Petition — Leis v. Flynt

MAY 12 1978

IN THE

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1977

RODAK, JR., CLERK

SIMON L. LEIS, JR.,. HONORABLE WILLIAM J.

MORRISSEY, HONORABLE ROBERT S. KRAFT,

AND THE HAMILTON CCOUNTY COURT OF

COMMON PLEAS,

Petitioners,

vs.

LARRY FLYNT, HUSTLER MAGAZINE, INC.,

HERALD PRICE FAHRINGER, AND

PAUL J. CAMBRIA, JR.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

FRED J. CARTOLANO

First Assistant Prosecuting Attorney

420 Hamilton County Court House

Court & Main Streets

Cincinnati, Ohio 45202

Counsel for Petitioners

WILLIAM E. BREYER

Assistant Prosecuting Attorney

420 Hamilton County Court House

Court & Main Streets

Cincinnati, Ohio 45202

Of Counsel

COURT INDEX PRESS INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

INDEX

Page

EE ey ee ee ae 1

eee ae onde hiss den bedeated 2

GS UUM 6 cose ccccvesccciccceccses 2

STATUTORY PROVISIONS INVOLVED ............. 2

STATEMENT OF THE CASE ................0cc000 3

REASONS FOR GRANTING THE WRIT .............. 8

1. The decision cf the lower court forcing the Ohio

Trial Court to allow out-of-state attorneys, who

are not licensed in Ohio, to practice in the Ohio

Courts, is in conflict with decisions of the United

States Supreme Court and with decisions of other

SS Te BN he akin cach ccmscctoccdiccse 8

2. The decision of the lower court enjoining an

ongoing state criminal prosecution to protect the

alleged rights ot one not a party to that prosecu-

tion raises a serious question as to federal absten-

tion under the doctrine of Younger v. Harris,

which question has not yet been dealt with by

this court. Further, the lower courts decision

to so enjoin an ongoing state criminal prosecution

is in conflict with the decision of another Court

GE Shae dees d cwendeceatvavesédhecunsci 13

I 6 odd bnhcdelecetbdsudeb ode Verdeiweses 19

CITATIONS

Cases: Page

Avco Corp. v. Lodge 735, 390 U.S. 557 (1968) ........ 12

Bedrosian v. Mintz, 518 F. 2d 396 (C.A. 2, 1975) ...... 18

Boyle v. Landry, 401 U.S. 77 (1971) .............-505. 14

Bradwell v. Illinois, 83 U.S. (16 Wall) 130 (1872) ...... 8

Brown v. Supreme Court of Virginia, 359 F.S. 549,

555 (E.D. Va. 1973) affirmed 94 S. Ct. 534 ...... 9, 10, 12

Byrne v. Karalexis, 401 U.S. 216 (1971) ................ 14

Cooper v. Hutchinson, 184 F. 2d 119 (C.A. 3, 1950) .... 16

Douglas v. City of Jeannette, 319 U.S. 157 (1943) ...... 17

Dyson v. Stein, 401 U.S. 200 (1971) .............55: 14, 17

Ginsburg v. Kovrak, 139 A. 2d 889 (Pa. 1958) ........ 9, 10

Goldfarb v. Virginia, 421 U.S. 773 (1975) .............. 8

Hawkins v. Moss, 503 F. 2d 1171 (4th Cir. 1974) ........ ll

Hicks v. Miranda, 422 U.S. 332 (1975) ............ 15, 16

In re: Isserman, 345 U.S. 286 (1953) ..............005. 8

In re: Lockwood, 154 U.S. 116 (1894) ................ 8

Konigsberg v. State Bar of California, 366 U.S.56 (1961) .. 8

Kovrak v. Ginsburg, 358 U.S. 52 (1958) ............ 9, 10

Krahm v. Graham, 461 F. 2d 703 (1972) .............. 17

Kugler v. Helfant, 421 U.S. 117 (1975) ............ 16, 17

Mitchum v. Foster, 407 U.S. 225 (1972) .............. 14

Norfolk and Western Railway Company v. Beatty, 400

F.S. 234 (1975) affirmed 423 U.S. 1009 (1976) .. 9, 10, 12

Northwestern National Bank v. United States, 387 U.S.

RIE er Fania i Rpg pegetigs ete, eam 12

Paul v. Davis, 96 S. Ct. 1155 (1976) .............. 12, 13

Perez v. Ledesma, 401 U.S. 82 (1971) ................. 14

Samuels v. Mackell, 401 U.S. 66 (1971) ................ 14

Steffanelli v. Minard, 342 U.S. 117 (1951) ...... 13, 15, 18

Thomas v. Cassidy, 249 F. 2d 91 (4th Cir. 1957) ........ ll

Younger v. Harris, 401 U.S. 37 (1971) ...... 13, 14, 16, 17

Statutes and Rules: Page

Ohio Revised Code Section 4705.01, Practice of Law .. 2, 8

Ohio Revised Code Section 2907.31, Disseminating Ma-

terial Harmful to Juveniles ..............0cc ccc cuues 3

ey Ee UE no Sic cocncedvcdcssetees 6, 12, 14

i dv eedeece 6

14th Amendment, United States Constitution ........... 12

Rules of the Supreme Court of the United States, Rule

19, Considerations Governing Review on Certiorari,

ERIE SIL NRE FRR 12-13

Ohio Supreme Court Rules for the Government of the

Bar, Rule I Section 8(C) ................ 2, 5, 8, 9, 11

Rule 10-F, Rules of Hamilton County Court of Common

SUE ichh censuses tanya b Giina sek keeehddentsids cds 4

Illinois Supreme Court Rule 707, Foreign Attorneys in

Isolated Cases

— Se

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

SIMON L. LEIS, JR.. HONORABLE WILLIAM J.

MORRISSEY, HONORABLE ROBERT S. KRAFT,

AND THE HAMILTON COUNTY COURT OF

COMMON PLEAS,

Petitioners,

vs.

LARRY FLYNT, HUSTLER MAGAZINE, INC.,

HERALD PRICE FAHRINGER, AND

PAUL J. CAMBRIA, JR.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

The Petitioners, Simon L. Leis, Jr., et al., respectfullv pray

that a Writ of Certiorari issue to review the Judgment and

Opinion of the United States Court of Appeals for the Sixth

Circuit entered in this proceeding on April 12, 1978.

OPINION BELOW

The opinivn of the Court of Appeals, not yet reported, ap-

pears in the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Sixth Circuit

was entered on April 12, 1978, and this Petition for Certiorari

was filed within 90 days of that date. This Court's jurisdic-

tion is invoked under 28 U.S.C., Section 1254 (1), and other

appropriate jurisdictional statutes.

QUESTIONS PRESENTED

1. Whether a federal court may enjoin an ongoing state

criminal prosecution for reasons which do not concern

that prosecution and which do not involve the rights

of the defendant in that State prosecution.

2. Whether a federal court can force an Ohio criminal

trial court to allow a non resident attorney, not ad-

mitted to practice in Ohio, to appear pro hac vice with-

out the consent of the state court judge presiding at

that trial.

STATUTORY PROVISIONS INVOLVED

Ohio Revised Code 4705.01, Practice of Law:

“No person shall be permitted to practice as an attorney

and counselor at law, or to commence, conduct or defend

any action or proceeding in which he is not a party con-

cerned, either by using or subscribing his own name, or

the name of another person, unless he has been admitted

to the bar by order of the Supreme Court in compliance

with its prescribed and published rules.”

Ohio Supreme Court Rules for the Government of the Bar

Rule I, Section 8(C):

“Adinission Without Examination

(C) An applicant under this section shall not engage in

the practice of law in the state prior to the filing of his

3

. To do so constitutes the unauthorized prac-

tice of law and will result in the denial of the applica-

tion. This paragraph (C) does not apply to participation

by a non-resident of Ohio in a cause being litigated in

this state when such participation is with leave of the

judge hearing such case.”

