Petition — Silver v. Queen's Hospital

if

duprome Court, U. & P

Pes ' FILED

{4 JAN 23 1916 |

| ’

IN THE | MICHA ad

SUPREME COURT OF THE UNITED STATES

October Term 1975

No. WFWH-1L04 2

MAURICE L. SILVER, M.D., etal.,

Petitioners,

Vv.

THE QUEEN'S HOSPITAL, aka QUEEN'S

MEDICAL CENTER, a Hawaii non-profit

carporation, etal,., Respondents,

‘PETITION FOR A WRIT OF CERTIORARI

TO THE UN!ITED STATES COURT OF

APPEALS, NINTH CIRCUIT, and

APPENDICES ad Wh TO ad be

JOSEPH A. RYAN

Designated Lead Attorney

for Petitioners

Suite 303, 1165S, King St.

Honolulu, Hawaii 96813

TABLE OF CONTENTS

Opinions Below .... cece eeeeeevees » 4

SUP TBGICUG cc ccccccccccececcccece 6

Questions Presented .......6+s66. eco @

Constitutional Provisions, Statutes,

and Rules Involved......... eccee ©

Statement of the Case ...... eccceee AG

Il First Amended Complaint, , 27

Il, Second Amended Complaint, , 35

Ill, Third Amended Complaint, , 39

IV, Fourth Amended Complaint,,. 43

V. History of Appeal to the

Ninth Circuit, Court of Ap-

BOON pcccccsecccecs pecees 45

Reasons for Granting the Writ..... 56

I, The Decisions of the Courts

Below Exalted Rule 8 (a)

Over All Other Federal

Rules of Civil Procedure

and Rejected Long Esta-

blished Precedents of This

Court and Violated Amend-

ments I, V, VII, VIII, and

ME éeccesecocssaseceses se OF

Il, The Decisions ofthe C ourts

Below Show a Hostile and

Fierce Judicial Feud with

Respect to the Interpreta-

tion and Application of the

Civil Rights Acts .......5+. 59

Ill, The Decision of the Courts

Below Flaunts the Authority

F - SanFranciscoChro-

nicle, Tues,, Dec,

16, 1975, Headlines

'S, F, Doctor Wins

A Long Lawsuit on

Blackballing” ....... 103

G- Honolulu Advertiser

Headlines, June 20,

. 1975, ‘Protesting

Doctors Intend to

Refuse Kona Tour-

of This Court to Declare

the Learned Professions"

Are Not Immune From the

Sherman Act .cccccseccsecss O2

IV. The Lower Court Has Re-

jected the Three-Judge

CO Ee 5 646.0660 66R66 cece Oe

V. The Decision of the Court -

Below Defies the Autharity

of Amendment !.........++. 63

Vl, The Court Below Has De-

nied Petitioners Due Pro-

COBB OF LOW cccocceceseeser OS

H - Constitutional Pro-

visions, Statutes and

Conclusion .cccsccccccesssessesens 65 Rules Involved ...... 105

Appendix A - Unpublished Memo- [- "1859 - 1st Public

randum and Order Hospital - The

of Affirmance .......67 Queen's” photogra-

phic record from

Archives, State of

Hawaii, Dept, of

B- Order on Petition for

Rehearing ...+.+++.++,.80

C- Order (U.S, D, J, Health ..... ccvcoves S16

Smith) dismissing

Second Amended TABLE OF AUTHORITIES

Complaint (Feb, 20, ;

ROUE cccccsvccsscce Cases

D - Opinion and Order Ascherman vy, Presbyterian Hos-

(U.S, D, J, Smuth) pital of Pacific Med, Center,

dismissing Third ° , Inc,, 507 F,2d 1103 (9th Cir,

Amended Complaint LOTS ceccce peeeeedecesenscccece 50, 52,53,

(July 23, 1973) ......87 59

E - Order and Judgment “ : Adickes v, Kress & Co,, (1970)

(U.S, D, J, Smith) BOB U.S. 146 .ccccccccccsccccces 52,60

Plaintiffs denied all American Tobacco Co, v, United

relief (Sept, 4, 1973).. 96 States, 328 U.S, 781, 811; 66S,

Ct. 1125 (1946) ...... peccccccces 62

-ii- -iii-

Atwood v, Humble Oil & Refining

Co,, 243 F.2d 885, 888 (CA Sth

SOOM . ccvessecnseeennuaneseans . 56, 57

Birnbaum v. Trussel, (CA 2d 1965)

347 F.2d 86. oe TETTTTT 61

a Se lslend Airlines Inc.,

352 F.2d 735 (9th Cir, 1965). . 49

Central Presbyterian Church v,

Black Liberation Front, 303 F,

2d 894, 899-900 (E,D, Mo,,

SOB) . cccccccceccecceeseecons +. 60

Chiaffitelli v. Dettmer Hospital,

Inc,, (1971) 437 F.2d 429........61

Citta v. Delaware Valley Hospital,

(1970) 313 F, Supp, SOL. ...eeeees 60

Collins v, Hardyman, 341 U,5, 651

(1951) dissenting opinion........ » 52

Conley v. Gibson, (1957) 355, U.

B, @ cccsssssseeea eoecee . 52,60, 64

Corsican Productions Vv. Pitc hers,

338 F.2d 441. WETETTET EELS 52

Cypress v. Newport News General

and Nonsectarian Hosp, Ass'n.,

375 F, 2d 648 (CA 4th, 1967)...... 60

Eastern States Lumber Ass'n. v.

United States, 234 U.S, 600, 612 .. 62

Elizabeth Hospital Inc, v. Richard-

on, (CA 8th 195. 269 F.2d 167... 49

Foster v. Mobile County Hospital

Board, (CA Sth 1968) 398 F’, 2d

227 we cece cccevecessoegseeenees 60

Goldfarb etux,. Vv. Virginia State

Bar, et al,, No, 74-70 U.S, _

Ct. 6/16/75 .seeeeeeees oeeees 48, 62

Hall v. Garson, 430 F, 2d 430, 439 ..61

Jones v. Alfred H, Mayer, Co.,

(1968) 392 U.S, 409. ce eeeeeeeees 60

-iv-

Liggett Co. v. Lee, 288 U.S. 517

SE eeeedeasececocsococccece e«

Meredith v. Allen County War

Memorial Hospital Commission,

(1968) 397 F.2d 33..... TTTTTTTT

Mullarkey v. Borglum, (S.D.N. Y.

1970) 323 F. Supp. 1218, 1228 ...

Newman v. Piggie Park Enter-

prises Inc, , (1968) 390 U.S. 400,

ey @8eeeeseeedcoecovescecoeses

Phillinre v, United States, 312 U.S,

| GPT TTT TTTITTTTTTTe

Pratt & Others v. British Medical

Ass'n., 1K. B. 244 (191) .......

Public Utilities Commission v.

Attleboro Steam and Electric

i WS; . Bop b S SS ee

Radovich vy. National Football

League, 352 U.S. 445 (1957).....

Riggall v. Washington County Me-

dical Society, (CA 8th 1957) 249

WoO BEB ce cccccccecccnces eeecces

Sams v. Ohio Valley General Hos-

pital Ass'n,, (CA 4th 1969) 413

Se PPP PTTTITIT TTT ree

Securities and Exchange Commis-

sion v. Timetrust, Inc. (N.D.

Cal., 1939) 28 F. Supp. 34, 1

PR Sert. Sa 25 cape 4 ..ccccccccce

Sherman v. Air Reduction Sales

Co., (CA 6th 1958), 251 F.2d

Da BE eccdccccceccecccccccecs

© lver v. Castle Memorial Hospi-

tal, et al., 53 Haw. 475, 497 P.

Be EO GEOR cc cece cceseccccces

Silver v. Gordon, Civil No, 27429,

-Vo-

28, 41, 50

61

First Circuit Court, State of -

Hawaii ..ccccccccceesesseserces 19 » 95

Silver v. The Queen's Hospital, et Statutes

al., 53 F.R.D. 223 (1971) ...---- 4, 26

Simpkins v. Moses H. Cone Memo- 15 U.S.C.

rial Hospital, (CA 4th, 1963) F. , P na

BAU os is pceeebeberenea ts 60 ee 15 cece cece cece eenees poe

Spriggs v. Seaton, 271 F.2d 583 CCTION 26 occ cecccccccceceeseces 10

(CA 10 1959) .cceceeeecereerece . 98 . : 18 U.S.C.

United States v. American Medical

Ass'n., 72 App. D.C. 12, 110 Section 241 ....-++++-. ° TTTTT 10

F. 2d 703, 711 cttdhn wee beebn eeeees 62 Section 242 “enreenee4#enteeeeeeeeeeeeee 10

United States v. Employing Plas- Section 1621 ee eeeeneeeeresreseeeeeen 10

terers Ass'n. - 347 U.S. 186 Section 1622 eeeceeeeeeeeeeeeeeeese 10

(1954) werery, vo TTT 57 Section 371 oereeee eevee eeeeeee eee 10

United States v. Guest, 383 U.5. 28 U.S.C.

745, 86 S.Ct. 1170, 16 L.Ed. 2d

239 (1966). .eceecerereercerecere 52,60 i Pe . cc cesuekecwads dbeus 8

United States v. Parke, Davis & Bestia SBSA .ccccccccccccceccsoces 10

Co., 362 U.S. 29, 44 (1959) ....- 62 Section 2284 ...ccccccccccccccssccs 10

United States v. Price, (1966) 383

U.S. 787, 7194 .ccccccccccccecess 60 42U.S-C-

Yick Wo v. Hopkins, 118 U.S. 356 E Section 291, et seq. ....-..-eeeeeee 10, 14, 50

(1885) ..ccccecccecercerroseeers 54 conn “er ae 10, 35, 39, 56,

Gctiom 19GB -cccccccccccccces

United States Constitutian cece A, 10, 35, 52,

Amendment 1....++-++eeee0e-400%8" 7,57, 63, Section 1983 .......ecseeeeeseeees 8, 10, 35, 39,

64 . 41, 52,56

Aememtemen OB oss cvcceqecesevccses 7,57 Section 1985 ....seseeeeeeeeeeeens 8, 9,10, 35,

Amendment V ..---eeereeerreretre? 7,57 . ‘ 40, 42, 54, 56

Amendment VII .....-+++eeseeeeees 7,57 Section 1986 ......++seseeeeeeeess 10

Aenentenant VIM ..ccccescvcccesess 57, 65 Section 20008 .......+++++00- eeeees 8, 10, 39, 42,

Amendment XIII .....-eeeeeeeeeres 7,57, 65 . | 56

Aenandenant SIV occccscsecceccsese 106 UGE Bes cceccesscocceseeecees 10, 39

Manual for Complex and Multidis- awaii Revised Statutes

7,10, 22 Section 386-8... ..cccccccccccscces 32

trict Litigation ...-+-+-++serrtrr , 10,

Section 386-21...--eeeeeeeeeereeree

Section 663-1....-eeee ee eeeeeeeeee

Federal Rules of Civil Pr ocedure

. & & eae

me once deesenceseeseoeses , &

umatest 27, 46, 54, 55,

57, 58, 64

Rule 23(a)...-- cece reece eceeeeees 10 ”

Rule 54(b)....- eee eee eee eee eeeees 6,

Treatise

9A Moore's Fed. Prac., n. 18, ;

5

Dp. 1703 .. cence cere eeeererreees

-viii-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1975

No,

MAURICE L. SILVER, M. D.,

ELIZABETH BOWMAN, LINDA Y.

GISHI, MAMORU OISHI, CLARENCE

M. KANE, WILLIAM J. GOULD,

ROBERT M. PYLE, REBECCA M.

MIN, EUGENE C. CLARK, SYLVIA

L. FREY, JOHN F. FREY, DOLORES

LUIS, DIONICIOC. LUIS, FREDDIE

M. HAR POLE, DOROTHY HARPOLE,

HER BERT KEALOHA and SHIRLEY

ANN K. KEALOHA,

Petitioners,

vs.

THE QUEEN'S HOSPITAL, aka

QUEEN'S MEDICAL CENTER, A

Hawaii non-profit carporation, SAINT

FRANCIS HOSPITAL, a Hawaii non-

profit corporation, KUAKINI HOS PI-

TAL, a Hawaii non-profit cor poration,

CASTLE MEMORIAL HOSPITAL, a

Hawaii non-profit corporation, JOHN

J. LOWREY, M. D., RALPH B.

CLOWARD, M.D., THOMAS S, BEN-

NETT, M.D., WILL J. HENDERSON, )

E.E, BLACK, J. GARNER ANTHONY, )

DENNS E. W. O'CONNOR, THOMAS )

ttt i

M. WADDOUPS, A. L. Y. WARD,

ALLEN C. WILCOX, JR., KENNETH

R. NURSE, WILLIAM E. AULL,

NATHAN F. BANFIELD, 3rd, MOR-

TOR E. BERK, M.D., KENNETH F.

BROWN, CARTER GALT, DOUGLAS

S. GUILD, WILLIAM C. KEA, K. J.

LUKE, MALCOLM MacNAUGHTON,

ALEX SMITH, F. J. PINKERTON,

M. D., MASATO HASEGAWA, M.D.,

LAWRENCE H. GORDON, M. D.,

SCOTT C. BRAINARD, M. D., H.

WILLIAM GOEBERT, M.D., SISTER

MAUREEN KELLEHER, ©. S. F. ,

WILLIAM W. T. WON, M.D., RICHARD

K. S. PANG, M.D., CHEW MUNG

LUM, M.D., THOMAS LAU, M.D.,

KENJI GOTO, HIDEO KAWANO,

HARRY M. TAGAWA, THEODORE T.

TOMITA, M.D., MASATO KAMISATO,

SAMUEL Y. SASAI, HOWARD K.

HIROKI, CLYDE K. SHIMADA, TERUO

HIMOTO, HENRY DAMON, MITSUYO-

SHI FUKUDA, SHINSUKE NAKAMINE,

ALBERT I. SHIMAMURA, M. D. ,

TSUNEICHI SHINKAWA, M. D. ,

HENRY CHUN HOON, KENNETH S.

SHIOI, J. I, FREDERICK REPPUN,

M. D., DON E, POULSON, M. D.,

GABRIEL MA, M. Dv, ROBERT A.

ROSE, M.D., MARVIN G. MIDKIFF,

A. G. STREIFLING, M. O. CHANG,

ROBERT BABCOCK, ROBERT

CHUNG, M,D., GEORGE CLARKE,

RICHARD CLEMENT, HAROLD

KONO, FRANK McMURRY, GILBERT

PLUBEL, PERRY SUMIDA, M. D.,

o3-

eee ee

eee ee”

et wt a ata PDEA ARSOAAS OS ST TY,”

— —

CHARLES YAMASHIRO, M.D., WAL- )

TER ZANE,RAYMOND DeHAY, M.D., )

JAMES L. ERICKSON, M.D., KEN- )

NETH W. MOMEYER, M.D., PAUL )

Y. TAMURA, M. D., PHILIP S.

ARTHUR, M. D., RICHARD D.

MOORE, M. D., ROGER B. BRAULT,

M.D., ANNA MARIA BRAULT, M.D.,

GREAT AMERICAN INSURANCE

COMPANY, FIRST INSURANCE CO,

OF HAWAII, LTD., ROYAL GLOBE

INSURANCE COMPANY, ROYAL

INDEMNITY COMPANY, ARGONAUT

INSURANCE COMPANY, LIBERTY

MUTUAL INSURANCE COMPANY,

WALTER B. QUISENBERRY, M.D.,

individually and as Director of Health

of the State of Hawaii Department of

Health; TOMIC T. TOMSON, indivi-

dually and as Administrator of Maui

Memorial Hospital; and JOHN F.

MORRIS, M. D., Individually and as

Chair man of the Credentials Commit-

tee, Maui Memorial Hospital,

Respondents,

ed

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS, NINTH CIRCUIT

Petitioners, an American Board certified

Neur ological Surgeon, Neur opathologist, and qua-

lified Electroencephalographer ard 16 citizens

who hire his special services and rely upon his

Ge

expertise as a physician and medical expert wit-

ness, pray that a writ of certiorar! issue to re-

view the final judgment of the United States Court

of Appeals for the Ninth Circuit, entered on

October 24, 1975. Petitioners were thrown out

of court for alleged failure to meet the require-

ments of Rule 8(a), Federal Rules of Civil Pro-

cedure in a complex case in which all discovery

was stayed by court order,

OPINIONS BELOW

The complaint filed September 8, 1970, was

dismissed with leave to amend by Judge Boldt

(Washington), a District Court Judge assigned

after both Hawaii District Court Judges were dis-

qualified upon motions by Petitioners, and after

hearings and debate, Judge Boldt's decision is

published at Silver et al, v. [he Queen's Hospi-

tal. etal 53 F.R.D. 223 (D, Haw. 1971).

a =”

Judge Boldt accepted the complaint and

assigned the complaint to the procedure of the

Manual for Complex and Multidistr ict Litigation,

Judge Boldt, on June 30, 1971, dismissed the

, it di ain aver-

complaint on the ground it did not contain a\

ments that were simple, concise and direct (Rule

8[@)[1]) and ordered an amended complaint,

Thereafter, President Nixon appointed Judge

Boldt Chairman of the Pay Board, The case

temporarily was assigned to Judge Walsh

(Arizona),

Judge Walsh ruled the First Amended Com-

plaint failed to comply with Rule 8(a)(1) and or-

dered 4n amended complaint (R. 2311-2312),

Judge Walsh withdrew and the case was assigned

to Judge Smith (Montana),

Judge Smith dismissed the second amended

complaint with leave to file a third amended com-

plaint on February 20, 1973, A copy of Judge

Smith's Order is attached hereto as Appendix ''C"’,

Judge Smith dismissed the third amended

complaint on July 23, 1973, with leave to file an

amended complaint by the neurosurgeon, Maurice

L, Silver, M,D,, only. Appendix "D",

Judge Smith dismissed the fourth amended

complaint on September 4, 1973, without leave to

amend as to any of the petitioners, Appendix "E"'

The Court of Appeals, Ninth Circuit, affirmed

aS

and inan accompanying unpublished memorandum

(Appendix A"), stated that the judicial "patience

was exhausted" as justification for the ultimate

dismissal without leave to amend,

In the course of these attacks on the com-

plaints, the complaints were accepted in that cer-

tain issues were attacked 4s being without merit

and ultimately all of the patients’ claims were

dismissed on the merits, During all that time,

all discovery was stayed by order of the court

(R, 3173), A motion for a Rule 54(b) order was

made and denied and/or disregarded and the last

amended complaint by the neurosurgeon only was

dismissed without leave to amend,

Petitioner filed a petition for rehearing with

suggestion for rehearing en banc, On October

24, 1975, the Court of Appeals, Ninth Circuit,

denied the rehearing and rejected the suggestion

for a rehearing en banc, Appendix ~ 2

JURISDIC TION

Jurisdiction is invoked under 28 U.S.C.,

Section 1254(1),

QUESTIONS PRESENTED

1, Wasit an abuse of discretion and a depri-

vation of due process in violation of Amendment

V_ as well as discriminatory to strike the com-

plaints after the complaints had been assigned to

and subjected to the procedure set forth in the

Manual for Complex and Multidistrict Litigation

upon the alleged ground the complaints were not

short and plain statements of claim?

