# Petition — Silver v. Queen's Hospital > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1618%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 424 U.S. 968 ## Text 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 , 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. -—-——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 ) 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. -118- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1618%3A1. Public record. Not legal advice.