STATEMENT OF THE CASE'

This case involves an attempt by federal courts to force

the Ohio Criminal Courts to allow out of state counsel, un-

licensed in Ohio, to represent criminal defendants in the Ohio

Courts. It also involves the federal courts enjoining an on-

going state criminal prosecution for reasons not concerning

the defendants in the ongping state prosecution. More spe-

cifically, an ongoing state criminal prosecution has been en-

joined to protect the alleged pecuniary interest of out of state

attorneys, as well as to protect the professional reputation of

those same attorneys. The facts and procedural posture of

this matter are stated below.

I. OHIO CRIMINAL PROCEEDINGS

On February 8, 1977, the Hamilton County, Ohio, Grand

Jury returned an indictment charging Larry Flynt and Hustler

Magazine, Inc., with multiple counts of Disseminating Ma-

terial Harmful to Juveniles, contrary to Ohio Revised Code,

Section 2907.31. Defendant Larry Flynt was a resident of

Colurrbus, Ohio. Defendant Hustler Magazine, Inc., was an

Ohio corporation doing business in Ohio.

On February 25, 1977, arraignment was held in this mat-

ter before Judge Rupert Doan of the Hamilton County Court

of Common Pleas. Judge Doan was the judge designated to

handle all arraignments that particular month. Andrew Den-

1 All page references are to the appendix contained in the certified

record from the Court of Appeals for the Sixth Circuit.

4

nison, an attorney of the Ohio Bar, presented an entry of

counsel bearing the names of Herald Fahringer and Paul

Cambria as counsel for Flynt and Hustler Magazine. The

entry submitted was a form entry used by counsel already

admitted to practice in Ohio. It had no bearing or relevancy

to admission pro hac vice of foreign counsel.? Neither of these

men were licensed to practice law in Ohio, nor did either of

these men apply for admission pro hac vice. Fahringer and

Cambria did not appear and their names were signed to the

entry by Andrew Dennison. This entry was routinely en-

dorsed by the judge handling the arraignment.

This case was assigned to Judge William Morrissey for

trial. This assignment was done as ¢ matter of course because

defendant Flynt already had another active indictment pend-

ing before Judge Morrissey. In Hamilton County, Ohio, a

2 Rule 10-F, Rules of Hamilton County Court of Common Pleas

Any attorney who accepts private employment in any criminal case

shall be required to sign the following entry which shall be filed with

the papers in the case:

COURT OF COMMON PLEAS, HAMILTON

COUNTY, OHIO, CRIMINAL DIVISION

STATE OF OHIO

Plaintiff,

i

defendant —-- and moves the Court that such fact be entered of

record.

“ia PE So ze = etetahisndibe eee

It is so ordered,

7: RAREIe+hhonsenntinsenecnnoea

Thereupon such attorney

the Journal of this Court and

upon written motion and for

Li

|

i

criminal indictment is automatically assigned for trial to the

same judge who has been assigned by lot to any active in-

dictment involving the same defendant. Thus the defendants

knew, even before they were arraigned, that their case would

be presided over by Judge Morrissey. Despite this, the out

of state counsel, Fahringer and Cambria, never applied to

Judge Morrissey (or any other judge for that matter) for ad-

mission pro hac vice.

On March 9, 1977, a pre-trial conference was held by Judge

Morrissey. Present were Andrew Dennison and representa-

tives of the prosecutor's office. Out of state counsel Fahringer

and Cambria were not present. Judge Morrissey announced

a trial date of May 2, 1977, and set April 8, 1977, as the date

when all! motions would be argued. At that time Judge Mor-

rissey advised Mr. Dennison, pursuant to Rule I, Section (8)

(C) of the Ohio Rules for the Government of the Bar, that

out of state counsel would not be permitted to act as trial

counsel (Appendix, p. 97). At this time no pre-trial motions

had been filed by any defense counsel. However, on March

31, 1977, unadmitted, out of state counsel, Fahringer and

Cambria, along with local attorney Dennison filed various

motions attacking the indictment.

On April 8, 1977, Larry Flynt and Hustler Magazine, Inc.,

appeared before Judge Morrissey and for the first time ob-

jected to the ruling forbidding active participation of out of

state counsel Fahringer and Cambria. Also present at this

hearing were Fahringer, Cambria and Dennison.

On April 15, 1977, Flynt, Hustler, Fahringer and Cambria

filed an action in Mandamus with the Ohio Supreme Court,

requesting an order setting aside the ruling of Judge Mor-

rissey. This action was dismissed by the Supreme Court of

Ohio on April 29, 1977.

On April 27, 1977, Flynt and Hustler Magazine, Inc. filed

an Affidavit of Bias and Prejudice with the Ohio Supreme

Court seeking the removal of Judge Morrissey. On May 2,

1977, that Court, while stating it found no evidence of bias

or prejudice, removed Judge Morrissey from the case in or-

6

der to avoid even the appearance of any impropriety. The

case was subsequently reassigned to Judge Robert Kraft, of

the Hamilton County Court of Common Pleas, for the pur-

poses of trial.

On May 10, 1977 Judge Kraft, after hearing argument,

vetused to permit out of state counsel, Fahringer and Cambria,

to act as trial counsel in the criminal trial of Flynt and Hustler.

(See appendix p. 98). Judge Kraft did indicate, however, that

Fahringer and Cambria could work with Ohio trial counsel! on

the case (See appendix p. 56).

[l. PROCEEDINGS IN FEDERAL COURT

On June 14, 1977, Flynt, Hustler, Fahringer and Cambria,

listing each of themselves as plaintiffs, filed suit in federal dis-

trict court seeking to enjoin the further prosecution of the

state charges, and seeking declaratory relief that the statute

under which the state charges were filed was unconstitutional.

On July 18, 1977, District Judge Rubin issued his order en-

joining the state criminal trial, until out of state counsel Fahr-

inger and Cambria were granted a hearing as to their prop-

erty right in the representation of Flynt and Hustler Magazine,

Inc. (appendix p. 134) Flynt and Hustler were granted no

relief at all since all of their claims could be fully litigated in

the state courts.

Ill. RULING BY DISTRICT JUDGE RUBIN

On July 8, 1977, Judge Rubin, finding jurisdiction in 42

U.S.C. 1983 and 28 U.S.C. 1343 (3), issued an order enjoining

further prosecution in the Ohio courts of the Ohio criminal

charges, until such time as the out of state attorneys, Fahringer

and Cambria, were granted an appropriate hearing on their

‘right’ to represent the defendants Flynt and Hustler. The

granting of the injunction was based on the court's finding

of extraordinary circumstances in the termination of out of

state counsels, Fahringer and Cambria, relationship with Flynt

7

and Hustler Magazine, Inc. The district court further found

that the right of out of state counsel to represent Flynt and

Hustler in the Ohio courts was a property right. (appendix

p. 131)

IV. RULING BY SIXTH CIRCUIT COURT OF APPEALS

On April 12, 1978, the Sixth Circuit Court of Appeals re-

leased its decision affirming the action taken by the District

Court. The Court of Appeals dealt with the two issues in this

case as follows:

1. Admission of Out of State Counsel:

“Their interest had developed to a point where the court’s

action in removing them not only deprived them of their

expectation of service and renumeration but also adverse-

ly reflected upon their competence and integrity ... .

they could not be denied the right to appear without a

meaningful hearing, the application of a reasonably clear

legal standard and the statement of a rational basis for

exclusion.”

2. Federal Abstention from State Proceedings:

“In the instant case the out-of-state lawyers do not have

an adequate state remedy for the due process violation,

and we therefore affirm the decision of the court below

enjoining temporarily the state court proceedings pending

a due process hearing.” (see appendix pages 2a and

13a, infra)

Petitioners have filed this writ seeking review by this court

of the decision of the Sixth Circuit Court of Appeals. That

decision is in conflict with decisions of this Court and other

Courts of Appeals in the area of pro hac vice admission of out

of state counsel, and raises a federal abstention issue which

has never been directly decided by this court.

