Petition for Writ of Certiorari — Gedan v. Partington
Supreme Court brief1990
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FILED
MAR 22 1990
WOSEPH F. SAPNIOL, JR.
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In The -~
Supreme Court of the United States
October Term 1989
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JOSEPH M. GEDAN, et al.,
Petitioners,
EARLE A. PARTINGTON, and HAWAII ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS,
Respondents.
+
=
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
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-
WARREN Price, III*
Attorney General
State of Hawaii
*Counsel of Record
CorINNE K.A. WATANABE
First Deputy Attorney General
State of Hawaii
STEVEN S. MICHAELS
Deputy Attorney General
State of Hawaii
State Capitol
Honolulu, Hawaii 96813
(808) 548-4740
Counsel for Petitioners
COCKLE LAW BRIEF PRINTING CO, (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Whether, assuming Fed. R. Civ. P. 11 applies to
the conduct of appellees in the federal courts of appeals,
the court of appeals’ award of Rule 11 sanctions against
State officials, who invoked Fed. R. App. P. 38 to recoup
their damages incurred in a successful defense on appeal
of a dismissal of a civil suit filed in federal district court
under 42 U.S.C. § 1983 seeking to restrain ongoing state
attorney disciplinary proceedings, is an improper erosion
of Rule 38 and this Court’s settled jurisprudence govern-
ing such collateral challenges, e.g., Middlesex County Eth-
ics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423 (1982),
and Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987)?
2. Whether, in cases where sanctions agains! Appel-
lee parties are not found by a court of appeals to be
warranted under 28 U.S.C. § 1927, Fed. R. App. P. 46, or
the court’s inherent power, such a court may still impose
sanctions against such parties under a federal common
law of sanctions embodying an adoption of Fed. R. Civ. P.
11 for appellate filings on the theory that Rule 11 is
“relevant” to proceedings or appeal?
3. Whether the summary award of Rule 11 sanctions
on appeal on the basis of “motions” made solely in a
Reply and Amicus Brief, and where Petitioners were not
otherwise notified that sanctions against them were con-
templated, constitutes such a departure from due process
precepts as to warrant this Court’s correction under this
Court’s supervisory authority?
PARTIES IN THIS COURT
Petitioners in this Court include Joseph M. Gedan,
the Rule 13 Special Master in proceedings docketed in the
Supreme Court of Hawaii variously as In re: Earle A.
Partington (Haw. Spec. Master filed 1986), or State v.
Clarke, No. 10041 (Haw. Spec. Master filed 1986), and a
defendant in the district court and an appellee in the
appeal below, which sought solely equitable relief. Be-
cause of the course of proceedings, it is Petitioners’ view
that Special Master Gedan was a party in the court of
appeals solely in his official capacity, and the sanction
against him, of which review is sought, is against him
solely in that capacity. See Kentucky v. Graham, 473 U.S.
159, 167 n.14 (1985) (quoting Brandon v. Holt, 469 U.S. 464,
469 (1985)). However, Special Master Gedan also appears
in his individual capacity in the event the judgment be-
low against him is in such a capacity. Id. Petitioners also
include Howard T. Chang, Rule 13 prosecutor in the Rule
13 proceedings, and a defendant-appellee below, who
appears in his official and individual capacities in the
same manner as does Special Master Gedan. Mark J.
Bennett, Esq., appointed to succeed Petitioner Howard T.
Chang as Rule 13 prosecutor in February, 1990, is also a
Petitioner, but appears solely in his official capacity.
Respondents include Earle A. Partington, Esq., a
Honolulu attorney and plaintiff and appellant in the
courts below, and the Hawaii Association of Criminal
Defense Lawyers, which was allowed to participate in
both courts below as an amicus curiae, and which is a
judgment creditor under the Ninth Circuit ruling.
ili
TABLE OF CONTENTS
Page
OE gS Ol 0 ea i
8 Ee 8 | 4 Se ii
a 9 aa ili
ee 8) | V
I ene. ee 1
I re 2
CONSTITUTIONAL, STATUTORY, AND RULE PRO-
gs 8S : Sr ne Saar 2
Peeememeres Gor Pte CASE. ... 0... desc cecccneane +
A. Background of the Litigation: Supreme Court
of Hawaii Rule 13 and the Protections Avail-
able to Respondent Counsel................. 7
B. The Rule 13 Proceedings Here and Proceedings
in the United States District Court........... 9
C. Proceedings in the United States Court of Ap-
Sh re 11
REASONS FOR GRANTING THE WRIT ........... 16
A. Review Should Be Granted to Correct the
Court of Appeals’ Departure, in Punishing Pe-
titioners’ Request for Appellate Damages,
From Settled Abstention and Constitutional
ee Seach ik GaSe en vee 5 18
B. Review Should Be Granted Because Unre-
stricted Availability of Rule 11 Sanctions in the
Courts of Appeals is Contrary to the Remedial
Structure Established by Congress and This
Court 21
iv
TABLE OF CONTENTS —- Continued
Page
C. Review Should Be Granted To Correct the
Court of Appeals’ Departure From Settled Pro-
cedure in Awarding Sanctions............... 23
Ree ENTS os Ree ak hee es Vee Pepe ere 25
TABLE OF AUTHORITIES
Page
CASES:
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) ..... 20
Anderson v. Creighton, 483 U.S. 635 (1987) ........... 20
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .... 19
Ashwander v. TVA, 297 US. 286 (1936)....... 0.00055. 25
Atascadero State Hospital v. Scanlon, 473 U.S. 234
(1985)
Braley v. Campbeil, 832 F.2d 1504 (10th Cir. 1987) .21, 22
Burlington Northern R. Co. v. Woods, 480 U.S. 1
fs reer een were er ee nearer 19
Cleveland Board of Education v. Loudermill, 470 U.S.