2. Did the courts below erroneously construe

and apply Rule 8(a) so as to deprive the Peti-

tioners of their right to petition the government

fora redress of grievances in violation of Amend-

ment I, as well as deny them due process of law

in violation of Amendment V,and enforce involun-

tar yser vitude against them in violation of Amend-

ment XIII?

3. Where a complaint is submitted to the

procedure set forth in the Manual for Complex

Litigation, and an order is entered staying all

discovery, are Petitioners denied due process of

law in violation of Amendment V when the court

grants summary judgment and dismisses Peti-

~ »

tioners' claims as without merit?

4, Where the existing decisions of the Cir-

cuit Courts of the Court of Appeals demonstrate

the judges of said courts are in hostile and fierce

judicial debate as to the interpretation and appli-

cation of Civil Rights (42 U.S,C,, Sections 1983,

1985, and 2000a) are petitioners deprived of due

process of law in violation of Amendment V when

the Ninth Circuit rejects the construction placed

onthe same law and applied by this Court and the

Fourth and Fifth Circuits to the prejudice and

detriment of the Petitioners ?

5. Where state laws are so designed, con-

strued and applied as to delegate the police power

of the state (licensing power) to hospital corpora-

tions and their incumbent medical staffs, their

medical malpractice insurers and their defense

law firms and said laws are challenged as uncon-

stitutional, is jurisdiction properly in a statutory

Three-Judge Court?

6, Where it is shown that two or more per-

sons in a state conspired, either directly or

indirectly for the purpose of depriving a person

or class of persons of the equal protection of the

laws, or of equal privileges and immunities under

the laws, or for the purpose of preventing or hin-

dering the constituted authorities of a State from

giving or securing to all persons within such

State the equal protection of the laws, has a viola-

tion of 42 U.S,C,, Section 1985, been shown of

which Federal Courts must take jurisdiction ?

7, Where some identified corporations en-

gaged directly and indirectly in interstate com-

merce combine with physicians and lawyers who

are also engaged in interstate commerce and to-

gether act in collusion to control the practice of

medicine, fix prices and allocate the market in

interstate and foreign commerce in the business

of medical and hospital services and medical ex-

pert testimony, is such combination a restraint

of trade and a violation of the Sherman Act?

CONS TITU TIONAL PROVISIONS, STATUTES,

AND RULES INVOLVED

The constitutional provisions involved are

Amendments I, Iv, V, VII, VII, XIII, and XIV,

to the Constitution of the United States, The sta-

tutes involved are 15 U.S.C,, Sections 15, 26;

18 U.S,C., Sections 241, 242, 371, 1621, 1622;

28 U.S.C., Sections 2281; 2284; 42 U.5.C.,

Sections 291, 1981, 1982, 1983, 1985, 1986,

2000a, and 2000d, The rules involved are Rules

8(a), 23(a), and 54(b), Federal Rules of Civil

Procedure,

The constitutional provisions, statutes, and

, ‘ ! tt :

rules involved are printed inAppendix H , infra,

STATEMENT OF THE CASE

Petitioners are a neurological surgeon and 16

of his patients, Their complaint and four amended

complaints have been stricken and they have been

denied anyand all relief in a case that was deter -

mined to be a complex case and subjected to the

procedure prescribed by the Manual for Complex

and Multidistrict Litigation (R, 486).

During the time from September 8, 1970, to

the final order, all discovery has been stayed,

except for a limited discovery relating to a dis-

qualification motion of defense lead attorneys.

On September 8, 1970, plaintiffs filed their

original complaint seeking redress of their grie-

-10-

vances according to the Sherman and Clayton

Acts and the Civil Rights laws, together with the

Application for Statutory Three-Judge Court;

Affidavit of Disqualification and recusal of the

resident Hawaii U.S. District Court judges; Mo-

tion for Preliminary Injunction; Certificate of

Good Faith of the attorneys, and a Memorandum

of Law, pointing out the necessity for convening

a three-judge court (R. 1-161),

Plaintiffs, by their verified complaint made

Out a case calling fora three-judge district court

made up of judges who were not residents of the

State of Hawaii, The complaint showed how the

police power of the State of Hawaii, through legis-

lative and court action, in matters affecting

public health and the administration of justice,

had been passed into the hands of defendants. It

showed how defendants, acting under color of

state law without constitutional restraints, tyran-

nically and arbitrarily obstructed the delivery of

medical care in Hawaii and tampered with the

administration of justice in the state and federal

courts on plaintiffs in particular and the public in

effec

general,

There were 94 defendants and in order to

plead a case against each, it required several

pages to plead sufficient facts to show their com-

plex interlocking relationship and concert in ac-

tion and collusion,

The State of Hawaii has nowritten rule, regu-

lation or legislation relating to the practice or

licensing of surgical specialists.

"Every physician or surgeon in the State

of Hawaii, O'Connor said, has the same

license, regardless of his specialty or his

particular ability in certain areas of medi-

cine,

"As far as the practice of individual spe-

cialties in Hawaii, the only system that pro-

tects the citizens of this state today is the

system established and run by the hospitals,

O'Connor said." (R, 1352.)

The complaint shows a lawless pattern of

practice for more than 10 years in as short and

plain a statement as possible. The complaint

shows that defendants, armed with state police

power determine which physician will be allowed

to practice in the defendant Hill- Burton hospitals

along racial, religious and national origin lines,

-12-

and which physicians will be protected from

claims of medical malpractice by the victims of

said medical malpractice through control of the

Medical Practices Committee of the Medical

Society. See R. 1856,

The pleading shows the patients had selected

a truly competent, highly skilled, exceptionally

well-trained specialist (R. 26-33), and that "he

has been discriminated against because of his

religion as he is the only neurological surgeon in

the private practice of medicine of the Jewish

Faith in the State of Hawaii," (R. 61.)

The complaint sets out jurisdictional allega-

tions of the three-judge court act, the equal pro-

tection of the law violatians, and the violations of

the Sherman and Clayton Acts, not as conclu-

sions, but as facts. The facts show a ten-year

pattern of practice that was unreasonable, arbi-

trary and invidiously discriminatory against the

plaintiffs and that the plaintiffs were treated dif-

ferently than others under similar circumstances

and conditions, See R, 61,

Plaintiffs alleged the statutes involved and as

-13-

construed and applied were part of the legislative

action that unconstitutionally delegated the police

power of the State to the defendants, who carried

on as a secret police force in the specialized

fields of medical care, Paragraphs 56-67 at

pages 68-74 of the complaint contain the required

allegations that the statutes are unconstitutional

for a multitude of good and sufficient reasons

substantial in nature and sufficiently debatable to

require a three-judge court (R. 152), These alle-

gations are summarized in headnotes in the Table

of Contents at R, 10-11. This Table of Contents

prefaces the complaint. In short paragraphs the

Table of Contents succinctly sets forth the essen-

tials of the claims asserted in this complaint of

103 pages. The Table of Contents is cross-~

referenced as to page and numbered paragraphs

of the complaint.

Itwas alleged that the State through its legis-

lature had allegedly set up a department of health

to implement the Acts of Congress (42 U.S.C.,

Secs. 291, et seq.) "to make all types of hospi-

tal and medical facility services reasonably

-14-

accessible to all persons in the State" (Sec. 323-

17, H.R.S.). It was alleged that the defendants,

in carrying out their secret police power in mat-

ters of public health, had set The Queen's H Os pi-

tal up as "the hub" or "Sun" of "the system of

‘satellite’ hospitals. . . and through said system

thedefendants by this combination and conspiracy

control the peer committees of the 'Sun' hospi-

tal," (R. 79.)

It was alleged that this combination, armed

with this secret police power, ‘'act together to

enforce the cons piracy of silence" (R, 79) in state

and federal courts,

The insurance agents O'Connor, Waddoups

and Anthony were the legal advisers to the peer

committees of the "Sun" hospital "and in August

1966" while they were Dr. Silver's lawyer, they

became the legal advisers ''to the satellite hospi-

tal, Defendant Castle Memorial Hospital" and

combined with the other defendants to discrimi-

nate against their own client, Dr. Silver, and

deprive plaintiffs Freys and others of fair trials

in Hawaii,

-15-

Defendants, it is alleged, are able to obstruct

the administration of justice in state and federal

courts in Hawaii (R, 60-63).

It is alleged that the defendants compel the

patients herein to either forego their right to

have the services of their duly licensed physician

in whom they have great trust and confidence or

be evicted from said hospitals or arbitrarily

compelled to take the services of adefendant doc -

tor (R. 781, R. 1895-1897, Affidavit of Herbert

Kealoha),

This power per mits defendant insurance com-~

panies and their customers and agents, defend-

ants herein, acting in concert to boycott the

advertisement, sale, delivery and use of the Dr.

Silver Four-Way Stopcock" (R, 30, 576) and to

unreasonably burden interstate commerce by

compelling patients to use crowded airlines and

congested national highways to travel to hospitals

that are distant from their homes and away from

their resident island in order to have the services

of their selected medical specialists (R. 91-96).

This is a hazard to life and the danger of delay

-16-

can and does cause extreme hardship, undue suf-

fering and, at times, irreversible injury and

death, See Vol. 14, October 10, 1971, for an

example,

Since all specialists must be trained outside

the State and District of Hawaii, the defendants

are allowed to regulate and control the move-

ment of specialists to Hawaii, The defendants

have never invited a Jew or Negrowho is a neuro-

surgeon, tc come to Hawaii, These defendants

acting inconcert control and deter mine what spe-

cialist will be invited to Hawaii to work in the

established physician corporations and partner -

ships with the automatic right to use of the

facilities of the defendant hospitals while they are

immune to the one-year licensure (R, 35-37 and

R. 58-59), The defendants are permitted to

harass and to force competent independent spe-

cialists to abandon or leave Hawaii (R. 64), with

the result that the patients of the specialist

forced to leave Hawaii must submit to the ser-

vices of the defendant physicians or their partners

-17-

or fellow stockholders,

The medical malpractice insurance compan-

ies and their lawyer-agents and customers

(defendants) are per mitted to protect the medical

malpractice repeater and to continue such medi-

cal malpractice repeater as a member of the

peer review committees and a cash paying

customer in the m@dical malpractice insurance

industry (R, 59-61).

The complaint shows that the State of Hawali

confers immunity upon the secret police in the

peer committees if (1) the member was autho-

rized to perform in the manner in which he did;

and (2) the member acted without malice after

having made a reasonable effort to ascertain the

truth of the facts upon which he acted, | (Sec,

663-1, H.R.S.).

The insurance agent defense lawyers intiml-

date, oppress and destroy a medical expert wit-

ness such as plaintiff, Dr. Silver, and thereby

impede and impair the administration of justice

in the State and Federal courts in Hawaii all as

illustrated by the deposition of Martin Pence,

-18-

Chief Judge of the U.S, District Court, District

of Hawaii (R, 539-568), taken at the written re-

quest of Chief Judge Pence on March 2, 1971, in

the case of Silver vy, Gordon, Civ, No, 27429,

First Circuit Court, State of Hawaii,

Chief Judge Pence explained how he was

encouraged to believe that Dr, Silver had an un-

savory or bad reputation as a medical expert

witness by the lawyers from the medical mal-

practice defense lawfirms and insurance claims

adjusters,

"I say 'most crooked assed' because of a

statement made to me in discussing Dr,

Silver's reputation sometime before by Gene

Beebe when he said of Dr, Silver that Dr,

Silver was smart and that made him a dan-

gerous man because he was a crooked assed

son of a bitch.’ (R, 551.)

Chief Judge Pence gathered this 'reputation"’

of Dr, Silver ''From discussion with attorneys '

(R, 553) "And I think maybe a claims adjuster or

two, '' (R, 254),

Chief Judge Pence had discussed this alleged

"reputation'’ with defendant Dr, Lawrence H,

Gordon sometime in 1966 or at least before

-19-

March 15, 1967, in the Outrigger Canoe Club

Waikiki, Honolulu, Hawaii, at a private luncheon

(see R, 123-125, Affidavit of Disqualification).

It was known at the time the original com-

plaint was drafted that defendants had used the

extra-judicial statements of Chief Judge Pence

at a closed meeting of the Castle Hospital ‘peer

review committee’ against Dr. Silver and Sylvia

and John Frey and others, The Freys had a mal-

practice case pending in the State of Hawali

against defendant, Dr, H, William Goebert and

others,

Plaintiffs asked that both resident judges be

disqualified, Both local judges resisted dis qua-

lification. Plaintiffs sought a writ of mandamus

as to Chief Judge Pence, The Court of Appeals

assigned Hon, Bruce R, Thompson, U.S.D.de,

Reno, Nevada, to hear the disqualification,

Chief Judge Pence was ordered disqualified after

hearing by Hon, Bruce R, Thompson on January

8, 1971 (R. 311).

Judge Tavares did not recuse himself, He

assigned the case to Hon, George H, Boldt, U.S,

D,J., Tacoma, Washington, ''for the hearing and

disposition of such matters in said case as may

properly come before him during the period of

his said assignment. "' (R, 306, )

Judge Boldt decided:

"THE COURT: I propose--unless some-

one objects--to advise Judge Tavares, today,

of the ruling that Ihave made... namely,

that as far as presenting this recusement

motion to me is concerned, I have denied it;

but on the ground that it is his responsibility

to make @ ruling upon it, in the first instance,

That is what I propose to tell him... "

The disqualification of the local federal

judges pursuant to law appeared to be imperative

and the only course open to plaintiffs, The best

impartial or corroborated way to explain this

seems to be by referring to the words used by

Judge Tavares when he withdrew:

» « « especially where the possible

issues are claimed to be numerous, impor-

tant and the law thereon unsettled and if the

plaintiffs' claims be sustained, would affect

many persons and institutions throughout the

entire state,'' (R, 393.)

Judge Tavares ordered all discovery stayed

-21-

(R, 215) and continued the order staying all dis-

covery before he assigned the case to Judge Boldt

(R, 390).

Thereafter on March 8, 1971, Judge Boldt

entered a preliminary order (R, 486) wherein he

deter mined among other things:

"On the record it appears this is a com-

plex case and, as stated at the January 15th

hearing, all proceedings prior to trial will

conform to those recommended in the MAN-

UAL FOR COMPLEX AND MUL TIDISTRICT

LITIGATION unless counsel propose particu-

lar deviations which the Court approves,

Judge Boldt heard motions to strike the com-

plaint on April 23, 1971 (Tr. Vol. 13), Mr.

Hayden C, Covington, one of plaintiffs’ attorneys,

in the course of oral argument, respectfully

addressed the court, and in part, said:

"So it depends on the nature of the case,

and we have got a case here that has extended

over a period of ten years, and 1 say to any-

body, how ¢an you put a gallon in a thimble,

that's what I told Joe Ryan and I still stand

flat-footedly on that statement, We have got

to get our facts before the Court so the Court

can grant us the injunction that we seek even

though it is prejudicial to the defendants, We

didn't make the facts, the defendants made

the facts that we are complaining about, and

they are trying to prolong this thing, drag it

Out and have us wait another ten years to get

relief, and on a conspiracy, these allega-

tions, you have got to plead the overt acts in

connection with conspiracy," (Tr, 76, Vol.

13, )

Another matter was raised due to an emer-

gency (see Tr, 86-89, Vol, 13), The emergency

concerned the mother of Linda yY, Gishi, one of

the plaintiffs herein, Mrs. Gishi's mother,

Hanako Oura of the Island of Maui, had cancer

and desired to havea neurosurgical operation of

the pituitary gland (hypophysectomy) to retard

the growth of cancer cells and thus prolong her

life, She selected Dr, Silver; he sought admis-

sion of Mrs, Oura to Kaiser Hospital, but no

beds were available for her (a non-Kaiser Plan

member), The only publicly-financed hos pital,

adequately equipped for the perfor mance of such

special surgery, was The Queen's Hospital. The

Queen's Hospital would not allow her to use the

facilities if she selected Dr, Silver.

It had been an established fact herein that

The Queen's Hospital,

-23-

"has given an 'ASSURANCE' it will

comply with Title 6 of the Civil Rights Act of

1964, Public Laws 88-352, to the end that

‘no person in the United States shall, on the

ground of race, color, or national origin, be

excluded from participation in, be denied the

benefits of, or be otherwise subjected to dis-

crimination under any program or activity

for which the applicant receives Federal

financial assistance from the Department of

Health, Education and Welfare," (R, 478-

479, )

Plaintiffs filed a Motion for Temporary Res-

training Order, and supporting papers on April

26, 1971 (R, 738-749).