8

REASONS FOR GRANTING THE WRIT

1. The decision of the lower court forcing the Ohio

Trial Court to allow out-of-state attorneys, who are

not licensed in Ohio, to practice in the Ohio Courts,

is in conflict with decisions of the United States

Supreme Court and with decisions of other lower

federal courts.

The essence of the ruling by the Sixth Circuit Court of

Appeals is that the Ohio trial courts must allow out of state

attorneys, who are unlicensed to practice in Ohio, to practice

in the Ohio courts unless it can be affirmatively demonstrated

that these attorneys are unfit to practice. This ruling flies in

the face of long established case law that the states have the

undisputed right to set requirements for admission to their

respective bars and to regulate the practice of law within their

borders. Goldfara v. Virginia, 421 U.S. 773 (1975); Konigs-

berg v. State Bar of California, 366 U.S. 36 (1961); In re: Is-

serman, 345 U.S. 286 (1953); In re: Lockwood, 154 U.S. 116

(1894); Bradwell v. Illinois, 83 U.S. (16 Wall) 130 (1872).

Pursuant te the above cited principle of law Ohio has pro-

vided by statute that no person may practice law in Ohio

without being admitted to the Ohio bar pursuant to rules

established by the Ohio Supreme Court. O.R.C. 4705.01 Prac-

tice of Law (cited, supra). Ohio has specifically provided

for this admission, pro hac vice, of out of state counsel in

Rule I Section 8 (C) of the Rules for the Government of

the Bar (cited supra). This rule provides that out of state

counsel may be admitted pro hac vice only by permission

of the judge presiding over the hearing. Despite the well

settled case law allowing Ohio to establish such a rule the

Sixth Circuit Court of Appeals has ruled in this case that out

of state counsel may not be excluded unless it can be shown,

by granting them a hearing and taking testimony, that they

are not qualified to practice. This decision is in direct con-

flict with the decision of the United States Supreme Court

9

in Norfolk and Western Railway Company v. Beatty, 423 U.S.

1009 (1976), which decision summarily affirmed the lower

court decision in Norfolk and Western Railway Company v.

Beatty, 400 F.S. 234 (1975). The decision of the lower court

in the instant case is also in direct conflict with the following

lower court decisions, both of which were affirmed by the

United States Supreme Court. Brown v. Supreme Court of

Virginia, 359 F.S. 549, 555 (E.D. Va. 1973) affirmed 94 S. Ct.

534; and Ginsburg v. Kovrak, 139 A. 2d 889 ( Pa. 1958) affirmed

by the Supreme Court in Kovrak v. Ginsburg, 358 U.S. 52

(1958).

The facts in Norfolk and Western, supra, are identical to the

facts in the present case. In Norfolk the plaintiffs were out

of state attorneys who, over a period of years, regularly ap-

peared in the Illinois state courts, even though they were not

licensed to practice law in Illinois. These attorneys were

summarily removed from pending state cases by the state

trial courts pursuant to rules* which are almost identical to

Rule I Section 8 (c) of the Ohio Rules. This is the rule the

Ohio trial court relied on in the instant case in refusing to

allow out of state attorneys Fahringer and Cambria to rep-

resent criminal defentants Flynt and Hustler Magazine, Inc.,

in the Ohio criminal proceedings. In Norfolk the Illinois

judges entered orders striking the names of the non-resident

attorneys as counsel of record, while at the same time per-

mitting out-of-state counsel to be associated in the cases with

local counsel in a consulting or advisory role at trial. This

was exactly the relief offered out of state counsel in the pres-

ent case by Ohio Judge Kraft. (see appendix p. 56) This was

done in Norfolk without granting a hearing to out of state

3 ILLINOIS SUPREME COURT RULE 707. FOREIGN ATTORNEYS

IN ISOLATED CASES

Anything in these rules to the contrary notwithstanding, an attorney

and counselor-at-law from any other jurisdiction in the United States,

or foreign country, may in the discretion of any court of this State

be permitted to participate before the court in the trial or argument

of any particular cause in which, for the time being, he is employed.

a ee

10

r

counsel, despite the fact that they had extensively prepared

the perding cases. The lower court in Norfolk refused to grant

relief to out-of-state counsel, stating:

“That the cases -~e of federal origin, that the Plaintiffs’

attorneys have been permitted to appear without limita-

tion numerous times in the past, that the cases are pres-

ently being prepared for trial, that the Plaintiffs’ attor-

neys are specialists regularly representing Plaintiffs in

Madison County and elsewhere . . . that Plaintiffs’ at-

torneys have caused no disciplinary problems — these are

not factors singly or cumulatively which require that the

Illinois statute be found constitutionally deficient.”

The United States Supreme Court summarily affirmed the de-

cision of the district court in Norfolk. Thus the decision of

the Sixth Circuit Court of Appeals in the present case is di-

rectly in conflict with the decision of the Supreme Court in

Norfolk and Western. In Norfolk the Supreme Court held

that out-of-state counsel may be removed without a hearing

despite the fact that they had extensively prepared for trial.

In the instant case the lower court reached a directly oppo-

site result. It does not matter that the out-of-state attorneys

in Norfolk attacked the constitutionality of the State pro hac

vice rule while the attorneys in the instant case couched their

appeal in another form. The results in the two cases are di-

rectly in conflict despite the identical facts.

The decision of the lower court in this case is also in

conflict with this court’s decision in Brown v. Supreme Court

of Virginia, 359 F.S. 549, 555 (E.D. Va. 1973), affirmed 94

S. Ct. 534; and Ginsburg v. Kovrak, 139 A. 2d 889 (Pa. 1958),

affirmed by the Supreme Court in Kovrak v. Ginsburg, 358 U.S.

52 (1958). Both of these cases guarantee to the states the right

to prohibit the practice of law by out-of-state counsel without

granting them a hearing.

Petitioner would also point out two decisions from other

Circuit Courts of Appeals which are in conflict with the de-

cision of the lower court in this case. In the present case

ll

the Sixth Circuit Court of Appeals held that out-of-state coun-

sel had a right to appear in Ohio courts which could not be

denied without a hearing. The Fourth Circuit Court of Ap-

peals, in the case of Thomas v. Cassidy, 249 F. 2d 91 (4th

Cir. 1957), stated as follows:

“It is well settled that permission to a non-resident at-

torney, who has not been admitted to practice in a court,

to appear pro hac vice in a case there pending is not a

matter of right but a privilege the granting of which is

a matter of grace resting in the sound discretion of the

presiding judge . . . There is a grave doubt whether the

denial of such permission is appealable, since what is de-

nied is not a right but a mere privilege.”

{In Hawkins v. Moss, 503 F. 2d 1171 (4th Cir. 1974), the court

held that the mere fact that an attorney has been licensed

to practice in one state gives him no right to practice in

another state. The court stated that such licenses “. . . have

no extra-territorial effect or value and can vest no right in

the holder to practice law in another state. Both of these

decisions are in conflict with the holding of the lower court

in this case that out-of-state counsel have a right to practice

in Ohio.

The lower court in this action apparently felt that a right

to practice in Ohio had somehow vested in out-of-state counsel

because they had been admitted pro hac vice and then re-

moved without a hearing. This of course is contrary to what

occurred since out-of-state counsel were never admitted pro

hac vice in the state criminal trial. In fact, they were spe-

cifically denied admittance. Admission pro hac vice in Ohio

is governed by Rule I Section 8 (C) of the Ohio Rules for

the Government of the Bar. That rule states in pertinent part

as follows:

. This paragraph (c) does not apply to participation

ie a non-resident of Ohio in a cause being litigated in this

state when such participation is with leave of the judge

hearing such case.”