Dae CUONOR: 6 ica ncnds cise cares 545acee ee hie eee 24
Cooter & Gells v. Hartmarx, No. 89-275 (U.S. Ar-
oe ee A, err rer rr ory r 3 ee
Davis v. Crush, 862 F.2d 84 (6th Cir. 1988)........... 20
Debartolo Corp. v. Florida Gulf Coast Trades Council,
BS: UB Ce ohn Sacra yeeeseueyeeeusess 5, 19
District of Columbia Court of Appeals v. Feldman, 460
ae. Re COREE ose sa enc roses Verena area 6
Edelstein v. Wilentz, 812 F.2d 128 (3d Cir. 1987)...... 20
Ene @. leanne, 456. U5. TGF (URGE): ses ss e056 cs ee aan 9
Frazier v. Heebe, 462 US. 641 (1967) .............. 23, 24
Frisby v. Schultz, 108 S.Ct. 2495 (1988)............... 19
vi
TABLE OF AUTHORITIES — Continued
Page
Glass v. Pfeffer, 849 F.2d 1261 (10th Cir. 1988)........ 20
HOH Corp. v. Licensing Board, 736 P.2d 1271 (Haw.
EA ree rr ee rye re eee ee ere ee 9
Hutto v. Davis, 454 U.S. 370 (1982)..............08.. 18
In re Mooney, 841 F.2d 1003 (9th Cir. 1988).......... 23
INVST v. Chem-Nuclear Sys., 815 F.2d 391 (6th Cir.
EE CRT R aS NESS eV ENE ROE b Aum arn eS COARSE 20
Leigh v. Engle, 858 F.2d 361 (7th Cir. 1988) .......... 22
Maier v. Orr, 758 F.2d 1578 (Fed. Cir. 1985).......... 20
Martin v. Wilks, 109 S. Ct. 2180 (1969). ............... 8
McDonald v. Smith, 472 U.S. 479 (1985).............. 21
McLaughlin v. Union Oil of California, 869 F.2d 1039
SE UN as ks cas Ne he ee ee ee eee LE kha wes 20
Meeks v. Jewel Co., 845 F.2d 1421 (7th Cir. 1988) ..16, 21
Middlesex County Ethics Comm'n v. Garden State Bar
Pee me, Sr Wi SED COIGR) es iins passim
mecore v. Sims, 442 US. 415 (1979)..............5, 6, 2 |
Murray v. The Charming Betsy, 2 Cranch 64 (1804) ..... 5
Nietzke v. Williams, 109 S. Ct. 1827 (1989) ........... 21
pee U. Wintiesige, 475.03. 157 (SBS). oo es ek )
Northwest Acceptance Corp. v. Lynwood Equipment
Inc., 841 F.2d 918 (9th Cir. 1988)
Vii
TABLE OF AUTHORITIES - Continued
Ohic Civil Rights Comm'n v. Dayton Christian
SOO, STE WE CUP GU ak 6 ses seks wenawiades 5
Partington v. Gedan, 880 F.2d 116 (9th Cir. 1989). .... passim
Paul v. Davis, 424 U.S. 693 (1976) ................ 11, 21
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) .... passim
Peralta v. Heights Medical Center, 485 U.S. 80 (1988) .... 22
Radzanower v. Touche, Ross & Co., 426 U.S. 148
| ee ee eee ee rary rere Tren = 22
Santos v. State, 64 Haw. 648, 646 P.2d 962 (1982)...... 8
State ». Antone, 62 Haw. 346, 615 P.2d 101 (1980)..... 7
State v. Clarke, No. 10041 (Haw. Spec. Master filed
RUMOR Kuk v 6s acc biweeeretbaag deena ares eee eEee passim
State v. Clarke, No. 10041 (Haw. Feb. 3, 1986)....... passim
State v. Clarke, No. 10041 (Haw. Dec. 27, 1985)...... passim
State v. Smith, 68 Haw. 304, 712 P.2d 496 (1986)...... 9
Strickland v. Washington, 466 U.S. 668 (1984).......... 7
Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d
eee 2 errr rrr ee re ere 18
Superintendent v. Hill, 472 U.S. 445 (1985) ... 0.2.2... 19
Tom Growney Equipment, Inc. v. Shelley Irrig. Dev.,
c., GIG Fae Gas CRM Ci. VSG). wis s cack acc aces 24
United States v. Riverside Bayview Homes, Inc., 474
Eee a. ee nr are reer s 25
Vili
TABLE OF AUTHORITIES - Continued
Page
Webster v. Sowders, 846 F.2d 1032 (6th Cir. 1988)..... 22
Wheat v. United States, 486 U.S. 153 (1988)............ 7
Withrow v. Larkin, 421 U.S. 43 (1976) ................ 11
Younger v. Harris, 401 U.S. 37 (1971)............. passim
Zinermon v. Burch, 58 U.S. L.W. 4223 (U.S. Feb. 27,
CONSTITUTIONAL AND STATUTORY PROVISIONS:
Pee ee I Ss sb ee emcee obec ebewe 7
ee Cea Te ED oan ook ad deux cduasewhowdaena dns 2
ee AEE oo sak shed wee ed eeeskeuand ses caka vs 2
PC Pcs un hou 5 hee da Cea kek ewan ae ond 16
Sr: SE 65k is Ck a a Ak os Rapa ene eew ens 16, 21, 22
I EE ey ca ea wk ONG Wn «ROWER OLR R SEED 3, 23
I, Se Ee Cle ay Suk uss GEE RKE DE kA RNAS 3
Se EE 00 wat NS eke Raha ba Rod Cea KR eee 2
ee Ss Oe Sk is co 8k bake eb bees teen wan passim
Haw. Rev. Stat. §§ 602-5(6) and (7)................... 8
Court Rutes:
ee ee er er ren aa at ree 3, 22
, Be 8 SS : Re ere eee 4, 7, 16,
ix
TABLE OF AUTHORITIES —- Continued
Page
ee RTT Ee Te Cee eer Tee
ee SPP ee eer eee Ter eer 22
PW: SU AS ED NV nG 4 ANS RREKM SDR REN RK TARR 1, 24
oe Se Se Peer re ee ree re Te ere passim
Ps We ME Oe Nc ouccusucenwaeaseanevesny chau 22
es rere ee neT Teer ere ye 21
a. Sapweene Court Rude 15.6 .. .. 0c cicssessticnnsas 2
eS er errr rrr re 3, 23
DR 4-101(c), codified at Hawaii Supreme Court
SO IS 56 6 onc oss k eck baa wanes cae 8
Hawaii Supreme Court Rule 13................. passim
OTHER:
ABA Standards and Guidelines, 121 F.R.D. 101........ 24
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No.
