a response. 

In the case I just cited to you the issue involved the constitutionality of an 
act of Congress. Certainly the Court of Appeals should have the opportunity to 
decide that. However, it was Judge Ritter's intention to deprive the government 
of that opportunity. 

Frequently the rights of those defendants who are in custody have been abused 
by the delays caused by the court. One of the more serious problems faced by the 
United States Attorney's Oflice during the term of William Lockhart was the 
inability to bring in-custody defendants to trial before Chief Judge Ritter within 



48 

a reasonable time after arrest. The following three cases are used to demonstrate 
the problem. 

Samuel Geist Rudy and Donald Devon Kirkendahl were both charged with 
armed bank robbery involving separate incidents. Rudy was arrested on Sep- 
tember 23, 1974, and Kirkendahl was arrested December 1, 1974. Both men were 
held in custody under high bond because of the seriousness of their crimes and 
their pa.st criminal records. Karl Stock Smith was incarcerated on August 28, 
1974, after being charged in an interstate bank fraud scheme. He, too, was held 
in eustdy under high bond because of his criminal record and other considera- 
tions. Despite repeated oral requests from United States Attorney Lockhart, 
Judge Ritter did not set these cases for trial until March 3, 1975, at which time 
he set all three cases for trial on the same day, giving the government only one 
working day notice. Defendant Rudy spent six months in jail awaiting his trial, 
while defendant Kirkendahl waited more than four months. Defendant Smith 
was convicted on March 1, 1975, after waiting seven months in jail. Judge Ritter 
also postponed Smith's sentencing until July 11, 1975. Accordingly, Smith spent 
nearly one year in the County Jail waiting for his case to be concluded. 

Thus, absent appropriate written Rules of Practice and notwithstanding the 
Interim Plan adopted by the Court, the administration of criminal justice in 
the District of Utah is being frustrated by the practice followed by Chief Judge 
Ritter in calendaring cases, holding rule days and ruling on motions in criminal 
cases. 

II. FAILURE TO FULLY UTILIZE THE U.S. MAGISTRATE 

In the District of Utah, the United States Magistrate has been utilized very 
little. Since 1968 U.S. Magistrates have been authorized by law to try and to 
sentence persons who have committed petty and misdemeanor offenses when 
the judges of the district have delegated such authority to the Magistrate. 18 
U.S.C. § 3401. In every district except the Northern District of West Virginia 
and the District of Utah such a delegation of authority is in existence. 

In the District of Utah several federal agencies have made requests to the 
Court that the U.S. Magistrate be utilized for the enforcement of minor 
offenses, but their requests have not been granted. Since 1970 each U.S. 
Attorney has made similar requests of the court. During the tenure of C. Nelson 
Day, such a request was made on numerous occasions. During the tenure of 
the Chief Judge's own interim appointee, William J. Lockhart, similar requests 
were made. Mr. Lockhart tried unsuccessfully to persuade the court as to the 
need for trial authority in the magistrate and a bail forfeiture system. 

Recently I have also made a request that the U.S. Magistrate be more fully 
utilized for the effective enforcement of minor offenses. Based upon past history 
I have little hope that this petition will be granted. 

In delegating minor offense jurisdiction to the U.S. Magistrate, a concurrence 
of a majority of the judges of the district court is required. Absent such a 
concurring majority, the decision is left to the Chief Judge. Thus, in the District 
of Utah, where there are two federal judges, the favorable vote of the Chief 
Judge is controlling for any decision to delegate minor offense jurisdiction to 
the Magistrate. I am confident a different Chief Judge would effect these 
reforms. 

Absent the use of the U.S. Magistrate the only available forum for the 
enforcement of minor federal offenses is that of the U.S. District Court. How- 
ever, for a large part of the district, that forum is not realistically available 
for enforcement because of Judge Ritter's attitude toward minor offenses. 
Although he refuses to delegate trial authority. Chief Judge Ritter resists 
hearing minor offenses and abuses the government prosecutor when such cases 
are filed in his court. For example, in March of 1975, under the tenure of 
William Lockhart, a man charged with the petty offense of illegal entrance on 
a military reservation appeared before Judge Ritter for arraignment. The 
following excerpts from a transcript of that proceeding demonstrate the Judge's 
attitude toward handling petty offenses in the district court (Exhibit 19). 

The Court. . . . What kind of petty offense was it? We don't entertain 
those petty offenses up there on the reservation. How did that one get in here? 
***** * * 

The Court. I don't think this case will last very quick. I think it will go out 
the door with wheels under it. . . . 



49 

The Clebk. How do you plead to the information, guilty or not guilty? 

The Defendant. Not guilty. 

The CouBT. Good. That's what you should do. There's a question whether 
I'm going to handle it or not. I may throw it out. I don't take these petty 
offenses, you see. The Military up there ought to run that reservation. They 
ought to run it. And when they find out they can't run it, at that point, par- 
ticularly with respect to traflSc offenses, they can't manage the traflSc up there, 
so they want me to be a traffic policeman, traffic examiner, and dish out dollar- 
and-a-half fines, that sort of business. I'm not going to do it. It looks to me 
like this thing ought not to be here. 

[The Pbosecutob]. I felt, your Honor, that the petty offense justified the 
Court's attention under the circum.stances. 

The CouET. The plea is not guilty. That's a proper plea in this case, and 
we'll look at your cards when we get it on the calendar, and I think chances 
are that you won't have a big enough hand to stay in the game. 

When this case came before the court for trial, the Judge dismissed it after 
hearing the government witnesses (Exhibit 20). 

The need for an effective method of handling minor offenses in the District 
of Utah is readily apparent. Utah has within its boundaries five Indian res- 
ervations or areas of allotments involving exclusive federal jurisdiction ; five 
major military installations ; and many federal buildings which all involve 
the exclusive jurisdiction of the United States Government. There also exist 
five National Parks and at least ten other National Monuments or Recreation 
Areas where the federal government is charged with the responsibility of the 
enforcement of regulations and petty offenses promulgated for the protection 
and preservation of these scenic areas. In addition, there are eight National 
Forests encompassing hundreds of thousands of acres within the State of Utah 
where regulations for the protection of our natural resources and the people 
who use the National Forests must be enforced. 

A recent review of the need for better enforcement of minor offenses in the 
District of Utah disclosed the following: (1) there is presently no way of 
enforcing minor traffic and parking infractions at federal buildings and facilities ; 
(2) in spite of some enforcement of minor offenses in tribal courts, many minor 
violations of federal laws occurring within Indian Reservations have gone 
without sanction; (3) within a one-year period it is estimated that over 2,500 
petty offense violations occur within the National Parks and Monuments in 
the State of Utah; (4) within the National Forests it is estimated that over 
250 cases in 1975 would have been handled through a federal magistrate if 
that forum had been available; and (5) within the military installations in 
Utah, many traffic offenses committed by non-military i)ersonnel and minor 
offenses involving trespass or theft from the government are committed without 
any law enforcement sanction because of the lack of appropriate forum. 

For such offenses as these, the enforcement mechanism used in surrounding 
jurisdictions is that of a fine or forfeiture of collateral system. Such enforce- 
ment mechanisms are implemented with the assistance of the U.S. Magistrate 
who oversees the collection of fines and is able to try cases involving minor 
offenses when such trial is necessary. In the District of Utah no such system 
exists because Chief Judge Ritter has failed to delegate minor offense trial 
jurisdiction to the Magistrate or to institute a bail forfeiture system. 

The extent of the need for better utilization of the U.S. Magistrate as de- 
scribed above has been documented by letters from nine heads of federal agencies 
and affidavits from nine key federal law enforcement personnel. These documents 
were appended to a petition to the judges of the district court in our most 
recent effort to obtain a delegation of minor offense jurisdiction for the U.S. 
Magistrate. 

Without the effective use of the U.S. District Court as a forum for the en- 
forcement of minor offenses, and without the appropriate delegation of authority 
being made to the U.S. Magistrate, violations of federal laws and regulations 
will continue to go unenforced in the District of Utah. 

III. the manner in which judge ritteb has administebed gband jubies in the 

DISTRICT OF UTAH OVER THE LAST FIVE YEARS HA.S GREATLY HAMPERED THE 
ENFORCEMENT OF CRIMINAL LAWS IN THE DISTRICT OF UTAH 

At the present time there is in the Tenth Circuit Court of Appeals a petition 
for writ of mandamus to require Chief Judge Ritter to convene a grand jury for 



50 

full terms, and to prohibit Judge Ritter from unlawfully interfering with or 
discharging the grand jury once convened. The specific relief requested is as 
follows: (1) forthwith convene a regular grand jury; (2) follow the procedures 
specified in Rule 6 of the Federal Rules of Criminal Procedure and 28 U.S.C. 
§ 1861, et. seq. to effectuate the convening of a lawful grand jury ; (a) allow said 
grand jury to sit for its full term unless both the United States Attorney and 
the foreman agree to a dismissal on an earlier date or unless the grand jury by 
a majority vote requests to be discharged on an earlier date; (4) allow saiu 
grand jury to met and take evidence as often as it deems necessary and at regular 
intervals; (5) allow said grand jury to investigate any matter it deems proper; 
(6) allow the office of the United States Attorney for the District of Utah to 
present to the grand jury such matters it deems necessary in the public interest; 
and (7) sign and enforce all immunity orders obtained in accordance with the 
provisions of Title 18. United States Code, § 6001, ct. seq. 

This action was filed with the Court of Appeals on April 20, 1976. On April 21, 
1976, the Court of Appeals ordered Judge Ritter to respond to the government's 
mandamus action by April 26, 1976. On April 22, 1976, Judge Ritter issued an 
order for the empanelling of a grand jury. A grand jury was empanelled on 
May 10, 1976. The Court of Appeals for the Tenth Circuit has retained jurisdic- 
tion over the Petition pending further developments. The facts which led to the 
filing of the mandamus and which are pertinent inquiry are as follows. 

During the last five years a grand jury in the Central Division of the District 
of Utah met to investigate crime on only 57 days. During July of 1971 a grand 
jury sat five days. During 1972 a grand jury was convened for only one day, and 
that was because a defendant had been charged with a capital offense. A grand 
jury was not convened at all during 1973. During 1974 a grand jury sat for only 
15 days, and during 1975 a grand jury sat for only 36 days. Chief Judge Ritter 
has refused to convene a grand jury from December 4, 1975, until the filing of the 
petition for write of mandamus. 

This situation existed even though four defendants refused to waive their 
constitutional right to indictment (Exhibit 21). Because of the lack of a grand 
jury in the Central Division of the District of Utah these four defendans could 
not be indicted or prosecuted. 

On January 23, 1976, pursuant to Rule 6 of the Federal Rules of Criminal 
Procedure, I filed a motion requesting that a grand jury be empanelled (Exhibit 
22). As grounds for this motion I emphasized: (1) the public interest requires 
that certain matters be inquired into and that alleged criminal offenses be in- 
vestigated to determine if indictments should issue; (2) that four defendants 
had refused to waive indictment and required presentment; and (3) that it was 
probable that the antitrust laws are being violated in the District of Utah and 
that such probability required an investigation. As of the date the grand jury 
mandamus action was filed. Chief Judge Ritter had ignored the fact that four 
defendants had requested presentment and that the United States Attorney had 
certified to the Court that the public interest required the convening of a grand 
jury to inquire into violations of the United States Criminal Code which are oc- 
curring in the Central Division of the District of Utah. Such conduct on the part 
of Judge Ritter is part of a long, but consistent, history of actions taken by the 
Judge which have frustrated the grand jury process. 

On February 10, 1975, at the request of United States Attorney William 
Lockhart, the court convened a grand jury. Shortly thereafter the Antitrust 
Division of the United States Department of Justice and the United States At- 
torney's office commenced presenting cases to that grand jury. Sometime during 
the early part of April 1975, Judge Ritter told United States Attorney William 
J. Lockhart that the court was going to discharge the grand jury. In order to 
salvage the work of that grand jury, Mr. Lockhart agreed to the entry of an order 
by the Court limiting the grand jury. 

On April 25, 1975, Judge Ritter executed an order which limited the matters 
the government could present to the grand jury to four specific investigations, 
including two antitrust investigations (Exhibit 23). Thereafter the Jud-^e often 
threatened in open court to discharge the grand jury. As noted in the April 25th 
order, in one of the antitrust investigations over 250.000 documents had been 
produced in compliance with grand jury subpoenas. In a fraud investigation 
listed in that order, over 2,000 documents had been produced. The government 
was not allowed to complete either of those investigations. The antitrust in- 
vestigation was halted when Judge Ritter refused to sign immunity orders ob- 
tained in compliance with § 6001, et. seq. of Title 18, United States Code, and 
when he ordered that other immunity orders not yet served be returned to him. 



51 

This occurred in a meeting with the United States Attorney and an attorney 
from the Antitrust Division of the Justice Department held in chambers on 
August 26, 1975. Three immunity orders signed May 13, 1975, and one signed 
J uly 28, 1975, were returned. The immunity orders either returned or not signed 
totaled fifteen. 

On August 28, 1975, I delivered a letter to Judge Ritter renewing the request 
to issue immunity orders and asking him to reconsider his decision. That letter 
was accompanied by a memorandum of law regarding the district court's lack 
of discretion with respect to issuance of immunity orders as well as an applica- 
tion by the United States Attorney for orders to compel testimony of 14 wit- 
nesses, with the necessary authorizations of the Assistant Attorney General 
attached. 

On September 3, 1975, the United States was advised orally by the clerk that 
Judge Ritter would not sign any orders compelling testimony. Another motion 
to reconsider his decision was submitted to Judge Ritter on October 6, 1975, but 
again he refused to sign. 

The testimony of the 14 witnesses was essential to the grand jury's continued 
investigation into price fixing in the District of Utah. The grand jury had already 
heard over ten days of testimony from over 20 witnesses. Government attorneys 
assisting the grand jury had expended approximately 2,000 hours working on this 
investigation, including analysis of more than 250,000 subpoenaed documents. 

The United States filed a petition for a writ of mandamus with the Tenth 
Circuit Court of Appeals on November 25, 1975, seeking an order to require 
Judge Ritter to sign the immunity orders. 

On December 4, 1975, I filed a motion requesting the grand jury be allowed to 
continue to sit to conclude its business (Exhibit 24). That motion also asked the 
court to lift the restrictions imposed in the April 25, 1975, order. Notwithstand- 
ing the plea made by the government and over the protest of the grand jury 
foreman Judge Ritter discharged the grand jury while it was still investigating 
fraud and antitrust matters. 

In his report to the court, the grand jury foreman told Judge Ritter. "the 
Grand Jury is currently considering other matters . . . but is not ready to report 
on them at the present time . . . ." At the conclusion of the court's remarks dis- 
charging the grand jury, the foreman asked if he could be heard, and stated : 

"The Grand Jury would like to thank you for the opportunity that we have had 
as serving as federal grand jurors in representing the people of the United States 
of America ; but we are deeply concerned, and we have been for some time about 
the fact of unfinished business. 

"We haven't felt it a hardship, you know, to meet and to act in this capacity; 
and we would like to at this time, with your permission, to complete the investi- 
gations that still haven't completed." (emphasis added) (Exhibit 25) 

Thereafter the court instructed the foreman, "We will do as I say." Thus, the 
one grand jury that was convened in 1975, while it still had eight months to 
tions because: (1) the court refused to sign some fifteen immunity orders; (2) 
the court limited the matters the grand jury could investigate; and (3) the court 
prematurely discharged the grand jury. 

Before convening a grand jury in 1974 the Judge required the United States 
Attorney to submit to the court a list of those individual^ who were to be investi- 
gated (Exhibit 26). Such conduct, together with the limitation order of April 25, 
1975, constitutes an interference with the functions of the Executive Branch. 

The manner in which Judge Ritter has administered the grand jury system has 
frustrated the enforcement of federal criminal law in the District of Utah. 

IV. THE CHIEF JUDGE USES HIS POWEKS IN A MANNER AD\TERSE TO THE LEGITIMATE 
INTERESTS OF THE FEDERAL GOVERNMENT 

A review of all criminal cases coming before Judge Ritter between the dates 
of November 7, 1975, and January 30, 1976, reveals the following: (1) a total 
of 22 cases were listed for trial (does not include cases where pleas of guilty 
were entered) ; (2) out of those 22 cases the government prevailed in only two 
cases (the same prosecutorial staff experiences approximately 90 per cent success 
in the Northern Division of the Utah District, which is more in keeping with 
national averages) ; (3) in two of the remaining cases the government was able 
to obtain a stay of the proceedings in the Court of Appeals so that mandamus 
actions against Judge Ritter could be filed ; (4) in 17 cases Judge Ritter dismissed 
charges against defendants; (5) in 2 cases verdicts of not guilty were returned 
by juries after being erroneously or prejudicially instructed on the law by the 



52 

Judge- (6) in one case Judge Ritter directed judgment of acquittal after the 
jury had returned a verdict of guilty; (7) approval for filing appeals or man- 
damus actions were sought from the Department of Justice in 12 cases, with the 
result that two mandamus actions and eight appeals were approved and are now 
pending in the Court of Appeals. In adaition, two other mandamus actions 
against Judge Ritter challenging the legality of his conduct are presently pending 
in the Court of Appeals, as are 22 other criminal appellate matters. 

The extra workload caused by this large amount of appellate work necessarily 
affects the efficiency and quality of the important work assigned to our office. 

August 1, 1975. 
Re pending criminal cases 
Hon. Willis W Rittee, 
Chief Judge, 
U.S. District Court. 
Ramon M. Child, 
U.S. Attorney. 

I enclose for your information summary of 36 criminal cases awaiting trial as 
of this date before the Utah District Court— Central Division. 

On June 6, 1975 I supplied the Court with a similar inventory of criminal 
matters awaiting trial. At that time there were 43 items on the calendar. The 
Court arranged to have Judge Sherrill Halbert come to the District and as a 
result of his efforts 16 matters on that calendar have been disposed of. 

In addition to the 36 criminal cases now awaiting trial, there are also 11 
criminal cases awaiting arraignment. A summary of those cases is also attached 
hereto for the Court's information. 

CR-74-99 (Buchanan) was cancelled by Judge Halbert. Forty-five witnesses 
were served subpoenas and are on a standby basis. A jury was also selected. 
The case could be disposed of in a two-day trial. 

CR-74-52 (Rio DeOro) was also cancelled by Judge Halbert. More than sixty 
witnesses were subpoenaed and are on a standby basis. This case will probably 
require approximately two weeks to try. 

Your advice and assistance would be appreciated. 
Respectfully, 

Ramon M. Child, 

U.S. Attorney. 

Septembeb 17, 1975. 
Hon. Willis W. Rittee, 
Chief Judge, U.S. District Court, District of Utah. 

Kamon M. Child, 
U.S. Attorney. 

Pending Teial Calendae : At the Court's request I have contacted the Acting 
Director of the Fraud Section of the Criminal Division, Department of Justice, 
rpgarding pending criminal cases CR-74-52 and CR-74-53. I am informed that 
the prosecutors assigned to these cases by the Department of Justice will be 
prepared to proceed with trial, if the Court desires, on October 6, 1975 with 
CR-74-52 to be tried commencing on that date and CR-74-53 to follow in turn. 
There is a possibility that pleas may enter in CR-74-53 but the possibility of 
pleas in CR-74-52 is considered remote. 

If the Court directs trials to commence September 29, the prosecution will 
make every attempt to be prepared. Such date would be the earliest possible 
date in which prosecution could be prepared and it is felt the preparation would 
be less than adequate for an efficient presentation of the Government's case. If 
the Court must set trial date to commence prior to October 6, we would ap- 
preciate a commencing date to be as close to October 6, as possible. 

Thank you for your consideration in these matters. 

OFFICE MEMOEANDUM — ^U.S. GOVEENMENT 

Septembeb 22^ 1975. 
To: Ramon M. Child, U.S. Attorney. 
From : Willis W. Ritter, Chief Judge. 
Subject : Pending Trial Calendar. 

Receipt is acknowledged of your memo of September 17, 1975 regarding cases 
CR-74-52 and CR-74-53. Case No. CR-74-52 (United States y. Rio De Oro 



53 

Mining Co., et al.) is set for September 29, 1975 at 10:00 am in my Court- 
room. Case No. CR-74-53 {United States v. Richard T. Cardall, et al.) is set 
to follow upon conclusion of CR-74-52. 

The Court expects all counsel to be present with witnesses and prepared to 

S« t« *"^^- Willis W. Ritter, 

Chief Judge. 

IN THE UNITED STATES DISTRICT COURT IN AND FOR TIIE DISTRICT OF UTAH 

CENTRAL DIVISION 
JURY TRIALS BEFORE HONOWABLE WILLIS RITTER | 

COMMENCING TirURSDAY, DECEMBER IS, 1975 
10:00 A. M. 



COUNSEL ARE INSTRUCTED TO KEF.P IN TOUCH VHTil THE CLERK AND WITH THE ATTORNEYS 
IN THE e^SES Ta^T PRECEDE T!1EM. YOUR CASE KILL 3E TRIED AS SOON AS THERE IS 
A DISPOSITION OF TFJD CASES AHEAD OF YOU. FRECUE::TLY THE 0\SES ARE SETTLED 
RATHER THAN TRIED, AND T.4S RESPONSIBILITY TO KEEP Il-'FORI-IED AND PREPARED TO GO 
TO TRIAL RESTS UPON COUNSEL. 



Cr 74-98 



United States of America 



Max D. Wheelsr 



NO. 1 

David W. Clayton 

(Willful failure to file tax return; 

HEARING: Defendant's motion to dismiss information 
Defendant's motion to suppress evidence 



J. Thomas Bowen, appt. 



Cr 75-73 
No. 2 



United States of America 

vs 
John Emery Angel 
(Assault) 



Max D. Wheeler 



Earl Dillman, ret. 



Cr 75-75 
No. 3 



United states of America 

vs 
George Boyd Corbett 



Max D. Wheeler 



Orrin Hatchr 

Walter Plumb, III - ret 



(Willful failure to file tax returns) 

HEARING: Defendant's motion to quash 

Defendant's motion to disqualify judge 



Cr 75-79 
No, 4 



United States of America 



Rodney G. Snow 



Thomas Warner Hcooes 



(Willful failure to file income 
tax returns) 



EXHIBIT 4 



54 



Cr 75-80 
NO. 5 



United States of America 

V8 

Ray M. Bucsch and Roger E. Backus 
(Illegal Hunting) 



Rodney C. Snow 



Sumner J. Hatch - Ruesch; 
Daniel Boone - Backus 



Cr 75-90 
Ko. 6 



United States of America 

vs 
Bobby D. Bates 



Max D. Wheeler 



Phil L. Hansen - ret. 



(Possession of Pornographic Materials wlv 
intent to dl-itrlbute) 



Cr 75-101 
NO. 7 



United States of America 



tittle Dutch Boy Bakeries, Inc., William W. 
Morris, Alfred J. Taggard and Frank Sakker 



(Adulteration of food held for sale after 
•hlpmcnt in interstate corvierce ; intro- 
duction of adulterated food into interstate 
commerce) 



Steven Snarr 



Norman S. Johnson - Dutch 
Orrin Hatch - ^-torris; 
Bruce Find lay - Sakker 
Gerald R. Killer - Tag- 
gard 



Cr 75-102 
NO. 8 



United States of America 



Cloyd H. Hepworth, dba , Certified Manufacturing 
and Supply, Inc. 

(Willful failure to file tax returns) 



Max D. Wheeler 



Richard Leedy - ret. 



Cr 75-109 United States of America 



No. 9 



LaVar William Ferguson 



(False statement to federally insured 
Institution) 



Cr 75-110 United States of America 

No. 10 »» 

Allan D. LcMon and Gary LeMon 

(Counterfeiting) 
HEARING: Redetermination of bail. 



Cr 75-111 United State-, of America 

No. 11 



vs 

David Baker 



Michael Hunter 



Gary H. Weight; r:>rl.XX. 
J&DDSQC- ret. 



Max Wheeler 

Bruce C. Lubock - ret. 



(Intcr.>;tatc trnnsporta t ion of falsely made 



Steven W. Snarr 



John R. Anderson - .ippt. 



55 



UnlCed Scates of America 

VI 

Stvernan Glen Kay 

(Possession of unregistered firearm) 



Michael Hunter 



Don Blackham; Dc.in R. 
Mitchell - ret. 



United States of America 

vs 
Bruce E. Maw 

(Wire Fraud) 



Max Wheeler 



James Barber - ret. 



United States of America 



Michael Hunter 



Frank Steve Brzotlcky John H. Allen - appc. 

(Unlawful transportation of firearm) 



United States of America 



Michael Hunter 



Wesley V. Calloway and Curtis Ray Green 
(Dyer Act) 



Robert J. Schumacher; 
Dale J. Craft - appc. 



United States of America 



Rodney Snow 



John Helia Porter 



(Uttering and Passing Counterfeit 
Obligation of United States) 



Richard G. Allen - appt. 



United States of America 



Max Wheeler 



Hoskie Lansing and Herman Farley 

(Rape on Indian Reservation) 
HEARING: Def. Lansing's motion to dismiss 



Larry J. Echohawk - Lansing 
D. Gilbert Athay - Farley 
each appt; 



United States of America 



Michael Hunter 



Lynn D. Noren and Main Motors, Inc. M. Byron Fisher - ret. 

(False statements in Loan Applic.ition) 



NO. 19 



56 



Craig William McLachliin 



(False Statement In Loan Application) 



Gilbert Athay - ret. 



Cr 75-123 
No. 20 

CONSOLIDATED 



Unl: ' States of America 

• s 
Kevin U. Barney and James Scott LIddlard 
(Arson In National Forest) 



Max D. Wheeler 



Phil L. Hansen - ret. 



Cr. 75-125 



United States of America 

vs 
Lynn D. Lessee 

(Arson) 



Steven Snarr 



Phil L. Hansen - ret. 



Cr 75-127 



No. 21 



United States of America 

VS 

Peter T. Lorenz 



(Giving false inforr-ation in acquisi- 
tion of firearm; interstate transpor- 
tation of firearm by felon) 

HEAKD.'C: Def's motion to suppress evidcr.ce 



Max Wheeler 



Suaner J. Hatch _ ret. 



Cr 75-129 
No. 22 



United States of America 

VS 

James Killian 

(Dyer Act) 



Rodney Sno« 



ILlchard T. Ashton - appt. 



Cr 75-76 
No. 23 



United States of America 



countryside Farms, Inc.; Egg Products 
Company; Olson Farms, Inc., Snow White 
Egg Company; R. Kent Christof ferson; 
Gilbert T. Cochran 



(Conspiracy in restraint of 
Interstate Trade and Commerce) 



Ramon M. Child; 
Anthony E. Desmond 

Cli-fford L. .^shton & 

Ricardo Ferrari - Coui 

tryside Farms & Chris 

f ferson; 

Herschcl Sap.^rstein - 

Egg Product.-,; 

Harold G. Christcnscn 

Olson Farms -s Cocliran 

Robert W. Brandt - Snc 

White 



HEARING: 

(1) Dcf. 

(2) Dcf. 

(3) Dcf. 

(4) Dof. 



Egg Product's motion for bill of particulars 

Egg Product's motion for inspection & cojjying of grand ]ury testimony 
Egg Product's motion for discovery and inspection 
Olson farms & Cochran's amended motion for discovery and inspection 



In the United States District Court for the District of Utah 

CENTRAL division 

Motion for 21 Days Advance Notice for Trial Calendar 

Comes now Roman M. Child, United States Attorney for the District of Utah, 
for and on behalf of the United States of America, and respectfully requests 
that this Honorable Court give the Government a minimum of 21 days to pre- 
pare for the Court's present trial calendar, and for cause shows the Court as 
follows : 



57 

1. The United States received the Court's present trial calendar, which is 
scheduled to commence on December 18, 1975, during the late afternoon of 
Friday, December 12, 1975. 

2. There are a substantial number of witnesses that must be subpoenaed in 
the first, third and fourth cases on the calendar, which are tax fraud cases, 
and subpoenas cannot be prepared by the United States Attorney's oflQce and 
served by the United States Marshal's office on three working days notice. 

3. A substantial number of the cases on the Court's calendar will require the 
presence of witnesses who reside outside the State of Utah. Most of those wit- 
nesses will be unable to be present because of the inability to arrange travel 
through the airlines. Due to the airline strike which has crippled United Air- 
lines and due to the usual Christmas pressure placed upon the airlines, flights 
in and out of Salt Lake City are already overbooked, and the Government would 
be unable to secure its witnesses by reason of the airline problem. 

4. The United States Marshal Service has advised the United States Attor- 
ney's office that they would need at least ten days advance notice for service 
of any subpoena. The United States Attorney is desirous of honoring the re- 
quest of the United States Marshal Service in assisting them in performing 
their difficult task by giving them a reasonable time within which to serve 
subpoenas. 

5. Based on the foregoing, the United States Attorney respectfully informs 
the Court that the Government cannot be ready to try any of the following 
cases on the Court's calendar earlier than January 5, 1976 : 

CR-74-98— U.S. V. David W. Clayton. 

CR-75-75 — U.S. V. George B. Corbett. 

CR-75-79— U.S. V. Thomas W. Hoopes. 

CR-75-101 — U.S. V. Little Dutch Boy Bakeries, et al. 

CR-75-102— U.S. V. Cloyd H. Hepworth. 

CR-75-109 — U.S. V. LaVar Wm. Ferguson. 

CR-75-110 — U.S. V. Allan and Gary LeMon. 

CR-75-111 — U.S. V. David Baker, dismissed. 

CR-75-115— U.S. V. Bruce E. Maw. 

CR-75-11G — U.S. V. Frank S. Brzoticky, dismissed. 

CR-75-117— U.S. V. Wesley V. Calloway and Curtis Ray Green. 

CR-75-120 — U.S. V. Hoskie Lansing and Herman Farley. 

CR-75-121 — U.S. V. Lynn D. Noren & Main Motors. 

CR-75-129— U.S. V. James Killian, guilty. 

CR-75-76 — U.S. V. Countryside Farms, et al. 

As to the remaining cases on the Court's calendar, we are not yet informed 
as to the success the United States Marshal may have in serving subpoenas 
and securing the attendance of both defendants and witnesses in light of trans- 
portation problems and the holiday season. We are informed that some in-state 
witnesses have left the State for the holidays. 

6. For the foregoing reasons the Government respectfully requests that the 
Court's criminal trial calendar not commence earlier than January 5, 1976. 

Respectfully submitted this 15th day of December 1975. 

Ramon M. Child, 

U.S. Attorney. 

In the United States District Court fob the District of Utah Central 

Division 

(Or 75-111) 

United States of America, Plaintiff, 

V. 

David Baker, Defendant. 

Salt Lake City, UtaHi 

December 18, 1975.. 

Before: The Honorable Willis W. Ritter, Chief Judge. 

transcript of proceedings 

Appearances: For the United States: Steven Snarr, Assistant U.S. Attor- 
ney, 200 P.O. & Courthouse Building, Salt Lake City, Utah. 



58 

For the Defendant: John R. Anderson, Attorney at Law, Boston Building, 

Salt Lake City, Utah. .o -.^vrr 

December 18, 1975. 

The Court. Baker. 

Mr. Anderson. Yes, your Honor. 

The Court. All right. Are you ready? 

Mr. Anderson. Yes, your Honor. 

Mr. Snarr. Your Honor, the government is not. We have Mr. John Olliver 
from Denver, Colorado, and George Lewis from San Bruno, California, that we 
have not been able to secure as witnesses because of transportation difficulties. 

The Court. Now, what is the falsely made security in this caseV Tell me 

about it. 

Mr. Anderson. Your Honor, we think that the government has charged — well, 
this would be developed later on in the trial. What it is, your Honor, it is a 
$180 American Express money order. 

I made a motion to the Court to dismiss this matter for lack of a speedy 
trial under the Constitution. This man has been 

The Court. When? 

Mr. Anderson. This man has been in continuous custody for five months. And 
I think that is prima facie too long. 

The Court. I agree. The case is dismissed. 

Mr. Anderson. Thank you, your Honor. I will have an order over here. 

The Court. Five months and they are still not ready. 

******* 

CERTIFICATE 

I, Barbara G. Andersen, Registered Professional Reporter and Notary Public 
for the State of Utah, do hereby certify that the foregoing is a true and correct 
transcript of proceedings in the above-entitled matter. 
Dated at Salt Lake City, Utah, this 14th day of February, 1976. 

Barbara G. Andersen, RPR, 

Court Reporter. 

In the United) States District Court for the District of Utah Central 

Division 

(Cr 75-116) 

United States of America, Plaintiff, 

V. 

Frank Steve Brzoticky, Defendant. 

Salt Lake City, Utah, 

December 18, 1975. 
Before : The Honorable Willis W. Ritter, Chief Judge. 

transcript of proceedings 

Appearances: For the United States : Michael Hunter, Assistant U.S. Attorney, 
200 P.O. & Courthouse Building, Salt Lake City, Utah. 

For the Defendant: John H. Allen, Attorney at Law, Kennecott Building, 
Salt Lake City, Utah. 

December 18, 1975. 

The Court. Next is Brzoticky. This is a unlawful transportation of firearms? 

Mr. Hunter. Yes, your Honor. This came from California. And the United 
States, at this time, is not ready. There are two witnesses in California and 
two witnesses in Colorado and two witnesses in Washington, D.C. 

Mr. Allen. I am ready, your Honor. 



59 

The Court. What is involved here? There is nothing involved in here to fool 

around with this matter. , . , . ^ ^- f „ 

Mr. Allen. I don't think so, your Honor. It is a claimed transportation of a 

.22 pistol across the state lines. . , ^ . , , 

Mr HuNTEB. Your Honor, Mr. Brzoticky was residing with his girl friend and 

her brother-in-law in California, took the brother-in-law's gun, came to Utah 

and pawned the gun. . ^ ^, - i, u i 

He pled nolo in the case in Colorado some time ago. And therefore he had 
a record. And that was the reason for pursuing the action. 

Mr. Allen. The prior case 

The Court. You are not ready? 

Mr. Hunter. No, your Honor. 

The Court. The case is dismissed. 



certificate 



I, Barbara G. Andersen, Registered Professional Reporter and Notary PubUc 
for the State of Utah, do hereby certify that the foregoing is a true and correct 
transcript of proceedings in the above-entitled matter. 

Dated at Salt Lake City, Utah, this 14th day of February, 1976. 

Barbara G. Andersen, RPR. 



In the United States District Court fob the District of Utah Central 

Division 

(Cr 75-122) 

United States of America, Plaintiff, 

V. 

Craig William McLachlan, Defendant. 

Salt Lake City, Utah, December 18, 1975. 
Before: The Honorable Willis W. Ritter, Chief Judge. 

transcript of proceedings 

Appearances : For the United States : Michael Hunter, Assistant U.S. Attorney, 
200 P.O. & Courthouse Building, Salt Lake City, Utah. 

For the Defendant : Gilbert Athay, Attorney at Law, 321 South 6th East, Salt 
Lake City, Utah. 

December 18, 1975. 

The Court. McLachlan. 

Mr. Athay. He is present, ready to proceed. 

Mr. Hunter. Your Honor, there are three witnesses in this. Christine, his 
ex-wife, is a key witness. She lives in Midway, Utah. We have been unable 
to serve a subpoena on her at this point. We have been unable to establish her 
whereabouts. 

The Court. This case is dismissed. 

* * * * * * * 

certificate 

I, Barbara G. Andersen, Registered Professional Reporter and Notary Public 
for the State of Utah, do hereby certify that the foregoing is a true and correct 
transcript of proceedings in the above-entitled matter. 

Dated at Salt Lake City, Utah, this 14th day of February, 1976. 

Barbara G. Anderson, RPR, 

Court Reporter. 



60 

In the United States District Court for the District of Utah Central 

Division 

(Cr 75-123) 

(Cr 75-125) 

United States of America, PlaAntiff, 

V. 

Kevin W. Barney and James Scott Liddiard, Defendants, 

and 
United States of America, Plaintiff, 

V. 

Lynn D. Lossee, Defendant. 

Salt Lake City, Utah, December 18, 1975. 
Before : The Honorable Willis W. Ritter, Chief Judge. 

transcript of proceedings 

Appearances: For the United States: Steven Snarr, Assistant U.S. Attorney, 
200 P.O. & Courthouse Building, Salt Lake City, Utah. 

For the Defendants : Phil L. Hansen, Attorney at Law, 250 East Third South, 
Salt Lake City, Utah. 

The Court. Barney and Liddiard. This is Barney and Liddiard. 

Mr. Hansen. Yes, Barney and Liddiard. 

The Court. Arson in a national forest. All right. What is the status of this 
thing? 

Mr. Hansen. We are ready to go. 

Mr. Snarr. Your Honor, I believe it has been consolidated with the matter of 
Lynn Lossee as indicated on the calendar. The government is still attempting to 
secure the presence of a witness from Reno and would anticipate being able to 
do so and proceed. 

The Court. You what? 

Mr. Snarr. We are still attempting to secure the attendance of a witness from 
Reno, Nevada. We would anticipate he would be present at the time this matter 
would be reached. 

The Court. It is reached right now. Your anticipation at some time in the 
future is wrong. 

Why are these consolidated? 

Mr. Hansen. Your Honor, they had separate preliminary hearings, your Honor. 
Mr. Lossess wasn't apprehended until after the preliminary hearing of Barney 
and Liddiard. All three were together. 

We would move to dismiss because we are ready and the government isn't. 

The Court. Are you ready in either of those cases ? 

Mr. Snarr. As I stated, your Honor, we are ready with the exception that we 
have not secured the attendance of a witness from Reno who we feel is essential. 

The Court. It is just across the border. 

Mr. Snarr. We anticipate that he will be able to drive here and be available 
for trial as early as Monday. We would like to select a jury and — 

The Court. Both cases are dismissed. 

Mr. Hansen. Thank you, your Honor. 

******* 

cebtificate 

I, Barbara G. Anderson, Registered Professional Reporter and Notary Public 
for the State of Utah, do hereby certify that the foregoing is a true and correct 
transcript of proceedings in the above-entitled matter. 

Dated at Salt Lake City, Utah, this 14th day of February, 1976. 

Barbara G. Anderson, RPR, 

Court Reporter. 



61 

In the Uniied States District Court for the District of Utah 

Central Division 

(Cr 75-123) 
(Cr 75-125) 



United States of America, Plaintiff 

V. 

Kevin W. Barney and James Scott Liddiard, Defendants, 

AND 

United States of America, Plaintiff, 

V. 

Lynn D. Lossee, Defendant. 

Salt Lake City, Utah, December 18, 1975. 
Before: The Honorable Willis AV. Ritter, Chief Judge. 

transcript of proceedings 

Appearances : For the United States : Steven Snarr, Assistant U.S. Attorney, 
200 P.O. & Courthouse Building, Salt Lake City, Utah. 

For the Defendants : Phil L. Hansen, Attorney at Law, 250 East Third South, 

Salt Lake City, Utah. 

December 18, 1975. 

The CoLTRT. Barney and Liddiard. This is Barney and Liddiard. 

Mr. Hansen. Yes, Barney and Liddiard. 

The Court. Arson in a national forest. All right. What is the status of this 
thing? 

Mr. Hansen. We are ready to go. 

Mr. Snarr. Your Honor, I believe it has been consolidated with the matter 
of Lynn Lossee as indicated on the calendar. The government is still attempting 
to .secure the presence of a witness from Reno and would anticipate being able 
to do so and proceed. 

The Court. You what? 

Mr. Snarr. We are still attempting to secure the attendance of a witness from 
Reno, Nevada. We would anticipate he would be present at the time this matter 
would be reached. 

The Court. It is reached right now. Your anticipation at some time in the 
future is wrong. 

Why are these consolidated? 

Mr. Hansen. Your Honor, they had separate preliminary hearings, your Honor. 
Mr. Lossee wasn't apprehended until after the preliminary hearing of Barney 
and Liddiard. All three were together. 

We would move to dismiss because we are ready and the goverment isn't. 

The Court. Are you ready in either of those cases? 

Mr. Snarr. As I stated, your Honor, we are ready with the exception that 
we have not secured the attendance of a witness from Reno who we feel is 
essential. 

The Court. It is just across the border. 

Mr. Snarr. We anticipate that he will be able to drive here and be available 
for trial as early as Monday. We would like to seelct a jury and 

The Court. Both cases are dismissed. 

Mr. Hansen. Thank you, your Honor. 

m ***** * 

certificate 

I, Barbara G. Andersen, Registered Professional Reporter and Notary Public 
for the State of Utah, do hereby certify that the foregoing is a true and correct 
transcript of proceedings in the above-entitled matter. 

Dated at Salt Lake City, Utah, this 14th day of February, 1976. 

Barbara G. Andersen, RPR, 

Court Reporter. 



62 



IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT C UTAH 

JAN 12 1976 

CENTRAL DIVISION 

JURY TRIALS BEFORE HONORABLE WILLIS RITTER IMiN ■■■•'.r,', iT;i,Z>-~y (.-■« 
COMMENCDJG WEDNESDAY, JANUARY 14, 1976 
10:00 A.M. 



COUNSEL ARE INSTRUCTED TO KEEP IN TOUCH WITH THE CLERK AND WITH THE ...TORNEYS IN THE CA ; 
THAT PRECEDE THEM. YOUR CNSE WILL EE TRIED AS SOON AS THERE IS A DISPOSITION OF THE C\: ■ ' 
AHEAD OF YOU. FREQUENTLY THE CASES ARE SETTLED R.ATHER Til.\N TRIED. AND THE RESPONSIBILITY 
TO KEEP INFORMFD AND PREPARED TO CO TO TRIAL RESTS UPON COUNSEL 



Cr 75-79 
Ro. 1 



United States of America 



Thomas Warner Hoopes 



Rodney G. Snow 



David J. Knowlton - ret. 



(Willful failure to file income tax returns) 



Cr 74-98 United States of America 

Bo. 2 vs 

David W. Clayton 

(Willful failure to file tax returns) 

HEARING: Defendant's notion to dismiss information 
Defendant's motion to suppress evidence 



Max D. Wheeler 



C 6-72 
No. 3 



Walter E. Williaas 



Otis Elevator (Company, corp. 



Christiansen Brothers, Inc. and W. W. 
Clyde and Company, joint ventures 



(Damages - Personal Injury) 
JURY TRIAL - Determination of Damages 



W. Brent Wilcox: 
A. Wally Sandack 

Ray R. Christensen 
Reed L. Martineau 



C 74-105 Elizabeth Pace and Joyanna White 



No. 4 



vs 

Hlroshl Tonolke 



(Personal Injury - Motor Vehicle) 



John L. McCoy 



David K. '(finder 



C 74-140 Carmen Kathleen McKell 

No. 3 vs 

Helba Lynne Jarnun 

(Personal Injury - Motor Vehicle) 



Thomas R. Blonquist 



F. Robert Bayle 



EXJIIBIT 8 



63 



JUKI IKlALa BttUKC. nur<UIU\Ul.C Mll.t.i:> KXilt.K 



C 74-330 
Xo. b 



C 74-382 
No. 8 



Ray Wardle 



The Ute Indian Tribe, a Federal Chartered 
Corp.; Francis Wvasket ; Ho:Tiey J. Socakuku; 
Fred A. Conctah; Wilbur Cuch; Irene C. Cuch 
and Gary Poouc^up, Indlvldunlly and as mem- 
bers of Uintah and Ouray Tribe Business 
Conmlttec ; and Michael A. Quinn, indivi- 
dually and as chair"-in ot Ute Tribal 
Personnel Com-iiittee 



Janes R. Black; 
Kenneth N. Kripke 

Scott C. Pugsley 



(Civil Rights) 



C 74-342 Pamela Marshall S. Rex Lewis 

No. 7 vs 

Frank Hildebrand John H. Snow 

(Personal Injury - Motor Vehicle) 



Jerald C. Atwood 



Union Pacific Railraod Coapany 



Orrln G. Hatch 



S. M. Matheson; 
Robert N. Weatherbee 



(Violation of Federal Employers' 
Liability Act) 



C 74-389 
No. 9 



Brenda McGuire Shuman 



Iva Oliver (Koslowski) Hawkins and 
Herbert Koslowski 



C. Jeffrny Thompson 



H. Wayne Uadsworth 



(Personal Injury - Motor Vehicle) 



C 74-394 
No. 10 



Ricardo A. Castro 
vs 

Cerro De Pasco Corporation, subsidiary 
of Cerro Corporation 

(Breach of Contract) 



Don E. Hammill 



James B. Lee; 
Daniel M. Allred 



C 74-397 
No. 11 



Gary D. Peterson and Thomas D. Peterson 

vs 
United States of America 

vs 
Provo River Water Users Association, corp. 

(Wrongful Death) 



John L. Black 



Ramon Child 



J. Dennis Frederick 



64 



JURY TRIAL CALENDAR BEFt. 



:OR.M W:LLIS RITTER 



C. 75-14 
No. 12 



Robert Rees Dan-;:-.' 

vs 

Pioneer Ccn-E-"'otor Cor^oratior. 
Illinois corpor-icion 

(Personal Injury - Lawn Mower Accident) 



Page 3 

John E, Shambcrg; 
Don E. Hammlll 

LeRoy S. Axland 



Cr 74-54 United States of America 

No. 13 vs 

J. Hilton Rich 

(Bankruptcy Fraud) 
JURY ALREADY I>[PANELED 



Ramon H. Child 



Donn E. Casslty 



Cr 75-76 
No. 14 



MONDAY , 



United States of America 



Countryside Farms, Inc.; Egg Products 
Company; Olson Farms, Inc.; Snow White 
Egg Company; R. Kent Christof f erson ; 
Gilbert T. Cochran 



(Conspiracy in Restraint of 
Interstate Trade and Commerce) 



Ramon Child ; 
Gary Spratling 



Clifford L. A-hton i Ricardo 

Ferrari - Countryside Farms 

and Chr is tor ler son ; 
Herschel Sapsrstsin i Clark 

Sessions - E'H Products; 
Harold G. Christensen - Olso 

Farms & Cochran; 
Robert V. Brandt - Snow Whit 



FOR Till-: 



ISTRJ CT OF uvm - cnc 

United states of America 

V. 

J. Milton Rich 



INiOV 1-11375 



No. CR 74-54 



CALL OF GVLErBW 
TAKE NOTICE Ih.it the above- entitled case has been set for p^:a jXj-p^Y TRL\L al 

Salt Lake City , on THUnSD.-iY, NO'-TZSER 20 , 19 75 , at 10:00 A.M. bjfore 

Honorable Willis K. Ritter, P.O.i Courtiiouse Bldg. , 350 South Main. 



Date tcovember 14 



19 75 



-.VERL.C-.PXTailE.. 



a-rh. 



By 






Deputy ClcrU. 



-on Child, U. S. Attorr.ey, 200 P.0.& Co-jrthouse Bldq. , Salt Lake City, Utah 
^x>nn E. Cassity, Esq., Kaarns Bldg., Salt Lai'-e City, Utah 
J. Milton Flich, 6251 Sanaa Creek Court, Florissa.nt, Misscuri 



-37v\^- 



<. 1 1 -^ 



\^ 



65 



JURY IIUAL.T DEPOr^ llONORADLE WILLIS W. RITTER 
CXX-«ENCING THUI^DAY, NOVUEER 20, 1975 
10:00 A.M. 



C0U^4SEL ARE lUSTnUCITD TO KEEP IN TOIXIi MTII 'nE CLERK M.T) V.'ITII TIE ATTOKrEYS IN T;1E CV^ES 

THAT rr.fcxiT)E 'na-.M. your c-^e mix. be tried a.s scom rs here is a DicPostrroM cf -nn- c/ces 

AIIE'\D O" YOU. FaFCXT^jTLY P.IE C\SFS Ai^E SCITLCD R\T1ER TILV) TRIED, A.\'D TIE RESPONSIBn.ITY TO 
KEEP ErOPO-ED. AND rRET^XFZD TO OD TO TRIAL RESTS UTO.M Ca^ISEL. 



C 274-70 



No. 1 



C 194-73 



No. 2 



Donald Doyd Julandcr and Jeff Julander, 
John Juli'inder, Lorraine Ann Julander 
and Bruce Julander, minors, by their 
guardian f-'ary Vaughn Julander 

vs 
Ford >totor Conpony, a corp. 

(Mjtor vehicle accident - death) 



Willia.-n Taylor Ne,-;land, IV 

vs 
Robert Ibrton, Agent for Eareau of 
Narcotics and Dongarous Dnjgs and 
Ronald R. Robinson, Sheriff of Suirrait Co. Utah 

(Danages - Violation 5th and 6th Amendn-ents) 



C 210-73 



No. 3 



^ 



Flying Diamond Corp., a corp. 

vs 
Dan island, John Sutherland, Craig Johnston 
Robert L. Lathu:?,, Orland KJ.elcon, ThoTas 
Sadley, Mirray Rayb^-im, V.'illian\ Saver, 
American Stock Transier Co., a Corp., 
Jay Miller, Ei.-eliTi Mitche.ner, Transar^arican 
Securities, Inc. a corp., Duane Jenson, 
John Badger aka J. J. Badger, Phillip K. 
Smith a^-.a P. K. Srrith a'--a Phyllis K. Smth, 
J. M. SrTu.th aka Jack Sn'ith, P Skesn, D. Todd, 
Jaites Lunr-iar, John Does 1 through 10 and 
Don Anderson 

(Securities E:-:change Act of 1934) 



C 74-66 
No. 4 



United States of Air.erica 

vs 
80 Acres of Land, more or less, situated 
in S£in Juan County, Utah, Robert Byron 
Redd aka Robert B. Rc-dd and Lynda Heidi Redd, 
his wife, et al., and unknov.-n cuvners 

(l^nd Condemnation) 



C 74-109 
No. 5 



Vem R. Webster, Robert B. Sheldon, Orson P. 
Kesler and Gordon .•■■cClcan, iir.lividually and 
as representative pc-.Tbcrs of a class 

vs 
The Travelers Insurance Co. , Equitable Life 
Insurance Society of tlic L'niteil States, 
Prudential Insurance Co. of America, Aetna 
Idfe a'nl Casualty 



Ken Chamberlain 
Clifford L. Ash ton 
Scott Savage 



Pay R. Christenscn 



James A. »;Intyre 

Ramon M. Child 
Rsbert W. A.d'iins 



Hardin A. V.^hitney 

Richard Leedy 
Robert V. Phillips 
Glenn C. Hanni 
Richard C. Dibblca 
Joseph t'cCarth:y 



Ramon H. Child 

Vernon B. Rc--.ay 
San Juan Councy Attorney 
Paul E. Reiriann 
Robert S. Campbell, Jr. 



Curtis K. Ol^erhonsley 
Dennis E. Olson 
Dan L. Berman 

Jonathan A. Dibble 
Stephen B. N-U'-kor 
Ricardo B. Eeirari, 
Harold G. airistensen 



(Clayton Act and the Sherman Act) 



66 



No. 6 Larry G. M-Clcllan 

(Violation of Fifth ;"jTicndment - Civil Riyhts) 



Robert Van Soivcr 



C 74-140 Camion KatlUccn teKcll 

vs 
No. 7 Mclba L;,Tuie Janr.m 

(Auto Collision - Uijiuy) 



Thomas R. Blonquist 
F. Itobort Caylc 



C 74-149 
No. 8 



Jerrold R. >t)rgan 

vs 
Vcrland T. Utiipple 

(Breach of Contract) 



William G. Gibbs 
Ralph R. ttaboy 



C 74-153 Danvin L. Stone 

vs 
King-Soelcy Thermos Co . , Inc. , 
No. 9 a Delaware corp. 

(Breach of Warranty, Judgn^.ent for Parsonal Injuries) 



Glen M. Rich.T'.=m 
Stephen B. Nebf--;er 



C 74-166 
NO. 10 



Colorado Well Ser'/ice, a Colorado corp. 



Gulf Oil Corp., Go International, Inc. 
John Doe Insurance Co., or Companies 
and John Dee 

(Collection of Insurance for Dairages) 



William G. Git-is 
Eaward T. V.ells 

Stephen B. Kci;?-;er 
Richard H. :'offat 
John L. Young 



C 74-192 Cleon D. Tuclier, Betty J. Tucker, his wife, 
Willard M. Tucter arc Pniilis 0. Tucker, 
his wife 

No. 11 vs 

Eugene S. Siirrscn, ."like Russell, Continental 
Account Servicir:g House, I.-.c. , a Utah Corp., 
ard Key Account Collection House, Inc., a 
Utah Corp. 

(Violation of Securities Exchange Act) 



Arthur S. Kielsen 
David S. Cook 



Richard J. I/23-ly 
Richard B. Cuatto 



C 74-257 JoAnn Cook 

vs 
City of Price, Carbon County, Utah, V.'alter 
T. A:<elgard, t-Liyor of the City of Price, 

No. 12 Harold O. Patterick, Harold .■•lark Hanson, 

Itiy AtAiDod, Ja.T.es Lee Jcns3n, A.Tel Dcnison 
as rembers of the City Cou.ncii 

(Civil Rights) 



Donn E. Cassity 

Michael T. ttcCoy 
Luke G. Pappas 



C 74-272 Frank E. and Delores Velarde, individually 

and on beJialf of Richard Matthew Velarde, Dec'd 

No. 13 vs 

City of Salt Lake, Glen N. Greener in his 

capacity as Public SaLi'ty CcrrmisGioncr of the 

City of Salt Like, J. Enrl Jones, in his capacity 

as Qiief of Police of tiio City of Salt Lake and 

Lorenzo Phillip^, indwiiiually and in his 

capacity as an officer of Salt Lake City Police Dept. 



Stephen W. Cook 



Roger F. Cutler 
John T. NiclLj-'n 
Harold G. Chris tenscii 



(Wrongful Doatli) 



67 



vs 



John !t>xlL; 

First Security Bank of UtnU, N. A. 

(Breach of W^irranty) 



Hardin A. iNtiitnoy 
Jeffrey N. Clayton 

Jonathan A. Dibble 



Rcnoc P. SchloGser 

vs 
Jelco, Inc. 

(Civil Rights) 



Stephen W. Cook 
Robert M. Yeates 



Phyllis Frischl-cncciit, by and tlvrouqh 
her Guardian art Litaa, Gail Frisch^-Jischt 
Hutchinson, and Gail Frisch}-jiecht Hutchinson 
individually 

vs 
Charles FOss 

(Personal Injury - yotor Vehicle) 



H. Wayne V.'ads'.-A^rtli 



F. Pobcrt Bayle 
Wallace R. Lauchnor 



Clara 'A. Nell 



Freeiran Decorating Co., a corp. 



M. Blaina Kofeling 
Verl R. Tophi.--, 
Anthony M. Thurber 



Timothy R. Ha.ison 
(Personal injury - fall in defendant's cisplay booth ovsr electric cord) 



Clayton Haight and Kathic Kaight 

vs 
Ether Joseph Chris tensen 

(Personal Injur* - I'czor Vehicle) 



Orrin G. Hatch 
Glenn C. Ha.ini 



Grant L. Cavalli . 

vs 
Union Pacific Railroad Company 

(Federal Employer's Liability Act - Negliga.-.ce) 



Orrin G. Hatch 

S. M. mtheson 

J. C. V,'illia.-^3 



David E. ^■artin 

vs 
I-tir^orie Holir.ss tladill, ?d.-ninir.tiatri>: 
of the Estate of Vcrl K. ;:::-lill, C<.Z'^scd, and 
V. K. Iladill ?>s?halt Paving Corpany 

(Personal Injury - Autcnobile Accident) 



Donn E. Cassity 



Glenn C. Harni 



United States of America 

vs 
c:arl D. Pcwers 



Max D. V.Tieeler 
Sumner J. Hatch 



(Tax evasion and subscribing to false return - 3 counts) 



United States of America 

VG 

Karl Stock Striith, David Leon Orlob 



Rodney Snow 
Gilbert Athay 



(Conspiracy to siimit false statary^nts, false statements and aiding .nd 
abottLng - 14 counts) 



United States of Aircrica 

vs 

J. Milton Ricli 



Ramon M. Child 
Donn E. Casr.ity 



(Elankruptcy Fraud) 



68 



CETTRAL DIVISION 
JURY TRIALS BEFORE fKDNORABLE WILLIS Ri'l'l'EH 
CX>MENCEJG TUESDAY, OCTOEIER 21, 1975 

10:00 A.M. 



0CT21,I975 



OOONSEL r\PE INSTRL'CITD TO KEEP DI TiXCil OTTH TIE CLETJC AND OTTH THE ATT0R:J_i3 IN TTO-. ^-■._.-. IIAT 
PRECFEE TiEl. YCX-R C^SE OTLL EE T^ED .\S S-Oai ,\S TIERZ IS A DISPCSITICN OF T!iE CV=;ES Ai'llV) OF 
YCW. FKEaT:>JTLY TIE C'SES APZ SCmiD P.\TI!EK TH/sN TRIED, A.V) THE RESPaiSIBILITi TO KEEP IVCK^CD 
AND PREPAREX) TO GO TRIAL RESTS L^PGN OX'TiSEL. 



CR 75-8 
No. 1 



United States of .■^jTorica 

-vs- 
Steve Maycjock i E3die B^adshaw 

(Theft of Goverraicnt Prcperty) Cam:. I on each aa,Y. 