12

The law is thus clear in Ohio that out-of-state counsel must

apply to the trial judge hearing the case in order to be ad-

mitted pro hac vice. The parties in the Ohio Criminal Pro-

ceedings knew the moment that the indictment was returned

that the trial judge would be Judge Morrissey. This was due

to the nature of the case assignment system in Hamilton Coun-

ty, Ohio. Since defendant Flynt was already subject to an

existing indictment, the new indictment automatically was as-

signed to the same jurist. In this case, Judge Morrissey. At

no time did Judge Morrissey ever admit out-of-state counsel

Fahringer and Cambria on a pro hac vice basis. The fact

that these out-of-state counsel had been admitted to practice

in the past in no way guaranteed them automatic pro hac vice

status in future cases. Norfolk and Western Railway Co. v.

Beatty, 400 F.S. 234 (S.D. Ill., 1975) affirmed 423 U.S. 1009.

Brown v. Supreme Court of Virginia, 359 F.S. 549 (E.D. Va.,

1973) affirmed 94 S. Ct. 534.

Furthermore, the lower courts in this case also granted

relief under 42 U.S.C. Section 1983 and under the due process

clause in order to protect the reputation of the out-of-state

attorneys with regard to their ‘competency and integrity’. To

the extent that the lower courts felt this gave rise to ‘prop-

erty right’ in reputation which is protected under the 14th

Amendment and grants federal courts jurisdiction under 42

U.S.C. Section 1983, they are in conflict with the decision

of this Court in the case of Paul v. Davis, 96 S. Ct. 1155

(1976). That decision held that injury to reputation alone

will not give rise to a due process claim and federal jufis-

diction under 42 U.S.C. Section 1983. The lower court’s de-

cision here is clearly in conflict with this holding.

As pointed out above the ruling of the Sixth Circuit Court

of Appeals in this case is in direct conflict with holdings of

the United States Supreme Court, and various decisions of

other Courts of Appeals. For this reason a Writ should be

granted in this case. Avco Corp. v. Lodge 735, 390 U.S. 557

(1968); Northwestern National Bank v. United States, 387

U.S. 213 (1967); Rules of the Supreme Court of the United

13

States, Rule 19, Considerations Governing Review on Certi-

orari Section 1 (b).

2. The decision of the lower court, enjoing an ongoing

state criminal prosecution to protect the alleged rights

of ene not a party to that prosecution, raises a seri-

ous question as to federal abstention under the doc-

trine of Younger v. Harris, which question has not yet

been dealt with by this court. Further, the lower

court's decision to so enjoin an ongoing state criminal

prosecution is in conflict with the decision of another

Court of Appeals.

a.) Abstention Issue not previously settled

by this Court.

In the instant case the lower cowrt has enjoined an ongoing

state criminal prosecution to protect the rights of one not

a party to that prosecution. More specifically the lower court

has enjoined an ongoing state criminal prosecution to protect

the ‘rights’ of out of state attorneys to earn a fee and preserve

their reputation for competency and integrity. This decision

goes against the grain of a strong federal policy of abstention

from interference in state criminal matters. This particular

case involves an area of the abstention doctrine which this

Court has never dealt with and which this Court should con-

sider.

The essence of the lower courts holding here is that an

ongoing state criminal prosecution has been stopped for rea-

sons which bear no relationship to the state defendant or

his rights. This holding would appear to be in conflict with

the decision of this Court in Stefanelli v. Minard, 342 U.S. 117

4 As pointed out previously, to the extent that the lower courts granted

injunctive relief to protect the out of state attorneys reputation for

competency and integrity their decision is in direct conflict with this

Court’s decision in Paul v. Davis, supra, and would indicate that a

Writ of Certiorari would be appropriate.

14

(1951) and bends the Younger v. Harris, 401 U.S. 37 (1971)

doctrine of abstention to the breaking point.

Younger v. Harris, supra, and its’ companion cases Samuels

v. Mackell, 401 U.S. 66 (1971); Boyle v. Landry, 401 U.S. 77

(1971); Perez v. Ledesma, 401 U.S. 82 (1971); Dyson v.

Stein, 401 U.S. 200 (1971) and Byrne v. Karalexis, 401 U:S.

216 (1971) set forth the proposition that federal courts will

only on rare occasions intervene in state criminal trials. It is

submitted that federal courts will not intervene where one

not being prosecuted seeks to stop an ongoing state criminal

prosecution. This is true even where intervention is sought

by way of a Section 1983 action, since those actions are also

controlled by the principles of federal state comity set forth

in Younger v. Harris, supra, Mitchum v. Foster, 407 U.S. 225

(1972). In discussing these principles of federal state comity

the Younger court limited the right to intervene in state pro-

ceeds to situations,

“. . . where a person about to be prosecuted in a state

case can show that he will . . .” (401 U.S. at 43)

suffer irreparable injury.

The Supreme Court in Younger v. Harris, supra, emphasized

that intervention in a state court is a serious matter. In con-

sidering whether those parties who were not being prosecuted

in the state could maintain a federal suit seeking intervention

the Court stated that:

“A federal lawsuit to stop a prosecution in a state court

is a serious matter, and persons having no fears of state

prosecution except those that are imaginary or specula-

tive, are not to be accepted as appropriate plaintiffs in

such cases.”

The implication in this language is that only those who are

defendants in state criminal actions may seek federal inter-

vention. This is in accord with the notions of federal-state

comity and “Our Federalism” which are discussed in Younger

v. Harris, supra. See also Boyle v. Landry, 401 U.S. at 81.

9

15

Those not being prosecuted may not intervene in ongoing

state criminal prosecutions.

In all of the cases mentioned above in which the Supreme

Court has dealt with federal intervention in state criminal

proceedings the party seeking intervention has been the defen-

dant in the state court action. In none of these cases has a

party other than a state criminal defendant cried to enjoin the

state criminal trial. The closest the Supreme Court has come

to dealing head on with this situation is where persons in a

position similar to the state defendants tried to intervene,

Hicks v. Miranda, 422 U.S. 332 (1975). However, the par-

ties seeking to intervene in Hicks were made state deiendants

the day following the filing of the federal claim. Thus the

Supreme Court has never dealt with a situation where a

party other than the state criminal defendant has tried to

enjoin an ongoing state criminal proceeding.

However, the Supreme Court has dealt with the issue of

federal intervention in a state criminal prosecution over mat-

ters collateral to that prosecution. In Steffanelli v. Minard,

342 U.S. 117 (1951) the Court stated that:

“If the federal equity power must refrain from staying

State prosecutions outright to try the central question

of the validity of the statute on which the prosecution is

based, how much more reluctant must it be to intervene

piecemeal to try collateral issues . . .”

The implication of the language is clear. Where the issue

raised is not even collateral, but involves the alleged rights of

those not even parties to the state criminal prosecution, the

federal court should not intervene at all.

If state criminal prosecutions could be enjoined by those

not defendants in said prosecutions, such as would be attor-

neys, a veritable pandoras box of possible intervention causes

avises. For example, could the state defendant's family claim

irreparable injury in the loss of the defendant's financial sup-

port, if imprisoned, and have the right to enjoin the state

prosecution? Or could prison inmates, claiming irreparable

16

injury through overcrowding, be permitted to seek to enjoin

state criminal prosecutions to litigate their claims, which have

no relation to the state trial? The effect of the lower court's

ruling in this case is to allow just such types of intervention.

The only case cited in the opinion of the lower court dealing

with federal intervention in a State court criminal proceeding

by the state defendant's excluded attorney is Cooper v.

Hutchinson, 184 F. 2d 119 (C.A. 3, 1950), a case which pre-

dates Younger. That case is not in point for two reasons.

First, the attorneys excluded in Cooper had handled the case

through the entire appellate process and won a reversal, this

is much more extensive participation than in the instant case.

Secondly, and more important, the ruling in Cooper was de-

signed to protect the state defendants. In this case the ruling

was designed solely to protect the financial interest of the

out-of-state attorneys. It was not designed to protect the

state court defendants. Cooper v. Hutchinson, supra, is not

authority to support the action taken by the lower court here.