Defendents responded to the aforesaid motion

on April 29, 1971, with Memorandum in Opposi-

tion to Plaintiffs' Motion for Temporary Res-

training Order, and supporting papers (R, 750-

756).

Judge Boldt denied any relief ‘re Hanako

Oura"' (see R, 828, April 29, Entering Order).

The affidavit of Dr, Brown (R, 755) caused

Plaintiffs to investigate the relationship of the

firm of Messrs Anthony, Waddoups and O'Connor

to Kaiser Foundation Hospital, because Dr, Silver

had previously tried to get Mrs, Oura admitted

-24-

to Kaiser Foundation Hospital and had been told

that no beds were available, See R. 832, Affi-

davit of Maurice L, Silver, M.D.

The investigation disclosed that the said law-

yers were the malpractice lawyers for Kaiser

Foundation Hospital, They were and had been the

lawyers assigned by the hospital malpractice in-

surance company to secretly represent Maurice

L. Silver, M.D., from 1964 through 1968, with-

out notice to Dr. Silver, as his defense attorneys

in a "fly-by-night" or "groundless lawsuit" mal-

practice claim against him (R. 829-882). (The

terms "fly-by-night" and "groundless lawsuit"

were terms used by J, Garner Anthony, Esq., to

describe that alleged malpractice action against

Dr, Silver, See pp. 190-191, Tr. Vol. 16,

Nove aber 9, and 10, 1972.)

Once the defendants opened the use of Kaiser

Hospital to Mrs, Oura, she was admitted and Dr.

Silver successfully performed the hypophysec-

tomy (R, 832),

After this surgery, and on May 10, 1971,

-25-

plaintiffs filed a Motion to Disqualify the Law

Firm of Anthony, Waddoups, Hoddick & Brown,

Dennis E,W. O'Connor, J. Garner Anthony, and

Thomas Waddoups, as Attorneys for All Defend-

ants Except Themselves, Affidavit of Maurice L,

Silver, M.D., Memorandum of Points and Autho-

rities in Support of Motion to Disqualify the Law

Firm of Anthony, Waddoups, Hoddick and Brown,

and Its Partmers, Associates and Former Part-

ners and Associates, Exhibits 1 through 14 and

Appendix A.

Judge Boldt never responded to that motion to

dis qualify.

On June 30, 1971, Judge Boldt filed a Memo-

randum Decision and Order Striking Complaint

and Denying Temporary Restraining Order (R.

1666-1673). It is published in Silver _v. The

Queen's Hospital, etal., 53 F.R.D, 223 (1971).

The complaint was stricken nine (9) months

and three (3) weeks after it was filed and in part

reported that the plaintiffs’ lawyers showed a

"Serious lack of professional restraint in publi-

city seeking amounting to an abuse of judicial

-26-

process" (referring to a single instance on Sep-

tember 9, 1970) and failure of plaintiffs' counsel

to draft a complaint for plaintiffs that complied

with the "short and plain" provisions of Rule 8(a).

Plaintiffs were denied all relief,

I, First Amended Complaint

On July 30, 1971, plaintiffs filed their first

amended complaint (less than 42 pages) in obe-

dience to the aforesaid order, Defendants moa ed

to strike for not complying with Rule 8(a), F.R.

C.P. (R. 1729-1779),

On August 27, 1971, plaintiffs filed and

served Plaintiffs' Request for Convening of

Three-Judge Court and Memorandum of Points

and Authorities in Opposition to Motions to Dis-

miss Complaint and Exhibit A (R. 1780-1809).

Defendant Great American Insurance Co,,

the corporation that is the sole owner of defend-

ant First Insurance Co, of Hawaii, Ltd., (and

the malpractice insurer of Defendant hospitals

and ''peer review committee'’ members, the hos-

pital boards and defendant J. Garner Anthony),

filed a motion for summary judgment with memo-

-27-

randum and exhibits (R. 1810-1874).

This motion by Great American for summary

judgment was directed only at any claim by Dr.

Silver (R. 1811, 1818). However, this motion

disclosed a further interlocking relationship of

the defendant Great American that was not here-

tofore disclosed, that reflected upon the admi-

nistration of justice in the state courts of Hawaii.

The lawyer for Great American was Walter G.

Chuck, Esq., who was the personal attorney

appearing for the Chief Justice and each of the

Justices of the Hawaii Supreme Court and broad-

casting his representation by a persmal inter-

view over the radio and in the press (see R.

1948-1949),

The case of Silver v. Castle Memorial Hos-

pital, etal., (May, 1972) 53 Haw, 475, 497 P, 2d

564, referred to by Mr. Chuck in Great Ameri-

can's motion for summary judgment, was then

pending appeal before his own aforesaid clients.

Mr, Chuck's clients wrote the decision in Silver

vy. Castle Memorial Hospital, et al., supra,

-28-

Plaintiffs filed a Memorandum in Opposition

to Great American Insurance Company's Motion

for Summary Judgment and Exhibits A-C (R,

1945-1966),

Defendant William W. T. Won, M.D., also

moved for an alternative motion for more defi-

nite statement (R. 1875-1891),

On September 12, 1971, plaintiffs petitioned

the court and prayed by wayof a Motion for Tem-

porary Restraining Order or Aiternative Motion

for Order to Show Cause, and supporting papers

(R, 1892-1915).

In the affidavits of Plaintiffs Herbert Kealoha

(R, 1895-1897), John F, Frey (R. 1898-1899),

and Freddie M. Harpole (R, 1900-1902), the

plaintiffs tell of the cruel and inhuman treatment

they suffer at the hands of defendants,

While Mr, Freddie Harpole was praying for

relief according to law in the bosom of the U.S.

District Court, he was taken by ambulance to

Queen's Hospital and there deprived of the assis-

tance, care or even consultation by his own phy-

-29-

sician, Dr. Silver, or any other physician than

interns who knew nothing about his case, Mr.

Har pole did not survive such attention.

At the instruction of Judge Boldt, a court re-

porter was present and recorded the proceeding

on October 10, 1971, at Queen's Hospital (Vol.

14 of the transcripts filed with this record).

Judge Boldt gave an oral order over the tele-

phone from his home in Tacoma, Washington to

Mr, O'Connor and Queen's Hospital to allow Dr.

Silver to enter Queen's, examine Mr. Harpole

and act as aconsultant with the staff doctors at

Queen's. The transcript shows how the defend-

ants interpreted Judge Boldt's oral order, Mr.

and Mrs. Harpole were never again allowed the

services of Dr. Silver at Queen's, Mr. Harpole

steadily deteriorated until he died at Queen's and

the court never again granted any relief to Mr.

or Mrs. Harpole or any of the other plaintiffs.

On October 28, 1971, plaintiffs made a Motion

for Protective Order to Protect Class-Action

Plaintiffs Under Civil Rights Act and Rules or

Temporary Restraining Order, and supporting

-30-

papers (R, 2090-2109),

The record shows that no order or directive

of any kind was forthcoming that in any manner

protected the civil rights or the ordinary rights

of the class-action plaintiffs (R, 2094). SeeR.

2107-2108 for the fact that certain patients are

persons with half skulls, holter valves and abnor-

mal EEG's,

In his oral argument of April 23, 1971, Attor-

ney Hayden C, Covington made the following

appeal to Judge Boldt prior to the striking of the

First Amended Complaint:

(By Mr, Covington): "I say your Honor

[Judge Boldt] with the greatest of deference

and respect that this is a dreadful tragedy

upon the people of this State and if this doc-

trine is not nipped in the bud 2nd a stop put to

it, itwill spread throughout the United States,

A man should have the right to make a choice

of his own doctor and his own doctor should

have the constitutional right to operate on

him and save his life. Must he lay there and

die, especially in a hospital that is financed

by public funds as all these hospitals are?"

Tr. 23-24, Vol, 13; see alsoR, 2103.)

The record answered the question of Mr.

Covington, The death of Mr. Harpole is duly

recorded,

@-31-

Volume 14, the court reporter's transcript

of October 10, 1971, of the matter ordered by

Judge Boldt discloses that Mr. Har pole's injuries

arose out of and in the course of his employment.

His hospitalizations wereas an injured employee.

His employer-insurer was Meadow Gold Dairies

Inc, The attorney for Mr. Harpole's employer-

insurer was Mr. Donald Beck, Mr. Beck 4ap-

peared on October 10, 1971, against Mr, Harpole

and adversely to Mr. Harpole's employer.

Hawaii Revised Statutes, Sec. 386-21, gave

Mr, Harpole the right to select his specialist

anywhere in Hawaii,

Hawaii Revised Statutes,Sec. 386-8, required

Mr, Harpole's employer-insurer and its lawyer

to cooperate with Mr. Harpole in any case of

liability of third persons,

Mr, Beck is a partner from the firm of Mr,

Beebe (the lawyer-insurance agent who had in-

formed Chief Judge Pence that Dr. Silver was a

"crooked assed son of a bitch"), These lawyer-

insurance agent-partners were lawyers and

-32-

agents for defendant First Insurance Co, of

Hawaii, Ltd, (the wholly owned subsidiary of

Great American), defendant St, Francis Hos pital,

its religious governing body, its "peer commit-

tee'' members, as well as lawyer-agents for the

very physicians who were mistreating Mr,

Harpole and who refused to consult with Mr.

Harpole's designated specialist,

In the course of Mr, Beck's representation

against Mr, Harpole, he took action against Mr.

FRarpole, This was brought to the attention of

the court (R, 2106):

"MR. BECK: Maybe you and Dr, Silver

could right now give us a waiver that anything

the doctors say to Dr, Silver on a consulta-

tion basis will not be used againsthim.. . "'

(Tr, 10/10/71, Vol. 14, p. 46.)

Plaintiffs sought aid for themselves and for

Mr, Harpole by filing a Reply Memorandum to

Memorandum in Opposition to Plaintiffs' Motion

for Protective Order or Temporary Restraining

Order, and Supporting paper on November 8,

1971. In her affidavit, Mrs. Harpole showed that

the Queen's Hospital had been chartered by the

~-$3-

then Queen of Hawaii to serve foreigners and

natives (Hawaiian) alike as ‘a public hos pital"

(R. 2183) and Mrs. Harpole concluded her affi-

davit with the following:

''That deponent prays to Honorable George

H. Boldt and the United States District Court

for help for her husband and herself and asks

that Queen's Hospital be ordered to per mit

Mr, Harpole to use the facilities of Queen's

and to have his physician, Dr. Maurice L.

Silver, treat Mr, Harpole at said hospital. -

(R, 2184.)

On December 13, 1971, Hon. James A,

Walsh, U.S.D.J. (who was assigned to this case

when President Richard M, Nixon appointed

Judge Boldt Chairman of the Pay Board) filed an

Order Setting Pretrial Hearing and Specifying

Agenda (R, 2185-2186). See Vol, 15.

The First Amended Complaint was ordered

stricken (R. 2311-2312).

The oral motions of plaintiffs for leave to

appeal the ruling to the Ninth Circuit Court of Ap-

peals, were denied as was an oral motion for

continuance of pretrial hearing to per mit plain-

tiffs to seek a review of the aforesaid orders

-34-

by the Court of Appeals,

II, Second Amended Complaint

A Second Verified Amended Complaint was

duly filed February 3, 1972 (R, 2207-2250), as

were supporting papers (R, 2313-2338). Plain-

tiffs respectfully pointed out that:

"The Department of Health has not made

regulations, but it permits these broad laws

to be carried into execution by Defendants.

This results in permitting Defendants to im-

pose penalties upon the Plaintiffs without trial

and without a hearing. . . The Plaintiffs are

punished before they ever get to Court and

when theycomplaint in Court, they are punished

a for complaining.'' (R, 2317-

Again, plaintiffs sought the convening of a

three-judge court (R, 2318). In Count II, the

plaintiffs sought redress of their grievances

under 42 U.S.C., Secs. 1981, 1982, 1983, and

1985(1), (2), and (3), In Count II, Dr, Silver

sought relief under the Sherman and Clayton Acts

against all defendants except Quisenberry, Rom-

son and Morris, The complaint was only 33 pages

long.

On February 11, 1972, Argonaut Insurance

-35-

Co,, the only insurance company insuring doctors

for medical malpractice in Hawaii at that time,

refused to insure Dr, Silver, The reason given

was ‘Since Argonaut Insurance is involved direc-

tly as a party defendant and indirectly as insurer

of parties against whom you have brought suit, it

would be awkward, if not impractical for us to

insure you at this time. . . '' See R, 2372-2373

of plaintiffs' Motion for Temporary Restraining

Order, and supporting papers, filed with the dis-

trict court and duly served March 6, 1972 (R,

2368-2381).

Plaintiffs had asked the district court (Judge

Walsh) to reconsider the motion of plaintiffs that

the certain defendants who are the lead attorneys

for defense be disqualified. On March 6, 1972,

Judge Walsh entered an order denying the plain-

tiffs' Motion for Reconsideration (R, 2383).

Plaintiffs sought a writ of mandamus and the

Court of Appeals issued the Order set forth in

R, 2417-2418. Thereafter, and on July 24, 1972,

Judge Walsh entered an Order Assigning Cause

o96<

to Honorable Russell E, Smith, Chief Judge,

United States District Court for the District of

Montana,

A hearing was held and evidence received

before Hon, Russell E, Smith in Honolulu,

Hawaii, November 9 and 10, 1972, on the motion

to disqualify the said lawfirm and lawyers. The

motion was denied (R, 3148-3159) and a motion

to set aside and reconsider was also denied (R.

2568). A petition for writ of mandamus was

denied (R. 2710).

All motions thereafter were determined on

briefs and without oral argument (R. 2569),

The Second Amended Complaint was dis-

missed on February 20, 1973 (R, 2711-2715),

Plaintiffs were ordered to not filea third amended

complaint as a class, to omit any application for

a three-judge court upon the claimed unconstitu-

tionality of certain Hawaii statutes and that all

parties who are parties only because of some

claimed unconstitutionality of Hawaii statutes be

dropped,

-37-

The district court ordered:

"That the allegations of the complaint be

strictly limited to facts showing the jurisdic-

tion of the court, the facts showing that Plain-

tiff Silver was unlawfully denied hospital pri-

vileges, and the facts showing damage," (R,

2712.)

The district court further ordered that all

allegations with respect to Dr. Silver's 'Four-

Way Stopcock'' be omitted (R. 2713). "That

plaintiffs strictly comply with the provisions of

Fed. R. Civ. P, 8(a)"' (R. 2713), "That the

amended complaint be filed within twenty (20)

days from the date of the filing of this order.’

(R, 2713).

In its concluding paragraphs, the district

court's order contained the following:

"It does appear, however, that Plaintiff

Silver was denied hospital privileges and it

may be that the rights of the other plaintiffs

to a free choice of doctors was impaired, It

may be that plaintiffs were wronged and it

may be that on an antitrust or civil rights

theory this court has jurisdiction, So, rather

than dismiss the action, Iam as a matter of

judicial discipline telling the plaintiffs that if

they wish to continue this action, they must

confine themselves to the area in which I think

their claims (if any they have) most likely

lie." (R, 2714-2715.)

-38-

"If this order is ignored as the previous

orders of the court have been I shall dismiss

the action," (R, 2715.)

The plaintiffs here state that they never ig-

nored any orders of the district court and that the

record shows they worked diligently to comply

with all orders of the court,

il, Third Amended Complaint

The plaintiffs pursuant to the aforesaid order

of Judge Smith, filed and served a Third Amended

Complaint (R, 2717-2740),

Count | is a claim by Dr. Silver of unlawful

denial of hospital privileges in violation of 42

U.S.C., Secs, 1981 and 1983 (R. 2717-2724),

Count II is a claim by Sylvia Frey, Clarence

M, Kane, Herbert Kealoha, and Eugene Clark,

all citizens who have been seriously injured and

who now need the services of their neur ological

surgeon-specialist, They claim that they are

being discriminated against in places of public

accommodation in violation of 42 U.S.C. » Secs,

2000(a) and 2000(d) and they pray for injunctive

relief, They show that the named hospials are

-39-

the only general hospitals in Hawaii serving the

public as general hospitals, as part of the State's

public health plan, These hospitals receive Hill-

Burton funds, as well as other tax monies (R,

2724-2727).

Count Ill is a claim by Sylvia Frey under 42

U.S.C., Sec. 1985(2) and (3) against defendants

for conspiracy to interfere with her constitutional

and federally protected rights (R. 2727-2731).

Count IV is a claim by Dr. Silver against all

defendants under the Sherman and Clayton Acts

(R, 2731-2737).

Defendants filed motions to dismiss the Third

Amended Complaint (R. 2806-2992).

Plaintiffs filed a Memorandum of Law in

Opposition to Defendants' Motions and In Support

of Plaintiffs' Motions, and supporting papers on

April 20, 1973 (R, 2992-3137).

On July 23, 1973, the district court filed an

Opinion and Order, The district court granted

summary judgment as to Count lin favor of some

defendants on a theory that the suit by Dr. Silver

-40-

against Castle Memorial Hospital, et al. (53 Haw.

475, 497 P,2d 564[1972]), was res judicata and

Dr, Silver could not bring a civil rights claim in

the federal court because he did not present a

claim under 42 U.S.C., Sec, 1983 to the state

court (R, 3164),

The district court, in paragraph 2 (R. 3165),

said it denied the motion to dismiss Count I as

against the remaining defendants "but it is o-

dered that the plaintiff within fifteen (15) days

following the filing of this order file an amended

complaint showing each and all of the specific

facts which tend to show that each defendant is

acting under color of state law."' (R, 3165.)

This was Dr. Silver's specific claim.

“As to Count II: The motion to dismiss Count

Il is granted, '' (R, 3166). The patients, all tax-

payers, whose money supported and continue to

Support these public hospitals, were denied any

right to use them if they wished the services of

the only Jew in Hawaii who is a neurological sur-

geon-specialist, and who has applied to these

o4}e

publicly financed hospitals for the privilege to

treat patients at said hospitals. The district

court wrote that it took "judicial notice of Hawaii

Revised Statutes Ch. 414 which does forbid racial

discrimination and does authorize a state agency

to investigate to grant relief. The complaint con-

tains no allegation that there was a compliance

with the notice requirements of 42 U.S.C., Sec.