Max D. Wheeler 

Alvin I. S^th for J'jyccck i 
Bradshaw 



CR 75-10 



No. 2 



United States of A-nerica 

-vs- 
Rick 0. Rasinusse.n 

(Illegal Ditry on Military Reservation) 



Kax D. Wheeler 
John Bucher 



CR 75-20 



No. 3 



United States of America 

-vs- 
Kayne Adams aka Swede Adams 

(Receipt of Stolen Property) 



Max D. Wheeler 
Matt Biljanic 



CR 75-24 



No. 4 



United States of America 

-vs- 
Richard Speir, Vernon Blade and Gary Puffer 

nSoft of Government Prcpertr,') 



Kax D. Wheeler 

E. Craig Smay for Puffer & 

Spier 

Daniel E. England for Black 



CR 75-26 



No. 5 



United States of America - 
Will Henry Savage, Jr. >-^ O** 

(Forging and Uttering United States Treasury Cheak) 



/^ Rodney G. Sncv 
Stanford S. anith 



CR 75-29 
No, 6 



United States of Airerica Michael M. Hunter 

-vs- 
John Bnil Hochmiller David Bown 

(Interstate Transportation and Disposal of Stolen Motor Vehicle) 



CR 75-30 



So. 7 



United States of Airerica 

-vs- 
Ronald Eldcn Bench & Sally Anderson 

(Receipt of Stolen Property) 



Max D. (■aieeler 

Dean R. Mitchell for Bench & 
Anderson 



CR 75-32 



NO. 8 



CR 75-34 



No. $ 



United States of America 

-vs- 
John Elnil Hochmiller 



Michael M. Hunter 
David Bcwn 
(Interstate Transportation and Disposal of Stolen NkDtor Vehicle) 



United States of ATorica 
— ^_ 

Karl Stock Smith & David Loon Orlob 

(Conspiracy to Sutmit False Statortints, 
False StatoTiTits ard Mdina and Atx^ttinal 



Rodney G. Srow 

Dean R. Mitchell for £nit.h 
" r:iLbcrt At.hay for Orlob 



69 



CR 75-37 United States of Airtirica 

-vs- 

Jay W. Sijnpcr, Terrry Simper, Gary Sir; ;r. 
No. 10 and Daniel Allen 



Rodney G. Snc3w 

E. Craig Stnay for all Defs. 



(Criminal Conspiracy to Defraud the C. S. and Theft of Timber frcm a 
National Forest) 



CR 75-36 United States of Anorica 
-vs- 
James Bernard Fay, Jr. , and Joseph 
No. 11 John Ticiman 

(Conspiracy to Violate [Bank Robbery]) 



'fedney G. Snow 

P. rtobert Knight for Ticman 
George J. Raimey for Fay 



CR 75-39 
No. 12 



United States of America 

-vs- 
Charles N. Pierson 



' Max D. Wheeler 
Clark W. Sessions 



(Tax Evasion, Suhscribinq to a False Return Under Penalties of Perjury, 
and Aiding and Assisting in the Preparation of False Returns) 



CR 75-40 
Ho. 13 



United States of A-rerica 

-vs- 
Frank M. Whitney 



J^^^PV*^!;efe',1.6X "S^ "^ ^*^ 



J. Jay Bulloci-., S. Scott Sa'/ag; 
and Gerald R. Mill-sr 
(l^x Evasion and Signing False Return Under Penalties of Per]ury) 



GR 75-41 



So. 14 



United States of Aiierica 

-vs- 
Carl D. Pcv.'ers 

(Tax Evasion and Subscribing to a False Return) 



^fe^x D. Wheeler 
Sumner J. Hatch 



IR 75-42 
So. 15 



United States of A-rierica 

-vs- 
Irving S.' Hutchinson 



Max D. Wheeler 
Suraner J. Hatch 



(Receipt by a Felon of Firearm shipped Ln Interstate Ccntnerce; Giving 
False Information in Acquisition of Firearm) 



CR 75-43 
Mo. 16 



United States of America 

-vs- 
Elvin L. Booth i Donald G. Cax 



•Max-D. Wheeler 'M ^Vc ^ A<\ 



D. Gilbert Athay for Cox 
Rich£ird J. Leedy for Booth 
(Interstate Transportation in Furtherance of Schene to Defraud) 

HEARING CM: Def. Booth's Motion for Bill of Particulars; Def. Booth's .'•Votion 
for Severance ard Separate Trial; and Dot. Dcoth's ."totion for 
Authorization to Cotain Trial Transcript 



CS 75-47 
No. 17 



United States of America 

-vs- 
lErls Lynn Moore aka Christy Lynn Bright 

(Porgery, Uttering and Possession of Stolen Mail) 



•Michael M. Hunter 
Robert Stansfield 



CR 75-51 
No. 18 



United States of America Rodney G. Snow 

-vs- 
Eijuity Oil Corpiny Frank Gustin 

(Unlawful Taking and Killing of Migratory Game Birds) 



70 



:< 7J-62 

.0. 19 



:s 75-64 
:to. 20 



JR; 75-67 



:». 21 



United States of America 

-vs- 
Glade Edward Jennings 



(Uttering Altered Government Obligations) 



United States of Ajnerica 

-vs- 
£iTiest Rabbit Casey 

(Crime on Lrdian Country) 



United States of A.-TErica 

-vs- 
Austin Brent Kackha-n 

(Counterfeiting) 



Max D. «J<\ji^jiA. 



M t/^-f p^ 



R. Brent Stephens, Craig S. 
Coak 



Max D. -t fl i nflUJ 
Brant H. Wall 



Mcix D. Wheeler 
Gilbert Athay 



OR 75-68 
3b. 22 



United States of America 

-vs- 
L. Anthony Fodda 

(False Statement to Federally Insured Institution) 



Max D. 4-;heeler 

Thomas P. Vuyl< ^^„4U 



31 75-70 
•Jo. 23 



United States of A-nerica 

-vs- 
John Martin Huf fr-an 

(Theft of Goverr-jTEnt Property) 



Max D. Wheeler 
Theodore I. Wittrayer 



ZR 75-72 



X>. 24 



Urdted States of Anerica 

-vs- 
Gerald Mountainlion and Ronnie A^^pavroo 

(Crime on Indian Psservation — Assault with 
Dangerous V.'eapon) 



Max D. Wheeler- 



1-(X^y^^ 



W. Robert Wright for 

Mountainlion 

Charles C. Ercwn, for Appawco 



2R 75-82 



So. 25 



United States of Ajnerica 

-vs- 
Vinoent Sireech, Sr. 

(Crime on an Indian Reservation — Incest) 



Max D. Wheeler 
J. Band Hirschi 



CR 75-84 
». 26 



United States of America 

-vs- 
Hc^jard Daniel Newmeyer, Jr. 

(Illegal Transfer of Destructive Devices) 



Sanford Jorgenson 



ZR 75-88 



So. 27 



United States of America 

-vs- 
Soott Riley Straw 

(False, Fictitious or Fraudulent Claims) 



Max D. Wheeler 
D. Gilbert Athay 



2R 74-54 



to. 28 



United States of Ajnerica 

-vs- 
J. Milton Rich 

(BanJtruptcy Fraud) 



Ramon M. Child 
Donn F. Cassity 



71 



CR 74-50 



No. 29 



United States of Anvrica 

-vs- 
Jay Victor Miller 

(Criminal Contempt) 



Rodnoy G. Snow 
Suimcr J. Hatch 



CR 75-65 
No. 30 



United States of /Vnexica 

-vs- 
Dwayne Nath.in llawkes 

(Theft of Goi.'cmraent Property) 

COURT TRIAL 



•Max D. Wheeler ^ ^^, aJ^/\^ 
Joseph C. Foley 



72 



IN THE UNITED STATES DISTUICT COUET IN AND FOR THE DISTKICT CF UTV'i 






JURY TRIAL cal::wdak before honorable killis-w^— cttsver 
central division 



commencing MONDAY, NOVEMBER 4, 197.',, at 10:00 A. M. 



/ 



COLrr:~.nvRinK.ST:<'JCTLD to KLhP IN TOUCH V.'ITH TliE CLE.'..; A'-'D WITH II.':; .Vi'TOKI.L^'S III '. : 
C->SES THAT PUCCEDE THEM. YOUR CASE WILL BE TRIED AS SOON AS THERE IS A Di;POSITIO\ 
OF IWV. CASES AEE.^O) OF VOU. FrOTQUEtiTLY THE CASES AP^E SETTLED P^.ATHEP. THAN TFIilD, :::^ 
THE RE?P0:,'S1CII,TTY TO KEEP INrO'.'-M^D AND PREPARED TO GO TO TRIAL PESTS U'^CV COUy.'Er . ■ 



Cr 74-14 



FIRM SETTING 
Nov. 4 



No. 1 



C 74-33 



FIRK SETTING 
Nov. 5 



No. 2 



United States of America 

vs 
Tam Hailing 

(Distribution of a Controlled Substance) 



Rodney G. Snov 



Svimncr J. Hatch, ret. 



Jam&s. M. F>utler 



i>^' 



'i^^- 



ly 



Ellen Clark and^jsir.den Clark, and 
Herbert Michael Eii« 

Linden Clark 

Defendant & 3rd Party Pi 

vs 

Pembroke Company 

(Personal Injury - Motor Vehicle) 



Anthony M. DeFino, E= 
John L. Dlack, Esq. 



Hanson S Garrett; 
Morgan, ."slhuish, 
Monaghan , McCoid a 
Spieivcgcl 



Cr 74-19 



FIRM SETTING 
Sov . 6 



United States of America 

vs 
Corky Lennox, aka Dicky Lennox 



Rodney G. Snov; 



David M. Bov;n, ret. 



No. 3 



(Enticement of a Female to Travel Interstate 
for Purposes of Prostitution) 



Cr 74-20 



No. 4 



United States of America Rodney G. Snow 

vs 
Bobby Joe Moore Phil L. Hansen, ret. 

(White Slave Traffic Act & Conspiracy) 



Cr 74-22 



Nov. 8 



United States of America 

vs 
William D. Bond 

(White Slave Traffic Act) 



Rodney G. Snow 



Phil L. Hanson, ret. 



No. 5 



EXHIBIT 11 



73 



C 74-143 

FIK-l SnTTIKG 
Nov. 11 



No. 6 



Donald C. Johnson 

vs 
chevron Oil Company 

(Personal Injury) 



Robert M. McFac, V.r.c. 
H. V.'aync V.Viui;v.ortli, C: 



RayFiOnd M. Dcrry, Esq. 



Cr 74-24 



Nov. 11 



No. 7 



United States of America 

vs 
Reuben Arthur Scott 

(White Slave Traffic Act & Enticement) 



Rodney G. Snow 



Phil L. Hansen, rot. 



Cr 74-30 
Nov. 11 
No. 8 



United States of /jnerica 
vs 

Emil Cleir.ons 

(Internal Revenue Code) 



Max VsTieeler 



Sumner J. Hatch, ret. 



246-73 



Nov. IE 



Nu. 9 



Dale Isorkr.an 

vs 

Ontario Drive S Gear. Ltd.; Salsbury 
Corporation; Instru.T.ent Eysterr.s 

(Breach of VJarranty causing 
personal injury to plaintiff) 



Ray G. Martineau, Esq 
Richard V,'. Giauque,Esi 



Ray R. Christenscn.Es' 
Rex J. Hanson, Esq. 
H. Kayne ra:"Dvorth,Es 
Raymond Berry, Esc. 



C 343-73 



Walter Martinez, a minor by Willie 
Martinez; Jce Kartir.ez, a ninor, by 
Walter "artinez; Kathy Jones, a ninor, 
by Donald L. Jones; Kenny Jones, a 
minor, by Donald L. Jones; Dennis 
Rinaldi, a minor, by Michael Rinaldi 



David K. Robinson, Es 
Raymond S. Uno, Esq. 



No. 10 



Boyd F. Gurney, Clarke N. Johnsen, 

Don Rowberry, Reed Russell, Billy 

Bunnell, Don Kirk, Ov/en Cluff, and 

John and Jane Does 1 to 65, and 

Board of Education of Tooele School District 



(Violation of First & Fourteenth Amendments - 
Civil Rights) 



Allan L. Larson, Esc. 



Cr 74-4S 



No. 11 



United States of America 

vs 

Karl S. Smith and Gerald Robert Ames 

(Conspiracy to .Misapply Bank Funds 
and Kisapplication of Bank Funds and 
Aiding and Abetting in .'lisapplicaticn 
of Bank Funds) 



Rodney O . Snow 



Sumner J. Hatch, rcc. 
Dean R. Mitchell, ret 



74 



Cr 74-66 



United States of America 



Michael Hunter 



No. 12 



C 190-73 
Nov. 25 

NO. 13 



Joseph Franklin V.'alker, Jr., aka 
Larry Brandon 

(False Personation) 



John D. Russell, ret. 



K. Jay Holdsworth and Dona S. Holdsworth Harold G. Christenscn 

vs 
Kline D. Strong Clifiord L. Ashton, E 

(securities Exchange Act of 1934) 



C 139-70 



Ervin H. Stolle, Cipriano G. Alba 
and Florian Lavoi'> 



C.R. Henrikscn, Esq. 
Edgar A. Brekke, Esq. 



No, 14 



Arlandor A.llen Jennings and Willard 
Pease Company, Inc. 



(Damages 



Carman E. Kipp, Esq. 
■personal Injury (I'.otor Vehicle) ) 



374-73 



jec. 2 



No. 15 



Everett E. Trees and Ruth E. Trees, a 
partnership, cba Trees Trailer Sales 
and Everett E. Trees & Ruth E. Trees 



Johnson Livestock Co., a corporation 
and Thomas" Floyd Johnson 

• (Personal Injury - Motor Vehicle) 



Brigham E. Roberts, E 



F. Robert Bayle, Esq. 



C 206-73 



No. 16 



Tommy Bruce Bond 

vs 

United States of Anerica; Dept. of 
the Navy, & Capt. Frank C. Gilmore 

(Breach of Contract) 



Wayne G. Petty, Esq. 



C. Nelson Day 
Jackson Hoi/ard, Esq. 



C 354-73 



No. 17 



Randy F. Bishop 

vs 
Joetta Narlene Ogea 

(Personal Injury - Motor Vehicle) 



David E. West, Esq. 



Glenn C. llr.nni, Esq. 



C 377-73 



Eugene Earl Buttery 



Robert F. Ortor. , ;; . 
Allan R. Earl, Esq. 



No. 18 



The Brianhead Corp., Brianhead Ltd., 
Charles E. Gunnoo i Burton Ilichols, 
individually and ac general partners of 
Brian Head Ltd; Joretta L. Gunnoo and 
Sally P. Nichols 



Jay E. Joncon, Fr.q. 



75 



Cr 74-44 



No. 19 



United States of America 

vs 

Laura Marian Nichols 

(Willful Failure to File Individual 
Income Tax Returns) 



Max Wheeler 



Roger D. Sandack,appt 



Cr 74-50 



No. 20 



United States of America 

vs 
Jay Victor Miller 

(Criminal Contcm.pt) 



Rodney G. Snow 



Sumner J. Hatch, ret. 



Cr 74-51 



No. 21 



United States of America 



John J. Badger, Jay Victor Miller, 
and Evelyn Matchener 



Rodney G. Sncv; 



Sumner J. Katch, ret. 
Richard Leedy, ret. 



(Fraudulent Sale of Securities; Sale of Unregistered 
Securities; Interstate Transportation of Falsely 
Made Stock Certificates; Interstate Transportation 

.of Im.plericnts Used in Falsely MaJcing Stock Cer-if ice tes) 



C 74-161 



Salt LaKe Valley Innkeepers Assoc, Inc. 



J. Thomas Greene, t;sc 
Giftord V,'. t'rice. Esq 



Dec. 16 



No. 22 



James Lynn, individually and as Secre- B. Lloyd Poelr.'.sn, Esq 
rary of Housing & Urban Development; W. Robert V.'right, Esc 

Robert Rosenheim, Robert J. HatuscheK, Greg R. Hav!:ins, Esq. 
Salt Lake City Corp., Redevelop-ent John P. Hcmpel , Esq. 

Agency of Salt Lake City, Danny V.'all, Salt Michael Hunter, Asst. 
Lake City Ccr.-nission as Redevelopment Agency, U.S. A.ttorney 
E. J. Garn, Conrad B. Harrison, Jennings j. 
Phillips, Jr., Stephen M. Harm.sen, Glen Greener, 
Hartnett-Shav: Development Co., Inc. 



Cr 74-56 United States of America 
Jan. e, 1975 vs 

Ned Millett Kofford 
do. 23 (Fraud by Wire) 



Rodney G. Snov; 



Bruce Coke, Esq. 



C 363-/2 



Jane Doe 



Richard I. Aaron, Cgc 
Mary T.c-- r- 'o, -■■r. 



No. 24 



Evan E. Jones, Jr., Richard P. 
Lindsay, Doualaa E. Jol'.nLon, Gerald 
Burnett, Harry A. Alexander, L. R. 
Roylancc, Goraldine Atkinson, Sharron 
N. rovan, l';iul M. Clirictopherr-on , Glen 
K. Vernon, Lsc:;i;ie L. r.ciimg, Marilyn 
Peterson and Floy Taylor 

(Viol;ition of Civil Rights Under Public 
Welfare Division of Far.iily Services) 



Vernon B. Komney 



76 



C 118-73 



No. 25 



J. Eugene Robinson & Alice R. Stephens 

vs 

Kenyon D. Robinson, Leon D. Robinson 
and Thomas D. Robinson 

(Imposition of Constructive Trusts) 



David K. Watkiss, Esq 



David E. V.'ost, Esq. 



C 74-51 



No. 26 



Wilma Nielson 
vs 

Safeway Stores, Inc. 

(Personal Injury - Judg:nent) 



Richard Giauque, Esq. 
Tex R. Olscn, Esq. 
Clifford L. Ashton,Es 
Chris V.'angsr-rrc'. , Ziiq. 
Stephen B. uebckcr,EE 



Cr 74-53 



United States of A^T.erica 



Rodney G. Sr.ov; 



Jo. 27 



Richard T. Cardall, frank L. Parks, 
William Allen, International Chcr.ical 
Development Corporation, and Golden 
Rule Associates 

(Conspiracy; Fraudulent Sale 'of Stock 
Sale of Unrecis-ercd Stoc!:) 



James A. i:cIr.tosh,Esq 
V7allacc R. Bennett, Es 
Dean R. Mitchell, Esc 
Lowell Ha\:;;s, Esq. 



cr 74-76 



No. 28 



United States of ."irr.erica 

vs 
Wallace Murphy Plum, aka Porky Plum 
. (Receipt in ICC of Stolen Silver) 



Rodney G. Snov 



David Eown, Esq. 



Cr 74-11 



Mo. 29 



United States of America 

vs 
David Atchley, aka Donald R. Decker 
(Theft from Interstate Shipment) 



Rodney G. Snov/ 



Phil L. Hansen, ret. 



Cr 74-43 



No. 30 



United States of America Rodney G. Snow 

vs 
Grover Adelbert Sponable Jerome Mooney, Esq. 

(Theft of Baggage From an Interstate Shipment) 



Cr 74-54 



No. 31 



United States cf /j^crica 

vs 

John W. Rich, J. Milton Rich, v/illiam 
D. Rich 



Rodney G. ?-.o-. 



Donn E. Cassity, Frq. 



(Bankruptcy Fraud) 



77 



IN THE UNITi:n STATKS DISTRICT COURT IN AND FOR THE DISTRICT OF UTAH 



CRItllNAL JURY TRIAL CALENDAR nCFOIo: KOr.'OILADLE KILLIS \1 . RJ>M'i:R--« . /_.j | 

Cf-JNTRAL DIVISION 

MAY 2 i. 19 74 

COMMEHCIKG TUUSDAY, MAY 28, 1974 

10:00 A.M. t..u.^..-.Ai.o....r.yu3 



ccuTTiTrL AKi: iKSTiiUCTr;D ro i;L:i:i' in '.oi-ji-: \<±'i:: ii,-:. CLiJK.-; and v-iTi; x:;:: A'ii'o:.:;;JYS x>! 
t:::: cases tilat pkf.cedf them, your case v.'ill bE tried as sook as there ts a dis- 
position OF THE CAS':S AHEAD OF YOU. FREOUENTLY TI'.E CASES ARE SETTLED RATIJER T;'7=' 
TRIED, AND TJIE RESPONSIBILITY TO KEEP It:FOr^MED AND Pr^PA.RED TO GO TO TRlJOi llESTS 

UPON cou::sr.L. 



Cr 7 4-1 United States of America Rodney Snow 



vs 

No. 1 



Sheldon Giles David A. Robinccn , ret. 

(False & Fraudulent Nithl.olding Statement) 



Cr '4-li United States of /jnerica Rodney Snow 

David Atchley, aka Donald R. Decker Phil L. Hansen, ret. 

(Theft from Interstate Shipment) 

Cr 74-12 United States of /jnerica Rodney Sno\>" 

^ A •'' vs 

Jack Vanekolenburg John D. O'Conncll, ret. 

(Distribution of a Controlled Substance) 

Cr 74-13 United States of /^rr.erica Rodney Snow 

^.,-..2 5 vs 

t^-o. 4 Rand Spcr.ccr Mecharr. John D. O'Conn-.i!, rot. 

(Distribution of a Controlled Substance) 



EXHIBIT 12 



78 



Cr l^-li United States of America 

5 



Rodney Snow 



^ 



.;>^ 



14o . 5 



Tam Hailing Sumner J. Hatch, rot. 

(Distribution of a Controlled Subctanco) 



Cr 74-16 United States of America 

No. 6 Kack Harris Tlior.ir.son 



(White. Slave Traffic Act) 



Rodney Snow 



Robert Van Sciver, re' 



Cr 7-1-20 United States of f"jr,erica 
6'-.^^ vs 



No. 7 



Bobby Joe Moore and William Noies 
Saunders 

(White Slave Traffic Act & Conspiracy) 



Rodney Snow 



Phil L. Hansen, ret. 



Cr 74-22 United States of America 

^.^\ vs 

No. 8 William D. Bond 

(UTiite Slave Traffic Act) 



Rodney Snow 



Phil L. Hansen, rot. 



Cr 7-5-23 United States of Ajnericc 

c, vs 

Ko. S ' Ed Krown 



Rodney Snow 



Lambertus Jansen, ret. 



(rrecuremont of Airline Tickets & Transportation 
for PuvpOLH^; of Interstate Travel s Prostitution; 
& Knticot.ie!-. c of a Fcir.a] c to Travel Intorr.taLo for 
Purposes of Prostitution) 



Cr "-:-2'; L'nit-ii-: States of America 
Mo. IC K'.ub'':i Arthur Scttt 



Rodi.cv sr.o- 



Diil 1,. i:au...'n, 



(V.iiito Plav,-; Iraffic Act S Enticoiv.,-1-;', ,.f a :'• i,u;T.(. ) 



79 



Cr 7'l-25 United States of America Rodney Snow 

•5,0 ■ vs 

Clarence Earl Drodley Galen Ross, ret. 

No . 11 

(White Slave Traffic Act) 

Cr 74-26 United States of America Rodney Snow 

Melvin Kay Meads Thoraas P. Vuyk, ret. 

No. 12 

(Unlawful Possession of Unregistered Firearms) 

Cr 74-27 United States of Ar.ierica Rodney Snov; 

'^ John Earl Vv'orthen Galen Ross, ret. 

No. 13 

(Interstate Transportation of Stolen 
Securities; ai.cl False Statement to 
Government Agency) 

Cr 74-28 United States of Araerj.ca Rodney Snow 

, vs . 

/ •-'' 
No. 14 ^ Orin Vern Allen and Edwin L. Allen " =;;rhil L. Hansen, ret. 

(Theft of Mail) 

Cr 74-29 United States of Pj-.-.erica Rodney Snow 

vs 

I. '^ 

^ Norvin Tod Tripple, Richard Bryan Thomas R. Ri onquir-t ,rft 

No. 15 Hollauay, and Richard Eldon Dolise Kenneth RoLr.cy, rot. 



(Receiving Stolen Property 
Transported in Interstate Con-imerce) 



Keith Biesing::r, ret. 



Cr 74-30 United Stator, of Anierica Rodney Snr.; 

vs 
No. IG Emil Clcmonr., Jr. Sumner J. ll.itch, rot. 

(Internal Kevonuo Code) 



80 

Cr 74-33 United State:; ot Aniciica Rodney Cnow 

vs 
^^ -^-j Rox E. Feuntal and David V. Pack Robert Van Sciver, rot. 

(Taking I'orc Miqratory Birds Than Allowed) 



Cr 74-36 United States of /jnerica Rodney Snow 

vs 

No, 13 Cari'.ielo Santiago Cruz Phil L. Hansen, ret. 

(Distribution of a Controlled Substance) 



Cr 74-43 United States of iVnerica Rodney Snow 

vs 
No. 19 Grover Adelbert Sponable Jerome Kooiicy , ret 

(Theft of Baggage from an Interstate Carrier) 



United States District Court for the District of Utah — Central Division 
United States of America v. Will Henry Savage, Jr. 

No. CR 75-26 

Take notice that the above-entitled case has been set for Jury trial at Salt 
Lake City, Commencing : on Tuesday, October 21, 1975, at 10 :00 A.M. before 
Honorable Willis W. Ritter, 250 U.S. Post Office & Courthouse Building. 
Date : October 20, 1975. 

Verl C. Ritchie, 

Clerk. 

To: Rodney G. Snow, Asst. U.S. Attorney, 200 U.S. Post Office & Courthouse 
Building, Salt Lake City, Utah 84101. 

Stanford S. Smith, Esq., 225 South 200 East, Salt Lake City, Utah 84111. 

Will Henry Savage, Jr., 429 Sego, Salt Lake City, Utah Mill. 

To the Defendant : By Order of Chief Judge Willis W. Ritter, the defendant is 
directed to appear at the Office of the U.S. Marshal, Room 244, U.S. Courthouse, 
Salt Lake City, one-half hour prior to the time listed for court appearance. 

In the United States District Court for the District of Utah Central 

Division 

United States of America, plaintiff, vs. Will Henry Savage, Jr., defendant 

CR-75-26 — Motion for Continuance on the Grounds That Witnesses Have Not 

Been Secured 

Comes now Rodney G. Snow, Assistant United States Attorney, for and on 
behalf of the United States of America, and hereby moves this honorable Court 
for a continuance in the above entitled case, and for good cause shows the Court 
as follows : 

1. The United States did not receive notice of the Court's current trial calendar, 
including the trial setting for the above referenced case, until the afternoon of 
October 20, 1975. 

2. At approximately 3 :00 P.M. on October 20, 1975, the United States Marshal 
for the District of Utah had in their hands the Subpoenas for witnesses in the 
above referenced case. 

3. Thus far the United States Marshal for the District of Utah has been unable 
to locate two witnesses in the ca.se, including one very crucial witness. The 
crucial witness is Mr. Henry Allen, who was the payee of the Treasurer's check 
which is the subject of this lawsuit. 



81 

4. The Marshal's office has worked diligently in an effort to locate Mr. Allen 
and thus far has been unable to do so. 

Therefore, the Government respectfully requests that the trial setting of the 
above referenced case be continued. 

DATED this 21st day of October, 1975. 

Ramon M. Child, 

United States Attorney. 
Rodney G. Snow, 
Assistant United States Attorney. 

In the United States District Couet for the District of Utah Central 

Division 

United States of America, plaintiff, vs. Will Henry Savage, Jr., defendant 

CR-75-26 — Order of Dismissal 

Came on for trial on October 22, 1975, the defendant being present and repre- 
sented by counsel, Stanford S. Smith, Esq., and the defendant being ready for 
trial, and the Government being represented by Assistant United States Attorney 
Rodney G. Snow, and the Government not being ready for trial in view of the 
fact that it had been unable to locate a crucial witness ; now, therefore, 
IT IS HEREBY ORDERED that the above referenced case is dismissed. 
DATED this 31st day of October, 1975. 

Willis W. Ritter, 
Chief Judge, United States District Court. 

CASES WHERE DEFENDANT HAS BEEN ARRESTED BUT NO INFORMATION OR INDICTMENT FILED AS OF MAY 10, 1976 



Case no. 


Number of 
defendants 


Arrest 
date 


Days since 
arrest 


75-0207 




Jan. 5, 1976 
Dec. 22,1975 
Jan. 30,1976 
Feb. 11,1976 
Jan. 30,1976 
Mar. 30, 1976 
Apr. 14,1976 
Jan. 22, 1976 
Jan. 8, 1976 
Mar. 25, 1976 


136 


75-0278 




150 


76-0023 




101 


76-0025 - 




89 


76-0027 




101 


76-0030 




41 


76-0038 . 




26 


75-0162 




109 


76-0001 




133 


76-0022 




46 









CASES WHERE DEFENDANT HAS BEEN SERVED WITH SUMMONS BUT NO INFORMATION OR INDICTMENT FILED 

AS OF MAY 10, 1976 



Case no. 


Number of 
defendants 


Date 

summons 

served 


Days since 
service 


75-0269 




Dec. 16,1975 
Feb. 10,1976 
Feb. 12,1976 
Feb. 14, 1976 
Feb. 12,1976 


146 


76-0024 - - 




90 


76-0033 




88 


76-0039 




86 


76-0041 




92 









82 

CASES WHERE INFORMATION OR INDICTMENT FILED BUT NO ARRAIGNMENT HELD AS OF MAY 10, 1976 



Number of Days since 

Case no. defendants Information or indictment filed iilmg 



CR-75-132 1 Dec. 4, 1975 (indictment) - 158 

CR-76-1 2 Jan. 13, 1975 (misleading information) 128 

CR-76-10 1 Jan. 27, 1976 (misleading information) 114 

CR-76-12" 1 Feb. 9, 1976 (misleading formation) 91 

CR 76-13 1 Feb. 23 1976 (misleading information) -- 77 

CR-76-14" 2 Feb. 20 1976 (misleading information) 80 

CR-76-15 - 2 Feb. 23, 1976 (misleading information) 77 

CR-76-16 1 do II 

CR-76-17 1 Feb. 4, 1976 (indictment-rule 20) 96 

CR-76-18 - 1 Feb. 27, 1976 (misleading information) 73 

CR-76-19'" 1 Mar. 15, 1976 (misleading information) 56 

CR-76-20 1 Mar. 17, 1976 (petty office information) 54 

CR-76-23 3 Apr. 7, 1976 (petty office information) 33 

CR-76-24 3 do 33 

CR-76-25 1 Apr. 14, 1976 (misleading information) ^b 

CR-76-26 1 do 26 



Ix THE United States District Coxibt fob the Disteict of Utah, Central 

Division 

CR 75-72 

United States of America vs. Gerald Mountainlion and Ronnie Appawoo, 

defendants. 

Salt liAKE City, Utah, 

November 7, 1975. 

Before : The Honorable Willis W. Ritter, Chief Judge. 

Steve Suarr, Esq., Assistant United States Attorney, appearing on behalf of 
the United States. 

W. Robert Wright, Esq., appearing for the defendant Mountainlion. 
Charles C. Brown, Esq., appearing for the defendant Appawoo. 

MOTION FOB DISMISSAL 

The Court. All right, now, Mr. Wright, what do you want to talk about ? 

Mr. Wright. Your Honor. I have been appointed to defend a defendant by the 
name of Gerald Mountainlion in another case, which is No. 24 on your calendar. 
He is charged with aggravated assault, the same charge that was made against 
the defendant, Mr. Casey, in a case just heard by the Court. We have made the 
same motion upon the same grounds that have been made by Mr. Brandt Wall, 
and we move the Court for dismissal on the grounds that are set forth in our 
motion and our memorandum, these being that the statute upon which Mr. 
Mountainlion is charged is unconstitutional in that it unlawfully discriminates 
against him as an Indian. 

The Court. You are not representing your client very good. You are over- 
looking something that a practical man ought to think about. The defendant in 
the preceding case was in jeopardy. 

Mr. Wright. I recognize that. 

The Court. He was confronting a jury. Now you are pushing your luck here. 
If I rule on this motion before you confront a jury and that constitutional ques- 
tion is litigated for the next ten years and goes up to the Supreme Court of the 
United States and in the meantime the Government amends, you have done your 
client a very great disservice, because there is no bar to him being prosecuted. 

Mr. Wright. Well, that is a possibility. Your Honor. 

The Court. It is not only a possibility. That is what will happen. Now, I have 
been trying to handle all these eases on this calendar by having a jury in the 
box there and not listening to your arguments about anything. You push in here 
now at a time when the motion isn't even set down for argument, and you have 
got your client in a fix where he may be twice tried for this thing. Now, that is 
poor legal representation from my point of view, and I am going to do what I 
can to protect him against his counsel, and we will just keep that right where 
it is and get a jury for you one of these days, and when we get the matter up 
before the jury we will get far enough down the way with the evidence to see 



83 

what is involved and then we will entertain your motion. I don't \\-ant to be 
trying these cases again. I am interested in the court docket as much as I am 
the Indian boy, but he ought to have the benefit of double jeopardy defense. If 
he is prosecuted once that ought to be enough. That will be all. 

CERTIFICATE 

This is to certify that the foregoiULC is the official transr-ript of the arguments 
of counsel and ruling of the Court on the motion for dismissal in the at)ove- 
entitled cause, and that the same is a true and accurate transcript. 

Lekoy Walker. 

In the United States District Court for the District of Utah 

Central Division 



UNITED states OF AMERICA, PLAINTIFF, V. RICK O. RASMUSSEN, DEFENDANT 

CR 75-10— Plea 



Salt Lake City, Utah, March 24, 1975. 

Before. The Honorable Willis W. Ritter, Chief Judge. 
Max D. Wheeler, appearing on behalf of the plaintiff. The defendant appeared 
without counsel. 

Mr. Wheeler. This is a petty offense, your Honor. It's illegal entrance on 
military reservation. Apparently his attorney is not here. 
The Court. Do you have an attorney? 

The Witness. I have a lawyer. He didn't think it was necessary to come. 
The Court. If you have an attorney we will have to have him here. What 
kind of petty offense was it? We don't entertain those petty offenses up there 
on the reservation. How did that one get in here? 

Mr. Wheeler. The defendant in this case was found on the military reserva- 
tion in possession of a controlled substance. He was issued a bar letter, as they 
call it, barring him from further entry on the reservation. Subsequent to the 
issuance of that letter, he did enter. 

The Court. What's the controlled substance got to do with it? 

Mr. Wheeler. That initiated his bar from the reservation, your Honor. This 
happened some time ago, before I came in. 

The Court. I don't think this case will last very quick. I think it will go out 
the door with wheels under it. I can't take your plea here without your attorney. 

Is he coming or what? 

The Defendant. No. He didn't feel it was necessary for him to come. He 
wanted me to come and plead and set a trial date. 

The Court. Tell him I send my regards. Tell him to get down here. You go 
down and take a seat. Get hold of that attorney. 

John Bucher appeared on behalf of the defendant. 

The CouTJT. This is a petty offense. Are you ready to plead? 

The Defendant. Yes, your Honor. 

The Clerk. How do you plead to the information, guilty or not guilty? 

The Defendant. Not guilty. 

The Court. Good. That's what you should do. There's a question whether I'm 
going to handle it or not. I may throw it out. I don't take these petty offenses, 
you see. The military up there ought to run that reservation. They ought to run 
it. And when they find out they can't run it. at that point, particularly with 
respect to traffic offenses, they can't manage the traffic up there, so they want 
me to be a traffic policeman, traffic examiner, and dish out dollar-and-a-half fines, 
that sort of business. I'm not going to do it. It looks to me like this thing ought 
not to be here. 

Mr. Snow. I felt, your Honor, that the petty offense justified the Court's atten- 
tion under the circumstances. 



84 

The CouKT. The plea is not guilty. That's a proper plea in this case, and we'll 
look at your cards when we get it on the calendar, and I think chances are that 
you won't have a big enough hand to stay in the game. 

Mr. BucHEB. Thank you. 

CEBTIFICATE 

I, Janice Mitsunaga, CSR. do hereby certify that the foregoing is a true and 
correct transcript of proceedings in the above-entitled matter. 
Dated at Salt Lake City, Utah, this 8th day of May, 1975. 

Janice Mitsunaga, CSR. 

Criminal Docket, United States District Court 

CR 75-10 

THE UNITED STATES VS. KICK 0. RASMUSSEN 
ATTORNEYS 

For U.S.: Max D. Wheeler, Asst. U.S. Atty., 200 U.S. Post Office & Courthouse, 

Salt Lake City, Utah 84101 

For Defendant: John Bucher, Esq. (ret.). Suite 271 Cottonwood Mall, 4835 

Highland Drive, Holladay, Utah 84117 

PROCEEDINGS 

Petty Offense Information, filed. Summons issued. 

Notice of Arraignment on 2/7/75 at 10 :00 A.M. mailed. 

Marshal's return showing service of Summons on 1/31/75, filed. 

Notice mailed vacating this matter off of the Rule Day Calendar- for 2/7/75. 

Notice mailed of Arraignment on Monday, March 24, 1975 at 10 '.00 A.M. 

Came on for arraignment. Def. entered a plea of not guilty. This case set on 
trial calendar. 

Transcript of Plea, March 24, 1975, filed. 

Notice mailed of Jury Trial commencing 10/21/75 at 10 :00 A.M. 

Came on for calling of jury trial calendar on 10/21/75. Mr. Bucher, on behalf 
of his client waived jury trial in this matter. Motion granted. This matter tried 
to the court on 10/21/75. Evidence taken. After completion of the plaintiff's case, 
defendant moved for judgment of dismissal and acquittal. Court granted the 
dismissal of the action. 

The cases wherein the defendants refused to waive indictment are : 

United States v. Aiono, Mag. No. A-75-97. 

United States v. Huffman, Mag. No. A-75-176. 

United States v. Larsen, Mag. No. A-75-187. 

United States v. Manzanares, Mag. No. A-75-202. 

In the United States District Court for the District of Utah Central 

Division 

motion for empaneling of a grand jury 

Ramon M. Child, United States Attorney for the District of Utah, respectfully 
requests this Honorable Court that a grand jury be summoned to serve within 
the Central Division of the United State District Court for the District of Utah, 
commencing February 5, 1976 ; this Motion and Request is made upon the ground 
and for the reason that the public interest requires consideration by a grand 
jury of matters pending in the office of the United States Attorney, including 
the current necessity of investigating Federal offenses within the District, the 
need for presentation of matters concerning persons who have recently refused 
to waive indictment, and investigation of certain matters concerning the Anti- 
trust Division of the Department of Justice with regard to alleged violations 
of the Antitrust laws of the United States within the Central Division of the 
Federal Court for the District of Utah. 

This Motion is brought pursuant to the provisions of Rule 6 of the Federal 
Rules of Criminal Procedure. 

Respectfully submitted this 23rd day of January, 1976. 

Ramon M. Child, 
United States Attorney, District of Utah. 



85 

In the United States District Court for the District of Utah 

Central Division 

order in re grand jury empaneled FEBRUARY 10, 1975 

Upon the advice of the United States Attorney that all matters originally set 
for presentation to the above Grand Jury have been presented and have resulted 
in return of Indictments, with certain exceptions hereafter particularly 
described. 

It Is Hereby Ordered that the matters hereafter presented to the Grand Jury 
empanelled in the Central Division, District of Utah, on February 10, 1975, 
shall be limited exclusively to the following subject-matter, some portions of 
which the Grand Jury has already commenced investigating : 

1. That certain investigation of antitrust violations, consisting of price fixing 
and other anticompetitive conduct in the egg industry in the District of Utah, 
which has been the subject of ten days of proceedings before the Grand Jury 
to this date. 

2. Those certain investigations of antitrust violations, consisting of price 
fixing and other anticompetitive conduct, in the grocery and beef industries in 
the District of Utah, with respect to which an initial group of subpoenas have 
heretofore been issued and initial production of documents has to date supplied 
more than 200,000 documents. 

3. That certain investigation of fraud in the acquisition of approximately 
eight million dollars of Small Business Administration funds for the use of, 
or transmitted through, a certain Small Business Investment Company, with 
respect to which an initial group of .seventy-three subpoenas duces tecum have 
heretofore been issued and in response to which more than two thousand docu- 
ments have been produced to date. 

4. That certain investigation of fraud in the acquisition of moneys from the 
Veterans Administration by a local corporation offering certain correspondence 
courses and classes for Veterans, with respect to which an initial group of sub- 
poenas has been issued and at least three full days of testimony heard by the 
Grand Jury. 

5. Presentation of evidence for indictment of those persons who, while the 
Grand Jury is empanelled, refuse to waive indictment. 

Dated this 25th day of April, 1975. 

By The Court : 

"Willis W. Ritter, 
Chief Judge, United States District Court, District of Utah. 

In the United States District Court for the District of Utah 

REQUEST that GRAND JURY BE ALLOWED TO REMAIN IN SESSION, AND THAT THE 
COURT'S ORDER OF APRIL 25, 1975, LIMITING THE MATTERS WHICH MAY BE PRE- 
SENTED TO THE GRAND JURY BE QUASHED 

Comes now Ramon M. Child, United States Attorney for the District of Utah, 
and respectfully requests this Honorable Court to permit the Grand Jury em- 
panelled on February 10, 1975 to continue to sit, and to conclude matters now 
pending before it. 

It is also respectfully requested that this Court's Order of April 25, 1975, which 
limits the matters which the United States Attorney's Office may present to the 
Grand Jury be vacated in order that the United States Attorney's Office may 
present other matters to the Grand Jury which the public interest requires the 
Grand Jury to con.sider. 

Dated this 4th day of December, 1975. 

Ramon M. Child. 
United States Attorney. 

In the United States District Court for the District of Utah 

BEFORE : the HONORABLE WILLIS W. RITTER, CHIEF JUDGE 

Report of the Grand Jury, Thursday, December 4, 1975, Salt Lake City, Utah. 
For the Government: Ramon M. Child, United States Attorney, 200 U.S. 
Courthouse, Salt Lake City, Utah 84101. 
Podney G. Snow, Assistant U.S. Attorney. 
For the Grand Jury : Lund, Foreman. 



86 

SALT LAKE CITY, UTAH, THURSDAY, DECEMBER 4, 1975, 2:20 P.M. 

The Court. I assume this grand jury has a report. 

Mr. Snow. They do have a report, your Honor. 

The Court. Come up here. 

Mr. Child. May I approach the bench? 

The Court. Yes. 

( Unreported bench conference between Court and counsel. ) 

The Court. I understand you have a report, Mr. Foreman. 

The Foreman. Yes, I do, your Honor. 

The Court. All right. Would you read it. 

The Foreman. "We, the grand jurors duly impaneled, sworn, and charged in 
said court on the 10th day of February 1975, respectfully report as follows : 

"That the Grand Jury has been in .session since February 10, 1975, and at 
each and every session thereof there have been in attendance all of the grand 
jurors so impaneled and sworn, with the following exceptions, excused from 
attendance as indicated on the report. 

"That at each and every session thereof there have not been less than 16 mem- 
bers in actual attendance. 

"That we have considered 5 alleged violations of the statutes of the United 
States ; that we have found 4 true bills, which are returned herewith into court, 
properly endorsed by the Foreman of the Grand Jury ; and that we have de- 
clined to return indictments on zero cases presented. 

"In addition, the Grand Jury is currently considering other matters presented 
by the United States Attorney, but is not ready to report on them at the present 
time, it being the intention of the Grand Jury that as soon as the other matters 
have been presented in full the Grand Jury will make a further report to the 
Court." 

The Court. Well, the district attorney got his oar in on that one, didn't he. 

Mr. Child. I think not, your Honor. 

The Court. You mean you didn't draw that document? 

Mr. Child. I didn't draw it. Mr. Snow has been attending the Grand Jury. 

Mr. Snow. That's the standard form we've always used, your Honor. 

Mr. Child. It's probably the same language as the last report the jury did. 

The Court. I don't think so, but it doesn't make any difference now. 

Thank you very much. Is there any 

Mr. Child. Your Honor, I have the 4 indictments that were returned by the 
Grand Jury, and I move that they be received by the Clerk. 

The Court. All right. They may be filed. And I .suppo.se you want warrants 
issued, do you, or not? 

Mr. Child. Yes, your Honor. We want summonses issued on 3 of them. 

Mr. Snow. They're all summonses, your Honor. We request summonses. 

The Court. Summonses will issue. And there are no secret indictments, I sup- 
pose? 

Mr. Child. There are not. 

The Court. Is there bail recommended? 

Mr. Snow. No bail has been recommended. 

The Court. All right. Then you report to the Clerk and take your seat ; and 
I'll say a few things to the Grand Jury. 

You have been serving this Court since last February, as your foreman just 
told me, and you have served us well, and this is much longer than I ordinarily 
keep a Grand Jury. I was persuaded to keep you folks longer because of matters 
that the Government wanted to present. 

Now, some of those matters have not yet been presented ; and on at least one 
there has been some testimony before you which has not been completed that the 
Government told me they would complete by December, and they have failed to 
complete that. They have carried on no investigations for several months, as a 
matter of fact. 

And so I think we should discharge the Grand Jury; and I hereby do so, and 
I do it with the thanks of the Court, and I'll say to you that you have .served 
us real well; and I hnve the honor and the position thnt I occupy here of repre- 
senting the people of the United States of America, and I want to thank you for 
your assistance in the administration of justice on the criminal side of this court. 

Drive carefully on your way home. Tliis is the end of your service. Go to the 
Clerk's Office when you leave the courtroom, and be sure to give the clerks the 
information necessary, so they can get your pay voucher to you. You're excused. 



87 

The Foreman. Could I take a moment of your time, please? 

The Court. Sure. 

The Foreman. The Grand Jury would like to thank you for the opportunity that 
we have had of serving as federal grand jurors in representing the people of the 
United States of America ; but we are deeply concerned, and we have been for 
some time about the fact of unfinished business. 

We haven't felt it a hardship, you know, to meet and to act in this capacity ; 
and we would like to at this time, with your permission, to complete the investi- 
gations that we still haven't completed. 

The Court. Well, I think I'm acquainted with that, and I've already alluded 
to it. 

So we will do as I say. 

You're discharged. Go to the Clerk's Office. 

I, Ronald F. Hubbard, official reporter in the U.S. District Court, do hereby 
certify the preceding transcript to be true and correct, set forth this 27th day of 
February 1976, at Salt Lake City, Utah. 

RoNAXD F. Hubbard. 

January 23, 1974. 
Hon. Willis W. Ritteb, 
Chief Judge, United States District Court. 

C. Nelson Day, 
United States Attorney. 

Cases which need to be presented to a Grand Jury and cases which merit Grand 
Jury investigation. 

In response to your request, find attached a list of cases which this office needs 
to present to a Grand Jury. Hopefully the list is complete ; however, there may be 
other cases presented to this office by the various investigative agencies which 
will need Grand Jury attention. 

We feel that many of the cases on the attached list merit a thorough Grand 
Jury investigation, and in the White Slave Act cases we need to make firm the 
testimony of the various victims. Several of these victims have been beaten and 
threatened. 

The stock fraud cases are complicated and involved and will take some time 
to untangle. Some of the potential defendants listed may be innocent of any 
wrong doing and consequently will not be indicted. However, each stock fraud 
case needs to be thoroughly investigated. 

lu view of the complexity of the matters to be presented to the Grand Jury, 
we would appreciate having the Grand Jury .sit at a different time than the trial 
of the criminal ca.ses now pending and on your present calendar. If the present 
criminal jury trial calendar is to follow the present civil jury calendar, as we 
understand it will, may we suggest that the Grand Jury be convened in the next 
two or three weeks in order that we may present these cases to the Grand Jury 
while the civil calendar is in process. Due to the difficulties in locating witnesses 
and getting them here, we will need at least two weeks' notice, prior to commence- 
ment of the Grand Jury proceedings. 

Your attention and consideration is very much appreciated. 

Senator Burdick. Just a minute. I have a question or two. Mr. Child, 
much of your testimony, particularly at the point where I interrupted 
and thereafter, deals with the activities or the actions of Judge Ritter 
as a trial judge. And you understand that this subcommittee would 
have no authority to do anything about his actions as a trial judge. 
We're dealing only with his action or conduct as the judge in charge 
of — as tlie chief judge. 

And I think the statute involved here only applies to chief judges. 
Do you understand that, Mr. Child ? 

Mr. Child. I do. 

Senator Burdick. And the misconduct, if any, as a sitting trial 
judge, would not be within the jurisdiction of this Committee. 

Mr. Child. This is correct. May I respond ? 



88 

Senator Bukdick. Now, you first referred to the fact that you had 
difficulty in setting calendars and so forth, but I want to call your 
attention to title 28, section 332, subparagraph (d) : "Each judicial 
council shall make all necessary orders for the eiiective and expedi- 
tious administration of the business of the courts within its circuit. 
The district judges shall promptly carry into effect all orders of the 
judicial council." 

Apparently he has had some problems about the trial date in crim- 
inal cases. Except .for appeals in individual cases and except for ap- 
plications for extraordinary writs, have you asked the judicial 
council of the 10th circuit for orders regulating the setting of 
criminal cases for a trial under the section I just read, section 332? 

Mr. Child. No ; we have not. 

Senator Burdick. If S. 1130 were enacted — that's the bill before us — 
the word "Chief" would be eliminated from Judge Hitter's title and 
if we were to eliminate that, would your problems in the central dis- 
trict be solved ? 

Mr. Child. They would not be 100 percent solved, but it would be 
75 percent solved. 

Senator Burdick. It wouldn't solve those cases where he acted as a 
trial judge; would it? 

Mr. Child. No; those cases that were actually in his court for trial, 
it would not solve. However, it would solve the situation of the grand 
juries; it would solve the situation of the magistrates; it would solve 
the situation of the trailing calendars without notice because rules 
could be adopted. 

He refuses to adopt rules and in a two-man district, it's impossible 
for the associate judge to stand against that. The associate judge him- 
self doesn't publish rules, but he abides by certain written rules that 
were adopted by a predecessor. 

Senator Burdick. And that's why this committee would like to con- 
fine ourselves to those areas that have particular application to the 
bill before us. 

Mr. Child. Yes. 

Senator Burdick. The matters relating to the convening and func- 
tioning of a grand jury in the central division of Utah are involved 
in the mandamus proceedings commenced on April 21 of this year 
in the Court of Appeals of the 10th Circuit. 

As a result of that action, a grand jury was empaneled on IMay 10 
and the court of appeals has retained jurisdiction over the mandamus 
proceedings pending further developments. Is this correct ? 

Mr. Child. This is. 

Senator Burdick. And is that matter now pending? 

Mr. Child. It is. And Judge Ritter has empaneled that grand jury 
and empaneling that grand jury he gave them a charge which cut 
the gronnd out from under them and told them that they were archaic 
and evil and that, in truth and in fact, that the United States and the 
country of Nigeria, are the only countries in the world that still hang on 
to the grand jury system, that it is a bad system, and that the real 
system ought to be allowing trial judges to listen to these matters 
and they have better expertise land experience to deride whether a 
crime has been committed and the grand jury should be abolished. 



89 

And I then took the grand jury into the grand jury room and you 
can imagine that they wondered why they were meeting. 

Senator Burdick. My point is that the Circuit Court of the 10th 
Circuit still retains jurisdiction over the matter? 

Mr. Child. Yes ; fortunately. 

Senator Burdick. On page 20 of your statement you take exception 
to Judge Rittor's asking for a list of persons under investigation by 
the grand jury. You object that this constitutes judicial interference 
with the executive branch, yet you seem to suggest that this subcom- 
mittee should set itself up as a body to judge the propriety of judicial 
actions on his part during the subcommittee consideration of 1130. 

Aren't both of these matters in violation of the separation of powers'? 

Mr. Child. I'm sorry, Mr. Chairman, but I didn't follow^ the ques- 
tion. I apologize. 

Senator Burdick. I'll read it again. On page 20 of your statement, 
you take exception to Judge Bitter's asking for a list of persons under 
investigation by the grand jury. Your objection was that this con- 
stituted judicial interference with the executive branch — you, as the 
prosecutor. Yet you seem to suggest that this committee set itself up 
as a body to judge the propriety of judicial actions as part of the sub- 
committee consideration. 

Mr. Child. Xo. I don't ask this committee to act as a judicial body, 
but I'm pointing out to this committee that the grand jury, by statute, "is 
supposed to have broad powers and it's not supposed to be limited by a 
judge. It's supposed to be independent and he attempts to dictate what 
it will do by asking a predisposition of what cases will be called, if he 
calls a grand jury. 

He attempts to control the function of the U.S. attorney and desires 
to be the prosecutor, as well as the judge. 

Senator Burdick. I'm sure you're aware that this presents us with a 
very difficult jurisdictional problem here, since really the conduct of a 
judge is not directly involved ; otherwise, it would be an impeachment ; 
would it not ? 

Mr. Child. That is correct. 

Senator Burdick, Mr. Westphal, do you have any questions ? 

Mr. "Westphal. Yes, Mr. Chairman. Thank you. In looking over the 
material that you presented and that's been presented by other wit- 
nesses, we have had a little difficulty in analyzing the precise issue here, 
because if this bill passes, the exemption that was accorded to Judge 
Bitter and 31 other judges back in 1958 would be removed and he 
would no longer be the Chief Judge of the U.S. District Court for the 
District of Utah. 

The other judge would, I assume, become the chief judge of that 
court; is that true? 

]Mr. Child. I would assume, yes. 

Mr. Westphal. Judge Bitter, however, would still remain as a judge 
of the District Court of Utah in regular active service ; would he not ? 

Mr. Child. He would. 

Mr. Westphal. He would still be sitting as a trial judge? 

]\Ir. Child. He would. 

Mr. Westphal. Under the Judicial Council order he would still be 
the judge in charge of criminal cases and proceedings in the central 
division of Utah ; would he not ? 



90 

Mr. Child. I would think that situation would soon change. 

Mr. Westphal. How would it change ? 

Mr. Child. There would be a new chief judge and under the new 
chief judge and the rights that he has under the statutes, as I read 
them, he would have the privilege of assigning cases. He would have 
that privilege until it was demonstrated that there was a dispute 
between the judges. 

At that point, the dispute would be resolved by the 10th Circuit and 
I assume that the 10th Circuit would not necessarily leave the situa- 
tion's it was between Judge Christensen and Judge Ritter some 15 
to 20 years ago. 

Mr. Westphal. Well, I would suggest that we might look at section 
137 of the statute, and assuming that the other judge becomes the 
chief judge, section 137 of title 28 provides "that the business of a 
court having more than one judge shall be divided among the judges 
as provided by the rules and orders of the court. If the district judges 
in any district are unable to agree on the adoption of rules or orders 
for that purpose" — that is, for the purpose of dividing the business 
and assigning the cases — "the Judicial Council of the Circuit shall 
make the necessary orders." So that if S. 1130 is enacted into law, the 
second judge in Utah would be the chief judge. Judge Eitter would 
still be a judge in regular, active service. 

I assume that since they have been unable to agree since the year 
1958 that they would continue to be unable to agree on the division 
of the business of the court for as long as Judge Ritter would be a 
judge in regular active service. Is that a proper assumption? 

Mr. Child. I don't believe so. I don't accept the assumption. I believe 
that the new judge wdio took Judge Christensen's place and had Judge 
Christensen still been the judge and thus become chief judge, you 
would have seen a great difference. The new judge, a junior judge, 
having to work and — bends over backward to keep the peace within 
the District. 

If he, then, were given the mantle of chief judge so that he could 
control the hiring of the court clerks, of which we don't have one^ 
it's hard to keep them — so that he could control the hiring of tlie 
staffs, he, with that mantle of authority, could stand up and express 
what he wants. 

As it is, he accepts what is there. 

Mr. Westphal. The chief judge in Utah cannot get what he Avants 
in the way of division of business or the assignment of cases. Under 
the statute, it takes the agreement of the two judges and if the two 
judges are unable to agree, it is then left up to the judicial council 
of the circuit. And you're assuming that if the other judge becomes 
the chief judge, then for some reason Judge Ritter and he will be able 
to agree, when they haven't been able to agree since 1957. 

Mr. Child. Mr. Westphal, you're assuming facts that are not in 
evidence. The junior judge at the present time has only been there 
approximately 4 years. As such, there is no disagreement because he 
will not disagree with the chief judge under any circumstances. 

If he were the chief judge, he would express his independent 
opinion. 

Mr. Westphal. And, if his independent opinion differed with the 
independent opinion of Judge Ritter, there w^ould be a disagreement 



91 

between the two judges on the division of business and the assignment 
of cases and the judicial council would still have to exercise its powers 
under the statute ; would they not? 

Mr. Child. The judicial council would do so and I feel that they, 
given the opportunity, would rectify the problems that we have now\ 

Mr. Westphal. Well, they have attempted to rectify that problem 
beginning in 1958 with their order which assigned to the two judges 
of Utah an equal and an impartial divison of civil cases and gave to 
each judge the power to preside over criminal cases and proceedings, 
each in his own division — Judge Ritter in the central division and 
the other judge in the northern division. 

Mr. Child. And as it worked out, the central division has about 
80 percent criminal load and it would have more if we could prose- 
cute. Judge Ritter, at that time, was 18 years younger than he is 
now. He cannot now carry the load he did 18 years ago — and he does 
a marvelous job in some of the cases that he has. 

Mr. YfESTPHAL. The point, ]Mr. Child, is this. If Judge Ritter were 
not the chief judge, he would still be the resident judge in the cen- 
tral division. He would still be the trial judge in that division. He 
would still handle his share of the civil cases on trial. He would still 
handle criminal cases and proceedings in the central division; would 
he not ? 

Mr. Child. He would only until the then chief judge took issue 
with that situation and asked for a change. 

Mr. Westphal. The chief judge cannot take away from Judge Rit- 
ter the power to sit as an active district court judge. The judicial 
council of the 10th Circuit cannot take aw^ay that power. This was 
determined in the Chandler case, as I understand. 

Now, the point I'm trying to get at is how the situation would change 
if you simply remove the word "chief" from Judge Ritter's title. He 
would still be an active judge. If the Government were not prepared 
to proceed with prosecutions, he would still dismiss them. In the 
absence of an order from the judicial council saying that he must 
give you the 21 days' advance notice of the setting of a calendar of 
criminal cases for trial, he would still be giving you either 6 days or 
3 days or no day's notice. 

How would it change if he were not the chief judge? 

Mr. Child. What you failed to, in my opinion, take consideration 
of is that by removing the name "chief" from one judge, you don't 
just leave it out in limbo. You assign the name "chief" to another 
judge and that judge, thus, given this mantle of authority, besrins to 
administer the problems of the district — not just the division, but the 
district. And those problems, once he has that mantle of authority, 
are his responsibility. 

And Judge Anderson, whom I assume would then be the chief 

judge, would take issue with the way these courts are run and would 

require the imposition of written rules of the court. He handles his 

calendar in a very different way and, as chief judge, he would have 

: great influence on this court. 

Mr. Westphal. I would assume that the adoption of local rules of 
court is a matter that has to be voted by the court, as distinguished 
from being voted by one judge of the court. So it would take the agree- 



92 

ment of the two judges— Judge Ritter and Judge Anderson, you say? 

Mr. Child. Yes. ^ t j j^ 

Mr Westpiial. In order to adopt local rules ot court. 1 don t per- 
ceive under the statute that the chief judge has the power to impose 
his will upon the second judge in the district; am I wrong? 

Mr. Child. Is it not apparent that absent that agreement, the judi- 
cial council of the 10th Circuit steps in ? 

Mr. Westphal. Well, there has apparently been no agreement on 
adoption of local rules of court for these many years in Utah and up 
to this point the judicial council of the 10th Circuit has not stepped 
in order to adopt local rules generally for Utah or even to adopt 
a special rule saying how much notice they must give to the U.S. dis- 
trict attorney prior to setting a group of criminal cases for trial ; isn't 
that true ? 

Mr. Child. This is true. 

Mr. Westphal. You mentioned this matter of the underutilization 
of magistrates. I was interested in reading some correspondence in- 
cluded with Judge Lewis' statement concerning the development of 
the implementation of the Magistrate Act in the district of Utah. 

And in an early letter Judge Eitter advised that he intended to 
make full use of the new magistrate system in Utah, that he out- 
lined the type of duties that would be assigned to the magistrate, 
including the trial of petty offenses, and he also pointed out that in 
his judgment he thought that Utah needed two full-time magistrates 
and he expressed some reservations about the use of part-time magi- 
strates for trial purposes because they would still be able to, as a part- 
time magistrate, practice law. And he felt that that might lead to 
conflict of interest. 

Now, that correspondence also indicates that the judicial confer- 
ence did not agree with his recommendation and did not, in fact, au- 
thorize any full-time magistrates for Utah. It did, however, au- 
thorize — and I think as agreed by Judge Hitter and the other judge — 
to have a halftime or $11,000 magistrate at Salt Lake City and an 
$8,500 part-time magistrate at Ogden with two minor ones, one at 
Cedar City and one at Provo. 