It is submitted that the doctrine of Younger v. Harris, supra,

and its companion cases, must be interpreted to prevent a

federal court from enjoining an ongoing state criminal pro-

ceeding for reasons not related to that state prosecution.

However, even if those not parties to a state criminal pro-

ceeding may enjoin such a proceeding, they must still meet

the requirements of Younger v. Harris, supra, see e.g. Hicks

v. Miranda, 422 U.S. 332 at 349 (1975):

“The rule in Younger v. Harris, is designed to permit state

courts to try state cases free from interference by federal

courts . . . Plainly the same comity considerations apply

.. . Where the interference is sought by some, such as

appellees, not party to the state case.”

In Kugler v. Helfont, 421 U.S. 117 (1975) the Supreme Court

reviewed its holding in Younger and listed the circumstances

under which a federal court might intervene in a pending

state criminal prosecution:

17

“Accordingly, the court held that in the absence of ex-

ceptional circumstances creating a threat of irreparable

injury ‘both great and immediate, a federal court must

not intervene by way of either injunction or declaratory

judgment in a pending state criminal prosecution.” (421

U.S. at 123) (Emphasis added )

The Younger court also left room for federal intervention

where there is a showing of “bad faith” or “harrassment” by

state prosecuting officials, where the statute involved is pat-

ently and flagrantly unconstitutional, or where there exists

other “extraordinary circumstances” in which the necessary

irreparable injury can be shown. It is fundamental that the

party seeking injunctive relief must plead, and the court

must find, irreparable injury before a federal court will enjoin

an ongoing state criminal prosecution. Dyson v. Stein, 401

U.S. 200 (1971); Douglas v. City Jeannette, 319 U.S. 157

(1943); Kugler v. Helfont, supra. In the present case the

lower court made no such finding.

Out-of-state attorneys Fahringer and Cambria alleged irre-

parable injury in the loss of their attorney-client relationship

with Flynt and Hustler Magazine, Inc. Presumably the real

basis of their alleged loss is the loss of their fee for legal

461 F. 2d 703 (1972). Thus it would seem that financial loss

18

is not such an irreparable injury as would allow intervention.

If the defendants financial loss is insufficient to justify federal

intervention, his would-be attorneys’ loss of a fee is a no more

valid reason.

The enjoining of an ongoing state criminal prosecution by

the federal courts here to protect the financial interests of

persons who are not defendants in that state court prosecu-

tion raises an issue as to abstention which the Supreme Court

has never dealt with. It is submitted that this issue is a

serious one which this Court should review.

b.) Conflict with Other Courts of Appeal

The decision of the Sixth Circuit Court of Appeals in this

case to enjoin an ongoing state criminal prosecution in order

to protect the financial interests of out-of-state counsel is in

direct conflict with a decision by the Second Circuit Court of

Appeals. The case in reference is Bedrosian v. Mintz, 518

F. 2d 396 (C.A. 2, 1975). That case involved out-of-state

counsel who wished to represent defendants in state criminal

prosecutions arising out of the Attica prison riots. These

out-of-state counsel were not licensed to practice in New

York. The New York trial courts did admit out-of-state coun-

sel pro hac vice, but refused to pay them with state funds

to represent indigent defendants.

These out-of-state attorneys sought relief in the federal

courts, requesting that ongoing state criminal prosecutions

be enjoined until the out-of-state attorneys were assured of

financial renumeration. The Second Circuit, in Bedrosian,

refused to provide the relief requested and allowed the state

criminal prosecutions to proceed. The basis of the decision

in Bedrosian was that federal courts should not interfere in

ongoing state proceedings over a collateral matter. The Sec-

ond Circuit relied on the case of Stefanelli v. Minard, 342 U.S.

117 (1951) as a basis for its decision.

The conflict here is obvious. The Second Circuit refused

to enjoin an ongoing state criminal prosecution to protect

19

the financial interest of out-of-state counsel, while the Sixth

Circuit in this case has enjoined an ongoing state criminal

proceeding to protect the financial interest of out-of-state

counsel. For this reason a Writ of Certiorari is applicable

to resolve this conflict.

CONCLUSION

The decision of the lower court forcing Ohio trial courts

to allow foreign counsel, not admitted to the Ohio bar, to

practice in the Ohio courts is in conflict with decisions of

this Court. The lower courts action in enjoining an ongoing

state criminal prosecution to protect the financial interests of

one not a party to that prosecution raises a serious question

concerning the doctrine of abstention which has never been

dealt with by this court and which is in conflict with a de-

cision of another Court of Appeals.

For these reasons, a Writ of Certiorari should issue to

review the judgment and opinion of the Sixth Circuit in this

matter.

Respectfully submitted,

FRED J. CARTOLANO

First Assistant Prosecuting Attorney

420 Hamilton County Court House

Court & Main Streets

Cincinnati, Ohio 45202

Counsel for Petitioner

WILLIAM E. BREYER

Assistant Prosecuting Attorney

420 Hamilton County Court House

Court & Main Streets

Cincinnati, Ohio 45202

Of Counsel

la

APPENDIX

No. 77-3426

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Larry Fiynt, HustLeR MAGAZINE, |

Inc., HERALD Price FAHRINGER, and

Pau J. CamBnriA, JR.,

Plaintiffs-Appellees,

i APPEAL from the

‘ United States District

Simon L. Leis, JR., HonorasLeE Wn-| Court for the South-

Liam J. Morrissey, Honoraste| ern District of Ohio.

Rosert S. Krart, and THe Hami.-

TON County Court or CoMMON

PLEAS,

Defendants-Appellants.

Decided and Filed April 12, 1978.

Before: Livery, Encet and Merritt, Circuit Judges.

Merritt, Circuit Judge. The Court of Common Pleas of

Hamilton County, Ohio, has refused to allow two out-of-state

lawyers, Harold Price Fahringer and Paul J. Cambria, Jr.,

to appear pro hac vice (meaning “for this turn” or case)

on behalf of publisher Larry Flynt and Hustler Magazine,

Inc., defendants in a pending state criminal obscenity case. Af-

ter an unsuccessful attempt to obtain a writ of mandamus from

the Supreme Court of Ohio, the two lawyers and their clients

filed a complaint in the United States District Court for the

2a

Southern District of Ohio. They alleged a violation of the

Sixth and Fourteenth Amendments and claimed federal juris-

diction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

The District Court concluded that the attorneys’ procedural

due process rights under the Fourteenth Amendment were

violated because the state court failed to hold a hearing be-

fore barring the attorneys’ appearance pro hac vice. The Dis-

trict Court issued an injunction against the judges of the

Court of Common Pleas and the local prosecutor, enjoining the

prosecution of Flynt and Hustler temporarily until the two at-

torneys are granted a due process hearing. The judges and the

prosecutor appeal. They argue that under the principle of

Younger v. Harris, 401 U.S. 37 (1971), the federal court is

precluded from enjoining the state prosecution, and that the

two out-of-state lawyers were, in any event, properly refused

pro hac vice admission.

We hold that the lawyers’ rights of procedural due process

were abridged and that the federal injunctive remedy does

not transgress the principles of Younger v. Harris because the

lawyers do not have an adequate state remedy in the pending

state court proceedings.

I. STATEMENT OF THE CASE

A. The State Court Proceedings

Flynt and Hustler Magazine were indicted on February 8,

1977, under Ohio Revised Code § 2907.31 for disseminating

material harmful to juveniles. The material in question was

a publication entitled “War, The Real Obscenity,” containing

photographs which, according to the indictment, displayed “in

lurid detail the violent physical torture, dismemberment, de-

struction or death of a human being.” On February 25, 1977,

the defendants were arraigned before Judge Rupert Doan.

