Brief for Amici Curiae NAACP Legal Defense and Educational Fund, Inc., Lawyers’ Committee for Civil Rights Under Law, American Civil Liberties Union, and Legal Aid Society of New York, in Support of Respondents

    In The

Supreme Court of the United States

OCTOBER TERM, 1958

n o . .3. 7. 2—

PAUL GINSBURG, P etitioner 
v.

HON. PH IL IP  L. SULLIVAN, Judge of the  U nited S tates 
D istric t Court fo r the  N orthern  D istric t of Illinois, 

E as te rn  Division, and HON. ROY H. JOHNSON, 
Clerk of the  U nited S tates D istric t Court 

fo r the  N orthern  D istric t of Illinois,
E aste rn  Division

PETITIO N  FO R W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF A PPEA LS FOR 

TH E SEVENTH CIRCUIT AND A PPEN D IX

Paul Ginsburg
Counsel fo r Petitioner

C arlton House 
550 G ran t S tree t 
P ittsb u rg h  19, Pa.

S M IT H  B R O S . C O . I N C . ,  L A W  P R I N T E R S ,  4 3 4 - 4 3 6  B L V D . O F  A L L I E S ,  P I T T S B U R G H  1 9 , P A .



INDEX TO PETITION
------------------------------------------ PAGE

Opinions B e lo w ........................................    1
Jurisd iction  .......................................................................  2
Questions P r e s e n te d .......................................................  2
S tatem ent ...........................................................................  3
Reasons fo r Allowance of the  W rit..............................  7
Conclusion ............................................................................ 12

INDEX TO APPEN D IX
Petition  fo r W rits of M andamus, No. 12363...............  1
O rder Denying Petition  ............................................... . 12
Petition  fo r W rits  of Mandamus, No. 12365................  13
O rder Denying P e t i t io n ...................................................  25
Clerk’s L e t t e r ....................................................................  25
T ranscrip t of D istric t Court P roceedings.................  27

TABLE OF AUTHORITIES 
Cases

Carroll v. Local No. 269 I.B.E.W., 31 A. 2d 223......... 8
Copeland v. General M otors Corp., 199 F. 2d 566___  10
D uPont v. U. S. Camo Corp. e t al„ 19 F. R. D. 495. . .  9
Foltz v. Moore-McCormack Lines, Inc., 19 F.R.D. 301 7
La Buy, U nited S tates D istric t Judge, v. Howes

L eather Co., Inc., e t al., 352 U. S. 249...................  11
Lasdon v. Hallihan, 36 N. E. 2d 227..............................  8
People v. Love, 298 111. 304, 131 N. E. 809...................  8
Saper v. Hague, 186 F. 2d 592......................................... 9
Sorenson v. Jacobson, 232 P. 2d 332.............................. 8
United S tates v. Shotwell M anufacturing Co., H arold

E. Sullivan, e t al., 355 U. S. 233............................10,12
Wilson, Inc. v. F. C. C., 170 F. 2d 793............................ 8

Federal Rules of Civil Procedure
Rule 15 (a ) ..............................................................  9
Rule 79 (a) ..............................................................  7



In The

Supreme Court of the United States
OCTOBER TERM, 1958

n o . .3.7 Z-

PAUL GINSBURG, P etitioner 
v.

HON. PH IL IP  L. SULLIVAN, Judge of the  U nited States 
D istric t Court fo r the  N orthern  D istric t of Illinois, 

E aste rn  Division, and HON. ROY H. JOHNSON, 
Clerk of the  U nited S tates D istric t Court 

fo r the  N orthern  D istric t of Illinois,
E as te rn  Division

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF A PPEA LS FOR 

THE SEVENTH CIRCUIT

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court o f 
the United States:
Paul Ginsburg, petitioner, respectfully prays th a t  a 

w rit of certio rari issue in the  above captioned case di­
rected to the  United S tates Court of Appeals fo r the  
Seventh C ircuit to  review its Orders dated and entered 
June 25, 1958 (App. 12, 25).

OPINIONS BELOW

There are  no opinions below. N either the United 
S tates D istric t Court fo r the  N orthern  D istric t of Illinois, 
E aste rn  Division, nor the  United S tates Court of Appeals 
fo r the  Seventh C ircuit delivered any opinions. P e ti­



tioner, however, calls th is  Honorable C ourt’s a tten tion  to 
his action against John D. Black, et al., out of which the 
in s tan t m a tte r has arisen, which was before th is Court 
on petition fo r w rit of certio rari a t  No. 788 October 
Term, 1956.

JURISDICTION

The unreported  orders of the court of appeals deny­
ing the  petitions for w rits  of m andam us (App. 12, 25) 
sought to be reviewed were dated and entered June 25, 
1958. Therefore, the expiration date for the filing of 
th is  petition  fo r w rit of certio rari is Septem ber 23, 1958.

The jurisdiction of th is  Honorable Court is invoked 
under 28 U.S.C. Section 1254 (1) ; and the  general super­
visory powers of th is  Court over lower Federal Courts.

QUESTIONS PRESEN TED

1. May a clerk of a D istric t Court w ithhold or ex­
clude from  the  Record in a civil action pleadings duly 
lodged by a litigan t therein  in violation of Rule 79(a) 
of the Federal Rules of Civil Procedure ? Affirmed.

2. W hen the  clerk of a D istric t Court w ithholds or 
excludes from  the Record in a civil action pleadings duly 
lodged by a litigan t therein, does th a t  not in terfere w ith 
said litig an t’s constitutional r ig h t to due process of law? 
Negatived.

3. May a D istric t Court Judge m ake off-the-record 
decisions, in effect foreclosing a litig an t’s rig h t to a rec­
ord decision on the  m erits of the pleadings presented to 
said Judge? Affirmed.

2
Petition for Writ of Certiorari.



4. W hen the  Court of Appeals refuses (a ) to order 
a D istric t Court clerk to  file and m ake appropriate  Docket 
E n tries  of pleadings duly lodged by a litigan t; and (b) 
to  order a D istric t Court Judge to m ake record decisions 
on the m erits of pleadings presented to him  pursuan t to 
the  Federal Rules of Civil Procedure and the  applicable 
law ; has it not so fa r  departed from  the accepted and 
usual course of judicial proceedings, or so fa r  sanctioned 
such a departu re  by the D istric t Court, as to call fo r an 
exercise of th is  C ourt’s power of supervision? Negatived.

STATEMENT

Petitioner, Paul Ginsburg, is a citizen and resident 
of P ittsburgh , Pennsylvania, and a member in good 
standing of the b ar of various Courts including th is  Hon­
orable Court (App. 1 ,1 3 ).

Respondent Hon. Philip L. Sullivan is a Judge of the 
U nited S tates D istric t Court for the N orthern  D istric t of 
Illinois, E aste rn  Division, and respondent Roy H. John­
son is the  Clerk of th a t  Court (App. 1 ,1 3 ).

In the said D istric t Court your petitioner is the  plain­
tiff in Civil Action No. 54C681, wherein John D. Black, 
e t al., are  the  defendants (App. 1-2,13-14). T hat action, 
w ith jurisdiction based upon diversity  of citizenship and 
a sum in excess of $500,000.00 exclusive of in te rest and 
costs, is a su it fo r damages fo r unlawful publications of 
adm ittedly untrue and unprovable m atters, libelous per 
se concerning petitioner, and intended to in jure him pro­
fessionally and personally. Respondent Judge Sullivan 
ordered sum m ary judgm ent for defendants therein  on the 
ground of absolute privilege, which was impossible

3
Petition for Writ of Certiorari.



4

legally because the  doctrine of absolute privilege can be 
applied only to m a tte r contained in court pleadings, 
w hereas the  publications complained of below were ad­
m ittedly  m ade in disciplinary proceedings in stitu ted  by 
petitioner against said  defendants below in the Am erican 
B ar Association (App. 4, 16). On appeal, the judgm ent 
was affirmed on a different ground, lack of publication. 
Therefore, the  court of appeals in effect overruled judg­
m ent on the  ground of absolute privilege and granted  
judgm ent on a ground not before it. Furtherm ore, the  
affirmance did violence to the record because the defend­
an ts below had adm itted publication. On certiorari, th is  
Court a t  No. 788 October Term, 1956, denied review to 
petitioner, which does not imply approval of the judg­
m ent sought to  be reviewed or of its  supporting opinion 
(App. 5, 17).

The la s t pleading filed in th is  Court a t No. 788 Octo­
ber Term, 1956, was petitioner’s Motion fo r Leave to File 
Supplemental Record and Second Petition  for R ehearing 
Out of Term Tim e; and, in the alternative, Motion to 
Remand, denied A pril 28, 1958 (App. 5, 17, 24). T hat 
pleading had appended to it in support thereof petition­
e r’s D istric t Court Motion to Vacate Sum m ary Judgm ent 
Order and to E n ter O rder of Disqualification, which 
Judge Sullivan failed to hear and which was denied by 
D istric t Judge Igoe who lacked jurisdiction; and peti­
tioner’s Petition  fo r W rit of M andamus to secure consid­
eration thereof on the m erits, which the court of appeals 
a t No. 12256 denied F eb ruary  18,1958. Appended hereto 
(App. 25-26) is the clerk’s le tte r enclosing certified copy 
thereof addressed to Mr. R obert Tieken, United S tates 
A ttorney, 450 U.S. Court House, Chicago 4, Illinois, in­

Petition for Writ of Certiorari.



dicating his connection therew ith  as alleged and his 
in te rest in the  outcome. A t the  tim e when Mr. Tieken 
became U nited S tates A ttorney, he was a  p a rtn e r of the  
defendants.