,
_
In The
Supreme Court of the United States
October Term 1989
Lp
vw
JOSEPH M. GEDAN, et al.,
Petitioners,
EARLE A. PARTINGTON, and HAWAII ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS,
Respondents.
,
-—
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
—
7
Petitioners Joseph M. Gedan, Special Master appoin-
ted by the Supreme Court of Hawaii in State v. Clarke, No.
10041 (Haw. Feb. 3, 1986), et al., officers of the State of
Hawaii (“State officials”), respectfully pray that a writ of
certiorari issue to review that part of the adverse judg-
ment and opinion (Part V thereof) of the United States
Court of Appeals for the Ninth Circuit entered in this
proceeding on March 13, 1989, as amended by the court's
orders of April 12, 1989, and July 12, 1989.
&
-
OPINIONS BELOW
The amended opinion of the Court of Appeals is
reported at 880 F.2d 116 (9th Cir. 1989), and is reprinted
1
Ps
in Appendix [“App.”] A. The order of the United States
District Court for the District of Hawaii, granting, inter
alia, defendants’ motion to dismiss is unreported and is
reprinted in App. C. Other opinions related to the peti-
tion include the ur#ported Memorandum Opinion of the
Supreme Court of Hawaii in State v. Clarke, No. 10041
(Haw. Dec. 27, 1985), which is reprinted in App. D.
”™
al
JURISDICTION
The judgment of the Court of Appeals for the Ninth
Circuit awarding sanctions against Petitioners, prevailing
parties in the Court of Appeals, for their motion seeking
to recover their fees, costs, and expenses incurred in that
successful effort, was entered on March 13, 1989. A timely
petition for rehearing was filed by Petitioners on March
27, 1989, and was denied on December 22, 1989. A peti-
tion for rehearing and suggestion of the appropriateness
of rehearing en banc filed by respondent Partington were
also denied December 22, 1989. See App. B. Under 28
USC. § 2101, and S Ct. R. 13.4, the time in which this
Petition may be filed extends to and includes March 22,
1990, and this Petition was timely filed. While the judg-
ment awarding sanctions, of which review is sought,
remanded their computation to the District Court, the
judgment is final in all relevant respects. Jurisdiction in
the District Court was alleged to have been conferred by
28 U.S.C. § 1343(3). This Court’s jurisdiction is invoked
pursuant to 28 U.S.C. § 1254(1).
- *
bi
CONSTITUTIONAL, STATUTORY, AND RULE
PROVISIONS INVOLVED
The Fifth Amendment to the Constitution provides in
relevant part that
No person shall... be deprived of life,
liberty, or property, without due process of
law. ...
K
Section 1912 of Title 28 of the United States Code
provides in relevant part that
Where a judgment is affirmed by ... a court
of appeals, the court in its discretion may ad-
judge to the prevailing party just damages for
his delay, and single or double costs.
Section 2071(a) of Title 28, United States Code, pro-
vides
The Supreme Court and all courts estab-
lished by Act of Congress may from time to time
prescribe rules for the conduct of their business.
Such rules shall be consistent with Acts of Con-
gress and rules of practice and procedure pre-
scribed under section 2072 of this title.
Section 2072 of Title 28, United States Code, provides
(a) The Supreme Court shall have the power
to prescribe general rules of practice and pro-
cedure and rules of evidence for cases in the
United States district courts (including proceed-
ings before magistrates thereof) and courts of
appeals.
(b) Such rules shall not abridge, enlarge or
modify any substantive right. All laws in con-
flict with such rules shall be of no further force
of effect after such rules have taken effect.
Rule 38 of the Federal Rules of Appellate Procedure
provides
If a court of appeals shall determine that an
appeal is frivolous, it may award just damages
and single or double costs to the appellee.
Ninth Circuit Rule 1-1 provides in relevant part that
The Federal Rules of Civil Procedure and
the Federal Rules of Criminal Procedure, when-
ever relevant, are adopted as part of the rules of
this court.
Rule 1 of the Federal Rules of Civil Procedure pro-
vides in relevant part that
These rules govern the procedure in the
United States district courts in all suits of a civil
nature... .
4
Rule 11 of the Federal Rules of Civil Procedure pro-
vides in relevant part that
The signature of an attorney or party [upon
a pleading, motion, or other paper] constitutes a
certification by the signer that the signer has
read the pleading, motion, or other paper; that
to the best of the signer’s knowledge, informa-
tion, and belief formed after reasonable inquiry
it is well grounded in fact and is warranted by
existing law or a good faith argument for the
extension, modification, or reversal of existing
law... .I[f a pleading, motion, or other paper is
signed in violation of this rule, the court, upon
motion or upon its own initiative, shall impose
upon the person who signed it, a represented
party, or both, an appropriate sanction, which
may include an order to pay to the other party
or parties the amount of the reasonable ex-
penses incurred because of the filing... .
Hawaii Supreme Court Rule 13 is reprinted in Ap-
pendix E.
»
bj
STATEMENT OF THE CASE
For nearly two decades, the rule of restraint laid
down in Younger v. Harris, 401 U.S. 37 (1971), has been an
established part of this Court’s commitment to maintain-
ing “the comity between the States and the National
Government” and avoidance of “unwarranted determina-
tion of federal constitutional questions.” Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 15 (1987). Its main premise is that
“Iclertain types of injury, in particular, the cost, anxiety
and inconvenience of having to defend against a single
criminal [or important civil] prosecution, could not by
themselves be considered ‘irreparable’ in the special legal
sense of that term.” Younger, 401 U.S. at 46. The mandate
to dismiss collateral federal equitable claims, which, if
granted, would interfere with ongoing state proceedings
5
that offer an adequate opportunity to raise federal de-
fenses, has been held by this Court to be applicable in
numerous cases. Ohio Civil Rights Comm’n v. Dayton Chris-
tian Schools, 477 U.S. 619, 627 (1986). While not all such
expansions have been met with unanimous approval,
Younger’s extension to suits seeking to restrain state attor-
ney disc:plinary proceedings “within the jurisdiction of
the appropriate State Supreme Court” (id.) has this
Court’s unquestioned support. See Middlesex County Eth-
ics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423 (1982)
(majority op.); 1d. at 438 (op. of Marshall, Brennan, Black-
mun, and Stevens, JJ.).