Prior to the arraignment, counsel-of-record forms were filed

with the clerk of the Court of Common Pleas designating

Fahringer as counsel for the defendant Flynt, Cambria as

counsel for Hustler Magazine, and Andrew B. Dennison, a

3a

member of the Ohio Bar, as counsel for both defendants.

These forms were approved and ordered entered of record

by Judge Doan on February 23, 1977. The Judge made the

entry under local Rule 10(F), which provides that the court

itself must approve and enter counsel’s appearance in the

case and that trial counsel may not thereafte: withdraw with-

out court permission."

On March 9, 1977, Judge William J. Morrissey, to whom

the case was assigned for trial, advised Dennison that Fahring-

er and Cambria would be stricken as counsel of record in the

case. They appeared before Judge Morrissey on April 8,

1977. Without granting the lawyers a hearing, he said simply

that “Mr. Fahringer and Mr. Cambria are not attorneys of

record in this case and will not be permitted to try this case”

and told Flynt, “you will be restricted to having an attorney

that’s admitted to practice in the State of Ohio.” No other

explanation was given.

A mandamus action was then filed in the Ohio Supreme

Court, as well as an affidavit of bias and prejudice against

Judge Morrissey. In a brief order the Court dismissed the

mandamus action without explaining its reasons but granted

the request to remove Judge Morrissey from the case. The

-ase was reassigned for trial to Judge Robert Kraft who heard

argument on whether the lawyers should be readmitted. Judge

Kraft concluded that he was “bound” by the Ohio Supreme

Court’s decision dismissing the mandamus action and that he

did not have the power to reopen the question.

‘Rule 10(F) provides: “Any attorney who accepts private em-

ployment in any criminal case shall be required to sign the fol-

lowing entry which shall be filed with the papers in the case: [Style

of case] . . . . The undersigned has been retained as counsel for the

above named defendant and moves the Court that such fact be

entered of record. [Signature of Attorney] .. . . It is so ordered.

[Signature of Judge] . . . . Thereupon such attorney shall become

Attorney of Record upen the Journal of this Court and shall not be

permitted to withdraw except upon written motion and for good cause

re EO

4a

B. Admissions Pro Hac Vice Under Ohio Law

The Court of Common Pleas has no rule which specifically

permits pro hac vice admission of out-of-state attorneys, but

Rule I, § 8(C) of the Supreme Court of Ohio Rules for the Gov-

ernment of the Bar of Ohio allows “participation by a non-

resident of Ohio in a cause being litigated in this state when

such participation is with leave of the judge hearing such

cause.” The desirability of pro hac vice admissions is also

recognized by Canon 3 of Ohio's Code of Professional Re-

sponsibility which provides in part:

[T]he legal profession should discourage regulation that

unreasonably imposes territorial limitations upon the right

of a lawyer to handle the legal affairs of his client or

upon the opportunity of a client to obtain the services of

a lawyer of his choice in all matters including the presen-

tation of a contested matter in a tribunal before which

the lawyer is not permanently admitted to practice.*

The case law in Ohio establishes that the decision to grant

special permission to appear is a matter “lying within the

sound discretion of the trial court.”*

It is customary in Cincinnati for the Court of Common

Pleas to allow out-of-state counsel to appear pro hac vice.

The same two out-of-state lawyers had previously appeared as

trial counsel in other cases in Judge Morrissey’s court without

incident, and both appear to have exemplary academic and

professional qualifications, including extensive experience

handling First Amendment cases in state and federal courts.

229 Ohio St. 2d xxiv (1972).

323 Ohio St. 2d 23 (1970). This language is the same as Canon

3, Ethical Consideration 3-9 of the American Bar Association’s Code

of Professional Responsibility, which has been adopted in Ohio and

many other states.

“State v. Ross, 304 N.E.2d 396, 399, 36 Ohio App.2d 185, 188

(1973), cert. denied, 415 U.S. 904 (1974).

5a

C. The Federal Court Proceedings

The two out-of-state lawyers and their clients filed a com-

plaint in the United States District Court for the Southern

District of Ohio asking for a finding that their Sixth and

Fourteenth Amendment rights had been violated and for an

injunction temporarily delaying the state criminal trial until

after the state court held a hearing to consider pro hac vice

admission of the two attorneys.

The District Court found that the state court routinely

admitted out-of-state lawyers pro hac vice in other cases with-

out any procedural requirements apart from the filing and

court approval of counsel-of-record forms, that such forms

had been filed by Cambria and Fahringer and approved by

court order, and that the state court had then removed the

two lawyers from the case without an opportunity for a

hearing and without a statement of reasons.

The District Court held that counsel may not be refused

appearance pro hac vice except upon a showing of prior un-

ethical conduct or refusal to abide by the canons of ethics

or the rules of the court. It did not reach the issue of whether

the constitutional rights of Flynt and Hustler Magazine had

also been violated. The court noted the general rule that

federal courts must not enjoin pending state criminal prosecu-

tions except under extraordinary circumstances, Younger v.

Harris, 401 U.S. 37 (1971), but it went on to hold that fed-

eral interference in the present case was justified since the

two attorneys could not vindicate their federal rights in the

ongoing state proceedings. On these grounds, the District

Court issued an injunction against the Court of Common

Pleas, temporarily enjoining the prosecution of the state action

pending a hearing on the question of the admission of the

lawyers pro hac vice. No hearing has yet been held.

Le

6a

Il. THE PROCEDURAL DUE PROCESS ISSUE

A client may terminate a lawyer’s services without cause

or reason, but due process and elementary fairness require

that we observe certain principles for the protection of lawyer

and client when a judicial officer discharges the lawyer. In

order to insure regularity and impartiality in the administra-

tion of justice and secure the similar treatment of similar

cases, judges may not upset reasonable expectations in the

important affairs of life such as employment of counsel with-

out a hearing, the application of a reasonably clear standard,

and a statement of reasons. Otherwise, it would be too easy

to justify, and too difficult to remedy, random arbitrariness and

sporadic injustice.§

Precedent requires us to apply these principles of due

process to the licensing and removal of officers of the court,

including admissions pro hac vice. Federal courts have fre-

quently invalidated arbitrary restrictions on bar admissions and

the practice of law. Over one hundred years ago, the Supreme

Court, in Ex parte Garland, invalidated a federal statute ex-

cluding Confederate sympathizers from practice in federal

courts. In Konigsberg v. State Bar? and Schware v. Board of

Bar Examiners,? the Supreme Court held that California and

New Mexico violated the Fourteenth Amendment by applying

in an arbitrary way a vague standard in order to deny bar

5 For a discussion of the reasons underlying basic procedural due

process rights, see Dworkin, Taking Rights Seriously 14-45 (1977);

Rawls, A Theory of Justice 235-38 (1971).

671 U.S. (4 Wall.) 333 (1867).

7353 U.S. 252 (1957).

8 353 U.S. 232, 239 n. 5 (1957): “We need not enter into a discus-

sion whether the practice of law is a ‘righ’ or ‘privilege.’ Regardless

of how the State’s grant of permission to engage in this occupation

is characterized, it is sufficient to say that a person cannot be pre-

vented from practicing except for valid reasons. Certainly the practice

of law is not a matter of the State’s grace.”

7a

admission to applicants who had formerly belonged to the

Communist party.’ In a recent series of cases the Supreme

Court has invalidated attempts by state bar associations to

prohibit group legal services plans.'¢

Due process and equal protection principles also apply to

admission to practice pro hac vice. Judge Herbert Goodrich,

writing for the Third Circuit in Cooper v. Hutchinson,"" held

that a state judge violated due process and the federal civil

rights law in a New Jersey murder trial when, without a mean-

ingful hearing or statement of reasons, he withdrew permission

for out-of-state counsel to appear. Likewise, in Ross v. Reda,"?

this Circuit, while upholding a state judge’s exclusion of out-

of-state counsel for cause, suggested that “the prerogative of

a trial judge to exclude out-of-state counsel, like the right

of a defendant to be represented by the counsel of his choice,

is not an absolute right,”"* and may not be exercised arbi-

trarily. Defendants conceded at oral argument that an out-

of-state lawyer could not be refused pro hac vice admission

on grounds of race or for other constitutionally forbidden

reasons. Of course, it is impossible to know whether a court

based its decision on such factors if the court does not grant

a hearing or give reasons for its refusal.