On May Ilf, 1958, petitioner lodged w ith respondent 
Roy H. Johnson, Clerk, fo r filing, his Motion fo r Leave 
to  Amend Complaint and the  annexed Amendm ent 
to  the  Complaint w ith notice of presentation  thereof 
to  respondent Judge Sullivan on June 13, 1958 (App. 5, 
10-11). On May 29 1958, petitioner lodged w ith respond­
ent Roy H. Johnson, Clerk, fo r filing, his Motion for 
Change of Venue w ith notice of presentation  thereof to 
respondent Judge Sullivan on June 12, 1958 (App. 18, 
23-24). Nevertheless, the  respondent Clerk failed and 
refused to file the said pleadings and m ake appropriate 
docket entries of them  (App. 5 ,1 8 ).

On June 12, 1958, petitioner-plaintiff and opposing 
counsel on notice appeared before respondent Judge Sul­
livan (App. 6, 18, 27), a t  which tim e the  said  motions 
were presented to Judge Sullivan, who refused to  con­
sider the  motions on the  m erits or even to en ter orders 
thereon. Instead, respondent Judge Sullivan sta ted  from  
the  bench th a t there  would be “no orders” on the motions 
(App. 6, 19, 29, 30), and called the  next case. Conse­
quently, there is no record in the District Court that the 
motions were filed, presented or passed upon, and no rec­
ord as a basis for appeal.

In  the  court of appeals, averring  th a t  your petitioner 
is w ithout o ther specific and adequate relief (App. 9), 
he lodged a Petition  fo r W rit of M andamus against the 
respondents herein a t No. 12363 (App. 1 ), to  secure the 
filing and docketing of said notice and m otion fo r leave

5
Petition for Writ of Certiorari.



6
Petition for Writ of Certiorari.

to  amend com plaint and the  annexed Amendment to  the 
Complaint, and an  O rder th a t  the  m otion be g ran ted  and 
the  Amendm ent to  the Complaint be filed w ith notice to 
defendants to  plead there to  w ith in  tw enty  days (App. 
9 ) ;  and, averring  th a t your petitioner is w ithout other 
specific and adequate rem edy a t  law (App. 21), he also 
lodged a Petition  fo r W rits of M andamus against these 
respondents a t No. 12365 (App. 13) to  secure the  filing 
and docketing of the Notice and Motion for Leave to 
Amend Complaint and the  annexed Amendm ent to  the 
Complaint, as well as the  N otice and Motion fo r Change 
of Venue, and an O rder th a t  a H earing be set on the Mo­
tion fo r Change of Venue (App. 21). On June 25, 1958, 
the  court of appeals entered O rders denying both peti­
tions w ithout the  issuance of a  rule (App. 12, 25), to 
review which Orders petitioner prays th a t th is  Court is­
sue a w rit of certiorari.



Reasons for Allowance of the Writ.
7

REASONS FOR ALLOWANCE OF THE WRIT

1. The Clerk of a  D istric t Court May N ot W ithhold 
or Exclude From  the  Record in a  Civil Action Pleadings 
Duly Lodged by a  L itigan t Therein.

The Clerk of a D istric t Court, like the Judges thereof, 
is bound by the  Federal Rules of Civil Procedure as by 
an A ct of Congress. See Foltz v. Moor e-McCormack 
Lines, Inc., 19 F.R.D. 301 (1956), wherein Judge Wein- 
feld of the  D istric t Court fo r the Southern D istric t of 
New Y ork held th a t  Congress gave the  Rules the  force 
and effect of a s ta tu te  (cf. 28 U.S.C., sec. 2072). W hen 
petitioner’s pleadings in the  d is tric t court were lodged 
w ith respondent Roy H. Johnson, Clerk, the pleadings 
should have been filed and docketed fo rthw ith  pursuan t 
to  Rule 79(a) which provides th a t he “shall” do so. By 
withholding and excluding pleadings from  the record, the 
Clerk could usurp  the function of the Court by determ in­
ing in advance of consideration by the  court th a t  the 
pleadings are not entitled to consideration and accord­
ingly they  are denied. Furtherm ore, as in the instan t 
case, such a  Clerk could deny a litigan t a record basis fo r 
appeal, and even the  rig h t to litigate. Petitioner respect­
fully subm its th a t  his rig h t to have his pleadings filed 
and docketed in a Court of record is elem entary.

2. When the Clerk of a District Court Withholds 
or Excludes From the Record Pleadings Duly Lodged by 
a Litigant, He Has Interfered With Said Litigant’s Con­
stitutional Right to Due Process of Law.

The record in the district court makes it plain that 
petitioner-plaintiff was litigating in respect to his pro­
fessional and personal standing and property. Peti­



tioner’s rig h ts  therein  are guaranteed by the Constitu­
tion and laws of the United S tates, including his rig h t 
to  litiga te  w ith due process of law to  p ro tect and enforce 
said righ ts. In  Carroll v. Local No. 269 I.B.E.W. (1943), 
31 A2d 223, the  Court sta ted  (pp. 224-5) : “I t  is not 
inappropriate, however, to rem ark th a t  the rig h t to earn 
a livelihood is a property  rig h t which is guaranteed in 
our country by the fifth and fourteen th  am endm ents of 
the  federal constitution . . In  Lasdon v. Hallihan, 
36 N.E. 2d 227 (1941), the Court s ta ted  (p. 231) : “The 
r ig h t to follow the professions is one of the  fundam ental 
rig h ts  of citizenship. A person’s business, profession or 
occupation is p roperty  w ithin the  m eaning of the con­
stitu tional provision as to  due process of law and is 
also included in the r ig h t to liberty  and the  pursu it of 
happiness”. In People v. Love, 298 111. 304,131 N. E. 809, 
the  court held th a t  “the rig h t to pursue a lawful calling, 
business or profession, cannot be a rb itra rily  taken 
aw ay . . .”. In  Wilson, Inc., v. F. C. C., 170 F2d 793 
(1948), the  Court s ta ted  (p. 798): “A broadcasting 
license is a  th ing  of value to the  person to whom it  is 
issued and a business conducted under it  m ay be the 
subject of injury. We se t fo rth  in the m argin quota­
tions from  decisions of the Supreme Court which sup­
po rt these s tatem ents . . .” . In Sorensen v. Jacobson, 
232 P2d 332 (1951), the Court sta ted  (p. 336) : “Under 
the  due process provision, no citizen shall a rb itra rily  
be deprived of his property. This the executive, legisla­
tive or the  courts cannot do or authorize to be done. 
Due process of law extends to  every case which m ay 
deprive a citizen of property. I t  requires an orderly pro­
ceeding adapted to the  natu re  of the case and in accord­
ance w ith law, in which the person has an opportunity

8
Reasons for Allowance of the Writ.



before the  tak ing  to be heard, and to defend, p ro tect 
and enforce his rights. Before the property  of a person 
can be taken by ano ther and converted to his own use, 
a  hearing  or opportunity  to be heard  is absolutely essen­
tial. We cannot conceive of due process of law w ithout 
th is ”. Therefore, the respondent C lerk’s actions were 
unlawful, and the court of appeals erroneously sanc­
tioned them.

3. Under the Federal Rules of Civil Procedure and 
the  Applicable Law a D istric t Court Judge Is Powerless 
to  Make Off-The-Record Decisions, in Effect Foreclosing 
a  L itig an t’s R ight to a  Record Decision on the  M erits of 
the  Pleadings Presented to Said Judge.

There was nothing unusual or unprecedented about 
the  motions your petitioner presented to respondent 
Judge Sullivan. They were norm al pleadings properly 
presented in the o rd inary  course of judicial proceedings, 
p u rsuan t to the Federal Rules of Civil Procedure and the 
applicable law. P laintiff-petitioner’s r ig h t to amend the 
com plaint below was absolute under Rule 15 (a) and 
the  consent of defendants and leave of court were not 
even required. The said Amendm ent to the Complaint 
conformed to the  Opinion of the  court of appeals and 
petitioner was entitled thereto  even a fte r judgm ent. In  
Super v. Hague, 186 F2d 592 (1951) 2 CCA, the Court 
held th a t  even a m otion to conform a pleading to proof 
m ay be m ade a t  any time, even a fte r judgm ent. In 
DuPont v. U. S. Camo Corp., et al., 19 F. R. D. 495 (1956), 
W. D. Mo., the  Court held th a t  there  is no lim itation on 
tim e to amend, only due diligence being required; and 
generally leave is g ranted  freely where justice requires 
and particu larly  when the am endm ent is directed to

9
Reasons for Allowance of the Writ.



clarification of the issues. In  Copeland v. General Motors 
Corp., 199 F2d 566 (1952) 5 CCA, the  Court held th a t 
a p a rty  m ay amend freely  to secure a determ ination on 
m erits ra th e r than  on technicalities; and there  is no 
laches w here am endm ent is tendered shortly  a fte r 
aw aited decision of issues by the  Supreme Court. In 
view of the foregoing and the record below, respondent 
Judge Sullivan had no alternative bu t to g ran t petition­
e r’s Motion to Amend Complaint and to require the de­
fendants below to plead to  the  Amendment to the Com­
plain t w ithin tw enty  days. Judge Sullivan’s refusal even 
to  en ter an O rder thereon supports pe titioner’s prio r 
m otion th a t Judge Sullivan en ter an O rder of his dis­
qualification because of the failure of Judge Sullivan 
and the defendants below to  disclose to plaintiff- 
petitioner th e ir relationship arising  out of the  defend­
a n ts ’ representation of the in terests  of Judge Sullivan’s 
brother, H arold E. Sullivan, Esquire, in connection w ith  
his crim inal convictions in the  concurrent course of the 
case of United States v. Shotwell Manufacturing Co., 
Harold E. Sullivan, et ad., 355 U. S. 233 (1957), and up 
to the present tim e in th a t case and as a defendant in 
o ther crim inal cases.