It is also clear that Younger concerns are at their
zenith when state courts have not been given the chance
to pass on federal claims. The rule that a federal plaintiff
must show “state procedural law bar[s] presentation of
[its] claims,” Moore v. Sims, 442 U.S. 415, 432 (1979), is an
established one. As P.nnzoil reaffirms, “when a litigant
has not attempted to present his federal claims in related
state-court proceedings, a federal court should assume
that state procedures will afford an adequate remedy, in
the absence of unambiguous authority to the contrary.” 481
U.S. at 15 (emphasis added). Indeed, such prudential
dictates have been part of this Nation’s settled law for
over 185 years, and have “for so long been applied by this
Court that [they are] beyond debate.” Debartolo Corp. v.
Florida Gulf Coast Trades Council, 485 U.S. 568, 575 (1988)
(citing Murray v. The Charming Betsy, 2 Cranch 64, 118
(1804)).
In the autumn of 1987, after Pennzoil was decided, the
Department of the Attorney General of the State of Hla-
wail moved in the United States Court of Appeals for the
Ninth Circuit, under Fed. R. App. P. 38, and other author-
ity, for the damages incurred in being required to defend
against an appeal from a District Court ordered dismiss-
ing, under Younger, a suit seeking to restrain, as in Mid-
dlesex, ongoing state attorney discipline proceedings, and
6
where, as in Moore and Pennzoil, state law allowing feder-
al defenses to be heard remained untested in the ongoing
state proceedings, offered a full panoply of procedural
rights, and was, at least, ambiguous —- in short, a case
where it was reasonably believed to be appropriate to
assert that this Court’s decisions squarely and fully dic-
tated affirmance.
The court of appeals, albeit by a divided vote, found
the case “strikingly similar” to Middlesex, and flatly re-
jected every effort to distinguish it (A15, A16-35). It held,
for example, that Pennzoil eliminated any basis for federal
interference on the ground that the attorney in question
lacked “the opportunity in the ongoing state proceedings
to raise his constitutional claims ‘and have [those claims]
timely decided by a competent state tribunal’ ” (A16-30).
Likewise, although the “bad faith” and “harassment” ex-
ceptions to Younger were not — at least not clearly — raised
on appeal, the panel rejected any basis for finding bad
faith (A30-31), and overruled any assertion that the state
law at issue, which simply authorizes a Special Master’s
de novo inquiry and recommended action against criminal
defense counsel where the state courts have vacated a
conviction based on ineffective assistance, met the strin-
gent standards for an “extraordinary circumstance” ex-
ception to the Younger doctrine (A31-32). Finally, the
panel also found that a claim, which, in essence, directly
attacked Younger’s irreparable harm analysis, was not
preserved, and, in any case, raised serious independent
jurisdictional concerns under District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
Despite these findings, based upon a “motion” made
in the Reply Brief and an Amicus Brief, both filed after
the Answering Brief was lodged, and despite Petitioners’
every effort to assure the courts below that the plaintiff
attorney would enjoy a full chance to be heard before
sanctions were ordered against him in state court, the
Ninth Circuit, without giving any specific notice that
sanctions against Petitioners were being considered, and
7
reasoning that several of the underlying claims sought to
be decided in federal court (but which were barred by
Younger) were “important,” and that the “arguments that
Middlesex did not compel abstention were excellent,”
granted sanctions against Petitioners under Fed. R. Civ. P.
11 for their request for damages under Rule 38. The
central issue on this Petition is whether the Ninth Cir-
cuit’s recognition of an expansive category of “meritless-
but-not-even-arguably-compensable” appeals from Youn-
ger dismissals, and award of summary Civil Rule 11
sanctions on appeal, against prevailing appellees for con-
duct not otherwise sanctionable, ought be allowed to
stand.
A. Background of the Litigation; Supreme Court of
Hawaii Rule 13 and the Protections Available to
Respondent Counsel
This case arises from the paradox created by the Sixth
Amendment mandate that an indigent “accused shall en-
joy [not only] the right . . . to have the Assistance of
Counsel for his defense,” but “ ‘the right to the effective
assistance of counsel.’ ” Strickland v. Washington, 466 U.S.
668, 686 (1984); see also Haw. Const. art. I, §& 14; State v.
Antone, 62 Haw. 346, 615 P.2d 101 (1980). Because of the
vexing reality that a defendant may “win by losing,” and
Hawaii's “legitimate wish” “that [its] judgments remain
intact on appeal,” Wheat v. United States, 486 U.S. 153, 161
(1988), the Hawaii Supreme Court promulgated a rule
intended properly to deter and remedy the unnecessary
generation of “ineffective assistance” errors.
Rule 13 provides for the commencement of a Special
Master’s inquiry and recommendation “[wlhere the con-
viction of a criminal defendant has been overturned and
a new trial ordered because of a finding that the defen-
dant had ineffective assistance of counsel in the proceed-
ings against him or her, and the order has become
finalf.]” Haw. S. Ct. R. 13 (A94). The Rule requires ap-
pointment of a master “to determine whether action
8
against the counsel alleged to have been incompetent is
warranted” (id. J 2), and authorizes avenues for raising
defenses by the respondent attorney “why corrective ac-
tion... should not be taken,” appointment of a Rule 13
prosecutor, discovery, evidentiary hearing, recommended
decision, and review in the Supreme Court of Hawaii (id.
W9 2-9 (A94-96)). Review is also available under the all-
writs power, Haw. Rev. Stat. §§ 602-5(6) & (7).