The longstanding practices and customs of the legal pro-

* The Supreme Court has long held that the Fourteenth Amendment

prohibits state imposition of an arbitrary standard or the arbitrary

application of an inoffensive :tandard in order to deny employment

opportunities to individuals. See, e.g., Yick Wo v. Hopkins, 118 U.S.

356 (1886); Wieman v. Updegraff, 344 U.S. 183 (1952); Slochower

v. Board of Higher Educ., 350 U.S. 551 (1956).

10 See NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of R.R.

Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964);

UMW Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217 (1967); United

Transp. Union v. State Bar, 401 U.S. 576 (1971). The states argued

in these cases that such group legal activities constitute the unauthorized

practice of law.

11184 F.2d 119 (3d Cir. 1950).

12510 F.2d 1172 (6th Cir. 1975), cert. denied 423 U.S. 892.

137d. at 1173.

8a

fession lead us to the same conclusion. Representation pro

hac vice is not a new privilege. A long legal tradition supports

such appearance by the American lawyer licensed in a sister

state and the English barrister admitted under the auspices

cf a different court or Inn. The custom was well-recognized

by English judges in the seventeenth century and by American

judges by the middle of the nineteenth century, Judge Good-

rich reports in Cooper v. Hutchinson." In many instances

private and public interests are well-served by lawyers who

travel to other states and countries to plead a client’s cause.

Practically all of our states by statute or court rule, and the

federal courts by custom or rule, now make provision for

special court appearances by lawyers licensed in other juris-

dictions;'5 and several countries allow foreign lawyers to ap-

pear pro hac vice, including the federal and local courts in

Germany, Switzerland and Canada.'®

Nonresident lawyers have appeared in many of our most

celebrated cases. For example, Andrew Hamilton, a leader of

the Philadelphia bar, defended John Peter Zenger in New

York in 1735 in colonial America’s most famous freedom-of-

speech case.'7 Clarence Darrow appeared in many states to

plead the cause of an unpopular client, including the famous

Scopes trial in Tennessee where he opposed another well-

known, out-of-state lawyer, William Jennings Bryan. Great

lawyers from Alexander Hamilton and Daniel Webster to

Charles Evans Hughes and John W. Davis were specially ad-

14184 F.2d 119, 122 (3d Cir. 1950).

13See Katz, Admission of Nonresident Attorneys Pro Hac Vice,

Research Contributions of the American Bar Foundation, No. 5 (1968);

Brakel and Loh, Regulating the Multi-State Practice of Law, 50 Wash.

L. Rev. 699 (1975); Note, Easing Multi-State Practice Restrictions —

“Good Cause” Based Limited Admission, 29 Rutgers L. Rev. 1182

(1976); Note, Appearances By Out-of-State-Counsel, 9 Conn. L. Rev.

136 (1976).

16 See Comment International Legal Practice Restrictions on the

Migrant Attorney, 15 Harv. Int'l L. J. 298 (1974).

'7 See Alexander, The Trial of John Peter Zenger 17-26, 61 (1963).

mitted for the trial of important cases in other states. A

small group of lawyers appearing pro hac vice inspired and

initiated the civil rights movement in its early stages. In a

series of cases brought in courts throughout the South, out-

of-state lawyers Thurgood Marshall, Constance Motley and

Spotswood Robinson, before their appointments to the federal

bench, developed the legal principles which gave rise to the

civil rights movement."*®

There are a number of reasons for this tradition. “The de-

mands of business and the mobility of our society” are the

reasons given by the American Bar Association in Canon 3

of the Code of Professional Responsibility. That Canon dis-

courages “territorial limitations” on the practice of law, in-

cluding trial practice.'® There are other reasons in addition

to business reasons. A client may want a particular lawyer

for a particular kind of case, and a lawyer may want to

take the case because of the skill required. Often, as in the

case of Andrew Hamilton, Darrow, Bryan and Thurgood

Marshall, a lawyer participates in a case out of a sense of

justice. He may feel a sense of duty to defend an unpopular

defendant and in this way to give expression to his own moral

sense.2° These are important values, both for lawyers and

clients, and should not be denied arbitrarily.

Ohio has no specific standards regarding pro hac vice ad-

missions, and we cannot define with certainty the status of

the lawyers at the moment they were dismissed. The state

court had approved their counsel of record forms at arraign-

ment and had allowed the lawyers to participate in the in-

itial steps of the state court proceeding. They had an agree-

ment with their clients, and once the court authorized them

to act, their obligations to their clients and their reasonable ex-

18 See Kluger, Simple Justice (1975).

19 See text accompanying note 3, supra.

20 See Fried, An Anatomy of Values 132-36 (1972).

10a

pectations of professional service were strengthened, whatever

may have been the nature of their interests when they or-

iginally sought admission. Their interests had developed to

a point where the court's action in removing them not only

deprived them of their expectation of service and remunera-

tion but also adversely reflected upon their competence and

integrity. Due process standards may perhaps differ depend-

ing on the stage of the proceedings, but here the lawyers’

interest had clearly advanced to a stage where, as a matter

of due process, they could not be denied the right to appear

without a meaningful hearing, the application of a reasonably

clear legal standard and the statement of a rational basis for

exclusion.

Ill. THE YOUNGER v. HARRIS

ABSTENTION DOCTRINE

The second argument of the state judges and prosecutor is

based on a judge-made principle of judicial restraint enun-

ciated in 1971 in Younger v. Harris.2"_ There a federal district

court held California’s criminal syndicalism statute unconsti-

tutional and enjoined a pending state court prosecution under

the statute. Issuing a broad call for judicial restraint in fed-

eral cases which may disrupt and offend state courts (“the

normal thing to do when federal courts are asked to enjoin

pending proceedings in state court is not to issue such in-

junctions” ),?? the Supreme Court decided under principles of

equity and comity that lower federal courts should not en-

join a pending state criminal prosecution when the consti-

tutional claimant has an adequate opportunity to raise his

claim in the course of the state proceedings and an adequate

state remedy appears to be available.

The first reason given in Younger for the “longstanding pub-

21401 U.S. 37 (1971).

22 Id. at 45.

lla

lit policy against federal court interference with state court

proceedings” is “the basic doctrine of equity jurisprudence

that courts of equity should not act, and particularly should

not act to restrain a criminal prosecution, when the moving

party has an adequate remedy at law and will not suffer ir-

reparable injury if denied equitable relief."*2 The second

reason is comity, “a proper respect for state functions . . .

and . . . the belief that the National Government will fare

best if the States and their institutions are left free to perform

their separate functions in their separate ways.”4

The Younger abstention doctrine rests on the presumption

that an adequate state remedy for the federal claim exists, and

it is based on strong, practical considerations.24 The doc-

trine applies only to cases in which a state court proceeding

is already pending and expresses a preference in such cases

for a resolution of the constitutional issues in the state court,

- thereby conserving legal manpower and litigant time and

expense, minimizing delay, and encouraging compliance with

state criminal laws. It recognizes and encourages fairness and

increasing sensitivity by state courts in matters of constitutional

law?* and avoids unseemly conflict between court systems and

judicial officers.?”

The Supreme Court in Monroe v. Pape,?* decided ten years

before Younger, opened up the federal courts to a flood of

23 Id. at 43-44.

24 Id. at 44.

25 See Developments in the Law, Section 1983 and F -deralism, 90

Harv. L. Rev. 1133, 1282-87 (1977).

26 See Brennan, State Constitutions and the Protection of Individual

Rights, 90 Harv. L. Rev. 489 (1977).