The subject of respondent Judge Sullivan’s disquali­
fication as aforesaid was the p rim ary  reason in support 
of petitioner’s Motion fo r Change of Venue, on which 
Judge Sullivan refused to en ter an Order. Judge Sulli­
van’s off-the-record decisions below which in effect fore­
close your petitioner’s r ig h t to  record decisions on the  
m erits as well as pe titioner’s r ig h t to litiga te  against 
the  a ttorneys for the Judge’s brother, speak fo r them ­
selves. Furtherm ore, the  record leaves no doubt th a t  
the  court of appeals knew exactly w hat i t  was sanction­

10
Reasons for Allowance of the Writ.



ing. Can any reasonable m an criticize your petitioner’s 
m otion to get his case out of such a D istric t and C ircuit ? 
Could any Judge who acknowledges th a t he is bound 
by the  Federal Rules of Civil Procedure and the appli­
cable law deny petitioner a H earing on such a m otion?

4. The Court of Appeals H as So F a r Departed From  
the  Accepted and Usual Course of Judicial Proceedings, 
and So F a r  Sanctioned Such a D eparture by the  D istric t 
Court, as to  Call fo r an Exercise of This Court’s Power 
of Supervision.

This consideration governing review on certio rari 
is plainly set fo rth  in parag raph  1 (b) of Rule 19 of th is  
C ourt’s Rules. Furtherm ore, petitioner cited to the 
court of appeals (App. 8, 20) th is  Honorable C ourt’s 
decision in the case from  its own court and the same 
D istrict, in La Buy, United States District Judge, v. 
Howes Leather Co., Inc., et al., 352 U, S. 249 (1957), 
affirming 226 F2d 703 (7 CCA), wherein Mr. Justice 
Clark in the m ajo rity  opinion (pp. 259-260) s ta ted : 
“Supervisory control of the D istric t Courts by the 
Courts of Appeals is necessary to proper judicial ad­
m in istration  in the Federal System ; and the All W rits 
Act, 28 U. S. C. sec. 1651 (a) ,  confers on the  Courts of 
Appeals the d iscretionary  power to issue ex trao rd inary  
w rits  in exceptional circum stances such as exist herein”. 
W hat circum stances could be more exceptional than  
the ones th a t  ex ist herein where a  Clerk withholds and 
excludes from  the record pleadings duly lodged for filing, 
denying the  p a rty  his constitutional rig h t to due process 
of law, and a Judge m akes off-the-record decisions in 
effect foreclosing a litig an t’s rig h t to litiga te  under the 
Federal Rules of Civil Procedure and the applicable law?

11
Reasons for Allowance of the Writ.



The court of appeals w ithout justification erred  in 
refusing to order the  respondent Clerk to file and m ake 
appropriate  Docket E n tries of the pleadings petitioner 
lodged w ith  him  fo r filing; and in refusing to  order 
respondent Judge Sullivan to m ake record decisions on 
the m erits of petitioner’s motions, compelling him  to 
g ra n t the m otion to amend and require defendants below 
to  plead to the Amendm ent to  the  Complaint w ithin 
tw enty  days, and to set a H earing on the  Motion for 
Change of Venue. I t  is respectfully  subm itted th a t th is  
Court should do so.

12
Reasons for Allowance of the Writ.

Conclusion
W hat has happened in the  in s tan t case in the Sev­

enth C ircuit a t  Chicago, and to a lesser degree in U.S. v. 
Shotwell-Sullivan, supra, and in o ther cases too num er­
ous to mention, is frowned upon by m any learned in the 
law as business as usual. I t  would not occur to  those 
who are not learned in the law th a t  w hat has happened 
to  petitioner in Chicago has deprived him  of federal con­
stitu tional and civil righ ts, including loss of profits of 
millions of dollars. The public as well as officialdom has 
been conditioned to harbor the false notion th a t the  only 
deprivations of civil rig h ts  occur in the South and solely 
in connection w ith the r ig h t to vote and the  rig h t to 
a ttend  an in tegrated  school. As a m atte r of fact, there  
are daily deprivations of civil righ ts  in the N orth, of a 
different type bu t nonetheless civil righ ts  th a t  are 
“guaran teed” as in the in s tan t case. There simply is not 
any organization to p ro tect and enforce such rights, be­
cause they  are unpopular politically.

The in s tan t petition, like any other, could be flatly 
denied on technical considerations and fail to  receive



consideration in the in te rest of justice. However, the 
resu lt could be an in terp re ta tion  th a t  the  approval of the 
actions below is not local to Chicago, bu t national. This 
could backfire on the Federal Governm ent of the  N orth  
th a t  has recently been critical of some S ta te  Govern­
m ents of the South, and cause a legal obstruction of 
Justice. Our Federal Government was instrum ental in 
persuading th is  Honorable Court la s t week to order im­
m ediate in tegration  of public schools in A rkansas, in 
opposition to  which th a t  S ta te  is asserting  its rights. 
Thus fa r  our Federal Government anticipates litigious 
problems in the S tate  Courts only. But, the denial of 
certio rari herein could cause more serious problems in 
Federal Court, wherein the Clerk could justifiably decide 
not to  file and docket the Federal Governm ent’s pleadings 
and the  Judge could justifiably m ake off-the-record deci­
sions, all denying due process of law, the r ig h t to appeal 
and even the  r ig h t to litigate. The fan tastic  bu t foresee­
able resu lt could effectuate a reversal of th is  Honorable 
C ourt’s m andate by a D istric t Court in A rkansas.

The D istric t Court has not justified its existence. 
The Court of Appeals has not served its  purpose. Will 
not th is  Honorable Court ju s tify  the  existence of the 
D istric t Court and compel the Court of Appeals to serve 
its  purpose?

Respectfully subm itted,

Paul Ginsburg
Counsel fo r Petitioner

13
Reasons for Allowance of the Writ.



Paul Ginsburg 
Attorney-at-Law 
Carlton House 

Pittsburgh 19, Pa,

His Excellency, Dwight David Eisenhower,
The President of the United States of America 
The White House
Washington, District of Columbia

Hon, William P. Rogers
Attorney General of the United States
Department of Justice, Washington, D. C.

Hon, D. Malcolm Anderson
Criminal Division, Department of Justice
Washington, D, C.

Hon. John E , Miller
United States District Court
U, S, Court House, Fort Smith, Arkansas

Hon. Orval E. Faubus 
Governor of'Arkansas 
Little Rock, Arkansas

Senator John L» McClellan
Senate Judiciary Committee
Senate Office Building, Washington, D. C,

Thurgood Marshall, Esquire
10 Columbus Circle, New York 19, New York

Wiley A, Branton, Esquire
J!9 £. Barrague Street, Pine Bluff, Arkansas

Hon, Thomas D. McBride 
Attorney General of Pennsylvania 
.Main Capitol Building, Harrisburg, Pa,

Honorable Sirs:

The enclosed petition in my action against Hon, Philip L. Sullivan 
and Hon. Roy H. Johnson in the Supreme Court at No, 372 October 
Term 1958, discloses high federal authority for the right of a court 
clerk to decide to keep off the record, pleadings which are lodged 
with him for filing, as well as the right of a judge to refuse to 
render decisions thereon. The conclusion (pp. 12-13) shows how the 
denial of my petition could backfire upon the federal government in 
its controversy with the State of Arkansas, because the Clerks of 
State and Federal Courts in Arkansas, if so inclined, would then be 
justified in deciding not to fi le the government's pleadings to ef­
fectuate integration, and if judges condescended to allow a pre­
sentation, they could then decide not to render decisions thereon; 
ail denying due process of law, the right of appeal and even the 
r i ght to 1i t igate,

The denial of my petition against Horace Stern, et a I,, at No. 834 
October Term 1957 by the Supreme Court could be used as authority 
for the point that members of the judiciary are not liable in suits 
under the Civil Rights Acts, thus permitting State Judges of Ark­
ansas, so inclined, to deprive residents of that State of their 
civil rights without any fear whatever of being brought to justice.
My prior suit against Horace Stern, et al., recently reopened in 
the District Court for the Western District of Pennsylvania at Civil 
Action No. 12643 is also authority for that point in spite of the 
opinion of Chief Judge Wallace S. Gouriey expressed therein that the 
actions of the defendants were "violative of basic concepts of 
j ust i ce".

The foregoing samples of repeated deprivations of civil rights in the 
North as well as the right to litigate to secure the protection and 
enforcement thereof, reflect the Government's discriminatory, er­
roneous, political policy of protecting and enforcing only the right 
to vote and the right to attend an integrated school. The Govern­



ment overlooks, ignores and even considers business as usual, daily 
deprivations of the right to work and earn a living in one's chosen 
occupation or profession, the right to compensation for work done 
or services rendered therein, and upon deprivation of those rights, 
the right to litigate with due process of law to protect and en­
force those rights. That is why I testified before the Senate Com­
mittee on the Judiciary against confirmation of Hon. W. Wilson White 
to head the Civil Rights Division of the Department of Justice. Al­
though the Department Order of December 9, 1957, creating the Divi­
sion, expressed the purpose of enforcing all federal civil rights 
statutes, Mr, White would not even investigate any violations except 
those peculiar to Negroes of the South. It was my position then 
that if Mr. White were correct about his duties, the Civil Rights 
Division should be abolished for being based upon special legisla­
tion which is unconstitutional. It is my legal opinion and I ad­
vocate that the federal Civil Rights Acts were enacted for ali of 
us in the United States regardless of race, color or creed. The 
contrary opinion of the Attorney General of the United States would 
render them special legislation for the benefit of Negroes in the 
South only and hence unconstitutional. It necessarily follows that 
if said Civil Rights Division is not abolished, its name should be 
corrected to Political Action Division.