After that was authorized, the magistrates at Cedar City and Provo 
were never appointed so that that authority was repealed by the judi- 
cial conference in about 1973. And then the part-time magistrates 
were not assigned any petty offense jurisdiction. They were assigned 
very little, if any, of the discretionary duties under section 636(b) of 
the statute. 

And, in fact, the magistrates, such as they have had there in Utah, 
have performed basically only the duties that used to be performed 
by a U.S. Commissioner, except for the trial of petty offenses. Then 
at some point in 1974 or so, apparently both of the Utah judges and 
the judicial council of the 10th Circuit felt that the two part-time 
positions at Ogden and Salt Lake City and should be combined into 
a full-time magistrate and that, then, would meet Judge Ritter's initial 
feeling and would probably overcome his perception that a part-time 
magistrate is subjected to a conflict of interest. 

But as I understand the record, the judicial conference still did 
not feel that there should be a full-time magistrate. Is that pretty 
much the situation ? 



93 

Mr. Child. Yes. We're going backward on the magistrate situation 
in Utah. We now only have one half time. We no longer have two half- 
times; we now have one halftime. 

Mr. Westphal. Now, as I understand the statute on the petty offense 
jurisdiction of a magistrate, it requires that the court designate or 
specifically allot and authorize that magistrate to try these petty 
offenses that are permitted under section 3401 of title 18. 

Now, your objection is that Judge Ritter, as chief judge, has not 
authorized that and apparently there's been no agreement between 
Judge Ritter and the other judge that the magistrate should be au- 
thorized petty offense jurisdiction; is that the situation? 

Mr. Child. I have spoken with the other judge, who said to me 
last Friday that he's in favor of the magistrates having this 
jurisdiction. 

Mr. Westphal. I say, there's no agreement between the two of them. 
Judge Ritter is obviously opposed to the exercise of this petty offense 
jurisdiction. 

Mr. Child. Obviously. 

Mr. Westphal. But the statute apparently does give to the judges of 
the court the discretion as to whether they will or will not authorize 
the magistrate to hold this petty offense jurisdiction. 

Mr. Child. Correct. It requires the chief judge to approve it. 

Mr. Westphal. Are you suggesting that this committee should 
determine whether Judge Ritter abused his discretion in failing to 
authorize magistrates in Utah to exercise petty offense jurisdiction? 

Mr. Child. I would suggest, rather, that this committee look at the 
fact that because of his age and predisposition. Judge Ritter has 
merely failed to do it and that the need is present. 

Mr. Westphal. Well, some of these things date back to a time before 
he was even 70 years of age, 

Mr. Child. There we get to predisposition. 

Mr. Westphal. Well, again, you're talking about predisposition. 
You're talking about the man's conduct as a sitting judge and, again, 
doesn't this get us into an area w^here, under the constitution, the 
House has initial jurisdiction? 

You're talking about grounds for removal. You're not talking about 
whether a "grandfather clause" should be repealed, 

Mr. Child. Mr. Giuliani indicates that he would like to answer that, 
if it would be all right. 

Mr. Westphal. "What is your answer, ISIr Giuliani ? 

Mr. Gitjliaxi. INIr. Westphal, I think there is no doubt that there 
may be a question here about Judge Ritter's conduct as a judge. xVnd 
there's no doubt that an awful lot of what Mr, Child put to you in- 
volved his misconduct as a judge. And I think a lot of that is relevant, 
but you have a different question. 

The question is — a question that Avas addressed in 1958 and is being 
addressed again : Does this man or should this man serve with the dual 
function of chief jud^e and sitting judge ? There's no doubt that a 
change in the law will not solve all or nearly all of the problems cre- 
ated by Judge Ritter. But that doesn't mean that it will not solve 
some. 



78-678 O - 76 - 



94 

And the issue that it seems to me is before this committee is whether 
this exemption tliat now exists, for one man and tor one man alone, is 
a valid one. 

For instance, Judge Kitter now presides over grand juries. Over 
the last 5 years, those grand juries have sat for 57 days, which in my 
view, virtually extinguishes the criminal justice system in the ^tate 
of Utah. 

Mr. Westphal. But that's a matter that you have now pending for 
determination by the 10th circuit under your petition for preemptory 
writ of mandamus over which proceeding the 10th circuit has retained 
jurisdiction. 

Mr. GiULiAXi. There's no question about that, I don't cite that for 
you to determine the merits or the demerits of our petition for man- 
damus. I cite it as an example of why Judge Ritter cannot function 
beyond the age of 70 as the chief judge of the State of Utah. 

Mr. Westphal. As I understand it, his views about the functioning 
of a grand jury are not something that he has just believed in in the 
last year or two. This is a problem that went back before he ever 
reached age 70. He has always had different views about the proper 
scope of the grand jury. 

Mr. Giuliani. I don't know whether that is true or isn't true. Mr. 
Child tells me that it isn't. And I don't know what his views of it 
were when he was 69 and 68 and 67. I do know that we now have a 
77-year-old judge presiding over the court in Utah who hasn't con- 
vened a grand jury but for 57 days in the last 5 years. 

Mr. Westphal. All right. Let me ask you : "How many times in the 
last 5 years has the U.S. attorney in Utah, in cooperation with the 
Justice Department, petitioned the 10th circuit for a preemptory writ 
of mandamus requiring Judge Ritter to convene a grand jury?" 

Mr, Giuliani, It happened on at least one other occasion ; didn't it, 
Mr. Child ? At that point he convened a grand j ury for a short period 
of time ; is that correct ? 

Mr. Child. That is true. There was some discussion going on, as I 
recall, in the tenure of C. Nelson Day — preliminary. And it was just 
being discussed in the courthouse that they were about to go after a 
mandamus, at which time he did call a grand jury for a short period. 

Mr. Westphal. Again, do you have a grand jury that sits in the 
northern division? Do you convene one in the northern division? 

Mr. Child. I'm happy you asked me that. Judge Anderson and be- 
fore him, Judge Christensen, have grand juries sitting in the northern 
division at all times. 

And it's a shame. We only really need one grand jury in the State of 
Utah. 

Mr. Westphal. If Judge Ritter is not the chief judge, he would still 
be the presiding judge in the central division and he will still have the 
power to either convene or not to convene a grand jury : isn't that true ? 

Mr. Giuliani. I think that's a question that you have put on sev- 
eral of these things and I think the difference that would be created 
by Judie Ritter no longer being the chief judge would be that the new 
chief judge could initiate rules to solve these problems. 

Chief Judjre Ritter would then be in a position of having to object 
to those rules and they can be resolved by Judicial Council. And I 
think that is a much better posture to be in than having a junior judge 



95 

objecting to the practices of a senior judge and asking him to initiate 
it. 

Mr. Westphal. Did either Judge Christensen, when he was on the 
bench, or Judge Anderson, when he was on the bench, even though 
they were junior, did they ever attempt to initiate local rules and, upon 
the failure of the two of them to agree on local rules of court, refer 
the matter to the Judicial Council under section 332 ? Was that ever 
done, to your knowledge ? 

Mr. Child. To my knowledge, the question of local rules was not 
presented to the Judicial Council. It may have been. However, Judge 
Christensen adopted his own, since he couldn't get along with Judge 
Ritter. Judge Anderson has not seen fit to cross Judge Ritter in that. 

]\Ir. A^'estphal. You also, in your testimony, object, Mr. Child, to 
a trailing calendar practice, which I suppose another word for it is a 
"general calendar." You list the cases in order on the calendar and 
you start trying the first one; when that's out of the way, you try the 
second one, and so on. 

jNIr. Chiij). Correct. 

Mr. Westphal. Now, apparently Judge Ritter believes in that kind 
of a general trailing calendar and you would like either certain settings 
or a little more understanding from the judge as to when he is going 
to commence that calendar in light of your requirements for obtaining 
witnesses ; isn't that correct ? 

Mr. Child. Yes. It is not necessarily the trailing calendar that 
bothers me. It's the lack of notice and the inflexibility of insisting on 
trying the cases in their order. 

Mr. Westphal. Well, again, but he would exercise that power and, 
I assume, make the same rulings if he were an active judge, as he now 
does, even though he did not have the title, chief judge. 

Mr. Child. Oh, yes. He could do things like that and it would upset 
our office. However, I do believe that district court rules could be 
adopted, which he doesn't adopt. He prefers not to have written rules. 

Mr. Westphal. I understand that. The mere repeal of the "grand- 
father clause" isn't going to cure it unless the other judge proposes 
some local rules of court, unless the Judicial Council intervenes upon 
their failure to agree. 

Mr. Child. That's right. 

Mr. Westphal. I have no further questions, Mr. Chairman. 

Senator Bukdick. Thank you very much. Their statements will be 
made a part of the record without objection. 

Senator Burdick. Our next witness is Robert B. Hansen, deputy at- 
torney general. Salt Lake City. Welcome to the committee. Mr. Hansen. 

Mr. Haxsex. Thank you, Chairmann Burdick and Mr. Scott and 
Mr. Westphal. 

STATEMENT OF ROBERT B. HANSEN, DEPUTY ATTORNEY GENERAL. 

SALT LAKE CITY 

Mr. Haistsen. I appreciate the opportunity to testify here today. I 
know the issue is repeal of the grandfather clause for chief judges. Let 
me put the question in perspective. As you know, repeal of this clause 
affects only one man : Judge Willis W. Ritter. In fairness to this com- 
mittee and in fairness to Judge Ritter, you should know that the 



96 

amendniont's repeal to many would be a mild slap at the judge at a 
time he deserves a knockout punch. 

The tenth circuit court of appeals Chief Judge David T. Lewis, who 
supports repeal, says that this hearin.o: should be based on equity and 
reason and not on "whether Judge Ritter is a good, bad, or indifferent 
judge." 

It would be good if we could separate the man and the issue. We can- 
not. If it were not for the judge's questionable actions, there would 
have lieen no effort to find a legal loophole to at least strip him of his 
chief judgeship. 

The fact that Utah even had a chief judge as early as it did is tied 
to the controversy surrounding Judp^e Hitter. When be was appointed 
in 1049, he was the only Federal judge in the State. The appointment 
followed a bitterly debated confirmation hearing. 

The American Bar Association opposed the appointment. Senator 
Arthur Watkins — you'll recall he was the Senate Judiciary Committee 
member who chaired the INIcCarthy hearings — did not block the nomi- 
nation as J)e could have, but he did vote against it. 

Four years later Utah got its second Federal judge : Judge A. Sher- 
man Christensen. It was not because of the caseload that the second 
judge was added. Former Gov. J. Bracken Lee says there is no ques- 
tion the second judgeship was created to offset Judge Ritter. 

Another observer at tlie time said the Utah bar thought some new 
blood might make it a viable court. Is the court viable today ? In late 
1972, as part of research for a book, a questionnaire was sent to mem- 
bers of the Utah bar. The results are shown here on this chart, which 
were computer compiled by a Utah polling firm. 

Three hundred and ninety-seven responded. As to the judge's record, 
13 percent rated it excellent ; 12 percent said it was good ; 8 percent, 
average ; 25 percent said poor ; and the largest category of respondents, 
30 percent, rated his record as very poor. 

They rated the judge's judicial temperament : 6 percent said he was 
always fair; 9 percent said usually fair; 24 percent said he was oc- 
casionally biased; and 49 percent said the judge was usually biased. 

The question was asked : Should Judge Ritter retire as chief judge? 
Sixty-eight percent said "Yes." It is interesting to note that the survey 
spurred the Utah State bar to take an official poll of its own 1 year 
later. They received back 1,049 responses. The poll shows 77 percent of 
the bar wanted Ritter to step down as chief judge, a figure much higher 
than the earlier survey. 

The first questionnaire allowed attorneys to make comments. One 
said, "The judge dispenses judicial tyranny rather than justice," An- 
other said, "Judge Ritter was an excellent legal educator, however, he 
is not equipped with the proper temperament to be a judge." Yet an- 
other said, "he suffers from egomania." 

Ironically, the same criticisms leveled now against Judge Ritter 
were raised 27 years ago at his confirmation hearings. Then, H. Grant 
Ivins. District Director of the Office of Price Administration, testified 
that Ritter, who served as OPA Regional Rent Director, was arbitrary, 
tyrannical, ari'ooant, and abusive. 

It was the FBI report that probably heated up the hearings more 
than anything else. In fact, the report was the key in Senator Watkins 
delaying confirmation for several months. The Senator said the report 



97 

raised serious questions as to the integrity and the morality of the 
nominee. 

The present sheriff of Salt Lake County, Delmar Larsen, was one 
of the FBI agents who wrote that report. Five years ago, a Judge 
Ritter-empaneled grand jury indicted Sheriff Larsen in a case involv- 
ing the feeding of jail prisoners. The U.S. attorney, on orders from 
the Justice Department, refused to sign the indictment, saying the 
jury was improperly constituted. 

U.S. attorney, C. Nelson Day, shortly before he died in an auto- 
mobile accident, told a group of journalism students that the judge 
handpicked the jurors, including foreman Maurice Warshaw. Grand 
jurors, as you know, are supposed to be picked at random. Amazingly, 
the same Maurice Warshaw had served on a previously Ritter- 
empaneled grand jury. 

We looked at the opinions of the attorneys who worked under Judge 
Ritter. What do his judicial superiors think? 

For a 26-year period, the judge was reversed or reversed in part 
in 54 percent of those cases appealed to the circuit. That's worse 
than a coin flip. Utah's other judge and his successor during that 
time were only reversed or reversed in part in 18 percent and 16 
percent of their cases. 

Notice that the judge's bad record gets worse as he passes the age 
of 70, the age he would have stepped down as chief judge, were it 
not for the grandfather clause. What does the circuit court say about 
these reversals? 

A couple of quotes: ""WHiile the record discloses that the case was 
tried in an atmosphere of maximum emotion and a minimum of 
judicial impartiality * * *" and so on. Again : "Throughout the trial, 
the court assumed a hostile attitude toward representatives of the 
United States to such an extent that this court is of the view that a 
fair trial was not had." 

Now, on this third chart we have here a graph of the number of 
writs filed against Judge Ritter since he turned age 70. I've compared 
Judge Ritter's record with the man who has the next worse record 
in the 10th circuit. Judge Chandler of Oklahoma. 

During the same time Judge Christensen and his successor, Judge 
Alden J. Anderson, were only filed on once. The other 20 judges of 
the circuit received a total of 99 such writs. It is evident that Judge 
Ritter's conduct is objected to over 5 times as often as the average 
of all other judges and 30 times as often as the Utah district court 
judfife. 

Since Judge Ritter turned 70 years of a are, he has had 39 writs filed 
against him, of which 8 were granted. He has served 23 percent of 
his time on the bench since turnin.qr age 70 and has received 78 percent 
of said writs during this time. Of all of the writs that have been 
granted against Judge Ritter from the time he has been on the bench, 
73 percent of those writs granted were during the time that Judge 
Ritter has been 70 vears of age and older. 

T^Hiat do some of the attorneys sav when they ask the judge to be 
removed from a case? One said, "The Honorpble Willis W. Ritter 
is so antagonistic and hostile to the affiant * * * that it will be im- 
possible for Judge Ritter to preside over this case * * * ." 



98 

In 1972, Salt Lake City petitioned to have the judge removed 
from their case whicii involved tlie police commissioner who is an 
attorney. The city argued that Judge Kitter improperly belittled 
the commissioner years earlier during a case he was arguing. 

The commissioner lost in Kitter's court and the ruling was reversed. 
Since then, the city says the judge held a personal grudge and feeling 
of animosity against the atliant * * * . 

The most serious charge against Judge Ritter is that he has certain 
favorite or "pet" attorneys who appear in his court ; that certain law 
firms enjoy a better chance of winning than others. 

As deputy attorney general, I must live with that reality in 
protecting the State's interests. Utah has often gone to the additional 
expense of hiring an outside attorney, usually from the Salt Lake 
firm of Van Cott, Bagley, whenever we have an important case before 
Judge Ritter. 

In fact, this past January, I told Utah's legislative appropriation 
committee that that was why we needed a $50,000 supplemental 
appropriation. We received it. 

A recent Utah magazine article that I have here quoted an attorney 
who said, "Knowledgable clients will go to certain lawyers because 
they are more likely to win — in front of Ritter — or at least get kinder 
treatment and favorable rulings." The charge, if true — and I have 
testified and do testify that it is— is a shocking commentary on Utah 
legal community. Instead of censoring a bad judge, many attorneys 
would instead take advantage of the bias, if they enjoy "pet" status. 
It's much like a parent whose son chops down the neighbor's trees. 
Instead of correcting the child's fault, the parent takes advantage of 
it and sells the trees for firewood. The parent's crime is greater than 
the child's. 

Let me explain further by moralizing a bit xiiore. If a judge needed 
the services of a law firm for personal legal help, it would be wise for 
him to select a firm with little or no Federal practice. However, if 
he did retain a law firm which often engages in Federal practice, it 
would then be wise for the judge to bow out of any cases involving 
that law firm. 

Judge Ritter has failed to follow such a standard. In fact, in the 
past few years he or his family has employed the services of no less 
than three Salt Lake City firms — Van Cott, Bagley, Cornwall & 
McCarthy: Jones, Waldo, Holbrook & McDonough; and Worsley, 
Snow & Christensen. 

Each of these firms have a very substantial Federal practice. The 
court records show that Judge Ritter continued to hear cases presented 
by these law firms at the same time they were representing him or 
his family. 

The record also curiously shows that rarely did these three firms 
engage in trials against each other. I could ^o on and on and talk about 
other areas involvin<T Ritter's conduct as cliief judge, such as the ab- 
sence of court rules. His is the only district in our circuit without rules 
of court. I have personally observed on many occasions where this has 
led to fiascoes, a few of them reported by the press : his orders restrict- 
ing access to court records, one of which our office was involved with; 
his orders undulv restricting press coverage of his court. I hope you 
or your staffs will take the time to read parts of this State brief and the 



99 

magazine that I have here that Avould give further specifics on these 
matters. 

[The above referred to documents follow.] 

[Note. — Magazine article is reproduced as exhibit to statement by 
Senator Garn.] 



100 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 



No. 74-1036 



STATE OF UTAH, 

Plaintiff, 



vs. 



WILLIS W. RITTER, CHIEF JUDGE IN AND 
FOR THE UNITED STATES DISTRICT 
COURT IN AND FOR THE STATE OF UTAH, 

Defendant. 



ON PETITION FOR WRIT OF MANDAMUS OR IN 
THE ALTERNATIVE FOR A WRIT OF PROHIBITION 



BRIEF IN SUPPORT OF THE PETITION FOR 
THE STATE OF UTAH 



VERNON B. ROMNEY, 

Attorney General 

ROBERT B. HANSEN, 
Deputy Attorney General 

JOSEPH P. McCarthy, 

Assistant Attorney General 

RANDOLPH S. COLLINS, 
Assistant Attorney General 

Attorneys for Plaintiff 



101 



TABLE OF CONTENTS 

Page 

JURISDICTION 1 

QUESTIONS PRESENTED 2 

STATEMENT OF FACTS 2 

ARGUMENT 4 

POINT I. THE STAY OF CIVIL DISCOVERY 
PROCEEDINGS TO ALLOW THE CRIMINAL 
CASE TO BE DISPOSED OF FIRST SHOULD 
HAVE BEEN GRANTED BY THE COURT .... 4 

POINT II. THE MOVANTS FOR DISCOVERY IN 
THE CIVIL ACTION HERE FAILED TO 
MEET THE BURDEN NECESSARY TO SHOW 
"GOOD CAUSE," HENCE THE "PUBLIC IN- 
TERESTS" AND THE "INTERESTS OF JUS- 
TICE" REQUIRED GRANTING OF THE STAY 
OF CIVIL PROCEEDINGS UNTIL THE STATE 
CRIMINAL CASE IS CONCLUDED 8 

POINT III. THE UNLIMITED SCOPE OF CIVIL 
DISCOVERY ALLOWED BY THE RESPON- 
DENT JUDGE WAS CONTRARY TO LAW 
AND THIS COURT SHOULD DIRECT THE 
RESPONDENT TO LIMIT IN THE FUTURE 
SUCH CIVIL DISCOVERY IN ADDITION TO 
ORDERING THE DELAY REQUESTED UN- 
TIL THE TRIAL OF THE CRIMINAL CASE .. 23 

POINT IV. CIVIL DISCOVERY IS APPLICABLE 
TO CIVIL CASES ONLY AND NOT CRIM- 
INAL CASES 30 

POINT V. THE BURDEN OF SHOWING "GOOD 
CAUSE" FOR INSPECTION OR DESIGNAT- 
ING SPECIFIC EVIDENCE HAS NOT BEEN 
MET IN THIS CASE AS ALREADY SHOWN 
OR BY STATE LAW 37 



102 
TABLE OF CONTENTS— Continued 



Page 



POINT VI. PROSECUTING ATTORNEY'S 
NOTES, MEMORANDA, FILE OR "WORK 
PRODUCT" ARE NOT SUBJECT TO DISCOV- 
ERY PROCEDURE 39 

POINT VII. IT IS NOW CLEAR THAT NEITHER 
THE FEDERAL NOR THE STATE COURTS 
WILL COMPEL BY CIVIL DISCOVERY 
METHOD THE DISCLOSURE OF MATERIAL 
FORMING THE BASIS OF CRIMINAL PROS- 
ECUTION 41 

CONCLUSION 43 

Table of Cases Cited 

Anderson v. State, 207 Tenn. 486, 341 S. W. 2d 385 39 

Anderson v. State, 239 Ind. 372, 156 N. E. 2d 384 40 

BaUey v. State, 227 Ark. 889, 302 S. W. 2d 796, 355 U. S. 
851, 2 L. Ed. 2d 59, 78 S. Ct. 77 30,31 

Bedami v. State, 112 So. 2d 284, 361 U. S. 883, 4 L. Ed. 

2d 119, 80 S. Ct. 153 41 

Brown v. Commonwealth, 90 Va. 671, 19 S. E. 447 40 

Campbell v. Eastland, 307 F. 2d 478, 371 U. S. 955, 83 S. 
Ct. 502, 9 L. Ed. 2d 502 4, 9, 13 

Campbell v. United States, 174 A. 2d 87 40 

Dinsmore v. State, 61 Neb. 418, 85 N. W. 445 41 

Edens v. State, 235 Ark. 178, 359 S. W. 2d 432, 371 U. S. 

968, 9 L. Ed. 2d 538, 83 S. Ct. 551 31, 40 

Edens v. State, 235 Ark. 996, 363 S. W. 2d 923 31 

Erving v. State, 174 Neb. 90, 116 N. W. 2d 7, 375 U. S. 
876, 11 L. Ed. 2d 121, 84 S. Ct. 151 41 

Fuller V. United States, 65 A. 2d 589 41 

11 



103 

TABLE OF CONTENTS— Continued 

Page 

Hopper V. People, 152 Colo. 405, 382 P. 2d 540 40 

Howard v. State, 174 Neb. 90, 116 N. W. 2d 7, 375 U. S. 

876, 11 L. Ed. 2d 121, 84 S. Ct. 151 41 

Jackman v. State, 140 So. 2d 627 41 

Johns V. State, 157 Fla. 18, 24 So. 2d 708 41 

Linder v. State, 156 Neb. 504, 56 N. W. 2d 734 38 

McAden v. State, 155 Fla. 523, 21 So. 2d 33, 326 U. S. 

723, 90 L. Ed. 429, 66 S. Ct. 28 41 

Melchor v. State, 404 P. 2d 63 39 

Metros v. U. S. District Court, 441 F. 2d 313 1 

Peel V. State, 154 So. 2d 910 40 

Penn. v. Auto. Ins. Co., 27 F. Supp. 336 18 

People V. Bermis, 2 Cal. 270, 40 P. 2d 823 40 

People V. Calandrillo, 29 Misc. 2d 491, 215 N. Y. S. 2d 

361 38 

People V. Cathey, 186 Cal. App. 2d 217, 8 Cal. Rptr. 694 40 

People V. Cooper, 53 Cal. 2d 755, 3 Cal. Rptr. 148 39 

People V. Gatti, 167 Misc. 545, 4 N. Y. S. 2d 130 39 

People V. Giles, 31 Misc. 2d 354, 220 N. Y. S. 2d 905 .... 40 

People V. Leahey, 26 Misc. 2d 438, 207 N. Y. S. 2d 619 .. 38 

People V. Lindsay, 227 Cal. App. 482, 38 Cal. Rptr. 755 32 

People V. MarshaU, 6 N. Y. 2d 823, 188 N. Y. S. 2d 213, 
159 N. E. 2d 698 38,39 

People V. MarshaU, 5 App. Div. 2d 352, 172 N. Y. S. 2d 
237, 6 N. Y. 2d 823, 188 N. Y. S. 2d 213, 159 N. E. 

2d 698 41 

ill 



104 

TABLE OF CONTENTS— Continued 

Page 

People V. Martinez, 15 Misc. 2d 821, 183 N. Y. S. 2d 588 39 

People V. Murphy, 412 lU. 458, 107 N. E. 2d 748, 344 
U. S. 899, 97 L. Ed. 695, 73 S. Ct. 281, 350 U. S. 
865, 100 L. Ed. 767, 76 S. Ct. 108 40 

People V. NewviUe, 220 Cal. App. 2d 267, 33 Cal. Rptr. 
816 38 

.People V. Ratten, 39 Cal. App. 2d 267, 102 P. 2d 1097 .. 31 

People V. Terry, 57 Cal. 2d 538, 21 Cal. Rptr. 185, 370 
P. 2d 985, 375 U. S. 960, 11 L. Ed. 2d 318, 84 S. 
Ct. 446 38 

People V. Wilkins, 135 Cal. App. 371, 287 P. 2d 555 32 

Raulerson v. State, 102 So. 2d 281 41 

Redmond v. City Court of Salt Lake City, 17 Utah 2d 

95, 404 P. 2d 964 42 

Rosier v. People, 126 Colo. 82, 247 P. 2d 448 38 

Securities & Exchange Comm'n v. Control Metals Corp., 

57 F. R. D. 56 9 

Securities & Exchange Comm'n v. Great Plains Ac- 
ceptance Corp., 35 F. R. D. 24 12 

State V. American Stock Transfer Co., et al., (Criminal 
case pending in Utah State District Court) 3 

State V. Aubuchon, 381 S. W. 2d 807 38, 41 

State V. Baders, 141 Kan. 683, 42 P. 2d 943 35 

State V. Brown, 360 Mo. 104, 227 S. W. 2d 646 39 

State V. Bunk, 63 A. 2d 842 40 

State V. Cocheo, 24 Conn. Sup. 377, 190 A. 2d 916 33 

State V. Cochran, 3 Ohio St. 2d 125, 209 N. E. 2d 437 .. 35 
State V. Colvin, 81 Ariz. 388, 307 P. 2d 98 39, 40 

iv 



105 

TABLE OF CONTENTS— Continued 

Page 

State V. Fox, 122 Vt. 251, 169 A. 2d 356 3b 

State V. Furthmyer, 128 Kan. 317, 277 P. 1019 40 

State V. GiUiam, 351 S. W. 2d 723, 376 U. S. 914, 11 L. 

Ed. 2d 612, 84 S. Ct. 670 39 

State V. Goldberg, 261 N. C. 181, 134 S. E. 2d 334, 377 

U. S. 978, 12 L. Ed. 2d 747, 84 S. Ct. 1884 39 

State V. Goodman, 207 Kan. 155, 483 P. 2d 1040 34 

State V. Haddad, 221 La. 337, 59 So. 2d 411 41 

State V. Hale, 371 S. W. 2d 249 39 

State V. Hill, 193 Kan. 512, 394 P. 2d 106 40 

State V. Jeffries, 117 Kan. 742, 232 P. 873 33 

State V. Jones, 282 Kan. 31, 446 P. 2d 851 35 

State V. Kelton, 299 S. W. 2d 493 40 

State V. Laird, 79 Kan. 681, 100 P. 637 41 

State V. Lee, 173 La. 966, 139 So. 302 39 

State V. Martinez, 21 Utah 2d 187, 442 P. 2d 943 42 

State V. Marzbanian, 2 Conn. Cir. 312, 192 A. 2d 721, 

197 A. 2d 944 40 

State V. MiUer, 88 Ohio L. Abs. 533, 176 N. E. 2d 296, 
172 Ohio St. 554, 18 Ohio Ops. 2d 93, 179 N. E. 

2d 53 41 

State V. Richette, 342 Mo. 1015, 119 S. W. 2d 330 39 

State V. Roy, 23 Conn. Sup. 342, 183 A. 291 41 

State V. Salvatore, 23 Conn. Sup. 459, 184 A. 2d 551 .... 41 

State V. Stack, 118 Utah 128, 221 P. 2d 852 42 

State V. Stump, 254 Iowa 1181, 119 N. W. 2d 210, 375 

U. S. 853, 11 L. Ed. 2d 80, 84 S. Ct. 113 38 

V 



106 

TABLE OF CONTENTS— Continued 

Page 
State V. Superior Court, 208 A. 2d 832 40 

State V. Tune, 13 N. J. 203, 98 A. 2d 881 39, 40 

State V. Wallace, 97 Ariz. 296, 399 P. 2d 909 38 

State V. Williams, 211 La. 782, 30 So. 2d 834 41 

State V. Zimmaruck, 128 Conn. 124, 20 A. 2d 613 40 

State ex rel. Keast v. District Court, 135 Mont. 545, 342 
P. 2d 1071 37,38 

State ex rel. Mahoney v. Superior Court, 78 Ariz. 74, 
275 P. 2d 887 37 

State ex rel. McLetchie v. Laconia District Court, 205 
A. 2d 534 40 

State ex rel. Regan v. Superior Court, 102 N. H. 224, 

153 A. 2d 403 40 

United States v. A. B. Dick Co., 7 F. R. D. 442 11, 19 

United States v. Bridges, 86 F. Supp. 931 18 

United States v. Garsson, 291 F. 646 43 

United States v. Jordan, 399 F. 2d 615 16 

United States v. Kessler, 61 F. R. D. 11 17 

United States v. Kordel, 397 U. S. 1, 25 L. Ed. 2d 1, 90 
S. Ct. 763 26 

United States v. Leta, 60 F. R. D. 127 15 

United States v. Linen Supply Institute, 18 F. R. D. 
452 11 

United States v. Maine Lobstermen's Assn., 22 F. R. D. 
199 11 

United States v. One 1964 Cadillac Coupe, 41 F. R. D. 
352 21 

United States v. Steffes, 35 F. R. D. 24 12 

vi 



10- 



TABLE OF CONTENTS— Continued 

Page 

United States ex rel. Touhy v. Ragen, 340 U. S. 462, 
95 L. Ed. 417, 71 S. Ct. 416 24 

Urga V. State, 104 So. 2d 43 41 

Walker v. People, 126 Colo. 135, 248 P. 2d 287 37 

Walker v. Superior Court, 155 Cal. App. 2d 134, 317 P. 
2d 130 38 

Yannacone v. Municipal Court, 222 Cal. App. 2d 72, 34 

Cal. Rptr. 838 32,39 

Federal Statutes 

Jencks Act, 18 U. S. C. A., § 3500 4 

Nationality Act, 1940, § 338, 8 U. S. C. A. § 738, 18 

U. S. C. A. §§ 371, 1015(a) 18 

Sherman Anti-Trust Act 19 

8 U. S. C. A. § 738 18 

18 U. S. C. A. § 371, 1015(a) 18 

28 U. S. C. A. § 723(c) 20 

§ 1651 1 

State Statutes 
California, Code of Civil Procedure 31, 32 

Kansas, Code of Civil Procedure, R. S. 60-2850; 62- 

1413 33 

Kansas, Code of Criminal Procedure, 1970 34 

Ohio, Revised Code, § 2317-33 35, 36 

Utah State Statutes 
Utah Code Ann. § 67-16-4 (1953) 30 

vii 



108 

TABLE OF CONTENTS— Continued 

Page 

Utah Code Ann. § 105-21-9(1) (1943) 42 

Utah Code Ann. § 77-29-9 (1953) 42 

Federal Court Rules of Procedure 

U. S. Court of Appeals, Rule 21 1 

Rules of Civil Procedure, 28 U. S. C. A.: 

Rule 26 18 

Rule 26(c) 2 

Rule 30 11 

Rule 33 18, 20 

Rule 34 9 

Rule 35(b) 2 

Rules of Criminal Procedure, 18 U. S. C. A. 11 

Supreme Court Rules of Evidence, Rule 509(a), 34 
L. Ed. 2d 54 27 

Advisory Committee Notes, 34 L. Ed. 2d 54, 55, 56 29 

Regulations 

Title 28, Code of Federal Regulations (1973), Judicial 
Administration 30 

Department of Justice Rules 

Department of Justice Rules Covering Judicial Ad- 
ministration, Chapter I, Code of Federal Regula- 
tions, Title 28, 1973 29 

Part 16 29 

Subpart B 29 

§§ 16.22, 16.23, 16.24 29 

viii 



109 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 



No. 74-1036 



STATE OF UTAH, 

Plaintiff, 



vs. 



WILLIS W. RITTER, CHIEF JUDGE IN AND 
FOR THE UNITED STATES DISTRICT 
COURT IN AND FOR THE STATE OF UTAH, 

Defendant. 



ON PETITION FOR WRIT OF MANDAMUS OR IN 
THE ALTERNATIVE FOR A WRIT OF PROHIBITION 



BRIEF IN SUPPORT OF THE PETITION FOR 
THE STATE OF UTAH 



JURISDICTION 



This Court has jurisdiction and authority to issue the 
requested reUef of the within petition pursuant to U. S. 
Code, Title 28, Section 1651, Rule 21 of the Rules of Pro- 
cedure for the United States Court of Appeals, and inherent 
powers of supervision over local courts. Metros v. U. S. Dis- 
trict Court for District of Colorado, 441 F. 2d 313 (10th 
C. C. A., 1971). 



no 



QUESTIONS PRESENTED 

1. Is petitioner entitled to a continuance of the depo- 
sition to be taken of an Assistant Attorney General until 
the disposition of the State Criminal Court proceeding on 
the basis of prejudice to that prosecution? 

2. Is petitioner entitled to a protective order to limit 
the discovery available to the defendant in the subject State 
criminal case to that permitted under applicable State law? 

STATEMENT OF 7ACTS 

1. Petitioner has instituted criminal proceedings in 
the District Court of Salt Lake County, State of Utah, 
against one John J. Badger and others. See Exhibit "A", 
made a part of the petition. 

2. On January 15, 1974, WiUiam J. Ungricht, Assist- 
ant Attorney General, was served with a subpoena to com- 
pel his attendance and production of documents at a depo- 
sition scheduled for January 31, 1974. The subpoena duces 
tecum is attached to the petition marked Exhibit "B". It di- 
rects the Assistant Attorney General Ungricht to "bring 
with you all books, transcripts, documents, notes and mem- 
oranda concerning Flying Diamond Corporation which are 
in your possession." 

3. On January 23, 1974, the Attorney General of the 
State of Utah moved the Honorable Willis W. Ritter for a 
motion, pursuant to Rule 35(b) and Rule 26(c), F. R. C. P., 
to quash the subpoena, or in the alternative, to issue a 
protective order. This motion wiU be found as Exhibit 
"C" to the petition. The grounds of this motion are 
that the subpoena calls for the production of docu- 



Ill 



merits, memoranda and work products of the Utah 
State Attorney General, and his staff, which have been 
assembled in connection with the criminal investigations; 
that as Assistant Attorney General he prepared and inter- 
viewed all concerned in connection with his duties and is 
presently serving as prosecutor in the pending criminal ac- 
tion entitled, "State v. American Stock Transfer Co., Jay 
Victor Miller, Evelyn Mitchener, Michael Halfhill and John 
J. Badger"; that the attorney seeking the deposition is 
attorney of record for the defendant Badger in the State 
case, but represents a different party in the federal civil 
action; that the deposition is sought not only for the pur- 
pose of obtaining evidence in that case, but for use in the 
pending State criminal action. A hearing was held by the 
lower court and on January 28, 1974, the motion was de- 
nied. 

On January 30, 1974, the petitioner, through its Attor- 
ney General, moved the lower court for an order that the 
said deposition be continued until after the trial of the 
aforesaid criminal case. The grounds of this motion 
are that the taking of said deposition will be prejudicial 
to the public interests and rights of the State of Utah inas- 
much as the said deposition will enable counsel in the 
State criminal case to obtain discovery beyond that al- 
lowed by the laws of the State of Utah. This motion 
is attached to the petition and is marked Exhibit "E", Jan. 
30, 1974. The lower court denied this motion on February 
1, 1974, and a copy of the order is attached to the petition 
marked Exhibit "F". 

On page 3 of the petition, it is stated: "It is the strong 
belief and opinion of the undersigned that the relief re- 



112 



quested in this petition is not only critical to avoid prejudice 
and injury to petitioner in the instant criminal proceeding 
but that other criminal proceedings will be prejudiced in 
the future if [a] defendant's counsel can utilize federal civil 
suits as a means of obtaining discovery in criminal cases 
beyond that allowed by Rule 16, R. F. C. P., and other 
applicable laws," whether such suits are bona fide or not. 

POINT I. 

THE STAY OF CIVIL DISCOVERY PRO- 
CEEDINGS TO ALLOW THE CRIMINAL 
CASE TO BE DISPOSED OF FIRST SHOULD 
HAVE BEEN GRANTED BY THE COURT. 

Campbell v. Eastland, 307 F. 2d 478 (5th C. C. A. 
1962, cert, denied, 371 U. S. 955, 83 S. Ct. 502, 9 L. Ed. 2d 
502), is the leading case. There the Director of Internal 
Revenue refused to produce reports of agents who had in- 
vestigated the tax frauds; U. S. Attorney having been so 
ordered by his superiors to make such refusal, he, therefore, 
was not defiant, acted in "good faith," in a civil discovery 
proceeding. The Director had asked for a stay of civil dis- 
covery proceedings to allow the criminal case to be disposed 
of first, claiming privilege of the reports, the motion for 
discovery being a "cover-up" to allow taxpayers to inspect 
criminal files for information not available to them before 
trial of the criminal case except under the strict rules of 
criminal procedure, and the Jencks Act, 18 U. S. C. A. 
§ 3500. The District Court granted the taxpayers' motion 
upon the ground that, if a civil suit is bona fide, it should 
be kept separate from the criminal action. The Circuit 
Court at pages 483, 485-487, said: 



113 



". . . ITiis is the fatal defect in the proceedings 
below (p. 483). 



"There are times, however, when the Government, 
because it is the Government, must withhold or 
postpone full disclosure. This is such a time (p. 
485). 



". . . all discovery rules exempt privileged mat- 
ter (p. 485). 

• • • • • 

"In handling motions for a stay of a civil suit 
until the disposition of a criminal prosecution on 
related matters and in ruling on motions under the 
civil discovery procedures, a judge should be sensi- 
tive to the difference in the rules of discovery in 
civil and criminal cases" (p. 387; italics supplied). 



". . . To obtain discovery of work-products, there 
must be an unusually strong showing of good cause 
to justify discovery of such writings; they are not 
absolutely privileged. Hickman v. Taylor, 1947, 
329 U. S. 495, 67 S. Ct. 385, 91 L. Ed. 451. The 
District Director, however, has never claimed ab- 
solute privilege; he has asked only that discovery 
be postponed. The real issue, therefore, is whether 
there was good cause for the order when and as it 
was issued (p. 486; italics supplied). 

". . . There is a clear-cut distinction between 
private interests in civil litigation and the public 
interest in a criminal prosecution, between a civil 
trial and a criminal trial, and between the Federal 
Rules of Civil Procedure and the Federal Rules of 
Criminal Procedure. But these distinctions do not 
mean that a civil action and a criminal action in- 
volving the same parties and some of the same 



114 



issues are so unrelated that in determining good 
cause for discovery in the civil suit, a determina- 
tion that requires the v/eighing of effects, the trial 
judge in the civil proceeding should ignore the 
effect discovery would have on a criminal proceed- 
ing that is pending or just about to be brought. 
The very fact that there is a clear distinction be- 
tween civil and criminal actions requires a govern- 
ment poUcy determination of priority: which case 
should be tried first. Administrative policy gives 
priority to the public interest in law enforcement. 
This seems so necessary and wise that a trial judge 
should give substantisd weight to it in balancing 
the policy against the right of a civil litigant to 
a reasonably prompt determination of his civil 
claims or Uabihties" (p, 487; itaUcs supplied). 



The Court then pointed out that the criminal rules of dis- 
covery are far more restrictive than the civil rules. Con- 
tinuing, the Court, at page 487, said: 

"... A litigant should not be allowed to make use 
of the liberal discovery procedures applicable to a 
civil suit as a dodge to avoid the restrictions on 
criminal discovery and thereby obtain documents 
he would not otherwise be entitled to for use in his 
criminal suit. Judicial discretion and procedural 
flexibility should be utilized to harmonize the con- 
flicting rules and to prevent the rules and policies 
appHcable to one suit from doing violence to those 
pertaining to the other. In some situations it may 
be appropriate to stay the civil proceedings ..." 
(p. 487; italics suppUed). 

Here, however, the trial judge seemed to think he had no 
discretion — once discovery was moved for in a civil suit. 

6 



115 



The Court, at page 488, further said: 

". . . the trial judge found or — expressed the opin- 
ion — that 'to be honest about it' the purpose of 
the discovery was 'to see about [the] defenses in 
a criminal case.' There the proceedings should have 
ended, with dismissal of the motion or a stay of 
the proceedings." 

"Instead, the trial judge held that the suit for 
refund was a bona fide suit, and as such, it was 
completely 'independent' of the criminal case. If 
a taxpayer files suit in bad faith, it is an abuse of 
process; but his good faith on a suit for refund does 
not sanctify the motion for discovery. We take the 
view that whether or not the suit, as distinguished 
from the motion, was bona fide, the effect of grant- 
ing the motion was to give pre-trial discovery of 
documents denied the taxpayer in the criminal case 
. . . It was an open invitation to taxpayers under 
criminal investigation to subvert the civil rules 
into a device for obtaining pre-trial discovery 
against the Government in criminal proceedings. 
(Itahcs supplied). 

This case in effect holds that civil discovery is not in- 
tended to be a "backdoor" method of accomplishing crim- 
inal discovery, or to subvert the limitations on it. 

The Court, at page 490, stated: 

"Summarizing, in balancing the individual's 
right to prepare his case promptly against the 
pubHc interest in withholding the full disclosure 
sought here, the following elements tip the scales 
in favor of the District Director: (1) discovery 
would give the taxpayer possession of reports de- 
nied him in the criminal proceeding; (2) there is 
reason to think, 'to be honest about it', that the mo- 



116 



tion for discovery (if not the suit for refund) was 
for the purpose of obtaining the otherwise unob- 
tainable reports; (3) the Government was not the 
moving party seeking to recover while withhold- 
ing information that might defeat recovery; it 
assessed no deficiency and asserted no counter- 
claim; (4) the District Director did not claim an 
absolute privilege but asked only for a reasonable 
delay; (5) the record is, bare of any showing that 
a reasonable delay would have prejudiced the tax- 
payer in the civil suit; (6) limited discovery by in- 
terrogatories and other remedies were available to 
the taxpayer; ... In short, the taxpayer failed to 
show good cause for the order of discovery issued 
in this case. 



". . . The United States Attorney, however, 
acted under instructions from his superiors, made a 
good faith refusal, and respectfully explained his 
legal position to the Court. Notwithstanding the 
trial judge's indignation, therefore, we do not have 
before us a defiant litigant whose defiance as an 
agent of the United States, is particularly irre- 
sponsible and ill-becoming." (Italics supplied). 

POINT II. 

THE MOVANTS FOR DISCOVERY IN THE 
CIVIL ACTION HERE FAILED TO MEET 
THE BURDEN NECESSARY TO SHOW 
"GOOD CAUSE," HENCE THE "PUBLIC IN 
TERESTS" AND THE "INTERESTS OF JUS- 
TICE" REQUIRED GRANTING OF THE STAY 
OF CIVIL PROCEEDINGS UNTIL THE 
STATE CRIMINAL CASE IS CONCLUDED. 

8 



117 



The litigants in the following cases, seeking to obtain 
in pending civil litigation, discovery by subpoena duces 
tecum which had been secured for use in criminal prosecu- 
tions then pending or about to be instituted, failed com- 
pletely to show the necessary "good cause'' required for the 
production of information under Rule 34. 

In the Campbell v. Eastland case, supra, the Court in 
some detail made it clear that the determination of "good 
cause" for discovery in the civil suit, requires the weighing 
of effects, and the trial judge in the civil proceeding should 
not ignore the effect discovery would have on a criminal 
proceeding that is pending. The Court said: 

". . . If a taxpayer files suit in bad faith, it is an 
abuse of process; but his good faith on a suit for 
refund does not sanctify the motion for discovery. 
We take the view that whether or not the suit, as 
distinguished from the motion, was bona fide, the 
effect of granting the motion was to give pre-trial 
discovery of docimients denied the taxpayer in the 
criminal case ... It was an open invitation to tax- 
payers imder criminal investigation to subvert the 
civil rules into a device for obtaining pre-trial dis- 
covery against the Government in criminal pro- 
ceedings." 307 F. 2d at page 288. 

"... A litigant should not be allowed to make use 
of the liberal discovery procedures applicable to 
a civil suit as a dodge to avoid the restriction on 
criminal discovery and thereby obtain documents 
he would not otherwise be entitled to for use in 
his criminal suit." Id., at page 487. (Italics sup- 
plied.) 

Securities and Exchange Comm'n v. Control Metals 
Corp., (D. C, S. D. N. Y. Civ. Div. 1972), 57 F. R. D. 56, 

9 



118 



was an action for injunctive relief. Sachs, one of the defen- 
dants, served notices of deposition on four witnesses and 
plaintiff moved for protective order to stay taking of depo- 
sitions pending disposition of criminal proceedings. In ab- 
sence of showing by defendant that he in fact would be 
prejudiced by the delay, the District Court, at page 57, said: 

". . . In that posture of affairs, defendant Sachs 
served notices of deposition on four witnesses who, 
as the Court is informed, are likely to be called as 
Government witnesses in the current Grand Jury 
proceeding and in the expected criminal action. The 
Commission moved pursuant to F. R. Civ. P. 26(c) 
for a protective order to stay the taking of those 
depositions pending disposition of the criminal 
proceeding. 

"The Commission invokes the general policy 
that the Court should not permit civil discovery 
proceedings to be used to aid a party in a related 
criminal matter, Campbell v. Eastland, 307 F. 2d 
478 (5th Cir. 1962), cert. den. 371 U. S. 955, 83 S. 
Ct. 502, 9 L. Ed. 2d 502 (1963), United States v. 
One 1964 Cadillac Coupe DeViUe, 41 F. R. D. 352 
(S. D. N. Y. 1966). Defendant Sachs, with com- 
mendable candor, concedes that such hoped-for 
aid in the criminal matter was a principal moti- 
vation in seeking to take these depositions." 

The Court granted the stay pending disposition of the 
criminal proceedings. 

The fact that this was an action for injunctive relief 
offered no exception to the delay rule since there was no 
showing of prejudice to defendant Sachs by such procedure 
taken by the Court. 

10 



119 



United States v. Maine Lobstermen's Assn., (D. C, S. 
D. Maine, 1958), 22 F. R. D. 199, was a civil action by the 
United States. The defendants sought to take the deposi- 
tions under Rule 30, F. R. Civ. Proc., 28 U. S. C. A. of five 
persons who had appeared before the grand jury which had 
returned an indictment in a companion criminal case against 
the same defendants. The Government filed a motion for 
an order deferring the taking of the deposition, relying on 
United States v. A. B. Dick Co., 7 F. R. D. 442, and United 
States v. Linen Supply Institute, 18 F. R. D. 452, in both 
of which the courts refused to compel the Government to 
answer the interrogatories until companion criminal anti- 
trust proceedings had been disposed of. The defendants 
were unable to indicate any prejudice would result to them 

in their civil proceeding if the Court granted deferment. The 
Court determined that the defendants in the criminal ac- 
tions cannot take advantage of the coincidence of a com- 
panion civil case to obtain prosecution evidence which is 
not available under the Fed. Rules of Crim. Proc., 18 U. S. 
C. A. 

The District Court, at pages 200-201, said: 

". . . As the Court reads these opinions, the 
requested deferments were granted by the courts 
because the patent purpose of the interrogatories 
was to obtain information through the medium of 
the civil proceedings to which the defendants were 
not entitled, or in a manner in which the defen- 
dants were not entitled, under the criminal rules, 
the courts being satisfied that no showing had been 
made that prejudice to the rights of the defendants 
in the preparation of their defense in the civil pro- 
ceedings would result from the deferment. 

11 



120 



"Counsel for the Government have also called 
to the Court's attention the unreported ruling of 
the District Court for the District of Columbia in 
United States v. Parke, Davis & Company, Civil 
Number 1064, June 26, 1957, which apparently in- 
volved the precise question presented to this Court 
upon this motion and in which the court ruled from 
the bench that it would not permit the requested 
depositions to be taken until after the trial of the 
criminal case. 

• • • • • 

"... no prejudice to the defendants in the 
preparation of their defense in this civil action 
will result, and being of the opinion that defen- 
dants in criminal actions caimot properly take ad- 
vantage of the coincidence of a companion civil case 
to obtain prosecution evidence which would not 
otherwise be available to the defendants under the 
Federal Rules of Criminal Procedure, 18 U. S. C. A., 
for use in the criminal case, the taking of the depo- 
sitions . . . will be deferred until the companion 
criminal case against these same defendants in 
[the criminal case] in this Court ... is disposed 
of." (Italics supplied.) 

United States v. Steffes, a criminal action. No. Crim. 
240, and S. E. C. v. Great Plains Acceptance Corp., a civil 
suit, No. Civ. 403, 35 F. R. D. 24, (D. C, D. Montana, 
Billings Div. 1964), arose out of the same conduct and 
transactions which were the subject of the civil action. Mo- 
tions were made by the government in the criminal case 
and by the S. E. C. in the civil suit to stay proceedings in 
the civil proceedings and to quash the subpoenas to take 
depositions by the defendant until the disposal of the crim- 
inal proceedings. 

The defendant Steffes moved to strike the pleading of 

12 



121 



the S. E. C. for the reason it was not a party to the criminal 
action, that the court may not consolidate civil and criminal 
proceedings and issue an order upon such consolidation of 
these proceedings, and to vacate the stay of the civil suit 
and to dismiss the proceedings upon the ground of no cause 
shown for the issuance of the stay order. 

It was admitted that the Federal Rules of Criminal 
Procedure contain no provision authorizing the desired 
depositions. To a large extent both parties reUed on the 
same case of Campbell v. Eastland, 307 F. 2d 478, in which 
case the facts of the civil action were inextricably interwoven 
with those of a criminal prosecution for fraud. 

The Court, at pages 26, 27, said: 

". . . The plaintiff in the civil action, the taxpay- 
ers, filed a motion under Rule 34 of the Federal 
Rules of Civil Procedure for an order requiring the 
District Director of Internal Revenue to produce 
the reports of the investigating agents. The reports 
were in the United States Attorney's criminal files. 
The Director asked for a stay of the motion pend- 
ing disposition of the criminal case. He contended 
'that the reports were privileged; that the motion 
for discovery was a cover-up to allow the taxpay- 
ers to inspect criminal files for information not 
available to them before the trial of the criminal 
case and then available only under the strict rules 
of criminal procedure . . .' The trial judge held 
that the civil action was 'independent of any crim- 
inal action' and granted the motion to produce . . . 
The court of appeals reversed, pointing out that 
Rule 34, F. R. Civ. P. allows discovery of docu- 
ments only after showing 'good cause' and specific- 
ally stated that its decisions turned on the facts 
bearing on good cause. 

13 



122 



(( ( 



. . in determining good cause for discovery 
in the civil suit, a determination that requires the 
weighing of effects, the trial judge in the civil pro- 
ceeding should (not) ignore the effect discovery 
would have on a criminal proceeding that is . . . 
A litigant should not be allowed to make use of 
the liberal discovery procedures applicable to a 
civil suit as a dodge to avoid the restrictions on 
criminal discovery and thereby obtain documents 
he would not otherwise be entitled to for use in his 
criminal suit. Judicial discretion and procedural 
flexibility should be utilized to harmonize the con- 
flicting rules and to prevent the rules and policies 
appHcable to one suit from doing violence to those 
pertaining to the other.' 

"It must be remembered that the court found 
that good cause had not been shown as required 
for production under Rule 34. . . . 

• • • • • 

". . . Defendant argues further that the Camp- 
bell case was concerned with an attempt to dis- 
cover material privileged under the work product 
doctrine, and that no privileged material is in- 
volved. 

*7 think the statement as to the right to take 
depositions must be read in context of the whole 
opinion. There the court was not concerned with 
an attempt to take depositions of prosecution wit- 
nesses. But in determining good cause for produc- 
tion the court carefully delineated the line between 
civil and criminal discovery processes. The court 
did not say that Rule 26 of the Civil Rules of Civil 
Procedure could be used as a device to take depo- 
sitions for use in a criminal case, where the deposi- 
tions could not be taken under Rule 15 of the 
Federal Rules of Criminal Procedure. 

"Judge Bell, who concurred specially, I think 

14 



123 



lucidly stated the basis with which the whole court 
agreed. He said: 'The criminal aspect of the mat- 
ter could not be ignored. The end result was tan- 
tamount to allowing discovery under Federal Rules 
of Civil Procedure in a criminal proceeding, some- 
thing we are powerless, as was the trial court, to 
authorize.' 

"But, argues defendant, depositions may be 
taken under Rule 26 as a right, in the absence of 
a showing of good cause for a denial thereof. I think 
good cause for the stay has been shown. Just as 
the court in Campbell considered the interwoven 
civil and criminal factual relation in determining a 
lack of good cause for production, so here the same 
factors have been considered in determining that 
there is good cause for the stay." (Itahcs suppHed). 

In United States v. Leta, 60 F. R. D. 127, (D. C. 
M. D. of Pennsylvania, July 1973) a motion was made by 
defendants to compel disclosure of aU exculpatory material 
and information in the possession and control of the United 
States. The District Court held, inter alia, that discovery 
would be denied in relation to their request for all state- 
ments, memorandum and summaries of statements, record- 
ings and transcriptions of statements, made by any person 
to an agent of the United States or the State of Pennsyl- 
vania in connection with subject matter of criminal case 
and as to request by defendants that the Government dis- 
close the statements of persons who were not prospective 
witnesses, where, inter alia, defendants made no assertion 
of materiality other than the general assertion that the 
statements might be favorable to their defense, and that 
the Government should disclose to defendants the criminal 

15 



124 



records of all persons that the Government intended to call 
to trial, but because of the limited purpose for which such 
information could be used by defendants, the Government 
would not be required to produce such records prior to 
trial. The Court at pages 129-131 said: 

"Defendants base the motion on the holding 
in Brady v. State of Maryland, 373 U. S. 83, 87, 83 
S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963). 

• • • • • 

"In my view. Defendant's motion goes beyond 
the scope of the Brady doctrine. They not only 
request disclosure of material favorable to them on 
the question of guilt, but in effect they request 
disclosure of all information relevant to the case. 
Such wholesale disclosiire of the prosecution's case 
is not required by the Constitution or statutes of 
the United States. 



". . . The Brady doctrine 'does not require the gov- 
ernment to disclose the myriad immaterial state- 
ments and names and addresses which any ex- 
tended investigation is boimd to produce'." Citing 
United States v. Jordan, 399 F. 2d 615. 



". . . In my view, the requested items are in- 
ternal government docimients the discovery of 
which is precluded by F. R. Crim. P. 16 (b). 

• • • • • 

". . . the Court will deny Defendant's request in 
§ 6 [of defendant's motion] that the Government 
disclose the names and addresses of all persons who 
have some knowledge of the facts of the case. No 
showing of materiality or reasonableness has been 
attempted." 

16 



125 



United States v. Kessler, (D. C, D. Minn. 2d Div., July 
1973) 61 F. R. C. 11, was a prosecution for misapplication 
of bank funds and making false entries. 

Motions for severance, for misjoinder were made, and 
seeking discovery and inspection of certain reports, memor- 
anda and statements in possession of the Government. 

The Court held that the documents requested in the 
hands of the Government were exempt from production 
where they constituted internal Government reports pre- 
pared in connection with the investigation and prosecution 
of the case. 

The Court, at pages 12-13 said: 

". . . The Rule [16 F. R. Crim. Proc] excepts from 
discovery 'reports, memoranda, or other internal 
government documents made by government agents 
in connection with the investigation or prosecu- 
tion of the case, or of statements made by govern- 
ment witnesses or prospective government wit- 
nesses (other than the defendant) to agents of the 
government except as provided in Title 18, U. S. C. 
§ 3500.' Section 3500 contemplates that the state- 
ments of government witnesses will be released to 
defendant only after the witness has testified at 
trial. [Italics supphed.] Although the affidavit 
of defendant's attorney raises the possibiHty that 
the rule enunciated by the Supreme Court in 
Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 
10 L. Ed. 2d 215 (1963), may be applicable, it is 
our view that the prosecution is not obliged under 
the Brady rule to make pretrial disclosures of ma- 
terial otherwise exempt from discovery under Rule 
16(b) [citing cases]. Because the requested docu- 
ments are internal government reports prepared 
in connection with the investigation and prosecu- 

17 



78-678 O ■ 



126 



tion of this case they are exempt from production 
under Rule 16(b). See United States v. Barber, 
297 F. Supp. 917 (D. Del. 1969). Statements made 
by employees of the First National Bank of New 
Prague and of the Savage State Bank to federal 
authorities need not be produced until such em- 
ployees testify at trial. 18 U. S. C. 3500. [Italics 
supplied.] 

"Defendant's motion for separate trial and sev- 
erance for misjoinder is granted; 

"Defendant's motion for discovery and inspec- 
tion is denied." 

In United States v. Bridges, (D. C, N. D. Cal., S. Div., 
1949) , 86 F. Supp. 931, the defendant was indicted under the 
NationaUty Act of 1940, § 338, 8 U. S. C. A. § 738, 18 U. S. 
C. A. §§ 371, 1015(a), and the Government also instituted 
de-naturalization proceedings against defendant. He in- 
voked the discovery process under F. R. Civ. Proc. § 33, 28 

U. S. C. A., seeking testimony of the Attorney General and 
the Director of the F. B. I. under Rule 26, F. R. Civ. Proc. 
"The scope of the relief sought under the Discovery Process 
in the Civil Proceeding is sweeping." The Government 
moved to stay the proceedings instituted by defendant un- 
til final disposition of the criminal proceedings. The Court, 
citing Penn. v. Auto, Ins. Co., 27 F. Supp. 336, at page 
933, quoting from that case, said: 

" 'Where public policy intervenes, the rule (of 
discovery) should not be appHed literally, and I 
have therefore denied plaintiff's motion to require 
defendant to furnish the names of their witnesses 
and to perimt their interrogation before trial . . . 
plaintiff should not be armed with the information 

18 



127 



in advance so as to prepare an alibi.' " (Italics sup- 
plied.) 