27 For a brief description of how destructive competition among the

prerogative, chancery and law courts undermined the legal system in

17th century England, see Plucknett, A Concise History of the Common

Law 191-98 (5th ed. 1956).

28 365 U.S. 167 (1961).

l2a

civil rights cases when it concluded that plaintiffs may bring

a claim in federal court under § 1983 without exhausting their

state judicial remedies. The effect was to create two com-

peting forums or court systems for constitutional litigants to

choose between. From 1960 to 1976, the number of civil

rights cases filed in the federal courts increased from 280

to 12,392.2° If, in addition, every arguably erroneous ruling

by a state trial judge which might affect a defendant's con-

stitutional rights were subject to immediate review and cor-

rection by a federal court, the present system of federal courts

could probably not survive.

On the other hand, federal courts must also be sensitive to

competing considerations, particularly the responsibility of

federal courts to uphold national law and guard against the

abridgement of federally-created rights, and they must not

use the abstention doctrine as a pretext for allowing constitu-

tional wrongs to go vnremedied. We do not apply the ab-

stention doctrine correctly if we view it as a return to the

concepts of state sovereignty that existed during the era of

Chisolm v. Georgia,*® the Anti-Injunction Act of 1793°' and

the adoption of the Eleventh Amendment.3? Our concepts of

federal judicial responsibility in relation to the states have

changed over time with the adoption of the Civil War Amend-

ments, the Civil Rights Acts, the assignment of civil rights

and general federal question jurisdiction to the federal courts

29 See the 1976 Annual Report of the Director of the Administrative

Office of the United States Courts, Table 16.

30 2 U.S. (2 Dall.) 419 (1793). See Goebel, History of the Supreme

Court of the United States, Antecedents and Beginnings to 1801, 722-

60 (1971).

31 Section 5, 1 Stat. 334-335 (1793): “[A] writ of injunction [shall

not] be granted to stay proceedings in any court of a state.” The cur-

rent version of this statute, as amended, is codified in 28 U.S.C. § 2283

(1970) and now contains an exception allowing such injunctions in

§ 1983 actions, Mitchum v. Foster, 407 U.S. 225 (1972).

32 See generally Jacobs, The Eleventh Amendment and Sovereign

Immunity (1972).

13a

and the gradual change in our thinking about equal protection

and due process following the two World Wars.

In weighing the various competing interests, Younger ap-

pears to strike this balance: Federal courts must abstain in

favor of pending state court proceedings when good reasons

exist for assuming that in the absence of federa. intervention

an adequate state remedy is available to correct the claimed

constitutional violation.

In the instant case the out-of-state lawyers do not have an

adequate state remedy for the due process violation, and we

therefore affirm the decision of the court below enjoining

temporarily the state court proceedings pending a due process

hearing. Without a meaningful hearing, the application of

a clear legal standard, or a statement of reasons, the state trial

judge removed out-of-state lawyers who, along with their

clients, unsuccessfully carried the issue to the state supreme

court where the appeal was dismissed, again without a state-

ment of reasons. A second trial judge assigned to the case

then refused to reconsider the issue on the grounds that the

state supreme court order dismissing the appeal constituted a

final decision precluding the lawyers from participation. These

facts not only convince us that we may not justifiably assume

that an adequate state remedy in the pending proceedings ex-

ists; it also appears that the lawyers have in fact exhausted

their state trial and appellate remedies prior to filing this

case.*4

We do not ignore the possibility that the other plaintiffs,

33 Where the burden of persuasion of showing the “adequacy” or

“inadequacy” of state remedies should be placed is a question as yet

unanswered. In view of the difficulty of assessing in advance the

“adequacy” of state remedies in hard cases, the current Younger stan-

dard may move toward the requirement of exhaustion of state remedies

in the pending state case, including the exhaustion of appellate remedies.

34 Since the lawyers have exhausted their state remedies, the Pull-

man abstention doctrine is inapplicable. Under that doctrine, the

federal action is stayed while the parties attempt to resolve in state court

unsettled issues of state law which may make the resolution of the

l4a

Flynt and Hustler Magazine, could raise a Sixth Amendment

claim at trial and, if convicted in the Court of Common Pleas,

upon direct appeal in state court. While this issue is not ad-

dressed by the parties, we have no reason to doubt that the

Sixth Amendment claim can be raised as a defense or that the

remedy provided by the state court system on appeal would

be adequate to vindicate Sixth Amendment rights. As parties

to the pending prosecution, however, Flynt and Hustler Maga-

zine are in a different position than their attorneys, who are

unable to raise their constitutional claims as a defense to the

prosecution at trial or on appeal. The fact that Flynt and

Hustler Magazine may have an adequate state court remedy

cannot protect the separate employment interests of the

lawyers. Neither party has suggested that the current state

proceedings would provide an avenue for vindication of the

lawyers’ rights.

We also note that the considerations of comity in the pres-

ent case are much less significant than in Younger and in

other cases where the doctrine has been invoked. While the

relief sought by the plaintiffs necessarily entails a delay in

the state court criminal prosecution, the grant of relief will

not permanently prevent the prosecution. Following the hear-

ing, the state prosecution may go forward on the merits. The

grant of relief by the federal court will not prevent the state

from interpreting and enforcing its own criminal laws.

Thus the equity and comity considerations here are rot

the same as in Younger, while the need for a remedy in fed-

eral court is strong. We find support for the distinctions we

federal constitutional claim in federal court unnecessary. See Railroad

Comm'n v. Pullman Co., 312 U.S. 496 (1941); Field, The Abstention

Doctrine Today, 125 U. Pa. L. Rev. 590 (1977); Field, Abstention

in Constitutional Cases: The Scope of the Pullman Abstention Doctrine,

122 U. Pa. L. Rev. 1071 (1974). For a case applying the Pullman

doctrine in order to allow state courts to decide unsettled questions

concerning pro hac vice admissions, see Silverman v. Browning, 359

F. Supp. 173 (D. Conn. 1972), affd mem., 411 U.S. 941 (1973),

further considered after state court review, 414 F. Supp. 80 (D. Conn.

1976), affd mem., 429 U.S. 876 (1976).

15a

have drawn above in the recent case of Gerstein v. Pugh.**

There Florida state authorities initiated a state criminal prose-

cution by filing a prosecutor’s information rather than by grand

jury indictment. Under this procedure neither a prior finding

of probable cause nor a subsequent preliminary hearing was

necessary. In a federal action filed by claimants who were

defendants in the pending state prosecution, the Supreme

Court required that the state grant defendants a preliminary

hearing to determine whether there was a probable cause to

support detention under the information. The court held the

abstention doc'rine no bar to the federal action because the

“legality of pretrial detention without a judicial hearing” is

a collateral “issue that could not be raised in defense of the

criminal prosecution” and, therefore, “could not prejudice the

conduct of the trial on the merits.”** Similarly, in the pres-

ent case, the exclusion of the lawyers is a collateral issue un-

related to the merits of the state criminal case. As the court

said in Gerstein, “the injunction was not directed at the state

prosecution as such;” it only required the state court to

hold a hearing on a collateral issue.*”

Finally, it seems that we would be in the position of de-

ciding the merits of the lawyers’ due process claim if we

abstained. We would have to find that a remedy which is

insufficient for purposes of due process — no hearing and no

statement of reasons — is a sufficient remedy for purposes of

abstention. We think the two standards are approximately the

same for purposes of this case. On the merits of the procedural

due process issue, the state remedies are constitutionally in-

adequate, and they are also inadequate to support abstention.

The decision of the District Court is, therefore, affirmed.

35 420 U.S. 103 (1975).

36 Jd. at 108 n. 9.

37 Id. We recognize, of course, that Gerstein is not directly on point.

There the injunction did not delay the prosecution but merely reached

the issue of confinement pending trial; here the effect has been to

halt the state criminal proceedings, although only temporarily.