The fact that Mr. White advised the President to send troops into 
Arkansas at an estimated cost of $5,000,000,00 to protect the civil 
rights of nine children, and would not even investigate the depriva­
tions of my rights at no cost, was most distressing. To show the 
insincerity of political advocates of civil rights on a discrimin­
atory basis, I explained that the Judges in the North who deprived 
me of my civil rights were not all white. Two Negro jurists, who 
were entrusted with the protection and enforcement of my civil rights 
and deprived me thereof, are Circuit Judge William H. Hastie of the 
United States Court of Appeals for the Third Circuit sitting at 
Philadelphia and Justice Harold A. Stevens of the Supreme Court of 
the State of New York sitting at New York City.

Because I am white and anti-Communist, and hence do not qualify for 
the powerful support of the National Association for the Advancement 
of Colored People and the American Civi! Liberties Union, must I re­
main the Forgotten Northerner of the Unconstitutional Fifties?

Having already suffered illegal deprivations of my good name, fame, 
reputation and millions of dollars, must that be followed ad in­
finitum by contemptible ridicule of my courageous attempts to liti­
gate alone with due process of law under the Constitution, the pro­
cedural rules and the !aw of the land? Did the inflationary spiral 
in our economy have to be accompanied by the deflationary one in 
our administration of justice?

I have endeavored to take no sides in the political issues involved, 
but to express to both sides the facts which I know, as an independ­
ent American who believes that the issue of civil rights should not 
be one for the North against the South or the Republicans against 
the Democrats, but one which should be considered indivisibly by 
all of us as a national problem to the end that we shall be able 
to command the respect of foreign nations as well as of ourselves.

Respectfully submitted

Pittsburgh 19, Pa,

27 September 1958

2



APPEN D IX

UNITED STATES COURT OE1 A PPEA LS
For the Seventh Circuit

Paul Ginsburg, Petitioner, 
v.

Hon. Philip L. Sullivan, Judge of the 
United S tates D istric t Court for the 
N orthern  D istric t of Illinois, E astern  
Division, and Roy H. J ohnson, Clerk 
of the United S tates D istric t Court for 
the N orthern  D istric t of Illinois, E a s t­
ern Division.

Y No. 12363

P etition  fo r W rits  of M andamus
To the Honorable, the Chief Judge and the 

Judges of said Court:
The petition of Paul Ginsburg respectfully represen ts:

1. Petitioner, Paul Ginsburg, is a  citizen and resi­
dent of the C ity of P ittsburgh , County of Allegheny, 
Commonwealth of Pennsylvania; and is a  member in 
good standing  of the b a r of the Supreme Court of the 
U nited States.

2. Respondent, Hon. Phillip L. Sullivan, is a Judge 
of the United S tates D istric t Court for the  N orthern  
D istric t of Illinois, E astern  Division, and Respondent 
Hon. Roy H. Johnson is the Clerk of the United S tates 
D istric t Court fo r the N orthern  D istric t of Illinois, E a s t­
ern Division, both w ithin the  jurisdiction of th is Honor­
able Court.

3. In  the  said D istric t Court a t No. 54 C681 peti­
tioner, as plaintiff, filed a  civil action against John D.



2
Petition for Writs of Mandamus.

Black, John C. Slade, Guy Allen Gladson, Edw ard G. 
Ince, Bryce L. Hamilton, Reuben A. Borsch, Douglas C. 
Moir, Jam es D. Head, G erard E. Greshorn, George W. 
O tt, G rier D. P atterson , W alter A. Wade, Thomas I. 
Underwood, Thom as A. Reynolds, F rank  B, Gilmer, 
R obert McDougal, Jr., A lbert W. P o tts  and William C. 
Mulligan, as defendants.

4. The said action below is a su it for damages 
b rought by Paul Ginsburg, a law yer of P ittsburgh , Penn­
sylvania, against the  defendants, who are Chicago law­
yers, fo r th e ir unlawful publication of adm ittedly untrue 
and unprovable m atters, libelous per se concerning 
plaintiff-petitioner, and intended to in jure him  profes­
sionally and personally. I t  appears th a t  the  said de­
fendants were m otivated to libel your petitioner on 
account of his exposing th e ir fraud  and imposition upon 
the  S tate  Court in Kentucky in the m atte r of the sale 
of 85% of the shares of stock of Am erican Creosoting 
Company and subsidiaries by the  E sta te  of Sallie A. 
H ert, Deceased.

5. Through th e ir imposition and fraud  upon the 
Court as aforesaid, the  said defendants were enabled to 
obtain the  shares of stock for th e ir  client, A lfred L. 
Kuehn, a co-trustee of the E sta te , (through a corpora­
tion, as purchaser, which had been form ed by Mr. Kuehn 
and his sons) a t  a price which was several millions of 
dollars below the real value. As a result, not only was 
the  T ru st E s ta te  cheated out of millions of dollars, bu t 
also your petitioner and his client were w rongfully de­
prived of th e ir  opportunity  to  secure several millions 
of dollars in profits th rough purchase of the shares of 
stock.



6. The libelous m atte rs  complained of were pub­
lished in the course of disciplinary proceedings before 
the Am erican B ar Association b rought by your peti­
tioner against said defendants. Upon the filing of the 
complaint, the case was assigned to  respondent Judge 
Philip L. Sullivan whose brother, and others, had been 
convicted in the same Court a t No. 52 CR 143 on October 
16,1953, on charges of income tax  evasion and sentenced 
to  im prisonm ent and to pay fines. Notices of Appeal to 
th is  Honorable Court were filed on behalf of H arold E. 
Sullivan (Judge Sullivan’s bro ther) and his co-defend­
an ts a t  Nos. 11108, 11109, 11110 and 11111.

7. Respondent, Hon. Philip L. Sullivan, se t the p re­
tr ia l conference in your petitioner’s case fo r December 
22, 1954, one week prior to  which tim e the said defend­
an ts doing business as W inston, Straw n, Black & Towner 
appeared in th is  Honorable Court and filed a brief in 
the appeals in which Judge Sullivan’s b ro ther was in­
volved which brief was fo r the benefit of all those 
defendants; made the principal argum ent fo r all said 
defendants in th is Honorable Court; made the only 
argum ent on the ir behalf a t No. 1 October Term, 1957, 
in the Supreme Court of the U nited S ta tes; and to th is 
date are still representing th e ir in terests.

8. A t no tim e in the course of your petitioner’s 
case against the  defendants doing business as W inston, 
Straw n, Black & Towner, did Judge Sullivan or the de­
fendants disclose to petitioner the ir said relationship, 
which disclosure would have placed petitioner in position 
to  seek respondent Judge Sullivan’s removal fo r self- 
in terest. On Ju ly  1,1955, Judge Sullivan entered a Sum, 
m ary  O rder therein  against your petitioner and in favor

3Petition for Writs of Mandamus.



4
Petition for Writs of Mandamus.

of the defendants by applying the doctrine of absolute 
privilege. I t  is elem entary th a t  the doctrine of absolute 
privilege can never be applied legally to libelous m atte rs  
unless they  are published in court pleadings, and then 
the  application is restric ted . Therefore, Judge Sullivan’s 
pa ten tly  illegal application of the doctrine therein  sup­
ports pe titioner’s charge of the Judge’s self-interest, 
because the publications complained of were adm ittedly 
made in the  course of proceedings before the  American 
B ar Association, a voluntary  association.

9. On your petitioner’s appeal to th is  Honorable 
Court a t  No. 11595, th is  Court would no t affirm on the 
ground of absolute privilege bu t did so on a different 
ground—lack of publication. (273 F.2d 790). In  effect 
th is Court reversed the  application of the doctrine of 
absolute privilege, and then affirmed on a ground for 
which there  was no record support, because not only 
had the defendants below adm itted publication bu t there  
had never been a  hearing  below on th a t  issue. The only 
forum  wherein to establish a  record on which to  base 
the said issue is the  D istric t Court. Appellate Courts are 
w ithout facilities and jurisdiction to  m ake a  record on 
issues. See United S tates of Am erica v. Shotwell Manu­
fac tu ring  Company, H arold E. Sullivan, e t al., 355 U.S. 
233 (December 16, 1957), where in the Supreme Court 
of the United S tates decided th a t the D istric t Court is 
the only forum  wherein to  establish the record on issues, 
and in the absence of such record in the D istric t Court, 
th a t  particu lar issue cannot be the subject of an appeal 
in the Court of Appeals or of review in the  Supreme 
Court. Furtherm ore, in support of the point th a t  the 
jurisdiction of the Court of Appeals is exclusively appel­
la te  and th a t  i t  is not the  function of the Court of



Appeals to assume the powers of the D istric t Court, See 
R alston P urina  Co. v. Novak, 111 F.2d, 631, Stephenson 
v. Equitable Life Assur. Soc. of U.S., 98 F. 2d 406, and 
Publicity  Building R ealty  Corp., et al., v. Hannegan, et 
al., 139 F. 2d 583. Furtherm ore, the  denial of certio rari 
by the Supreme Court a t  No. 788 October Term, 1956 
(353 U.S. 911). “Does no t imply approval of the  de­
cision fo r which review is sought or of its  supporting 
opinion”. See Elgin, Jo liet & E astern  Rwy. Co. v. 
Gibson, 7 CCA 355 U.S. 897 (1957), citing Brown v. 
Allen, 344 U.S. 443. Your petitioner’s la s t pleading filed 
in the Supreme Court in said m a tte r was denied on 
A pril 28, 1958.