For several reasons, both evident on the face of the
rule, and from other provisions of Hawaii law, the deci-
sion of all issues by the Special Master, including the
underlying issue of ineffective assistance, is de novo. The
Rule expressly treats a respondent attorney as having
been only “alleged to have been incompetent,” and grants
the Special Master (and the Supreme Court) the egress
authority to dismiss the proceedings for any reason “why
corrective action... should not be taken” (Rule 13 4q 4,7
(A94-95)). These include the claim that ineffectiveness did
not occur. Under settled Hawaii preclusion principles, the
triggering finding of ineffectiveness has no bar, merger,
issue preclusive, or law of the case effect, particularly
when reversal occurs on a direct appeal. This is true as a
respondent attorney could not possibly be in privity with
his former client on the issue of ineffectiveness. See Santos
v. State, 64 Haw. 648, 652, 646 P.2d 962, 965 (1982) (per
curiam); cf. Martin v. Wilks, 109 S. Ct. 2180, 2185 (1989) (
party seeking a judgment binding upon another cannot
obligate that person to intervene”). A fortiori, any federal
reason why sanction may not issue may be advanced to
the Special Master. See id.
Hawaii law also makes clear that the respondent attor-
ney is not required to respect the confidences of his former
client. Under DR 4-101(c), codified at Haw. S. Ct. R. 2.2(a)
(1984), the respondent lawyer “may reveal . . . confidences or
secrets necessary ... to defend himself against an accusation
of wrongful conduct. ” No Hawaii case, moreover, limits this
“self-defense” exception to the attorney client privilege to
9
instances where the client charges that the lawyer’s conduct
is wrongful.
The Rule permits full review of the master’s report in
the Supreme Court of Hawaii. See Rule 13, {J 10 (A95-96).
The state supreme court retains complete discretion to
order “dismissal of the proceedings” (id.), and, under
Hawaii caselaw, it is clear that the Supreme Court may
consider any constitutional claim why remedial measures
ought not be imposed, even if the Master may not. HOH
Corp. v. Licensing Board, 736 P.2d 1271 (Haw. 1987).
So understood, Rule 13 closely and compellingly
serves interests at the heart of Hawaii’s criminal justice
system. The Rule’s overriding purpose is to protect crimi-
nal defendants who are in fact innocent, but whose de-
fenses are not believed on account of their counsel’s
ineffectiveness. In this critical way, the Rule reflects the
state court’s commitment “to enforce the Supreme law of
the land.” Atascadero State Hospital v. Scanlon, 473 US.
234, 240 n.2 (1985). Thus, the Rule “stands as a disincen-
tive for competent attorneys” to turn criminal trials
“ “into reversible trials,’ ” Stale v. Smith, 68 Haw. 304,
313-14, 712 P.2d 496, 502 (1986), and, by recognizing that
“the law” includes a criminal defendant’s own rights,
confirms that “counsel is precluded from taking steps or
in any way assisting the client in presenting false evi-
dence or otherwise violating the law.” Nix v. Whiteside,
475 U.S. 157, 166 (1986).
B. The Rule 13 Proceedings Here and Proceedings in
the United States District Court
In December 1985, the Hawaii Supreme Court trig-
gered the filing of a Rule 13 case against respondent Earle
A. Partington, a Honolulu lawyer, by finding, in a direct
appeal, that Clifford Clarke was denied effective assis-
tance of counsel by Partington’s representation at
Clarke’s murder trial in 1984. State v. Clarke, No. 10041
(Haw. Dec. 27, 1985) (A91-93). Exercising its right to
“apply [its] plain-error rules,” Engle v. Isaac, 456 U.S. 107,
10
135 n.44 (1982), the court found Partington ineffective
because he (1) did not make an opening statement; (2) did
not cross-examine the victim’s mother ostensibly because
the State did not make available records concerning her;
(3) did not call the mother after receiving the records; (4)
elicited testimony from two State witnesses that they
believed Clarke was guilty; and (5) did not make a clos-
ing argument.! The State supreme court vacated the judg-
ment of conviction, and Rule 13 proceedings were
commenced in February 1986 with the appointment of
Petitioner Joseph M. Gedan as Special Master. See 880
F.2d at 119, A8. Respondent Partington filed an answer
asserting that his decisions in Clarke were based on legiti-
mate trial tactics, but that the attorney-client privilege
prevented him from revealing the bases therefore. Id.
Petitioner Howard T. Chang was appointed Rule 13 Pros-
ecutor in August, 1986. Id.
' See A91-93; 880 F.2d 118, A3-4. Though Partington, as
appellate counsel, had not included trial ineffectiveness in the
Opening Brief in Clarke, he did inform the appellate court prior
to argument that the state trial judge had complained to the
Office of Disciplinary Counsel about the failure to make a
closing argument. See 880 F.2d at 118, A3. The judge’s com-
plaint stated that “by failing to give a final argument to the
jury on behalf of his client and by stating in the presence of the
jury that it would be a ‘waste of time’, Mr. Partington inten-
tionally attempted to make reversible error, i.e., to prejudice
his own client’s case for the purpose of forcing an appellate
court to reverse what Mr. Partington anticipated would be a
conviction.” Letter from Leland Spencer to Office of Disciplin-
ary Counsel (Aug. 1, 1984), at 3, Exh. “B” to Complaint, No.
87-0172 (D. Haw. filed Mar. 9, 1987), Clerk’s Record 1. In his
Opening Brief in the court of appeals below, Partington con-
ceded that, with his client’s consent, he stated “that a closing
argument would be a waste of time” (A141), but did not
concede the statement was made in the jurv’s presence.
1]
On March 9, 1987, while the Rule 13 proceedings
were fully pending (albeit behind the schedule identified
in Rule 13), Respondent Partington filed the action below
in the United States District Court for the District of
Hawaii, seeking an injunction prohibiting the State offi-
cials from proceeding against him under Rule 13 and a
declaratory judgment that Rule 13 is unconstitutional. 880
F.2d at 119-20, A8-9. Partington asserted that the contin-
ued pendency of the Rule 13 case violated his rights
under the First, Fifth, and Sixth Amendments, as incorpo-
rated by the Fourteenth Amendment, and the Equal Pro-
tection Clause. Id. at 119, A8-9. On July 1, 1987, after
granting Respondent Hawaii Association of Criminal De-
fense Lawyers (“HACDL”) leave to file as amicus curiae in
support of Partington, the District Court, Kay, J., granted
Petitioners’ motion to dismiss, or for summary judgment,
under the authority of Younger v. Harris, 401 U.S. 37
(1971), and its progeny (A86-87). Citing Middlesex County
Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423
(1982), the court rejected Partington’s suggestion “that
the Hawaii Supreme Court has prejudged this case,” and
found the absence of “even an inference of prejudice”
(A88). The court rejected the claim that Withrow v. Larkin,
421 U.S. 43 (1976), forbade dismissal (A88-89), and noted
Partington did not argue that Rule 13 “is ‘flagrantly and
patently’ unconstitutional” so as to counsel against dis-
missal (A90). Having so found, the court also rejected
Partington’s summary judgment motion (id.).