9000a-3(c)'' (R. 3167). There is no such law in

Hawaii as Hawaii Revised Statutes Ch. 414.

"As to Count III: The motion to dismiss Count

III is granted and Plaintiff Sylvia Frey is denied

allrelief.'' (R. 3168.) This was the conspiracy

claim under 42 U.S.C., Sec. 1985.

"As to Count IV: The motions to dismiss

Count IV are granted and plaintiff is denied ail

relief as to Count IV." This was Dr. Silver's

claim under the Sherman and Clayton Acts (R,

3170).

At the same time, Judge Smith entered an

order denying plaintiffs' request to depose Mrs,

Thelma Reed and he ordered that ‘Judge Tavares'

~42-

order filed December 18, 1970, staying discovery

shall remain in effect until further order of this

(R, 3173.)

!

court, '

Plaintiffs on August 3, 1973, filed a Motion to

Set Aside Opinion and Order and Motion for Re-

consideration of Plaintiffs' Prayers for Injunctive

Relief, and supporting papers (R. 3174-3220),

IV. Fourth Amended Complaint

On August 7, 1973, a Fourth Amended Com-

plaint, as ordered, was filed (R, 3221-3252). Dr.

Silver was the only plaintiff allowed to file the

fourth amended complaint,

On August 10, 1973, plaintiffs filed a Motion

for Rule 54(b) Certification of Finality, and sup-

porting papers (R, 3253-3265), In an accompany-

ing letter to Judge Smith, plaintiffs respectfully

asked Judge Smith to grant the Rule 54(b) certifi-

cation, enclosed a prepared order therefor and

requested that the order be granted before August

20, 1973. This last request was to help plaintiffs

avoid any issue as to time to appeal,

Only defendants Drs, Lowrey and Brainard

-43-

responded to the Motion to Set Aside the Opinion

and Order (R, 3266-3276),

It was stipulated that the parties had until

September 4, 1973, to answer or otherwise plead

to the Fourth Amended Complaint. Judge Smith

approved of this stipulation August 20, 1973 (R.

3278).

On August 22, 1973, Dr, Silver, Sylvia Frey,

Clarence M, Kane, Herbert Kealoha, and Eugene

C, Clark, plaintiffs in the Complaint, First,

Second and Third Amended Complaints, filed

their Notice of Appeal, bond and Description and

Statement of Issues Presented on the Appeal (R,

3282-3296).

On August 30, 1973, without defendants so

much as filing one motion against the Fourth

Amended Complaint, Judge Smith filed an Order

and Judgment (R, 3300-3306), In the Order and

Judgment, Judge Smith wrote:

. . nN my Opinion plaintiffs have had

ample opportunity tostate a claim as required

by the rules; in my opinion they have failed,

and in my Opinion, solely as a matter of dis-

cipline, Count I of the fourth amended com-

plaint should be dismissed without leave to

-44-

amend, IT IS THEREFORE ORDERED that

the defendants and all of them have judgment

against the plaintiffs and all of them and that

the plaintiffs are denied all relief,"’ (R, 3306.)

On September 4, 1973, after: Judge Smith's

above Order and Judgment had been filed in

Honolulu and served on defendants, defendants

initiated the filing of motions to dismiss the al-

ready dismissed Fourth Amended Complaint (R,

3307-3322),

On September 6, 1973, plaintiffs filed an

Amended Designation of Record, Amended Notice

of Appeal, Amended Description, Statement of

Issues Plaintiff-Appellants Intend to Present on

the Appeal, Exhibits "'A'' and '"'B" (R, 3323-3339).

V. History of Appeal to the Ninth

Circuit, Court of Appeals

———

The Ninth Circuit arbitrarily reduced the

claims of Appellants to this denominator:

This action involves Dr, Silver's unsuccess~

ful efforts to secure staff privileges at hospitals

in the State of Hawaii for which he first applied,

unsuccessfully, in 1961."' The court thereafter

said, On appeal actions taken by the respective

-45-

judges in dismissal of specific claims and, ulti-

mately, the action itself present seven issues for

our consideration. '' These are itemized as (a)

Three-Judge District Court; (b) Class-Action;

(c) Antitrust; (d) Civil Rights; (e) Res Judicata;

(f) Claim of Sylvia Frey; and (g) Rule 8.

The Ninth Circuit erroneously concluded that

"there was neither error nor abuse of discretion

in holding the appellants to the requirements of

Rule 8, in holding that they have failed to meet

those requirements, and in holding that in conse-

quence of this consistent and continuous disre-

gard dismissal was appropriate, See Unpublished

Memorandum, Appendix "A".

The Ninth Circuit was clearly wrong in decid-

ing the Three-Judge District Court issue. They

misconstrued and misapplied Phillips _v. United

States,312 U.S. 246 (1941).

Appellants argued that State laws as con-

strued and applied passed the police power over

to the hospital corporation boards, These boards

were dominated and controlled by the multina-

-46-

tional medical malpractice insurance corpora-

tions. Phillips v. U.S., 312 U.S. 246 (1941),

cited in the Unpublished Memorandum Decision

applies to the ‘lawless exercise" of properly

delegated authority. The Phillips ruling was

misunderstood and misapplied in this case,

To illustrate more clearly, Hawaii does not

license specialists. Hawaii pases such ''‘licen-

sing’ powers to the corporation boards of hospi-

tals, Thus, if a doctor testifies for a human

victim of medical malpractice, he will not be

licensed" by these corporate boards to practice

according to his special surgical credentials and

training in their hospitals, Further, his lack of

this special license has been used to discredit

him as a witness in the U.S, District Court, Dis-

trict of Hawaii,

In essence, the actual State ''licensing" sys-

tem corrupts and dominates the administration

of justice as to the ill and injured in the U.S,

District Court, District of Hawaii,

Congress designated a Three-Judge Court for

-47-

just such an unconstitutional situation.

CLASS ACTION. The issue is: Are the vic-

tims of medical malpractice in the State of Hawaii

who seek to receive corrective care and treat-

ment from an independent physician, members of

one defined class? The only reasonable answer

is Yes,'' The action of the defendants groups

them into a definable class also,

The fact that one victim of medical malprac-

tice is more severely crippled than another can-

not be enough to destroy the class. The class is

also comprised of those who are systematically

cheated out of a fair trial in State and Federal

Courts as 2 result of the collusion of defendants.

ANTITRUST: The Court wrote:

‘In the first four complaints, Dr. Silver

claimed damages and sought injunctive relief

: _ !

under the Shermén and Clayton Acts, '

The Court then wrote in parenthesis: ‘(The

ervices rendered clearly were not in interstate

Ww

Goldfarb et ux. v. Virginia State Bar, etal.,

decided June 16, 1975, has set aside that narrow

o4G<

construction of the facts and the law.

"In the modern world it cannot be denied

that the activities of lawyers play an impor-

tant part in commercial intercourse, and that

anticompetitive activities by lawyers may

exert a restraint on commerce." _

Attached hereto as Appendix "'G", is the re-

cently published (June 20, 1975) report that

"PROTESTING DOCTORS INTEND TO REFUSE

KONA TOURISTS." The Court took no notice of

the fact that Hawaii is a tourist mecca. Tourism

is its largest industry. Hawaii's hogpitals are

part of the total service provided in interstate

commerce for tourists.

Interisland commerce is interstate commerce

according to all other decisions of the Ninth Cir-

cuit, See C,A,B, v. Island Airlines, Inc., 235 F,

Supp. 990 (D, Haw, 1964), aff'd, 352 F. 2d 735 (9th

Cir, 1965), Hawaii residents and tourists must

travel in interstate commerce to get to the major

hospitals of Hawaii (defendants herein),

Riggall v, Washington County Med. Soc., 249

F’, 2d 266; Elizabeth Hospital Inc. v. Richardson,

269 F,2d 167, are no longer vital law due to the

-49-

Goldfarb decision,

CIVIL RIGHTS. Without accepting any of the

complaints and without requiring defendants to

answer, the Court has dismissed all the Civil

Rights claims of Appellants.

Both the patients and their physician claimed

the hospitals were an integral part of the State of

Hawaii hospital plan,

There was much more than mere participa-

tion in Hill-Burton funds. In Silver v. Castle

Memorial Hospital, et al., 53 Haw. 475 (1972),

the Hawaii Supreme Court had determined that

these hospitals were at least quasi-public.

The court here refused to look at the facts

which distinguish this case from Ascherman v,

Presbyterian Hospital of Pacific Medical Center,

Inc,, 507 F.2d 1103 (9th Cir, 1974), The undis-

puted facts here establish that State of Hawaii

regulations through which the federal monies

were funnelled, specifically encourage 4 policy

of religious, racial and national origin segrega-

tion by doling out millions of dollars to corpora-

-50-

tions that were exclusively controlled by racial,

national origin and religious groups to the exclu-

sion of minorities, An invidious system of State

Supported segregation was set forth in the alle-

gations of each complaint as required by law,

Furthermore, The Queen's Hospital was char-

tered as and was dedicated as a public hospital,

See Appendix "I, photographic record from the

Archives of State of Hawaii Health Department,

The finding that The Queen's Hospital is a private

hos pital was prejudicial error,

The conspiracy directed at the Appellants was

to punish the physician and his patients for the

physician's use of his freedom of speech to in-

form them of his medical and surgical findings.

The conspiracy was also directed at obstructing

the due administration of justice in the State and

Federal courts in Hawaii and elsewhere, The

cons piracy also punished the patients by depriving

them of the use of the public hospital facilities

because they had selected a physician and sur-

geon who was from a tiny minority in Hawaii,

-5l1-

Dr. Silver is of the Hebrew faith. See Collins v.

Hardyman, 341 U.S, 651 (1951) (dissenting Opin-

ion), and U.S. v. Guest, 86 S.Ct. 1170, 16 L, Ed.

2d 239 (1966); and Adickes v. Kress & Co,, 398

U.S. at 208-210.

The Unpublished Memorandum Decision on its

face appears to bea stark departure from the law

as pronounced in Corsican _v. Productions &

Pitchers, 338 F.2d 441 (1964 C.A. 9th).

"The accepted rule that a complaint

should not be dismissed for failure to state a

claim unless it appears beyond doubt that

plaintiff can prove no set of facts in support

of his claim which would entitle him tore-

lief, Conley v. Gibson, 355 U.S. 41, 785.

Ct. 99 L.Ed, 2d 80 (1951)... precludes

dismissal for insufficiency of the complaint

except in the extraordinary case where the

pleader makes allegations which show on the

face of the complaint some insuperable bar

to relief, ''

Enforcement of Civil Rights in the Courts of

the United States are extremely difficult. In

Ascherman, supra, the Court of Appeals, Ninth

Circuit, demonstrated an anger of sorts at the

decisions from other Circuits that enforced 42

U.S.C., Secs. 1983 and 1985, In his concurring

-52-

Opinion in Ascherman, C, J

Duniway severely

— a ee

criticized the decisions from the other Circuits

He concluded:

!

These cases, [ think, are wrong, and we

are not following them here, "' |

e issue iti

On ssue on this Petition to the Supreme

Court clearly is whether C, J. Duniway speaks

with the authority of the Supreme Court of the

United States. A citation of "cert. den." by the

Uni tates S ;

ited States Supreme Court will be soconstrued

RES JUDICATA, The court dismissed the

aa , : - :

mplaint because it did not contain simple and

concise statements of the claims. How then did

the court review the complaint and determine that

certain facts were subject to res judicata, and

> ,

while all discovery was stayed? Res judicata

cannot be assessed against:

ssessed againsta purely federal claim

like the Sherman Act, State courts do not en-

force the Sherman Act; that is a function of the

Federal Courts. Furthermore the acts com-

plained of were after the decision upon which res

judicata was based,

CLAIM OF SYLVIA FREY. The court found

that ''The conspiracy was directed at Mrs, Frey,

not as a member of a class or race but as a sin-

gle plaintiff in a single malpractice action. Such

is not the stuff of which civil rights actions are

made, '

Clearly, the court misunderstood and mis-

apprehended the facts and the law. 42 FR Are

Sec. 1985(2) and (3) are set forth in Appendix

"H" attached hereto,

The denial of equal justice is prohibited by

the Constitution (42 U.S.C., Sec, 1985), Yick

Wo v. Hopkins, (1885) 118 U.S. 356, 370. Sylvia

Frey was a victim of a conspiracy to obstruct the

due administration of justice, She was one of a

class as well as a person, Both she and her phy-

sician have been denied right to trial by jury (as

have all Appellants) asa result of the Unpublished

Memorandum Decision,

RULE 8 ISSUE. Does the Manual for Com-

plex and Multidistrict Litigation alter the re-

quirements of Rule 8?

In Liggett Co. v. Lee, 288 U.S. 517 (1932),

J, Brandeis, dissenting, said that the States were

creating Frankenstein monsters by their corpora-

tion laws,

Thirty years later, in 1962, these Franken-

stein monsters (corporation) were in complete

control of the delivery of medical care, They

were able to corrupt the administration of justice

in the Federal Courts of Hawaii to victims from

medical malpractice by interlocking defense law-

firms and medical clinics with hospital boards

and multinational insurance corporations.

Spelling this out required a complex and com-

prehensive pleading. The Manual for Complex

cases was designed to permit such pleading,

Judge Boldt was in error when he said the

complaint could be read toa jury, It would have

been completely replaced by a pretrial order

carefully drafted under the guidance of the court.

Apart from the impact of the Manual for Com-

plex cases on Rule 8, it is contrary to established

law to use Rule 8 as the basis for closing the

courthouse doors on citizens in the name of judi-

-55-

cial discretion. See Atwood v. Humble Oil &

Refining Co., 243 F. 2d 885, 888 (C.A,. 5th 1958).

't the Federal Rules of Civil Proce-

dure do not require a claimant to set out in

detail the facts upon which he bases his

claim. To the contrary, all the Rules require

is ‘a short and plain statement of the claim"

that will give the defendant fair notice of what

the plaintiff's claim is and the grounds upon

which it rests. The illustrative forms 4p-

pended to the Rules plainly demonstrate this.

Such simplified "notice pleading" is made

possible by the liberal opportunity for dis-

covery and the other pretrial procedures es-

tablished by the Rules to disclose more pre-

cisely the basis of both claim and defense and

to define more narrowly the disputed facts

and issues. ... The Federal Rules reject

the approach that pleading is a game of skill

in which one misstep by counsel may be

decisive to the outcome and accept the prin-

ciple that the purpose of pleading is » facili-

tate a proper decision on the merits.

REASONS FOR GRANTING THE WRIT

This petition shows the Petitioners are inno-

cent victims of hostile and fierce internal judicial

fued and debate concerning (A) procedure; (B) the

inter pretation and application of Civil Rights law

42 U.S.C., Sections 1981, 1982, 1983, 1985, and

2000a; (C) the continued immunity of the "learned

-56-

. 1!

professions’ from the reaches of the Sherman

ct; (D) Three-Judge Court Act; (E) Amendment

I, the fundamental rights of citizens to petition

their courts for redress of grievances; (F) Amend-

ment V, Due Process, and Amendment VII, right

to trial by jury, and Amendment XIII, involuntary

servitude,

I, The Decisions of the Courts Below

Exalted Rule 8(a) Over All Other

Federal Rules of Civil Procedure

and Rejected Long Established

Precedents of This Court and Vio-

lated Amendments I, V, VII, VIII,

and XIII,

Contrary to Rule 8(f), that all pleadings must

be construed so as to do substantial justice and

the decisions of this Court that technical objec-

tions to pleadings are without merit, Radovich

v, National Football League, (1957) 352 U.S. 445,

77 S, Ct. 390, and United States y. Employing

Plasterers' Ass'n,, (1954) 347 U.S. 186, the

lower Federal Courts herein have exalted Rule

8(a)(1) and slammed shut the doors of justice on

these innocent victims. See also Atwood y

Humble Oil & Refining Co. , 243 F.2d 885 (CA 5th

-57-

1958); Spriggs v. Seaton, 271 F.2d 583 (CA 10

1959); Sherman v. Air Reduction Sales Co,, (CA

6th 1958) 251 F.2d 543; Securities and Exchange

Comm. v. Timetrust Inc., (N.D. Cal. 1939) 28

F, Supp. 34, 1 FR Sert, 8a 25 Case 4; Vol, 2A

Moore's Fed, Prac., p. 1703, n. 19.

In spite of directives from this Court that

technical objections to pleadings are without

merit, the lower federal courts revolted against

the authority of the Supreme Court in regard to

the application of Rule 8(a)(1), A special manual

of procedure was adopted and promulgated to

allow the trial judge to takecommand of all com-

plex cases, In spite of that, in this complex

case, the lower courts revolted and struck the

complaints for alleged violations of Rule 8(@)(1).

Because of this obvious judicial revolt against

the authority of Congress and the Supreme Court

Petitioners and their attorneys have no guide-

lines upon which to rely in complex cases espe-

cially in the Ninth Circuit.

-58-

Il, The Decisions of the Courts Below

Showa Hostile and Fierce Judicial

Feud with Respect to the Interpre-

tation and Application of the Civil

Rights Acts.

The language of the Ninth Circuit in this case

and in Ascherman yv, Presbyterian Hospital of

Pacific Medical Center, et al,, 507 F.2d 1103

(9th Cir, 1974), argued the day prior to argu-

ment in this case, demonstrates a judicial out-

rage with those precedent setting cases that

determine when people are deprived of rights

under color of state law, The concluding remark

of his Honor Circuit Judge Duniway in Ascher man

aforesaid, was ''These cases, I think, are wrong,

and we are not following them here.'' Ascher man

is then quoted as authority against these petition-

ers by Judge Duniway,

Thus, one segment of the judicial feud creates

its own precedent, The public sees the reflec-

tion of this judicial feud in the subsequent news-

paper account of how Dr, Ascherman, after 13

years of delayed justice, fostered by this judi-

cial feud, at long last found some justice in the

-59-

constitutional interpretation and application of

law by some judges in the California State Courts.