10. P rom ptly a fte r the Supreme C ourt’s denial of 
relief to petitioner, he served Notice upon defendants in 
the said action below before Respondent Judge Sullivan 
th a t  he would present his Motion fo r Leave to  Amend 
Complaint on June 13, 1958. The Notice of Motion, the 
Motion fo r Leave to Amend Complaint and the Amend­
m ent to the Complaint were lodged w ith Respondent 
Roy H. Johnson, Clerk, for filing on May 14, 1958 and 
are a ttached  hereto, m ade p a rt hereof and m arked E x­
hib it A. Nevertheless, the  respondent clerk did not m ark 
them  filed and did not make docket entries of them, but 
sim ply forw arded them  to Respondent Judge Sullivan 
for disposition.

The Amendm ent was filed in s tr ic t compliance w ith 
the applicable law and Rule 15(a) ,  which provides for 
the allowance of course of one am endm ent prior to trial, 
as a m atte r of righ t. I t  is evident herein th a t there  has 
been no tria l nor has there been a hearing  on any issue 
except absolute privilege. Furtherm ore, the am endm ent

5
Petition for Writs of Mandamus.



6
Petition for Writs of Mandamus.

to  the  com plaint conforms to the opinion of th is  H onor­
able Court which indicated th a t  the publication was 
m ade by the  defendants th rough and by the  agency of 
the  Am erican B ar Association.

Under Rule 15, therefore, leave of court was not 
even required. The am endm ent was filed tim ely because 
under the  Rules and the  applicable law there  is no limi­
ta tion  of tim e fo r amendments, the only requirem ent 
being due diligence; and the plaintiff could hard ly  have 
been m ore duly diligent because the  am endm ent was 
filed w ithin two weeks a fte r notification of denial in the 
Supreme Court. Furtherm ore, such an am endm ent is 
allowable under the  law a t  any time, even a fte r judg­
ment.

11. On June 12, 1958 your petitioner appeared be­
fore respondent Judge Sullivan to presen t the said 
Motion fo r Leave to  Amend Complaint, E xhib it A 
hereof, as well as a Motion fo r Change of Venue and 
R. Lawrence Storms, Esquire, of W inston, Straw n, Smith 
& P atterson , record counsel fo r the  defendants therein  
also appeared on Notice. Respondent Judge Sullivan 
sta ted  from  the  bench th a t the Court no longer had ju ris ­
diction and th a t  he would not enter orders on the 
motions. Lodged herew ith fo r the inform ation of th is  
Honorable Court is a tran sc rip t of the said proceedings 
before Respondent Judge Sullivan. This Court’s a tten ­
tion is particu larly  directed to  page 4 thereof whereon 
the  following sta tem en t of Respondent Judge Sullivan 
appears: “THE COURT: No order on both m otions; 
no jurisdiction.”

12. I t  is elem entary th a t  Respondent Roy H. John­
son, Clerk, had no alternative upon receipt of the said



Petition for Writs of Mandamus.
7

Notice and Motion bu t to  m ark  them  filed and to  make 
docket entries of them  in advance of forw arding them  
to  Respondent Judge Sullivan. P rio r to  presentation of 
the  said Motion to Respondent Judge Sullivan your peti­
tioner requested the Respondent Clerk to m ark the  said 
Notice and Motion filed and to  m ake docket entries of 
them, bu t he sta ted  th a t  he would do nothing until con­
fe rrin g  w ith  Respondent Judge Sullivan. A fte r your 
petitioner’s a ttem pted presentation  of the m otion to 
Respondent Judge Sullivan he was notified by Respond­
ent Clerk th a t  Respondent Judge Sullivan orally  ordered 
the  Clerk not to m ark  the  papers filed and no t to  m ake 
docket entries of them  fo r lack of jurisdiction.

13. I t  is elem entary th a t  Respondent Judge Sulli­
van in refusing to  consider or en ter an order on peti­
tioner’s Motion fo r Leave to  Amend Complaint and has 
acted in violation of the federal Rules of Civil Procedure 
and the applicable law. Under the rules he was bound 
to  give full consideration to  the m otion and having done 
so, he was bound to en ter an order thereon. D istric t 
Court Judges are bound by the  federal Rules of Civil 
procedure as by an A ct of Congress. See Foltz v. Moore- 
McCormack Lines, Inc., 19 F. R. D. 301 (1956), wherein 
i t  was held analogously th a t  the m otion m ust be gran ted  
because Congress gave the federal Rules of Civil P ro ­
cedure the force and effect of a s ta tu te  (Cf. 28 U.S.C. 
sec. 2072).

14. F u rth e r support of petitioner’s r ig h t to  the  
said am endm ent is the following: A defense not p re­
sented by pleading or m otion of defendant and not tried  
and not asserted  by defendant to be in the case was not 
before the Courts of Appeals, D uPont v. M artin, 174 
F.2d 602 (1949), 6 CCA and a  defense th a t an order to



8
Petition for Writs of Mandamus.

show cause was insufficient process, m ade fo r the  first 
tim e in briefs in Court of Appeals, was too la te ; C arter 
v. Powell, 104 F.2d 428 (1939), 5 CCA, rehearing  denied 
104 F.2d 1012, certio rari denied 308 U.S. 611.

15. The respondent’s failure to  exercise his power 
under the  Rules legally has subjected him to  the super­
visory control of th is Honorable Court th rough  the 
in s tan t petition. Support fo r th is  contention is found in 
the  case of LaBuy, United S tates D istric t Judge, v. 
Howes L eather Co., Inc., e t al., 352 U.S. 249 (1957), 
affirming 226 F.2d 703 (7 CCA),  wherein the Supreme 
Court of the United S tates held in the m ajority  opinion 
(pp. 259-260) by Mr. Justice Clark, “Supervisory con­
tro l of the  D istric t Courts by the Courts of Appeals is 
necessary to proper judicial adm inistration in the Fed­
eral system ; and the All W rits Act, 28 U.S.C. sec. 
1651(a), confers on the  Courts of Appeals the discre­
tionary  power to issue ex traord inary  w rits  in excep­
tional circum stances such as ex ist herein.”

16. I t  is respectfully  subm itted th a t  ju s t as re­
spondent Judge Sullivan has subjected him self to  the 
supervisory control of th is Honorable Court, th is 
C ourt’s denial of the  petition would likewise subject it  
to the Supreme C ourt’s power of supervision as set fo rth  
in Rule 19 of the  Supreme Court of the U nited S tates 
setting  fo rth  considerations governing review on certio­
rari, wherein paragraph  1(b)  provides for certiorari 
where a court of appeals has so fa r  departed from  the 
accepted and usual course of judicial proceedings, or 
so fa r  sanctioned such a departure by a lower court, as 
to  call for an exercise of the Supreme C ourt’s power of 
supervision.



Petition for Writs of Mandamus.
9

17. In  view of the  foregoing, i t  is respectfully  sub­
m itted  th a t  respondent Roy H. Johnson, Clerk, should 
be directed to m ark  your petitioner’s said Motion for 
Leave to  Amend Complaint filed as of May 14, 1958 
and to m ake a  docket en try  of it ;  and fu rther, respond­
ent Judge Sullivan should be directed to en ter an order 
th a t  the  Motion fo r Leave to  Amend Complaint be 
granted.

18. Y our petitioner is w ithout o ther specific and 
adequate relief.

Wherefore, petitioner p rays th a t  th is  Honorable 
Court g ra n t a Rule directed against the respondent, 
Roy H. Johnson, to  show cause why a  W rit of Man­
damus should no t be issued directing him  to m ark 
plaintiff-petitioner’s Notice and Motion For Leave to 
Amend Complaint and the  annexed Amendment to the 
Complaint filed May 14, 1958, and to en ter the  appro­
p ria te  Docket E n tries  thereof a t Civil Action No. 54 
C 681 in the  United S tates D istric t Court fo r the  N orth ­
ern D istric t of Illinois, E astern  Division; and th a t th is 
Honorable Court g ra n t a Rule directed against the re ­
spondent, Philip L. Sullivan, to show cause why a W rit 
of M andamus should not be issued directing him to g ran t 
plaintiff-petitioner’s Motion for Leave to  Amend Com­
plaint, order the annexed Amendm ent to  the Complaint 
filed w ith  notice to the defendants to plead thereto  
w ithin tw enty  days from  the filing thereof a t Civil 
Action No. 54 C 681 in the United S tates D istric t Court 
fo r the N orthern  D istric t of Illinois, E astern  Division.

S /  Paul Ginsburg
Petitioner



10
Petition for Writs of Mandamus.

AFFIDAVIT

Commonwealth of Pennsylvania 
County of Allegheny

Before me, a  N otary  Public in and fo r said County 
and State, personally appeared Paul Ginsburg, peti­
tioner above named, who being duly sworn according to  
law deposes and says th a t  the fac ts  set fo rth  in the 
foregoing petition are true  and correct,

S/  Paul Ginsburg

Sworn to  and subscribed before me th is  18th day 
of June, 1958.

S / Bina B. Zeidman

Bina M. Ziedman, N otary  Public 
P ittsburgh , A llegheny County 

My Commission Expires February  5, 1959

EX H IBIT “A”

IN  TH E UNITED STATES DISTRICT COURT 
For the Northern District of Illinois 

Eastern Division

Paul Ginsburg, Plaintiff, ‘'j
v- y

J ohn D. Black, et al., Defendants, j
Civil Action 
No. 54 C 681

NOTICE OF MOTION
You Are Hereby Notified th a t  on Friday, the  13th 

day of June, 1958, a t  the  opening of Court in the fore­
noon, or as soon th e reafte r as plaintiff can be heard, 
in the United S tates Court House a t  Chicago, Illinois, 
plaintiff will appear in the Court Room assigned to Hon.