C. Proceedings in the United States Court of Appeals
On appeal, Partington’s argument began with a reci-
tation of the purported “constitutional rights in issue”
(A103). Thus, although Partington’s license remained
fully intact, and he remained in good standing in Ha-
waii’s courts, Partington asserted that his First Amend-
ment rights were breached by the Clarke ruling and “the
ongoing HSCR 13 proceedings” (A104). Despite Paul v.
Davis, 424 U.S. 693 (1976), Partington asserted that the
12
—
alleged defamatory impact of the triggering ruling in
State v Clarke constituted a violation of his procedural
due process rights (A105-09). Despite standing concerns,
Partington claimed the reversal in Clarke entitled Part-
ington to relief under the Sixth Amendment (7d. at 109-14).
Finally, Partington argued Rule 13 breached Equal Protec-
tion precepts, as it did not apply to prosecutors, and was
not applied to a defense attorney found ineffective by the
Ninth Circuit in a habeas case (A114-21).
On the main issue whether abstention was mandated,
Partington made two claims why Younger’s familiar test
was not met:? (1) “the attorney-client privilege pro-
cedurally bars him from disputing the Hawaii Supreme
Court’s finding of ineffectiveness of counsel,” 880 F.2d at
123, Al7; and (2), that “both the special master and the
Hawaii Supreme Court are biased against him.” /d. at 124,
A20; see A123-31. These asserted procedural infirmities
were advanced on the basis of a naked assertion that it
would be “impossible” for Partington to breach the attor-
ney/client privilege, and, in regard to the bias issue, on
the basis of the publicity attending Clarke, and a claim
that it was “nonsense” to believe that Partington would
be able to relitigate the ineffectiveness of counsel issue.
A114, 132.
2 Partington made no argument that the “bad faith” excep-
tion was implicated, and mentioned, only in a footnote (A133
n. 21), that Rule 13’s asserted “blatant unconstitutionality”
gave rise to “ ‘exceptional circumstances.’ ” As the Ninth Cir-
cuit later stated, Partington also claimed abstention was inapt
because the Rule 13 case could not cure the injuries inflicted by
the triggering order in State v. Clarke. Compare 880 F.2d at
129-30, A34-36, with A121. As Petitioners proved (see A180-52),
in addition to posing Article II] remedial standing issues, this
amounted to an argument not why the Younger doctrine 1s
inapt, but, rather, an argument why Younger should simply not
exist.
—ge/
13
Although Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987),
had been issued months before the appeal was filed, the
Opening Brief did not cite or apply the rule that “when a
litigant has not attempted to present his federal claims in
related state-court proceedings, a federal court should
assume that state procedures wiil afford an adequate
remedy, in the absence of unambiguous authority to the
contrary.” Id. at 15. Indeed, the Pennzoil case was men-
tioned nowhere in the Opening Brief.*
In their Answering Brief, Petitioners stressed that,
properly construed, state law was fully protective of Part-
ington’s ability to raise his federal claims in the Rule 13
proceeding, and that, given Pennzoil, which was not even
cited in the Opening Brief, Partington’s effort to distin-
guish the case from Middlesex was frivolous. See A154-58,
A165-66, A172-79. Petitioners also demonstrated that
Partington’s effort to evade the Younger doctrine on the
basis of the purported immediate reputational injury he
has suffered on the basis of the Clarke decision was noth-
ing less than an argument that the Ninth Circuit should
overrule the Younger doctrine itself, A179-84, and that any
claim that “bad faith” or other “exceptional circum-
stances” warranting denial of an otherwise viable Younger
defense were not remotely supported. A184 n.7. Since
Partington sought not just reversal of the Younger dis-
missal, but a forthwith injunction from the Court of Ap-
peals, Petitioners argued to the effect that Partington’s
* Partington concluded by asserting that, as a matter ot
law, none of the claimed faults in his defense of Clifford
Clarke, taken separately, rendered his defense ineffective
(A137-42). The brief did not cite Hawaii law even for the
proposition that cach asserted instance of ineffectiveness could
not give rise to ineffectiveness, and cited no authority tor the
conclusion that, as a whole, his strategy was proper under
Hawaii law.
14
underlying claims were not, at the time, substantial, let
alone deserving of an injunction. A184-88.4
Pursuant to Ninth Circuit rules that require a party
seeking its attorneys fees on appeal to cite authority for
the award therefore in their Opening Brief, the State
officials moved in their Answering Brief for an award of
their attorneys fees, expenses, and costs, pursuant to,
inter alia, Fed. R. App. P. 38. Although parts of the An-
swering Brief did suggest that Partington’s underlying
claims were frivolous,® Petitioners made clear in their
specific argument in support of fees that a Rule 38 award
was sought based on the insubstantiality under control-
ling law of Partington’s effort to evade a Younger dismiss-
al:
4 Thus, Petitioners asserted that, in light of Partington’s
continuing right to practice and hold himself out “as a compe-
tent and vigorous attorney,” First Amendment and Due Pro-
cess concerns were, even in their best light, premature,
A185-86. Petitioners also asserted that Partington’s so-called
Sixth Amendment argument was “simply frivolous” insofar as
he had no standing to assert Clarke’s purported Sixth Amend-
ment right not to have his conviction reversed on ineftective
assistance grounds (A186). Finally, Petitioners argued that be-
cause rational grounds clearly justified the distinct regulatory
burdens imposed on defense counsel, and warranted a refusal
to extend Rule 13 to convictions reversed on federal habeas,
the Equal Protection claim was also “without foundation”
(A1S8).