See Appendix "F" attached.

The victims of the judicial feud herein have

exhausted their State remedy in the Hawaii

Courts. This is their last resort. They rely on

Newman v. Piggie Park Enterprises, Inc., (1968)

390 U.S. 400; United States v. Price, 383 U.S.

787 (1966); Adickes v. Kress & Co,, 398 U.S.

144 (1970); United States v. Guest, 383 U.S. 745

(1966); Conley v. Gibson, 355 U.S, 41 (1951);

Jones v, Alfred H. Mayer Co,, 392 U.S. 409

(1968); Presbyterian Church v. Black Liberation

Front, 303 F.2d 894 (E.D. Mo, 1969); Mullarkey

v. Borglum, 323 F. Supp. 1218 (S.D.N, Y. 1970)

Cypress v. Newport News General and Nonsecta-

rian Hospital Ass'n, , (1967 CA 4th) 375 F. 2d 648,

Simpkins v. Moses H, Cone Memorial Hospital,

(CA 4th, 1963) 323 F.2d 959; Foster v. Mobile

County Hospital Board, (CA 5th, 1968) 398 F. 2d

227; Sams v. Ohio Valley General Hospital Ass'n.

(CA 4th, 1969) 413 F,2d 825; and see Citta _v.

Delaware Valley Hospital, (1970) 313 F. Supp.

-60-

301; Meredith v. Allen County War Memorial

Hospital Commission, (1968) 397 F.2d 33. See

also Chiaffitelli vy, Dettmer Hospital, Inc. , (1971)

437 F.2d 429; Hall vy, Garson, 430 F,2d 430,

439; Birnbaum vy. Trussel, (CA 2d 1965) 347 F.

2d 86,

The Ninth Circuit and the lower Federal Court

rejected the substantive law of the State of Hawaii

that the hospitals involved were quasi-public and

were part of the state public health system. See

Silver v, Castle Memorial Hospital, et al, , (1972)

93 Haw. 475, 497 P, 2d 564,

This case shows that the Civil Rights feud is

not confined to the Archie Bunkers in television

script, but permeates the Federal Judicial Branch

of Government as well. The hostility of a few in

the judiciary should not be allowed to chill the

right of those few who dare to enforce the Acts of

Congress of the United States by petitioning the

Federal Courts for redress,

-6§1-

Ill, The Decision of the Court Below

Flaunts the Authority of This Court

to Declare the ‘Learned Pr ofes-

sions'' Are Not Immune From the

Sherman Act.

The Order of Affirmance and Unpublished

Memorandum Decision with respect to what is

interstate commerce and restraint of trade are

stark departures from the law as set forth in

United States v. American Medical Ass'n., 110

F.2d 703, and rejects the authority of the Sup-

reme Court of the United States as to the reaches

of the Sherman Act in Goldfarb et ux, v. Virginia

State Bar, et al., No. 74-706, decided June 16,

1975. See also Public Utilities Comm. v. Attle-

boro Steam & Electric Co,, 273 U.S. 83 (1927);

United States v. Parke, Davis & Co,, 362 U.S.

29(1959); Eastern States Lumber Ass'n, v. United

States, 234 U.S. 600; American Tobacco Co, v.

United States, 328 U.S. 781 (1946), See also the

British case Pratt & Others v. British Medical

Ass'n., 1K. B, 244 (1918),

The hostility of the lower courts is not

directed solely against petitioners, their lawyers

-62-

and the aforesaid acts of Congress, the revolt is

against the constitutional authority of the Supreme

Court of the United States to establish judicial

precedent,

IV, The Lower Court Has Rejected

the Three-Judge Court Act.

A fair and impartial trial by one judge is just

as acceptable as a fair and impartial trial by

three or three hundred judges. However, if this

case was properly within the jurisdiction of the

Three-Judge Court Act, and Petitioners verily

believe that it was, then the rejection of juris-

diction c onformed with the pattern of judicial re-

jection of the authority of the Constitution and the

Supreme Court of the United States.

V. The Decision of the Court Below

Defies the Authority of Amend-

ment I,

Freedom of Press, Speech, Religion, and

Assembly are totally dependent upon the right and

freedom to petition the government for a redress

of grievances, All rights are totally dependent

upon the right and freedom to petition the federal

-6§3-

courts for redress of grievances, The court be-

low super-imposed an exeggerated inter pretation

of Rule 8(a)(1) upon the First Amendment rights

of the Petitioners therein, The Supreme Court

is respectfully requested to use its supervisory

author ity tore-establish the authority of the First

Amendment and restore the authority of Conley

v. Gibson, 355 U.S. 41 (1957).

VI. The Court Below Has Denied

Petitioners Due Process of Law,

The record in this case is the only one in this

decade where all discovery was stayed thr ou gh

three years of attacks by defense and the plain-

tiffs thrown out of court and their claims declared

to be without merit. It is the only record where

two disqualified district court judges convened a

Two-Judge Federal District Court and their order

of stay of discovery was enforced after the said

two district court judges were dis qualified

according to law. No record in the past decade

is so shamefully devoid of due process. It is the

record of a Star Chamber created by judicial re-

sistance to the Constitution and the authority of

-64-

the Supreme Court of the United States. It is a

recard that shows a judicial enforcement of vio-

lations of Amendment XIII, the supreme law

against slavery and involuntary servitude, It is

a record that shows that illness reduces all hu-

mans within this jurisdiction to the involuntar y

service of the corporations in control of the hos-

pitals. Humans are treated like animals and

herded through hospitals like cattle thr ough hold-

ing pens for the exclusive profit of those few who

claim control of the hospitals and operate them

like plantations,

This record shows the procedure of using

form to subvert substance as used in the Dred

Scott case,

For any or all of the aforesaid reasons, the

Supreme Court is respectfully requested to hear

these Petitioners. You are their last resort.

CONC LUSION

Appellants respectfully pray the Court review

their pleadings and their efforts to petition for

redress of their grievances according to law.

-65-

They respectfully ask the Court to recognize they

are victims of domestic violence imposed upon

them by defendant-respondents thr ough their sys-

tem of control over the courts as well as the

major general hospitals and medical facilities in

Hawaii and the specialized fields of medicine and

surgery. They pray for a hearing, and after

hearing, the lower courts' decisions be set aside

and petitioners' complaints be reinstated, and

for such other and further relief that is within the

jurisdiction of this Supreme Court of the United

States.

DATED: Honolulu, Hawaii, January 21, 1976.

Respectfully submitted:

Honolulu, Hawaii 96813

Designated Lead Attorney

for Petitioners

-66-

APPENDIX "A"

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CRCUIT

MAURICE lL. SILVER, M.D.,

etal,,

Plaintiffs-Appellants,

vs,

QUEEN'S MEDICAL CENTER,

& Hawaii non-profit cor poration,

et al.,

)

)

)

)

)

)

)

THE QUEEN'S HOSPITAL, aka _)

)

)

)

)

Defendants-Appellees, )

)

Nos, 73-3074

73-3075

MEMORANDUM

On Appeal from the United States District Court

for the District of Hawaii

Before: MERRILL, DUNIWAY and INGRAHAM, *

Circuit Judges

Plaintiff-appellant Dr. Maurice Silver is a

neurosurgeon practicing in Honolulu, Hawaii.

Other plaintiffs-appellants are patients of Dr,

* Hon, Joe McDonald Ingraham, Senior U.S.

Circuit Judge of the Fifth Circuit sitting by

designation,

-67-

Silver or spouses of his patients.

Among the defendants-appellees are four hos-

pitals located on the Island of Oahu: Queen's

Medical Center, St. Francis Hospital, Kuakini

Hospital and Castle Memorial Hospital, Indivi-

dual defendants -appellees include the administra-

tors of those hospitals; members of their boards

of directors or trustees; attorneys who have re-

presented two of them; physicians practicing on

Oahu; the Director of Health of the State of

Hawaii; and the administrator and chairman of

the Credentials Committee of Maui Memorial

Hospital, a public institution. Also named are

six insurance companies that have written poli-

cies for hospitals or physicians.

This action involves Dr. Silver's unsuccess-

ful efforts to secure staff privileges at hos pitals

in the State of Hawaii for which he first applied,

unsuccessfully, in 1961. In 1966 Castle granted

him privileges in neurosurgery on probation un-

der observation, In 1967 Castle refused to renew

this privilege and was sued in state court by Dr.

Silver, along with its administrators and trustees

and Doctors Lowrey, Cloward, Reppun, Poulson

and Rose. The complaint alleged common-law

and antitrust conspiracies to deprive Dr. Silver

of staff privileges. After five and one half months

of trial the state court granted the defendants a

directed verdict which, as to the prayer for mo-

ney damages, was upheld on appeal by the Hawaii

Supreme Court, that court finding the contentions

of conspiracy and antitrust violations to be with-

out merit. The supreme court did, however, re-

verse on the issue of equitable relief against

Castle, and on remand the lower court ordered

that Dr. Silver's privileges at Castle be restored.

-68-

. l st ff

| A total of five complaints have been filed in

this action and six district court judges (Judges

Pence, Tavares, Bruce Thompson, Boldt, Walsh

and Smith) have been involved in the proceedin s

to date, The successive complaints have aan

in general, in response to continued objections

by the defendants, upheld by successive district

judges, that there was a failure to comply with

the requirements of Rule 8, Federal Rules of

Civil Procedure, that the complaint contain a

short and plain statement of the claim and that

the averments be simple, concise and direct. In

the course of these attacks on the complaints cer-

tain issues tendered by the plaintiffs have by

court order been disposed of as without merit and

ultimately all plaintiffs, except Dr. Silver, were

eliminated. The fifth complaint was filed by Dr

Silver as the sole plaintiff. It, too, was dis-

missed, this time without leave to amend. On

appeal actions taken by the respective judges in

dismissal of specific claims and, ultimately, the

action itself present seven issues for our consi-

deration,

1, Three-Judge District Court

i In the first three complaints appellants sought

e pea, of a three-judge district court un-

der 28 U.S.C, g@ 2281 and 2284, In dis missing

the third complaint the court finally disposed of

this claim without leave to amend,

Three groups of statutory provisions were

challenged by appellants, As to none of them can

appellants be regarded as aggrieved, As to none

-69-

of them would an injunction advance the interests

of appellants. None can be said to be unconsti-

tutional on its face.

(1) Hawaii Revised Statutes, chapter 453

(Supp. 1973), deals with the issuance and suspen-

sion of licenses for the practice of medi. ine and

surgery. The provisions under attack are typi-

cal of state provisions in this area of regulation.

They require a license, set forth a form of li-

cense, provide for limited and temporary licenses

and set the qualifications for examination, This

chapter can have no adverse effects upon Ur.

Silver. He is already admitted to practice in

Hawaii and his license is not being threatened.

(2) Chapter 323, part Il (1968), deals with

hospitals and medical facilities. Its purpose is

to qualify Hawaii institutions for federal funding.

Authority is vested in the state department of

health to make inspections and prescribe rules

and regulations and take such action is necessary

to comply with the requirements for federal fund-

ing.

(3) Sections 663-1.7 (upp. 1973), and 624-

25.5 (Supp. 1973) (formerly 8 625-15), relate to

peer review committees for dealing with pr ofes-

sional problems. The sections afford a qualified

immunity for any member of such committee,

absent malice, and exempt committee proceed-

ings from normal discovery. They haveno appli-

cation to Dr, Silver's requests for staff privi-

leges. They do not confer immunity on hospitals.

The exemption from discovery is subject to an

exception in the case of one requesting hospital

staff privileges.

-70-

At most the challenge to the legislation pre-

sents issues not as to whether it is invalid, but

as to whether authority it confers is bein uncan-

stitutiona lly exercised, As stated in Philli

United States, 312 U.S. 246, 252 (1941): =

oe

ps4

. ghos an attack on lawless exercise of autho-

rity in a particular case is not an attack upon

the cons titutiona lity of a state conferring the

author ity even though a misreading of the sta-

tute is invoked as justification, At least not

within the congressional scheme of 8 266 [the

predecessor of present 8 2281], " ;

We find no error in refusal to convene a

ir ee- judge court nor lack of jurisdiction in the

Single judge to proceed with the case,

2. Class Action

| Plaintiffs Other than Dr, Silver purported to

br ing Sult as representatives of a class consist-

ing of all present and potential future patients of

Dr. Silver, The court refused to permit the ac-

tion to continue as a class action, holding:

Iam on the present record unable to find

the existence of the facts required by Fed, R

Civ. P, 23 (a)(1), (3), and (4) and Fed. R,

Civ. P, 23(b)(1)(A), and I find that a class

action is not superior to other available me-

thods for the fair and efficient adjudication of

the controversy. It may be that given an op-

portunity to supplement the present record

plaintiffs could demonstrate some possible

reason for the maintenance of a class action

but in view of what has happened here | could

not be convinced that plaintiffs are proper

parties to maintain it, "'

“File

We cannot say that this constituted an abuse

of discretion. The injuries suffered by patients

of doctors for denial of access to hospitals can

be so widely diverse in their extent and circum-

stances that joinder, rather than class action,

can quite reasonably be felt to be preferable.

Further, we cannot help but remark that the

experience of the successive judges in their ef-

forts to secure compliance with Rule 8, Federal

Rules of Civil Procedure (which we discuss

later), itself provides support for the judges' ex-

pressed doubt that these plaintiffs are proper

class representatives.

3, Antitrust

In the first four complaints Dr. Silver

claimed damages and sought injunctive relief un-

der the Sherman and Clayton Acts. These claims

were all dismissed for failure to allege the sub-

stantial and direct effect on interstate commerce

which is necessary for federal jurisdiction. (The

services rendered clearly were not in interstate

commerce. )

This was not error, In Riggall v. Washing-

ton County Medical Society, 249 F.2d 266, 268

(8th Cir, 1957), cert. denied, 355 U.S. 954

(1958), the court stated:

"The mere fact that plaintiff at his location

in Arkansas may be treating other patients

from other states who must travel interstate

does not result in practicing his profession

in interstate commerce as the trans por tation

of such patients is incidental. "

To the same effect are Elizabeth Hos pital,

-72-

Inc. v. Richardson, 269 F.2d 167 (8th Cir, )

as denied, 361 U.S, 884 (1959), and Rebinacn

v. Lull, 145 F, Supp, 134 (N,D,. Ill, 1956),

In John Kalin Funeral Home, Inc. v. Fultz

313 F, Supp. 435 (W.D. Wash. 1970), aff'd 442

F.2d 1342 (9th Cir), cert. denied, 404 U.S. 881

(1971), the district court, affirmed by this court

relied on both Riggall and Elizabeth Hospital in

holding that no direct and substantial effect on

interstate commerce had been shown, We find

no distinction between the factors there asserted

to create such an effect, and in that respect re-

jected by the court, and those asserted here, No

direct or substantial effect on interstate ce

merce has, then, been alleged here,

| Nor do the factors undergo change when ap-

plied to interisland commerce, We thus need nl

reach the question whether inter island amerce

is, in Hawaii, necessarily interstate, ;

4, Civil Rights

Appearing at various points throughout the

‘five complaints are claims that plaintiffs have

suffered violation of civil rights in various res-

pects. These claims ultimately were dismissed

Dr, Silver alleged that he had been deprived

of the right to practice his profession, of the

right professionally to have access to the defend-

ant hospitals, and of the right to equal protection

of the laws in that he had been denied staff privi-

leges because of his religion, Plaintiff patients

alleged that by virtue of the denial of staff pr ivi-

leges to Dr, Silver they had been denied the right

to use of defendant hospitals and to the iol

their choice, With the exception of Dr. Silver's

o73e

claim founded on religion, these claims are not

based on rights guaranteed by the Constitution or

laws of the United States. As to the issue con-

cerning religious discrimination, although of-

fered ample opportunity by leave of court to

amend, Dr. Silver has wholly failed to allege

facts in support of his conclusory allegations.

Further, despite continual urging by the dis-

trict court, there has beenno showing that depri-

vation of rights in the various respects claimed

were under color of state law. The hospitals are

not public, but private, institutions. The receipt

of federal funds under the Hill- Burton Act is not

in itself sufficient to constitute the recipient a

state agency nor torender its conduct action un-

der color of state law. Ascherman v. Presby-

terian Hospital of Pacific Medical Center, Inc.,

507 F.2d 1103 (9th Cir. 1974); id. at 1105 (Duni-

way, J., concurring); Chrisman v. Sisters of St.

Joseph of Peace, 506 F.2d 308 (9th Cir. 1974);

Ward v. St. Anthony Hospital, 476 F.2d 671 (10th

Cir, 1973).

We conclude that dismissal of the civil rights

claims was not error,

5. Res Judicata

The district court ruled that count | of the

fourth complaint was identical to that unsuccess-~-

fully litigated by Dr. Silver in state courts and

thus was barred by res judicata, Appellants con-

tend that the present case covers a different per-

iod of time, including time after that covered by

the state action, However, no new acts were

alleged here on the part of Castle, its saff or

board (parties to the state action), ‘“.stead this

case involved the very acts that gave rise to the

claims advanced in the state action.

Appellants contend that this action is differ-

ent, since discrimination here alleged is founded

on religion, The acts that were the subject of the

state and federal claims were, however, the

same, If plaintiffs in the state action did not

complain that those acts were founded on religi-

ous" discrimination, still that complaint was

available to them. The district court correctly

held that res judicata under these circumstances

applied not only to the issues actually litigated in

state court, but to those that could have been

litigated, Francisco Enterprises vy, Kirby, 482

F.2d 481, 485 & nn. 5, 6 (th Cir. 1973), cert.

denied, 415 U.S. 916 (1974); Flynn v. State

Board of Chiropractre Examiners, 418 F.2d 668

(9th Cir. 1969),

| Appellants contend that public policy should

in this case preclude application of the doctrine

of res judicata, We find no merit in this conten-

tion,

We conclude that holding the claims barred

by res judicata was not error,

6. Claim of Sylvia Frey

In count III of the fourth complaint plaintiff

Sylvia Frey alleged that defendants have con-

spired to deprive her of her right toequal protec-

tion in violation of 42 U.S.C. § 1985(2) and (3).