Petition for Writs of Mandamus.
11

Philip L. Sullivan and, then and there, p resen t to the 
said Judge the  following:

MOTION FOR LEAVE TO AMEND COMPLAINT

Plaintiff moves the  Court, p u rsuan t to the federal 
Rules of Civil Procedure and the  applicable law, fo r 
leave to  file the annexed Am endm ent To The Complaint, 
w ith  notice to  the defendants to  plead thereto  w ithin 
tw enty  days from  the filing thereof.

D ated: 13 May 1958

S/ Paul Ginsburg
Plaintiff

AMENDMENT TO THE COMPLAINT

Plaintiff hereby m akes the following am endm ent to 
the Complaint.

The entire Complaint shall rem ain as originally 
filed and averred, and in addition there to  plaintiff hereby 
adds the following averm ent to  be included in said 
C om plaint:

17th. The aforesaid libels published of and con­
cerning the plaintiff were published throughout the 
United States, particu larly  among members of the bar 
of the forty -eigh t states, by the defendants, th e ir a tto r­
neys, agents, servants and employees, as well as through 
and by the agency of said Am erican B ar Association.

S/ Paul Ginsburg
Plaintiff



12
Petition for Writs of Mandamus.

UNITED STATES COURT OF APPEALS 
For the Seventh Circuit 

Chicago 10, Illinois

June 25, 1958 

Before
Hon. Philip J. Finnegan,
Hon. John S. H astings,
Hon. W. Lynn Parkinson.

Paul Ginsburg ") PETITION FOR
No. 12363 v. y W RIT OF
Hon. Philip P. Sullivan, et al. j  MANDAMUS

O R D E R
The Court is of the opinion th a t  the facts alleged 

and set fo rth  in the  petition filed June 20, 1958, do not 
ju s tify  a hearing; consequently we refuse to issue a rule 
to show cause why a w rit of m andam us should not issue. 
Petition  for w rit of m andam us is hereby Denied.



Petition for Writs of Mandamus.
13

UNITED STATES COURT OF A PPEA LS 
For the Seventh Circuit

Paul Ginsburg, Petitioner, 
v.

Hon. Philip L. Sullivan, Judge of the 
United S tates D istric t Court fo r the 
N orthern  D istric t of Illinois, E astern  
Division, and Hon Roy H. J ohnson, 
Clerk of the  United S tates D istric t 
C ourt fo r the N orthern  D istric t of Illi­
nois, E aste rn  Division.

No. 12365

Petition  fo r W rits of M andamus
To the Honorable, the Chief Judge and the Judges 

of said Court:
The petition of Paul Ginsburg respectfully  represents:

1. Petitioner, Paul Ginsburg, is a  citizen and resi­
dent of the  City of P ittsburgh , County of Allegheny, 
Commonwealth of Pennsylvania; and is a member in 
good standing  of the  b ar of the Supreme Court of the 
United States.

2. Respondent, Hon. Philip L. Sullivan, is a Judge 
of the United S tates D istric t Court fo r the N orthern  
D istric t of Illinois, E astern  Division, and Respondent, 
Hon. Roy H. Johnson, is the Clerk of the United States 
D istric t Court for the N orthern  D istric t of Illinois, E a s t­
ern Division, both w ithin the  jurisdiction of th is  Honor­
able Court.

3. In  the said D istric t Court a t  No. 54 C 681 peti­
tioner, as plaintiff, filed a civil action against John D.



14
Petition for Writs of Mandamus.

Black, John C. Slade, Guy Allen Gladson, Edw ard G. 
Ince, Bryce L. Hamilton, Reuben A. Borsch, Douglas C. 
Moir, Jam es D. Head, G erard E. Grashorn, George W. 
O tt, G rier D. Patterson , W alter A. Wade, Thomas I. 
Underwood, Thom as A. Reynolds, F rank  B. Gilmer, 
R obert McDougal, Jr., A lbert W. P o tts  and W illiam C. 
Mulligan, as defendants.

4. The said action below is a su it fo r damages 
b rought by Paul Ginsburg, a law yer of P ittsburgh , Penn­
sylvania, against the defendants, who are Chicago law ­
yers, for th e ir unlawful publication of adm ittedly untrue 
and unprovable m atters, libelous per se concerning 
plaintiff-petitioner, and intended to  in jure him profes­
sionally and personally. I t  appears th a t  the said defend­
an ts  were m otivated to libel your petitioner on account 
of his exposing th e ir  frau d  and im position upon the 
S tate  of K entucky in the  m a tte r of the sale of 85% of 
the  shares of stock of Am erican Creosoting Company 
and subsidiaries by the E sta te  of Sallie A. H art, De­
ceased.

5. Through th e ir imposition and fraud  upon the 
C ourt as aforesaid, the  said defendants were enabled 
to obtain the shares of stock fo r th e ir client, A lfred L. 
Kuehn, a co-trustee of the E sta te  (through a  corpora­
tion, as purchaser, which had been form ed by Mr. Kuehn 
and his sons) a t a price which was several millions of 
dollars below the  real value. As a result, not only was 
the T ru st E s ta te  cheated out of millions of dollars, bu t 
also your petitioner and his client were wrongfully de­
prived of th e ir opportunity  to  secure several millions 
of dollars in profits th rough purchase of the shares of 
stock.



Petition for Writs of Mandamus.
15

6. The libelous m atte rs  complained of were pub­
lished in the course of disciplinary proceedings before 
the  Am erican B ar Association b rought by your peti­
tioner against said defendants. Upon the filing of the 
complaint, the case was assigned to respondent Judge 
Philip L. Sullivan whose brother, and others, had been 
convicted in the same Court a t No. 52 CR 143 on October 
16,1953, on charges of Income tax  evasion and sentenced 
to  im prisonm ent and to pay fines. Notices of Appeal to 
th is Honorable Court were filed on behalf of H arold E. 
Sullivan (Judge Sullivan’s b ro ther) and hs co-defend­
an ts  a t Nos. 11108, 11109, 11110 and 11111.

7. Respondent, Hon. Philip L. Sullivan, set the 
p re-tria l conference in your petitioner’s case for Decem­
ber 22, 1954, one week prio r to which tim e the  said 
defendants doing business as W inston, Straw n, Black & 
Towner appeared in th is  Honorable Court and filed a 
brief in the  appeals in which Judge Sullivan’s b ro ther 
was involved which brief was fo r the benefit of all those 
defendants; made the  principal argum ent fo r all said 
defendants in th is Honorable Court; made the  only 
argum ent on th e ir behalf a t  No. 1 October Term, 1957, 
in the Supreme Court of the United S ta te s ; and to th is 
date are still representing th e ir in terests.

8. A t no tim e in the course of your petitioner’s case 
against the  defendants doing business as W inston, 
Straw n, Black & Towner, did Judge Sullivan or the de­
fendants disclose to  petitioner th e ir said relationship, 
which disclosure would have placed petitioner in position 
to  seek respondent Judge Sullivan’s removal for self- 
in terest. On Ju ly  1, 1955, Judge Sullivan entered a 
Sum m ary Order therein  against your petitioner and in



16
Petition for Writs of Mandamus.

favor of the defendants by applying the doctrine of 
absolute privilege. I t  is elem entary th a t  the doctrine 
of absolute privilege can never be applied legally to 
libelous m atte rs  unless they  are published in court 
pleadings, and then the application is restricted . There­
fore, Judge Sullivan’s pa ten tly  illegal application of the 
doctrine therein  supports pe titioner’s charge of the  
Judge’s self-interest, because the publications com­
plained of were adm ittedly made in the  course of pro­
ceedings before the Am erican B ar Association, a volun­
ta ry  association.

9. On your petitioner’s appeal to th is  Honorable 
Court a t  No. 11595, th is  Court would no t affirm on the  
ground of absolute privilege bu t did so on a different 
ground—lack of publication (273 F.2d 790). In  effect 
th is  Court reversed the application of the  doctrine of 
absolute privilege, and then affirmed on a ground fo r 
whch there  was no record support, because not only had 
the defendants below adm itted publication b u t there  had 
never been a hearing  below on th a t  issue. The only 
forum  wherein to establish a record on which to  base 
the  said issue is the  D istric t Court. Appellate Courts 
are w ithout facilities and jurisdiction to m ake a  record 
on issues. See U nited S tates of America v. Shotwell 
M anufacturing Company, H arold E. Sullivan, e t al., 355 
U.S. 233 (December 16,1957), in which case the Supreme 
Court of the  United S tates decided th a t the D istric t 
Court is the only forum  wherein to  establish the record 
on issues, and in the absence of such record in the Dis­
tr ic t Court, th a t  p a rticu la r issue cannot be the subject 
of an appeal in the  Court of Appeals or of review in the 
Supreme Court. Furtherm ore, in support of the point 
th a t the jurisdiction of the  Court of Appeals is exclu­



Petition for Writs of Mandamus.
17

sively appellate and th a t  i t  is not the  function of the 
Court of Appeals to assum e the powers of the  D istric t 
Court. See R alston Purina Co. v. Novak, 111 F.2d 631, 
Stephenson v. Equitable Life Assur. Soc. of U. S., 97 
F.2d 406, and Publicity  Building R ealty Corp., e t al., v. 
Hannegan, et al., 139 F.2d 583. Furtherm ore, the  denial 
of certio rari by the Supreme Court a t No. 788 October 
Term, 1956 (353 U.S. 911), “Does no t imply approval 
of the decision fo r which review is sought or of its  sup­
porting opinion”. See Elgin, Jo liet & E astern  Rwy. Co. 
v. Gibson, 7 CCA, 355 U.S. 897 (1957), citing Brown v. 
Allen, 344 U.S. 443. Your petitioner’s la s t pleading filed 
in the  Supreme Court in said m atte r was denied on A pril 
28, 1958.