> Although the general heading for Part “B” of the An-
swering Brief stated “Each of Partington’s Substantive Claims
is Frivolous,” the term “frivolous” was omitted from the sub-
headings and rest of those parts of the “Argument” section
relating to Partington’s procedural due process, First Amend-
ment, and Equal Protection claims. See A185, 186, 188. As noted
supra n.4, Appellees never denied Partington had — and has
substantial due process rights; rather our principal defense to
the procedural claim 1s that Partington has not been “de
prived” of anything to which due process protections are ted
erally mandated
—
15
The central point here is that this Court has
repeatedly recognized that Younger bars just
such attacks on bar disciplinary proceedings,
e.g., Silberkleit v. Kantrowitz, 713 F.2d 433, 435
(9th Cir. 1983); Goldie’s Bookstore v. Superior
Court, 739 F.2d 466, 469 (9th Cir. 1984); Polykoff v.
Collins, 816 F.2d 1326, 1333 (9th Cir. 1987). The
manner in which Partington sought to distin-
guish this case from Middlesex simply ignores
, the manner in which state procedural law is to
be construed in light of Pennzoil, or simply ele-
vates constitutional interests to a level that
Younger squarely rejected more than fifteen
years ago.
Appellees’ Ans. Brief at 44, No. 87-2375 (9th Cir.) A190.
A divided Ninth Circuit panel (Wallace and Noonan,
JJ.), affirmed, finding the case “strikingly similar” to Mid-
dlesex, and rejecting under Pennzoil and other authority
each challenge to the adequacy of the state proceedings
for Younger purposes. 880 F.2d at 122, 123-28, A15,
A16-30. The majority rejected any claim that the state
proceedings were animated by “bad faith,” dismissed
claims that Rule 13 was “flagrantly and patently violative
of express constitutional prohibitions in every clause,
sentence, and paragraph,” id. 128-29, A30-32, and denied,
as not properly raised, the claim that the Clarke reversal’s
impact made abstention inapt. Id. 129-30, A32-33.
Despite Petitioners’ efforts to construe Partington’s
due process rights broadly, the panel, acting on “mo-
tions” made only in Partington’s Reply and in HACDL’s
amicus brief filed after the Answering Briet was lodged
(A191-215), to which no response was allowed under | cd
R. App. P. 28(c), and without having given notice that
sanctions against Petitioners were being considered,
vrant sanctions against Petitioners for seeking their fees
and expenses pursuant to Fed. R. App. P. 38.
While appearing to agree, implicitly, that Part
ington’s “Sixth Amendment” claim was frivolous, the
16
panel found that sanctions were appropriate against Peti-
tioners because Partington’s First Amendment, pro-
cedural Due Process, and Equal Protection claims were
“important” and that, despite Pennzoil, the “arguments
that Middlesex did not compel abstention were excellent,
although not ultimately meritorious.” Id. at 131, A37-38.
The court, while purperting to follow the Seventh Cir-
cuit’s approach in Meeks v. Jewel Co., 845 F.2d 1421 (7th
Cir. 1988), which only denied prevailing appellee their
taxable costs for making an improper Rule 38 motion, in
fact imposed affirmative monetary sanctions under “Rule
11.” 880 F.2d at 131, A36-37.
Judge Noonan concurred and filed a separate opin-
ion. Judge Reirharat dissented from the merits and con-
curred in the award of sanctions, reasoning, however
that, while in his view sanctions were warranted under
28 U.S.C. § 1927, the panel ruling conflicted with the
Seventh Circuit as to the availability of Rule 11 on appeal,
and that the court could not “properly adopt Rule 11 for
appellate proceedings through the exercise of our deci-
sion making function,” id. at 148, A81-82. After Peti-
tioners moved for rehearing as to the sanctions on
substantive and procedural grounds (A216-238), and re
sponded to the panel’s request that separate briefs be
filed on whether en banc review is warranted on “avail
ability of Rule 11 sanctions for conduct occurring during
appeal” (A239-56), the court denied further review (A90
”*
.
REASONS FOR GRANTING THE WRIT
The judgment below summarily imposing Rule 11
sanctions against Petitioners for their request for appel
late damages - in an appeal that Petitioners won and
where the literal statutory predicates for consideration otf
such an award under 28 U.S.C. § 1912 were met - merits
17
review on several important fronts.© For in not merely
denying the State Officials’ prayer to be recompensed for
the cost of Partington’s appeal, but in affirmatively pun-
ishing Petitioners for even asking that such an award be
considered, the Ninth Circuit indirectly, but, nonetheless,
critically, has undermined this Court’s controlling prece-
dents and eroded Appellate Rule 38’s legitimate scope.
Permitted to stand, the sanctions judgment in this case
will have far reaching effects in encouraging the very sort
of collateral litigation that this Court has emphatically
held does not belong in federal court, and, in effect,
grants absolute immunity to all litigants who, in the face
of this Court’s commitment to federal judicial restraint,
comity, and Federalism, make arguments denigrating
state law and the fairness of state judges that have repeat-
edly led to plain error reversal, and even sharply worded
rebukes, in this Court. The award of sanctions against
Petitioners, moreover, conflicts with numerous decisions
in the courts of appeals, and is incorrect as a matter of
sanctions law under the panel’s own standards. It should
be reversed.
Apart from these considerations, review is indepen-
dently warranted because the panel analysis upsets the
framework under which sanctions against appellee par-
ties are to be judged under title 28 and the Federal Rules
of Appellate Procedure. On this score, the panel’s en-
forcement of Rule 11, which is, with the apparent excep-
tion of the Ninth Circuit, understood to apply solely to
conduct in the district courts, conflicts with specific rul-
ings of at least three other circuits, and departs from
settled principles of construction. Finally, review should
* Petitioners do not seek review of the Ninth Circuit's
judgment denying their Rule 38 request, although the argu
ment why that request was not sanctionable will be, perforce
related to the reasons why sanctions were sought in the court
below
18
be granted to correct the Ninth Circuit’s substantial de-
partures from Due Process precepts in imposing on Peti-
tioners the sort of summary sanction that the panel
implied — and which Petitioners do not dispute - would
be improper if awarded by a state court.