Continuing the Court then stated: 

"This Court has concluded that in the exercise 
of sound discretion and in the interest of public 
policy that all proceedings in this action . . . are 
hereby stayed until the final disposition of crim- 
inal proceedings . . ." (Italics supplied.) 

In United States v. A. B. Dick Co., (Civil No. 24188), 
7 F. R. D. 442, (D. C, N. D. Ohio, E. D. 1947), it appeared 
the defendants were indicted for violation of the Sherman 
Anti-Trust Act. Simultaneously with the Grand Juiy's 
presentment of the indictment, the Government filed the 
instant suit against the defendants in which it seeks to 
enjoin them from violation of the Act. The allegations in 
the two actions are identical. The Court, at page 442, said: 

". . . It is therefore logical to assume that the same 
proof will be offered to support the charges con- 
tained in the indictment as will be introduced to 
obtain the relief sought under the Complaint. 

"Motions for bills of particulars were made by 
the various defendants to enlarge upon the allega- 
tions of the indictment." 

In the criminal phase of the cases (see 7 F. R. D. 437, Crim. 
No. 18981, 1947) the Court overruled in part the motions 
for the Government to furnish particulars as to certain 
charges, stating that the Government cannot "be required 
to make a complete disclosure of its entire case. That is 
not the function of a bill of particulars. Rubio v. United 
States, [22 F. 2d 766]." (ItaHcs supphed.) 

19 



128 



In that civil suit the defendants addressed numerous 
interrogatories to the Government under Rule 33, R. Civ. 
Proc., 28 U. S. C. A. following section 723c, "seeking to 
obtain disclosures of the written and oral evidence which 
supports the accusation and the names of witnesses who 
wiU testify on behalf of the Government." Id., at pages 
442-443. 

The Government moved for an order 

"... to dismiss the interrogatories without preju- 
dice to renewal upon the disposition of the pend- 
ing indictment, or, in the alternative, to extend 
the time of the plaintiff to file objections or to re- 
spond to them until the disposition of the criminal 
charges." 

The Court, at page 443, said: 

"It is urged in support of the motion that to 
require plaintiff at this time to answer the inter- 
rogatories would have the effect of circumventing 
the decision of this Court on the defendants' mo- 
tions for bills of particulars. It is pointed out that 
the very information which the Court refused to 
have furnished in the criminal case will be made 
available through the response to the interroga- 
tories. Plaintiff contends that the disclosure of 
the information may jeopardize its position in the 
prosecution and interfere with the administration 
of justice. 

"The defendants oppose the motion and assail 
the above contentions. They maintain that the 
plaintiff chose to file the civil action with the re- 
turn of the indictment and hence carmot deprive 
the defendants of the benefits afforded them under 
the rules of discovery. 

20 



129 



"There are no adjudicated cases which shed 
light on the specific question here presented." 
(Italics supplied.) 

The Court stated that the sole question is whether de- 
lay in obtaining answers to the interrogatories will prejudice 
the rights of the defendants or whether the failure to fur- 
nish the information sought until the disposition of the 
criminal case wiU deprive these defendants of the benefits 
bestowed by the rules of discovery. In answer thereto the 
Court, at page 443, said: 

". . . No compelling reasons are shown to convince 
this Court that the defendant will be injured by 
extending the time to file objections to or respond 
to the interrogatories until the disposition of the 
criminal suit." 

United States v. One 1964 Cadillac Coupe, (D. C, S. 
D. N. Y., 1966), 41 F. R. D. 352 was an auto forfeiture 
action. A motion was made by the Government for a stay 
of interrogatories in the civil discovery proceeding until 
disposition of pending criminal action. 

Both the civil and criminal proceedings arose out of 
same or related transactions by which 

". . . the Goveniment is ordinarily entitled to a 
stay of all discovery in the civil action until dispo- 
sition of the criminal matter. Campbell v. East- 
land, 307 F. 2d 478, cert. den. 371 U. S. 955, 83 S. 
Ct. 502, 9 L. Ed. 2d 502 (1963); United States v. 
Bridges, 86 F. Supp. 931 (S. D. Cal. 1949); United 
States V. $2,437.00 United States Currency, 36 F. 
R. D. 257 (E. D. N. Y. 1964) ; United States v. 
Steffes, 35 F. R. D. 24 (D. Mont. 1964); United 

21 



130 



States V. Maine Lobstermen's Ass'n, 22 F. R. D. 
199 (D. Maine 1958); United States v. Linen Sup- 
ply Institute, 18 F. R. D. 452 (S. D. N. Y. 1955) ; 
United States v. A. B. Dick Co., 7 F. R. D. 442 (N. 
D. Ohio 1947); United States v. One 1963 Chevro- 
let Sedan, Misc. No. 63-M-1239, E. D. N. Y. 1963; 
Zara Contracting Co. v. New York, 22 A. D. 2d 415, 
256 N. Y. S. 2d 98 (3d Dep't 1965). The justifica- 
tion for this rule is that a defendant in a criminal 
case should not be permitted to use the liberal civil 
discovery procedures to gather evidence which he 
might not be entitled to under the more restrictive 
criminal rules. Campbell v. Eastland, supra." (Ital- 
ics supplied.) 

The claimant contended that the Government waived 
the right to the protective order to which it might otherwise 
be entitled since nearly three months have elapsed since 
the interrogatories were served. 

The Court, at page 354, said: 

". . . The question thus becomes whether the 
government's motion was 'seasonably made,' or al- 
ternatively, whether the government's delay could 
be termed 'excusable neglect'." 

After reviewing the facts in regard to this delay, the 
Court, at pages 354-355, said: 

". . . Under the circumstances I conclude that 
the laxity demonstrated by the government in this 
case does not constitute a 'wilfuU' failure to serve 
answers which would warrant dismissal of the ac- 
tion. See Rule 37(d), F. R. Civ. P. Accordingly, 
the claimant's motion to strike and dismiss is de- 
nied." 



22 



131 



". . . the claimant's interrogatories in the case 
at bar are plainly directed toward securing infor- 
mation regarding the legality of the seizure of the 
automobile in light of Fourth Amendment criteria. 
Though information of this nature is relevant in a 
forfeiture proceeding, see One 1958 Plymouth 
Sedan v. Com. of Pennsylvania, 380 U. S. 693, 85 
S. Ct. 1246, 14 L. Ed. 2d 170 (1965), it is obviously 
of paramount importance in the pending criminal 
action. Under the circumstances the fact that 
counsel for the government was dilatory is not a 
ground for authorizing a criminal defendant to uti- 
lize the discovery devices of the Federal Rules of 
Civil Procedure. Cf. United States v. Summerlin, 
310 U. S. 414, 60 S. Ct. 1019, 84 L. Ed. 1283 (1940). 
Thus the government's motion for a stay has been 
seasonably made within the meaning of Rules 30 
and 33. 

"The motion for a stay of all discovery pro- 
ceedings in this action until disposition of the 
criminal actions presently pending is granted." 
(ItaHcs supplied.) 

POINT III. 

THE UNLIMITED SCOPE OF CIVIL DIS- 
COVERY ALLOWED BY THE RESPONDENT 
JUDGE WAS CONTRARY TO LAW AND THIS 
COURT SHOULD DIRECT THE RESPON- 
DENT TO LIMIT IN THE FUTURE SUCH 
CIVIL DISCOVERY IN ADDITION TO OR- 
DERING THE DELAY REQUESTED UNTIL 
THE TRIAL OF THE CRIMINAL CASE. 

Independent of the motion to stay the civil proceed- 
ings until after the criminal case pending in the courts 

23 



132 



of the State has been disposed of, and until the witnesses 
of the State have testified in that criminal action, the 
Attorney General of Utah could have asserted here all the 
power vested in him by law to refuse to obey the subpoena 
duces tecum in the civil proceedings involved upon the 
ground of "privilege" as being in the "best public interests" 
and "in the interests of justice." 

In United States ex reL Touhy v. Ragen, Warderiy 340 
U. S. 462, 95 L. Ed. 417, 71 S. Ct. 416 (1951), the Court held 
that the Attorney General can validly withdraw from his 
subordinates the power to release department papers. It 
was also held that the employee's refusal to produce the 
papers was proper. 

The records requested by the subpoena duces tecum 
were claimed by the petitioner to contain evidence estab- 
lishing that his conviction was brought about by fraud. In 
these circumstances the District Court found Mr. McSwain 
guilty of contempt of court in refusing to produce the rec- 
ords referred to in the subpoena and sentenced him to be 
committed to the custody of the Attorney General . . ." Id., 
at page 465. The Court said that the Court of Appeals in 
reversing the District Court found: 

". . . that Mr. McSwain was called upon *to 
produce all documents and material called for in 
the subpoena without limitation and that at no 
time was he questioned, as to his willingness to 
submit the papers for determination as to mater- 
iality and best public interests.' Consequently, he 
was not guilty of contempt unless the law required 
the witness to make unlimited production. The 
court thought that, since this last would mean 
there was not privilege in the Department to re- 

24 



133 



fuse production, such a holding should not be 
made." Id., at page 466. 



The Court, at page 467, said: 

". . . The validity of the Superior's action is 
an issue only insofar as we must determine whether 
the Attorney General can validly withdraw from 
his subordinates the power to release department 
papers." 

Continuing the Court, at page 468, said: 

"... that Mr. McSwain in this case properly 
refused to produce these papers. We agree with 
the conclusion of the Court of Appeals that since 
Mr. McSwain was not questioned on his willing- 
ness to submit the material 'to the Court for de- 
termination as to its materiality to the case' and 
whether it should be disclosed, the issue of how 
far the Attorney General could or did waive any 
claimed privilege against the disclosure is not ma- 
terial in this case." 



". . . When one considers the variety of in- 
formation contained in the files of any government 
department and the possibilities of harm from un- 
restricted disclosure in court, the usefulness, in- 
deed the necessity, of centralizing determination 
as to whether subpoenas duces tecum will be will- 
ingly obeyed or challenged is obvious. Hence, it 
was appropriate for the Attorney General, pursu- 
ant to the authority given him by 5 U. S. C, § 22, 
to prescribe regulations, not inconsistent with law 
for 'the custody, use, and preservation of the rec- 
ords, papers, and property appertaining to the 
Department of Justice, to promulgate Order 3229.' " 

25 



134 



In conclusion the Court, at pages 469-470, said: 

". . . This case is ruled by Boske v. Comingore, 
111 U. S. 459, [44 L. Ed. 846, 20 S. Ct. 701]. 

"That case concerned a collector of internal 
revenue adjudged in contempt for failing to file 
with his deposition copies of a distiller's reports 
in his possession as a subordinate officer of the 
Treasury. The information was needed in Htiga- 
tion in a state court to collect a state tax. The 
regulation upon which the collector relied for his 
refusal was of the same general character as Order 
No. 3229. After referring to the consitutional au- 
thority for the enactment of R. S. § 161, the basis, 
as 5 U. S. C. § 22, for the regulation now under 
consideration, this Court reached the question of 
whether the regulation centraUzing in the Secre- 
tary of the Treasury the discretion to submit rec- 
ords voluntarily to the Court was inconsistent 
with law, page 469. It concluded that the Sec- 
retary's reservation for his own determination of 
all matters of that character was lawful. 

"We see no material distinction between that 
case and this." (Italics supplied.) 

In United States v. Kordel, 397 U. S. 1 (1969), 25 L. 
Ed. 2d 1, 90 S. Ct. 763, the Court in considering a motion 
for a stay of the proceedings in a civil suit or to extend time 
for answering the interrogatories until after disposition of 
any criminal proceeding, involved, at page 12, footnote 27, 
was careful to call attention to the fact that — 

"Federal courts have deferred civil proceed- 
ings pending the completion of parallel criminal 
prosecutions when the interests of justice seem to 
require such action, sometimes at the request of 

26 



135 



the prosecution, Campbell v. Eastland, 307 F. 2d 
478, cert, denied, 371 U. S. 955 [the leading case]; 
United States v. Bridges, 86 F. Supp. 931, 933; 
United States v. 30 Individual Cartoned Jars . . . 
'Ahead Hair Restorer . . ., 43 F. R. D. 181, 187 
n. 8; United States v. One 1964 Cadillac Coupe De- 
Ville, 41 F. R. D. 352, 353-354; United States v. 
$2,437 United States Currency, 36 F. R. D. 257; 
United States v. Steffes, 35 F. R. D. 24; United 
States V. Maine Lobstermen's Assn., 22 F. R. D. 
199; United States v. Cigarette Merchandiser's 
Assn., 18 F. R. D. 497; United States v. Linen Sup- 
ply Institute, 18 F. R. D. 452; sometimes at the 
request of the defense, Kaeppler v. Jas. H. Mat- 
thews & Co., 200 F. Supp. 229; Perry v. McGuire, 
36 F. R. D. 272; cf. Nichols v. Philadelphia Tribune 
Co., 22 F. R. D. 89, 92." 

Thus the Supreme Court realizes the necessity for 
stays of depositions or discovery in civil cases pending the 
disposition of a criminal action involving the same situa- 
tion or substantially the same as in the civil case, especially 
where, as in the instant case, "the interests of justice" and 
"public interests" require such action. 

It is a recognized principle of law that official informa- 
tion privilege is subject to a generally overriding require- 
ment that disclosure would be contrary to the interests of 
justice and the public. 

Rule 509 (a). Supreme Court Rules of Evidence, effec- 
tive July, 1973, 34 L. Ed. 2d 1, 54 et seq., in defining official 
information in par. (2) states: 

" 'Official information' is information within 
the custody or control of a department or agency 
of the government the disclosure of which is shown 

27 



136 



to be contrary to the public interest and which 
consists of (A) intra-govemmental opinions or rec- 
ommendations submitted for consideration in the 
performance of decisional or policy making func- 
tions, or (B) subject to the provisions of 18 U. S. 
C. § 3500, investigatory files compiled for law en- 
forcement purposes and not otherwise available, or 
(C) information within the custody or control of 
a governmental department or agency whether in- 
itiated within the department or agency or acquired 
by it in its exercise of its official responsibilities 
and not otherwise available to the public pursuant 
to 5 U. S. C. § 552. 

"(b) General Rule of Privilege. The gov- 
ernment has a privilege to refuse to give evidence 
and to prevent any person from giving evidence 
upon a showing of reasonable likelihood of danger 
that the evidence will disclose a secret of state or 
official information, as defined in this rule. 



"(d) Notice to Government. If the circum- 
stances of the case indicate a substantial possibil- 
ity that a claim of privilege would be appropriate 
but has not been made because of oversight or lack 
of knowledge, the judge shall give or cause notice 
to be given to the officer entitled to claim the privi- 
lege and shall stay further proceedings a reasonable 
time to afford opportunity to assert a claim of privi- 
lege. 

"(e) Effect of Sustaining Claim. If a claim 
of privilege is sustained in a proceeding to which 
the government is a part and it appears that an- 
other party is thereby deprived of material evi- 
dence, the judge shall make any further orders 
which the interests of justice require, including 
striking the testimony of a witness, declaring a 
mistrial, finding against the government upon an 

28 



137 



issue as to which the evidence is relevant, or dis- 
missing the action." 

The Advisory Committee's Notes regarding Subdivision 
(e) of the Rules state: 

"// privilege is successfully claimed by the 
government in litigation to which it is not a party, 
the effect is simply to make the evidence unavail- 
able, as though a witness had died or claimed the 
privilege against self-incrimination, and no specifi- 
cation of the consequences is necessary." 34 L. Ed. 
2d 54, 55, 56. (Italics supplied). 

Chapter I, Department of Justice (Rules Governing 
Judicial Administration) states: 

Part 16 — Production or Disclosure of Material or In- 
formation. 

Subpart B — Production or Disclosure in Response to 
subpoena or Demand of Courts or Other Authorities, in 
§ 16.22 provides: 

"No employee or former employee of the De- 
partment of Justice shall, in response to a demand 
of a court or other authority, produce any material 
contained in the files of the Department or dis- 
close any information relating to material con- 
tained in the files of the Department, or disclose 
any information or produce any material acquired 
as part of the performance of his official duties or 
because of his official status without prior approval 
of the appropriate Department official or the At- 
torney General in accordance with § 16.24." 

§§ 16.23 and 16.24 provide procedures to follow in the 

29 



138 



event of such demand upon an employee or former em- 
ployee including the F. B. I. Code of Federal Regulations 
Title 28, 1973, Judicial Administration, at pages 97, 103-104. 

To the same effect is § 67-16-4, Utah Code Annotated, 
1953, which reads: 

"Prohibited acts — Disclosing or using con- 
fidential information — Using position to secure 
privileges or exemptions — Accepting employment 
which would impair independence of judgment. — 
No pubhc officer or public employee shall: 

• • • • • 

"(2) Disclose confidential information ac- 
quired by reason of his official position nor use such 
information for his or another's private gain or 
benefit." 

This brings us to a consideration of the relevant State 
cases. 

POINT IV. 

CIVIL DISCOVERY IS APPLICABLE TO 
CIVIL CASES ONLY AND NOT CRIMINAL 
CASES. 

A State civil statute, or code of civil procedure, provid- 
ing for discovery and inspection of evidence in the posses- 
sion of an adverse party will not be made applicable to 
criminal cases, since they are restricted to civil actions 
only. 

In Bailey v. State, (1957) 227 Ark. 889, 302 S. W. 2d 
796, 798, cert. den. 355 U. S. 851, 2 L. Ed. 2d 59, 78 S. Ct. 
77, the appellant claimed error in refusing his request to 

30 



139 



take the deposition of the prosecution witness under the 
civil discovery statute. The Court held that the act in 
question applies only to civil cases and that the legislature 
so intended. This act referred to "party" or "parties." A 
defendant is not used. It appUed to material witnesses 
where there are reasonable grounds he will die or become 
mentally or physically incapable of testifying or of becom- 
ing a non-resident of the State. "The materiality of the 
testimony, and the reason for taking his deposition, shall 
be shown by affidavit." The court held no such affidavit 
or showing was made by appellant. "Had the legislature in- 
tended [the civil case Act] to apply to criminal cases [as 
well as civil] it could easily have so declared." Id., at p. 
798. To the same effect is Edens v. State, (1962) 235 Ark. 
178, 359 S. W. 2d 432, 433, cert. den. 371 U. S. 968, 9 L. Ed. 
2d 538, 83 S. Ct. 551, wherein the Court held "The defen- 
dant was not entitled to receive copies of the statements 
that the Prosecuting Attorney had obtained from the vari- 
ous witnesses for the State, as this was a part of [his] work 
papers. Furthermore, we have held that the Discovery Stat- 
ute . . . does not apply to criminal cases." Id., at page 433. 
(Citing the Bailey case, supra. See also Edens v. State, 
(1963) 235 Ark. 996, 363 S. W. 2d 923, 925). 

In People v. Ratten, (1940) 39 Cal. App. 2d 267, 102 
P. 2d 1097, 1099, the claim was made that the Code of Civil 
Procedure permitted inspection by defendant of certain 
documents in the possession of the district attorney, and 
the Court in rejecting this contention decided that: 

"... It is now established in California that 
the sections of the Code of Civil Procedure . . . are 
applicable to civil actions only . . . and that . . . the 

31 



140 



Code of Civil Procedure may not be invoked in 
criminal actions." /d., at page 1099. 

To the same effect is People v. Wilkins, (1955) 135 Cal. 
App. 371, 287 P. 2d 555, 559. In Yannacone v. Municipal 
Court, (1963) 222 Cal. App. 2d 72, 34 Cal. Rptr. 838, 839, 
the Court pointed out California's liberal discovery rule per- 
mits "one charged with crime may, before trial, inspect: 
statements of his own in possession of the prosecution, 
whether signed, unsigned, or on recording tapes; real evi- 
dence or reports of state officers' examination thereof; and 
statements of persons expected to be prosecution witnesses 
at trial. He may compel disclosure of the names and ad- 
dresses of eyewitnesses to an alleged crime. . . . But *he does 
have to show some better cause for inspection than a mere 
desire for . . . all information which has been obtained by 
the People in their investigation,' and such a 'blanket re- 
quest' will be denied." Continuing, the Court said: 

"The statutory right to deposition in criminal 
cases is limited . . . The civil discovery ... is not 
applicable to criminal proceedings. (Clark v. Su- 
perior Court, 190 Cal. App. 2d 739, 742, 12 Cal. 
Rptr. 191)." 7c?., at page 839. 

To the same effect is People v. Lindsay, (1964) 227 Cal. 
App. 482, 38 Cal. Rptr. 755, 773, the Court stating: 

". . . But a defendant has to show some better 
cause for inspection than a mere desire for the in- 
formation which has been obtained by the People 
in their investigation. (People v. Cooper, supra, 53 
Cal. 2d p. 770, 3 Cal. Rptr. 148, 349 P. 2d 964.) 
Pretrial discovery in favor of a defendant is not 
required by due process. (Jones v. Superior Court, 

32 



141 



supra, 58 Cal. 2d p. 59, 22 Cal. Rptr. 879, 372 P. 
2d 919.) 

In State v. Cocheo, 24 Conn. Sup. 377, 190 A. 2d 916, 
918 (1963), the Court held: 

". . . The state has no power to probe the files 
of defense counsel and, in a fair conduct of a trial, 
reciprocal power cannot be granted to the accused. 
Our rules ia civil cases . . . are not apphcable in 
criminal cases . . ." 

In State v. Jeffries, (1925) 117 Kan. 742, 232 P. 873, 
the defendant claimed that the provision of the Civil Code 
(R. S. 60-2850) authorizing an inspection or permission 
to take copies of books, papers, or documents that are 
in the possession of an adverse party was applicable in 
criminal cases by the provision of the Criminal Code which 
provides: 

"The provisions of law in civil cases relative 
to compelling the attendance and testimony of wit- 
nesses, their examination, the administration of 
oaths and affirmations, and proceedings as for con- 
tempt, to enforce the remedies and protect the 
rights of parties, shall extend to criminal cases so 
far as they are in their nature applicable thereto, 
subject to the provisions contained in any statute. 
R. S. 62-1413." 

The State insisted the adoption of the Civil Procedure 
section R. S. 62-1413 is so restricted in its terms as to ex- 
clude the right to such inspection, and the Court in adopt- 
ing this contention of the State, at pages 873-874, said: 

". . . The court is of opinion that the adoption 
section does not cover or include the provision of 

33 



78-678 O - 76 - 10 



142 



the Civil Code relating to inspection. It is a gen- 
eral rule that the specification of certain procedural 
steps carried the implication that aU others are ex- 
cluded. The Legislature has said that the civil 
provisions relating to the attendance, examination, 
and testimony of witnesses are applicable in crim- 
inal cases, and this raises the presumption that no 
other Idnds of evidence, such as books, papers, 
and documents, or steps for the inspection of or 
production of the same, were within the intention 
of the Legislature . . . The view of the court is that 
the clause *to enforce the remedies and protect the 
rights of parties' has reference to the antecedent 
phrase relating to proceedings for contempt. 
Transposing it, the Legislature has in effect said 
that the rule of civil procedure shall be extended 
and applied to contempt proceedings brought to 
enforce the remedies and protect the rights of par- 
ties in criminal cases. The enumerated instances 
in the adoption statute it is held excludes aU un- 
specified instances, and, since there is no right for 
an inspection of the letters in question except by 
virtue of express authorization by the Legislature, 
and since none has been granted in the Criminal 
Code either directly or by reference to the Civil 
Code, there was no power in the court to make the 
order requiring the county attorney to turn over 
the letters for inspection, and the order is therefore 
reversed." 

In State v. Goodman, (1971) 207 Kan. 155, 483 P. 2d 
1040, 1047, the Court cited the new Code of Criminal Pro- 
cedure, effective 1970, which provided that if a prospective 
witness was unable to attend or prevented from attending 
trial or hearing to prevent failure of justice the Court upon 
motion of defendant after filing of information or indict- 
ment may take testimony of such witness by deposition, 

34 



143 



but that here the witness did appear, so defendant was not 
prejudiced. The trial court's order sustaining the state's 
motion to quash the subpoena was affirmed. 

In State v. Jones, (1968) 282 Kan. 31, 446 P. 2d 851, 
863, it appeared that the defendant requested the county 
attorney to produce statements taken by police from certain 
witnesses, and also those of any witness not used by the 
state at preliminary hearing, which motion was heard and 
denied. The Court, at page 864, said: 

". . . We think the district court did not err. 
The statements were not official documents, nor 
a part of any court record." 

The Court then quoted from State v. Baders, 141 Kan. 
683, 42 P. 2d 943: 

" *. . . It is sufficient to say defendant was not 
entitled to inspect such statements. They were in 
in no sense public records and amounted to no more 
than memoranda the county attorney might have 
made of what the witnesses told him. See State 
V. Laird, 79 Kan. 681, 100 P. 637; State v. Jeffries, 
117 Kan. 742, 232 P. 873; State v. Furthmyer, 128 
Kan. 317, 277 P. 1019; State v. Hooper, 140 Kan. 
481, 482, 37 P. 2d 52.' " 

In State v. Corkran, (1965) 3 Ohio St. 2d 125, 209 N. 
E. 2d 437, the defendant asserted that the trial court erred 
in overruling his motion to require the prosecuting attorney 
to allow him to examine a statement in the possession of 
the prosecution, relying upon a statute (Section 2317-33, 
Revised Code) entitled "Evidence" which reads in part: 

35 



144 



"Either party, or his attorney, in writing, may 
demand of the adverse party an inspection and 
copy, or permission to take a copy, of a book, paper, 
or document in his possession or under his con- 
trol, containing evidence relating to the merits of 
the action or defense ..." {Id., at page 439) 

which the defendant claimed was applicable to a criminal 
case since it provides: 

"The rules of evidence in civil cases, where 
applicable, govern in all criminal causes." 

'line Court held that the statutes in issue did not "apply 
to criminal cases" and by "its very verbiage it would seem 
apparent that Section 2317.33, Revised Code, was not de- 
signed or intended to apply to criminal cases." Citing and 
considering applicable cases. Id., at page 440. 

In State v. Fox, (1961), 122 Vt. 251, 255, 169 A. 2d 356, 
359, the defendant asserted that 

". . , there is no sound reason why the Legislature 
would make provision for the fullest discovery in 
civil actions and withhold the remedy in criminal 
prosecutions. It is suggested that the intention of 
the Legislature is better served by expanding the 
operation of 12 V. S. A. § 1262 to criminal causes. 
The same considerations attended the deliberations 
of the Advisory Committee in the adoption of the 
Federal Rules of Criminal Procedure and was par- 
ticularly avoided. 

• • • • « 

"The broad construction sought by the respon- 
dent may be desirable, but this is not the con- 
trolling factor. It is not the function of the courts 

36 



145 



to expand the intention of the Legislature beyond 
the terms of the act itself." (Italics supplied.) 

In State ex rel, Keast v. District Court, 135 Mont. 545, 
342 P. 2d 1071 (1959), an original prohibition proceeding 
was instituted by a county attorney for a writ of prohibi- 
tion to prevent a defendant from obtaining inspection of 
writing material in a criminal case by civil discovery. The 
respondent contended the district court had inherent power 
to order the inspection. The Court, in making the writ 
absolute, denied respondent's arguments that civil discovery 

applied to ciiminal cases relying on State ex rel. Mahoney 
v. Superior Court, 18 Ariz. 74, 275 P. 2d 887, 890; and Walker 
v. People, 126 Colo. 135, 248 P. 2d 287, 302, wherein, in the 
latter case, the court stated: "The doctrine of discovery is 
therefore a complete and utter stranger to criminal pro- 
cedure, unless introduced by appropriate legislation." 

POINT V. 

THE BURDEN OF SHOWING "GOOD CAUSE" 
FOR INSPECTION OR DESIGNATING SPE- 
CIFIC EVIDENCE HAS NOT BEEN MET IN 
THIS CASE, AS ALREADY SHOWN, OR BY 
STATE LAW. 

The State cases declare that it is imperative that in 
order to obtain an inspection of evidence in the possession 
of the prosecution, there must be a proper showing of "good 
cause" by stating the purpose for which the inspection is 
sought, its relevancy, materiality, facts justifying inspection 
and why it should be allowed. 

37 



146 



It is clear that some better cause for inspection must 
be shown than a mere desire for all information which has 
been obtained by the prosecution in its investigation of the 
crime. 

People V. Terry, 57 Cal. 2d 538, 21 Cal. Rptr. 185, 370 
P. 2d 985, 999, cert. den. 375 U. S. 960, 11 L. Ed. 2d 318, 84 
S. Ct. 446 (1962); People v. Newville, 220 Cal. App. 2d 267, 
33 Cal. Rptr. 816, 819 (1963) ; State ex rel. Keast v. District 
Court, 135 Mont. 545, 342 P. 2d 1071, 1073 (1959); Rosier 
V. People, 126 Colo. 82, 247 P. 2d 448, 451-453 (1952). 

The production of the prosecution's evidence is not 
allowed for exploratory purposes or for the purpose of pry- 
ing into the prosecution's preparation for trial. 

State V. Aubuchon, (1964 Mo.), 381 S. W. 2d 807, 813- 
815; People v. Calandrillo, (1961) 29 Misc. 2d 491, 215 
N. Y. S. 2d 361, 363. 

There is no right to invoke the means of examining the 
prosecution's evidence merely in the hope that something 
may turn up to aid a defendant. 

State v. Wallace, (1965) 97 Ariz. 296, 399 P. 2d 909; 
Walker v. Superior Court, (1957) 155 Cal. App. 2d 134, 317 
P. 2d 130; State v. Stump, (1963) 254 Iowa 1181, 119 N. W. 
2d 210, cert. den. 375 U. S. 853, 11 L. Ed. 2d 80, 84 S. Ct. 
113; State ex rel. Keast v. District Court, (1959) 135 
Mont. 545, 342 P. 2d 1071; Under v. State, (1953) 156 
Neb. 504, 56 N. W. 2d 734; People v. Leahey, (1960) 26 
Misc. 2d 438, 207 N. Y. S. 2d 619; People v. Marshall, 
(1958) 6 N. Y. 2d 823, 188 N. Y. S. 2d 213, 159 N. E. 2d 
698; State v. Goldberg, (1964) 261 N. C. 181, 134 S. E. 2d 

38 



147 



334, cert. den. 377 U. S. 978, 12 L. Ed. 2d 747, 84 S. Ct. 
1884; Melchor v. State, (1965 Okla. Crim.) 404 P. 2d 63; 
State V. Gilliam, (Mo.) 351 S. W. 2d 723, (1961) cert. den. 
376 U. S. 914, 11 L. Ed. 2d 612, 84 S. Ct. 670; State v. Hale, 
(Mo. 1963) 371 S. W. 2d 249; State v. Richette, 342 Mo. 
1015, 119 S. W. 2d 330 (1938); People v. Martinez, 15 Misc. 
2d 821, 183 N. Y. S. 2d 588 (1959); Anderson v. State, 207 
Tenn. 486, 341 S. W. 2d 385 (1960) ; State v. Lee, 173 La. 
966, 139 So. 302 (1932) ; State v. Brown, 360 Mo. 104, 227 
S. W. 2d 646 (1950); People v. Marshall, 6 N. Y. 2d 823, 
188 N. Y. S. 2d 213, 159 N. E. 2d 698 (1959). 

In fact, a "blanket request" for prosecution's evidence 
will not be granted, where it is a mere desire for all informa- 
tion which has been obtained by the prosecution in its in- 
vestigation of a crime. People y. Cooper, 53 Cal. 2d 755, 
770, 3 Cal. Rptr. 148, 157 (1960); Yannacone v. Municipal 
Court, (1963) 222 Cal. App. 2d 72, 34 Cal. Rptr. 838, 839. 

The motion for production of the prosecution's evidence 
must be based on facts and not on conclusions; State v. 
Tune, (1953) 13 N. J. 203, 98 A. 2d 881; or mere surmise 
and conjecture, People v. Gatti, (1938) 167 Misc. 545, 4 N. 
Y. S. 2d 130; or where the subpoena duces tecum is pri- 
marily an attempt to go on a "fishing expedition," probably 
to obtain the "work product" of the prosecution. State v. 
Coluin, (1957) 81 Ariz. 388, 307 P. 2d 98. 

POINT VI. 

PROSECUTING ATTORNEY'S NOTES, MEM- 
ORANDA, FILE OR "WORK PRODUCT" ARE 
NOT SUBJECT TO DISCOVERY PROCED- 
URE. 

39 



148 



An accused is not entitled to inspect the notes or mem- 
oranda made by the prosecuting attorney or his representa- 
tive in the preparation of the case. 

People V. Bermis, (1935) 2 Cal. 2d 270, 40 P. 2d 823; 
People V. Cathey, (1960) 186 Cal. App. 2d 217, 8 Cal. Rptr. 
694; Hopper v. People, (1963) 152 Colo. 405, 382 P. 2d 540; 
Campbell v. United States, (1961 Mun. Ct. App. Dist. Col.) 
174 A. 2d 87; State v. Kelton, (1957 Mo.) 299 S. W. 2d 493; 
State V. Superior Court, (1965, N. H.) 208 A. 2d 832; Brown 
V. Commonwealth, (1894) 90 Va. 671, 19 S. E. 447; State 
ex rel. Regan v. Superior Court, (1959) 102 N. H. 224, 226, 
227, 230, 153 A. 2d 403 (notes made on behalf of Attorney 
General or his staff "privileged from discovery even under 
the rule in civil cases") ; State ex rel. McLetchie v. Laconia 
District Court, (1964, N. H.) 205 A. 2d 534; Edens v. State, 

(1962) 235 Ark. 178, 359 S. W. 2d 432, cert. den. 371 U. S. 
968, 9 L. Ed. 2d 538, 83 S. Ct. 551; State v. Marzbanian, 

(1963) 2 Conn. Cir. 312, 192 A. 2d 721, cert. den. 
197 A. 2d 944; Peel v. State, (1963, Fla. App.) 154 So. 2d 
910; People v. Murphy, (1952) 412 111. 458, 107 N. E. 2d 748, 
cert. den. 344 U. S. 899, 97 L. Ed. 695, 73 S. Ct. 281, cert, 
den. 350 U. S. 865, 100 L. Ed. 767, 76 S. Ct. 108; Anderson 
v. State, (1959) 239 Ind. 372, 156 N. E. 2d 384; State v. 
Furthmyer, (1929) 128 Kan. 317, 277 P. 1019; State v. Hill, 

(1964) 193 Kan. 512, 394 P. 2d 106; State v. Tune, (1953) 
13 N. J. 203, 98 A. 2d 881; State v. Bunk, (1949 N. J. County 
Ct.), 63 A. 2d 842; People v. Giles, (1961) 31 Misc. 2d 354, 
220 N. Y. S. 2d 905. 

The "work product" of the prosecuting attorney is not 
producable for inspection by the defense. State v. Colvin, 
(1957) 81 Ariz. 388, 307 P. 2d 98; State v. Zimmaruck, 

40 



149 



(1941) 128 Conn. 124, 20 A. 2d 613; State v. Roy, (1962) 
23 Conn. Sup. 342, 183 A. 2d 291; State v. Salvatore, (1962) 
23 Conn. Sup. 459, 184 A. 2d 551; Fuller v. United States, 
(1949, Mun. Ct. App. Dist. Col.) 65 A. 2d 589; McAden v. 
State, (1945) 155 Fla. 523, 21 So. 2d 33, cert. den. 326 
U. S. 723, 90 L. Ed. 429, 66 S. Ct. 28; Johns v. State, (1946) 
157 Fla. 18, 24 So. 2d 708; Raulerson v. State, (1958 Fla.) 
102 So. 2d 281; Urga v. State, (1958, Fla. App.) 104 So. 2d 
43; Bedami v. State, (1959, Fla. App.) 112 So. 2d 284, cert, 
den. 361 U. S. 883, 4 L. Ed. 2d 119, 80 S. Ct. 153; Jackman 

V. State, (1962, Fla. App.) 140 So. 2d 627; State v. Laird, 

(1909) 79 Kan. 681, 100 P. 637; State v. Williams, (1947) 

211 La. 782, 30 So. 2d 834; State v. Haddad, (1952) 221 La. 

337, 59 So. 2d 411; State v. Aubuchon, (1964, Mo.) 381 S. 

W. 2d 807; Dinsmore v. State, (1901) 61 Neb. 418, 85 N. W. 

445; Erving and Howard v. State, (1962) 174 Neb. 90, 116 

N. W. 2d 7, cert. den. Howard v. State, 375 U. S. 876, 11 L. 

Ed. 2d 121, 84 S. Ct. 151; People v. Marshall, (1958) 5 App. 

Div. 2d 352, 172 N. Y. S. 2d 237, affd. 6 N. Y. 2d 823, 188 

N. Y. S. 2d 213, 159 N. E. 2d 698; State v Miller, (1961 

App.) 88 Ohio L. Abs. 533, 176 N. E. 2d 296, app. dismd. 172 

Ohio St. 554, 18 Ohio Ops. 2d 93, 179 N. E. 2d 53. 

POINT VII. 

IT IS NOW CLEAR THAT NEITHER THE 
FEDERAL NOR THE STATE COURTS WILL 
COMPEL BY CIVIL DISCOVERY METHOD 
THE DISCLOSURE OF MATERIAL FORM- 
ING THE BASIS OF CRIMINAL PROSECU- 
TION. 

41 



150 



In Redmond v. City Court of Salt Lake City, 17 Utah 
2d 95, 404 P. 2d 964 (1965), a petition for mandamus was 
filed to require a county attorney to produce checks so that 
defendants, in a criminal prosecution, by handwriting ex- 
perts might depend on preliminary examination by showing 
that they had not written and endorsed the checks, the sub- 
ject of the particular charge. The court below refused the 
discovery. Chief Justice Henriod, in affirming the action 
of the lower court, at 17 Utah 2d at 95-96, 404 P. 2d at 964, 
said: 

". . . We also feel that the district court was 
right in deciding that under our statutes and the 
cases, there was not an abuse of discretion, nor a 
denial of due process by the city court as reflected 
in the record before us, and that the district court 
did not err either, in refusing to order the county 
attorney to do so." 

Section 105-21-9(1) U. C. A. 1943, (now § 77-29-9, 
U. C. A. 1953), authorizing a bill of particulars "was not 
intended as a device to compel the prosecution to give an 
accused a preview of the evidence on which the state relies 
to sustain the charge." State v. Stack, 118 Utah 128, 134, 
221 P. 2d 852 (1950). 

In State v. Martinez, 21 Utah 2d 187, 442 P. 2d 943 
(1968), the defendant sought disclosure of the prosecution's 
evidence which the trial court refused to order. Mr. Justice 
Henriod, in declaring this was not errer, at page 188, in 
disposing of this claim of disclosure, said: 

". . . that the court [had not] erred in not re- 
quiring disclosure of the prosecution's evidence, 
which was an all-inclusive and unreasonable dis- 

42 



151 



closure demand fraught with dangerous adversary 
procedural implication if the request had been 
granted." 

Citing the often referred to case of United States v. Garsson, 
291 F. 646 (D. C. S. C, N. Y. 1923) in which Judge Learned 
Hand profoundly stated at page 649: 

". . . Under our criminal procedure the accused 
has every advantage. While the prosecution is held 
rigidly to the charge, he need not disclose the bar- 
est outline of his defense. He is immune from ques- 
tion or comment on his silence; he cannot be con- 
victed when there is the least fair doubt in the 
minds of any one of the twelve. Why in addition 
he should in advance have the whole evidence 
against him to pick over at his leisure, and make 
his defense, fairly or fouUy, I have never been able 
to see. No doubt grand juries err and indictments 
are calamities to honest men, but we must work 
with human beings and we can correct such errors 
only at too large a price. Our dangers do not lie in 
too Uttle tenderness to the accused. Our proced- 
ure has been always haunted by the ghost of the 
innocent man convicted. It is an unreal dream. 
What we need to fear is the archaic formalism and 
the watery sentiment that obstructs, delays, and 
defeats the prosecution of crime." 

CONCLUSION 

In the light of the statutory and decisional law here- 
inbefore considered it is imperative that the prayer of the 
State of Utah in this petition be granted by this Court issu- 
ing a writ of mandamus or prohibition in the interests of 
justice, public policy and valid administration of justice 
as determined by law. 

43 



152 



It is to be observed that the State is merely requesting 
that the civil case, now pending in the court below, be held 
in abeyance until the related State criminal proceeding, now 
in the process of prosecution, is finally terminated. The State 
is not asserting here its right and power of privilege which 
it can do, by refusing to divulge the results of its investiga- 
tion of any criminal violations resulting therefrom. 

The use of the civil discovery subpoena duces tecum in 
question shows on its face that it is nothing more than a 
"blanket request" or a "fishing expedition" or a "backdoor" 
or "cover-up" or "as a dodge" to avoid the restrictions of 
criminal discovery in an "attempt to obtain a wholesale dis- 
closure of material favorable on the question of guilt." 

There is no showing of "good faith" as required by law. 
The subpoena duces tecum is merely an attempt to subvert 
civil discovery into a device for obtaining pre-trial discovery 
against the State in its related criminal proceeding. 

The action taken by the defendant Judge in denying the 
motion for the delay of the civil proceedings constituted an 
abuse of his judicial power as shown by the Transcript of 
Record, at page 11, Judge Ritter stating in open court as 
follows: 

". . . The F. B. I. agents were running the 
D. A.'s in those days. The F. B. I. agent came in 
and said what they would do and wouldn't do, and 
he came in and took that witness stand and said 
he was going to disclose nothing. So I promptly 
made an order that he disclose his entire investi- 
gation. And I have been doing that ever since." 

Continuing, at page 12, he stated: 

44 



153 



"... I require that sort of thing in civil cases. 
I require the F. B. I. to produce and I require the 
Attorney General of the United States to produce. 
I require the D. A. to produce. It is everyday, 
common practice in this courtroom now that every 
criminal defendant is given the whole file right at 
the start. I don't have to make a ruling on each 
case any more. That is the practice we have es- 
tabhshed. That wiU be the ruling. If you have 
some problem, why, I am here and you can come 
in and we will see what we can do about it." 

Intervention here would expose every State criminal 
prosecution to insupportable disruption. The Federal Courts 
have recognized the wisdom of staying cases pending de- 
termination of related actions in State Courts. Federal 
Courts follow a procedure aimed at the avoidance of unnec- 
essary interference by such courts with proper and validly 
administered state concerns, a course so essential to the 
balanced working of our Federal system, so as to minimize 
the possibility of such interference; and a scrupulous regard 
for the rightful independence of state governments, should 
at all times actuate Federal Courts. 

Respectfully submitted, 

VERNON B. ROMNEY 

Attorney General 

ROBERT B. HANSEN 

Deputy Attorney General 

JOSEPH P. McCarthy 

Assistant Attorney General 

RANDOLPH S. COLLINS 
Assistant Attorney General 

May, 1974 Attorneys for Plaintiff 

45 



154 

I hesitate to use the word "Watergate" because it's a term now used 
to describe conduct often no more serious than a public official getting 
picked up for reckless driving. But where Nixon's Watergate was 
a conspiracy within the executive branch of Government, Eitter's 
judicial Watergate is simply a conspiracy of silence among Utah 
lawyers, journalists, and public officials, who do little or nothing, while 
a man who never should have been a judge in the first place continues 
to rule Utah's Federal judicial system. 

No one is above the law. Lawyers, even more than citizens in general, 
ought to act legally. Judges, even more than attorneys, should obey 
the law and ethical standards. 

Senator Burdick. Thank you very much. 

Essentially all of your statements seem to be directed against the 
conduct of Judge Eitter, which would apply to him as a sitting judge, 
as well as a chief iudge. 

Mr. Hansex. That's true, Senator Burdick. We can do, in the pas- 
sage of this bill. — only correct a ver\^ minor part of the problem and we 
really should be before the House Judiciary Committee on Impeach- 
ment Hearings. 

Senator Burdick. Because I say that's out of our jurisdiction. 

Mr. Hansen. It may be out of your jurisdiction, Senator, but at least 
what you can do, we respectfully submit, you should do. 

Senator Burdick. We'll do what we can properly do, of course. 
That's the purpose of this committee. 

Senator Garn. Mr. Chairman, before the next witness comes up, 
could I make just one brief response to this point of Mr, Westphal ? I 
realize I'm not still there as a witness, but very briefly ? 

Senator Burdick. Certainly. Just a minute. I have some questions of 
this witness. 

Senator Garn. I recognize the legal technicalities and what Mr. 
Westphal is trying to point out and to narrow this. I have only been a 
Senator for 17 months, but I have sat through dozens and dozens and 
hundreds of committee hearings. 

And I have seen other committees take w^ide-ranging testimony. We 
are not the judicial branch; we are the legislative branch. And in 
considerinir legislation in all of the committees I serve on we've been 
willing to listen to any information that would help us make a decision 
on that particular bill. 

Maybe because all of the members of this committee are attorneys 
there is more of a tendency to go to legal technicalities and to look at 
only evidence directly pertaining. I can understand that feeling. 

But T would like to point out that this is the legislative bodv. And I 
would like to point out that were I a Member of the House of Eepre- 
sentatives, I would be attempting to have Judge Eitter impeached on 
the evidence that is being presented. But I do feel, as a Senator, and as 
fellow Senators considering this, that it is peilinent. You can play the 
attorney game and narrowly define it and exclude all of this and say it 
isn't important. But this isn't a court. It's a subcommittee of the U.S. 
Senate. 

And I would hope the committee would take into consideration the 
abuses being heaped and, as the Deputy Atforney General just said, 
maybe on a scale of 10 this bill only corrects 10 percent, but that would 
be a help to the people of Utah and to the judicial system. 



155 

And I would hope you would not summarily define it and you would 
consider his decisions, his temperament, his abuse of the judicial sys- 
tem as a sittint; judge, and do something for the people of Utah. Thank 
you. 

Senator Eurdick. Just a minute, Senator. We've excluded no testi- 
mony. We've excluded no witnesses. AVe're not confining a single thing. 
We made no determination. We're simply pointing out that there are 
certain areas we have no power over. That's all we were doing. 

Senator Garx. Senator, I completely agree and you have been will- 
ing to listen to any testimony, but in ]\Ir. 

Senator Burdick. And we don't exc) ade anybody. 
Senator Garx [continuing]. Westphal's line of questioning, I sit 
here and think that when the decision is made, that although it was 

listened to 

Senator Burdick. The Committee will determine from all that is 
before us. 

Senator Garx [continuing]. It would be excluded. Thank you. 
Senator Burdick. Now, you say, Mr. Hansen, that you have taken 
several opinion polls and I think iv several cities. And these show 
that people aren't satisfied with — what's the word you used? — "bi- 
ased," occasionally biased. Do you really think this Committee should 
take into consideration opinion polls? 

]\Ir. Haxsex. Well, to the extent that it is pertinent as to whether 
or not Utah needs any special justification over and above the con- 
sideration given to all other States, that they have a chief judge under 
the age of"^70, then I think that all factors that have a bearing on 
whether or not he performs well as chief judge ought to be considered. 
And I would think that the members of the Utah State Bar, as a 
collective judgment, rather than just a few perhaps disgruntled ones 
who have lost a case in his court, provide very significant evidence as 
to what their judgment is as to how well he does perform, because 
after all, the courts are there to serve the people. And those who are 
in the best position to judge the court's performance, I think, are the 
attorneys who practice before the court, because that poll consists not 
only of those attorneys who dislike Judge Kitter, but also those who 
do like him very much. 

Senator Burdick. You and I are both lawyers. 
Mr. Haxsex. Yes, sir. 

Senator Burdick. Do you use opinion polls in your prosecution of 
cases ? 

Mr. Haxsex. No; not in prospcutimi cases, but there f>re cases, of 
course, where public sentiment does have a bearing and I think in 
the field of legislation is one area where I think that does have a proper 
role. 

Senator Burdick. Well, this Committee wants evidence. 
Mr. Haxsex. We're here to try to provide what information we 
have, Senator. 

Senator Burdick. Just one question. You say that 39 applications 
for writs and 8 were granted. In other words, the judge prevailed 80 
percent of the time on that score? 

Mr. Haxsex. Well, three-fourths of the time he did. Your Honor, 
yes. 

Senator Burdick. Well, 8 is to 39 whatever it is — three-fourths. 



156 

Mr. Hansen. Well, 39 was the number filed. 8 percent were those 
granted. 

Senator Burdick. Is that bad ? 

Mr. Hansen. Well, that's a pretty good batting average, if you 
want to look at it in the abstract. But that's why I compared it to the 
other judge in respect to the percentage and I didn't have that on the 
chart. But we have produced the figures that writs are granted 
against him on an average of about three times as often as they are 
against any other judge. So I think that what you have to do is not 
consider that figure in the abstract, because that's an extraordinary 
remedy before a trial for an appellate court to say that the judge has 
so conducted himself that he ought not to preside as the judge over 
that trial. That's a pretty extreme remedy and it is very rarely 
granted. 

But I might say that five of those special writs have been filed by the 
United States Government since Judge Ritter became over the age of 
70 ; three have been filed by the State of Utah ; I think two by Salt 
Lake City. The large percentage of the others are major corporations 
of this country and other leading citizens. 

So I think if you looked into that, you'd see that these weren't writs 
that were filed by some tax protester or fringe litigant. They were 
filed by very substantial counsel and for very good cause. 

Senator Burdick. I think Mr. Westphal has just one question. 

Mr. Westphal. I just have one question, Mr. Hansen. You men- 
tioned that he has been reversed some 54 percent of the time or some- 
thing of that kind. If this bill passes and he didn't have the word 
"Chief" to describe his position as the judge, do you think that would 
have any bearing on his reversal rate ? 

Mr. Hansen. No. I think a judge that is as bright as Judge Ritter 
is — and even his critics concede that he is a very brilliant man — and 
as a result, you have to attribute those 54 percent reversals not to the 
fact that he doesn't know what the law is, but that he refuses to follow 
the law. 

And, therefore, I think it's even worse for a judge to have the stature 
and the power of a chief judge who isn't even an adequate judge. 

Mr. Westphal. It seems to me that's a nuestion for the House of 
Representatives and not for the Senate initially. 

Mr. Hansen. I hope we'll have a chance to present that some day. 
It has been difficult enough getting the bill to the point that this bill 
is now. And as I mentioned at the outset of my statement, this is a mild 
slap at n iudge that slioukl get a Ivuockout punch. 

Mr. Westphal. I have no further questions. 

Senator Burdick. Thank you very much. 

Our next witness is Mr. William J. Lockhart, Salt Lake City, Utah. 
Welcome to the Committee. 

Mr. Lockhart. Good morning. Senator. I guess it's still morning. 
I appreciate the opportunity to appear here to oppose S. 1130. I have 
submitted a statement and t propose to omit reading the first portion 
of the statement. 

Senator Burdick. Your entire statement will be made part of the 
record, without objection, 

Mr. Lockhart. Thank you. 

[The above referred to statement follows :] 



157 

Salt Lake City, Utah, May IS, 1976. 
Re May IS, 1976, hearing on S. 1130. 

Hon. QUENTIN N. BXJRDICK, 

Chairman, Subcommitee on Improvements in Judicial Machinery, Senate Com^ 
mittee on the Judiciary, U.S. Senate, Senate Office Building, Washington, 
D.C. 

Dear Senator Burdick : This statement is submitted in response to your invi- 
tation by your letter of May 6, inviting my comment and testimony on S. 1130. 

Because this bill is designed and intended to impose a special sanction upon 
Chief Judge Willis W. Bitter, United States District Court for the District of 
Utah, it is obviously of some concern to you to know my associations with the 
State and with Judge Ritter. Please allow me to make clear that this description 
of my background is simply for the committee's information. I speak only on my 
own behalf and not for any of the institutions or associations with which I am 
or have been affiliated. 

I have been a resident of the State of Utah since July, 1964, when I moved my 
family to Salt Lake City to accept an appointment at the College of Law, Univer- 
sity of Utah, where I am now a Professor of Law, teaching Administrative Law, 
Federal Courts and Constitutional Law. Beginning in approximately 1967 I first 
v»-as admitted to practice before the United States District Court for the District 
of Utah and appeared before Judge Ritter as appointed counsel in a habeas corpus 
matter. Since that time, I have appeared before him on several occasions in civil 
Uberties or Indian matters. As the former director of the legal panel and president 
of the Utah Affiliate of the American Civil Liberties Union, I had occasion to be 
familiar with Judge Ritter's handling of litigation of interest to the ACLU. 

On November 22, 1974, following the accidental death of the then U.S. Attorney, 
Mr. C. Nelson Day, Judge Ritter exercised his statutory power to appoint me as 
interim United States Attorney pending presidential appointment and confirma- 
tion of a successor. I remained in that office until May 5, 1975, and was succeeded 
by Mr. Ramon Child. 

On two occasions I have represented Chief Judge Ritter in connection with 
mandamus and other actions before the Court of Appeals for the Tenth Circuit 
arising out of his duties as a district judge, once as private counsel (without fee), 
and once in the course of my official duties as United States Attorney. In none of 
the cases in which I have appeared before Judge Ritter did I ever personally 
receive a fee for my legal services, though on one occasion I did recover a stat- 
utory attorney fee in a fair housing case which, by prearrangement was contrib- 
uted to the minority scholarship fund of the College of Law. I have no cases, and 
have not had since leaving the United States Attorneys office, in Judge Ritter's 
Court. 

The background of my appointment by Judge Ritter as United States Attorney 
may be of some interest to the Committee. A year prior to my appointment I had 
been conducting independent research in Washington, D.C, studying the problems 
of exercise and control of prosecutorial discretion. Since returning from Wash- 
ington, I had pursued further research and had been preparing a report of my 
work, which focussed heavily upon the relationship between the federal enforce- 
ment agencies and the role of the United States Attorneys in prosecuting cases 
on behalf of those agencies. When it became apparent that the vacancy in the 
United States Attorneys Office would be filled by interim appointment, certain 
friends aware of my research interests advised Judge Ritter that my experience 
and interest might suit me for the task. At his invitation, then, I gratefully ac- 
cepted the opportunity for first-hand experience in the exercise of prosecutorial 
discretion, and have recently prepared an article on the problems of prosecutorial 
discretion, as they affected the President's Clemency Program which I admin- 
istered for the District of Utah. 

With that background, let me state my view of S. 1130. 

I view this bill as a heavy-handed and poorly-disguised effort to use the United 
States Senate as a political forum for certain elements of the Utah political spec- 
trum who wish to strike back at a federal Judge who has generally been recog- 
nized as a stout protector of civil rights and civil liberties in Utah. It is not 
irrelevant that the chief proponent of this political slap at a sitting federal judge 
has been posturing for political office ever since he began this harassment pro- 
gram more than two years ago, and is now a candidate for State Attorney 
General. 

The politically-motivated nature of this proposal is clearly revealed by the 
irrelevancy of the arguments offered in its support. Although the proposal is 

78-678 — 76 11 



158 

designed solely to strip Judge Ritter of his title of Chief Judge by repealing a 
narrow gx-andfather clause, virtually none of the arguments bandied about in 
Utah have anything to do with the functions of Chief Judge. 

The main function likely to provoke dispute about the powers of a Chief 
Judge — the assignment of cases — was long ago dealt with in the District of 
Utah by an assignment rule which leaves virtually no assignment powers to the 
Chief Judge. And that assignment rule also dispenses with most of the problems 
of judicial administration of the caseload, because the assignment rule leaves 
management of the cases in the lap of the judge to whom the cases are originally 
assigned. Thus, the main remaining authority of the office of Chief Judge — the 
ministerial administration of the Court — is a matter to which little, if any, public 
argument has been addressed. 

If there are any credible complaints about the operation of the clerk's office, 
they have not been advanced in Utah. The only complaint of that kind has been 
the intemperate and grandiose series of complaints and charges by Jlr. Julius 
Petrofsky, which on inquiry were rejected by the ACLU. (After my tenure with 
ACLU.) 

No complaints have been made about the only other major areas of adminis- 
tration : the Bankruptcy Court and Probation Office. Beth offices are generally 
acknowledged by the Bar to be extremely effective. 

Beyond these observations, it is difficult to respond factually because none of 
the purported factual basis for complaint relating to performance of the func- 
tions of Chief Judge has been discussed by the proponents. 

What it comes down to, then, is that the proponents of this Bill seek to use 
the forum of the United Sfeates Senate as a launching platform for political 
cha.stisement of a federal judge. By urging enactment of this Bill they hope to 
punish him for attitudes or for constitutional and legal positions that have no 
significant relevance to the role of Chief Judge of which they hope to strip him. 
Even assuming the full good faith of the complaints addressed to Judge Ritter, 
they concern his role as an independent federal judge. His status as Chief Judge 
is simply irrelevant. 

The manner in which this proposal has been promoted, first before the assem- 
bled State Bar Association in Utah, and now before this Commitee, reveals its 
real purpose. The proponents of the State Bar resolution concerning this Bill 
have acknowledged that their primary motive was to redress what they claim 
to be the Judge's iri-ascibility or lack of adequate judicial decorum. But there 
has never been any effort by the proponents to seek quiet and amicable resolu- 
tion of any differences they may have with the Judge arising out of particular 
cases. So far as I know, none of the proponents have ever sought the assistance 
of the Bar leadership by proffering detailed examples of their complaints and 
seeking the assistance of the Bar leadership to resolve any complaints. Rather, 
the proponents have sought at every turn to place these disputes in the public 
forum and gain maximum publicity for their efforts at confrontation — and this 
committee is merely the latest forum. 

There is no question that Judge Ritter has been a controversial judge, and 
I think he would agree to be characterized as sometimes crotchety. It is clear 
that he does not tolerate fools gladly in his courtroom, and often assists them 
in recognizing their identity. He tends to make prosecutors turn square corners 
and narrowly limits their latitude because of this personal and substantive 
perceptions of the dangers to liberty of the largely uncontrolled powers vested 
in the prosecutor. During my tenure in the office of United States Attorney, I 
certainly felt in some instances that the Judge too narrowly limited the scope of 
appropriate examination, and sometimes set schedules that put our preparation 
to the test. 

But the proper way to deal with these conflicts is to recognize that our legal 
system is designed to accommodate and resolve the inevitable conflicts between 
the administrative and judicial branches. Thus, the present United States At- 
torney has quite properly set out through the established legal process to contest 
the Judge's restrictive view of the appropriate role of the Grand Jury. There is 
reason for the prosecutor to be concerned about his need for the investigative 
and charging powers of the Grand Jury. But there is equally good reason for a 
responsible judge to be concerned about the prosecutor's easy control of the 
Grand Jury or the possible misuse of grants of immunity. 

These inevitable conflicts arise from a problem on which there is a reasonable 
basis for difference of opinion — including possible legal error by the judge as 
well as by the prosecutor. So long as efforts to resolve these inevitable conflicts 
remain within the legal process, strongly-held viewpoints will be expected, but 
the issues will be resolved on principle and without damage to our institutions. 



159 

But when politicians begin to suggest the use of political instruments to punish 
or chastise federal judges, constitutionalists are obligated to speak out for the 
independence of the federal judiciary. 