The court dismissed this count for failure to

state a claim upon which relief can be granted.

The basis for Mrs, Frey's claim was an

alleged conspiracy the purpose of which was to

discredit Dr, Silver as a witness for Mrs, Frey

in a malpractice suit brough by her in state

court, Dr. Silver was one of four doctors testi-

fying on Mrs, Frey's behalf, In that suit judg-

oFG-

ment was rendered against Mrs, Frey and was

upheld on appeal to the Hawaii Supreme Court.

The conspiracy allegedly was accomp’ished by

procuring Dr, Silver's removal from the staff of

Castle Memorial Hospital and then alluding to

that fact in the trial of the malpractice suit. The

district court dismissed the claim on the gr ounds

that the alleged conspiracy was not the kind of

tort for which civil rights remedies are afforded.

The court stated:

"The conspiracy was directed at Mrs, Frey,

not as a member of a class or race but as a

single plaintiff ina single malpractice action,

Such is not the stuff of which civil rights ac-

tions are made,"

We agree, In Griffin v. Breckenridge, 403

U.S. 88, 102 (1971), the Court states:

"The constitutional shoals that would lie in

the path of interpreting 8 1985 (3) as a gener-

al federal tort law can be avoided by giving

full effect to the congressional purpose--by

requiring as an element of the cause of ac-

tion, the kind of invidiously discriminatory

motivation stressed by the sponsors of the

limiting amendment, * * * The language re-

quiring intent to deprive of equal protection,

or equal privileges and immunities, means

that there must be some racial, or perhaps

otherwise class-based, invidiously discrimi-

natory animus behind the conspirators' ac-

tion. The conspiracy, in other words, must

aim at adeprivation of the equal enjoyment of

rights secured by the law toall, (footnotes

omitted), "

-76-

7. Rule 8

Judges Boldt, Walsh and Smith Successively

sought to gain from appellants a complaint which

might be regarded as answerable. The docu-

ments tendered were rambling, verbose, argu-

mentative and crammed with irrelevant conclu-

sory and evidentiary material, Judge Boldt

commented, with reference to the first com-

plaint:

"The Complaint contains many pages of to-

tally unnecessary allegations couched in

argumentative, inflammatory and conclusory

terms. Some of the superfluous allegations

cast gratutious aspersions upon persons not

named as defendants, including various public

Officials and judicial officers because of the

rulings made in other cases, "'

In light of these judicial remarks, plaintiffs '

failure throughout four successive amendments

to meet the requirements of Rule 8 suggests will-

fulness. Even on appeal appellants' position

seems to be not that Rule 8's requirements were

met, but rather that the rule should not be held

to apply to such a complex action as this. Com-

plexity, however, is no justification for such

pleading as is presented here,

Eventually and understandably patience was

exhausted, In dealing with the fourth complaint

the court stated that any amendment should con-

tain specification of acts done under color of

state law, When the fifth complaint was filed the

judge stated:

“There has been a general noncompliance

with the order to conform to Rule 8(a), Count

Il of the fourth amended complaint [i,e. the

fifth complaint] does not, in light of the orders

of the court, sufficiently allege that the acts

done were done under color of state law, For

these reasons, and on my own motion, IT I

ORDERED that Count II of the fourth amended

complaint is dismissed without leave to a-

mend, "'

Count | of that complaint presented a new le-

gal theory, The judge stated:

"At some point a plaintiff owes some obliga-

tion to the court and to the defendants, At

some time the reckless sweep should give

way to the controlled thrust. In my opinion

plaintiffs have had ample oppor tunity to state

a claim as required by the rules; in my opin-

ion they have failed, and in my opinion, sole-

ly as a matter of discipline, Count I! of the

fourth amended complaint should be dis-

missed without leave to amend,

We find neither error nor abuse of discretion

in holding aopellants to the requirements of Rule

8, in holding that they have failed to meet those

requirements, and in holding that in consequence

of this consistent and continuous disregard dis-

missal was appropriate,

Judgment affirmed.

-78-

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Mavrice L. Sitver, M.D., et al.,

“ows | Nos. 73-3074

| Plaintiffs-A ppellants, 73-3075

vs. \

THE Q - ORDER OF

HE QUEEN’S Hosprrat, etc., et al., ;

Defendants-Appellees. AFFIRMANCE

[June 18, 1975]

Before: MERRILL, DUNIWAY and INGRAHAM,®*

Circuit

Judges

For reasons that in our judgment do not warrant their pub-

lication as opinion under standards recognized by this court,! but

are set forth in the accompanying memorandum.

Judgment is affirmed.

FOR PUBLICATION

*Honorable Joe MeDonald Ingraham, Senior U.S. Cireuit J udge of the

Fifth Cireuit, sitting by designation.

. 1See: Rule 21, Rules of the United States Court of A

Ninth Circuit.

Judge Boldt (one of six judges w

district court) published

. with dismissal of the complaint wit

Hospital, 53 F.R.D. 223 (D.Haw. 1

any action there taken and Judge Bo

under review.

bLANAU-WALSH PRINTING CO., SAN FRANCISCO 6-23-75—400

-79-

APPENDIX w o

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAURICE L. SILVER,

M.D., etal.,

Plaintiffs -

Appellants, No, 73-3074

N

No, 73-3075

ORDER

THE QUEEN'S HOS-

PITAL, etc., etal,

)

)

)

)

)

)

vs. )

)

)

)

)

Defendants- )

Appellees. )

)

On Petition for Rehearing

Before: MERRILL, DUNIWAY and INGRAHAM, *

Circuit Judges

The panel as constituted in the above case

has voted to deny the petition for rehearing. The

panel, with Judge Ingraham refraining from

voting, has voted to reject the suggestion for a

rehearing in banc,

The full court has been advised of the sug-

gestion for an in banc hearing, and no judge of

Honorable Joe McDonald Ingraham, Senior

U.S. Circuit Judge of the Fifth Circuit, sitting

by designation,

-80-

the court has requested a vote on the su

esti

for rehearing in banc, —

Fed.R.App. P. 35(b),

The petition for rehearing is denied and the

Suggestion for a rehearing in banc is rejected

-8l-

APPENDIX "'C"'

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

MAURICE L. SILVER,

M.D., etal.,

Plaintiffs, Civil No, 70-3239

ORDER

V.

TAL, aka QUEEN'S

MEDICAL CENTER, a

Hawaii non-profit cor-

poration, et al.,

)

)

)

)

)

)

)

THE QUEEN'S HOSPI- )

)

)

)

)

)

Defendants. )

)

Defendants' motions to dismiss the second

amended complaint are granied. Plaintiffs are

granted leave to file a third amended complaint

upon the following conditions:

1. There be omitted from the complaint any

reference to any class action. 1/

1/ I am on the present record unable to find the

existence of the facts required by Fed. R. Civ. P,

23(b)(1)(a), and I find that a class action is not

superior to other available methods for the fair

and efficient adjudication of the controversy. It

may be that given an opportunity to supplement

the present record plaintiffs could demonstrate

some possible reason for the maintenance of a

class action, but in view of what has happened

-82-

2, There be omitted from the complaint any

application for a three-judge court based upon the

claimed unconstitutionality of certain Hawaiian

statutes and that likewise all parties who are

parties only because of some claimed unconstitu-

tionality of the Hawaiian statutes be dropped from

the action, 2/

3. That the allegations of the complaint be

strictly limited to facts showing the jurisdiction

of the court, the facts showing that Plaintiff Sil-

ver was unlawfully denied hospital privileges,

here I could not be convinced that plMintiffs are

the proper parties to maintain it,

2/ I do not believe that the complaint could be

successfully amended in this regard. The sta-

tutes in question are Hawaiian Revised Statutes

8 323-15(1), (2), and (7), @ 323-20, ® 453-2, -4,

and -7, 6 63-1.7, and 6 625-15, which do not ap-

pear on their face to be unconstitutional, If regu-

lations enacted under them were of state-wide

application (Moody v. Flowers, 387 U.S, 97

(1967); Jones v, Board of Regents, 436 F.2d 618,

619 (9th Cir, 1970) then a three-judge court

might be properly convened, No general regula-

tions enacted under these statutes are set out in

or referred to by the complaint. Rather the com-

plaint contains sweeping conclusions which can be

inter preted to allege that some actions done

under the color of statutes by individuals deprive

plaintiffs of some constitutional rights. 28 U.S.C,

88 2281-2284 were not designed to reach such a

case,

and the facts showing damage, 3/

4, That any allegations with respect to Dr.

Maurice Silver's "four-way stopcock’ be omit-

ted. 4/

5. That plaintiffs strictly comply with the

provisions of Fed, R. Civ. P. 8(a).

6. That the amended complaint be filed with-

in twenty (20) days from the date of the filing of

this order,

By way of explanation:

This action was filed in September 1970, On

June 30, 1971, the Honorable George A, Boldt

struck the complaint because it did not conform

3/ The present complaint contains general alle-

gations to the effect that defendants are cons pir -

ing to use the laws of Hawaii as immigration laws

which in effect deprive doctors of the right to

freely practice and patients the right to freely

choose, If this is so, still Plaintiff Silver is in

Hawaii, has practiced there, and has only a citi-

zen's concern as to the conspiracy to restrain

migration to Hawaii, A resolution of these pro-

blems is better left to some doctor upon whom

the burden of these conspiracies would fall.

4/ This controversy seems to be separate fr om

the controversy revolving around the hospital

privileges. I seriously doubt that most of the

defendants named have any conceivable relation-

ship to a "stop-cock" conspiracy. If there is

such a conspiracy it maybe the subject of a sepa-

rate suit.

-84-

to the requirements of Fed. R, Civ, P, 8(a).

The opinion is sued in connection with the orger

in clear language stated the requirements of the

rule, the reasons for it, and the duty of lawyers

and litigants with respect to it. A first amended

complaint, shorter than the original but essenti-

ally no better, was filed. The Honorable James

A, Walsh struck that complaint for the reason

that it likewise did not conform to the require-

ments of Fed, R, Civ, P. 8(a), Now a third com-

plaint is filed, somewhat shorter than the second

but essentially no better. It would be almost im-

possible to answer it, Between September 1970

and February 1973 a file about 12 inches thick

has been built up and even so this case is not

Substantially closer to trial today than it was

when it»was filed. All of this is costly to plain-

tiffs and to defendants (many of whom one sus-

pects should not be named), I think that the

parties to an action and the courts are entitled

to have the action proceed according to the rules.

As Judge Boldt said in his opinion "neither the

Court nor opposing counsel should be required to

expend time and effort searching through lar ge

masses Of conclusory, argumentative, evidentiar y

and other extraneous allegations in order to dis-

cover whether the essentials of claims asserted

can be found in such a melange, "

I think that at some point a court is justified

in dismissing a case with prejudice if a plaintiff

who seeks relief through the court is unwilling to

conform to the established rules, and it is my

Opinion that this court would now be justified in

dismissing this action for disciplinary reasons,

It does appear, however, that Plaintiff Silver

was denied hospital privileges and it may be that

-85-

the rights of the other plaintiffs toa free choice

of doctors was impaired, It may be that plain-

tiffs were wronged and it may be that on an anti-

trust or civil rights theory this court has juris -

diction. So, rather than dismiss the action, I

am as a matter of judicial discipline telling the

plaintiffs that if they wish toc ontinue this action

they must confine themselves to the area in which

| think their claims (if any they have) most likely

lie,

If this order is ignored as the previous orders

of the court have been I shall dismiss the action,

DATED this 15th day of February, 1973.

/s/ Russell E, Smith

Russell E, Smith

United States District Judge

-86-

APPENDIX "Dp"

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

MAURICE L, SILVER,

M.D., etal.,

Plaintiffs,

Civil No, 70-3239

Vv.

OPINION AND

ORDER

THE QUEEN'S HOSPI-

TAL, aka QUEEN'S

MEDICAL CENTER, a

Hawaii non-profit cor-

poration, et al,,

Defendants,

ttt ee

As to Count I

1, The motion to dismiss Count I filed by the

defendants Castle Memorial Hospital, John J,

Lowrey, Ralph B, Cloward, J, I, Frederick Rep-

pun, Don E, Poulson, Robert A, Rose, Perry

Sumida, Charles Yamashiro, Marvin C, Midkiff,

and A, G, Streifling is considered with the affi-

davit of John A, Hoskins and is treated as a mo-

tion for sumrary judgment. The motion for

Summary judgment is granted, and as to said

defendants the plaintiff is denied all relief on

Count I,

It Appears that these defendants were defend-

ants in a dan®ge suit filed by plaintiff herein in

-87-

the state courts of Hawaii, One of the purposes

of that suit, as of this one, was torecover da-

mages because plaintiff was denied hospital pri-

vileges in the Castle MemorialHospital. Follow-

ing a trial, judgment was entered denying money

damages, and that portion of the judgment was

affirmed on appeal,1/ Count I of the complaint

in this case in essence presents the same grie-

vance, i.e, that plaintiff was deprived staff pri-

vileges in the Castle Memorial Hospital. To

sustain federal jurisdiction the instant case

alleges that plaintiff was under color of state law

deprived of equal protection because he was Jew,

There is some indication that the racial issue

was injected into the trial in the state court but,

whether it was or not, the basic subject matter

of the state suit and this suit is the same and

plaintiff might have presented as an additional

theory of recovery his claims under 42 U.S.C.

8 1983, State courts have concurrent jurisdiction

of suits of a civil nature arising under the Con-

stitution and laws of the United States, except

where jurisdiction has been restricted by Con-

gress tothe federal courts, There is no congres-

sional restriction of-suits under 42 U.S.C, 81983,

Grubb v. Public Utilities Commission, 281 U.S.

470 (1930) is authority for that proposition and

also for the proposition that "a judgment upon

the merits in one suit is res judicata in another

where the parties and subject maiter are the

same, not Only as respects matters actually pre-

sented to sustain or defeat the right asserted,

but also as respects any other available matter

which might have been presented to that end.

1/ Silver v, Castle Memorial Hospital, 53 Haw,

475, 497 P, 2d 564 (1972),

-88-

Baltimore S.S, Co, y, Phillips, 274 U.S. 316,

319; United States y, Moser, 266 U.S. 236, 241;

Cromwell v, County of Sac, 94U.S, 351, 352."

2. The motion to dismiss as to Count I is

denied as to all defendants not named in para-

graph 1 above, but it is ordered that the plaintiff

within fifteen (15) days following the filing of this

order file an amended complaint showing each

and all of the specific facts which tend to show

that each defendant is acting under color of state

law,

| I am of the opinion that the receipt by a hos-

pital of Hill-Burton funds is not alone sufficient

to make the acts of the hospital acts done under

color of state law. I will follow Mulvihill vy,

~ Julia _L, Butterfield Memorial Hospital, 329 F,

Supp. 1020 (S.D.N.Y. 1971). If there are facts

Which would tend to throw this case into the am-

bit of Simkins v, Moses H, Cone Memoria] H os -

pital, 323 F.2d 959 (4th Cir. 1963), cert, denied,

376 U.S, 938 (1964), they should be set forth, I

have with some reluctance denied the motion to

dismiss because of the blanket allegation that de-

fendants acted under color of state law. If the

hospitals involved are acting under color of state

law that would not involve the individual defend-

ants except to the extent that each of them did

some ac* under the authority granted them by the

nospital, It is not enough that a doctor was a

member of a hospital staff or of a peer committee

unless that doctor did some affir mative act under

color of state law which discriminated against

plaintiff,

-89-

As to Count II:

The motion to dismiss Count II is granted.

-—-——<—e wee

In Count II plaintiffs seek injunctive relief.

Jurisdiction is clairmed on the basis of 42 U.S.C.

§ 2000a-6(a) and (b) and 28 U.S.C. 88 1331 and

1343(3).

Perhaps, if a hospital is a place of public

accommodation, which I do not decide, (42 U.S.C.

§ 2000a (b) ) the broad and sweeping allegations

of the complaint would be sufficient if there had

been a compliance with the provisions of 42

U.S.C. @ 2000a-3(c),

I take judicial notice of the law (Hawaii Re-

vised Statutes Ch. 414) which does forbid racial

discrimination and docs authorize a state agency

to investigate to grant relief, The com plaint con-

tains no allegation that there was a compliance

with the notice requirements of 42 U.S. C.

g 2000a-3(c).

If it is a fact that the notices required by 42

U.S.C. § 2000a-3(c) have been given, Plaintiffs

may within fifteen (15) days following the filing

of this order file an amended complaint stating

such fact. In this connection the attention of

counsel is directed to Fed,.R.Civ. P. 11. If the

notices were not given plaintiff shall not file an

amended complaint and uponadvise of counsel

for defendants that an amended complaint has not

been filed within the time allowed I will dismiss

Count H,

If an amended complaint is filed it shall

-90-

clearly disclose the theory upon which plaintiffs

will proceed, Are plaintiffs deprived of services

because of their race? Or is the claim that they

are deprived of services because Dr, Silver may

not practice in the hospitals, and since they will

not employ any other doctor, they are deprived

of hospital services? Plaintiffs will concisely

allege sufficient facts so that it may be ascer-

tained exactly what each defendant did,

As to Count III:

The motion to dismiss Count III is granted

and Plaintiff Sylvia Frey is denied all relief,

Plaintiff asserts jurisdiction under 42 U.S.C,

8 1985(2) and (3), and 28 U.S.C. 88 1331 and

1343(1), (2), (3), and (4),

Plaintiff unsuccessfully prosecuted a mal-

practice case against some of the defendants in

this case, She now alleges there was a conspi-

racy, the purpose of which was to discredit Dr.

