Case Files -- Fifth Circuit Court of Appeals En Banc Opinions, Court Term 1971-1972

File — Folder: 3

Identifier: Folder 3

Staff Only

Kinnear-Weed Corp. v. Humble Oil & Refining Co. No. 29,103; 441 F.2d 631, cert. den. 404 U.S. 941 reh. den. 404 U.S. 996 (1971) While this case was before the court en banc, counsel waived objections to the qualification of any judge to sit on the court for reasons of stock ownership. Subsequently, the appeal came before the panel of Judges Jones, Gewin and Clark. Judge Jones recused himself, and was replaced by Judge Dyer. At the suggestion of Judge Gewin, counsel was again informed as to relevant stock ownership by the Judges involved in the case, and was asked to register what objections there might be. No objection was made. Chief Judge Brown then decided that decisions as to disqualification would be made by the judges rather than by counsel, and that no judge holding stock in any corporation connected with the litigation would be eligible to serve on the panel. This required that a new panel be drawn. Judge Clark protested, and indicated that he would not be disqualified except by his own decision. He would be chosen, with Judges Thornberry and Morgan, to serve on the replacement panel. Chief Judge Brown proposed an order to explain the change of panel, but did not file it, in deference to the wishes to Judges Thornberry and Goldberg. Despite these precautions, on petition for writ of certiorari to the Supreme Court appellant sought a new trial on the basis of stock ownership of the judges in this and related proceedings. In response to the allegations contained in the petition for distribution among the justices, a statement was drafted under title of the Clerk, to be provided the Clerk of the Supreme Court. It was decided, however, that it not be sent. Rather, counsel for appellee requested, and was granted, access to court documents relating to disclosure and waiver, and contested on behalf of the court the charges of appellant on the basis of this documentation. Includes TLS of Chief Judge Brown on proceedings in this case, and on disclosure of stock ownership by judges in this case, and generally; and, TLS of Judge Clark on the position of the Chief Judge and the question of his own disqualification. Also includes proposed order of Chief Judge Brown to reassign the panel; and TLS of Chief Judge Brown, TLS of Judge Ingraham, TLS of Judge Thornberry, TLS of Judge Gewin and TLS of Judge Goldberg on the proposed order. And includes TLS (2) of Chief Judge Brown, TLS (2) of Judge Thornberry, and TLS of Judge Clark on the petition for certiorari of appellant and the possible response of the court. And includes proposed memorandum of Chief Judge Brown to the Supreme Court on the brief of appellant; and, TL of Chief Judge Brown on his proposed memorandum. And includes TLS of Judge Thornberry and TLS of Chief Judge Brown on the proposed Brown memorandum and on the panel order instead filed.