It is not necessary to resolve the uncertain question whether this Bill is a Bill 
of Attainder. It is sufficient to recognize that the underlying policy of that Con- 
stitutional prohibition is especially offended by selective legislative sanctions 
aimed at a single, identified federal judge. In this instance, the distasteful aura 
of legislative condemnation of an individual without trial would be seriously 
magnified by the dangerous legislative precedent set. If this Bill is approved, it 
becomes fair game for Senators who conceive themselves to have serious philo- 
sophic or personal differences with a Federal Judge to develop imaginative legis- 
lative sanctions to strip their target of various prerequisites of office. The only 
difference is that in this instance no imagination was needed because Judge Ritler 
is the last of a legislatively-defined class, permitting easy targeting of the sanc- 
tion by a simple repealer. 

Nor does it seem to bother the proponents of this Bill that this legislative 
"trial" of Judge Bitter should take place without any notice of the "charges," 
without opportunity to know and respond to the supporting "evidence," and witli 
their maximum efforts to gain public spotlight through the hearings. Thus, the 
sponsor of this Bill broadly reported these hearings to the people of Utah in 
terms which made clear that the Bill is aimed personally at Judge Bitter. 

The great irony of this publicity-seeking effort, ho^^■ever, is tliat in the very 
next column of the same Newsletter, the sponsor glowingly depicted the protec- 
tions for the Federal judiciary in the Judicial Tenure Act (S. 1110) of which he 
is a co-sponsor. I would like briefly to quote the principle which Senator Gam 
lauds so highly, but apparently prefers to honor only in the breach : 

"Throughout this process, there are safeguards to protect against any abuse. 
Any judge, who is subject to inquiries, would be accorded all rights of due proc- 
ess including the right of appeal to the Supreme Court. All document filed with 
and testimony taken by either the Council on Judicial Tenure or the Judicial 
Conference would be confidential." 

It seems to me that the Senator who sponsors S. 1130 ought to have a long 
heart-to-heart talk with the Senator who is the co-sponsor of S. 1110. 

Finally, while perhaps not raising a matter of such overarching principle, it 
seems to me that this Committee should be concerned with the wisdom of any 
precedent permitting the withdrawal from prior commitment to a Grandfather 
Clause on the basis of a single senator's personal feud. 

That this would be the impact of this Bill is clear. I have previously sum- 
marized the legislative history of the Grandfather Clause in a letter to Chair- 
man Burdick on January 27. Please permit me to quote a brief synopsis of that 
legislative history from my earlier letter : 

"The Grandfather Clause section was originally enacted to permit chief judges, 
in districts with two judges, to retain their office as chief judge after reaching 
the age of 70. Pursuant to attrition and the application of the general provisions 
of 28 U.S.C § 136, it is my understanding that Chief Judge Bitter is the only 
remaining judge to benefit by the Grandfather Clause. 

"The purpose of the Grandfather clause was explained by Senator Eastland at 
page 15250 of the Congresisonal Becord of July 28, 1958. (Marked and identified 
with a paper clip on attached material.) It reorganized that the burden of ad- 
ministrative duties of a Chief Judge in a two-judge district is not so heavy as 
to require relinquishment of office by those sitting Chief Judges." 

None of the elements of the commitment made by that earlier Grandfather 
Clause have changed, and many of the participants in that original decision are 
still in the Senate. The proponents of this Bill do not even pretend to urge any 
claim of principle or general national policy requiring modification of the pro- 
vision in the National interest. Rather, they urge that the Senate's earlier com- 
mitment be withdrawn on the basis of a single parochial dispute. That sort of 
chameleon image could not promote confidence in future legislative compromises. 

I will be happy to respond to any questions. 
Very truly yours, 

William J. Lock hart. 



Judicial Tenxtee Act 

The United States Judicial system is the finest in the world. Much of the 
credit for the success of the system belongs to those judges and justices who 



160 

meet and maintain tlie highest quality of judicial excellence. However, no judge 
can be assumed perfect. Abuse of power, corruption and disability occur in all 
branches of government. When a judge fails to live up to the degree of excel- 
lence required of him, or if he becomes physically or mentally unable to sit 
on the bench, impeachment Is the only recourse. Besides being a long, involved 
procedure, extremely difficult to complete, impeachment is often too harsh a 
remedy, causing humiliation and loss of benefits. Therefore, I have joined in 
sponsoring the Judicial Tenure Act, a bill which provides a wise and acceptable 
plan under which members of the Federal judiciary may be removed from office 
without the agony of impeachment. 

The bill would establish a Council on Judicial Tenure which would be com- 
posed of judges elected by their fellow judges from each circuit. A panel of 
the Council would receive and investigate any written claims of misconduct or 
disability of a judge. They could either dismiss the complaint or report it to 
the Judicial Conference of the United States along with their recommendation. 
The Judicial Conference, or a nine-member committee of the Conference, would 
then sit as a Federal court to decide the case by dismissing the complaint, 
censuring the judge, or removing him from office. A judge could also be invol- 
untarily retired if a mental or physical disability were seriously interfering 
with his performance. Throughout this process, there are safeguards to pro- 
tect against any abuse. Any judge, who is subject to inquiries, would be accorded 
all rights of due process, including the right of appeal to the Supreme Court. 
All documents filed with and testimony taken by either the Council on Judicial 
Tenure or the Judicial Conference would be confidential. 

A judge would never be referred to the Judicial Conference for being contro- 
versial. It is the intemperate, incompetent, physically or mentally incapable 
judge, whose judgeship is an abuse of the Judicial system, that would be alfected 
by this legislation. 

South Korean Tkip 

During the Christmas congressional recess I visited South Korea as the guest 
of the Korea-United States Economic Council. The purpose of the trip was to 
study South Korea — its economy, defense posture and attitude toward the 
United States. 

South Korea has been likened to Viet Nam, a comparison I found to be totally 
erroneous. Economic strength, a feeling of independence and a desire to retain 
freedom pervades the country. Unlike South Vietnam, South Koreans are anti- 
Communist. Even opponents of the present administration oppose Communism. 
South Koreans would stay in their Country and fight Communist aggressors. 

Currently there is no imminent threat of attack from the North. South 
Korean defenses are strong, the troops are well trained and the country's 
weapon production capabilities are increasing. An equally strong deterrent to 
war is the presence of American troops in South Korea. Our attitude of defense 
against Communism and our solidarity in maintaining support for South Korea 
provides the security the country needs to continue to progress. It is in our self- 
interest as well as theirs that they remain free. 

Chief Judge Hearings 

Over a year ago, I introduced Senate Bill 1130 to remove the chief judgeship 
"grandfather clause" and require all Federal district court judges to surrender 
their chief judgeship at age 70. At the end of March, a commitment was made by a 
Judiciary Subcommittee chairman that hearings on the bill will be held in 
the near future. While others have, in the past, introduced similar legislation, 
none of the bills has reached the hearing stage. 

The only court in the United States that is affected by the grandfather clause 
is the U.S. District Court for the District of Utah. This legislation would remove 
Judge Willis Ritter's chief judgeship. He would, unfortunately, be able to con- 
tinue to serve on the bench but he would not be able to assign cases or other- 
wise function as chief judge. 

With hearings scheduled this spring, the United States Judicial Conference, 
people from the Justice Department, representatives of tbe Utah State Bar and 
others will finally be given their day in court to testify on why this bill should 
be passed and the chief judgeship taken from Judge Ritter. 



161 

Utah Day 

Millions of people are expected to visit Washington, D.C. this summer. To 
avoid the crowds, you may wish to schedule your Bicentennial vacation around 
Utah Day, November 12. Utah Day is a day which the District of Columbia has 
set aside to honor Utahns and their contributions to the United States. A special 
ceremony with D.C. Mayor Walter AVashington, Governor Calvin Rampton and 
members of the Utah delegation is planned. Also on the agenda is a congres- 
sional luncheon, a program by D.C. school children and a musical salute to 
Utah in the Kennedy Center. The Utah Bicentennial Commission or the Gover- 
nor's office can supply further details concerning Utah Day. 

STATEMENT OF WILLIAM J. LOCKHAET, SALT LAKE CITY 

Mr. LocKHART. I would like, then, simply to begin by stating that 
my main objection to this bill is that it appears to me to be a heavy- 
handed, irrelevant, poorly disguised political effort to use the U.S. 
Senate or this committee as a forum for some elements of the political 
spectrum in Utah who wish to strike back at a judge who has generally 
been recog-nized as a protector of civil liberties and civil rights in 
Utah. 

I think it is not irrelevant that the chief proponent in Utah of this 
political slap — which I think was essentially revealed by the language 
that he, in fact, used — is Mr. Hansen, who has been posturing for 
political office in Utah ever since he began this program more than 
2 years ago. And he is now a candidate for State attorney general. 

I think the politically motivated nature of this proposal is clearly 
revealed by the irrelevancy of the arguments offered in its support. 
Although the proposal is designed to strip Judge Ritter of his title 
of chief judge by repealing a narrow grandfather clause, virtually 
none of the arguments bandied about in Utah or here at this table have 
anything to do with his functions as chief judge. 

The main function likely to provoke dispute about the powers of 
the chief judge, the assignment of cases, was long ago dealt with, as 
committee counsel has emphasized, by an assignment rule which left 
virtually no assignment power to the chief judge. That assignment 
rule also dispenses with most of the problems of judicial administra- 
tion, administration of the caseload, because it leaves management of 
the cases, in the hands of the judge to whom the case is assigned for 
trial. 

Therefore, the remaining authority of the chief judge or the office 
of chief judge is mainly ministerial. The function of handling, pri- 
marily, the bankruptcy court, the clerk's office, and the probation 
department. 

I am not aware of any discussion in this committee hearing ad- 
dressed to any of those issues. Beyond those observations and with 
respect to the main thrust of the arguments offered by Mr. Hansen, I 
think it is difficult to respond factually for precisely the reasons. Sena- 
tor, that you have pointed out — that this is a matter which, if it is to 
be the subject of discussion and dispute, required trial. 

We have questions of fact, detailed questions and charges which 
have been propounded and there is no opportunity for answer in this 
kind of a forum. By urging enactment of this bill, it seems to me that 
the essence of the proponents' position is that they simply hope to 



162 

punish the jiido^e for attitudes or for constitutional and legal posi- 
tions that have no significant relevance to the role of chief judge. 

Even assuming the good faith of the complaints addressed to the 
judge with respect to these factual issues, which have been broadly 
asserted but not supported in detail, they simply concern his role as 
an independent Federal judge, a member of the Federal judiciary, and 
his status as chief judge is simply irrelevant. 

The manner in which this proposal has been promoted, first before 
the assembled State Bar of Utah, and now before this committee, 
reveals its real purpose. The proponents have aclniowledged that the 
primary motive was to redress what they claim to be the judge's 
irascibility, lack of adequate judicial decorum and similar kinds of 
■charges. 

There has never been, to my knowledge, any effort by the proponents 
to seek a quiet and amicable resolution of any differences they may 
have with the judge arising out of particular cases. So far as I know, 
none of the proponents have ever sought the assistance of the bar 
leadei'ship, by proffering detailed examples of their complaints, and 
seeking the assistance of the Bar leadership to resolve any complaints. 

It has rather been their approach to seek maximum publicity for 
ttheir efforts at confrontation and their use of the committee is merely 
their latest forum. There's no question that Chief Judge Ritter has 
been a controversial judge. I think he would agree to be characterized 
as sometimes "crotchety." It is clear that he does not tolerate fools 
gladly in his courtroom and he sometimes assists them in recognizing 
their true identity. 

He tends to make prosecutors turn square corners and he narrowly 
limits their latitude because of his personal and substantive percep- 
tion of the danger to liberty of the largely uncontrolled powers vested 
in the prosecutor. 

During my tenure in the Office of the U.S. Attorney, I certainly 
felt, in some instances, that the judge too narrowly limited the scope 
of ap]>ropriate examination and sometimes set schedules that put our 
preparation to the test. 

But the proper way to deal with these conflicts is to recognize that 
our legal system is designed to accommodate and resolve the inevitable 
conflicts between the administrative and judicial branches. 

Thus, the present U.S. Attorney, I think, quite properly has set 
out through the established legal process to contest the judge's restric- 
tive view of the appropriate role of tlie grand jury. There is reason 
for the prosecutor to be concerned about the need for the investigative 
and cliarging powers of the grand jury. 

But there is equally good reason for a responsible judge to be con- 
cerned about the prosecutor's easy control of the grand jury or the 
possible misuse of grants of immunity. These inevitable conflicts arise 
from a problem on which there is a reasonable basis for difference of 
opinion, including possible legal error by the judge, as well as by the 
prosecutor. 

So long as efforts to resolve these inevitable conflicts remain within 
the legal process, strongly held viewpoints will be expressed, but the 
issues will be resolved on principle and without damage to our 
institutions. 



163 

But when politicians beo;in to suggest the use of political instru- 
ments to punish or chastise Federal judges, constitutionalists are 
obligated to speak out for the independence of the federal judiciary. 

It is not necessary to resolve the uncertain question of whether this 
proposal is a bill of attainder. It is sufficient to recognize that the 
underlying policy of that constitutional prohibition is especially 
offended by selective legislative sanctions aimed at a single, identified 
Federal judge. 

In this instance, the distasteful aura of legislative condemnation 
of an individual without trial would be seriously magnified by the 
dangerous legislative precedent set. If this bill is approved, it becomes 
fair game for senators who conceive themselves to have serious philo- 
sophic or personal differences with a Federal judge to develop 
imaginative legislative sanctions to strip their target of various 
perquisites of office. 

The only difference is that in this instance no imagination was 
needed because Judge Ritter is the last of a legislatively defined class 
permitting easy targeting by a simple repealer. Nor does it seem to 
botlier the proponents of this bill tJiat legislative trial or Judge Ritter 
should take place in this forum without auA'^ notice of charges, with- 
out opportunity to know and respond to the supporting evidence and 
with their maximum efforts to gain public spotlight through the 
hearings. 

Thus, the sponsor of this bill broadly reported these hearings to 
the people of Utah in terms which made clear that the bill is aimed 
personally at Judge Ritter. 

The great irony of this publicity-seeking effort, however, is that in 
the very next column of the same newsletter, the sponsor glowingly 
depicted the protections for the Federal judiciary in the Judicial 
Tenure Act S. 1110. of which he is a co-sponsor. I would like briefly 
to quote the principle which the Senator lauds so highly, but ap- 
parently prefers to honor only in the breach : 

Thronsrhout this process, there are safegnards to protect against any abuse. 
Any judge, who is subject to inquiries, would be accorded all rights of due 
process, including the right of appeal to the Supreme Court. All documents 
filed with and testimony taken by either the Council on Judicial Tenure or the 
Judicial Conference would be confidential. 

It seems to me that the Senator who sponsors S.^ 1130 ought to have 
a long heart-to-heart talk with the Senator who is the co-sponsor of 
S.lllO. 

Finally, while perhaps not raising a matter of such over-arching 
pi'inciple. it seems to me the rommittee should be concerned with the 
wisdom of any precedent permitting the withdrawal from prior com- 
mitment to a grandfather clause on the basis of a single senator's per- 
sonal feud. Thnt this would be the impact of the bill, it is clear. I 
think the leoislative histoiw has already been aptly summarized and 
it does show the adoption of this grandfather clause specifically for 
the nolitical purposes of the comnromises that were entered into at 
the time the bill was adopted. And it also recognized that the burden 
of administrative duties were not so heavy as to require the relmquish- 
ment of the chief judsre role in a two- judge court. 

I don't believe that anv of the commitments or understanclmgs 
have chanired. I think it would not be a credit to the political process 



1G4 

to evoke this kind of chameleon image with respect to future legisla- 
tive compromises. 

I do have some additional comments I would like to make beyond 
the formal statement, but perhaps those would come out in response 
to questions. If not, I would like to reserve an opportunity, if 1 may, 
to address some further matters. 

Senator Bukdick. I just have one or two questions. Then you can 
respond further, if you wish. 

IVIr. LocKHART. All right. 

Senator Burdick. You stated in the opening of your testimony 
that most of this is irrelevant because it doesn't deal with his duties 
as a chief judge, such as the matter of taking care of bankruptcy 
matters and other matters. The magistrate should be under the juris- 
diction of the chief judge ; would it not ? 

]\f r. LocKHART. That is correct. 

Senator Burdick. Now, you heard the testimony this morning 
about whether or not he was willing to assign authority over petty 
offenses to the magistrates. Do you care to speak to that ? 

]\Ir. LocKHART. Yes. I certainly would. That is one of the matters 
I had hoped to address. I agree that the role of the chief judge would 
affect his handling of the magistrates question. I also agree that 
there probably is something of a problem in Utah with respect to a 
need for the exercise of authority by a magistrate. 

But I think this kind of example illustrates, as well as can be illus- 
trated, the essential conflict which provokes this kind of legislative 
solution, if that's what it can be called. This is a dispute of principle. 
There is a great deal of underlying concern on the part of Judge 
Ritter, part of which Mr. Westphal previously expressed, with respect 
to the proper status and role of a magistrate. 

And that underlying background, I think, was thoroughly laid 
out in the correspondence. He is, I think, properly concerned that 
if a magistrate is to exercise that kind of trial authority that he should 
be independent and full time. 

In addition, I should say that on a number of occasions I ap- 
proached Judgf Bitter while I was the U.S. attorney to attempt to 
persuade him from my viewpoint that it would be appropriate to 
authorize trial — magistrates' trial of petty offenses. 

His response was a philosophic response and I think reflects 
nothing with respect to the — excuse me. 

Senator Burdick. I'm a little bit concerned. There may be a vote 
on right now. There will be a recess for a few minutes. 

fA short recess was taken.] 

Senator Burdick. You may continue. 

Mr. LocKHART. Senator, I believe we were discussing the magistrate 
question and the position that I was leading up to was simply that 
it seems to me quite apparent that this is an example of the kind of 
difference of opinion with respect to judicial judgment — the court's 
concern about the dangers of abuse of less than a full-time magistrate. 

I believe there is another element present. I have heard Judge 
Hitter expound upon his concern that if the power of arrest and 
petty trial for minor offenses in the national parks and national for- 
ests and so forth were too readily available, there would be a tend- 
ency to petty abuse by enforcement officials who are poorly trained, 
who are not trained to be enforcement officials, but are rather forest 



165 

service people or national park service people who have had no ex- 
perience with enforcement. 

Now, that's not necessarily a ground for rejecting the magistrate 
role, but the point of the matter is that it is a principled concern 
which is appropriate to the judiciary. And if the U.S. Attorneys 
Office disagrees with that position, the proper approach is to resolve 
it in the courts by making the request that your counsel has sug- 
gested for authority from the 10th Circuit to require magistrate trial 
authority. 

Now, "those kinds of disputes of principle, it seems to me, are at 
the heart of most of the discussion that we have been having. And 
it is perhaps disappointing to the prosecution and it is disappoint- 
ing to the State attorney general to have a judge on the bench who 
does not roll over and play dead whenever they appear ready for 
trial or not ready for trial perhaps. 

But the essence of the matter is principled dispute on almost every 
issue that these people have raised. They are entitled to their day in 
court, but the judge is entitled to take a tough position; and those 
things are at the essence of the legal process. 

The grand jury question has been addressed here and I had some 
experience with that. And the present U.S. Attorney properly re- 
cites the essence of that experience, but let me fill in some details. 
I did, in fact, agree to an order in — I guess it was April 1975 or at 
least it was shortly before the end of my tenure in that office— in 
which I agreed that the scope of the issues before the grand jury 
should be limited to certain matters. The fact of the matter is, how- 
ever, that there were no other pending matters for grand jury atten- 
tion at the time that that order was entered. 

All of the matters then pending for grand jury attention had been 
directed to the grand jury. Indictments had been returned in all of 
the less significant cases. i?here were a couple of major investigations 
going forward under the administrative supervision of the Antitrust 
Division. And those, I felt, were important matters. 

Now, we make a great fuss about the number of days of grand jury 
sitting, but in fact that grand jury was empanelled in February of 
1975 and it was not dismissed until December of 1975. And the num- 
ber of days of sitting had more to do with the lack of preparedness 
or readiness to present matters by the Antitrust Division that it did 
with the judge's willingness or unwillingness to hear the matters. 

Now, that may be an appropriate matter for this committee's con- 
cern with respect to other kinds of inquires. I think there is reason 
to be concerned about the structure and limitations upon the readiness 
of the Antitrust Division to proceed in some of these matters. 

I don't know the facts about that. They may have not — they may 
have had very good reason not to proceed. They had to begin with 
some factual inquiry, an investigation, which presumably laid the 
groundwork for later inquiry. But whatever the reasons, the point 
of the matter is that there were pending only those two investigations 
and that they did continue throughout most of 1975 or that the grand 
jury was available for proceedings. 

Are there any other matters that 

Senator Buedick. You say the grand jury was in session in 1975 
from February until December? 



166 

Mr. LocKHART. Well, I don't remember the date on 

Senator Burdick. Or November? 

Mr. LocKHART. I'm sorry. I may have misspoken. I don't remem- 
ber the date on which the grand jury was dismissed. But it was cer- 
tainly clear that they were sitting, convened, and not dismissed 
throughout the major part of 1975. 

Senator Burdick. What other matters would come under his jur- 
isdiction as chief judge other than bankruptcy, magistrates, grand 
jury? What else would it entail as— — 

Mr. LocKiTART. The grand jury would not come under ■ 

Senator Burdick. Special duties of the chief? 

jMr. LocKiiART. I think Ave should be clear that in talking about 
the grand jury, we are addressing it only in the very general sense 
of relevance that Senator Garn has suggested liecause the role of the 
grand jury is subject to the assignment rule with respect to criminal 
cases. 

Other administrative m.atters other than the handling of the clerk's 
office, about which no complaint has been made, the handling of bank- 
ruptcy, about which no complaint has been made, the handling of 
probation and parole, about which no complaint has been made. I 
know of no other relevant functions of the chief judge. 

It seems to me that the magistrates role is the only role. Let me 
point out something else about this. Let's assume that all of the sub- 
stance of what these comments have to offer should be demonstrated. 
I certainly reject out of hand most of the complaints about miscon- 
duct, but let's assume that those are established. 

The effect of this bill would simply be to adopt the present assign- 
ment rule in the State of Utah with respect to assignment of cases 
and the present effect of that assignment rule would be to move Judge 
Hitter's authority to the northern district, where he would be acting 
as the same, independent, perhaps sometimes crotchety Federal judge 
in the northern district, as he now is in the central district. That would 
be the present effect of the assignment rule because the assignment 
rule is drafted in terms of assigning cases between the "chief judge" 
and "associate judge" on tliat district court. 

The desire on the part of Mr. Hansen, who appeared before me, is 
that this matter really ought to be before tlie Judiciary Committee of 
the House with respect to an impeachment suggestion — in fact. Mr. 
Hansen attempted to promote such a proposal before the State Bar of 
Utah. Pie offered the same pile of irrelevant information which deals 
mainly with substantive questions, as you've seen, rather than with 
conduct, and could not obtain a single vote from any bar commissioner 
urging that the matter be taken up for impeachment. And, indeed, 
one of the top level conservative members of the bar commission at 
the meeting of the Utah State Bar stood up and I think in a conscien- 
tious statement from the heart said in substance, "I have been greatly 
concerned about this matter. I have examined all of the evidence sub- 
mitted, and I find nothing on the evidence that would suggest the ap- 
propriateness of a referral to the House of Kepresentatives." 

Senator Burdick. Hoav many bar commissioners are there in Utah? 

]Mr. LocKHART. Oh, boy, you've got me — roughly six or eight. 

Senator Burdick. Do you have any questions? 

Mr. Westphal. I have none, Mr. Chairman. 



167 

Senator Burdick. If you have notliing further, thank you for your 
testimony. 

Mr. LocKHART. Thank you. 

Senator Buedick. Our next witness is Juclo;e David T, Lewis, chief 
]*udo:e, U.S. Court of Appeals, Salt Lake City, Utah. Welcome to the 
committee. Judofe. 

Judge Lewis. I'm am glad to be back, ^fr. Chairman. 

Senator Burdick. Judge, can I make a contract with you ? 

Judge Lewis. I know what the contract is, and you don't have to put 
it in words. You want to be free by 12 :30. 

Senator BmoicK. If it's all right with you, I'll stay here until 12 :15, 
and you can finish with Mr. "Westphah if you wish. Otherwise, you can 
come back after the joint session. Which do you prefer. Unless you can 
finish in 10 minutes. 

Judge Le-wis. Well, let's see what happens. I have no objection to 
coming back. 

Senator Burdick. Thank you. 

Judge Lewis. And I don't want to be accused of sluffing the question 
off in any way. It is of importance both to me as chief judge in the 
circuit and certainly of importance to the people of Utah and the bar. 

STATEMENT OF HON. DAVID T. LEWIS, CHIEF JUDGE, U.S. COURT 
OF APPEALS, SALT LAKE CITY, UTAH 

Judge Lewis. I favor the bill. In reviewing the legislative history" 
of it. it seems quite apparent that the principal purpose of the bill is tc 
have uniformity in chief judgeships at the district level. Senator East- 
land so stated and when the amendment, the grandfather clause, came- 
up. he submitted to it and made the statement that attrition would take 
care of the problem and it did with the exception of Chief Judge 
Eitter. 

And it has persisted since then. I disagree with the statement that 
the bill is limited only to him. The subject of the tenure of chief judges 
is one of great importance in being considered in many places and by 
many committees of the Senate. And the commission in charge of ap- 
pellate revision has recognized that the chief judge of a circuit — of 
course, their inquiry is limited to the appellate court — shall it be for a 
term certain of 7 years and one term only. 

That philosoplw. if that recommendation is good — and I testified 
earlier before another committee on that, indicating that I had no 
objection to it, that basically it would be better to get rid of a bad 
cliief judge at the end of 7 years than to perpetuate a good one. And 
the theory of the committee there was that 7 years is a good enough 
lerigth of time to put in whatever administrative reforms you think 
needed, implement them, and see what the result is. 

Now, if that's the problem — and I think it's one of the basic prob- 
lems — is how long should a chief judge serve regardless of whether 
he is on the district or on the court of appeals. It's utterly inconsistent, 
in my mind, to say that it is desirable for this Nation to turn over the 
chief judge of the circuit every 7 years and to perpetuate this grand- 
father clause. 

Uniformity hasn't been obtained and he has been chief judge ever 
since his appointment in 1949. It's just on principle. I think the 



168 

ori^nal purpose of the bill, setting the age of 70, is frustrated, in fact, 
by this perpetuation. And second, if it's desirable to have a turnover of 
7 years, I don't see why in the world this one should be perpetuated 
ior any particular reason. 

Now, in your letter to me, Mr. Chairman, you asked me to give 
primarily f'actural comment on this subject and you specifically ask 
what has happened to the "effective and expeditious administration 
of the business of the Utah District Court since Judge Kitter attamed 
the age of 70." Now, those words "effective and expeditious adminis- 
tration of business" are lifted from the statute pertaining to the powers 
of the Judicial Council of the circuit. 

And I assume, by using those words, that you place some significance 
on that aspect of it and I think you properly should. So in my pre- 
pared statement, I have attempted to analyze a few of the problems 
that have happened there. I think it's a fair statement to say — and I 
leave it to others as to what the reason is — that the overall adminis- 
tration of justice in Utah is not and has not been for a goodly number 
of years all that we could hope for. 

T?here's constant turmoil and was during the entire tenure of Judge 
Christensen and Judge Kitter and it hasn't stopped. The first time I 
participated as a member of the Judicial Council in the 10th circuit in 
matters pertaining to Utah was in 1958 when the basic dispute arose 
as to the assignment of cases. 

And we had a full hearing on it. Judge Kitter and then Associate 
Judge Christensen appeared to testify. Judge Kitter was assigning the 
cases arbitrarily. There was a legitimate dispute between the two of 
them. We settled that administratively, pursuant to our specific power 
granted under 173 to so do and we had a genuine dispute. We issued 
that order in 1958, divided the work as best we could, and things went 
along pretty good until 1965, until another dispute arose between the 
same two judges. And these are administrative matters I'm talking 
about entirely. 

When the new facilities, court facilities, at Ogden became suitable 
for use. Judge Kitter wouldn't go up there ; he didn't approve of the 
building of them and he wouldn't hold court in Ogden. So a dispute 
arose as to our old rule, what we were to do about that. We had another 
hearing on that. 

We divided the work differently and that's what happened when we 
kept Judge Kitter in Salt Lake and we gave the whole northern divi- 
sion to the associate judge because he was willing to travel. 

Incidentally, Mr. Westphal, they are both resident judges in Salt 
Lake, A third dispute arose, this time recent, among Judge Kitter, 
Judge Christensen, and Judge Anderson, who is the current associate 
judge. 

That dispute was concerned with the cases that had been assigned to 
Judge Christensen when he retired from active status. Judge Kitter's 
attitude at that time was that the original administrative order of the 
Council had been directed to him and to Judge Christensen personally 
and that wlien Judge Christensen took senior status the order had no 
further force or effect. 

We didn't agree with that so we issued a third order saying that 
Judge Anderson had inherited Judge Christensen's calendar that had 
been assigned to him and to the position, not to the persons. We rejected 



169 

Jud^e Christensen's claim that he owned them himself regardless of 
the fact that he had retired or taken senior status. 

And we ordered Judge Kitter, who was then assigning these cases 
to himself, to reassign them to Judge Anderson and let him do it, 
handle them. Judge Ritter openly deJfied that order, which brought 
into play the power or lack of power that the Judicial Council has. 

It also reached us in the form of a writ of mandamus because Judge 
Ritter called one of those cases before him, in direct contravention of 
the order of the Council, and as you are well aware, the wording of 
section 332(d) says, "The district judges shall promptly carry into 
effect all orders of the Judicial Council." 

Senator Burdick. Judge, the witching hour has arrived. 

Judge Lewis. Oh, yes. It came quick. Whatever you say. Senator. 
I'll come back, if you wish, or I could stay with counsel. I don't care 
which. 

Senator Burdick. It's your choice. I'll be back here at 1 :B0 or you 
can continue with counsel now. 

Judge Lewis. "Well, I would like to talk to joii about your concept 
of the Judicial Council. After my fifth appearance before Senate 
committees — and I caught the dickens on both sides of it — I've been 
accused of being too aggressive and too lax on it. And I think a little 
oil from this subcommittee on that aspect of it, regardless of this bill, 
might help tliis problem and others. 

Senator Burdick. Well, then, you would prefer to come back at 
1 :30 ? 

Judge Lewis. I think I would, yes. 

Senator Burdick. OK. We will recess until 1 :30. 

[Whereupon, at 12 :15 p.m., the subcommittee recessed, to reconvene 
at 1 :30 p.m., this same day.] 

APTERNOON" SESSION 

Senator Burdick. Judge Lewis, you may continue. 

Judge Le-\\is. JNIr. Chairman, when we recessed, I believe I was 
mentioning the third Council order issued relative to the assignment 
of cases, which is within the period since Judge Ritter became TO. 

As I say, he openly defied the Council order and he set the case for 
trial before himself — one of the cases in this group, several of them. 
He called one up and one of the parties asked for an application — to 
file an application for writ of mandamus, which, of course, was tied 
into a particular case. So we were acting in a judicial capacity when 
we considered that. 

And we issued a writ of mandamus, telling him to transfer these 
cases back to Judge Anderson. But he held his hearing, notwithstand- 
iiig the writ and the Council order. He had them come down to court, 
which, of course, put the bar in a terrible position. The}' had conflict- 
ing judicial orders and the Coimcil order. 

One side was willing to go forward and the other side appeared, 
but refused to participate, saying they were obviously in contempt 
of one court or another, which, of course, is a miserable situation to 
exist at all. A couple of days later Judge Ritter issued his own order, 
dividing the cases between himself and Judge Anderson, exactly the 



170 

way that the Council order divided them, and purporting to act under 
his own order, lie assigned this case back to Judge Anderson. 

That order is still on the books down there and Judge Anderson 
has never acquiesced in the fact that it isn't the order he is acting 
under. He is acting under the Council order and not Judge Kitter's 
personal order. 

The result is the same. We did nothing further after our order, 
we thouglit, had been complied with. If Judge Ritter wanted to think 
it was his order, why, we didn't see any use in making any further 
fuss over it. Bat it's still there and that unhappy situation could be 
avoided, I think, any repetition of it, if this bill is passed. 

There's no other chief judge that I know of who has ever defied 
an order of the Comicil in that manner. Now, those aren't the only 
Council orders that we've issued on this or related matters pertaining 
to Judge Ritter, but they predate his 70th birthday. 

One was, for instance, where he refused to allow any filings in the 
clerk's office on matters of naturalization. He just wouldn't accept 
them, so they had to go to State court. And we issued a Council order 
telling him he had to accept them and to hear them. And then Con- 
gress passed an act to back that up. That became moot. 

We presently have pending before us, as other witnesses have testi- 
fied, a number of writs directed against him, some seven in all, two 
of which are aimed at administrative orders, one of which was an 
order of our Council designating the rules to apply to whom land 
under what conditions people had free access to the clerk's office. 

And it has been accepted generally throughout the circuit as what 
the courts were doing anyway. Judge Ritter is accused, at least, with 
the pending writ, of having forceably ejected a person he considers 
undesirable from the building who was attempting to get some infor- 
mation from the clerk's office. 

So administrative matters are in some turmoil there and always 
have been. As far as the assignment of cases or relating matters. I 
have no doubt in my own mind that the Council has priority to take 
hold and to issue the orders. 

The difficulty is when a district judge defies the orders. As far as I 
know — and I don't know of any court in the Nation that's been more 
exposed to it than the 10th circuit has — we've had a judge in Oklahoma, 
as the Senator is well aware, that we got in a pack of trouble over — 
both the Council and the Nation and everything — because we tried 
to handle that matter by Council action. And I was intensely inter- 
rogated before another Senate committee on that, severely criticized 
for the order of the Oklahoma case and a little unhappy about it be- 
cause I dissented on it. I agreed that we had gone too far — we didn't 
have the power. 

Now, press reports in Utah — and, of course, T don't know where 
they get their information — ^liave consistently said that one of the 
effects of this bill would be to take away Judge Ritter's power of as- 
signment. I think the Council has done that and done that a long time 
ago. We've modified it and our present order is in effect. 

And it is being complied with — subjectively Judge Ritter is com- 
plying with his own order, but actually it makes no difference as far 
as we're concerned, except it might surface again and we'd have a. 
pack of trouble again. 



171 

I think the power of the Council is clear in that matter and when we 
pass to the matter of the magistrates, I don't think the Council has 
any power whatsoever to do anything about it. And I'm deeply con- 
cerned about that — the general administration of justice in Utah. 

Judge Bitter — oh, about 2 yeai-s ago — summarily discharged his 
magistrate and I assume that at the time he did it, he didn't realize 
that the term was for a term certain and that you couldn't suinmarily 
remove a magistrate, the same way 3-ou can a clerk of court. They are 
in there unles they — they are entitled to a hearing — can be removed for 
cause. 

There was a time when this magistrate who was doing Judge Hitter's 
limited functions as a magistrate was not being used at all, but was 
drawing a full salary for it. I personally interfered with that, not as 
anything more than a native Utahan who was on a higher court, 
saying I thought it was intolerable to have an employee drawing 
$15,000 a year who was doing nothing. He had no duties and wouldn't 
be used. And they got together and they agreed to switch magistrates. 
And the Ogden magistrate would travel to Salt Lake and the Salt 
Lake magistrate would travel to Ogden. 

And then when the term expired, that position was never filled. So 
at the present time we have one part-time magistrate, who does noth- 
ing except conduct preliminary hearings. Xow, that doesn't comply 
with my concept of what Congress intended by creating magistrates. 

I think it's a gross failure not to activate and use them and espe- 
cially in Utah, where distances are so great and w'e have so many 
military installations and national parks, where traffic control— all 
kinds of controls within there — there's no use making an arrest be- 
cause it never reaches a court or a magistrate. 

Judge Anderson has tried a few of them, such petty things as some- 
body carving his initial on a tree in a national park. Well, of course, 
that is not — that's a complete waste of judicial power, I think, when 
magistrates can and should do those things. 

I've received personally many complaints in that regard — the Justice 
Department, of course, the Department of Agriculture, the Forest 
Service, the Wildlife ]Management, General Services. They can't even 
regulate parking in the Federal buildings there because if they issue a 
ticket that's the end of it. Nothing ever happens. And as soon as people 
find out that nothing is going to happen, why, they are going to park 
anywhere and it is utter confusion. 

i personally have suffered that difficulty in my own case. I can't 
keep my own parking place clear. ^ 

I can trulv say that in my considered judgment that is a failure 
of administrative work and utilization of the existing remedies for 
such a thing. Some years ago Utah had one of the worst — passing to 
another subject — records on the utilization of juries. That has im- 
proved and I have attached to my written report the administrative 
office report on such things and which contains the comment that it 
is lar<reTy due to Ju.dge Anderson's reAnsion of his use of the juries. 
Judjre Eitter is going along the same way. 

The Bankruptcy Court is administered well, always has been. 
Judsfc Ritter made an excelleTit appointment. The man is competent. 
Everything is fine in that regard. 



172 

I don't know what the chairman's attitude is about the powers of 
the Judicial Council, but we think that we've done everything we can^ 
formally, informally, to dilute the turmoil that has existed in Utah 
for a long, lono- time. It surfaces on minor matters, where persuasion 
has been effective. 

But we are the only circuit that I know of where we have had any 
district judge openly defy Council orders. Early — I think it was in 

1958 I'm not certain of the date — we wrote in the — what's the famous 

Indian Horse Case? — in which we reversed Judge Hitter and sug- 
gested that the record indicated that he felt so strongly in favor of 
the Navahos that we suggested to him that he let some other judge 
hear the case. 

It came — he stated in open court that he wasn't going to follow 
any suggestion of the circuit court, the court of appeals, and proceeded. 
And they, again, filed a writ asking for enforcement of what we had 
suggested, which we did. And I had some doubt about whether or not 
the court of appeals had the power to make findings from a record 
that a man, district judge, was disqualified — and I'm no advocate of 
the big brother system on the court of appeals trying to run the dis- 
trict courts in any way. 

But we backed that writ up with a Council order, thinking perhaps 
that the wording in 332 might bolster the effectiveness of it. And 
Judge Hitter sued us with the original writ in the Supreme Court, 
alleging that the Council order was unlawful, that we had no power 
to issue any orders because any and all orders were an interference 
with the independence of the district court and applied for certiorari 
on the judicial writ, both of which were summarily dismissed by the 
Supreme Court without necessity of anything on our part and were 
dismissed at the instigation of the Solicitor General. 

There are other matters that I haven't treated in detail in my writ- 
ten statement, but I wasn't sure how far you wanted to interrogate 
me on them. They do affect the administration of justice in Utah 
and they are administrative matters. It has been pointed out to this 
committee earlier today that there are no written local rules affecting 
the court as a whole. 

Jud.Te Christiansen, when he was an active judge, formulated some 
of his own. We still have them printed. Judge Eitter wouldn't approve 
of them and wouldn't approve the expenditure of money for that 
purpose. We handled that informally by asking the administrative 
office to expend the money to let Judge Christiansen publish his rules. 
Thev complied with our request and it was done. 

Thev never met regularly to discuss the business of the court. I 
don't know whose fault that is. It takes two usually to create that 
situation in some way. But it is done everywhere else. Every other 
district court in the country — the judges meet to discuss their general 
problems. And I don't think it improper for me to state that I think 
the cause, the uniqueness of the two-judofe court, where the vote of 
the chief judge is a majority, if they disagree on such things, has 
been the basis of it. T\Tiat's the use consulting? What's the use doing 
anything because he's going to do what he wants to anyway and he 
has a statutory risfht to do it? 

Judge Christ ensen has been very unhappy because when he retired 
he was never asked to participate in district court cases. Since he took 



173 

senior status, I have assigned him regularly to the District of Utah, 
but he has never been utilized because I don't have the power to give 
him a particular case. I can assign him to make him available, but it's 
up to the judges to use him. 

These matters are important. I see no way the Judicial Council can 
solve them. I repeat that I think the Council has done everything they 
can. We've handled things informally. We've done it by persuasion. 
We've done it by formal order. And eveiy time an important order 
comes down, it is defied and we are uncertain as to whether we can 
do anything about it. If they issue one order, there's not much use 
issuing another one. 

It's my view that we don't have the power to do it. We're acting in 
an administrative capacity without any sanctions that we can invoke. 
A pending writ we have asks to hold Judge Ritter in contempt for 
violation of a Council order. I don't think we have that power. 

If I attempt to recommend to the Council that we do it, what would 
happen, perhaps, is what happened earlier with Chandler, and the 
first thing we know, I'll be before the Separation of Powers Commit- 
tee trying to justify why we have interfered with the free independence 
of a district judge. 

Those powers should be spelled out, Mr. Chairman, in some way. 
As I indicated in my preliminary statement, I've lived in Utah all of 
my life and have lived with this problem all of my judicial career. 
It has been an uniileasant thing for me and frustrating. 

I've been criticized both ways for being too aggressive and not 
aggressive enough. I'm open to suggestions and I'm open to any ques- 
tions that you want to ask me about anything I've mentioned. There's 
another power, of course, which is inherent in the chief judge and 
which would dispell the cure, and that's the fact that he has the sole 
power, naked power, to appoint any officer of the court, whose dis- 
agreement with the chief judge is in — he summarily has discharged 
a clerk recentl}', chief clerk of the court. It has been vacant for about 
60 days or so, as far as I know. It hasn't been filled since I left Salt 
Lake. That condition occurred once before and there was no clerk 
appointed for a long time. 

I will just repeat the conclusion that while tliis bill won't cure 
many of the things some of the earlier witnesses have talked about, it 
will cure some things and I think it would cure the magistrate prob- 
lem immensely and quickly. I'll be glad to answer any questions that 
you might think proper. 

Senator Burdick. Thank you very much. Judge. 

It wasn't clear what happened in the magistrate situation. Has he 
refused to ask for more magistrate help ? 

Judge Leavis. Refused to do what? I didn't hear your question. 

Senator Burdick. Has Judge Ritter refused to ask for more magis- 
trate help? 

Judge Lewis. He let that term expire without reappointing any- 
body. The magistrate is controlled — initiated and controlled, the 
number and the salary — by the initial analysis the administrative 
office made, which was for four. Of course, Utah has grown quite a 
bit since then and if you don't use them, you don't get them. 

Each district is analyzed as to what the magistrate is doing, what 
duties he has, what time he spends on it. And if you don't appoint 

78-678—76 12 



174 

anybody to these offices, they are taken away from you, and right- 
fully so. There's no use having — and that's how tliat operates. 

The administrative office makes a survey. It is referred to a com- 
mittee of the Judicial Conference and the Judicial Conference makes 
a recommendation, based entirely on the utilization. There have never 
been more than two part time and now there is only one, very com- 
petent man, but he is doing nothing but preliminary hearings, 
absolutely nothing. 

Senator Burdick. Well, I know how the selection is made, but is 
there any input from Judge Ritter ? Has he ever asked for considera- 
tion of more magistrates? 

Judge Lewis. No. He didn't even fill the ones he had allotted to 
him. There are a lot of communications in my written report in which 
he says he is going to assign all of these duties to them and that they 
need them and they are going to use them to the fullest, but they never 
implemented it — never did. 

Senator Burdick. One of the problems the committee will have to 
wrestle with, as I see it, is: Suppose the facts you've given me this 
morning, and have been given by the other witnesses, suppose they 
had occurred when Judge Eitter was at the age of 67 rather than 77. 
What would be the procedure ? 

Judge Lewis. On what problem ? 

Senator Burdick. Well, removing him from the chief judge status. 

Jude:e Lewis. I'm not sure I understand your question. If he 
was 67? 

Senator Burdick. Yes. Suppose he hadn't hit that magic 70, how 
would you proceed? 

Judge Lewis. You wouldn't. 

Senator Burdick. Well, then, there's no remedy in that situation; 
is there? 

Judge Lewis. If he were 67? 

Senator Burdick. Yes. 

Jud<]re Lewis. No. You've iust got a judge that isn't performing 
well. It won't happen, Mr. Chairman, on a multiple-judge court. If 
you have a chief judge that can be outvoted — he is outvoted. It lies 
with the judges. It isn't an inherent power of Judge Ritter to do this. 
He has the power only because it's a two-judge court. 

Senator Burdick. Well, as I understand, the grandfather clause 
cnlv applies to a two- judge court; isn't that correct? 

Judge Lewis. No. 

Mr. Westphal. That's right. 

•Tudf^e Lewis. Well, yes. But it applied to two- judge courts at that 
time. Utah is the last survivor. It still has two. There were other two- 
judffe courts at the time and some of those still sunnve with the same 
chief judge. They now have four judges and none of them have reached 
the age of 70 — but there's only one. He's in the South — I think the 
southern district of South Dakota. He must have been very young when 
he was first appointed. 

Senator Burdick. In other words, this proi^edure we're using here — 
or sought to be used, I'll put it that way — is not a direct approach to the 
problem ? 

Juds^e Lewis. Well. I'm not sure. I wouldn't say unequivocally "no." 
I get back to the basic concept that the Senate is exploring and every- 



175 

body is exploring as to the tenure of the chief judge, that you don't 
want to perpetuate a chief judge at any age if he's out of whack with 
the modern procedures and modern innovation. 

This bill, for instance — not "bill," but the recommendation of the 
Commission on Revision of Appellate Courts — I would probably be 
the biggest target for that. It would take me right out 6 years before 
I turn 70. I have no objection to it — I so testified. I think there's a lot 
of merit to — chief judgeships should turn over. Senator. 

Senator Burdick. I know, but 31 judges have had the benefit of this 
law. Now we come to the 32d and Ave say "no."' That's what I'm saying. 
When Judge Eitter steps out, this law automatically expires, this 
grandfather law. 

Judge Lewis. Well, there will be some changes made if he loses his 
chief judgeship. Of course, he remains on the bench and 99 out of 100 
complaints that you hear about Judge Ritter are not administrative 
in nature. It's a different problem. I'm not here to testify on that 
problem. 

But if you're on a multiple- judge court and your word is it, there's 
an element of power that makes you tend to ignore the judge that 
you're not very fond of. They are not consulted. Judge Anderson and 
Judge Christensen were never consulted on a major, important ap- 
pointment down there, except perfunctorily, ever. 
Senator Burdick. Do you have any questions ? 

Mr. Westphal. In the areas in which the chief judge, by virtue of 
being the chief judge, has authority by reason of the statutes, you've 
mentioned the referee in bankruptcy situation where he has the power 
to appoint the referee in bankruptcy, you say that that referee's bank- 
ruptcy office is functioning properly, as far as you are aware ? 
Judge Lewis. As far as I know. 

Mr. Westphal. You mentioned the operation of the clerk of court 
office. The chief judge has the complete power to appoint and to relieve 
of office the clerk of the court and his deputies ; is that right ? 

Judge Lewis. He doesn't have that as far as — the statute doesn't 
give it to him. It says that in a two- judge court that if they can't agree, 

then the chief judge will do it. If they don't agree 

^iv. Westphal. So tliat by virtue of not agreeing or not consulting, 
under that kind of a statute, the chief judge can just arrogate to him- 
self that power of appointment. 

Judge Lewhs. That's right. If he chooses to do it unilaterally, the 
meeting would be useless to hold. If he's not going to consult and be 
guided by the other judges' wishes, it's an absolute power. It's an em- 
barrassment to the associate judge in some ways because he has no 
power to even discharge his own emploj^ees that are assigned to him, 
nor can he direct who is to be assigned to him. He has no voice in it. 

]Mr. Westphal. You say that about 60 days ago the clerk of court 
was summarily discharged from his office and that the office has been 
vacant for 60 days. 

Judge Lewis. Well, when I say "summarily," I didn't know anything 
about it until I read it in the paper. I talked to the clerk afterwards. 
He thought that maybe he was taken somewhat by surprise. The asso- 
ciate judge didn't know about it. 

Mr. Westphal. But I take it at the present time one of the deputy 
clerks of court is functioning as an acting clerk? 



176 

Judge Lewis. I don't know. , ., . ^ u ^-i 

Mr. Westpiial. Are there a number of reports that are made by the 
clerk of court routinely on behalf of the court that don't have to be 
approved by the chief judge or by any other judge of the cmirt ? 

JudgB Lewis. You mean reports to the administrative office? 

Mr. Westphal. The administrative office and others. 

Judge Lewis. I think that varies. It would depend a little bit on the 
confidence you have in your clerk. ^ ^^ , . 

Mr. Westphal. The probation office of the District ot Utah, how 
has that functioned? ,, -r, •, 

Judge Lewis. I'm not knowledgeable on that at all. I've heard no 

complaints. , . -r, ^ ■> 

Mr. Westphal. On this matter of the use of magistrates— I'm look- 
ing at the statute, section 631, relating to the appointment and tenure 
of ''magistrates. And it provides that the judges of each district court 
shall appoint U.S. magistrates in such numbers as the conference may 
determine under this chapter. Where there is more than one judge of 
a district court, the appointment shall be by the concurrence of a ma- 
jority of all of the judges of such district court and where there is no 
such concurrence, then by the chief j udge. 

Well, this again is one of the statutes where, by reason of the dis- 
agreement between two judges on a court, the chief judge would then 
have the sole power of appointment. 

Judffe Lewis. That's riirht. 

ISfr. Westphal. So that if one assumes a disagreement between Judge 
Ritter and Avhoever has been the second judge on this matter of mag- 
istrates, then that appointing power would have resided, by virtue of 
this statute, in Judge Hitter ; is that correct? 

Judo'e Lewis. Entirely so. 

Mr. ' Westphal. And" there have been — well, as I understand the 
document submitted wtih your statement— the part-time magistrate 
positions at Cedar City and at Provo were never filed and their posi- 
tions just lapsed and eventually the authority was taken away by the 
judicial conference? 

Judge Lewis. Yes. That's routine. 

Mr. Westphal. Those two locations — are they essentially locations 
at or near a national park ? 

Jud.o-e Lewis. Well, Cedar City would be. 

Mr. AVestphal. And the other one is at Provo ? 

Judge Lewis. Well, Provo is quite a community itself. It would be 
a 

Mr. Westphal. But that was about a $2 or a $500 position, as I recall. 

Judge Leavis. Well. I really don't know how they picked Provo. I 
know that it's the third largest city in Utah. Ogden is right in the 
heart of the military installations and Cedar City is in the heart of 
the Ronthern Utah park area. 

Mr. Westphal. What was authorized for Utah, as far as magistrates 
were concerned, were part-time magistrates, one at Salt Lake City 
and one at Ogden; right? 

Judge Lewis. Yes. That was the authorization until recently. 

Mr. Westphal. Now, you say one of the positions was vacant for 
awhile ? Was that the position at Ogden or the one at Salt Lake City ? 



177 

Judge Lewis. It wasn't vacant. Are you referring to when Judge 
Eitter discharged his magistrate ? He became 

Mr. Westphal,. Well, I thought there were two instances : One when 
he discharged a magistrate and the other when the term or authority 
expired and 

Judge Lewis. He didn't reappoint anybody, so it lapsed and as 
soon as it lapses that way and is not filled, the judicial conference 
takes it away. 

Mr. Westphal. Are we talking about the same position, then, the 
position where he fired the magistrate even though the magistrate 
was appointed for a 6-year term ? He fired him and then did not re- 
appoint another magistrate 

Judge Lewis. He did not reappoint anybody, no. 

Mr. Westphal. — and so, therefore, the position lapsed ? 

Judge Lewis. Yes. 

Mr. Westphal. But yet under this statute, the language of which 
I read to you, he had the sole power of appointment assuming a dis- 
agreemnt between he and Judge Anderson. 

Judge Lewis. Yes. 

Mr. Westphal. There was some testimony here this morning by 
Mr. Child, the U.S. attorney' for the District of Utah, to the effect 
that he was having some problem with receiving unduly short notice 
of the setting of a calendar of criminal cases for trial before Judge 
Eitter and that on one occasion he made a written motion to Judge 
Eitter requesting that the U.S. attorneys office receive 21 days ad- 
vance notification of the setting of such a calendar of cases for trial. 

I asked ]Mr. Child whether he had ever applied to the Judicial 
Council of the circuit under section 332, asking the Judicial Council 
of the circuit to, by order, specify an orderly procedure for the set- 
ting of criminal cases for trial. Pie said he had not. 

My question to you. Judge Lewis, is, based on your experience, both 
from the Chandler situation and the Eitter situation, what power do 
you believe that the Judicial Council of the circuit has to remedy a 
situation involving the setting of criminal cases for trial of the type 
that's been described to us here today ? 

Mr. Lewis. Well, let me distinguish between different aspects of 
it. That would have to come under 332, as a general power of the 
Judicial Council to effectuate the efficiency of a court. It would be 
very undesirable, speaking generally in my opinion, for the Circuit 
Council to try to impose local rules on judges. I think their judgment 
is much better than ours as to how to handle their own court. 

I assume that we might, from the standpoint of naked power, pro- 
vide court rules for Judge Eitter, but I think it would be a gross mis- 
take to try to start to exercise that kind of power, assuming you have 
it, because each court operates and knows their own problems. And 
if you had a set rule to give 21 days notice, it might be a serious in- 
terference with the power of that judge to operate his calendar in 
the way he wants to operate it. 

You can't cure bad judgment by a council order. You can issue it, 
but it doesn't solve it. It might create more problems than it cures 
and then the next district attorney will come along and he doesn't 
want that much notice. 



178 

The second thing, we don't initiate orders from the Council. Some- 
bod}^ has to complain to us. We don't think it's our function to watch- 
dog or, because we become annoyed with a certain judge, to try to go 
in and issue Council orders right and left as to what they do. 

But the biggest set back is that if we did that and he defies them^^ 
what do we do about it? 

Mr. Westphal. Well, I would agree that certainly you wouldn't 
want to run a judicial system whereby the Judicial Council of the 
Circuit would have to step in and correct every— or try to specify the 
procedure to be followed by a trial court within its circuit. 

However, in light of a specific complaint, about a specific practice — 
and that is, a practice of setting a calendar of criminal cases for trial 
on what is alleged to be insufficient notice— do jou feel that the Judi- 
cial Council, No. 1, would have the power to issue an order limited 
only to correcting this particular complaint, that is, the failure to 
give sufficient advance notice of the setting of the case for trial? 

Judge Lewis. Oh. I think probably we could issue such an order. I 
would consider it highly undesirable to do so, unless there was some 
really terrible failure to 

Mr. Westphal. Then 

Pudge Lewis. If we could do it with the district attorney, we could 
do it on civil cases, too, that the lawyer has to have so many days 
notice. I don't think that really is contemplated as a function of the 
Council. Those are set by the rules of procedure or by local rules of 
some kind. They vary greatly throughout the Natioii as to how they 
operate. I'm fearful of an overzealous Council that thinks they know 
the best thing for every locality^ — their district judges. We became 
very aggressive at one time. As I say, I dissented on it because I 
thought we were overreaching. And ultimately I think we were taught 
a pretty good lesson : That it isn't the purpose of that statute to try 
to control and bind the district judge. 

Mr. Westphal. In any event, you do not feel that the Council 
should act on its own motion there, but it would be more preferable 
if tliey acted on petition of someone 

Judge Leavis. We have to have somebody officially complain. I can't 
contemplate ever recommending that we interfere just on our own. 

Mr. Westphal. Mr. Child has testified 

Judge Lewis. One of the most important things in the operation 
of a circuit, Mv. Westphal. is to keep a good relationship between 
the court of appeals judges and the district judsres. It'll operate so 
much better administratively and on every level if you keep that re- 
lationship. Where it falls open for suggestions or advice and things 
like that, when you start to wave this section 332 around and I think 
it would be much worse than 

Mr. Westphal. I understand and appreciate that, Judge Lewis. My 
only line of inquiry because we've been asked to consider here this 
morning some specific conduct by a specific judge and where the 
record indicates that uj^on specific occasion, when request has been 
made, the Judicial Council of the tenth Circuit has exercised some 
authority — I'm just trying to see what are. No. 1, the legal limits, and 
what are the practical limits of an exercise of power under 332. 

And I think you've explained some of those limitations for me. 

Judge Lewis. If such a petition were filed, we certainly would con- 
sider it. There isn't any question about that. We'd hold a hearing on 



179 

it, •which we've done every time there has been a serious dispute, an 
inter judge dispute, or between the Government and any judge. 

I can't answer what the Council would do. I have personal opinion, 
but I'd be very hesitant to start making local rules of that nature. If 
it was grave enough, my attitude would be different. 

Senator Burdick. Was there more than one occasion where he re- 
fused to honor your order more than once? 

Judge Lewis. Oh, no. He has never reconciled, never admitted that 
we ever had any power. He has denied it. He has defined that one 
openly. Just eyeball-to-eyeball he told me he wasn't going to obey 
my order and he didn't. 

iSenator Burdick. But he complied in a left-handed way by issuing 
an order of his own that was similar or identical ? 

Judge Lewis. Identical. And, of course, the remedy would be for 
him to, in that particular case, would not be to defy us because it was 
also backed up with a judicial writ — would be to go to the Supreme 
Court and get relief, not to defy it under any circumstances. 

Senator Burdick. Well, my question, Judge, still is : Was there any 
other formal order that he defied ? 

Judge Lewis. We have a present pending complaint that he has. 

Senator Burdick. But that's pending in your court? 

Judge Leaves, Yes, yes. 

Senator Burdick. Thank you very much. Judge Lewis. Your state- 
ment will be included in full in the record. 

At this time without objection we introduce a letter and statement 
from Judge Ritter and also a statement and exhibits from a John J. 
Flynn, a resident of Utah. 

[The above referred to statements and exhibits follow:] 

Written Statement of Hon. David T. Lewis, Chief Judge, U.S. Court of 
Appeals, Tenth Circuit, Before the Subcommittee on Improvements in 
Judicial Machinery 

I am pleased to comply with the letter request dated April 27. 1976, to furnish 
a prepared statement of my views concerning the merits of S. 1130. a Bill pres- 
ently pending before the Subcommittee on Improvements in Judicial Machinery. 
I have also completed arrangements to appear in person before the Subcom- 
mittee on May IS, 1978, to answer such questions as the Subcommittee and 
counsel consider appropriate to the subject matter. _ 

I was appointed a judge of the Court of Appeals for the Tenth Circuit in 19o(> 
and thus have been a member of the Judical Council of the Tenth Circuit since 
that date. I became the Chief Judge of the Tenth Circuit in 1970 and have been 
a mem.ber of the Judicial Conference of the United States since that date. My 
residence has continuously been in Salt Lake City. Utah, from birth to the 
present and obviously I have been exposed, both judicially and personally, to 
the subject of the administration of justice within the District of Utah. 

S. 1130, introduced bv Senator A. J. (Jake) Gain of Utah in this session of the 
94th Congres. is simitlar to. or identical with, earlier bills introduced m the 
Congress. The Bill contains b"t a simple amendment to section 3 of the Act ot 
Congress of August 6. 1958 (72 Stat. 497), the effect of which would be to repeal 
a provision in the cited Act that exempts then existent two-judge districts froni 
the mandate of the Act requiring chief judges to surrender the position of chief 
judge at age seventy. Excerpts from the legislative history of the Act are 
attached to this statement (Attachment A) indicating the predicate of the 
amendment to the original Bill whiili added the so-called "grandfather clause 
to which the Subcommittee's present inquiry is directed. Of particular interest is 
that Senator Eastland's forecast that uniformity under the amended Act would 
be attained through "attrition" has, in main, been accomplished by passage of 
time. At present Chief Judge Willis W. Ritter of the District of Utah is the 
sole beneficiary of the "grandfather" provision in a district having but two judges 



180 

in 1958 and still having but two judges in 1976. Chief Judge Ritter was born Jan- 
uary 24, 1899. 