Silver who was a witness for her in the malprac-

tice suit. This conspiracy was accomplished by

procuring Dr, Silver's removal from the staff of

Castle Memorial Hospital and then alluding to

that fact in the trial of her malpractice case,

Such a conspiracy directed at plaintiff would be a

tort but not the kind of a tort for which civil

rights remedies are afforded. In Griffin v.

Breckenridge, 403 U.S, 88 (1971) the court said

at page 102:

. The constitutional shoals that would lie

in the path of interpreting # 1985 (3) as a gen-

»Si«-

eral federal tort law can be avoided by giving

full effect to the congressional purpose--by

requiring, as an element of the cause of ac-

tion, the kind of invidiously discriminatory

motivation stressed by the sponsors of the

limiting amendment. . . . The language re-

quiring intent to deprive of equal protection,

or equal privileges and immunities, means

that there must be some racial, or perhaps

otherwise class-based, invidiously discrim-

inatory animus behind the conspirators' ac-

tion. The conspiracy, in other words, must

aim at a deprivation of the equal enjoyment

of rights secured by the law to all,

(Footnotes omitted, )

While the complaint contains sweeping alle-

gations of conspiracies to violate plaintiff's

rights to equal protection, the fact is that even if

the allegations of the complaint were proved they

would show as to Plaintiff Frey nothing more

than a conspiracy to diminish Dr, Silver as a

witness on plaintiff's malpractice suit. The con-

spiracy was directed at Mrs, Frey, not as a

member of a class or a race, but as a single

plaintiff in a single malpractice action, Such is

not the stuff of which civil rights actions are

made,

There is no federal question jurisdiction, 28

U.S.C. 8 1331. Unless it could be said that the

right sued upon originated in the civil rights sta-

tutes above mentioned plaintiff's rights do not

stem from federal law and the case does not pre-

sent a federal question, See California v, Gene-

ral Motors Corp., 431 F, 2d 732 (9th Cir, 1970).

-92-

As to Count IV:

The motions to dismiss Count IV are granted

and plaintiff is denied all relief as to Count IV,

It is essential to an action under the Sherman

Act (15 U.S.C. § 1) that the conspiracy com-

plained of be in restraint of trade or commerce

among the several states, It is alleged that the

hospitals involved are within interstate com-

merce in that they are used by tourists traveling

in interstate commerce and that drugs and medi-

cines used move in interstate commerce, There

is no substantial difference between the allega-

tions here and those in Elizabeth Hospital, Inc.,

v. Richardson, 269 F.2d 167 (8th Cir. 1959),

cert. denied, 361 U.S. 884 (1959), and for the

reasons stated by the Court of Appeals for the

Eighth Circuit, I am of the opinion that the com-

plaint fails to allege a cause of action under the

federal antitrust laws, See also Riggall v, Wash-

ington County Medical Society, 249 F. 2d 266 (8th

Cir. 1957), cert. denied, 355 U.S. 954 (1957),

Plaintiff seeks to distinguish Elizabeth Hos pi-

tal and Riggall on the ground that in those cases

there were no claims of per se violations of the

Sherman Act, such as price fixing. It is alleged

here that one of the purposes of the conspiracy

was to fix prices. True, the language of the opi-

nions in those cases does indicate that there were

no claims of price fixing, but | am of the opinion

that such language was not necessary to the de-

cisions, It is true that a local conspiracy to fix

the price of goods moving in interstate commerce

is a per se violation of the Sherman Act (Las

Vegas Merchant Plv mbers Association v, United

-93-

States, 210 F.2d 732 (9th Cir, 1954), cert, de-

nied, 348 U.S. 817 (1954) ), but it is also true

that a conspiracy to fix prices of goods which are

not moving in interstate commerce does not of

itself operate to extend jurisdiction under Sec-

tions 1 and 2 of the Sherman Act, In Page v.,

Work, 290 F.2d 323 (9th Cir. 1961), cert. denied,

368 U.S. 875 (1961), the court said at page 331:

. . Appellant argues that when charges of

price fixing and territorial division of a mar-

ket exist at a loca] level on a produce which

never enters the flow of interstate commerce,

nevertheless a per se violation of Section 1

has been made out, and that federal jurisdic-

tion attaches, and that the amount of inter-

state commerce affected by such restraints

is immaterial, The so-called qualitative test

of the illegal per se doctrine does not itself

operate to extend federal jurisdiction under

Sections 1 and 2 to purely local restraints

applied at a local level to a product which

never enters into the flow of interstate com-

merce. . « «

Here, of course, all the services involved are by

necessity rendered in the hospitals and can in no

way enter the flow of interstate commerce,

Additionally plai‘iff claims that persons

seeking medical services travel over interna-

tional waters between islands. The fact, if it is

a fact, that patrons of defendants travel over in-

ternational waters does not alter the result, The

State of Hawaii consists of the several islands,

their appurtenant reefs and territorial waters,

Act of March 18, 1959, Pub. L. No, 86-3, 73

Stat. 4. Travel from one island to another does

-94-

not constitute the "trade or commerce among the

several states or with foreign natims” which is

essential to Sherman Act jurisdiction,

DATED this 20th day of July, 1973.

/s/ Russell E, Smith

Russell E, Smith

United States District Judge

-95-

APPENDIX "E"

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

MAURICE L. SILVER,

M.D., etal.,

ee

Plaintiffs, Civil No, 70-3239

ORDER AND

JUDGMENT

Vv.

THE QUEEN'S HOSPI-

TAL, aka QUEEN'S

MEDICAL CENTER, a

Hawaii non-profit cor-

poration, et al.,

Defendants.

i

This case has from the beginning been a judi-

cial nightmare, It involves the relationship of

the plaintiff with the hospitals and doctors of

Hawaii and is primarily based, in all of the mul-

tiple legal theories that have been advanced, on

the fact that the plaintiff Silver has been deprived

of the right to practice his professionas a neuro-

surgeon in the major hospitals in Hawaii,

Judge Boldt, Judge Walsh, and I! have stricken

or dismissed complaints for failure to comply

with Fed. R. Civ. P. 8a). Im each case the

reasons for the action taken have been stated and

plaintiffs have been admonished to follow the

rules.

On July 23, 1973, I entered an opinion and

order. On August 3, 1973, plaintiff filed a mo-

-96-

tion to set aside that order. On August 7, 1973

a fourth amended complaint was filed. On August

10, 1973, a motim to certify the finality of the

orders of July 23, 1973, was filed. Although

there was no certification under 28 U.S.C, § 1292

(b), on August 22, 1973, a notice of appeal di-

rected to the court's order of July 23, 1973, was

filed, and on August 27, 1973, further papers re-

lating to the appeal were filed, 1/

Plaintiffs complain that by granting leave to

amend the court has postponed their rights to

appeal and has in effect deprived them of due

process, With this in mind and also having in

mind the procedural jungle into which the rather

peculiar series of filings may lead us, I make

the following orders:

AS_TO COUNT | OF THE THIRD AMENDED

COMPLAINT AND COUNT Il OF THE FOURTH

AMENDED COMPLAINT.

1. For the reasons stated in the order of

July 23, 1973, the summary judgment therein

granted is in all respects confirmed as to the

defendants Castle Memor ia] Hospital, John J.

Lowrey, Ralph B, Cloward, J. I, Frederick

Reppun, Don E, Poulson, Robert A, Rose, Perry

Sumida, Charles Yamashiro, Marvin C. Midkiff

and A, G, Streifling.

| 2. In the order of July 23, 1973, the court

directed plaintiff to file an amended complaint

showing the specific facts tending to show that

each defendant (other than those as to whom sum-

mary judgment had been granted) was acting un-

der color of state law, Not only does the four th

amended complaint fail to conform to Fed, R,

-97-

Civ. P. 8(a), but it does not allege the specific

acts which show that defendants are acting under

color of state law. These hospitals are private

hospitals. They are no less private because

they furnish an indispensable service, A private

activity does not become a state activity because

in some areas the state exercises a measure of

control. Thus a private slaughterhouse does not

become a governmental agency because it must

comply with legally imposed sanitation standards,

nor does a hotel become a state agency because

the state requires a compliance with fire regula-

tions. No doubt the state has power to forbid

racial discrimination in the selection of hospital

staffs. The failure of a state to forbid such dis-

crimination does not make a discriminatory act

by a hospital a state act,

I am of the opinion that the receipt of Hill-

Burton funds is not of itself sufficient to make a

hospital a state instrumentality or to make the

acts of the hospital in the regulation of its inter-

nal affairs acts done under color of state law.

The plaintiffs were ordered to allege addi-

tional specific facts showing that each defendant

acted under color of state law. Plaintiffs alleged:

. . . The State of Hawaii has delegated to the

boards of said hospitals, their staff-physi-

cians and agents as well as to the medical

malpractice insurers of said hospitals and

staff physicians the exclusive and arbitrary

right tc license and regulate the practice of

all physicians and surgeons who are special-

ists including all American Board certified

neur ological surgeons and to grant, revoke,

limit or deny the aforesaid specialists the

-98-

right and license to practice professionally

in said hospitals and for reasons based on

race, creed, color and national origin and

other unconstitutional reasons.

--Fourth Amended Complaint, p. 20

I do not regard the quoted language to be a state-

ment of specific facts. I do not believe that

Hawaii Revised Statutes 8 663-1.7 limiting the

liability of peer review committees or 8 625-

15 relating to the discovery of proceedings and

records of peer review committees are sufficient

to make the acts of the peer committces acts

done under color of state law. There has been a

general noncompliance with the order to conform

to Rule 8(a), Count II of the fourth amended com-

plaint does not, in light of the orders of the

court, sufficiently allege that the acts done were

done under colar of state law. For thes: rea-

sons, and on my own motion, IT SS ORDERED

that Count II of the fourth amended complaint is

dismissed without leave to amend,

AS TO COUNT II OF THE THIRD AMENDED

COMPLAINT:

The court in its order of July 23, 1973, erro-

neously applied Ch, 515 of Hawaii Revised Sta-

tutes (misdescribed in the order as Ch, 414),

IT IS THEREFORE ORDERED that the order of

July 23, 1973, be amended by striking therefrom

all of the language relating to Count II, and the

following order is made with respect to Count Il

of the third amended complaint:

IT IS ORDERED that Count II of the third

amended complaint is dismissed without leave to

amend,

-99-

I do not interpret Count II of the complaint to

allege that the plaintiffs were denied public ac-

commodations because of their race or colar,

but rather to allege that because Dr. Silver is

denied the right to practice in the defendant hos-

pitals and because plaintiffs will have no doctor

other than Dr. Silver they are effectively denied

public accommodations,

The right protected by 42 U.S.C. 8 2000a is

the right to be free of racial discrimination in

public accommodations. Dr, Silver is not denied

public accommodations and plaintiffs are not

denied pubiic accommodations, What is sought to

be protected is the right to choose a doctor and

that right is not protected under 42 U.S.C.

8 2000a, et seq.

AS TO COUNT III OF THE THIRD AMENDED

COMPLAINT:

The order of July 23, 1973, with respect to

Count Ill of the third amended complaint is in all

respects confirmed and Count III is dismissed

without leave to amend,

AS TO COUNT IV OF THE THIRD AMENDED

COMPLAINT:

The order of July 23, 1973, with respect to

Count IV of the third amended complaint is in all

respects confirmed and Count IV is dismissed

without leave to amend,

AS TO COUNT I OF THE FOURTH AMENDED

COMPIA INT:

This count, based on 42 U.S.C. 81985 (2) and

(3) presents a new legal theory and in my opinion,

-100-

if inter preted liberally, a claim for relief may

be found in it. The pleading, however, does not

comply with Rule 8(a) and wi

ders of this court. ith the previous or-

In 1971 Judge Boldt said:

ae When attorneys admitted to practice in

eral courts prepare complaints neither

the Court nor Opposing counsel should be re-

quired to expend time and effort searchin

thr ough large masses of conclusory, ar ae

mentative, evidentiary and other ompeneces

allegations in order to discover whether the

essentials of claims asserted can be found in

such 4 melange, It is the duty and responsi-

bility, especially of experienced counsel, to

State those essentials in short, plain and non-

redundant allegations, . . :

--Memorandum Decisiqn a

_ | nd Order

Striking Complaint and Denying Temporar y

Restraining Order, filed July 2, 1971.

This Statement is still pertineni. At some point

a plaintiff owes some obligation to the ceurt end

to the defendants. At some time the reckless

sweep should give way to the controlled thrust

In my Opinion plaintiffs have had ample opportu -

nity to state a claim as required by the rules; in

my Opinion they have failed, and in my opinion

solely as a matter of discipline, Count I of the

four th amended complaint should be dismissed

without leave to amend.

IT IS THEREFORE ORDERED that the defend-

ants and all of them have judgment against the

plaintiffs and all of them and tha eh

t th

are denied all relief, © plaintiffe

-101-

DATED this 30th day of August, 1973.

/s/ Russell E, Smith

Russell E, Smith

United States District Judge

1/ In my opinion the appeal does not deprive this

court of jurisdiction since there has been neither

final judgment nor a 28 U.S.C, 81292(b) certifi-

cate,

-102-

APPENDIX "F"'

Sas Francisco Chronicle 1S’

Tues., Dec. 16, 1975

S.F. Doctor Wins a Long

Lawsuit on Blackballing

After 13 years of lawsuits aad

T.. Maneuvering a docal sur-

Seun O55 won a Gamaze suit

-3au~% the San Francisco Medi.

cs! Society for aleced:y trying to

rua bis practice and dlackballing

“iM at four hospitais.

Dr. Sanford W Ascherman,

We sur senna, woa a total of $00,000

— 900 of tt in punitive

damaces — acainst the medical _

Society of which be bas been a

Gue>paving member since i959.

Ee aso won $20,000 two

Wer. 850 in @ settiement of

cam. *- claims -he made against

the four hospitals that oad ousted

him from their staffs — Frenca,

Franklin, St Joseph's and Mar-

shai Hale Memorial, formeriy

kaown as H ahnemaaz Hospital

A spokesman for the medical

society bere said the orgaaiza-

tion's officers had not yet decided

woether to appeal the court

Verd.ct, which was returned Fre

Gay oy a jury of six men ana Sit

womeu before Superior Court

Jucse John Ertola.

Ascherman bas been a bighly

cootroversial figure in San Fraa-

eco medical curcies ever since

«@ became.an Outspoken advocate

©. Medicare and other govern-

meot health programs in the

eariy ISohs,

But even before that, as a

/OUGS surgeon on the starf of

“aunt Zion Hospital, be had run

Ou, Of that institution's leaders

5d Was Gropped ivom. the staff

toere. He sued for reinstatement

aad lost, sued again and lost

again. At the moment be has no

Suit pencing against Mount Zion.

AS a result of his political

advocacy. he charged, the medi-

cal society hece went after bin ic

1962 It dropped his name from

the society’s referral service, ard

blackbailed him with local bospi-

tals and a malpractice insurance

companys

At-the same. time he was

Ousted from the staff of Mano

General Hospital too. More than

two years ago, Lowever, the

Marin bespital’s directors rein-

Stated him after ten years of

lawsuits against that -instizunon.

According to the settlement

terms with the San Francisco

bospitais, Ascherman will be

Permuited to apply for staff

Memoership once again and will

bot De Opposed, his lawyer, Bruce

Lubarsky, said yesterday.

When he bezao his loug

litigation here, Ascherman asked

for $6 million in Gamages. He icsz,

he appeaied, he won a new trial.

and then lost again after the trial

jury - deadlocked. After another

appeal Le won another trial, and

‘finally. last. Friday's damage

award.

-103-

DS eeeeeeeeeeeeee[ lls

-vort-

“The Hovokuee Hoveer, séR

Pr otesting doctofs intend

to retuse

By BRUCE BENSON

Advertiser S'atl ¥riter

Kona physic.ans on the Bic Isard

have threa‘ened to co on *triKe

against tourists 4nd offer nonres

dents y refusine to pre'ide

emergency -room services

The Advertiser learned tact nicht

that most of the i joctors in ta

area nave acreed to quit attencire

stririzers the kana H sital

qc nereercys oor un.es tne Stave

provinces them «ith some rm of

protec.ien against m3 practice suis

THREE Kora ofvysicians case cf

ferent estimaces +f toe mar’ woud

adhere to the strike. ful it aopeared

that at least hall are +*rmur

Most of the rest armear to faver

the limited walkout set for J

But as members of 3 Teeth al Srp

they repertedis ‘tl. cra fhe

services to tourists ana strangers

ony uf their employer ons) it

Dr Franx Ferren a cenera! sut

geon and chie! of stalf at Kena

Hos.tal. sarc Abou’ half of them

go a'eng Trev want th % ¢

cover (hem i an hretla t.oe

clause for anytnv @ above what heir

own malpractice insurance covers

Kona tourists

They re willing to see their oun

patients im the emergency room. Dut

ses feel the tourists and the Main

fanders are a much higher-risé

g: our

THE BALKING phwsicians met

last week with Henry No Thomoson

deputs 4 rector on cnarce of coun’.

