199 F.2d 804:
United States ex
rel. Scott
v.
Babb, Sheriff
John D. Vosnos,
Chicago, Ill., for appellant.
James V. Cunningham, Asst.
State's Atty., Chicago, Ill., for appellee.
Before MAJOR, Chief Judge, and KERNER and
SWAIM, Circuit Judges.
KERNER, Circuit Judge.
1
Scott appeals from a judgment dismissing his petition for a
writ of habeas corpus. At the time the petition was filed, relator
was incarcerated in the county jail of Cook County, Illinois, awaiting
execution of a sentence of death imposed upon his conviction of murder on May
18, 1951. It appears that Scott had been indicted for the murder of William
Murphy, a police officer of the City of Chicago, and that he had been tried and
found guilty by a jury in the criminal court of Cook County, Illinois, before
the Honorable Thomas E. Kluczynski, a duly elected
and qualified judge of the circuit court of Cook County, Illinois.
2
Section 26 of Article VI of the Illinois Constitution,
S.H.A. establishes the criminal court of Cook County, and, among other
provisions, are the following: "The
terms of said criminal court of Cook county shall be held by one or more of the
judges of the circuit or superior court of Cook county, as nearly as may be in
alternation, as may be determined by said judges, or provided by law. Said
judges shall be ex officio judges of said court." And § 25 of Article V of
the Illinois Constitution provides: "All civil officers * * * shall,
before they enter on the duties of their respective offices, take and subscribe
the * * * oath or affirmation: `* * * I will support the constitution of the
United States, and the constitution of the State of Illinois, and * * * I will
faithfully discharge the duties of the office of ...... according to the best
of my ability.'"
3
The relevant facts in relator's
petition are that by virtue of these provisions no judge of the circuit or
superior court of Cook County is a judge of the criminal court of Cook County,
unless he has been assigned thereto by a joint order rendered by a majority of the
judges of the circuit and superior courts of Cook County, duly assembled
together as a public body at a meeting convened; that no order had ever been
rendered jointly by a majority of the judges of the circuit and superior courts
assigning Judge Kluczynski to the criminal court of
Cook County, for the performance of judicial duties, and that he never had
subscribed to an oath that he would faithfully discharge the duties of a judge
of the criminal court of Cook County, hence Judge Kluczynski
had not been constitutionally appointed or qualified to perform the judicial
functions of a judge of the criminal court of Cook County.
4
Relator's petition discloses that long prior to his trial in the
criminal court, the judges of the circuit and superior courts of Cook County
adopted a rule that the judges who are to sit in the criminal court shall be
designated from time to time by the executive committee of each court,
consisting of the chief justice and two representatives of the chancery and law
division, and that pursuant thereto, prior to relator's
trial, the executive committee of the circuit court entered an order, effective
February 5, 1951, and continuing to and until the further order of the
committee, assigning Judge Kluczynski to the criminal
court of Cook County.
5
It also appears that the Supreme Court of Illinois reviewed
the judgment of the criminal court. It was there contended that the judgment
was null and void on the ground that the judge who heard the case had never
been assigned to the criminal court by an order of the judges of the circuit
and superior courts of Cook County, jointly as a public body, and that the
presiding judge had not taken an oath of office as judge of the criminal court
of Cook County, as required by both the United States and Illinois
Constitutions. The Court affirmed the judgment, and held that a judge of the
circuit court of Cook County who had taken his oath of office as such, and had
been assigned by the executive committee of that court to preside as a judge of
the criminal court of Cook County, was qualified to act as a judge of the
criminal court without taking any other oath of office. People v. Lindsay, 412
Ill. 472, 107 N.E.2d 614. Relator
sought no certiorari from the United States Supreme Court. In the District
Court, the respondents, John E. Babb, sheriff of Cook County, and Phillip
Scanlon, warden of the county jail, moved to dismiss relator's
petition. The court, after due consideration, sustained the motion, and the
petition was dismissed.
6
We think the Supreme Court of Illinois correctly decided
that Judge Kluczynski was legally assigned by the
executive committee of the circuit court of Cook County to preside as a judge
of the criminal court and was qualified to act as a judge of that court.
Moreover, its decision on that question was a matter arising under the Illinois
Constitution, state statutes and rules of the state court, and is binding on
us. Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 509,
47 S. Ct. 179, 71 L.Ed. 372; Hartford Accident
Co. v. N. O. Nelson Mfg. Co., 291 U.S. 352, 358,
54 S.Ct. 392, 78 L.Ed. 840; International Union, etc. v. Wisconsin Employment Relations
Board, 336 U.S.
245, 251, 69 S.Ct. 516, 93 L.Ed.
651; and Akins v. Texas, 325
U.S. 398, see footnote at page 399, 65 S.Ct.
1276, 89 L.Ed. 1692.
7
The first question confronting us is whether relator's failure to seek a certiorari from the Supreme
Court of the United States deprived the District Court of jurisdiction to
consider his petition for a writ of habeas corpus. In Darr v. Burford, 339 U.S. 200, 217,
70 S.Ct. 587, 597, 94 L.Ed.
761, the Court said: "* * * orderly federal procedure under our dual
system of government demands that the state's highest courts should ordinarily
be subject to reversal only by this Court and that a state's system for the
administration of justice should be condemned as constitutionally inadequate
only by this Court." However, in Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647,
because there was grave doubt whether the state judgment constituted an
adjudication of a federal question, the District Court was allowed to hear
Wade's petition for habeas corpus even though he had not applied to the Supreme
Court for certiorari, and we were told that in such a situation, his failure to
secure certiorari should not prejudice his subsequent petition for habeas
corpus in the District Court, or as was said in Darr
v. Burford, 339 U.S. 200, 215,
70 S.Ct. 587, 596, 94 L.Ed.
761: "Even after this Court has declined to review a state judgment
denying relief, other federal courts have power to act on a new application by
the prisoner." Hence we think these cases are authority for us to consider
whether there is any merit to relator's claim of a
violation of the United States Constitution.
8
The federal question is whether the presiding judge, sitting
as a judge of the criminal court of Cook County, took an oath as required by
the federal Constitution. Article VI, clause 3, of the United States
Constitution requires that all legislative, executive, and judicial officers
both of the United States and of the several States "shall be bound by
Oath or Affirmation, to support this Constitution * * *." Judge Kluczynski took an oath to support the Constitution of the
United States and to faithfully discharge the duties of the office of judge of
the circuit court of Cook County, and as such judge he was, under the
provisions of the Illinois Constitution, by virtue of his office, a member of
the criminal court of Cook County, subject to specific assignment by the judges
of the circuit court to sit and preside in the criminal court, and to perform
the duties of his office. Thus, his duties as a judge of the criminal court
devolved upon him by virtue of his election and qualification as a judge of the
circuit court, to be performed only upon proper designation. He did not become
a new "judicial officer" upon such designation and therefore was not
required to take the oath anew.
9
In this connection we think it is significant that it has
long been the practice in the federal courts, pursuant to the Acts of Congress,
for United States judges to act, under proper designation, outside their own
circuits or districts. See 28 U.S.C.A. § 296. It has never been the practice
for judges thus designated to take a new oath. The original oath as a judicial
officer is sufficient to cover all acts which the judge may legally be assigned
to perform. So here, Judge Kluczynski's original oath
was sufficient to cover all acts performed in the execution of his duties as a
circuit judge, including his tour of duty in the criminal court. We conclude
that here there was no violation of the federal Constitution. It follows that
the judgment of the District Court must be affirmed. It is so ordered.