Earlier efforts to enact bills identical to S. 1130 have failed despite the favor- 
able (and unanimous) recommendations of the Judicial Conference of the United 
States and its members. During my tenure as a member of that Conference I have 
consistently voted to recommend the several bills for favorable consideration by 
the Congress. My support for these earlier versions of S. 1130 has in no way been 
dependent on any personal opinion as to whether Judge Ritter is a good, bad, or 
indifferent judge. I simply beheve that the uniformity concerning the tenure 
of chief judgeships, as indicated to be the prime mandate of the Act of 1958 by 
Senator Eastland, should be the law and that any justification for a delaying 
"grandfather clause" has long since disappeared. I therefore urge that favorable 
consideration be given by this Subcommittee to S. 1130. 

Your letter of April 27, 1976. specifically asks me to give "primarily factual" 
comment on whether "Judge Ritter'S continued exemption from the age 70 rule 
has affected the 'effective and expeditious administration of the business' of 
his court or has adversely affected the proper administration of justice in Utah." 
I, of course, have no personal knowledge of the day by day administrative activi- 
tives of any district court within the Tenth Circuit nor can I sever my judgment 
as to the administration of justice within the District of Utah as before and 
after a date certain such as the 70th birthday of Chief Judge Ritter. However, 
I deem it proper to call to the attention of the Subcommittee several matters 
affecting some problems which began years ago and have continued to the present. 

ASSIGNMENT OF CASES ^ 

As early as 1958 a basic dispute arose between Chief Judge Ritter and the 
Honorable A. Sherman Christenseu, then an active judge in the District of Utah.' 
The power of assignment was then being administered solely by the Chief Judge. 
This dispute was submitted to the Council and settled by its order dated Janu- 
ary 28, 1958 (Attachment B). In 1965. a further dispute arose between those two 
judges apparently involving the utilization of new court facilities at Ogden. Utah, 
in the Northern Division of the District of Utah. This dispute was settled by the 
Council order of May 24, 1965 (Attachment C). In 1971, after Judge Christenseu 
assumed senior status as a district judge and the Honorable Aldon J. Anderson 
qualified as Judge Christensen's successor, a dispute arose among all three 
judges concerning the assignment of particular cases the details of which are set 
out in the Council order of December 20, 1971 (Attachment D). This order did 
not settle the dispute and was openly defied by Chief Judge Ritter who set the 
disputed cases before him. This action was in direct contravention of the pro- 
visions of 28 U.S.C. § 332 (d).^ However, at a later date. Chief Judge Ritter, pur- 
portedly acting in his own right, entered an order of assignment identical to that 
of the Council and the intensity of the controversy disappeared. 

Press reports have repeatedly stated that one of the effects of the passage of 
S. 1130 would be to take from Chief Judge Ritter his power of assignment. This I 
believe has already been lawfully done by Council action. However, passage of 
S. 1130 might well serve to negate any chance of a repetitive dispute in this area. 

trSE OF MAGISTRATES 

I have attached hereto two surveys of the Administrative Office pertaining 
to United States Magistrates and their use within the District of Utah (Attach- 
ments E, F). An examination of these reports will reveal, among other things, 
that for part-time magistrates were originally contemplated for Utah with 
broadsroped duties to be assigned to them. The reports indicate a continuing de- 
terioration in this field of administration through nonappointment to the posi- 
tions and nonuse of the full purpose of magistrates. At the present time the 
District of Utah has but one magistrate (part-time) whose sole function is to 
conduct preliminary hearings. 



1 Copios of the controlling orders of the Circuit Council are attached hereto (Attach- 
ments B, C, D). 

2 Now a senior district judge and an active member of the Emergency Court of Appeals, 
s Section .S82(d) states in its last sentence: "The district judges shall promptly carry 

into effect all orders of the judicial council." However. I know of no stfitutory authority, 
•or case law. that allows the Council to effectively enforce its orders against a defiant 
■district judge. Sanctions such as contempt proceedings art traditional judicial functions 
and the general function of the Council is administrative in nature. However, in the matter 
of case assignments by Council order, the dispute will reach the court in its judicial 
-capacity in a particular case. This occurred in this instance. 



181 

In a two-judge district the chief judge, in effect, has the practical responsibility 
for the appointment and utilization of magistrates because 28 U.S.C. § 631 pro- 
vides in pertinent part that such appointment "shall be by the concurrence of a 
majority of all the judges of suc-h district court, and when there is no such con- 
currence, then by the chief judge." 

As a direct result of such a severely limited use of magistrates the proper 
administration of justice within Utah must and does suffer. The increased burden 
upon the active judges is apparent. Seldom is a petty offense prosecuted through 
trial. Complaints in this regard have reached me from the Justice Department, 
Department of Agriculture, and its Forest Service and Wildlife Management, Gen- 
eral Services Administration, Department of the Interior, and various military 
institutions and installations in Utah. 

JTJBT UTILIZATION 

I have delegated to the Circuit Executive the analysis of this subject. His 
report is attached (Attachment G). 

BANKKtrPTCT 

All reports in this regard indicate effective administration. 

COMMENTS AND CONCLUSION 

I consider the foregoing to be the probable major fields of interest which the 
Subcommittee may care to consider. However, other factual matters may be of 
concern in its inquiry. Such matters include the fact that the judges of the Dis- 
trict of Utah do not meet routinely or regularly to discuss the business of the 
court, no written local rules are existent in the Central Di^dsion, the services of 
Judge Christensen have never been utilized within the District since he took 
senior status, and other matters of similar nature which are quite traditional 
elsewhere. If these matters do concern the Subcommittee, I shall attempt to be 
as helpful as possible during my appearance at the hearing. 

Two of the members of this Subcommittee are also members of the Commission 
on Revision of the Federal Court Appellate System. That Commission recom- 
mended that the chief judge of a circuit serve only for a term certain of seven 
years with a further limitation of one term. That recommendation combined with 
the original uniformity sought to be achieved by the Act of 1958 clearly indicates, 
to me, that S. 1130 should receive favorable consideration and ultimately should 
be enacted into law. 

Excerpts Fkom the Legislative History of the Act of 1958 (72 Stat. 457) 

The initial legislative proposal regarding the relinquishment of a chief judge- 
ship at the age of TO years, H.R. 985, 85th Cong., 1st Sess., which was supported 
by the Judicial Conference, the American Bar Association, the Attorney General, 
the Attorney General's Conference on Court Congestion and Delay in Litigation, 
and the House and Senate Judiciary Committees, did not contain any provision 
exempting chief judges of tuo-judge districts from the scope of the bill. The 
grandfather clause first appeared after both the House and the Senate had 
approved the bill, the latter occurring July 8, 1958. 

On July 28, 1958, Senator Frank Church, after earlier moving for a reconsid- 
eration of the bill, proposed the addition of the following amendment, inter alia, 
to H.R. 985 : "'except that the amendment made by section 136 shall not be effec- 
tive with respect to any district having two judges in regular active service so 
long as the district judge holding the position of chief judge of any such district 
on such date of enactment continues to hold such position." 104 Cong. Rec. 15250 
(1958). In support of this amendment, Senator Eastland made the following 
statement : "Mr. President, this second amendment [the grandfather clause] 
recognizes that in a district having only two judges, the administrative duties 
are not such a heavy burden upon the chief judge and do not require him to spend 
a substantial part of his time in pursuing duties other than judicial. For this 
reason, it is deemed desiralile not to change the present relationship of the judges 
in districts where there are only two judges in active service. 

"It would appear that in courts having only two judges in active service a 
relationship has existed which should not be abruptly changed. Attrition will 
take care of these situations, and upon the death, resignation o[r] retirement of 
the chief judges now serving in such two-judge districts, the effect of the law 
wiU be uniform and the provision of H.R. 985 will be enforced. 



182 



"These amendments meet the approval of the Administrative Office of the 
United States Courts and meet any known objection to tlie bill." 104 Cong. Rec. 
IS'^uO (1958) In accordance with Senator Church's amendments, the title of the 
act was amended to read : "An act to provide that chief judges of circuit courts 
and chief judges of district courts having three or more judges shall cease to 
serve as such ui>on reaching the age of 70." 104 Cong. Rec. 15251 (1958). 

In the Judicial Council of the Tenth Cikcuit of the United States 



January Session — 1958 

In the Matter of the Division of Business and Assignment of Cases in the 
United States Court for the District of Utah 

ORDER 

A formal request, together with data in support thereof, to divide the business 
and assignment of ca^^es in the United States Court for the District of Utah was 
submitted to the Judicial Council. The Council considered the matter at a 
meeting held in Denver, Colorado, on December 2. 19.57, and considered it further 
at a meeting held in Denver on January 8, 1958. All members of the Council were 
present and participated in both meetings. At the meeting held on January 8, 
the Chief Judge and the Associate Judge of the Court for the District of Utah 
were present in person ; each submitted an extended verbal statement ; and the 
Chief Judge submitted a statement in writing. 

The Council Finds : 

fl) The Judges of the United States District Court for the District of Utah are 
imable to agree upon the adoption of rules or orders for the division of the busi- 
ness of, and the assignment of cases pending in. that Court ; and 

(2) The effective and expeditious administration of the business of the United 
States District Court for the District of Utah requires the Council to make this 
order under the power and authority granted to it by 18 U.S.C. §§ 137 and C32. 

Accordingly, it is Ordered : 

(1) For the purpose of the division of business and the assignment of cases 
made herein the Judge of the United States District Court for the District of 
Utah who is senior in commission is designated as "Chief Judge" and the other 
Judge is designated as "Associate Judge." 

(2) All cases which are filed before the effective date of this order shall be 
assigned in accordance with the practice now existing in the Court. All business 
arising, and all cases filed, on and after the effective date of this order shall be 
divided and assigned as herein provided. 

(3) All criminal proceedings, including cases instituted under the Federal 
Juvenile Delinquency Act, removal cases, and complaints for the apprehension 
of material witnesses, are assigned to and shall be handled bv the Chief Judge 
in each even numbered calendar year and are assigned to and shall be handled 
by the Associate Judge in each odd numbered calendar year. The Judge to whom 
the criminal proceedings are assigned in any calendar year shall have full con- 
trol over and responsibility for the call and discharge of grand juries, the return 
of indictments, arraignments, cases under the Federal Juvenile Delinquency Act. 
complaints for the apprehension of material witnesses, and all other criminal 
proceedings. All cases arising either by indictment returned or information filed 
during the period in which a particular Judge is assigned to handle criminal pro- 
ceedings shall remain assigned to that Judge even though they are not concluded 
within such period. Proceedings under 28 U.S.C. § 2255 are assigned to and shall 
be handled by the Judge who imposed the sentence involved therein. 

(4) All proceedings und^r the bankruptcy laws of the United States, under 
the immitrratinn laws of the United States, and under thp naturalization laws 
of the United States, except criminal proeeedings arising under such bankruptcy, 
iramisrntion. or naturalization laws, are assigned to and shall be handled by 
the Chief .Tudge in each odd numbered calendar year and are assigned to and 
shall be handled by the Associate Judge in each even numbered calendar year. 
All proceedings instituted under either the bankruptcy laws, the immigration 
laws, or naturalization laws during the period in which a particular .Tudge is 
assigned to handle such proceedings shall remain assigned to that Judge even 
though thev are not concluded within such period. 

(5) (a) The term "civil cases" when used herein shall include all cases and 
proceedings other than criminal, bankruptcy, immigration, naturalization, and 



183 

28 r.S.O. § 2255 oases and proceedings. Every civil case when filed shall be given 
an identifying number and shall forthwith be assigned to one of the Judges of 
the Court as herein provided. 

(b) For the assignment of civil cases the Clerk shall prepare a set of not less 
than fifty nor more than one hundred cards. On one-half of such cards the desig- 
nation "Chief Judge" shall appear and on the other one-half thereof te designa- 
tion "Associate Judge" shall appear. The Clerk shall also prepare a set of enve- 
lope.s equal in number to that of the cards. The envelopes shall be made of mate- 
rial which is not transparent and shall be numbered in sequence beginning with 
the number of the first civil case filed on or after the effective date of this order. 
The cards shall then be so mixed that the cards "l^earing the designation "Chief 
Judge" and the cards bearing the designation ''Associate Judge" shall be in 
irregular and unknown sequence. One card shall be inserted in each envelope 
in such manner that no one shall know the designation appearing on such card. 
The evelopes shall then be sealed, placed in numerical sequence and kept by the 
Clerk in a safe place. As each civil case is filed the Clerk shall take the envelope 
bearing the docket number of that case and remove the card therefrom. The 
case then becomes assigned to the Judge whose designation appears on such card. 
Both the envelope and the card shall be aflixed to the file cover of the case. As 
required, the Clerk shall prepare and use new sets of cards and envelopes. The 
sequence of numbers on each new set of envelopes shall begin with the number 
which follows in sequence the last number of the previous set. The Clerk shall 
administer this method of assignment so as to prevent any predetermination 
of the Judge to whom a case shall he assigned and so as to bring about an equal 
division of the civil cases between the two Judges. 

(c) No order shall be entered in any civil case until it is filed and assigned 
except : 

(i) An application to proceed in forma pauperis in any civil case shall be heard 
and determined by the Chief Judge if he is available and otherwise by the Asso- 
ciate Judge. 

(ii) If any civil case is filed with a Judge as permitted by Rule 5(e) of the 
Federal Rules of Civil Procedure and such case requires immediate action, the 
Judge with whom the case is filed may take such action as he deems appropriate 
and then shall forthwith transmit the papers in the case to the Clerk for docket- 
ing and assignment as herein provided. 

(d) When civil cases involving a common question of law or fact are assigned 
to different Judges and a consolidation is proper under Rule 42 of the Federal 
Rules of Civil Procedure, either Judge may order a consolidation. Such consoli- 
dated action then becomes assigned to the Judge to whom was assigned the con- 
solidated case bearing the lowest docket number. 

(6) If a Judge is disqualified to act, or recuses himself, in any case or proceed- 
ing assigned to him, the case or proceeding shall then be assigned to the other 
Judge. 

(7) If immediate action is necessary in any case or proceeding assigned to a 
particular Judge and that Judge is unavailable for any reason, the other Judge 
shall hear and dispose of the matter requiring immediate attention but such 
action shall not constitute a re-assignment of the case or proceeding. 

(8) The division of business and assignment of cases made herein may be 
altered or modified by written order signed by both Judges and filed with the 
Clerk. 

(9) The effective date of this order is February 20. 1958. 

(10) An original copy of this order shall be retained in the records of the 
Council : a duplicate original shall be forthwith transmitted to the Clerk of the 
United States Court for the District of Utah to be imbedded in the records of 
the court ; a copy shall be forthwith transmitted to the Chief -Judge of the 
Court for the District of Utah ; and a copy shall be forthwith transmitted to the 
Associate Judge of such Court. 

Done by the Judicial Council of the Tenth Circuit this 20th day of January, 
1958. 



Chief Judge. 



Circuit Judge. 



Circuit Judge. 
John C. Pickett, 

Circuit Judge. 



Circuit Judge. 



184 

In the Judicial Council of the Tenth Circuit of the United States 

March Session — 1965 

In the Matter of the Division of Business and Assignment of Cases in the 
United States Court for the District of Utah 

order 

A request having been made that the order of the Judicial Council dated 
January 20, 1958, and pertaining to the division of business and assignment of 
eases in the United States District Court for the District of Utah, be modified 
and amended, and the Council having fully considered such request at meetings 
held upon March 22 and 25, 1965, at Denver, Colorado, the Council now 

Finds : 

1. The order of the Judicial Council dated January 20, 1958. vpas, in accord 
with paragraph (8) thereof, amended by order of the District Court dated 
May 3, 1962, and, as amended, is in full force and effect. Further reference to 
such order shall include the amendment of May 3, 1962. 

2. The effective and expeditious administration of the business of the United 
States District Court for the District of Utah requires that such order be 
amended and thus requires the Council to make this order under the power 
and authority granted to it by 28 U.S.C. §§ 137 and 332. 

Accordingly, it is ordered : 

That the order of the Judicial Council is amended to provide as follows: 

1. During both even and odd numbered calendar years all criminal cases and 
proceedings in the Central Division of the District of Utah shall be assigned 
to the Chief Judge. 

2. During both even and odd numbered calendar years all cases and proceed- 
ings of whatever kind or nature in the Northern Division of the District of 
Utah shall be assigned to the Associate Judge. 

3. The said assignments shall be automatically made notwithstanding other 
provisions of the order of the Judicial Council ; but except as necessarily changed 
by this amendment the assignments, procedures, rules and other provisions of 
the order of the Judicial Council shall remain in full force and effect. 

4. This amendment shall become effective on January 1, 1966. 
Dated this 24th day of May, 1965. 

Judicial Council of the 10th Circuit. 



Chief Judge. 



Circuit Judge. 



Circuit Judge. 



Circuit Judge. 



Circuit Judge. 



Circuit Judge. 



In the Judicial Council of the Tenth Circuit of the United States 

November Session — 1971 

In the Matter of the Division of Business and Assignment of Cases in the 
United States District Court for the District of Utah 

order 

This order is entered pursuant to 28 U.S.C. §§ 137 and 332 and is based on and 
results from the following chronology : 

1. On January 20, 1958, this Council entered an order concerning the division 
of court business and the assignment of cases in the United States District Court 
for the District of Utah, which order was amended on May 3, 1962, by written 
order signed by both Judges of the United States District Court for the District 



185 

of Utah and filed with the clerk and said order thereafter was on May 24, 1965, 
further amended by order of the Judicial Council ; 

2. On August 17, 1971, the Honorable A. Sherman Christensen retired as an 
active judge of the United States District Court for the District of Utah and 
assumed the status of a Senior Judge, and on that same date the Honorable 
Aldon J. Anderson was duly qualified as the successor to the Honorable A. 
Sherman Christensen ; the retirement of the Honorable A. Sherman Christensen 
was effective upon the qualification of the Honorable Aldou J. Anderson and no 
vacancy occurred in the position of associate judge for the District of Utah ; 

3. The Honorable Willis W. Ritter, Chief Judge of the United States District 
Court for the District of Utah, by an order unilaterally entered on October 4, 
1971, which was later supplemented by a further unilateral order of November 24, 
1971, assigned to himself those cases previously assigned to the Honorable A. 
Sherman Christensen and pending in his court as of the date he assumed senior 
status, excepting cases which Chief Judge Willis W. Ritter assigned to Judge 
Aldon J. Anderson and further excepting cases which Chief Judge Ritter and 
Judge Anderson and Judge Christensen agreed would be heard by Judge 
Christensen ; 

4. In entering his orders of October 4, 1971, and November 24, 1971, the 
Honorable Willis W. Ritter, Chief Judge of the United States District Court for 
the District of Utah, predicated his action on the assumption that the order of 
the Judicial Council dated January 20, 1958, ceased to be effective upon the 
retirement of the Honorable A. Sherman Christensen on August 17, 1971 ; 

5. On November 11, 1971, an original proceeding, No. 71-1686, entitled Utah- 
Idaho Sugar Company, a Utah Corporation v. The Honorable Willis W. Ritter, 
Chief Judge of the United States District Court for the District of Utah, was 
instituted in the Court of Appeals wherein it was alleged that the Utah-Idaho 
Sugar Comi^auy was a party to litigation pending in the court presided over 
by the Honorable A, Sherman Christensen as of the date he assumed senior 
status, and that such litigation by Chief Judge Ritter's order of October 4, 1971, 
had been assigned to the Honorable Willis W. Ritter and in connection there- 
with the Utah-Idaho Sugar Company sought a writ of prohibition or mandamus 
compelling Chief Judge Ritter, among other things, to vacate his order of Octo- 
ber 4, 1971 ; 

6. As a result of the institution in the Court of Appeals of the original pro- 
ceeding mentioned in the preceding paragraph, the court directed its clerk to 
inquire of the Honorable Willis W. Ritter, the Honorable A. Sherman Christen- 
sen and the Honorable Aldon J. Anderson as to whether a dispute exists con- 
cerning the current division of cases in the United States District Court for 
the District of Utah ; and 

7. The Honorable Willis W. Ritter, the Honorable A. Sherman Christensen 
and the Honorable Aldon J. Anderson have now responded in writing to the 
court's inquiry, and by their responses have indicated to our satisfaction that 
a controversy does presently exist, and has existed, as to the division of business 
and the assignment of cases in the United States District Court for the District 
of Utah. 

Being desirous of resolving the existing dispute as to the division of business 
and assignment of cases in the United States District Court for the District of 
Utah and thereby removing uncertainty in connection therewith, it is the 
ORDER AND DECREE of this Council that: 

1. Its order of January 20, 1958, as amended, is not in anywise affected by 
the fact that the Honorable A. Sherman Christensen assmned senior status on 
August 17, 1971, and the Honorable Aldon J. Anderson on that same date was 
duly qualified as his successor, and the aforesaid order, as amended, continues 
in full force and effect and is hereby reaffirmed ; 

2. Under the terms of the aforesaid order of January 20, 1958, as amended, 
the Honorable Aldon J. Anderson succeeds to all pending cases which were 
assigned to the Honorable A. Sherman Christensen as of the date the latter took 

senior status ; „ ^^ .^^ i. i,- 

3 The Honorable Willis W. Ritter is hereby ordered to forthwith vacate his 
orders of October 4, 1971, and November 24, 1971, purporting to assign himself 
certain cases pending in the court of A. Sherman Christensen as of the date 
the latter assumed senior status; copies of these orders are attached hereto; 

4 The Honorable Willis W. Ritter is further ordered to vacate each and every 
other order that he unilaterally entered, if any such there be, affecting any case 

. to which the Honorable Aldon J. Anderson succeeded by virtue of his qualification 



186 

as associate judge for the District of Utali ; unless, however the Honorable 
Aldon J Anderson specifically consents and agrees that any such order reterred 
to in this paragraph shall remain in full force and effect in the interest of orderly 
procedure within the District of Utah. 

DONE by the Judicial Council of the Tenth Circuit this 20th day of December, 
1971, at Denver, Colorado. 



Chief Judge. 



Circuit Judge. 
William J. Holloway, Jr., 

Circuit Judge. 
Robert H. McWilliams, 

Circuit Judge. 



Circuit Judge. 
William E. Dogle, 

Circuit Judge. 
Judge Hill does not join in this order. 



October 8, 1969. 
Hon. Willis W. Ritter, 
Chief Judge, U.S. District Court, 
Salt Lake City, Utah 

Dear Judge Ritter : We have not received a reply to our inquiry of July 7th' 
requesting information on the extent to which your court may assign additional 
duties to magistrates under the new Federal Magistrates Act, Public Law 90-578, 
approved October 17, 1968. Section 636(b) of Title 28, United States Code, as 
amended by this Act, provides in part : 

Any district court of the United States, by the concurrence of a majority 

of all the judges of such district court, may establish rules pursuant to which 

any full-time United States magistrates, or . . . any part-time magistrate 

specially designated by the court, may be assigned . . . such additional duties 

as are not inconsistent with the Constitution and laws of the United States. 

Under the Act the Director of the Administrative Office is required to make 

a survey and formulate recommendations as to numbers, locations and salaries 

of magistrates to be appointed. The statutory deadline for completing this survey 

is October 17th, 1969. 

Before recommendations can be formulated, we must have some indication of 
the types of matters which will be assigned to magistrates by your court under 
■the above provisions of law, together with a sound estimate of the workload. 
Please let us know your intentions. If you would like, we shall be glad to have 
someone from our office come out to Salt Lake City to confer with you. 
Sincerely yours, 

Joseph F, Spaniol, Jr. 

United States District Court, 

District of Utah, 
Salt Lake City, Utah, October 15, 1969. 
Joseph F. Spaniol, Jr., 

Chief, Division of Procedural Studies and Statistics, Administrative Office, 
U.S. Courts, Supreme Court Building, Washington, D.C. 
Dear Mr. Spaniol : In response to your letter concerning the Federal Magis- 
trates Act, I wish to advise that we intend to make full utilization of the magis- 
trates within the enlarged jurisdiction of the new legislation. 

We shall give the magistrates additional duties in the area of civil actions 
pursuant to Section 636(b) : 

First, assisting the Court as special master in appropriate civil actions and 
under the Federal Rules of Civil Procedure. 

Second, assisting the District Judges in the conduct of discovery proceedings 
in civil actions, and in the conduct of pretrial proceedings. 

Third, preliminary review of applications for post trial relief with reports 
and recommendations to assist the Judge in deciding whether or not there- 
should be a hearing. 



187 

There will be opportunity in many instances for the performance of inter- 
locutory activities. 

Our magistrates will hear and preliminary determine every type of pretrial 
motion and serve the Judge in the extremely important and burdensome busi- 
ness of preparation of both the form and substance of various orders for the 
Court's consideration. 

A qualified and experienced magistrate will acquire expertise in examining 
various types of applications and petitions, one example of which is the very 
large number of habeas corpus petitions. I would expect to give to the magis- 
trates all such petitions and applications, for preliminary examination, classifi- 
catiou and summarization, pointing up the important contents to facilitate 
the decision of the Judge. Currently the District Judge must do this for him- 
self in very large part, for the young men law clerks recently out of law school 
are not sufficiently qualified. 

I expect to experiment with the assignments to the magistrates of every pos- 
sible fuJiction that can in some measure be delegated to them without abdicating 
the judicial function and consistent with the constitutional and statutory 
limitations. 

Of course the magistrates will exercise their specific statutory functions and 
we will carefully survey the assignment to the magistrates of addition duties 
so as to be sure that they will not interfere with the proper discharge of their 
more regular resiwnsibiUties. 

Likewise, we intend to make full utilization of the magistrates in the area 
of criminal jurisdiction pursuant to Section 636 (a). The congressional author- 
ization in the area of criminal jurisdiction of the Magistrates Act is somewhat 
broader in that it provides : 

(a) Each United States magistrates serving under this chapter shall have 
within the territorial jurisdiction prescribed by his appointment — 

(1) all powers and duties conferred or imposed upon United States 
commissioners by law or by the Rules of Criminal Procedure for the 
United States District Courts : 

(2) The power to administer oaths and affirmations, impose condi- 
tion of release under section 3146 of Title IS, and take acknowledge- 
ments, affidavits and depositions ; and 

(3) the power to conduct trials under section 3401, Title 18, United 
States Code, in conformity with and subject to the limitations of that 
section. 

Mindful of some of the problems in connection with sub-section (3) above, the 
magistrates will be allowed under certain conditions to try and to sentence per- 
sons convicted of minor offenses. We note the definition of minor offense includes 
misdemeanors, the i>enalty for which does not exceed imprisonment for a period 
of one year, or a fine of not more than $1,000, or both. 

Full utilization of the magistrates in this area is intended to be made. Con- 
gress manifestly intended to relieve the District Court of a considerable number 
of minor criminal matters. 

As indicated by Judge William E. Doyle in his excellent and most helpful 
manuscript "Implementing The Federal Magistrates Act", at page 24 there are 
three prerequisites to the exercise of this jurisdiction: (1) the magistrate has 
received special designation to try such offenses by the appropriate district court ; 
(2) the defendant elects to be tried before a magistrate rather than in a United 
States District Court, and (3) the defendant executes an intelligent waiver of 
whatever right to jury trial he may have before the district court. 

The foregoing is an incomplete summarization of the expectations of this 
Court to utilize the services of the magistrates and to implement the Act to 
f'lrther the clear purposes of the Congress to improve the judicial machinery 
at the District Court level. We shall endeavor to elevate the magistrates in every 
way to the full judicial status intended by Congress. 

I am opposed to the use of part time magistrates. There is too great a hazard 
in Section 632 (b) which permits part time magistrates to engage in the practice 
of law and to engage in any other business which is not inconsistent with the ex- 
peditious, proper and impartial discharge of their duties as judicial officers. I 
share the apprehension of the Committee which arises from the fact that the 
part time magistrate position is highly sensitive since he is both a practitioner 
and a judge. In the first place, it is going to be difficult to get a competent and 
conscientious man to take the position with the danger of running into conflicts 
and this is so even though the earlier provision was eliminated by Congress 



188 

which provided that the magistrates were subject to criminal statutes pertaining 
to conflict of interest. 

I have observed that the Act imposes upon the Director the duty to take into 
account local conditions in each district, such as the geographical areas, popula- 
tion, transportation and communication facilities. Surely it is unnecessary for 
me to enter into a discussion of these matters which are all matters of record 
3.nd of public knowledge, available to the x\dministrative Office in Wasliington. 

With respect to the distribution of business for the magistrates in this district, 
T have already indicated the extensive participation by the magistrates in the 
judicial business of the court heretofore handled by the Judges, which it is my 
intention to bring about. An illustration of the very substantial possible participa- 
tion of the magistrates is found in the 19G9 business of the United States Com- 
missioner, Paul Hauseu, in the Northern Division of this Court. By July of 
19G9 he had collected fees in the maximum amount permissable under the statute 
and could not collect any for the balance of the year. This resulted from the 
Department of Interior drive to make petty criminals out of the people who 
visited the picnic areas in the various National Forests, and by the official en- 
couragement which lead to many more petry offenses on air force and govern- 
ment installations in the Northern Division than we had had ever before. Both 
of these are the direct result of make-work projects carried on in the Northern 
Division. 

I certainly am opposed to encouraging officials to file petty offenses in order to 
drum up business for the magistrate and this will be discontinued in this district. 
I mention the matter here merely to suggest how the amount of work for the 
magistrates can easily b;illoon into oversized proportions. 

Suffice it to say for the purpose of making our request for magistrates to serve 
this district, that we envisage more than enough work to keep two full time 
magistrates very busy in the Central Division, with one part time magistrate 
in addition for the Northern Division. 

My experience with commissioners, particularly in the Central Division where 
we have most of the criminal business in this district, is that we need two 
magistrates so that at all times a magistrate is available to the F.B.I., the Treas- 
ury agencies, the Narcotic agents, the U.S. Attorneys and other law enforcement 
officials who at all hours of the day and night need to bring accused persons 
before a judicial officer. One magistrate cannot be expected to be available on 
such a time basis and it is unthinkable that we should have a situation arise 
without a magistrate available. 

Without any further elaboration, the request of the Chief Judge of this dis- 
trict is that we have two full time magistrates in the Central Division and one 
part time magistrate in the Northern Division. The basis for this request is that, 
in my judgment from more than twenty years experience as judge of this court, 
I can foresee more than enough work for those magistrates if we are fuUy to 
carry out the purposes of Congress. 
Sincerely, 

Willis W. Ritter, 

Chief Judge. 

OCTOBEE 20, 1969. 
Hon. Willis W. Hitter, 
Chief Judge, U.S. District Court, 
Salt Lake City, Utah 

Dear Judge Bitter : Your letter of October loth regarding the use of magis- 
trates in the District of Utah indicates that your court would like to delegate 
a broad range of duties but gives no indication of the volume of matters to be 
handled. The Magistrates Act requires that in fixing the amount of salary 
"consideration shall be given to the average number and the nature of matters 
that have arisen during the immediately preceding period of five years . . ." 
and Judge Doyle's Committee has directed that this requirement be adhered to. 

Based on the information which I forwarded to you with my letter of July 7th, 
it does not appear that there will be sufficient business in Utah to justify full- 
time magistrate positions and that only part-time magistrate positions can be 
recommended. Because the Director's survey report containing recommendations 
for magistrate positions must be completed within the next two days, we will 
proceed on the basis that your court will adopt local rules under whicJi the 
types of functions set forth in your letter will be delegated to magistrates under 
28 U.S.C. 636, as amended, and estimate salaries based on available informa- 
tion. The survey report is, of course, only the first step in establishing the 



189 

magistrate system nationwide. As a practical matter the system will not be 
effective for another year. Meanwhile there vriW be ample opportunity for your 
court to comment on the survey report and if necessary a supplemental report 
can always be filed. Please let me know if you have any further questions. 
Sincerely yours, 

Joseph F. SPA^-IOL, Jr. 



Uxii-ED States District Court. 

District of Utah. 
Salt Lake City, Utah, October 24, 1069. 
'Sir. Joseph F. Spaniol. Jr.. 

Chief of the Division of Procedural Stvdiefi and Statistics, Administrative Office 
of the U.S. Courts, Supreme Court Building. Wa-^hington, D.C. 

Dear Mr. Spaniol: Reference is made to your letter of October 20, 1969. 
referring to a letter from Chief Judge Ritter indicating that this court "would 
like to delegate a broad range of duties" to magistrates in the District of Utah, 
pursuant to the Federal Magistrates Act. 

I have hesitated to formally express my views to the Administrative Office 
or to the Committee having responsibility to make recommendations concerning 
numbers of magistrates and their salaries in the hope that thei-e might still be 
an opportunity to have my views considered by Judge Ritter before he made 
his recommendations. However, in view of his letter I must now state that so 
f-ir as I know the court as such is not committed to a broad range of duties 
for magistrates and for the reasons hereafter indicated it is not at all sure that 
it will be so committed. So far as I know, this court has taken no action with 
regard to the matter. In any event, I have not been consulted concerning the 
matter by the Chief Judge. 

I was not consulted concerning the last appointment of a commissioner in the 
Centrnl Division : I did not know of it until I read about it in the papers, nor has 
I lie appointee even called upon me during the several months of his service here. 
A similar non-consultative apiX)intment of one with no qualifications whatsoever 
for the office was ruled by me not to be valid in CR 172-65, United States of 
America v. James Lynn Smith, a copy of the opinion (unpublished) being at- 
tached, for reasons indicated therein. In the Northern Division, where under the 
Circuit Council Order I have responsibility for all proceedings, I suggested the 
names of several qualified attorneys for appointment after Chief Judge Ritter 
expressed a view that no one qualified could be found who would accept the office. 
Vfter receiving my recommendations, and without consultation, he disregarded 
them and named a lawyer unknown to me who had the most limited contact with 
court proceedings. 

Whatever the powers of appointment or removal by the Chief Judge alone may 
or may not be under the Migistrates Act, I do not think that he has the power 
to speak for the court without consultation with reference to a rule of court for 
c-nlarged powers of magistrates, which miist be granted with the concurrence 
of a majority of the judges as I understand it. 

And it must be obvious that if he continues his practice of non-consnltative 
apointments neither I nor the public will have sufficient assurance of the willing- 
ne'-s or ability of magistrates in this district to serve both divisions of the court 
to justify a general rule in advance covering their enlarged powers, or the fixing 
of their salaries on the assumption that there should be such a rule. 
Sincerely yours, 

A. Sherman Christensen, 

U.S. District Judge. 

Is THE UxiTED States District Court for the District of Utah 

Central Division 

(Memorandum Decision) 

United States of America, Plaintiff, v. James Lyxn Smith, Defendant. 

This case was calendared for "arraignment" and came before me Deceml)er 6, 
IttO.o. upon the "Report of Proceedings Before United States Commissioner". Upon 
tlie basis of those proceedings the defendant had been arrested and is now held, 

78-678— 7G 1;5 



190 

and upon their validity depends whether the defendant should be remanded to 
custody or held on lK)nd for action by the Grand Jury, or to answer here upon a 
waiver, if any, of indictment. 

The individual signing the report as Commissioner is unknown to me except 
for a momentary call at my chambers when lie announced tliat a week or so 
before he had been appointed United States Commissioner by the "Court", and 
except for what I have read in the press within the past few days concerning the 
belated announcement of his appointment by the Chief Judge on November 10, 
19(i5. 

From the latter announcement it appears that while the appointee doubtlessly 
is a man of excellent character and intentions, he is devoid of any legal or 
related training or exi>erience except for visits as a spectator in former years in 
courtrooms in England, of which country he is a citizen ; and that he intends to 
retain his present bookstore position during regular hours and hold preliminary 
hearings as United States Commissioner before or after the hours of his regular 
employment. 

The question of whether as a part of this court I should concur in such an 
appointment has not been presented and is not now before me. Certainly before 
I would assume to decide that question I would want to know the reasons why 
he was designated, to see his application and to know more of his background, to 
determine whether there are other iDersons equally or more qualified who pos- 
sess some degree of legal training or experience or who could make themselves 
available for a preliminary hearing during usual office hours for the convenience 
of the public and the bar, and whether such appointment should not at least be 
postponed until the time Qualifications are met by the applicant for United States 
citixenship. 

The only related question I have been called upon to decide here is whether for 
the purpose of this case the appointment in question was validly made by "The 
Court" and, if not, whether a criminal complaint authorized by such an appointee 
furnishes a valid basis for this proceeding. 

Section 631 ( a ) of 28 United States Code provides that "Each district court shall 
appoint" United States Commissioners in such number as it deems advisable. 
Subdivision (c) of that Section establishes a Commissioner's term as four years 
"unless sooner removed by the district court". This court is composed of two 
permanent judgeships. 28 United States Code § 133. 

What appointments are to be made by individual judges as to the positions of 
their respective secretaries, bailiffs or law clerks, the statute provides "District 
Judges may appoint", rather than that the "court" may appoint applicants for 
such positions. 28 United States Code § 7.51, 75.5. 

Thus it is indicated that appointments for the court, with the exceptions noted, 
are to be made by the court as such, rather than by individual judges. And by 
28 United States Code § 756 it is made doubly clear that no individual judge, 
whether the Chief Judge or an Associate Judge, has the power of appointment for 
the Court, unless the judges of the Court, after first considering the matter 
together, are unable to agree upon a proposed appointment. That Section pro- 
vides as follows : 

"756. Power to Appoint. "Whenever a majority of the district judges of any 
district court cannot agree upon the appointment of any officer of such court, 
the Chief Judge shall make the appointment." 

It thus is to be seen that only when the majority of the court cannot agree 
upon an appointment does the Chief .Tudge alone have power to make an appoint- 
ment for the Court. It necessarily follows that such appointment must be pre- 
sented to the judges of the court in the first instance to determine whether there 
can be agreement on a proposed appointment before the possible appointive 
power of a Chief Judge could become relevant at all. If there is agreement, 
unanimously or by a majority of the court, the Chief Judge, or the Clerk of 
Court, ordinarily reports and certifies the action of the Court. If a majority 
cannot agree, then the Chief Judge under the conditional power vested in him 
by Section 756 can himself make the appointment. 

By the means indicated, in accordance with the clearly expressed intent of 
Congress and in keeping with the minimal requirements for judicial administra- 
tion, all members of the Court will be advised of proposed appointments, each 
member of the Court, including the Chief Judge, if he finally has to act under 
his separate power, will have the benefit of the judgment of each other judge ; 
no member of the Court will be placed in the unreas(mable and often embar- 
rassing ix)sition of having everyone else know an imix)rtant new appointment 



191 

lias been made "by the Court" when lie himself has not known that surh an 
appointment was even being considered. 

These reasons apply equally or all the more when the Court is composed of 
only two, rather than several members, and the statutes recpiiring advance 
notice and opportunity for consideration can be all the more conveniently ct)ni- 
plied with in the former case. 

In the present instance there was never any mention made to me by the 
Chief Judge or anyone else prior to the purported appointment that the person 
appointed was under consideration, or that a further appi)intiiient was to be 
made at all. As far as I was advi.sod, another Commissioner, whose term had 
not expired, was unremoved and had not resigned, and the Clerk of this Court 
as "Commissioner Pro Tem" had been designated to assist him becau.se of illness 
only a few months before. That the latter appointment too was made without 
notice to me, although I have responsibility for the entire criminal calendar in 
the Central Division for the present year, doe.<* not justify such a procedure but 
only indicates the necessity of insistence upon compliance with the spirit and 
letter of the statutes with regard to such appointments in the future. 

The .situation now resulting is that I am not informed whether the "pro tem" 
appointment has been terminated or whether the appointment of the Commis- 
sioner who has served for many years here has been terminated or under what 
conditions or with what understanding the purported new appointment has been 
made, and this notwithstanding that I have the obligation of passing upon the 
validity of the reports from the Commissioner in all criminal cases filed in this 
division. While I have felt constrained to submit to such a situation with regard 
to other appointments, it is apparent that my resix)nsibilities cannot be properly 
discharged if that system is to be continued and extended. p]si>ecially with 
respect to the vital position of United States Commissioner, involving as it does 
sensitive areas of constitutional law, rights of the individuals charged with 
crime, and the protection of the public by proper law enforcement, it is essential 
that appointments be not of questionable validity. Thus, the question is squarely 
presented here whether an appointee under the conditions outlined is "a Com- 
missioner or other officer emiwweretl to commit persons charged with offenses 
against the United States" within the contemplation of Rule 3, Federal Rules 
of Criminal Procedure. 

If as a member of this Court I have no responsibility to be consulted and to 
consider the advisability of such apixiintments and to afford my colleague the 
beneflt of my judgment with respect to them in advance, I am entitled, I believe, 
to have that lack of accountability judicially determined ; and if I have such 
accountability then I assume it must be determined that I am entitled to the 
opportunity to express my judgment to my colleague before the appointment is 
made. Far beyond any question of personal privilege is the duty to consider the 
position of the defendant before me, who has been arrested upon a warrant 
signed by the appointee in question, based upon a complaint only presumbly 
signed before him by a complainant. If he has not been properly appointed, that 
fact should be promptly recognized so that consideration properly may l;e given 
jointly to his valid appointment by the Court in the manner required by statute 
if there are reasons therefor or if the .judges are found to be unable to agree, 
or so that another Commissioner appointed in the manner required by the statute 
can be designated. For this purpose I shall hold myself available, as I always 
have, to confer with the Chief Judge at any time he desires. 

It is the continuing duty of the Court to inquire into its jurisdiction, federal 
courts being courts of limited jurisdiction. I have concluded that the i)roceedings 
before me in the above entitled case are insufficient to afford this court jurisdic- 
tion to hold the defendant to answer or to otherwise proceed with the case for 
the following reasons : 

1. Grave doubt exists whether the individual authorizing the complaint and 
issuing and signing the warrant of arrest purportedly based thereon is "a Com- 
missioner or other officer empowered to commit i>ersons charged with offenses 
against the United States" within the contemplation of Ride 3, Federal Rules of 
Criminal Procedure, because he apparently has not been appointed a United 
States Commissioner "by the Court" as required or permitted by the applicable 
federal statutes.^ 



1 "x? T'nitpfl !'*^a<-p'5 Code. gSfiSKa). ~~>(^. Vnited F^fafpn v. Wile)ifz, 2.5 Federal Rules 
Dec-i'sion 492 (D.J.X.J. 1960), afifd. 2S0 F. 2d 422 (3d Cir. 1960). 



192 

2. The complaint is further fatally defective for the further reason that the 
purported Commissioner has not even signed it, and hence, the complaint is not 
made upon oath before anyone.^ 

There is further difficulty with the complaint which, while not presentin;; 
necessarily a question of jurisdiction at this point, would raise serious collateral 
questions/ The "complaint" upon which the proceedings before me must be based 
if it has validity appears inadequate upon which to base the warrant of arrest 
because of failure of the complaint to indicate on its face probable cause to 
believe that the offense was committed and that the defendant committed it, 
negating as it does any personal knowledge upon the part of the complainant 
except upon the basis of undefined and unspecified heresay not itself being 
sufficiently indicated to show probable cause.* 

For the reasons stated the complaint recorted by the Commissioner and the 
proceedings before me are dismissed. 

Dated this 6th day of December, 1965. 

A. Sherman Christensen, 

U.S. District Judge. 

November 3, 1969. 
Hon. A. Sherman Christensen, 
U.S. District Judge, 
Salt Lake City, Utah 

Bear .Judge Christensen: I have your letter of October 24th regarding the 
Director's recommendations for positions of United States magistrates in your 
district. The recommendations containetl in the initial survey report just re- 
leased contemplates that one of the magistrates to l)e appointed will perform the 
"additional duties" outlined in .Tudge Ritter's letter. 

The assignment of additional duties must, of course, be done by local rule 
of court. Section 636(b) of Title 28, United States Code, provides in part as 
follows : 

Any district court of the United States by the concurrence of a majority 
of all the judges of such district court, may establish rules pursuant to 
which any full-time magistrate, or, where there is no full-time magistrate 
rea.sonably available, any part-time magistrate specially designated by the 
court, may lie assigned . . . such additional duties as are not inconsistent 
with the Constitution and laws of the United States. 
Where local rules of court, pursuant to the above provision of law, are not 
adopted by the district courts, the Director's recommendations will most cer- 
tainly have to be withdrawn. For your information I am enclosing a copy of 
the local riiles of court promulgated in the Eastern District of Virginia when 
the pilot program was first established there. 

If we can be of any further assistance, please let us know. 
Sincerely yours. 

Joseph F. Spaniol, Jr. 



Hon. Alfred P. Murrah, 

Chief Judge, U.S. Court of AppeaU, Tenth Circuit, U.S. Courthonse, Oklahoma 
City. bkla. 

Dear Judge : This is in response to your letter of January 13, 1970. concerning 
the implementation of the Federal Magistrates Act in Utah, particularly in 
respect to salary schedules. 

The judges of the court met yesterday and carefully considered the tentative 
recommendations of the Administrative Office. We are agreed that those recom- 
mendations, particularly as they deal with a magistrate for the Northern Divi- 
sion, are unrealistic and imjustified in their limitations. They do not properly 
present the business and necessities of that division, are based upon the assump- 
tion that the magistrate there would be invested with limited duties whereas 
it has been concluded that the principal magistrate in each division should have 



^ Rnlo 3 Federal Rules of Criminal Procedure. 

■■'Fourth Amendmenf to the Constitution of the United States; Rule 4. Federnl Rules 
of Criminal Prooerlure : Ginrdponella v. Vvited l^tatex, 3.57 U.S. 4S0. 7S S.Ct. 124.5. 2 L.Ed.2fl 
loO.^, (19.58) ; Vnited Fltntex v. BarienpU. 2.31 Fed. Survn. 200 (D.C.N..T. 1964) : rvited 
fttntex V. Greenhei-a. •''.20 F. 2d 467 (9th Cir. 1963) ; Cf. Tanner v. Unitpd f^tnte-t. 296 F. 2<1 
218 (10th Cir. 1961). in -which it was held that claimed error in designating sections 
of the stqtu*-e upon which the prosecution was based (similar errors appearing in the 
w.arrant of arrest). (Footnote incomplete.) 



193 

similar powers, and ignore the desirability of a resident magistrate with more 
than limited functions in the absence of other resident court personnel there. 
We also believe that the magistrate at Cedar City should have a salary some- 
what in excess of that recommended by the Administrative Office because of 
the long distance from Salt Lake City and the presence in the southern part 
of the state of the national parks and monuments. 

Accordingly, the recommendations of this court concerning salary schedules 
for the implementation of the Act in its initial application here are as follows : 

Magistrate for the Central Division, at Salt Lake City, Utah, with full range 
of duties, $11,000. 

Magistrate in the Northern Division, at Ogden, Utah, with full range of duties, 
$8,500. 

Magistrate at Provo, Utah, in the Central Division, with limited duties, 
$200. 

Magistrate in the Central Divi.sion at Cedar City, Utah, with limited duties, 
$500. 

In view of the precipitant increase of civil court filings and their complexity 
during the calendar year 1969, full time magistrates may have to be sought in 
the future. It is believed that the foregoing recommendations represent minimal 
requirements at the present time if reasonable benefits of the system are to be 
achieved in this district. 

Conference between the judges beneficially explored a wide range of other 
related problems and it was concluded that a solution of some of these aLso 
\\ill be promoted by the adoption of the schedule hereby recommended. 
Yours sincerely, 

" > 

Chief Judge. 



Associate Judge. 

Survey of Magistrate rosiTiojfs Administrative Office of the 

United States Courts 

district of utah 
/. Positions cstflhlishcd, 

The preliminary survey of the Director of the Administrative Oflace on the 
implementation of the federal magistrates system was completed in October 
1969. The following positions were recommended for the District of Utah : 

Location and type Salary 

Salt Lake City, part-time ^$11,000 

Ogden, part-time 3. '^'^^^ 

Cedar City, part-time 200 

Provo, part-time 200 

The recommendations assumed that a full range of duties would be assigned 
to the magistrate at Salt Lake City, while the other three magistrates would 
perform only a limited range of duties. 

Upon the request of the district judges, the recommendations were reviewed 
in March 1970 with a view to the assignment of a full range of duties to the 
magistrate at Ogden as well as at Salt Lake City. The following positions were 
subsequently established : 

Location and type Salary 

Salt Lake City, part-time $11,000 

Ogden, part-time '^^ 2^ 

Cedar City, part-time '^ttO 

Provo, part-time 200 

//. Cedar City and Provo 

The Judicial Conference originally authorized these two positions at its 
]March 1970 session. The positions were never filled. The Conference discon- 
tinued the position in September 1973 based on the following recommendation, 
from page 8 of the survey reiwrt : 

Cedar City and Provo, Utah {$521 and $211 ) 

Four part-time magistrate positions have been authorized for the District of 
Utah. Two of them, Ogden and Salt Lake City, are at divisional offices and have 

1 Maximum salary for p.irt-tlme position at the time. 



194 

been lilled by the court. No appointments have been made, however, to the Cedar 

City and Provo positions. 

Provo is about 40 miles south of Salt Lake City, while Cedar City is located 

in the southwestern corner of the state, about 200 miles from Salt Lake City. 

There is no history of United States commissioner activity at either location. 

FBI resident agents are located in both communities. 

At the time of the original survey, the U.S. attorney advised that— 

A Magistrate should, of course, be appointed at least in both Salt Lake 
City and Ogden, Utah, to handle the volume of business expected in the 
area surrounding those two cities. In addition, there are situations which 
sometimes arise in the southern part of the state incident to the administra- 
tion of the affairs of the United States in the National Parks, National 
Monuments, and National Recreation Areas which require the services of a 
Magistrate. I do not believe that the volume in that area of our state justifies 
the establishment of a Magistrate down in that section of our state. On the 
other hand, when situations do arise there, it is considerably inconvenient 
for the same to be handled by a Magistrate 250 miles away here in Salt 
Lake City. 

Recommendation 

While there may be some potential for a petty offense caseload at Cedar City 
in the future, the part-time magistrate positions at this location and at Provo 
have not been filletl since their authorization and funding more than 2% years 
ago. There does not appear to be a compelling need for the positions, and ac- 
cordingly, it is recommended that both positions be discontinued. 

///. Salt Lake City and Ogden 

Magistrates were duly appointed at these two locations. No significant changes 
in the positions accrued until the early months of 1974. At tliat time the Admin- 
istrative Office was advised that the magistrate at Salt Lake City had been 
terminated by the Chief Judge. The Director thereupon wrote the Chief Judge 
requesting a statement of the cause relied upon and the concurrence of the second 
district judge as required by statute. No direct response was received ; however, 
the office was informed by Judge Anderson that the matter v.as being considered. 

On May IStli the raagi.-trate informed tliis office of the following resolution of 
the difficulty : 

[The Chief Judge] requests that I assist Judge Aldon J. Anderson in his 
assignment of criminal matters. Since that time I have consulted with 
Judge Anderson. He requests that I perform the functions of U.S. Magistrate 
for the Northern Division of the U.S. District Court of Utah. 

Accordingly,- as occasion arises, I t-hall travel to Ogden, Utah, for the pur- 
pose of conducting necessary functions. United States Magistrate, Daniel A. 
Alsup, will travel from Ogden to Salt Lake City for the purpose of per- 
forming the functions of U.S. Magistrate for the Central Division. 
Later that year, in accordance with established policy, both positions were sur- 
veyed to determine whether they should be continued for additional four-year 
terms under the current arrangement. A copy of that survey report is attached. 
The survey indicated that neither magistrate had been assigned a full range of 
duties as had originally been anticipated. Accordingly, it was recommended that 
the annual salaries of the two positions be reduced as shown below : 

Salt Lake City : from .*?12,r>72 to $6,000. 
Ogden : from 9,394 to 3,600. 

Pursuant to the statutory procedures, the views of the district court and the 
circuit council were requested for consideration liy the Judicial Conference. 
The Circuit Executive informed the Administrative Office of the council's recom- 
mendation that the two positions be merged into a single full-time position. In 
supiwrt, thereof, his letter stated : 

It is the position of Council that there is a potentially adequate workload 
to fully justify the full-time position for these two locations when it is prop- 
erly utilized by the Judges of the District of Utah. 
The Judicial Conference Committee on the Administration of the Federal 
Magistrates System con.sidered the proposal but was not convinced that the 
workload justified the conversion to a full-time position at that time. Rather, 
the Committee consolidated the two jxisitions into a single part-time position 
at the maximum salary for a part-time magistrate (.$15,000) in order to provide 



195 

an opportunity for the assignment of a broader range of duties-. Tlie combined 
workload of the magistrates for the last two and one-half fiscal years has been as 
follows : 



Fiscal year- 



1974 1975 1976 (6 mo) 



Petty offenses 9 

Number of trials ( .)( )( ) 

Search warrants 13 31 iS 

Summonses (i) (i) 5 

Arrest warrants,. 168 200 32 

Initial appearances 176 197 26 

Bail reviews 5 19 8 

Preliminary exams 28 75 75 

Removal hearings 6 31 29 

NARA hearings 1 

1 Summonses were included with arrest warrants for the fiscal years 1974 and 1975. 

IV. Rules of Court 

The Federal :Magistrates Act authorizes district judges to assign a broad range 
of duties in civil and criminal cases to magistrates to assist in the disposition of 
those cases. The Act requires, however, that each district court assess its particu- 
lar needs and set forth in general rules of court those duties which may be as- 
signed to magistrates within the district, as a precondition to the performance 
of such "additional duties." The tiles of this office do not reflect the adoption of 
such rules by the United States District Court for the District of Utah. 

Court Pbofile 

DISTRICT of UTAH 

/. Positio)is Presently Authorized 

Location Salt Lake City/Ogden. 

Number 1. 

Type Part-time. 

Authorized salary $15, 000. 

Expiration of term June 20, 1970. 

//. Geograpliy 

Area : 84,916 square miles. 

Population: 1,059,273 (1970). 

Principal Federal Enclaves : Hill Air Force Range, Wendover Air Force Range, 
Dugway Proving Ground, Tooele Ordinance Depot, Zion National Park. P.ryce 
Canyon National I'ark, Canyoulands National Park, Great Salt Lake, Fish 
Springs National "Wildlife Refuge, Ouray National Wildlife Refuge. 

National Monuments : Rainbow Bridge, Natural Bridges, Dinosaur, Arches, 
Cedar Breaks, Capital Reef. 

Indian Reservations : Skull Valley, Unitah, Ouray, Navaho. 

National Forests : Sawtooth, Cache, Wassatch, Fishlake, Unitah, Dixie, Mautila 
Sal. 



///. Judgeships 



Authorized Judgeships — 2 



Authorized places of Population : Resident judges : 

holding : 175, 885 2 

Salt Lake City 69, 478 — 
Ogden 

IV Total Caseload of the Court— Fiscal Year 1915 

CiiHl cases Criminal cases 

Filed 517 Filed 144 

Terminated 403 Terminated 107 

Pending 499 I'ending 92 

(With fugitive deftsj 10 



196 



V. STATISTICAL PROFILE PER JUDGESHIP-FISCAL YEAR 1975 



Civil cases filed 

Criminal cases filed 

Total cases terminated. 

Total cases pending 

Total weighted caseload 

Total trials 

iVIedian disposition, times In months: 

Civil cases 

Criminal cases 





National 


Numerical 


District 


average 


standing 


259.0 


294.0 


55 


72.0 


108.0 


72 


255.0 


371.0 


77 


296.0 


355.0 


59 


373.0 


400.0 


55 


27.0 


48.0 


85 


8.0 


9.0 


27 


3.5 


3.6 


46 



DISTRICT OF UTAH 
CIVIL CASES COMIVIENCED BY NATURE OF SUIT 









Fiscal year— 








1971 


1972 


1973 


1974 


1975 


Total . 


385 


393 


475 


441 


517 


Total, U.S. cases 


97 


104 


137 


98 


103 






Contract ...... 

Land condemnation . .___ 

Other real property 


29 
1 
4 
9 


20 
3 
3 

23 


26 
1 
3 

14 


6 

1 

2 
6 


13 
- 


Tort actions 


13 


Antitrust 


1 


Civil rights 

Prisoner petitions: 

Habeas corpus 

Civil rights 

Other 

Forfeitures and penalties 


(') 

4 

(•) 

6 

7 

7 
(') 
0) 

3 
27 


1 

3 
.. 

11 
11 

5 

2 
12 

9 


7 

4 

1 

1 
24 
11 

4 

4 
17 
20 


7 

2 

-J- - - 

12 
10 
_. 

15 
27 


4 

1 

'"I 

18 


Labor suits 

NARA .....l^IIIII 

Social security.. . 

Tax suits ...'. . 

All other . ;_ 


11 
1 

15 
6 

14 






Total, private cases . 


288 


289 


338 


343 


414 


Contract 

Real property 

Federal Employers' Liability Act 

Marine personal injury ,.. 


55 
7 

1 


66 
3 
7 


67 

1 
3 


71 

4 

8 

3 

45 
33 

7 

14 
43 

3 

14 
4 


96 

3 

18 


Motor vehicle personal injury ._ 

Other personal injury ^_.. 

Other tort actions 

Antitrust 


39 
25 
6 
U 
(') 
(') 

41 
(J) 

8 .. . 


24 

28 

1 

8 

32 
3 

32 
10 


37 
32 

8 
11 
36 

5 

39 
17 


36 

45 

8 

28 


Civil rights .. 

Commerce „ 

Prisoner petitions: 

Habeas corpus 


52 

1 

8 


Civil rights .:.. 

Other ... 


7 


Labor suits 


6 
21 
68 


5 
17 
53 


10 
17 
55 


8 
23 
63 


8 
30 


Another .. . 


74 







See footnotes at end of table. 



197 



DISTRICT OF UTAH— Continued 
CRIMINAL CASES COMMENCED BY NATURE OF OFFENSE » 









Fiscal year— 








1971 


1972 


1973 


1974 


1975 


Total ... 


90 


146 


97 


112 


138 


General offenses: 

Homicide 

Robbery 

Assault 

Burglary 

Larceny and theft. . 


- 

3 

... 

7 

9 
16 
19 


-. 

8 

2 
11 
10 
24 
12 
22 

2 

3 

6 

9 

1 


1 
3 

2 

... 

4 
14 

3 
25 

1 

6 

2 

6 


3 

4 

"f 

14 
13 
22 

9 
11 
12 

9 

3 

4 

1 


""io 

1 

1 

28 


Embezzlement 

Fraud 

Autotheft ' . 


16 

33 

8 


Forgery and counterfeiting 

Sex offenses 


20 


Narcotics laws 

Weapons and firearms 


'I 

2 


2 
7 


Other general offenses... 


1 


Special offenses: 

Immigration laws 






2 
7 


7 
22 


1 






Other Federal statutes 


12 


6 


11 






' Not available. 
' Excludes transfers. 