State he tals Thompson ni«

» agreed to report by July | what the

State feels if can otter

[or ‘ an iiubackwer an

sb<tetrician-evnecolozist, described

the problem this wa)

The State refused to handle

uncurance for doctors, but the State

ma.ntains a hospital emercencs

rowm service The problem ts twat

3 tourists of pe e from out of

toan “1 eme to the emercen

roan far care and they do not have

a val onsercian Viho ts gone to

ate wo, taese perpie”

t us the Stute s function or the

shy scians function to see those

peop.e” And { we do take the

chance. shouldnt the State cover us

for seeing them, or else provide &

special group of emergency prys:

cians to see them”

HUBACKER believes that the

Kona doctors case State official

Thompson three epuions Either pro

vide malpractice insurance cover

age. get anothe; group of physicians

to run the emercency room. or ¥ise

we would just quit the emergercy

room

Thompson said last nicht that the

State doesn't have a lecal ob'igation

ta continue operating the emergency

room and that the doctors dont

have a legal obligation to staff ite

ther

There was a time when a physi

cian was required to treat anybody

and an.one who came to his door

tompson said “Lecaily tomay that

physician has @ legai rignt to refuse

sersvice

Th mpson said insurance compa

nies have told him that ‘hey will not

isc ue @ Policy to cover Konas doe-

s for periods when they are

attending the emereency room Nor

all thes issue policies coverng te

‘ors for ‘ catastrophic’ amounts

shove their own maipractice po.

es, saint Thompson

THE NPE NENG ae yma strike

“as prompted by a inc of mal!

practice suits by tourists. carped by

3 recent suit agein.t one Rona phy st

cian for 8 milion

Dr. Hubacker and the other p's; «+

clans ctressed that they weuid

continue to treat their local patients

“nether the cmergency room re-

mains open or shut

iO, XIGNaAdd V

APPENDIX "H"

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES INVOLVED

Amendment I,

United States Constitution

of speech, or of the press;

"Congress shall make no law respecting

an establishment of religion,

free exercise thereof; or abridging the freedom

or the right of the

people peaceably to assemble, and to petition the

Government for a redress of grievances,

Amendment IV, United States Constitution

persons ,

‘The right of the people to be secure in their

against unreasonable searches and

seizures shall not be violated.

or prohibiting the

Amendment V, United States Constitution

"No person, . . shall besubject for the same

offense to be twice put in jeopardy of life or

limb... nor be deprived of life, liberty, or

property, without due process of law .

Amendment VII, United States Constitution

"In suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved. ,

Amendment VIII, United States Constitution

"Excessive fines (shall not be) imposed, nor

cruel and unusual punishment inflicted. "

Amendment XIII, United States Constitution

"Section 1, Neither slavery nor involuntary

-105-

servitude, except as a punishment for crime

whereof the party shall have been duly convicted,

shall exist within the United States, or any place

subject to their jurisdiction, "

Amendment XIV, Section 1, United States Consti-

tution

"All persons born or naturalized inthe United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside, No State shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws, "'

15 U.S.C., Section 15 .

"Suits by persons injured--Recovery of triple

damages, Any person who shall be injured in

his business or property by reason of anything

forbidden in the antitrust laws may sue therefor

in any district court of the United States in the

district in which the defendant resides or is

found or has an agent, without respect to the

amount in controversy, and shall recover three-

fold the damages by him sustained, and the cost

of suit, including a reasonable attorney's fee,"

15 U.S.C., Section 26

"Injunctive relief for private parties--Excep-

tion, Any person, firm, corporation, or asso-

ciation shall be entitled to sue for and have in-

junctive relief, in any court of the United States

having jurisdiction over the parties, against

-106-

threatened loss or damage by a violation of the

antitrust laws, including sections two, three,

seven and eight of this act [88 13, 14, 18, and 19

of this title], when and under the same conditions

and principles as injunctive relief against threa-

tened conduct that will cause loss or damage is

granted by courts of equity, under the rules gov-

erning such proceedings, and upon the execution

of proper bond against damages for an injunction

improvidently granted and a showing that the

danger of irreparable loss or damage is imme-

diate, a preliminary injunction may issue: Pro-

vided, that nothing herein contained shall be

construed to entitle any person, firm, corpora-

tion, or association, except the United States, to

bring suit in equity for injunctive relief against

any common carrier subject to the provisions of

the Act toregulate commerce, approved Febru-

ary fourth, eighteen hundred and eighty-seven

[49 8 1 et seq.] in respect of any matter subject

to the regulation, supervision, or other jurisdic-

tion of the Interstate Commerce Commission,

18 U.S.C., Section 241

"Conspiracy against rights of citizens, If

two or more persons conspire to injure, oppress,

threaten, or intimidate any citizen in the free

exercise or enjoyment of any right or privilege

secured to him by the Constitution or laws of the

United States, or because of his having so exer-

cised the same; or

"If two or more persons go in disguise on the

highway, or on the premises of another, with in-

tent to prevent or hinder his free exercise or

enjoyment of any right or privilege so secured--

"They shall be fined not more than $10, 000

-107-

or imprisoned not more than ten years, or both;

and if death results, they shall be subject to im-

prisonment for any term of years or for life,"

18 U.S.C., Section 242

"Deprivation of rights under color of law.

Whoever, under color of any law, statute, ordi-

nance, regulation, or custom, willfully subjects

any inhabitant of any State, Territory, or Dis-

trict to the deprivation of any rights, privileges,

or immunities secured or protected by the Con-

stitution or laws of the United States, or to dif-

ferent punishments, pains, or penalties, on

account of such inhabitant being an alien, or by

reason of his color, or race, than are prescribed

for the punishment of citizens, shall be fined not

more than $1,000 or imprisoned not more than

one year, or both; and if death results shall be

subject to imprisonment for any term of years or

for life,"

18 U.S.C., Section 371

"Conspiracy to commit offense cr to defraud

United States. If two or more persams conspire

eitner to commit any offense against the United

States, or to defraud the United States, or any

agency thereof in any manner or for any purpose,

and one or more of such persons do any act to

effect the object of the conspiracy, each shall be

fined not more than $10,000 or imprisoned not

more than five years, or both,

"If, however, the offense, the commission of

which is the object of the conspiracy, is a mis-

demeanor only, the punishment for such conspi-

racy shall not exceed the maximum punishment

provided for such misdemeanor,

~108-

18 U.S.C., Section 1621

"Perjury generally. Whoever, having taken

an oath before a competent tribunal, officer, or

person, in any case in which a law of the United

States authorizes an oath to be administered, that

he will testify, declare, depose, or certify truly,

or that any written testimony, declaration, depo-

sition, or certificate by him subscribed, is true,

willfully and contrary to such oath states or sub-

scribes any material matter which he does not

believe to be true, is guilty of perjury, and shall,

except as otherwise expressly provided by law,

be fined not more than $2,000 or imprisoned not

more than five years, or both. This section is

applicable whether the statement or subscription

is made within or without the United States.

18 U.S.C., Section 1622

"Subornation of perjury. Whoever procures

another to commit any perjury is guilty of sub-

ornation of perjury, and shall be fined not more

than $2,000 or imprisoned not more than five

years, or both,"

28 U.S.C., Section 2281

"Injunction against enforcement of State sta-

tute-- Three-judge court required, An interlocu-

tory or permanent injunction restraining the en-

forcement, operation or execution of any State

statute by restraining the action of any officer of

such State in the enforcement or execution of

statute or of an order made by an administrative

board or commission acting under State statutes,

shall not be granted by anydistrict court or judge

thereof upon the ground of the unconstitutiona lity

of such statute unless the application therefor is

-109-

heard and deter mined by 4 district court of three

judges under section 2284 of this title. "

26 11 §.C., Section 2284

"Three-judge district court--C omposition=-~

Procedure. Im any action or pF oceeding required

by Act of Congress to be heard and determined

by a district court of three judges the compos i-

tion and procedure of the court, except as other -

wise provided by law, shall be as follows:

"(1) The district judge to whom the applica-

tion for injunction or other relief is presented

shall constitute one member of such court. On

the filing of the application, he shall immediately

notify the chief judge of the circuit, who shall

designate two other judges, at least one of whom

shall be a circuit judge. Such judges shall serve

ag members of the court to hear and deter mine

the action or proceeding.

'(2) If the action involves the enforcement,

operation or execution of State statutes OF State

administrative orders, at least five days notic»

of the hearing shall be given to the governor and

attorney general of the State.

'(3) In any such case in which an application

for ar interlocutory in junction is made, the dis-

trict judge to whom the application is made may,

at any time, grant a temporary restraining order

to prevent irreparable damage. The order, un-

less previously revoked by the district judge,

shall remain in force only until the hearing and

deter mination by the full court. It shall conta in

a specific finding, based upon evidence submitted

-110-

to such judgeand identified by reference thereto

that specified irreparable ;

dama

the order is not granted, " ge will result if

42 U.S.C., Section 291, Public Health Service

"Declaration of

purpose, The purpos i

title [42 USCS 88 291-2910-1] gg pose of this

'(a) to assist the several States in the carryin

out of their programs for the veminndiiee eal

modernization of such public or other nonprofit

tag hos pitals and other medical facilities

re oy nope in conjunction with existing

cu P furnish adequate hospital, clinic, or

similar services to all their people;

(b) to stimulate the development of new or im-

proved types of physical facilities for medical

diagnostic, preventi

; ’ , ve, treatment, orr ilita-

tive services; and y , ehabilita

Bi

(c) to promote research, experiments, and

demonstrations relating to the effective develo -

ment and utilization of hospital, clinic, or pre

lar services, facilities, and peseurests and to

promote the coordination of such research, ex-

periments, and demonstration

. a s and the

application of their results. useful

42 U.S.C., Section 1981

| “Equal Rights Under the Law. All persons

within the jurisdiction of the United States shall

have the same right in every State and Territor

to make and enforce contracts, tosue, be wren

give evidence, and to the full and equal benefit

of all laws and proceedings for the security of

persons and propertyas is enjoyed by white citi-

-111-

~

zens, and shall be subject to like punishment,

pains, penalties, taxes, licenses, and exactions

of every kind, and to no other."

42 U.S.C., Section 1982

"Property Rights of Citizens, All citizens of

the United States shall have the same right, in

every State and Territory, as is enjoyed by white

citizens thereof to inherit, purchase, lease, sell,

hold and convey real and persmal property, "

42 U.S.C., Section 1983

"Civil Action for Deprivation of Rights.

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to the

deprivation of any rights, nrivileges, or immuni-

ties secured by the Constitution and laws, shall

be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for re-

dress,"

42 U.S.C., Section 1985

"Conspiracy to Interfere With Civil Rights.

First. If two or more persons in any State or

Territory conspire to prevent, by force, intimi-

dation, or threat, any person from accepting or

holding any office, trust, or place of confidence

under the United States, or from discharging any

duties thereof; or to induce by like means any

officer of the United States to leave any State,

district or place, where his duties as an officer

are required to be performed, or to injure him in

his person or property on account of his lawful

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discharge of the duties of his office, or while en-

gaged in the lawful discharge thereof, or to in-

jure his property so as to molest, interrupt,

hinder, or impede him in the discharge of his

official duties;

"Second. If two or more persons in any State

or Territory conspire to deter, by force, intimi-

dation, or threat, any party or witness in any

court of the United States from attending such

court, or from testifying to any matter pending

therein, freely, fully, and truthfully, or to in-

jure such party or witness in his person or pro-

perty on account of his having so attended or

testified, or to influence the verdict, present-

ment, or indictment of any grand or petit juror

in any such court, or to injure such juror in his

person or property on account of any verdict,

presentment, or indictment lawfully assented to

by him, or of his being or having been such juror;

or if two or more persons conspire for the pur-

pose of impeding, hindering, obstructing, or de-

feating, in any manner, the due course of justice

in any State or Territory, with intent to deny to

any citizen the equal protection of the laws, or

to injure him or his property for lawfully enfor-

cing, or attempting to enforce, the right of any

person, or class of persons, to the equal protec-

tion of the laws;

"Third. If two or more persons in any State

or Territory conspire, or go in disguise on the

highway or on the premises of another, for the

purpose of depriving, either directly or indirect-

ly, any person or class of persons of the equal

protection of the laws, or of equal privileges and

immunities under the laws, or for the purpose of

preventing or hindering the constituted authori-

-113-

ties of any State or Territory from giving or se-

curing to all persons within such State or Terri-

tory the equal protection of the laws; or if two or

more persons conspire to prevent by force, inti-

midation, or threat, any citizen who is lawfully

entitled to vote, from giving his support or advo-

cacy in a legal manner, toward or in favor of the

election of any lawfully qualified person as an

elector for President or Vice-President, or as a

member of Congress of the United States; or to

injure any citizen in person or property on ac-

count of such support or advocacy; in any case of

conspiracy set forth in this section, if one or

more persons engaged therein do, or cause to be

done, any act in furtherance of the object of such

conspiracy, whereby another is injured in his

person or property, or deprived of having and

exercising any right or privilege of a citizen of

the United States, the party so injured or depri-

ved may have an action for the recovery of da-

mages, occasioned by such injury or deprivation,

against any one or more of the conspirators. "

42 U.S.C., Section 1986

"Action for Neglect to Prevent Conspiracy.

Every person who, having knowledge that any of

the wrongs conspired to be done, and mentioned

in the preceding section [# 1985 of this title], are

about to be committed, and having power to pre-

vent or aid in preventing the commission of the

same, neglects or refuses so to do, if such

wrongful act be committed, shall be liable to the

party injured, or his legal representatives, for

all damages caused by such wrongful act, which

such person by reasonable diligence could have

prevented; and such damages may be recovered

in an action on the case; and any number of per-

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sons guilty of such wrongful neglect or refusa]

may be joined as defendants in the action, and if

the death of any party be caused by any such

wrongful act and neglect, the legal representa -

tives of the deceased shal] have such action

therefore, and may recover not exceeding five

thousand dollars damages therein, for the benefit

of the widow of the deceased, if there be one and

if there be no widow, then for the benefit of the

next of kin of the deceased, But no action under

the provisions of *sis section shall be sustained

which is not commenced within one year after the

cause of action has accrued, "'

+ U.S.C., Section 2000a, Injunctive Relief

gainst Discrimination In Places of Public

Accommodation

Right to full and equal enjoyment of places

of public accommodation--Definitions--(a) All]

persons shall be entitled to the full and equal en-

joyment of the goods, services, facilities, pri-

vileges, advantages, and accommodations of any

place of public accommodation, as defined in this

section, without discrimination or segregation on

the ground of race, color, religion, or national

origin.

| (b) Each of the following establishments

Which serves the public is a place of public ac-

cOmmodation within the meaning of this title (es

2000a-2000a-6 of this title] if its operations af-

fect commerce, or if discrimination or segrega-

tion by it is supported by State action:

| (1) any inn, hotel, motel, or other esta-

blishment which provides lodging to transient

guests, other than an establishment located with-

-115-

in a building which contains not more than five

rooms for rent or hire and which is actually oc-

cupied by the proprietor of such establishment as

his residence;

(2) any restaurant, cafeteria, lunchroom,

lunch counter, soda fountain, or other facility

principally engaged in selling food for consump-

tion on the premises, including, but not limited

to, any such facility located on the premises of

any retail establishment; or any gasoline station;

' , ae

(3) any motion picture house, theater, con-

cert hall, sports arena, stadium or other place

of exhibition or entertainment; and

(4) any establishment (A)(i) which is physi-

cally located within tiie premises of any esta-

blishment otherwise covered by this subsection,

or (ii) within the premises of which is physically

located any such covered establishment, and (B)

which holds itself out as serving patrons of such

covered establishment,

'g 2000a-1. Entitlement. All persons shall

be entitled to be free, at any establishment or

place, from discrimination or segregation of any

kind on the ground of race, color, religion, or

national origin, if such discrimination or segre-

gation is or purports to be required by any law,

statute, ordinance, regulation, rule, or order of

a State or any agency or political subdivision

thereof,

"g 2000d. Nondiscrimination in Federally as-

sisted programs. No person in the United States

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shall, On the ground of race, color, or national]

origin, be excluded from participation in, be

denied the benefits of, or be Subjected to discri-

mination under any program or activity receivin

Federal financial assistance. " :

Rule 8(a), Federal Rules of Civil Procedure

(a) Claims for Relief, A pleading which

sets forth a claim for relief, whether an original

claim, counterclaim, cross-claim, or third-

party claim, shall contain (1) a short and plain

statement of the grounds upon which the court's

Jurisdiction depends, unless the court already

has jurisdiction and the claim needs no new

grounds of jurisdiction to Support it, (2) a short

and plain statement of the claim showing that the

pleader is entitled to relief, and (3) a demand for

judgm ent for the relief towhich he deems himself

entitled, Relief in the alternative or of several

different types may be demanded. " asics

Rule 8(f), Federal Rules of Civil Procedure

tse . °

har Construction of pleadings, Al] pleadings

ae SO construed as to do Substantial jus-

ice, |

Rule 23(a), Federal Rules of Civil Procedure

Class actions, --(a) Representation, If per-

sons constituting a class are so numerous as to

make it impracticable to bring them all before

the court, such of them, one or more, as will

fairly insure the adequate representation of al]

may, on behalf of all, sue or be sued, when the

character of the right sought to be enforced for

or against the.class is

-117-

(1) joint, or common, or secamdary in the

sense that the owner of a primary right refuses

to enforce that right and a member of the class

thereby becomes entitled to enforce it;

7

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4

sd

=

(2) several, and the object of the action is .

the adjudication of claims which do or may affect

specific property involved in the action; or

4 .

i a ee eee Se ee ots Dae

e

'(3) several, and there is a common question

of law or fact affecting the several rights and a

. - * !

common relief is sought.

-6IT-

"

Rule 54(b), Federal Rules of Civil Procedure

‘(b) Judgment upon multiple claims or in-

volving multiple parties. When more than one }

claim for relief is presented in an action, whe- bv bot tel

ther as a claim, counterclaim, cross-claim, or P

third-party claim, or when multiple parties are | . ¥ 1059-Iet PUCLIC HOSPITAL (7,

lis XIGNAdd V

‘* \ .

.

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"--10 MEET THE NECESSITY FELT BY Fomccaee |

Y FELT BY FORE!

AND NATIVES ALIKE FOR A PUBLIC HOSPITAL > )

eo

involved, the court may direct the entry of a fi-

nal judgment as to one or more but fewer than

all of the claims of parties only upon an express

determination that there is no just reason for — ee ee

delay and upon an express direction for the entry

of ju¢gment. In the absence of such determina-

tion and direction, any order or other form of

decision, however designated, which adjudicates

fewer than all the claims or the rights and liabi-

lities of fewer than all the parties shall not ter-

minate the action as to any of the claims or par-

ties, and the order or other form of decision is

subject to revision at any time before the entry

of judgment adjudicating all the claims and the

rights and liabilities of all the parties.

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