10. Prom ptly  a fte r  the Supreme C ourt’s denial of 
relief to  petitioner, he served Notice upon defendants in 
the said action below before Respondent Judge Sullivan 
th a t he would p resen t his Motion for Leave to Amend 
Complaint on June 13, 1958. The Notice of Motion, the 
Motion fo r Leave to Amend Complaint and the Amend­
m ent to  the  Complaint were lodged w ith Respondent 
Roy H. Johnson, Clerk, fo r filing on May 14, 1958. 
Nevertheless, the respondent clerk did not m ark them  
filed and did not m ake docket entries of them, but simply 
forw arded them  to Respondent Judge Sullivan fo r dis­
position. The Amendment was filed in s tr ic t compliance 
w ith the applicable law and Rule 1 5 (a ), which provides 
fo r the allowance of course of one am endm ent p rio r to 
tria l, as a m a tte r of righ t. I t  is evident herein th a t  there  
has been no tria l nor has there  been a hearing  on any 
issue except absolute privilege. Furtherm ore, the am end­
m ent to the  com plaint conforms to the opinion of th is 
Honorable Court which indicated th a t  the  publication



18
Petition for Writs of Mandamus.

was made by the defendants th rough and by the agency 
of the Am erican B ar Association. U nder Rule 15, there­
fore, leave of court was not even required. The am end­
m ent was filed tim ely because under the Rules and the 
applicable law there  is no lim itation of tim e for am end­
m ents, the  only requirem ent being due diligence; and 
the  plaintiff could hard ly  have been more duly diligent 
because the am endm ent was filed w ith in  two weeks a fte r 
notification of denial in the  Supreme Court. F u rth e r­
more, such an am endm ent is allowable under the  law a t  
any time, even a fte r judgm ent.

11. W hile petitioner’s said Motion for Leave to 
Amend Complaint was pending, he served Notice upon 
defendants in the said action below before respondent 
Judge Sullivan th a t  he would present his Motion fo r 
Change of Venue on June 12,1958. The Notice of Motion 
and the Motion for Change of Venue were lodged w ith 
respondent Roy H. Johnson, Clerk, fo r filing on May 29, 
1958, and are a ttached  hereto, made p a rt hereof and 
m arked E xhib it A. Nevertheless, the  respondent clerk 
did not m ark them  filed and did not m ake docket entries 
of them, bu t sim ply forw arded them  to respondent Judge 
Sullivan for disposition.

12. On June 12, 1958 your petitioner appeared be­
fore respondent Judge Sullivan to present the  Motion 
for Change of Venue, E xhib it A hereof, as well as the 
said Motion fo r Leave to  Amend Complaint and R. 
Lawrence Storms, Esquire, of W inston, Straw n, Sm ith & 
Patterson , record counsel fo r the  defendents therein 
also appeared on Notice. Respondent Judge Sullivan 
sta ted  from  the bench th a t  the  Court no longer had 
jurisdiction and th a t he would not en ter orders on the



Petition for Writs of Mandamus.
19

motions. Lodged herew ith fo r the  inform ation of th is 
Honorable Court is a tran sc rip t of the  said proceedings 
before Respondent Judge Sullivan. This C ourt’s a tten ­
tion is particu larly  directed to  page 4 thereof whereon 
the  following sta tem en t of Respondent Judge Sullivan 
appears: “THE COURT: No order on both m otions; no 
jurisd iction .” Respondent Judge Sullivan’s excuse for 
his refusal to en ter an Order, “no jurisd iction”, is as 
fan tastic  beyond belief as his decision, “no order,” is 
illegal beyond comprehension.

13. I t  is elem entary th a t Respondent Roy H. John­
son, Clerk, had no alternative upon receipt of the  said 
Notices and Motions bu t to m ark  them  filed and to  m ake 
docket entries of them  in advance of forw arding them  
to  Respondent Judge Sullivan. P rio r to presentation  of 
the  said Motions to Respondent Judge Sullivan your 
petitioner requested the Respondent Clerk to m ark the 
said Notices and Motions filed and to  m ake docket en­
tries  of them, but he s ta ted  th a t  he would do nothing 
until conferring w ith Respondent Judge Sullivan. A fter 
your petitioner’s a ttem pted  presentation  of the Motions 
to  Respondent Judge Sullivan he w as notified by Re­
spondent Clerk th a t  Respondent Judge Sullivan orally 
ordered the Clerk no t to m ark the  papers filed and not 
to m ake docket entries of them  fo r lack of jurisdiction.

14. I t  is elem entary th a t  Respondent Judge Sulli­
van in refusing  to consider or en ter an order on peti­
tioner’s said Motions has acted in violation of the federal 
Rules of Civil Procedure and the applicable law. U nder 
the rules he was bound to  give full consideration to 
the Motions and having done so, he was bound to enter 
Orders thereon. D istric t C ourt Judges are bound by



20
Petition for Writs of Mandamus.

the  federal Rules of Civil Procedure as by an A ct of 
Congress. See Foltz v. Moore-McCormack Lines, Inc., 
19 F.R.D. 301 (1956), wherein i t  was held analogously 
th a t  the  m otion m ust be g ran ted  because Congress gave 
the  federal Rules of Civil Procedure the force and effect 
of a s ta tu te  (Cf. 28 U.S.C. sec. 2072).

15. The respondent Judge’s failure to  exercise his 
power under the  Rules legally has subjected him to  the 
supervisory control of th is  Honorable Court through 
the  in s tan t petition. Support fo r th is  contention is found 
in the case of LaBuy, U nited S tates D istric t Judge, v. 
Howes L eather Co., Inc., e t al., 352 U.S. 249 (1957), 
affirming 226 F.2d 703 (7 CCA), wherein the Supreme 
Court of the  United S tates held in the m ajo rity  opinion 
(pp. 259-260) by Mr. Justice Clark, “Supervisory con­
tro l of the D istric t Courts by the Courts of Appeals is 
necessary to proper judicial adm inistration in the Fed­
eral system ; and the  All W rits Act, 28 U.S.C. sec. 
1651(a), confers on the Courts of Appeals the  discre­
tionary  power to issue ex traord inary  w rits  in excep­
tional circum stances such as ex ist herein.”

16. I t  is respectfully  subm itted th a t  ju s t as re ­
spondent Judge Sullivan has subjected him self to the 
supervisory control of th is Honorable Court, th is  C ourt’s 
denial of th is petition would likewise subject it  to  the 
Supreme C ourt’s power of supervision as set fo rth  in 
Rule 19 of the Supreme Court of the United S tates set­
ting  fo rth  considerations governing review on certio­
rari, wherein paragraph  1(b)  provides for certiorari 
where a  court of appeals has so fa r  departed from  the 
accepted and usual course of judicial proceedings, or 
so fa r  sanctioned such a departure by a lower court, as



Petition for Writs of Mandamus.
21

to  call fo r an exercise of the  Supreme C ourt’s power of 
supervision.

17. In  view of the  foregoing, i t  is respectully sub­
m itted  th a t  respondent Roy H. Johnson, Clerk, should 
be directed to m ark your petitioner’s said Motion for 
Leave to  Amend Complaint filed as of M ay 14, 1958, and 
his said Motion fo r Change of Venue filed as of May 28, 
1958, and to  m ake docket entries of them ; and fu rther, 
respondent Judge Sullivan should be ordered and di­
rected to set a H earing on your petitioner’s said Motion 
for Change of Venue, and a fte r full hearing and con­
sideration thereof, to en ter an Order thereon under the 
federal Rules of Civil Procedure and the applicable law.

18. Your petitioner is w ithout o ther specific and 
adequate rem edy a t  law.

Wherefore, petitioner prays th a t th is  Honorable 
Court g ran t a Rule directed against the respondent, Roy 
H. Johnson, to  show cause, if any, why a W rit of Man­
dam us should not be issued directing him  to  m ark 
plaintiff-petitioner’s Notice and Motion for Leave to 
Amend Complaint and the  annexed Amendm ent to  the 
Complaint filed May 14, 1958, and to m ark plaintiff- 
petitioner’s Notice and Motion fo r Change of Venue, 
E xhib it A hereof, filed May 29, 1958; and to  en ter the  
appropriate  Docket E n tries thereof a t Civil Action No. 54 
C 681 in the United S tates D istric t Court fo r the N orth ­
ern D istric t of Illinois, E astern  Division; and th a t  th is  
Honorable Court g ran t a Rule directed against the  re ­
spondent, Philip L. Sullivan, to show cause, if any, why 
a  W rit of M andamus should not be issued directing him  
to  set a  H earing on plaintiff-petitioner’s Motion fo r 
Change of Venue and, a fte r  full hearing  and considera­



tion thereof to en ter an Order thereon under the federal 
Rules of Civil Procedure and the  applicable law, a t  Civil 
Action No. 54 C 681 in the  United S tates D istric t Court 
fo r the  N orthern  D istric t of Illinois, E astern  Division.

S/ Paul Ginsburg
Petitioner

22
Petition for Writs of Mandamus.

AFFIDAVIT

Commonwealth of Pennsylvania 
County of Allegheny

Before me, a  N otary  Public in and for said County 
and State, personally appeared Paul Ginsburg, peti­
tioner above named, who being duly sworn according to 
law deposes and says th a t  the fac ts  se t fo rth  in the 
foregoing petition  are true  and correct.

S/ Paul Ginsburg

Sworn to and subscribed before me th is  20th day 
of June, 1958.

S/ Bina B. Zeidman

Bina M. Ziedman, N otary  Public 
P ittsburgh , A llegheny County 

My commission expires F ebruary  5,1959.