Surveys of Magistrate Positions ADMiNiSTRATr\E Office of the 

Umted States Courts 

district of UTAH 

June 1974. 
I. PURPOSE OF SURVEY 

The initial four-year terms of tlie part-time magistrates at Salt Lake City ami 
Ogden are due to e-xpire on June 29, 1975. The positions are being reviewed to 
determine (a) whetlier they should be continued for additional terms, and (b) 
whether there should be any changes in salaries and arrangements. 

//. ^yORKLOAD OF THE MAGISTRATES 

The workload of the two part-time magistrates in the district has consisted 
almost entirely of precommitment proceedings in criminal cases. Though Utah 
encompasses a number of federal owned lands, the magistrates to date have only 
di?ix)sed of a handful of minor and petty offense cases. The nature and the 
volume- of their duties }iave l)een substantially h-ss rhau anticipated at the time 
when their salaries were originally set by the Judicial Conference. 

(a) Salt Lake City {$12,572) 

Salt Lake City is the headquarters of the court and the residence of both the 
district judges. The following magistrate activity has been reported here during 
the last two and one-half fiscal years: 



Petty offenses 

Number of trials.. 
Search warrants.. 
Arrest warrants.. - 

Bail hearings 

Bail reviews 

Preliminary exams 
Removal hearings. 



Fiscal year 


— 




1972 


1973 


1974 (6 mo) 


1 


(-) 
(-) 

8 

92 

109 

8 
27 

8 


9 


(1) 


(-) 


15 


7 


106 


44 


117 


59 


4 


2 


29 


9 


2 


1 



198 

Although it had been anticii)a(ed that "additional duties" would be assigned 
to the magistrate, this has not occurred. As a result, the volume of business 
is a good deal less than that coming before other part-time magistrates receiv- 
ing comiiarable salaries. There is, unfortunately, no alternative to recommend- 
ing a reduction in the authorized compensation of the position at Salt Lake 
City during a new term. 

It is recommended (a) that this position be continued for an additional four- 
year term, and (b) that its salary be reduced from $12,572 to Jj^G.OOO per annum. 

(li) Offdcn (^9,39 >,) 

Ogden is 30 miles north of Salt Lake City and is also a place of holding court. 
The part-time magistrate here has reported performing the following duties : 

Fiscal year — 



Minor offenses _ 

Number of trials 

Petty offenses 

Number of trials 

Search warrants 

Arrest warrants. 

Bail hearings 

Bail reviews 

Preliminary examinations. 
Removal hearings 



1972 


1973 


1974 (6 mo) 




1 .. 

'■3'.. 

(-) 
9 

59 
49 
-g- 

6 




(-) 


(-) 


5 




(5) 


(- ) 


9 


1 


58 


30 


56 


26 


4 


1 


16 


5 


11 


1 



The volume of magistrate activity at Ogden has been consistent, but is out of 
line with the salary of the position. It is recommended (a) that the position be 
continued for an additional four-year term, and (bj that its authorizetl salary 
be reduced from $9,394 to $3.G00 per annum. 

/. POSITIONS PRESEXTLY AUTHORIZED 



Authorized Expiration 

Location Number Type salary of term 



Salt Lake City... 1 Part lime $12,572 June 29, 1975 

Ogden 1 do 9,394 Do. 



II. GEOGRAPHY 

Area : 84,916 sq. miles. 

Population : 1,059,273 (1970). 

Principal Federal Enclaves : Hill Air Force Range, Wendover Air Force Range, 
Dugway Proving Ground, Tooele Ordnance Depot, Zion NP, ISryce Canyon NP. 
Canyonlands NP, NM : Rainbow Bridge, Natural Bridges, Dinosaur, Arches, Cedar 
Breaks, Capital Reef. 

Great Salt Lake. 

Glen Canyon National Recreation Area, Skull Valley IR, Uintah and Ouray IR, 
Navajo IR. 

National Forests : 

Sawtooth, Cache, Wassatch, Fishlake, Mantila Sal, Dixie, Uintah. 

Fish Springs National Wildlife Refuge. 

Ouray National Wildlife Refuge. 



199 



Te«Sr> 



— V Great 
-- . . .xSilt 

("^Hlll AT /-^ Vr JM^'S 

<■•' p.nnee ■-.■,<, \ V ^ rOc<!cn 




olr 



•Vendover A? 
; Crent fait 



Vftssatch KF. 



;rooele / 

^ull Valley V,'' 



Skull Valley 

•Utah Ci- ^■^ 
Lfik 



•. Du£>ay Proving Cnis 



Un sh Eorlr.es 






Unlt.£.h 6nd Cure 
Jr.i BcE 



Cedar Cl<-v / 
Cedar DreaXo-^ 
TT . NM 








Zlon J.'? 



A-^j.'P.i^ Ulfiatural Erldrc 

V-^ Colorado river f n 



LaV.e Povtjl 




Fore 'nalr.bow lirldge t.M 



UTAH 



20 ^O *0 



i'O loO* 



200 



///. JUDGESHIPS 



Authorized Judgeships — 

Resident judges : 
2 
IV. TOTAL CASELOAD OF THE COURT— F.Y. 1973 



Places of holding court 
Ogden 
Salt Lake City 



Population 
09,478 

175,885 



Filed 475 Filed 

Terminated 421 Terminated 

Pending 394 Pending 

(With fugitive defts.). 

r. STATISTICAL PROFILE PER JUDGESHIP— F.Y. 1013 



108 

131 

43 

10 



District 



National 
Average 



Numerical 
Standing ' 



Civil cases filed 

Criminal cases filed _._ -. 

Total cases terminated 

Total cases pending 

Total weiglited caseload 

Total trials 

Median disposition times in months: 

Civil cases 

Criminal cases 



238. 


246.0 


45 


54.0 


106.0 


84 


276.0 


354.0 


72 


219.0 


314.0 


66 


300.0 


343.0 


65 


50.0 


49.0 


44 


9.0 


10.0 


41 


4.5 


3.9 


55 



1 Amon2 all 90 to 94 U.S. district courts. 

DISTRICT OF UTAH 
MAGISTRATES WORKLOAD— FISCAL YEAR 1974 (1ST 6 IViO) 



Salt Lake 

City 

(part-time) 



Ogden 
(part-time) 



Total 



TRIAL JURISDICTION 



Total, minor offenses. 



Tlieft. 

Food and drug. 

Traffic 

Other _ 



Dismissed/acquitted. 
Convicted.. 



Total trials. 



Total, petty offenses. 



Traffic 

Immigration 

Hunt/fish/camping. 
Other 



Dismissed/acquitted. 
Convicted 



Total trials 

Total, preccmmitment matters. 

Search warrants _ 

Arrest warrants 

Bail proceed i ngs 

Bail revie/v _ 

Preliminary examinations 

Removal hearings 



122 



64 



186 



7 


1 


8 


44 


30 


74 


59 


26 


85 


2 


1 


3 


9 


5 


14 


1 


1 


2 



201 

DISTRICT OF UTAH 
MAGISTRATES WORKLOAD— FISCAL YEAR 1974 (1ST 6 MO) 



Salt Lake 

City Ogden 

(part-time) (part-time) Total 



ADDITIONAL DUTIES 

Criminal: 

Pretrial conferences -- -— 

Motions 

Rule of 10 arraignments --- - 

Other 

Civil: 

Prisoner petitions - 

Ptrtrial conferences - - 

Motions - 

Special masterships - - - 

Social security -.- - 

NARA 1 1 

Other - -- - --- 



Total, all matters 131 65 196 

MAGISTRATES WORKLOAD— FISCAL YEAR 1973 

TRIAL JURISDICTION 
Total, minor offenses -. - - — 1 1 



Theft 

Food and drug 

Traffic 

Other 

Dismissed/acquitted. 

Convicted 

Totaltrials 



Total, petty offenses. 



Traffic 

Immigration 

Hunt/fish/camping— 

Other 

Dismissed/acquitted. 

Convicted 

Totaltrials 



Total, precomrtiitment matters - 252 142 394 

Search warrants 

Arrest warrants 

Bail proceedings 

Bail review 

Preliminary examinations 

Removal hearings 



8 


9 


17 


92 


59 


151 


.09 


49 


158 


8 




8 


27 


19 


46 


8 


6 


14 



ADDITIONAL DUTIES 

Criminal: 

Pretrial conferences 

Motions 

Rule 10 arraignments 

Other 

€ivil: 

Prisoner petitions 

Pretrial conferences 

Motions 

Special masterships 

Social security 

NARA 

Other 



Total, all matters -.. -- - 252 146 398 



78-G7S~76 14 



202 



MAGISTRATES WORKLOAD— FISCAL YEAR 1972 



TRIAL JURISDICTION 
Total, minor offenses 



Theft 

Food and drug. 

Traffic 

Other 



Dismissed/acquitted. 
Convicted 



Total trials 

Total, petty offenses. 



Traffic - --- - - 

Immigration. - 

Hunt/fish/camping.. - - 5 5 

Other - - - - 1 1 



Dismissed/acquitted. 
Convicted 



Total trials. 



Total, precommitment matters 273 154 427 



Search warrants 

Arrest warrants. 

Bail proceedings 

Bail review- 

Preliminary examinations. 
Removal hearings 



15 


9 


24 


106 


58 


164 


117 


56 


173 


4 


4 


& 


29 


16 


45 


2 


11 


13 



ADDITIONAL DUTIES 
Criminal: 

Pretrial conferences 

Motions -- 

Rule 10 arraignments 

Other 

Civil: 

Prisoner petitions 

Pretrial conferences 

Motions.. --- 

Special masterships -.. 

Social security - 

NARA 

Other 



Total, all matters - 274 159 433 



United States Court of Appeals, 

Tenth Circuit, 

April 19, 1976. 
To : Hon. David T. Lewis, Chief Judge. 
From : p:]mor.v G. Hatcher. 
Subject : Juror Utilization, District of Utah. 

Attached hereto is! a letter to you with reference to juror utilization in tlie 
District of Utah. Unfortunately, it is not too definitive because, tirst, the Ad- 
ministrative Otfice did not receive all of the statistical reports from the District 
during some of the years in question, and, second, the statistics do not dis- 
tinguish between the statistics of the two judges in the District. 

There has been a marked improvement by the District from the first to the last 
report. According to Verl Ritchie, this is largely due to Judge Anderson's handling 
of Ills juries. Judge Ritter has continued to function in exactly the same way 
with respect to his juries. 

Attachments. 

Hon. David T. Lewis, 
Chief Judge, 
U.S. Courts of Appeals, 
Federal BuUdhuj. 
Salt Lake City, Utah 

Dear Chief Judge Lewis : The following is a summation of the ntilization of 
both petit and grand jurors in the District of Utah fur the years 1972 to 1975,. 



203 

inclusive. The statistics were compiled from iuformation provided in the publica- 
tion entitled Juror Utilization in United States District Courts published an- 
nually by the Administrative Office commencing in 1972, although data concerning 
Grand Jury activity was not available until 1975. 

PETIT JURY 

The enclosed table represents the utilization profile of petit jurors in the nation 
as a whole compared with the District of Utah. Some explanation of the figures 
and inconsistencies are necessary for a better understanding of the juror usage. 

The Juror Usage Index is the total available juror days divided by the total 
number of jury trial days. This figure was slightly higher in 197."> due to a re- 
porting change. 

In 1971-1974, only sworn jurors were to be counted as serving. This category 
now includes all jurors selected to serve on a trial jury at a future date as well 
as in trials in progress. 

Trial days were to be counted only on the day the jury actually began service. 
This corrected the statistical disparity which arose from counting a jury trial 
from the initial swearing in of the jurors. 

All of the 1973 figures are only from Judge Aldon .T. Anderson's court. The 
statistics for Judge Willis W. Ritter's court were not available. 

There are 94 Districts. The "rank" column indicates where in relationship to the 
other Districts Utah rates statistically. 

There has been a marked improvement in the utilization of petit jurors in Utah. 
Although the nation as a whole has .shown better usage of jurors, Utah's improve- 
ment is at a higher rate than the national average. 

GRAND JUBT 

Data concerning Grand Jury activity was available for the first time in 1975. 
Due to the limited scope of this information, it is difficult to conclude if the fol- 
lowing figures are indicative of a trend or merely a reflection of a single year. 

Efficient management of Grand Jury time involves setting as many eases as 
possible to be heard per session. The result would be an increase in the average 
hours per session but a decrease in cost (i.e., mileage cost would be less with 
fewer sessions ) . 

Utah falls short of the national average in both the number of cases heard and 
the number of hours per session. On the average, it is taking the Utah Grand 
Jury .six hours to hear a single case while the national average is 1.5 hours per 
case. 

From the information available, it is impossible to tell whether the Utah 
Grand Jury is taking four times as long per case due to the nature of the ma- 
terial or if this delay is partially the result of poor management. 

The cost per session in Utah is higher than the national average, as is the 
number of jurors per session. 

The following figures reflect Utah's Grand Jury Usage in comparison with 
the nation : 

Utah National 

Number of grand jury sessions 39 7, 846 

Number of cases 32 26,775 

Average number of cases per session 0. 8 3. 4 

Average number of hours per session 4. 8 5.2 

Average number of jurors 21.7 19.9 

Average cost per session $549 $505 

Average cost perjuror day $25 $25 



Sincerely yours, 

Emory G. Hatcher. 



Enclosure. 



204 



UTILIZATION PROFILE OF PETIT JURORS 1972-75, DISTRICT OF UTAH 



Year 



Utah 



National 
average 



Rank 



Juror usage index. 



Cost perjury trial day. 



Cost per juror day. 



Percentage not selected, serving or challenged. 



Percentage selected or serving. 



1972 


21.11 


20.89 


1973 


24.42 


20.16 


1974 


21.40 


19.12 


1975 


18.78 


19.32 


1972 


(') 


514 


1973 


(') 


498 


1974 


561 


585 


1975 


508 


490 


1972 


58.26 


24.78 


1973 


(') 


24 


1974 


26 


25 


1975 


27 


25 


1972 


20.9 


29.9 


1973 


25.0 


28.4 


1974 


27.6 


25.5 


1975 


21.3 


23.8 


1972 


61.0 


55.5 


1973 


51.9 


56.5 


1974 


61.3 


58.3 


1975 


64.9 


60.1 



62 
81 
71 
44 
0) 

(>) 

76 
56 
94 
(') 
51 
58 

(') 
47 
63 
48 
38 
68 
41 
29 



» Not available. Reports not transmitted to administrative office where indicated. 

United States District Court, 

District of Utah, 
Salt Lake City, Utah, May U, 1916. 

Hon. QtTENTIN N. BURDICK, 

Chairman, U.S. Senate, Committee on the Judiciary, Subcommittee on Improve- 
ments in Judicial Machinery, Washington, D.C. 

Deab Senator Burdick : I acknowledge receipt of your letter to me dated 
April 27, 1976, in which you request me to api>ear on May 18, 1976, before the 
Subcommittee on Improvements in Judicial Machinery to testify with respect to 
S 1130 introduced by one United States Senator, Mr. E. J. Garn of Utah. You 
note in your said letter that the reason for the request that I appear is my 
status "as the last of the 32 judges who were exempted from the age limitation" 
["grandfather clause" of P.L. 85-593 relating to the age 70 limitation upon 
service as a chief judge] and that I am the "sole Chief Judge who would be 
affected by such as repealer". The only issue before your Subcommittee is my 
status in the administrative office of Chief Judge of the District of Utah. 

In sponsoring the bill. Senator Garn has asserted as a principal reason for 
introducing the measure that as Chief Judge, I have the responsibility for 
assignment of cases between myself and the other judge of the District of Utah. 
Senator Garn is mistaken, since the entire assignment process in Utah is con- 
trolled wholly bv a special order of the Judicial Council of the Tenth Circuit 
dated January 20, 1958, as amended by Orders dated May 3, 1962 and May 24. 
1965, copies of which are annexed, marked Exhibit "A". Therefore, your Com- 
mittee is faced with the issue involving my administrative office and the acknowl- 
edged fact that the proposed law is directed solely at me in contravention of a 
"grandfather clause" which was allowed to apply totally to the chief judge office 
of 31 other judges originally covered by the clause. 

I am deeply concerned about the constitutionality of S. 1130 which would 
amend the Act of August 6, 1958 (28 U.S.C. §136) relating to service as chief 
judge of a United States District Court. As you know. Congress determined in 
that Act that no federal district court judge should hold the office of chief judge 
past the age of 70. Congress, however, specifically exempted from the mandatory 
retirement provision those judges in two-judge districts already serving as chief 
judge as of August 6, 1958. S. 1130 would repeal that exemption. I believe such 
an attempt appears to constitute a Bill of Attainder and is thus expressly pro- 
hibited by the Constitution. (Art. 7, § 9. CI. 3) . 

The Supreme Court has delned Bills of Attainder as any "legislative acts, no 
matter what their form, that apply either to named individuals or to easily 
ascertainable members of a group in such a way as to inflict punishment on 
them without a judicial trial. . . ." Utiited States v. Lorett, 328 U.S. 303, 315-6 
(1946). The punishment inflicted need not be imprisonment or a fine. 

"The deprivation of any rights, civil or political, previously enjoyed, may be 
punisliment, the circumstances attending and the causes of the deprivation deter- 



205 

mining this fact. Disqualification from office may be punishment, as in cases of 
conviction upon impeachment. Disqualitication from the pursuits of a lawful 
avocation, or from positions of trust, or from the privilege of appearing in the 
courts, or acting as an executor, administrator, or guardian, may also, and often 
has been, imposed as punishment." Cummings v. Missouri, 4 Wall, at 320, 18 
L.Ed, at 3G2. (Emphasis added.) 

The Supreme Court has concluded that such Bills of Attainder were pro- 
hibited by the Constitution for two purposes : First, to implement the doctrine 
of the separation of powers : and, second, because regardless of the need for 
a separation of powers, the legislature is simply not "well-suited to the task 
of ruling upon the blameworthiness of, and levying the appropriate punishment 
upon, specific persons." U.S. v. Broicn, 3S1 U.S. 437, 445 (1965). 

Senate Bill 1130 appears to violate both of those purposes. It violates the 
separation of powers by involving Congress in an effort to discipline or punish a 
member of the federal judiciary, even though the only explicit disciplinary power 
over judges given to Congress by the Constitution is the power to remove judges 
by impeachment. (Art. 2, § 4 and Art. 1, §§ 2 and 3). 

I respectfully urge you therefore to reject S. 1130 as a Bill of Attainder. 

The fundamental rules involving separation of powers and the pressure and 
the business of the court preclude my personal appearance at this time. There- 
fore, acknowledging respect for you, for your Committee and the legislative 
process, I respectfully decline your thoughtful request to appear and forward 
this letter in lieu of a personal appearance. However, I ask you to read this 
letter into the record of the proceedings and thank you in advance for your 
courtesy. In addition, I ask that you keep the record open after the formal hear- 
ing so that I may be provided an opportunity to supplement the record or even 
to make a personal appearance should I deem it necessary to protect the record 
of these proceedings. 

The Committee should know that my office of Chief Judge involves administra- 
tive duties in three major categories, i.e., the Office of the Clerk of the Court, 
the Office of Referee in Bankruptcy and the Office of Probation. 

The Clerk's Office is functioning effectively under procedures designed to fa- 
cilitate the maintenance of current court calendars (see Schedules 1, 2, 3, 4, 5 
and 6, annexed), prompt notification to members of the Bar of hearings and 
developments (see Exhibit "B" annexed) and orderly preparation of records on 
appeal (see Exhibit "C" annexed). 

I enclose the following information as to the condition of my calendar as a 
means of demonstrating underlying efficiency in the Clerk's Office and policies 
which expedite litigation. As of May 10, 1976, Schedule 1 shows the number of 
criminal cases pending on my calendar and the year the cases were filed ; Sched- 
ule 2 shows the number of civil cases pending on my calendar and the year the 
eases were filed ; and Schedule 3 describes each pending case and its present 
status. It is apparent that my calendar is absolutely current and that the very 
few holdover cases from prior years (1968-2 criminal ; 1969-1 civil ; 1970-3 civil ; 
1971-1 civil: 1972-0; 1973-1 criminal, 8 civil; 1974-5 criminal, 19 civil; 1975-7 
criminal, 118 civil; 1976-15 criminal, 61 civil) involve extraordinary circum- 
stances in no way related to a failure of the administration of the Chief Judge. 
In a similar vein. Schedule 4 shows the number of cases on my calendar which 
have been closed for the calendar year 1975 (158 criminal and 177 civil) and 
for the first four months of 1976 (43 criminal and 114 civil). Finally, Schedule 
5 shows the heavy workload of the court and the results of the case assignment 
orders promulgated by the Judicial Council of the Tenth Circuit. 

Because the role of the Chief Judge involves practices and policies in the 
Clerk's Office which would affect the progress of cases in both United States 
District Courts for the District of Utah, I enclose Schedule 6, which compares 
the status of the calendar for United States District Courts for the District of 
Utah to such calendars in other states within the area of the Tenth Circuit 
Court of Appeals (excluding the unrepresentative State of Oklahoma) and the 
states within the Ninth Circut Court of Appeals (excluding the unrepresentative 
State of California). With respect to pending cases, the percentage of cases 
pending three years or more, the median time from filing a case to disposition 
and the median time from the time the case is at issue to trial of the case, all 
demonstrate that the District of Utah has a clear edge over most of the other 
states within the Ninth and Tenth Circuits (see Schedule 6, italicized numer- 
als). At the very least, these data demonstrate conclusively that the status of 
litigation in Utah is satisfactory, even exemplary. 



206 

One power of the Chief Judge is the power of appointment 
I am vitally concerned with the quality of my appointments. 
The major appointments in this jurisdiction are the Referee in Bankruptcy, 
now called Bankruptcy Judge, and the Chief Probation Officer of the Probation 
Office. 

Bruce S. Jenkins, the Bankruptcy Judge of the United States District Court 
for the District of Utah, was first appointed in 196o. 

He came to the court with a distinguished record of a scholar, a lawyer, and 
a legislator. ITis work as a State Senator and former President of the Utah 
State Senate, was commended by students of government, colleagues and news 
media. His pioneering effort iu state government reorganization culminated in 
a major reorganization of the executive branch of the Utah State Government. 

During his tenure on the bankruptcy bench, a most difficult assignment, he 
has achieved the acceptance and respect of the commercial and credit com- 
munity, members of the Bar, the university community and colleagues nation- 
wide. 

At the 1975 convocation, University of Utah Law School, he was honored by 
unanimous action of the faculty and the Utah Chapter of the Order of Coif by 
being made the Order of Coif designate for 1975— the only judicial officer 
so honored in 1975. He was so honored in part, because of his work as Bank- 
ruptcy Judge and his contribution "to the law of the state and the nation." 

As a member of the National Conference of Bankruptcy Judges, he was a 
member of its Board of Governors and three times chaired its Committee on 
Practice and Procedure. 

During his tenure as Bankruptcy Judge, he has processed about 14,000 cases 
and hundreds of proceedings within such cases. He has handled from 1,052 
to 1,625 cases per year with an average of about I.-SIO cases per year. 

He has lectured widely before credit gi-oups. Bar Associations and seminars. 
His calendar is current. Indeed, he has consistently been commended by the 
Bankruptcy Division of the Administrative Office of the United States Courts 
for the excellence of his performance and that of the Bankruptcy Court staff. 
Mr. B. A. Rhodes, the Chief Probation Officer, is a man with over twenty 
years experience in the field of probation. A graduate of the University of Hous- 
ton, Houston. Texas, Mr. Rhodes has a B.S. degree in Sociology. After five years 
with the Harris County Juvenile Court System in Houston, Texas, he was later 
hired through the Utah State Merit System iu 1961 and became a Juvenile Pro- 
bation Officer for the State of Utah. Mr. Rhodes came to work for the District 
Courts of Utah in 1962, and was appointed Chief Probation Officer for the Dis- 
trict of Utah in 1965. 

Over the past three years a small staff of probation officers have completed 
a total of 912 investigations for the courts, prison system, and the T'nited States 
Board of Parole, 267 of which were presentence reports for the District of Utah. 
They presently supervise and administer to 260 probationers and parolees 
monthly. All matters in the office are treated promptly and effectively. 

We have what is recognized as one of the finest probation offices in the 
country, an opinion supported by attorney.s in the District of Utah, law enforce- 
ment, and members of the social service discipline from diverse areas. 

The Congress is being led into a futile and wasteful quest. The proposed law 
has all the aspects of an unconstitutional Bill of Attainder. The "grandfather 
clause" is applicable onlv to districts with two judges, not the districts with 
three or more judges (see Public Law 8.5-593, §3, 62 Stat. S97). Consequently, 
the whole question would become moot upon an Act of Congress creating a 
third district court judge for the District of Utah, a problem which does need 
long overdue congressional attention. 

The real dimension of this attack is plain when you consider that the "grand- 
father clause" automatically expires by its own terms as soon as a third judge 
is appointed for Utah. 

That should be in the next judge bill to be considered by this very Com- 
mittee. The sponsoring senator could have been doing something constructive 
and of lasting benefit for his state, if he had been working for a third federal 
judgeship for Utah. ^ .^^ , ... 

I hope the foregoing statement will be of aid to your Committee and will 
help you to turn your attention to important problems confronting the Congress 
of the Ignited States. 

Respectfully submitted, t>....„,.„ 

'■ Willis W. Ritter. 



207 

Exhibit "A" 

In the Judicial Council or the Tenth CIROU^T of the United States 

January Session — 1958 

In the Matter of the Division of Business and Assignment of Cases in 
THE United States Court for the District of Utah 

order 

A formal request, together with data in support thereof, to divide the business 
and assignment of cases in the United States Court for the District of Utah 
was submitted to the Judicial Council. The Council considered the matter at a 
meeting held in Denver, Colorado, on December 2. 1957, and considered it fur- 
ther at a meeting held in Denver on January 8, 1958. All members of the Council 
were present and participated in both meetings. At the meeting held on January 
8, the Chief Judge and the Associate Judge of the Court for the District of 
Utah were present in person; each .><ubmitted an extended verbal statement; 
and the Chief Judge submitted a statement in writing. 

The Council Finds : 

(1) The Judges of the United States District Court for the District of Utah 
are unable to agree upon the adoption of rules or orders for the division of the 
business of, and the assignment of cases pending in, that Court ; and 

(2) The effective and expeditious administration of the business of the United 
States District Court for the District of Utah requires the Council to make this 
order under the power and authority granted to it by 18 U.S.C. §§ 137 and 332. 

Accordingly, it is ORDERED: 

(1) For the purpose of the division of business and the assignment of cases 
made herein the Judge of the United States District Court for the District of 
Utah who is senior in commission is designated as "Chief Judge" and the 
other Judge is designated as "Associate Judge." 

(2) All cases which are filed before the effective date of this order shall 
be assigned in accordance with the practice now existing in the Court. All 
business arising, and all cases filed, on and after the effective date of this order 
shall be divided and assigned as herein provided. 

(3) All criminal proceedings, including cases instituted under the Federal 
Juvenile Delinquency Act, removal cases, and complaints for the apprehension 
of material witnesses, are assigned to and shall be handled by the Chief Judge 
in each even numbered calendar year and are assigned to and shall be handled 
l)y the Associate Judge in each odd numbered calendar year. The Judge to whom 
the criminal proceedings are assigned in any calendar year shall have full con- 
trol over and responsibility for the call and discharge of grand juries, the return 
of indictments, arraignments, cases under the Federal Juvenile Delinquency 
Act, complaints for the apprehension of material witnesses, and all other crimi- 
nal proceedings. All cases arising either by indictment returned or information 
filed during the period in which a particular Judge is assigned to handle crimi- 
nal proceedings shall remain assigned to that Judge even though they are not 
t^oncluded within such i^eriod. Proceedings under 28 U.S.C. § 2255 are assigned 
to and shall be handled by the Judge who imposed the sentence involved therein. 

(4) AH proceedings under the bankruptcy laws of the United States, under 
the immigration laws of the United States, and under the naturalization laws 
of the United States, except criminal proceedings arising under such bank- 
ruptcy, immigration, or naturalization laws, are assigned to and shall be han- 
dled by the Chief Judge in each odd numbered calendar year and are assigned 
to and shall be handled by the Associate Judge in each even numbered calendar 
year. All proceedings instituted under either the bankruptcy laws, the immigra- 
tion laws, or naturalization laws during the period in which a particular Judge 
is assigned to handle such proceedings shall remain assigned to that Judge 
even though they are not concluded within such period. 

(5) (a) The term "civil cases" when used herein shall include all cases and 
proceedings other than criminal, bankruptcy, immigration, naturalization, and 
28 U.S.C. § 2255 cases and proceedings. Every civil case when filed shall be 
given and identifying number and shall forthwith be assigned to one of the 
Judges of the Court as herein provided. 

(b) For the a.ssignment of civil cases the Clerk shall prepare a set of not less 
than fifty nor more than one hundred cards. On one-half of such cards the 
designation "Chief Judge" shall appear and on the other one-half thereof the 
designation "Associate Judge" shall appear. The Clerk shall also prepare a 



208 

set of envelopes equal in number to that of the cards. The envelopes shall be 
made of material which is not transparent and shall be numbered in sequence 
beginning with the number of the first civil case filed on or after the effective 
date of this order. The cards shall then be so mixed that the cards bearing the 
designation "Chief Judge" and the cards bearing the designation "Associate 
Judge" shall be in irregular and unknown sequence. One card shall be inserted 
in each envelope in such manner that no one shall know the designation appear- 
ing on such card. The envelopes shall then be sealed, placed in numerical 
sequence and kept by the Clerk in a safe place. As each civil case is filed the 
Clerk shall take the envelope bearing the docket number of that case and 
remove the card therefrom. The case then becomes assigned to the Judge whose 
designation appears on such card. Both the envelope and the card shall be 
affixed to the file cover of the case. As required, the Clerk shall prepare and use 
new sets of cards and envelopes. The sequence of numbers on each new set of 
envelopes shall begin with the number which follows in sequence the last num- 
ber of the previous set. The Clerk shall administer this method of assignment 
so as to prevent any predetermination of the Judge to whom a case shall be ~ 
assigned and so as to bring about an equal division of the civil cases between 
the two Judges. 

(c) No order shall be entered in any civil case until it is filed and assigned 
except : 

(i) An application to proceed in forma pauperis in any civil case shall be 
heard and determined by the Chief Judge if he is available and otherwise by 
the Associate Judge. 

(ii) If any civil case is filed with a Judge as permitted by Rule 5(e) of the 
Federal Rules of Civil Procedure and such case requires immediate action, the 
Judge with whom the case is filed may take such action as he deems appropriate 
and then shall forthwith transmit the papers in the case to the Clerk for docket- 
ing and assignment as herein provided. 

(d) AVhen civil cases involving a common question of law or fact are assigned 
to different Judges and a consolidation is proper under Rule 42 of the Federal 
Rules of Civil Procedure, either Judge may order a consolidation. Such con- 
solidated action then becomes assigned to the Judge to whom was assigned 
the consolidated case bearing the lowest docket number. 

(6) If a Judge is disqualified to act, or recuses himself, in any case or pro- 
ceeding assigned to him, the case or proceeding shall then be assigned to the 
other Judge. 

(7) If immediate action is necessary in any case or proceeding assigned to a 
particular Judge and that Judge is unavailable for any reason, the other Judge 
shall hear and dispose of the matter requiring immediate attention but such 
action shall not constitute a re-assignment of the case or proceeding. 

(8) The division of business and assignment of cases made herein may be 
altered or modified by written order signed by both Judges and filed with the 
Clerk. 

(9) The effective date of this order is February 20, 1958. 

(10) An original copy of this order shall be retained in the records of the 
Council ; a duplicate original shall be forthwith transmitted to the Clerk of the 
United States Court for the District of Utah to be imbedded in the records of 
the court ; a copy shall be forthwith transmitted to the Chief Judge of the Court 
for the District of Utah ; and a copy shall be forthwith transmitted to the Asso- 
ciate Judge of such Court. 

DONE by the Judicial Council of the Tenth Circuit this 20th day of January^ 
1958. 

Sam C. Bratton. 

Chief Judge. 

Alfred Murrah. 

Circuit Judge. 

John C. Pickett, 

Circuit Judge. 

David T. Lewis, 

Circuit Judge. 

Jean S. Breitenstein, 

Circuit Judge. 



209 

In the United States District Coukt for the District of Utah 

Northern Division 

In the Matter of the Division of Business and Assignment of Cases in 
THE United States District Court for the District of Utah 

order 

During the year one of the judges of the court has the criminal calendar, that 
judge also shall have assigned to him all of the civil cases tiled in the Northern 
Division. 

The Order of the Judical Council of the Tenth Circuit dated January 20, 1958, 
is hereby amended to conform to the foregoing order. 

This amendment shall take effect upon the signing of this order by both 
judges and filing with the clerk and shall govern cases filed after the effective 
date. 

Done this 3rd day of May, 1962. 



Chief Judge. 



Associate Judge. 



In the Judicial Council of the Tenth Circuit of the United States 

March Session — 1965 

In the Matter of the Division of Business and Assignment of Cases in the 
United States Court for the District of Utah 

order 

A request having been made that the order of the Judicial Council dated 
January 20, 1958, and pertaining to the division of business and assignment of 
cases in the United States District Court for the District of Utah, be modified 
and amended, and the Council having fully considered such request at meetings 
held upon March 22 and 25, 1965, at Denver, Colorado, the Council now 

Finds : 

1. The order of the Judicial Council dated January 20, 1958, was, in accord 
with paragraph (8) thereof, amended by order of the District Court dated May 3, 
1962, and, as amended, is in full force and effect. Further reference to such 
order shall include the amendment of May 3. 1962. 

2. The effective and expeditious administration of the business of the United 
States District Court for the District of Utah requires that such order be 
amended and thus requires the Council to make this order imder the power and 
authority granted to it by 28 U.S.C. §§ 137 and 332. 

Accordingly, it is ordered : 

That the order of the Judicial Council is amended to provide as follows : 

1. During both even and odd numbered calendar years all criminal cases and 
proceedings in the Central Division of the District of Utah shall be assigned 
to the Chief Judge. 

2. During both even and odd numbered calendar years all cases and proceedings 
of whatever kind or nature in the Northern Division of the District of Utah 
shall be assigned to the Associate Judge. 

3. The said assignments shall be automatically made notwithstanding other 
provisions of the order of the Judicial Council ; but except as necessarily changed 
by this amendment the assignments, procedures, rules and other provisions of 
tiie order of the Judicial Council shall remain in full force and effect. 



210 

4. This amendment shall become effective on January 1, 1966. 
Dated this 24th day of May, 1965. 



Chief Judge, 

John C. Pickett, 

Circuit Judge. 



Circuit Judge. 



Circuit Judge. 



Circuit Judge. 



> 



Circuit Judge. 



Exhibit "B" 

affidavit 
State of Utah, 
County of Salt Lake, ss: 

I, Hana Shirata, Deputy Clerk of the United States District Court, being first 
duly sworn, do hereby make the following statements : 

Duties in the Clerk's Office are many and varied. Certain matters, however, 
take precedence and are expeditiously taken care of. Such matters include (1) 
notification of counsel relative to orders signed by the court in their cases, and 
(2) notices to counsel of matters set down for hearing. It is the practice of 
this oflice to see that such notices to counsel are mailed out immediately upon 
receipt of the signed orders, the setting of a hearing date, or designation of 
a motion day. 

Any situation in which emergency action is required by the court, such as 
Temporary Restraining Orders, emergency Petition for Writ of Habaeas Corpus 
in civil cases and bond hearings in criminal matters are immediately set down 
for prompt disposition and generally disposed of as soon as counsel involved 
can be notified, usually by telephone, to appear for hearing. 

I am generally aware of the matters that transpire in the Clerk's Office and 
very seldom are any complaints received from members of the Bar or other 
courts about the manner in which the office is administered. When such com- 
plaints have been made, they have been given prompt and due consideration 
and appropriate action taken to remedy the problem. No complaints, to my 
knowledge, as to the administration of this oflSce have been received from the 
Clerk's Oflice of the Tenth Circuit Court of Appeals. Whenever suggestions 
have been received from the Clerk's Office of the Tenth Circuit Court of Ap- 
peals relative to records on appeal, the suggestions have received prompt at- 
tention and have been achieved. 

Hana Shirata. 

Deputy Clerk. 

Subscribed and sworn to before me this 13th day of May 1976. 

Alan H. Jenkinson, 
My Commission Expires : November 1.5, 1977. 

Notary Public, 

Exhibit "C" 

affidavit 
State of Utah, 
County of Salt Lake, ss: 

I. Ruth Bailey, Deputy Clerk in the United States District Court for the 
District of Utah, do hereby make the following statement : 

Records on appeals in most cases are prepared and transmitted to the Tenth 
Circuit Court of Appeals by the end of the forty-day period allowed after the 
filing of notice of appeal. Sixty days is allowed for ti-ansmittal of a record to 



211 

the Supreme Court of the United States. Reporters' transcripts of proceedings 
are usually prepared within the time allowed. However, in some cases an ex- 
tension is granted to allow the reporter to complete a transcript. 

Ruth Bailey, 

Deputy Clerk. 
Subscribed and sworn to before me this 13th day of May 1976. 

Alan II. Jenkinson, 

Notary Piihlic. 
My Commission Expires: November 1.". 1977. 



SCHEDULE 1 



U.S. DISTRICT COURT FOR THE DISTRICT OF UTAH, WILLIS W. RITTER, CHIEF JUDGE-CALENDAR STATUS 

CRIMINAL CASES 

Cases 
Year pending Description 



1968 2 Both secret indictments, defendants fugitives. 

1973 1 Defendant a fugitive. 

1974 5 Defendants fugitives in 2 cases. N Cr 74-22, Francis C. Lund (problem of extradition; tax 

evasion charge). Cr 74-53, William Allen (avi/aiting sentence). Cr 74-54, Milton Rich 

(retrial, hung jury before Judge Halbert). 
1975 7 Defendant fugitive in 1 case. Includes 2 cases in w/hich circuit has stayed all proceedings: 

Cr 75-76, Countryside Farms, et al. Cr 75-120, Lansing and Farley. 
1976 15 3 cases awaiting trial. 

Total 30 



SCHEDULE 2 

U.S. DISTRICT COURT FOR THE DISTRICT OF UTAH, WILLIS W. RITTER, CHIEF JUDGE— CALENDAR STATUS, 

CIVIL CASES 

Cases United 
Year pending States Private Description 

C 327-69, American Oil v. McMillan (retrial mandate). 

C 21-70, James Jim v. State of Utah (hearing on determination of 
disposition of case). C 171-70, U.S. v. Paul E. Reiman (property 
needs to be resurveyed— mandate). C 274-70, Donald Boyd 
Julander v. Ford Motor (retrial — mandate). 

C 29-71, Walter E. Bronson v. American Metal Climax (ruling on 
3d party complaint of American Metals v. Silver Bell— per 
mandate). 



1969. 




1 ... 




1 


1970. 




3 


1 


2 


1971. 




1 ... 




1 


1973.. 




8 


2 


6 


1974.. 




1 19 


4 


15 


1975.. 




118 


30 


88 


1976.. 


Total 


61 


16 


45 




211 


53 


158 



' Includes 3 cases already tried— awaiting filing of memos: C 74-171, Jack Wimmer v. USA and Stevenson (disposition 
as to USA). C 74-184, Webb v. Blakely (court to prepare memo). C 74-287, Mary Larsen v. Ferris R. Kirkham (awaiting 
filing of memo). 

ScHEDLTLE 3 — U.S. District Court for the State of Utah 

WILLIS W. RITTER, CHIEF JUDGE 

Description of Status of Pending Cases 

Criminal Cases: (Pending) 

1968 — 2 criminal cases (both secret indictments, defendant fugitives). 
1973— Cr 40-7.3— U.S. v. Xamik Mehmet Gungor (fugitive). 

1974 — N Cr 74-22 — U.S. v. Francis C. Lund (Tax Evasion — problem of extra- 
dition). 
Cr 74-15— U.S. v. Carl Robert Taylor & Sherman Ramon McCrary 

(fugitives). 
Cr 74-18 — Secret Indictment. 



212 

Cr 74-r)3 — U.S. v. William Allen (awaitius sentence). 

Cr 74-54 — U.S. t'. J. Milton Rich (awaiting retrial — hung jury btfore 
Judge Halbert in original trial). 
1075 — 6 cases awaiting trial (this includes 2 cases in which the Circuit has 

stayed all proceedings Cr 75-76 Countryside Farms, et al. Cr 75-120 

Lansing and Farley). 
107(3 — 15 eases pending, including 3 cases awaiting trial. 

Civil Cases: (Pending) 

1969 

C 327-G9 — American Oil v. Lawrence S. McMillan (Mandate). 

1970 

C 21-70 — James Jim v. State of Utah (Awaiting hearing on determination of 
disposition of case and plaintiff's motion for award of attorneys' 
fees ) . 

C 171-70 — U.S. r. Paul E. Reiman (Mandate — property needs to be resurveyed). 

C 274-70 — Donald Boyde Julander et al v. Ford Motor (Mandate — Retrial). 

1971 

C 20-71 — Walter E. Bronson, et al. t\ American Metal Climas (Mandate — Ruling 
on third party complaint of American Metals v. Silver Bell follow- 
ing filing of briefs). 

1973 

C 4.3-73— V-1 Oil V. Pat Griffin (Pretrial Order due May 14, 1976). 

C 126-73 — Glenda Miera. et al. v. First Security Bank (Master appointed — • 
Ronald N. Boyce). 

C 223-73 — Cyril L. Jensen, et al. v. John L. Jackson, et al. (Matter stayed pend- 
ing bankruptcy proceedings in Nevada: otherwise ready for trial). 

C 268-73— Rio Vista Oil v. Union Oil (Pretrial Order June 1, 1976). 

C 277-13 — Je Maintiendrai Club r. Trans-International Airlines (Pretrial Order 
due June 1, 1976). 

C 30S-73— Navajo Tribe of Indians v. Rogers C. B. Morton, et al. (Court will 
not accept settlement — Indians to be brought before court for 
hearing). 

C 357-73 — Coca Cola Bottling v. Coca Cola Company (Jury trial after Septem- 
ber 1,1976). 

C 367-73— June Yivant et al. r. Trans Delta Oil, et al. (Case Reopened on 
December 15, 1975 — violation of injunction by federal defendants). 

1974 

C 74-36 — Security Investor Protection Corp. v. Equidyne (Matter in Bankruptcy 
Court). 

C 74-64 — State of Utah v. Thomas S. Kleppe (Awaiting hearing — ruling on mo- 
tions for summary judgment following filing of briefs on Apr. 16, 1976). 

C 74-74 — Alanna L. McMahon v. BYU (Case transferred from Judge Anderson 
Feb. 9, 1976). 

C 74-12« — Kenneth Jim Rogers v. Credit Bureau of Salt Lake (Pretrial due). 

C 74-14R and 74-1.5.5 — Douglas Barton v. Montgomery Ward (Mandate — re- 
manded as to matter of dismissal ) . 

C 174-171 — Jack L. Wimmer v. USA and Leland G. Stevenson (Awaiting dis- 
position as to ITSA by court; jury trial result — no cause of action as to de- 
fendant Stevenson). 

C 74-200 — Brad R. Woodward et al. v. Terracor (Pretrial due). 

C 74-216 — Stephen N. Putnam v. U.S. Dept. of Agriculture, et al. (Pretrial due 
July 1,1976). 

C 74-261 — CIT Leasing v. Stephenson's Inc. (Matter stayed — Chapter 11 bank- 
ruptcy ) . 

C 74-284 — Erwin Paul Youngreen, et al. v. Stanley Collins, et al. (Awaiting 
trial). 

C 74-287 — Mary J. Larsen v. Ferris R. Kirkham, et al. (Case tried; awaiting 
filing of memos due May 18, 1976 ) . 

C 74-296— A rd en Robinson v. London Commodity Options (Awaiting trial). 



213 

C 74-309— Debry and Hilton Travel Service v. Western Airlines & Sine Enter- 
prises (Motion and Pretrial). 
C 74-314 — U.S.A. for George Cassity r. R. J. Connors (Motion and Pretrial), 
C 74-330 — Ray "NVardle v. Ute Indian (Awaiting jury trial). 
C 74-354 — Security Exchange Commission v. Constitution Mint, et al. (Awaiting 

trial). 
C 74-360 — Sandra Peart v. Health Industries (Awaiting trial). 
C 74-400 — Gordon B. Eastman, et al. v. Jerrold R. Morgan (Matter on Appeal). 

1975 Cases Pending Case filing date 

C 75-14 — Robert Rees Dansie v. Pioneer Gen-E-Motor Corp. Jan. 15, 1975. 

( Motions and Trial ) . 
C 75-19 — Joe A. Gallegos v. Casper A. Weinberger, Sec. Health Jan. 17, 1975. 

(Hearing — Ruling of Court [memos tiled] ). 
C 7.5-27 — U.S. Steel Corp. v. United Mine Workers et al. (Pre- Jan. 23, 1975. 

trial). 
C 75-33 — Jack Anderson, et al. v. Brimley Bros. Inc. (Hearing— Jan. 28, 1975. 

Accounting). 
C 75-53 — P.B.I. Freight Service v. Gates Rubber Co. et al. (Mo- Feb. 3, 1975. 

C 75-63 — Joseph A. Espinosa v. Casper A. Weinberger, Sec. Feb. 13, 1975. 

Health (Awaiting Final Papers). t^ , ^o r^ 

C 75-68— Allen L. Barbieri et al. v. Deseret Mfg. Corp., et al. * eb. 18, 197o. 

( TriRl ) 
C 7,5-87 — DMH Co. t\ Courtesy Mobile Homes, et al. ( Motion )__ Feb. 27, 197.5. 
C 75-88 — USA V. Motor Cargo (Matter stayed pending proceed- Feb. 27, 1975. 

ingsbeforelCC, Mar. 25, 1975). 
C 75-109 — Diana D. Smith v. Prudential Fed. Savings (Pre- ^^^ar. 1(, 19(o. 

trial). 
C 75-121— Palace Theatre Corp. v. D. AV. Harkness et al. (Pre- Mar, 24, 1975. 

trial). 
C 75-124— Theodore E. Glezos et al. v. Mary E. Blackett, et al. Mar. 25, 1975. 

( Pending ApiJeal ) . 
C 75-127— Geraldine Browning Farber et al. v. Walker Bank & Mar. 26, 1975. 

Trust (Trial). 
C 75-129 — Glenn C. Rowland v. Dos Americas, et al. (Awaiting Mar. 28, 1975. 

Final Judgment due May 31, 1976). 
C 75-133— Security Metals, Inc. v. C. W. "Mac" Mcintosh (Ap- Apr. 8, 1975. 

plication for Default Judgment Hearing). 
C 75-143 — Innoceuti Societa Pallacanestro v. Randall Denton Apr. 9, 1975. 

(Pretrial). 
C 75-151 — Murray First Thrift v. Fireman's Fund, et al. (Pre- Apr. 16, 1975. 

trial). 
C. 75-159 — Everett A. Muncy v. Casper A. Weinberger, Sec. Apr. 22, 1975. 

Health (Pretrial). 
C 7.5-102— Rulon R. Rich v. Casper A. Weinberger, Sec. Health Apr. 23, 1975. 

(Pretrial). 
C 75-163— R. W. Sims, et al, v. Moran Tank Co., Inc., et al. Apr. 23, 1975. 

(Matter pending appeal). 
C 75-160— Dante Menicucci v. Western Pacific RR et al. (Pre- Apr. 29, 1975. 

trial). 
C 75-169— Merle B. Albrechtsen v. William E. Higgins (Pre- Apr. 29, 1975. 

trial). 
C 75-171 — Acoustical Contractors, Inc. v. Richard Grant, et al. Apr. 30, 1975. 

(Order to Show Cause). 
C 75-17.5 — Duvels, Inc., et al. v. Kent Frizzell, Sec. Int. (Trial)— May 2, 1975. 
C 75-184 — Abbott Laboratories v. Det^eret Pharmaceutical Co. May 9, 1975. 

(Pretrial). 
C 75-186 — Teddy A. Hellstrom v. Marilyn Kay Magnuson Ander- May 12, 1975. 

sou Hellstrom (I'retrial). 
C 7.5-192— Groban Supply Co. v. Abbott GM Diesel, Inc. (Pre- May 19, 1975. 

trial). 
C 7.5-203— Gloria R. Howard v. Dean Witter & Co. (Pretrial) — May 29, 1975. 
C 75-207 — Xifk S. Kalokas v. Casper A. Weinberger, Sec. Health May 30, 1975. 

(Awaiting Final Document). 



214 

C 75-219 — Dairymen Associates, Inc. v. Western General Dairies, June 9, 1975. 

et al. (Possible Consolidation). 

C 75-220— James C. Allen v. Samuel W. Smith (Trial) June 11, 1975 

C 75-224 — Frank Martin, Sr., et al. v. Bradshaw Ford-Mercury, June 13, 1975. 

Inc. (Pretrial). 
C 7-5-227 — Cox Electronic Systems v. Digital Time Products June 13, 1975. 

(Hearing-Default Judgment and Damages), 
C 75-233— Ora G. Petersen v. Hayes Servo, Inc., et al, (Pre- June 17, 1975. 

trial). 
C 75-234— Drew D. Jurdan v. Deseret News Publishing (Pre- June 18, 1975. 

trial), 
C 75-249 — Jewel M. Mortensen v. Howard H. Callaway, Sec, June 26, 1975, 

Army (Pretrial). 
C 75-254 — Abraham M. Mohammed v. Howard H. Callaway, Sec. June 30, 1975. 

Army (Pretrial). 
C 75-2.J6 — Richard E. Hawkins, et al. v. Dean Witter & Co. July 1, 1975. 

(Pretrial). 
C 75-261— Melesiu Leka Katoa v. Edward Levi, Attorney Gen- July 7, 1975. 

eral (Pretrial). 

C 75-263— Joan E. Wilson v. USA (Pretrial) July 7, 197-5. 

C 75-266— Ernest Edward Blake v. Joe Pfoutz, et al. (.Jury July 9, 1975. 

Trial ) , 
C 75-270 — Joseph A, Winkler v. Derwood S. Staples, et al. (Pre- July 9, 1975. 

trial). 
C 75-271 — Earl Heizer v. Silver Bullion Excliauge, et al. July 10, 197-5. 

(Trial). 
C 75-27S— Randolph C. Hackford, et al. v. First Security Bank July 17, 1975. 

(Motions and Trial). 
C 75-28»— Sandra Ann Sullivan v. S. Rigby Wright, et al. (Jury July 18, 1975. 

Trial). I 
C 7.5-286 — John O. Espinoza v. Casper A. Weinberger, Sec. July 21, 1975. 

Health (Pretrial). 
C 75-290— Ronald E. Faulkner v. Monex International, et al. July 23, 1975. 

(Pretrial). 
C 7.5-291— Clyde Erekson, et al. v. Monex International et al. July 23, 1975. 

(Pretrial). 
C 75-294— Charles L. Peterson v. Secretary of Health, Educ. July 25, 1975. 

Welfare (Pretrial). 
C 75-299— T. C. Long v. Texaco, Inc., et al (Third Party Com- July 28, 1975. 

plaintfiledMay 5, 1976). 
C 7.5-305— USA et al. v. Douglas F. Wallace (Order to Show July 31, 1975. 

Cause). 
C 7.5-307 — Edward Brown Securities v. Jerry V. Strand, et al. Aug. 1, 1975. 

(Pretrial). 
C 75-313— Continental Account Servicing House v. Trans- Aug. 6, 1975. 

American Collections (Motion for Summary Judgement). 
C 75-318 — USA for Turpin's v. Horace Lloyd, et al. ( Pretrial) ___ Aug. 8, 1975. 
C 75-326 — Judy Dianne Jorgensen, et al. v. Calvin L. Rampton, Aug. 12, 1975. 

et al. (Pretrial). 
C 75-331 — Joseph E. Dozier v. Kennecott Copper, et al. (Jury Aug 14, 1975. 

Trial). 
C 75-333— Dale B. Loveridge i\ Rondeau Pacifica, et al. ( Pre- Aug. 14, 1975. 

trial). 

C 75-346 — Ann Richardson v. Steven Smith, et al. (Pretrial) Aug. 21, 1975. 

C 7.5-348 — Brenda Lyle, et al. v. Larry Larsen, et al. (Dis- Aug. 21, 1975. 

missed — April 1, 1976). 
C 75-350— J. Hartley Palmer, et al, v. Tooele Country, et al. Aug. 25, 1975. 

(Awaiting Final Settlement Documents). 
C 75-355— Gordon Lee Balka, M.D., Martin P. Hoffman, Sec. Aug. 26, 1975. 

Armv, et al. (Pretrial). 
C 7-5-356 — James DeBry, et al. v. Merrill, Lynch, Pierce (Mo- Aug. 27, 1975. 

tions). 
C 75-358— Trustees of Joint Masonry, et al. v. Alan Lougstaff Aug. 27, 1975. 
(Pretrial). 

C 75-360— Tekton, Inc. v. Robert B. Herzog. et al. (Trial) Aug. 28, 1975. 

C 75-3()7 — Shield Development Co. v. Essex International, et al. Sept. 4, 1975. 
(Pretrial). 



215 

C 75-370 — Holiday Inns, Inc. v. Beth Wride, et al. (Awaiting Sept. 9, 1975. 

answers to interrogatories). 

€ 75-374— Ronald C. Jones v. Richard D. Frost, et al. (Pre- Sept. 10, 1975. 

trial). 

C 75-375 — United States Steel v. United Mine Workers, et al. Sept. 10, 1975. 

(Pretrial). 

C 75-376— John T. Dunlop, Sec. Labor v. Paul W. Cox, et al. Sept. 11, 1975. 

(Trial). 

•C 7.5-377 — James Michael Anderson v. Ernest D. Wright, et al. Sept. 12, 1975. 

(Jury Trial). 

•C 75-380 — Margaret Dixon Fowler v. John Harrison Cunningham gept 16 1975 

(Jury Trial). ' ' 

C 75-381 — Radix Corp. v. Paperwork Systems, Inc. (Pretrial) Sept. 17, 1975. 

C 75-385 — Mamie Vaughn v. Charles Maxfleld Parrish, et al. Sept. 19*, 1975. 

(Pretrial). 

<3 7.5-397 — Rocky Mountain Helicopters v. Bell Helicopter et al. Oct. 2, 1975. 

(Pretrial). 

C 75-398 — Johnson Oil Co. v. Federal Energy Administration, Oct. 3, 1975. 

et al. (Pretrial). 

■C 75-399 — Perma-Pak, Inc. v. Kephart Communications et al. Oct. 3, 1975. 

(Hearing — motion to dismiss). 

C 75-403 — Melissa Stearman v. Tooele County School District, Oct. 8, 1975. 

et al. (On appeal). 

C 75-404 — Levi E. Mesteth v. Bertha Green, et al. (Hearing — Oct. 10, 1975. 

motion to compel answers to interrogatories). 

75—106 — Ardith Haynes v. J. C. Penney Company (Jury Oct. 15, 1975. 

Trial). 

C 75-408— Ute Indian Tribe v. State of Utah, et al. (Pretrial and Oct. 15, 1975. 

Hearing — Objection to Interrogatories). 

C 75-410 — Dale Pierre r. Ernest D. Wright, et al. (Amended Oct. 16, 1975. 

Complaint to be filed). 

<] 75-411— Richard Albiston, et al. v. Roger S. Kiger, etc. (Entry Oct. 16, 1975. 

of appearance for defendant on Apr. 29, 1976). 

C I'y-AVl — Samuel James, et al. v. David Franchina, et al. Oct. 16, 1975. 

( Amended Complaint to be filed ) . 

C 75-413 — Richard Roldan v. Ernest D. Wright, et al. (Hearing — Oct. 16, 1975. 

Defendant's motion to consolidate or dismiss). 

C 75-4i4_SEC V. Continental Gold & Silver, et al. (Pretrial)— Oct. 17, 1975. 

C 75-415— Marilyn Hockett v. D and RG Railroad, et al. (Pre- Oct. 20, 1975. 

7-,_416 — George Burch, et al. f. Don A. Stringham, et al. (On Oct. 21, 1975. 

appeal). r^ <- oo ia-K 

C 7.5-423 — John E. Price, et al. v. Five-Star Trucking, et al. '-'Ct. ^a, wtio. 

(Hearing — Order to show cause — dismissal). n *- no ia-K 

<3 75-424^ Vernon L. Richards, et al. v. E. J. Horton, et al. Oct. 23, 19*5. 

(Pretrial). „ 

75-427 — USA et al. v. Jim McClellan (Hearing — Order to Oct. 24, 1975. 

show cause). 

75^30— Lloyd A. Smith, etc. v. GLS Livestock Mgt., et al. Oct. ^S, 19 ^D. 

( ProtriRl ) . 

C 7.5-433— Northwest Pipeline Corp. v. Beech Holdings, (Mo- Oct. 30, 1975. 

C 7.5-437— Panelera et al. v. Paneltech Ltd., et al. (Hearing— Oct. 31, 1975. 

Objections to production). ,. „ ^(\-K 

<: 75-438— William Brian Davis v. David B. Corley, et al. -wov. 6, iy<o. 

(Amended complaint filed Mar. 16, 1976). „.,_ 

C 75-439— Karen Mayne et al. v. Ernest D. Wright, et al. inov. 4, uo. 

<;; 75-440— Leslie James Pearson v. Delmar Larson, (Pretrial)— ^ov. 4, 1975. 

C 75-442— Parker-Hannifin Corp. v. Poly Seal, Inc., et al. iNov. o, ly^o. 

(Awaiting answer to counterclaim). ^ „ _ 

<3 75-448— Louise H. Callahan, etc. v. Arnold Thayer, et al. i>ov. lu, iy<o. 

( Matter to be settled or dismissed ) . tvt -. -i 1 n-K 

C 75-449— Roy Velarde v. Kennecott Copper, Inc. (Trial) Nov. 11, 19(5. 

<j 7r,-458— Charles R. Lehmer et al. v. Thomson & McKinnon Nov. 14, 19(5. 

Auehincloss ( Pretrial ) . 



216 

C 75-459 — Leona M. Muir v. David Matthews, Sec. Health, Nov. 17, 1975. 

etc. (Oral arguments), 
C 75-461 — John Boundy v. Anaconda, et al. (Motion to dismiss; Nov. 18, 1975. 

motion for summary judgment). 
75^62 — Scott Paper Co. v. Interstate Contract Carrier (Pre- Nov. 18, 1975. 

trial). 
C 75-466 — Midgley Manor, Inc. v. John N. Baird, et al. (Pre- Nov. 19, 1975. 

trial). 
C 75-467 — Jerry Brewton, et al. v. Hon. Calvin L. Rampton, Nov. 19, 1975. 

et al. (Amended complaint to be filed) . 
C 75-469 — U.S. V. Major Oil Corporation, et al. (Master se- Nov. 21, 1975. 

lected). 
C 75-470— USA for Utah Foam v. Basin Plastic, et al. (Hear- Nov. 21, 1975. 

ing — motion to dismiss and/or change of venue). 
C 75-471 — John T. Dunlop, Sec. Labor i\ Magna Garfield Truck Nov. 24, 1975. 

Lines (Hearing — consolidation and/or trial). 
C 75-474 — Harvey B. Black, et ux v. E. Leon Harward (Pre- Nov. 24, 1975. 

trial), 
C 75-476 — Matrix Land Co. v. Eugene Hunt, et al. (Awaiting Nov. 26, 1975. 

answer to cross claim ) . 
C 75-479 — USA v. Mountain Empire Milk Co. (Motion for sum- Dec. 2, 1975. 

mary judgment; motion for default judgment). 
C 75^81 — Application of Administrator, National Credit Union Dec. 2, 1975. 

(Hearing — order to show cause). 
C 75^87— Stephen R. Bailey i?. C. W. Spilker, et al. (Motion 

to remand ; defendant's motion to reconsider motion for sum- Dec. 4, 1975. 

mary judgment). 
C 75-490 — Gregory Backman v. Lowell G. Robinson, et al. Dec. 5, 1975. 

( Pretrial ) . 
C 75-495— Golden Villa Spa, Inc. v. Health Industries, Inc., Dec. 9, 1975. 

et al. (On appeal). 
C 75-497 — Melvin Stewart, et ux. v. Kennecott Copper (Pre- Dec. 10, 1975. 

trial). _ 

C 75-498— La Verne Murdock v. Reserve Oil & Gas, et al. (Await- Dec. 11, 1975. 

ing answer to cross claim). 
C 75-499— Ross Perri v. David Gardner, Sec. Health, etc. ( Pre- Dec. 11, 1975. 

trial) . 
C 75-511— Mickey O. Purdue v. Ralph "Lucky" Dorrity, et al. Dec. 17, 1975. 

( Pretrial ) . 
C 75-512 — Jewel M. Mortensen v. Martin Hoffman, Sec. Army Dec. 19, 1975. 

(Pretrial). 

C 75-515 — USA V. Margaret Kreek Jacobsen (Trial) Dec. 22, 1975. 

C 75-517— Pete Grosso v. David Mathews, Sec. Health, etc. Dec. 22, 1975. 

(Pretrial). 
C 75-519— Time Oil Co. v. Utah Coke & Chemical Co. (Pre- Dec. 23, 1975. 

trial). 
C 75-520— North American Indian Revivals v. Uintah & Ouray Dec. 24, 197o. 

Indian, (Hearing — Defendant's motion to dismiss). 
C 75-524 — Fred J. Laurito v. Expressions in Wax, et al. (Mo- Dec. 24, 1975. 

tion for default judgment) 
O 75-52.5— Valley Organ & Piano v. Kawai Piano (Pretrial)— Dec. 29, 1975. 
C 75-528 — Neldon Oliver v. David Gardner, Sec. Health (Pre- Dec. 31, 1975. 

trial). 
C 75-.530 — Professional Freestyle Associates v. General Motors Dec. 31, 1975. 

et al. (Pretrial). 
C 7(1-1— John T. Dunlop, Sec. Labor v. Modular Fabricating Jan. 5, 1976. 

(Trial) . 
C 76-3 — Thomas W. Hoopes. I^avid W. Clayton r. Willis W. Jan. 5, 1976. 

Ritter, et al. (Hearing — motion to disqualify Judge Ritter 

3 lid motion to dismiss or alternatively summary judgment). 
C 76-5— Arthur B. Diaz v. Western Pacific RR Co. (Jury) Jan. 9, 1976. 

Trial). ^^ ^ 

C 76-6 — A & L Concrete Co. v. George L. Smith, et al. (Hear- Jan. 12, 10 .0. 

ing — order to show cause why case should not be dismissed 

for failure' to prosecute). 
C 76-7— John E. Blazer r. Wadsworth Publishing Co. (Pre- Jan. 12, 1976. 

trial). 



217 

C 76-10— John T. Dunlop, See. Labor v. Wm. Vriens, Jr., etc. Jan. 12, 1976. 

( Judgment signed May 5, 197G ) . 
C 76-12 — Roy S. Ludlow v. United Systems, Inc. (Hearing — Jan. 15, 1976. 

order to show cause why default not taken). 
C 76-13 — John Buxton et al. v. Diversified Resources, Inc. Jan. 16, 1976. 
(Hearing— motion partial summary judgment; motion to 
strike). 

C 76-18— Tam Hailing v. USA (Rule 2255 of T 28 USC) Jan. 20, 1976. 

C 76-22— Clyrou W. Mills v. Jimmy Dean Meat, et al. (Hear- Jan. 23, 1976. 
ing — motion to. dismiss or transfer). 

C 76-23— Kenneth M. Flake v. William R. Dees (Pretrial) Jan. 23, 1976. 

C 76-24 — American National Enterprises, et al. v. Sun Classic, Jan. 26, 1976. 

et al. (Pretrial). 
C 76-27— John T. Dunlop, Sec. Labor v. Brent D. Popp, et al. Jan. 27, 1976. 

(Pretrial).. 
C 76-30— Richard L. Christensen v. Robert G. Pedersen, et al. Jan. 29, 1976. 

(Pretrial). 
C 76-32— Ray Cottrell v. Bingham Silver Lead Co., et al. (Hear- Feb. 2, 1976. 
ing — order to show cause why case should not be dismissed for 
failure to prosecute). 
C 76-33— M. Peter Heilburn, et al. v. Snowbird, et al. (Hear- Feb. 3, 1976. 

ing — motion for consolidation ; motion to dismiss). 
C 76-35— Samuel Geist Rudy v. USA (Section 2255 of T 28 Feb. 4, 1976. 

USC). 
C 76-40— Bettie Lambsou, et al. v. Whitfield Transportation Feb. 10, 1976. 
(Order to show cause why case should not be dismissed for 
failure to prosecute). 
C 76-41 — Thomas Edward Nissalke v. Wm. Daniels, et al. Feb. 11, 1976. 
(Hearing — motion for more definite statement; motion to dis- 
miss complaint; motion to strike). 
C 76-44 — Dwayne B. Lovell v. Douglas Boulton, et al. (Pre- Feb. 13, 1976. 

trial ) . 
C 76-46 — Howard, Lewis & Peterson v. Imperial Trust, et al. Feb. 17, 1976. 

(Pretrial). 
C 76-rIi— Rocky Jlountain Arms Corp. v. Frank Tally et al. Feb. 20, 1976. 

(Hearing — motion to dismiss). 
C 76-53— Paul Williams t\ George Latimer, et al. (Hearing— Feb. 23, 1976. 

Defendant's motion to dismiss). 
C 76-54— Northern Pacific Capital Corp. v. Mt. States Resources Feb. 24, 1976. 

Corp. (Pretrial). 
C 76-55 — Audrey Joan Bundy t\ David A. Kimball, et aL (Pre- Feb. 25, 1976. 

trial). 
C 76-5&— Equitable Life Assurance Soc. v. Lowell D. Nielson Feb. 27, 1976. 

et al. (Pretrial). 
C 76-58 — Robert D. Sparrow v. Roland Anderson, et al. (Hear- Mar. 1, 1976. 

ing — motions). 
C 76-60— ICC V. Shippers Best Express, et al. (Possible settle- Mar. 2, 1976. 

ment). 
C 76-61— ICC r. Beehive State Agricultural Co-op, Inc. (Hear- Mar. 2, 1976. 
ing — motion for stay until there is final and ultimate judicial 
determination of issues raised). 
C 76-65 — Ludeal Peterson v. Denver & Rio Grande RR (Pre- Mar. 4, 1976. 

trial). 
C 76-62 — Southern Utah Mineral Dev. v. Green Hornet Mining, Mar. 2, 1976. 

et al. (Removal from state court). 
C 76-73 — Wm. Harrison Richius r. Buena A'ista Poultry et al. Mar. 10, 1976. 

(Pretrial). 
C 76-74 — James A. Baird v. David Mathews, Sec. Health (Com- Mar. 12, 1976. 

plaint filed March 12. 1976). 
C 76-83— David Curry, et ux. v. Educoa Preschools, Inc., et al. Mar. 16, 1976. 
(Hearing — order to show cause why case should not be dis- 
missed for failure to prosecute). 
C 76-85— SEC V. Premier Oil & Gas, Inc., et al. (All parties not Mar. 18, 1976. 

yet served ) . 
C 76-87 — Harvard G. Foulks v. Mrs. Patricia Everett, et al. Mar. 19, 1976. 
(Hearing — defendant's motion to dismiss). 

7S-67S— 76 15 



218 

C 76-90— Jewel M. Mortensen v. Martin Hoffman, Sec. Army Mar. 22, 1976. 

(Case not at issue). 
C 76-91— National Farm Lines v. ICC (Amended complaint filed Mar. 22, 1976. 

April 1.5, 1976). 
C 76-92— Gaynell Reyno etc. v. Betty B. Petersen (Hearing — de- Mar. 22, 1976. 

fendant's motion to dismiss). 
C 76-93— Lake Austin v. Operating Engineers Local 3, et al. Mar. 24, 1976. 

(Awaiting on answer). 

C 76-95 — Wilbur O. Nelson et al. v. USA (Case not at issue) Mar, 29, 1976. 

C 76-96 — A B B Mac Hand-Hand v. Donald C. Alexander, Com- Mar. 29, 1976. 

IRS (Case not at issue). 
C 76-98— Paul T. Moore v. Burton Lumber & Hardware (Pre- Apr, 1, 1976. 

trial). 
C 76-99— Thill Marshall v. David Mathews, Sec. Health (Case Apr. 5, 1976. 

not at issue). 
C 76-103 — James E. McKay et ux. v. Travelers Insurance Co., Apr. 6, 1976. 

et al. (Hearing — motion to bring in third party). 
C 76-104 — Woodey B. Searle v. Lonnie Johnson ( Case not at j^pr. g, 1976. 

issue). 
C 76-10.5 — Lonnie Johnson v. Woody B. Searle (Case not at Apr. 6, 1976. 

issue). 
C 76-108 — Ersell Harris, Jr. v. Sam W. Smith, Warden (Case Apr. 7, 1976. 

not at issue). 
C 76-109— Walter P. Ross, et al. v. Ernest D. Wright et al. Apr. 7, 1976. 

( Pretrial ) . 
C 76-110 — Flying Diamond Oil Corp. v. Fireman's Fund Ins., Apr. 7, 1976. 

et al. (Hearing — defendant's motion to dismiss). 
C 76-115— Edwin B. Caswell v. United Refinery, Inc. ( Unable Apr. 12, 1976. 

to serve defendant). 
C 76-117 — William R. Kingeman, et ux. v. Mt. Spokane Chairlift Apr. 12 1976. 

(No answer filed). 
iC 76-119 — R. Kent Christofferson et al. v. Producers Livestock Apr. 13, 1976. 

(Awaiting filing of answers). 
C 76-120 — Gary L. Skeem v. All-Grain Company, et al. (Answer Apr. 14, 1976. 

filed May 10, 1976 with counterclaim). 
C 76-121 — Reed H. Christofferson v. Producers Livestock Loan Apr. 14, 1976. 

Co. (Awaiting filing of answers). 
C 76-127 — Joan A. Moore etc. v. Thompson Equipment Co., et al. Apr. 21, 1976. 

( Amended complaint filed May 3, 1976 ) . 
C 76-128 — Robert J. Pinder, et al. v. Diversified Resources Corp. Apr. 21, 1976. 

(No action to date). 
C 76-1 29 — Do-It Dad Home Improvement Center v. Pro Hard- Apr. 22, 1976. 

ware, Inc. (Awaiting filing of answer). 
C 76-130 — Ernest Gene Gane v. Joe Fisher, etc. (Awaiting filing Apr. 22, 1976. 

of answer). 
C 76-132— Bill Daniels v. Snellen Johnson & Lyle Johnson (No Apr. 23, 1976. 

action to date). 
C 76-134— W. J. Usery, Jr., Sec. Labor v. Haynie, Tebbs & Smith Apr. 29, 1976. 

(Awaiting filing of answer). 
C 76-136— Utah Power & Light v. Thomas S. Kleppe, Sec. In- May 8, 1976. 

terior. 
C 76-140— USA and Ronald L. Jackson v. John William Will May 5, 1976. 



219 

SCHEDULE 4 
U.S. DISTRICT COURT FOR THE DISTRICT OF UTAH, WILLIS W. RITTER, CHIEF JUDGE— CASES CLOSED 

Criminal Civil 

Year (1975): 

January 

February 

March 

April 

May 

June 

July 

August 

September 

October 

November 

December 

Total 

Year (1976): 

January 

February -. 

March 

April 

Total - - 43 114 



SCHEDULE 5 

U.S. DISTRICT COURT FOR THE DISTRICT OF UTAH, WILLIS W. RITTER. CHIEF JUDGE- THE ASSIGNMENT OF ALL 
CASES FILED PURSUANT TO ORDERS OF THE JUDICIAL COUNCIL 

Year Civil i Criminal' 



16 


9 


2 


8 


9 


18 


13 


26 


1 
3 


8 

4 


20 


27 


10 


17 


8 


8 


18 


10 


25 


16 


33 


26 






158 


177 


20 


26 


10 


35 


8 


31 


5 


22 







Chief judge. 



1968 


128 


131 


1969 


213 


S3 


1970 


174 


S3 


1971 


152 


83 


1972 


186 


79 


1973 


198 


6b 


19:4 


210 


122 


197b 


265 


136 


2 1976 


68 


27 



Year Civil* CiviM Criminal' 

Associate judge - -- 



1968 


122 


33 


57 


1969 


206 


63 


48 


1970 


173 


51 


41 


1971 


152 


54 


65 


1972 


188 


73 


55 


1973 


197 


53 


50 


1974 


196 


60 


28 


1975 


265 


71 


45 


»1976 


67 


25 


9 



1 Central division. 

2 Apr. 30. 

' Northern division. 



Note: Chief Judge takes all central division criminal cases. Associate judge takes all northern division criminal and civil 
cases. Central division civil cases are disegnated through assignment cards. 



220 



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221 

S. 1130 — Statement fob the Subcommittee on Judicial Administration, 
United States Senate Judiciary Committee May 19, 1976 

Mr. Chairman, members of the committee and staff : I am John J. Flynn, 
a. resident of Utah and a member of the Massachusetts and Utah Bars. Since 
1963 I have served as a member of the Faculty of the College of Law at the 
University of Utah. I have also served as Special Counsel to the Antitrust 
Subcommittee of the Senate Judiciary Committee from 1969-1970. In addition, 
I have been a Visiting Professor of Law at the University of Michigan, George- 
town University and the University of Texas. During the coming academic 
year. I shall serve as a Visiting Professor of Law at Washington University 
in St. Louis and the University of Pennsylvania in Philadelphia. The views 
I express here do not represent any of the above institutions, nor do they 
represent any client or the only United States Judge affected by the proposal 
pending before the Committee. I speak for myself and my views are not 
sponsored by or attributable to any other person. 

In addition I have appeared as an attorney in courts at all levels of jurisdic- 
tion including the United States Supreme Court and as a litigant, witness and 
attorney in the Court of the present Chief Judge of the United States District 
Court for the District of Utah. At present, I have no matters pending in that 
Court nor do I expect to be a party or attorney to any proceedings in Chief 
Judge Ritter's Court in the near future. My statement here does not represent 
the views of any client — past, present or potential. I mention all this to avoid 
the implications that some of the paranoid proponents of this legislation attach 
to the fact that some of us speak up in defense of the Judge. Recusal motions 
have become routine in Judge Ritter's Court as the crescendo of unfounded 
right-wing criticism of him has risen in anticipation of the elections. Many 
experienced lawyers, Republican, Democrats, and Independents have told me 
that they would like to testify on this matter, but cannot afford to do so because 
they will be met with unfounded recusal motions in pending cases by attorneys 
who will seek to capitalize upon the controversy generated by right-wing 
critics of Judge Ritter. Moreover, they have ethical concerns about the appear- 
ances of defending the Judge in this matter by public testimony when they have 
matters pending in his Court ; ethical constraints which do not restrain political 
opponents of the Judge since many are not lawyers or they are lawyers who 
do not regularly appear in his Court. Such a recusal motion is now pending 
against the President of the Utah State Bar in an antitrust case because he 
'delivered resolutions sponsored by Mr. Robert Hanson attacking the Judge 
to Judge Ritter, upon the instructions of the State Bar Commission. The motion 
is based upon a misleading aflBdavit attacking the integrity of one of the most 
respected members of our Bar and is premised on a statute which doesn't even 
applv to the circumstances involved. 

Although I believe it is clear that this particular incident is grounds for the 
serious consideration of taking disciplinary action against the attorney filing 
the motion and his superiors, the Tenth Circuit has taken the matter under 
advisement. The practical effects of all this are to tie-up litigation and seriously 
jeopardize a client's right to counsel — a message not lost on a number of 
-prominent attorneys with a substantial federal practice who would like to 
testify on this matter. Since I do not regularly represent clients in the Utah 
Federal Court, nor will I likely do so in the near future in light of my upcoming 
year-long absence from the state, I am free from the risk of such tactics. I wish 
to make clear that, although I speak only for myself, my views represent the 
views of a substantial number of experienced attorneys who are appalled, 
•disgusted, and deeply disturbed at these efforts to politicize a Federal Court. 
They are not ex-insurance agents with no experience in the Federal Courts or 
members of the Bar with little respect from their peers or experience in trial 
■courts ; but leading members of the Bar with substantial experience in litigation 
in many courts as well as that of Judge Ritter. 

As a lawyer and a law professor, I have a deep and abiding interest in the 
integrity of the courts, the protection of the independence of the Judiciary, 
and the defense of the courts from imwarranted attacks or attempts to make 
political gain from unfounded attacks upon the Judiciary. Over the past few 
years I have found these commitments have involved me in speaking up against 
unfounded, political and patently false charges against the sitting Chief Judge 
of the United States District Court of Utah. I have done so not out of any 
expected benefit or even friendship for the Judge involved : but out of a deep 
conviction that the force of law in our society requires that the integrity of 



222 

courts be stoutly defended in order to maintain respect for the law as the 
primary device for settling disputes in society and helping us all to grope 
toward a better society and human condition. 

I do not object to legitimate and factually based criticism of the courts or 
of particular Judges since the fundamental function of the Judiciary is vital 
to the process of Justice and the rule of law that we are all subject to. However, 
there are boundaries to such criticism which, if exceeded, raise serious con- 
stitutional issues and questions of the legitimate boundaries of fair criticism. 
Those boundaries include the making of false and malicious charges, the attempt 
to exploit luipopular court decisions for political gain, the politicizing of courts 
to gain an advantage in the litigation process and attempts to coerce a sitting 
judge out of office by means other than those specified by law and the Con- 
stitution. When such criticisms are engaged in by attorneys or public office 
holders they also raise serious ethical issues and substantial questions about 
the integi-ity and motives of those who do so. Even the act of holding these 
Hearings poses significant constitutional issues and risks to the integrity of 
this Committee, since witnesses may exceed the boundaries of legitimate criti- 
cism and seek to use this forum for purposes beyond the narrow factual issues 
before the Committee. 

The only issue before this Committee is the factual question of whether Judge 
Hitter, the last sitting Chief Judge "grandfathered"' in under the Chief Judge 
Retirement Act, is performing the duties of Chief Judge — largely administrative 
duties in supervising the Court. In small districts, (Utah has only two sitting 
Federal Judges) the administrative duties of Chief Judge are relatively minimal. 
Case assignment is carried out by lot pursuant to rules established by the 
Circuit Court and the major responsibilities remaining consist of appointing 
court personnel and administrative duties of a ministerial character. I have not 
observed nor do I think anyone can legitimately claim that the United States 
District Court for Utah is or has been poorly administered. If anything, the 
Court personnel and the dispatch of its business are outstanding. 

The proposal for repealing the Grandfather Clause of the Chief Judge Retire- 
ment Act has always puzzled me since I have never heard facts advanced to 
support such an unusual step. Not understanding the thinking of such propo- 
nents nor their motives or particular charge!*, it is difficult to respond. Pi-opo- 
nents of the measure have continually advancetl ludicrous and assinine charges 
that have little or nothing to do with the functions of a Chief Judge. It is diffi- 
cult to determine whether such scattergun and irrelevant charges are the prod- 
uct of excessive partisan ideology, political expediency for political gain, just 
plain ignorance of the issues involved or a sincere but pathetic belief in a dis- 
torted view of the legal process and the functions of an individual judge within 
an independent judiciary. 

The major criticisms by some of Judge Ritter have not been with his perform- 
ance as Chief Judge; but with his performance as a Judge. Such matters are 
not only beyond the subject matter of these Hearings, but they are constitution- 
ally beyond the authority of the Senate. Should these Hearings stray beyond 
the narrow facts involved in whether the Grandfather Clause should l>e re- 
pealed into the fitness of a particular judge to hold the office of Judge, then it 
is patently clear that witnesses will be seeking to use this Committee for pur- 
poses beyond the power of the Committee. While that might not matter much 
to some advocates of this bill, I am confident that the members of this Committee 
do not subscribe to such a casual disregard for constitutional requirements nor 
will the Committee tolerate such an abuse of the Senate's appropriate role in 
our scheme of government. 

It is also apparent to me that the proponents of this legislation have little 
regard for the Bill of Attainder clause of the Constitution ; a practice so odious 
that it was the only civil liberty guarantee expressly inserted in the original 
Constitution. Critics of Judge Ritter seeking this legislation have made nu- 
merous public statements which strongly indicate that they seek this legislation 
in order to punish or discipline Judge Ritter for his iierformance on the bench — 
not for any failure to perform the Chief Judge function. In light of the policies 
enunciated in United States v. Brown. 381 U.S. 437 (196;")), a copy of which is 
attached, it appears clear to me that the proponents of this bill are seeking to 
use these Hearings and the passage of this bill to impose an unconstitutional 
Bill of Attainder by legislatively removing Judge Ritter through a legislative 
trial from the office of Chief Judge. If that proves to be their objective, it too 
will be beyond the scope of these Hearings and the power of the Committee ; as 
well as a commentary upon the integrity or intelligence of those who would even 



223 

attempt such a tactic. Ajrain, I trust the members of this Committee are above 
this sort of thing and will not allow the processes of the Senate to be abused for 
the political gain of some and the personal vendetta of others. To do so, not only 
infringes upon the policies of the Bill of Attainder Clause but it also destroys 
that fragile reed upon which courts and all of us must rely to protect the in- 
tegrity of their pi-ocesses and the force of law — a due respect for the function 
of an independent Judiciary. 

Thus it is that I question the objective and scope of these Hearings — since 
again I know of no factual basis upon which it can be shown that Judge Hitter 
is not carrying out his functions as a Chief Judge. On the one hand, if the Com- 
mittee permits an inquiry into Judge Ritter's performance as a Judge, it will 
be trespassing upon constitutional functions of the House of Representatives ; 
while on the other hand, if this Committee passes a bill to remove Judge Ritter 
from the office of Chief Judge without a factual basis for doing so it will be- 
recommending a law which clearly smacks of a Bill of Attainder. Were this not 
enough, the issues here extend beyond infringement upon the constitutional pre- 
rogatives of the House of Representatives and the Bill of Attainder limitations 
upon the Congress. The integrity of the Judiciary is involved, the separation of 
powers is involved, the integrity of the Senate is involved, the functioning of a 
particular judge is involved, and the risk of utilizing the Senate to politicize the 
courts is involved. 

I know not how to respond to these risks other than being present at the Hear- 
ing to listen to testimony, object to charges imrelated to the issues before this 
Committee and respond to the specifics of any in-elevant charges that may be 
made. In anticipation of these Hearings, I corresponded with the Committee 
several weeks ago requesting to be notified of the Hearings and that I be given 
an opportunity to testify. The only notice I have receive<i have been newspaper 
accounts of the Hearing obviously provided by press releases from the office of 
the "Junior" Senator from Utah. Having received no formal notice, invitation 
to appear, or any idea what testimony may be offered by the proponents of the 
bill, I can only offer the following observations in light of past comments made 
by some critics of Judge Ritter in anticipation that they will be renewed in 
these Hearings. 

One such critic, Mr. Robert Hanson, an announced candidate for State Attor- 
ney General, has waged a campaign of criticism of Judge Ritter. "While there 
may be reason to believe there is a connection between Mr. Hanson's candidacy 
for office and his campaign of criticism of Judge Ritter, I prefer to deal with 
his criticisms on the factual basis of those criticisms. Simply stated, I have 
heard all of Mr. Hanson's criticisms and have found no factual basis to support 
them. One such criticism is that Judge Ritter is "arbitrary." While such a criti- 
cism is irrelevant to the questions before this Committee, it has been my per- 
.sonal exi)erience that the Judge is not any more or less arbitrary than other 
strong minded Judges I have observed in other parts of the country. On occasion, 
I have personally witnessed an arbitrary attitude on the part of the Judge with 
certain classes of attorneys. Those classes of attorneys have generally consisted 
of attorneys who are unprepared, incompetent attorneys, attorneys utilizing 
delay by excessive motion practice, or attorneys making arguments or claims 
the Judge believed irrational. 

This last named class of attorneys is quite vocal and reflects an unusual state 
of affairs in Utah. There tends to be a deep ideological split in the state. I believe 
it is fair to categorize :\Ir. Robert Hanson and many others who are critical of 
Judge Ritter as extremely conservative, while Judge Ritter is liberal on such 
matters as civil liberties, labor legislation, minority rights and the Bill of 
Rights guarantees of the Federal Constitution. The depth of this ideological 
split and the problems it causes for a Federal Judge in Utah seeking to uphold 
federal constitutional guarantees and federal law is best demonstrated by the 
implications for federal court jurisdiction of rather bizarre actions by the con- 
servative Utah Supreme Court — actions defended by Mr. Hanson and his associ- 
ates in the office of the present Attorney General, Vernon Romney. For example, 
the Utah Supreme Court has refused to follow binding decisions by the United 
States Supreme Court interpreting the Fourth Amendment and vacating the 
death penalties of prisoners in Utah. Most recently, the Utah Supreme Court 
has held that the Bill of Rights of the Federal Constitution is inapplicable in 
Utah because the Court believes the Fourteenth Amendment was unconstitu- 
tionally adopted or does not incorporate the Bill of Rights in the Fourteenth 
Amendment limitations upon the activities of the state. {State v. Phillips, 540 



224 

^ 2d 936 (1975).) Such a startling holding (copy attached) based on reasoning 
ong since authoritatively rejected in every other court I know of, indicates the 
lepth of the ideological split in the state and the intellectual "quality" of the 
•onservative side of that split in the legal profession. 

Judge Ritter, as the representative of the Federal Judiciary in Utah, often 
Inds himself hearing cases one would not expect to observe being brought or 
lefended elsewhere in the country. Where the i^tate Supreme Court, however, 
efuses to give eiTect to federally guaranteed rights and remedies, the Federal 
L'ourt becomes the focal point of conti-oversy and ideological criticism. Over the 
^ears, I have become generally convinced that this ideological division is the 
•oot cause of much of the criticism of Judge Ritter principally by those of a con- 
servative political persuasion. They simply do not subscribe to his view of the 
aw; a view generally in accord with interpretations elsewhere in the country. 
[ leave to this Committee's judgment who is irrational, arbitrary, or wrong on 
he law because of this bizarre state of the law in the state courts. A subsidiary 
ibservation is the ))elief that this kind of criticism usually reaches its peak 
Tom such sources on or about the time of state and federal elections, since it 
ipparently makes for good copy in the local media. 

Other criticisms from the past I can only deal with summarily. They are all 
generally irrelevant to the issues before this Committee and the question of 
.vhether the Grandfather Clause should be repealed. One such criticism is that 
Judge Ritter has a high reversal rate. I know not how the reversal rates com- 
lares to the total number of cases handled by his Court and not appealed or how 
t compares to the reversal rate of other relatively activist judges. I have made 
I study of many of the cases reversed and the quality of the decision-making by 
Judge Ritter and the Tenth Circuit, since a high reversal rate can be a com- 
mentary on the quality of the Circuit or the District Court reversed or both. In 
iiany cases there was a division on the interpretation of the facts rather than 
he law; in others Judge Ritter anticipated constitutional developments (i.e. 
he right to counsel in parole revocation hearings) before the Circuit did so, 
ind in still others one or the other side interpreted the law differently. As a 
•student of Antitrust law, I can say with some degree of expertise that some of 
he Circuit decisions in the Antitrust area reversing Judge Ritter are clearly 
contrary to controlling precetlent and the weight of authority while the Ritter 
opinions generally are in accord with current legal developments. I have at- 
tached as an exhibit a recent antitrust case where the Tenth Circuit clearly 
refused to follow the Supreme Court's standards set down in United States v. 
Artiold Srhwinn for measuring the legality of vertical market restraints and the 
fveight of the authority in other Circuits in trademark tying cases. Aside from 
the .substantive issues in the case, a reading of the opinions and the reasoning 
process of both courts — whatever result one thinks appropriate — ^should indicate 
to any reasonable expert attorney in the field which Court one might criticize for 
a lack of judiciousness and expertise of its opinion. Mr. Hanson has tried to 
make much of reversal statistics without examining the relevance of his sta- 
tistics or the individual cases involved. "While I never saw much relevance in Mr. 
FTanson's statistics to begin vrith, I have been struck by the poor quality of the 
Pircuit Court's decisions after reading through Tenth Circuit opinions revers- 
ing Judge Ritter. Why this should be so might be a fruitful source of inquiry by 
this Committee. 

A further criticism of Judge Ritter, by some, is his recent dismissal of a fed- 
eral grand jury that had been sitting for several months investigating Antltru.st 
violations. This, too, raises an Interesting issue which I believe causes unjustified 
and unwarranted criticism of Judge Ritter. He adheres to the view that the 
right to indictment by a Grand Jury was in.serted in the Constitution to protect 
the innocent by acting as an independent check upon the discretion of the 
prosecutor. That is. of course, the clear constitutional function of Grand Juries. 
In recent years, however, Grand Juries and their investigatory powers have been 
converted to investigatory arms of the prosecutor's office— particularly where the 
jurors sit for long periods of time. That was obviously the case with the Grand 
Jury that was dismissed, since a member of that .Jury made several public 
statements to the effect that dismissal of the Jury frustrated "their investiga- 
tion." In part, this has happened because prosecutors lack other adequate In- 
vestigatory powers In criminal cases, particularly In the area of complex white 
collar crimes. Prosecutors thus use Grand Juries as investigative arms of the 
prosecutor. This is an area which Congress should investigate since the con- 
stitutional purpose of Grand Juries Is being violated to meet the modern de- 



225 

DLiands of law enforcement in complex and sophisticated white collar crimes. 
Judge Hitter's position in opposition to long sitting Grand .luries used as iu- 
Aestigative tools by prosecutors appears to me a defensible one; the prosecutor's 
problems where a Judge enforces this clear constitutional limitation on the 
function of Grand Juries is also an understandable one. 

Neither side should be crtieized for their position nor should the question 
become a political football which obscures the serioiis conllict between constitu- 
tional liberties on the one side and the pragmatic and real needs of a prosecutor 
on the other side. The remedy, of course, must come from Congress by reform- 
ing the present system for investigating and prosecuting complex crimes rather 
than penalizing a federal judge who is discharging his oath of office to uphold 
the Constitution of the United States. 'Without belaboring the point, I think we 
should retain the constitutional function of the Grand Jury as an independent 
buffer to review the discretion of prosecutors and either provide by law for 
investigatory grand juries to present proposed indictments to an independent 
constitutional grand jury or expand by law the criminal investigatory authority 
of prosecutors along the lines of the Civil Investigative Demand Authority of 
the Antitrust Division. Criticism of Judge Ritter for dismissing a Grand Jury 
which had become a tool of the prosecution is simple-minded and naive. It 
betrays an ignorance of the historical and constitutional function of Grand 
Juries. 

It would unduly prolong this statement to anticipate other and similar criti- 
cisms without factual foundation— criticisms I have heard made of Judge Ritter 
and other federal judges in recent years by many with little understanding of 
tlie functions of an independent judiciary. I must reiterate that I believe citi- 
zens should feel free to disagree with and criticize court decisions. Such criti- 
cism should be responsible, temperate and based on proven facts. 'When criticism 
takes place in forums such as this, however, is aimed at a particular judge, and 
becomes intemperate or without foundation in fact the issues involved become 
far more complex and serious. Repealer of a Grandfather Clause is a highly 
unusual step to be taken by Congress and should only be done on the basis 
of an civerwhelming factual record supporting the case. No such case has or 
could be made here. Repealer of a Grandfather Clause aimed at a single indi- 
vidual should require an even higher standard of proof, since it smacks of a 
Bill or Attainder, one of the most odious violations of civil liberties known to 
Anglo-American law. Senate Hearings on the details of a particular judge's 
performance in office also raise serious separation of powers issues and a 
significant question about the appropriate allocation of powers between the 
Senate and the House of Representatives. A further subtle reservation about 
this proposal, these Hearings and some of the criticism one might expect to hear 
presented is the substantial risk of politicizing the Judiciary and doing sub- 
stantial harm to the appropriate functioning of a particular court. Political 
expediency may justify some things ; but surely it does not justify the abuse 
of the courts to gain political advantage. 

Upon an appropriate and dispassionate weighing of all these factors, as well 
as the absence of a factual record to support any claim that the functions of 
Chief Judge are not being adequately carried out by the present Chief Judge 
of the Federal District Court of Utah, I cannot see any basis upon which this 
Committee can seriously consider, much less report, the proposal before this 
Committee. Quite frankly, I cannot even understand why a Hearing would 
be held at all. The integrity of the Senate, the function of an independent 
judiciary, respect for constitutionally based principles and fairness to a judge 
Avho has devoted twenty-five years to the federal judiciary and upholding the 
Constitution and laws of the United States require summary rejection of the 
proposal before this Committee. To do any less will only provide further 
encouragement to those who place little weight upon the value of an inde- 
pendent judiciary, appear to have little respect for fundamental values of the 
Constitution and seem to have no respect for the functions and integrity of the 
United States Senate. 

Senator Bukdick. No-w, the subcommittee will stand in recess at 
the 9mmd of the ^avel of the Chair. 

["Wliereiipon, at 2:15 p.m.. the subcommittee adjourned, to 
reconvene siibject to the call of the Chair.] 

Pursuant to permission £:iven by the subcommittee, the following 
additional statements were received for inclusion in the hearing- 



226 

record: from William J. Lockluirt, from Judge Willis W. Hitter, and 

from Eobert B. Hansen. 

Salt Lake City, Utah, 

Jutie 10, 1976. 
Re : Hearing on S. 1130 (by Senator Garn) held May 18, 1976. 

Hon. QUENTIN N. BURDICK, 

Chairman, Siihcommittee on Improvements in Judicial Machinery, Senate Com- 
mittee on the Judiciary, U.S. Senate, Senate Office Building, Washington, D.C. 

Dear Senator Burdick : This supplementary statement is submitted for the 
record to respond brietly to certain matters suggested by the proponents of S. 
1130 in their testimony before your Committee on May 18, 1976. 

I heartily endorse your careful introductory statement that this proposal 
presents only narrow issues — specifically, whether performance of the functions 
of Chief Judge in the District of Utah is demonstrated to be inadequate, requir- 
ing special Congressional intervention to repeal the Grandfather Clause which 
leaves those functions in the hands of Chief .Judge Willis W. Ritter. Despite that 
properly narrow and almost self-answering statement of the issue posed by S. 
1130. it is tempting to go beyond the issues to answer the overdrawn and under- 
supported statements of the two most heated proponents, Senator Garn and 
Robert Hanson. It could not have escaped your observation that their statements 
consisted of repeated assertions of ad hominem personal characterizations of 
Judge Ritter, without the slightest offering of credible supporting details — and 
with repeated similar performances before the TV cameras outside the hearing 
room to promote their real purpose. Particularly offensive was Senator Garn's 
suggestion that his imagined complaints against Judge Ritter were due to the 
Judge's "age and whiskey." 

One might almost be tempted to think that this effort to "try" Judge Ritter 
was a puckish attempt to lobby for the Judicial Tenure Act by dramatizing the 
abuses that can arise in the absence of confidential and procedurally fair pro- 
ceedings for testing complaints against federal judges. But these obvious plays 
to the hometown grandstand demonstrate their true political motivations. Al- 
though Robert Hanson's post-hearing statement complains that there is "no 
proof" of his political motivations, he utterly fails to refute my earlier observa- 
tion that he has repeatedly attempted to "try" his charges in public forums, 
first before the State Bar Association and now before this Committee, rather 
than attempting to seek amicable resolution through appropriate requests for in- 
quiry or assistance by appropriate officers of the Bar Association. With a double- 
speak that would fit well in 19S4, he suggests that prior notice of his grossly 
overdrawn resolutions seeking formal and public condemnation of Judge Ritter 
by the Bar Association, which were simultaneously released to the local media, 
constituted an effort at amicable settlement. 

On the merits, of course, the material offered in support by Mr. Hanson, and 
relied upon Senator Garn, tends mainly to illustrate Hanson's misapprehension 
of approiu-iate procedure or of the applicable standards for recusal of a judge, 
rather than any basis for sanctioning Judge Ritter. Thus, he suggests that the 
Judge should be censured for his declination to discuss in chambers the merits 
of Hanson's motions to recoup his failure to make service of process in his 
private litigation — matters that obviously should be heard in public proceedings 
on proper notice for hearing on rule day. 

Probably most characteristic of the obvious sketchiness and carelessness of 
Hanson's approach is his failure to recognize both the irrelevance and the in- 
•completeness of his representations concerning Jude Ritter's reversal record. 
Yet, in the absence of any showing of defiance of clear legal precedent, such an 
ai'gument is irrelevant on its face, for the essence of the Constitutional inde- 
pendence of federal judges is assurance of freedom for their substantive views — 
which may result in a high reversal rate for some judges who think independ- 
■ently. Hanson's complaints on this ground are akin to his equally-irrelevant 
complaints about the judges' constitutional rulings which resulted in orders for 
release of habeas corpus petitioners: his strong disagreement with the sub- 
stantive result in those cases is converted, in his mind, to judicial misbehavior. 
But most revealing of Hanson's careless approach and pei-sonal advocacy in this 
matter is the incompleteness of his piu'ported compilation of Judge Ritter's 
record. Although the compilation notes that it is limited to analysis of cases re- 
ported in the federal reporter system, the significance of that limitation is not 
acknowledged. He does not recognize that many routine cases are decided b.v 
the Circuit under its practice of designating decisions as not for publication ; 



227 

:iior does he consider the fact that the published opinions, therefore, are more 
likely to reflect strongly-held differences of substantive views. 

As your able Chief Counsel so pointedly emphasized at the hearing, virtually 
none of the ai-gunient offered by the current United States Attorney, Mr. Ramon 
Child, dealt with issues pecuhar to the functions of a Chief Judge. With the 
exception of his concerns about trial authority for a U.S. Magistrate, the matters 
of which he complained reflect the kinds of tensions between the prosecutive arm 
and the Courts that the judicial system provides ample opportunity to resolve. 
But at least until recently, there simply was little disposition on the part of the 
Justice Department to seek available remedies ; and if the issues were clearly 
•drawn with appropriate formal requests from the United States Attorney, there is 
little reason to suppose that they could not be resolved by negotiation or by ap- 
propriate requests for supervisory orders. 

At the same time, however, it is essential to recognize that many such matters — 
particularly the differences over utilization of grand juries — reflect legitimate 
and strongly-held differences of substantive viewpoint which are wholly inap- 
propriate as a basis for legislative sanctions. Judge Ritter is conscientiously 
concerned about the dangers that may arise from too close a relationship be- 
tween prosecutors and members of a grand jury, and the ease with which a 
prosecutor, with the aid of the investigative agents, can persuade a grand jury 
to return an indictment. While I have complete faith in the integrity and fair- 
ness of the Assistant United States Attorneys who handled grand jury matters 
•during my tenure as United States Attorney, a judge concerned about those very 
real dangers of the grand jury system may legitimately approach these matters 
with a much different i>erspective. That difference of conscientious viewpoint 
cannot justify imposition of a legislative sanction. Thus, with regard to the 
grand jury issue, it is appropriate to note that Judge Ritter is far from alone in 
his view of the need to take great care in averting the dangers of grand juries. 
Enclosed are two recent editorials from the Salt Lake Tribune endorsing and 
•elaborating Judge Ritter's concerns. 

Finally, on the basis of the information available to me, it seemed that Judge 
Lewis's comments about defiance of the 10th Circuit's orders were also over- 
drawn. My recollection of your hearing is that he implietl there had been fre- 
■(luent or general defiance of Circuit orders, but that he cited only one example; 
a dispute arising from reallocation of pending cases at the time the other judge 
on the Utah district bench resigned to accept senior judge status and was re- 
placed by Judge Anderson. Because I represented Judge Ritter in connection 
with mandamus proceedings before the 10th Circuit in tliat matter, and because 
I left him in the lurch by moving to Washington, D.C.. at a crucial stage of that 
proceeding, I feel a si>eclal obligation to clarify the record. Thus, the following 
description reflects my understanding of the circumstances drawn from my 
representation of the judge until I withdrew as counsel, and from my conversa- 
tions with Judge Ritter. 

Far from evincing an attitude of defiance or disregard of legal authority and 
principle, that problem was handled wholly as a dispute of legal principle. The 
difficulty arose because the Circuit rule for allocation of the ca.ses in the District 
of Utah simply had not provided for reallocation of cases uix)n the retirement 
of a sitting judge. It was our view, set forth in extensive and careful detail in 
two substantial memoranda in the mandamus proceedings before the 10th Cir- 
cuit, that the rule simply did not allocate those cases and that it was therefore 
neces.sary for Judge Ritter to exercise the residual i>owers of Chief Judge in 
that narrow situation to provide for proper assignment of those cases. It was 
made very clear to the Circuit that we regarded the issues presented as sub- 
stantive questions of importance to the role and function of the federal judiciary ; 
and indeed, it is still my belief that we advanced the more substantial side of 
the dispute. (Of course that is a difficult question to resolve because the Circuit's 
opinion did not explain the basis for its disposition of a number of the legal 
issues presented.) 

Throughout my development and presentation of the Judge's position, he made 
it very clear that it was his intention to seek a petition for writ of certiorari 
from the Supreme Court if our position was rejected by the Circuit. Pursuant 
to that pur))o.se, when the Circuit initially ordered the judge to relinquish the 
■single case whose assignment remained at issue, I prepared and filed, on his be- 
half, a motion for stay of execution of the mandate on that order "i>ending ap- 
plication to this Court [the Circuit] for rehearing and to the Supreme Court of 
the United States for a Writ of Certiorari to review the judgments of this 
Court." Following my submission of a Petition for Rehearing, a new order was 



228 

entered denying the request for rehearing, but failing to rule on the application 
for a stay pending application for certiorari. 

Thus, at the time the Circuit's order came down, the Judge had clearly indi- 
cated his intention to petition for Certiorari to review the decision and had re- 
ceived no response to his motion to stay the order. Subsequently, and pursuant 
1o his intent legally to contest the validity of the Circuit's order, he held a hear- 
ing and made certain rulings in the disputed case. But thereafter, on the very 
same day, he adopted an earlier telephone suggestion from Mr. Justice White 
(10th Circuit Justice) by reconsidering his rulings and agreeing with Judges 
Lewis and Anderson that the dispute should be settled by reassignment of the 
disputed case to a judge from another district — a resolution which he promptly 
implemented with orders first staying his rulings, and then rescinding them. Far 
from reflecting the hardened defiance suggested by Judge Lewis, then, .Tndsre 
Ritter's approach to this matter involved appropriate and substantial legal steps 
to contest the matters on the merits and complete disavowal of any action that 
could have been constriied as defiant. 

I will be happy to respond to any further inquiries you may have. 
Very truly yours, 

William J. Lockhart. 

Enclosures. 



United States Dtstrtct Cottrt. 

District of Utah, 
Salt Lake City, Utah, June 25, 1976. 

TfOn. Ql^XTIN N. BlTRDICK, 

Chairman, Suheommittee on Improvements in Judicial Maehitiery, Senate Com- 
mittee on the Judiciarp, U.S. Senate, Senate Offlee Bvilding, Washington, 
B.C. 

Pear Senator Bttrdick : Under separate cover, T have returned to you. as 
you requested, the report of the proceedings, the statements and the exhibits 
listed on the attached sheet. I wish to express to you my deep appreciation for 
your courtesy in sending these documents on to me. 

I also enclose two (2) copies of a letter dated .Tune lO. 1070 addressed to 
Honorable Ouentin N. Burdick from William .7. Ijockhart. !Mr. Lockhart was 
present at the hearings. He previously addressed to you the letter referred to 
in Paragraph 7 of the inventory enclosed. Mr. Lockhart responds to some of 
the charges leveled by Chief Judge Lewis of the Tenth Circuit. It is especially 
important that this be included. 

Tliirdly. T enclose two (2) copies of Statement for the Subcommittee on 
Judicial Administration. United States Senate Judiciary Committee — S 11. SO 
dated May 18. 1f)76. This statement was prepared by John J. Flynn. professor 
of law at the University of Utah Law School, a member of the Massachusetts^ 
and Utah Bars, who also served as Special Counsel to the Antitrust Subcom- 
mittee of the Senate Judiciary Committee from 1969-1970. 

I send on the copies of John Flynn's statement because it is not clear from 
the portions of the record that I have that his statement has heretofore been 
submitted to the committee. I am particularlv anxious that this be included. 

It was kind of you to extend to me thirty (30) days within which to make 
any response T wished. Because it would be further multiplication of the ir- 
relevant and immaterial, I have no further response. I am grateful for your 
consideration. 

Sincerely yours, 

Willis Bitter. 

Chief Judge. 

Enclosure. 

The Attorney General. 

State of Utah. 
Salt Lake City, Utah, May 21, 197<j.. 
Ee:S. 11R0. 

Hon. OiTENTiN N. Bttrdick, 

U.S. Senate. Committee on the Jndiriarjt. Suheommittee on rmproremmts m 

Jvdirial Machinery. Dirksen Senate Office Bvildinfj. Washington. B.C. 

Dear Senator Blt?dick : You will recall that after the hearing on Tuesday. 

l\Iav IS. 197(i. I ineuired concerninsr the apnropriatenoss of my respondin°r to 

certain remarks made by Mr. William J. Lockhart. You informed me that I 



229 

would be permitted to do so as long as the hearing record is open. This is my 
response. 

1. Prof. Lockhart charged that the subject bill is the result of a political 
effort on my part to gain publicity. Since Mr. Lockhart offered no proof or 
facts to support this charge, it is difficult to refute it other than to observe that 
I certainly have no political intluence with Governor Rampton, who is of the 
opposite political party, nor with the United States Judicial Conference, and 
both of those parties are on record as favoring this bill. Any matter that af- 
fects the public naturally receives attention. I can only assert, and do so 
sincerely, that I have said and done what I have in this matter because I be- 
lieve justice is too important to allow personal considerations such as Prof. 
Lockhart's charges stand in the way of what is right. 

2. Prof. Lockhart contended that there had been no efforts to resolve the 
problems involving Judge Ritter quietly. This is not true. Judge Lewis later de- 
tailed numerous such efforts he had made. I personally endeavored to talk 
privately with Judge Ritter about such problems before filing the special writ 
in case No. 73-167 (which was granted). Judge Ritter refused to even talk 
to me about it. See a copy of my affidavit attached dated April 12, 1973, and a 
copy of the affidavit of Elaine R. Larson, dated April 12, 1973. On December 30, 
1975, I served a copy of the foregoing affidavits on Judge Ritter and Professor 
Ijockhart in connection with proposed resolutions to be presented to the Utah 
State Bar. I endeavored twice again last year to talk to Judge Ritter privately. 
He refused. I would talk to him privately now if I could. 

3. Prof. Lockhart claimed that the charges I made against Judge Ritter had 
not been communicated to him so that he had a fair opportunity to resiwnd. That 
is not true. Enclosed please find my affidavit that I served a copy of my state- 
ment upon Judge Ritter prior to noon on Monday, May 17, 1976 (it had not 
been finished until after 5 :00 p.m. on Friday, May 14, 1976, so this was the 
earliest time it could be served when Judge Ritter was in his office). I enclose 
an affidavit of my secretary which verifies that my affidavit was prepared on 
May 17, 1976, and a copy sent to Judge Ritter that same date. 

It was my impression from the hearing that you and the committee's counsel 
viewed this bill as special legislation. I submit that it is the repeal of special 
legislation. 

Respectfully submitted, 

Robert B. Hansen, 
Deputy Attorney General. 
Enclosures. 

affidavit 
State of Utah, 
Cotinty of Salt Lake, ss : 

Robert B. Hansen, being first duly sworn upon his oath, deposes and says : 

1. He has been requested to appear as a witness before the United States 
Senate Committee on the Judiciary, Subcommittee on Improvements in Judicial 
Machinery, on May 18, 1976. 

2. At 11 :15 a.m. on this date I delivered a copy of said statement to "Vicky 
Jolley, secretary to Judge Ritter, and requested that she sign another copy of the 
same acknowledging receipt of the copy left for the Judge. 

3. The said Vicky Jolley read each page of the two copies and then refused to 
sign that she had received one of them. 

Dated this 17th day of May, 1976. 

Robert B. Hansen. 
Subscribed and sworn to before me this 17th day of May, 1976. 

Elaine R. Larson, 

Notary Publw. 
My commission expires August 17, 1977. 

I hereby certify that on the 17th day of May. 1976, a true and correct copy of 
the foregoing Affidavit was mailed to Judge Willis W. Ritter, Chief Judge U.S. 
District Court, 350 South State, Salt Lake City, Utah. 

Elaine R. Larson, 
affidavit 
State of Utah, 
County of Salt Lake, ss: 

Elaine R. Larson, being first duly sworn upon her oath, deposes and says : 

1. She is the personal secretary to Robert B. Hansen, Deputy Attorney General. 

2. That on the 17th day of May, 1976, she typed to a receipt of service on a copy 



230 

of the prepared statement of Robert B. Hansen to the Committee on the Judi- 
ciary, Subcommittee on Improvements in Judicial Machinery, as proof of service 
of the same upon Judge Willis AV. Ritter. 

3. Tliat after Judge Ritter's secretary refused to sign said receipt according ta 
Robert B. Hansen, she subsequently typed the Affidavit of Robert B. Hansen, 
dated May 17. 1976, the original of which is attached hereto. 

4. That on May 17, 1976, she mailed a copy of said Affidavit to Judge Willis W. 
Ritter. 

Dated this 21st day of May, 1976. 

Elaine R. Larson. 
Subscribed and sworn to before me this 21st day of May, 1976. 

Michael L. Cramer, 

Notary Public. 
My commission expires : August 18, 1979. 



In the United States District Court for the District of Utah 

affidavit 

(Civil No. C-62-73) 

James H. L. Lawler, plaintiff 

V. 

Ferron C. Losee, Andrew Barnum, George Rampton, Kenneth Huish, Rudy 
IVERSON, RuDGER C. Atkin, H. Berneijl Lewis, Neal Lundberg, a. W. 
McGregor, Wayne Whitehead, Monte Burton, Ruth Draper, James 
Kimball, Howard Blood, the Estate of J. Ray Mills, Deceased, and John 
Doe, Known Only by Actions and Not by Name, All Individually^ 



Defendants. 



V. 



State of Utah, Utah State Board of Higher Education, Peter W. Billings^ 

Chairman, Third Party Defendants. 
State of Utah. 
County of Salt Lake, ss: 

Robert B. Hansen, being first duly sworn, deposes and says : 

1. I am tlie attorney assigned by the Attorney General to repre.'^ent the 
defendants Ferron C. Losee, Andrew Barnum, George Rampton, Kenneth Huisli, 
and Rudv Iverson in the above entitled case. 

2. On March 13, 1973, I wrote a letter to Chief Judge Willis W, Ritter con- 
cerning this matter, a copy of which is attaclied as Exhibit "A". The letter re- 
ferred to tlierein is attaclied as Exhibit "B"'. It was sent a day prior to Exhibit 
"A" since I was then in St. George, Utah, consulting with my clients and taking 
depositions and I called the Attorney General's office in Salt Lake City to request 
Frank Nelson to order the transcript in question and dictated the letter to Judge 
Ritter, which was dated tliat day and mailed on my return the next day. 

3. I received no reply to my letter of March 13, 1973, referred to above, so I 
requested that my secretary. Elaine R. Larson, arrange an appointment for me,, 
tlirough the Judge's secretary, to meet with him and plaintiff's attorney, Jef- 
ferson E. LeCates. 

4. On March 26. 1973. I wrote Judge Ritter again since I had not received 
a reply to my letter of March 13, 1973, and my secretary had been unsuccessful 
in arranging an aiipointnient. A copy of that letter is attached as Exhibit "C". 

5. On March 27. 1973, I asked my secretary to call Judge Ritter's secretary a& 
frequently as it appeared in good taste to do so in order to arrange the requested 
appointment. 

6. On April 3. 1973, I received from plaintiff's counsel the Stipulation and 
Order referred to in my March 26, 1973, letter and directed my secretary to mail 
it to the Clerk of the Clerk. 

7. On April 9. 1973, I went to the clerk's office to see if the Stipulation and 
Order referred to above were signed and filed and I saw that said document liad 
been received on April 4, 1973, but it was not filed and had not been signed by 
Judge Ritter. 



■ i\^ uioriMn T 




3 9999 05994 985 7 



8. Immediately after learning the facts set form in rue last paragraph, I went 
to Judge Ritter's secretary's office and requested that I be given an apiwintment 
and explained that my concern was that Judge Ritter had not signed the order 
extending my client's time to plead. Judge Ritter was in at the time and his 
secretary went into his chambers to discuss my request and returned with the 
message tliat the Judge "would look at the file tomorrow." 

9. I aslied my secretary on April 11, 1973, to continue her efforts to obtain an 
appointment as I had heard nothing from the Judge nor his secretary since I 
had been to the latter's office on April 9th. 

10. On April 12, 1973, I went to the clerk's office to ascertain whether the order 
in question had been signed. It was not. The Judge was not in and neither was his 
secretary. I then requested of the Clerk of the Court a certified copy of the 
Stipulation and Order referred to above and was advised that no certified copy 
could be made of it. 

DATED this 12th day of April, 1973. 

Robert B. Hansen. 
Subscribed and sworn to before me this 12th day of April, 1973. 



Notary Public. 
Commission expires. 



Attorney General, 

State of Utah, 
Salt Lake City, Utah, March 13, 1973, 

Re : Melvin T. Smith v. Ferron C. Losee, et. al.. Civil No. C 283-69. 
Ms. Lucille IIallam, 
Certified Shorthand, Reporter, 
Post Office Building, 
Salt Lake City, Utah 

Dear Ms. Hallam : I am writing to you to request a transcript of the remarks 
of Judge Willis W. Ritter made at the conclusion of the above case which I 
understand was on the 9th day of September, 1970. 

Please send the statement for these services to me and I will see that it is 
promptly paid. 

Please acknowledge receipt of this request and advise as to the time you expect 
it will take to fill this order. 
Yours truly, 

Frank V. Nelson, 
Assistant Attorney General. 

March 13, 1973. 

Re: James H. L. Lawler v. Ferron C. Losee, Andrew H. Barnum, et. al. Civil 

No. C 62-73. 
Hon. Willis W. Ritter, 
Chief Judge, U.S. District Court, 
Salt Lake City, Utah 

Dear Judge Ritter : The defendants named above advise me that you made 
some comments at the conclusion of the case of Melvin T. Smith v. Ferron C. 
Losee, et. al., civil number C 283-69, on September 9, 1970. They have previously 
been unsuccessful in their efforts to obtain a transcript of these remarks and 
have requested our office to obtain that transcript. Accordingly, Mr. Frank V. 
Nelson has placed that order, a copy of which is enclosed. 

I am writing to you at this time to request that you authorize and direct your 
reporter to prepare this transcript so that this matter might be studied on their 
behalf. 

If you do not feel that it is proper for this transcript to be prepared and sup- 
plied to us on behalf of these defendants, I will appreciate your advising me as 
to when I might consult with you in the presence of plaintiff's attorney concern- 
ing this matter. 

Yours truly, 

Robert B. Hansen, 
Deputy Attorney General, 

Enclosure. 



232 

March 26, 1973. 
Re : Lawler vs. Losee, et al. 

Hon. Willis W. Ritteb, 
U.S. District Court, 
Salt Lake City, Utah 

Dear Judge Ritteb : Enclosed is a draft of a stipulation and proposed order 
which I believe is self-explanatory and which Mr. LeCates has indicated he will 
recommend to his client be signed but he feels he cannot sign it until he has 
express authority to do so. 

As Mrs. Jensen has no doubt told you, I have had my secretary contact her 
a number of times during the past week to make an appointment with you to 
discuss the subject matter of this stipulation. It would be very much appreciated 
if you would fix a time for myself and Mr. LeCates to meet with you on this 
matter. 

Very respectfully yours, 

Robert B. Hansen, 
Deputy Attorney General. 
Enclosure. 

In the United States District Court fob the District of Utah 

affidavit 

(Civil No. C-62-73) 

James H. L. Lawler, Plaintiff, vs. Ferron C. Losee, et al.. Defendants. 

EXHIBIT "D" 
State of Utah, 
County of Salt Lake, ss: 
Elaine R. Larson, being first duly sworn, deposes and says : 

1. I am the legal secretary for Robert B. Hansen, Deputy Attorney General, 
who has been assigned to represent the principal defendants in the case of 
.Tames H. L. Lawler v. Ferron C. Losee, et al.. United States District Court Case 
No. C-62-73. 

2. On March 21, 1973, the said Robert B. Hansen requested me to call Chief 
Judge "Willis W. Ritter's secretary, Mrs. Jensen, for the purpose of obtaining an 
appointment for Mr. Hansen and counsel for plaintiff to meet with Judge Ritter 
concerning the above case. I called Mrs. Jensen and asked her to check with 
the Judge about an appointment and call me back. 

3. Ou March 27, 1973, I again called and asked about an appointment. Mrs. 
Jensen said a letter from the Attorney General's oflSce came in the mail but the 
Judge had not opened it yet. He was on the bench and she would check with him 
about an appointment and call us. 

4. On March 28, 1973, I called Mrs. Jensen again. She informed me that the 
Judge had opened the letter. However, he did not say anything to Mrs. Jensen 
about an appointment. She said she would ask the Judge about an appointment 
when he gave the letter back to her. 

5. On April 2, 1973. I called again. She said the Judge had not said anything 
about an appointment and she could not check with him as he was on the bench. 

6. On April 11, 1973, I called Mrs. Jensen again. She mentioned that Mr. Han- 
sen was in yesterday and she got the file out. The Judge was not In. I asked her 
to call me if she was able to get an appointment date. 

7. At no time since my first call of March 21, 1973, has INIrs. Jensen called me 
concerning this matter. 

8. This is being typed by me after 5 :00 p.m. on April 12, 1973, and I have not 
received a call from Mrs. Jensen or anyone else concerning the requested 
appointment. 

Dated this 12th day of April, 1973. 

Elaine R. Larson.