Petition for Writs of Mandamus.
23

EX H IBIT A
IN  TH E UNITED STATES DISTRICT COURT 

For the Northern District of Illinois, 
Eastern Division

Paul Gisnburg, Plaintiff, ^

v- hJohn D. Black, et al., Defendants, j

Civil Action 
No. 54 C 681

NOTICE OF MOTION
You Are Hereby Notified th a t  on Thursday, the 

12th day of June, 1958, a t  the opening of Court in the 
forenoon, or as soon th e reafte r as plaintiff can be heard, 
in the United S tates Court House a t  Chicago, Illinois, 
plaintiff will appear in the Court Room assigned to Hon. 
Philip L. Sullivan and, then and there, present to the 
said Judge the following:

MOTION FOR CHANGE OF VENUE
Plaintiff moves th a t th is  Honorable Court, in the  

in te rest of justice, en ter an Order tran sfe rrin g  the  above 
entitled action from  th is D istric t to the United S tates 
D istric t Court fo r the W estern D istric t of Pennsylvania 
w here the plaintiff resides, or, in the alternative, to  the 
United S tates D istric t Court fo r the D istric t of Colum­
bia or the U nited S tates D istric t Court fo r the  Southern 
D istric t of New York where none of the parties resides; 
and in support hereof avers:

1. The Judge of th is  Honorable Court to whom 
said action has been assigned, Hon. Philip L. Sullivan, 
is unqualified because of his self-in terest; and is preju- 
dived in favor of the  defendants and against the plaintiff.

2. Because of Judge Sullivan’s prestige, influence 
and standing in said D istrict, the  plaintiff will be de­



prived of an im partial, unprejudiced, fa ir  and proper 
tribunal and atm osphere in which lawful disposition of 
his Complaint m ay be anticipated.

3. A tran sfe r of th is  cause to  another D istric t 
such as the  W estern D istric t of Pennsylvania where the 
plaintiff resides, or the  D istric t of Columbia or Southern 
D istric t of New York w here none of the parties resides, 
bu t which D istricts are comparable to  th is  D istrict, 
would prom ote the principles and rig h ts  of litigan ts to 
fa ir  and im partial adm inistration  of justice and an 
atm osphere untam ed by prejudice as herein set forth .

4. In  support hereof is a ttached  hereto and m arked 
E xhib it “A ” as p a r t hereof, a copy of plaintiff’s la st 
pleading filed in th is  m a tte r a t  No. 788 October Term, 
1956, in the  Supreme Court of the United S tates (denied 
on A pril 28, 1958), entitled  “Motion F o r Leave To File 
Supplem ental Record and Second Petition  For R ehear­
ing Out of Term  T im e; And, In  the  A lternative, Motion 
To Rem and”. Note: Instead  of a ttach ing  the said cum­
bersome Exhibit, reference is hereby made to  the  same 
appendix which is of record in th is  Honorable Court a t 
No. 12256.

Wherefore, plaintiff respectfully moves th a t  th is 
H onorable Court en ter an O rder tran sfe rrin g  the cause 
to  an appropriate  D istrict.

S/ Paul Ginsburg
Plaintiff 

C arlton House 
550 G ran t S treet 
P ittsbu rgh  19, Pa.

24
Petition for Writs of Mandamus.

D ated : 28 May 1958



Petition for Writs of Mandamus.
25

UNITED STATES COURT OF APPEALS 
F or the Seventh Circuit 

Chicago 10, Illinois

June 25, 1958

Before
Hon. Philip J. Finnegan, 
Hon. John S. H astings, 
Hon. W. Lynn Parkinson.

Paul Ginsbnrg 
No. 12365 v.
Hon. Philip L. Sullivan, et al.

1
Yj

Petition  fo r W rit 
Of M andamus

O R D E R
The C ourt is of the  opinion th a t  the  fac ts  alleged 

and set fo rth  in the  petition filed June 21, 1958, do not 
ju s tify  a  hearing; consequently we refuse to issue a rule 
to show cause why a w rit of m andam us should no t issue. 
Petition  fo r w rit of m andam us is hereby Denied.

UNITED STATES COURT OF A PPEALS 
For the Seventh Circuit 

1212 Lake Shore Drive 
Chicago 10

Kenneth J. Carrick 
Clerk

M arch 28, 1958
Hon. Philip L. Sullivan 
United S tates D istric t Judge 
United S tates Court House 
Chicago 4, Illinois



26
Petition for Writs of Mandamus.

Hon. Michael L. Igoe 
U nited S ta tes D istric t Judge 
U nited S tates Court House 
Chicago 4, Illinois
Mr. Paul Ginsburg 
550 G ran t S tree t 
P ittsb u rg h  19, Pennsylvania
Mr. R obert Tieken 
U nited S tates A ttorney 
450 U. S. Court House 
Chicago 4, Illinois
Mr. George B. Christensen 
A ttorney  a t  Law 
38 So. D earborn S tree t 
Chicago, Illinois
Mr. Roy H. Johnson 
U nited S tates D istric t Court 
Chicago 4, Illinois

R e : Paul G insburg v. Hon. Philip L. Sullivan
and Hon. Michael L. Igoe, United S tates 
D istric t Judges, No. 12256

G entlem en:
Enclosed is certified copy of the  order of th is  Court 

denying petition  for w rit of m andam us.

V ery tru ly  yours,

Kenneth J. Carrick 
K enneth J. Carrick, Clerk

K JC :hm m
Enc.



IN  TH E UNITED STATES DISTRICT COURT 
Northern District op Illinois 

Eastern District

27
Transcript of Proceedings.

Paul Ginsburg, Plaintiff, ^
v. y No. 54 C 681

J ohn D. Black, et al., D efendants, j

T ranscrip t of Proceedings
had in the  above-entitled cause before the Hororable 
Philip L. Sullivan, Chief Judge of said Court, in his court 
room in the United S tates Court House a t Chicago, Illi­
nois, on Thursday, June 12, 1958, a t  10:00 o’clock a. m.

Appearances :
Mr. Paul Ginsburg

(Carlton House, P ittsbu rgh  19, P a . ),
P ro  se;

Messrs. Winston, Strawn, Smith & Patterson 
(Suite 1400, 38 S. D earborn Street, 
Chicago 3, 111.), by 

R. Lawrence Storms, Esq., 
on behalf of D efendants.

Thereupon the following proceedings were had 
here in :—

The Clerk: 54 C 681, Paul Ginsburg v. John D. 
Black, e t al., m otion for change of venue.

Mr. Ginsburg: Good m orning, your Honor.
The Court: This case I  know is the one I  got a  le tte r 

on. You represent yourself and you are from  Philadel­
phia?



28
Transcript of Proceedings.

Mr. Ginsburg: P ittsburgh , your Honor.

The Court: W hat jurisdiction do I  have over any 
of it?

Mr. Ginsburg: Well, your Honor, there  is also 
pending a m otion fo r leave to  file an am endm ent to the 
complaint.

The Court: W here is th a t  pending?

Mr. Ginsburg: In  th is  court, your Honor.

The Court: W hen?

Mr. Ginsburg: I  sen t i t  in about a m onth ago, for 
filing.

The Court: W as there  a notice served or w hat?

Mr. Ginsburg: A notice w as served for p resen ta­
tion of th a t  for tomorrow.

The Court: W hat jurisdiction do I have?

Mr. Ginsburg: Y our Honor, I  would like to explain 
i t  to  you. This court dism issed the  action on it  by apply­
ing the doctrine of absolute privilege.

The Court: Yes.

Mr. Ginsburg: The Court of Appeals affirmed the 
judgm ent of dismissal.

The Court: On a different ground.

Mr. Ginsburg: But, on a different ground. There­
fore, the Court of Appeals, in effect, held th a t there  is 
no absolute privilege applicable to th is case.

The Court of Appeals took the position th a t  the 
affirmance should be based on lack of publication by the



Transcript of Proceedings.
29

defendants. The Court of Appeals took the position th a t 
if there  were publication, i t  would be by or th rough the 
Am erican B ar Association which d istributed  everything 
th a t  I  sent to  them  fo r distribution, and th e  defendants, 
too.

Now, the  Court of Appeals had—

The Court: L et me see. F irst, w hat is the position 
of the defendants ?

Mr. Storms: If  the  Court please, I am here th is
m orning as a courtesy to the  Court and not representing 
the  defendants. Judgm ent was entered in th is  cause.

The Court: W hat do you mean by “as a courtesy 
to the C ourt?

Mr. Storms: I  am here in response to  a motion. I 
am tak ing  no affirmative action because there  is nothing 
before the Court. I  am no t representing the defendants 
th is morning.

The Court: I t  is your contention there  is nothing 
before the  C ourt?

Mr. Storms: Exactly, sir. Judgm ent was entered in 
July, 1955.

The Court: No order on both m otions; no ju ris ­
diction.

Mr. Ginsburg: Y our Honor, m ay I call your a tten ­
tion to  the point—

The Court: I get your point.

Mr. Ginsburg: (Continuing) — under Rule 15 of 
the  Federal Rules of Civil Procedure, I  am entitled to



30
Transcript of Proceedings.

amend once as a m a tte r of course prior to  tria l. There 
has never been a  tria l.

The Court: A fte r the Supreme Court of the  United 
S ta tes has passed on it?

Mr. Ginsburg: Oh, yes.

Mr. Storms : He has been in the  Supreme C ourt a t 
least twice.

The Court: T hat is the  order, no order.

Mr. Ginsburg: Y our Honor, the  Clerk of the  Court 
has not ye t docketed the  filing of these motions. Can I  
tell him  he is to docket them  so there  is a record of 
docket en try?

Mr. Storms: There is no case before th is  Court in 
which these papers can be filed.

The Court: T h a t is the position of counsel?

Mr. Storms: Yes.

Mr. Ginsburg: Y our Honor, under the  law and the 
practice, the  Clerk has no alternative bu t to  file.

The Court: There is no order on th a t. There is no 
order on this. Call the nex t case.



*