A. Review Should Be Granted to Correct the Court of
Appeals’ Departure, in Punishing Petitioners’ Re-
quest for Appellate Damages, from Settled Absten-
tion and Constitutional Precepts.
In seeking their Rule 38 damages below, Petitioners
began with the uncontroversial notion that “a precedent
of this Court must be followed by the lower federal
courts.” Hutto v. Davis, 454 U.S. 370, 375 (1982) (per
curiam). Thus, although the panel majority observed that
“Partington’s and the Defense Lawyers’ arguments that
Middlesex did not compel abstention were excellent,” this
observation failed to recognize that Pennzoil (and numer-
ous other cases), too, were entitled to obedience. Part-
ington’s refusal even to cite Pennzoil in the Opening Brief
(A97-143), or, even in the Reply (A191-216), was simply
what the Seventh Circuit has condemned as “” ‘It]he os-
trich-like tactic of pretending that potentially dispositive
authority against a litigant’s contention does not exist’ ”
Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073,
1081 (7th Cir. 1987).7
’ Likewise, despite Partington’s passing footnote reference
to the “exceptional circumstances” codicil to the Younger do
trine, his brief nowhere remotely demonstrated that Rule 13
suffered the sort of egregious defects under that. virtuall,
insurmountable test: namely, that the rule is “ ’ “tlagrantly and
patently violative of express constitutional prohibitions in ey
cry clause, sentence, and paragraph, and in whatever manner
and against whomever an effort might be made to apply it
880 F.2d at 128, A31. Indeed, even the panel found that Part
ington at most had raised some “colorable arguments.” [id
,
19
Although fee-shifting under Rule 38 is allowed only
“to penalize an appellant who takes a frivolous appeal
and to compensate the injured appellee for the delay and
expense of defending the district court’s judgment,” Bur-
lington Northern R. Co. v. Woods, 480 U.S. 1, 7 (1987), here
the underlying governing law affecting the Younger doc-
trine imposed such strict standards that Petitioners’ re-
quest was at least colorable. To borrow from the summary
judgment context, viewing Partington’s appeal “through
the prism of the substantive evidentiary burden,” a re-
quest for Rule 38 sanctions was at least arguable. Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
Indeed, the arguments below for evading Younger
were at odds with extensive precedent, for they de-
pended on reading Hawaii law so as to generate federal
arguments that did not exist. Whether or not Partington’s
assistance in Clarke was plain error, this approach was.
See Frisby v. Schultz, 108 S. Ct. 2495, 2501 (1988) (citing
cases). Partington’s effort to construe Rule 13 and related
procedural law breached principles of restraint that have
“for so long been applied by this Court [as to be] beyond
debate.” Debartolo Corp. v. Florida Gulf Coast Trades Coun-
cil, 485 U.S. 568, 575 (1988). If Rule 38 means anything, it
is that an appeal may not rest on precepts that are “be-
yond debate.” In fact, Members of this Court have not
minced words in chastizing counsel who bring such
feigned ceases. See Superintendent v. Hill, 472 U.S. 445,
459-60 (1985) (Stevens, joined by Brennan, and Marshall,
[].). Petitioners submit these admonitions compel review,
and reversal
Partington’s appeal also reasonably could be chal-
nged as meriting sanctions as it attacked the fairness ot
le State judiciary simply because of Clarke. As one court
1as stated:
t
}
i
[T]he argument [of bias] is frivolous. Bias
cannot be inferred from a mere pattern of rul
ings by a judicial officer, but requires evidence
that the officer had it “in” for the party for
20
reasons unrelated to the officer’s view of the
law, erroneous as that view might be.
McLaughlin v. Union Oil of California, 869 F.2d 1039, 1047 (7th
Cir. 1989); see also Glass v. Pfeffer, 849 F.2d 1261, 1268 (10th Cir.
1988); INVST v. Chem-Nuclear Sys., 815 F.2d 391, 402-03 (6th
Cir. 1987); Maier v. Orr, 758 F.2d 1578, 1583 (Fed. Cir. 1985) As
this Court has held, “[c]harges of disqualification should not
be made lightly.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813,
827-28 (1986). Here, they were. In fact, the effort to effect a
preemptive recusal order was the sort of “sweeping” request
that “inverts traditional abstention reasoning.” Moore v. Sims,
442 US. 415, 422 (1979).
That Partington might have had colorable underlying
federal claims ought not control whether Petitioners’ Rule 38
motion was frivolous. Even litigants with good claims may
incur sanctions because of a time bar, jurisdictional impedi-
ment, or a prior judgment. See 121 F.R.D. 101, 119-20 (1988).
Our effort to extend these rulings to the Younger context did
not prevail, but were not frivolous. See Davis v. Crush, 862
F.2d 84 (6th Cir. 1988) (sanctions for ignoring Younger sus-
tained in the District Court, although reversed on appeal).
Partington’s appeal enjoyed qualified, not absolute, immu-
nity, and that sanctions had not been imposed in an identical
case did not make a Rule 38 request frivolous. See Anderson v.
Creighton, 483 U.S. 635, 640 (1987). As the sanction here
creates an anomalous privilege to file federal suits precisely
where this Court has barred federal interference with state
proceedings, the writ should be granted and the judgment
reversed.*
* Indeed, despite the panel’s conclusion that Partington’s
First Amendment, Due Process, and Equal Protection chal-
lenges were “important,” colorable arguments could be made
that such arguments were plainly disposed of by controlling
precedent. See, e.g., Edelstein v. Wilentz, 812 F.2d 128, 132 (3d
Cir. 1987) (“The Constitution does not create fundamental in-
terests in particular types of employment,” and “the right to
(Continued on following, page)
21
—
B. Review Should Be Granted Because Unrestricted
Availability of Rule 11 Sanctions in the Courts of
Appeals is Contrary to the Remedial Structure Es-
tablished by Congress and This Court.
As suggested above, Petitioners’ central argument
why the sanctions below merit review and ought be
reversed is that “this is simply the wrong case in which to
apply a Meeks sanction” (A217-18) (citing Meeks v. Jewel
Cos., Inc., 845 F.2d 1421 (7th Cir. 1988)). Thus, Petitioners
undeniably agree that “[t]here is no, nor should there be,
protection for ‘baseless litigation’ ” (A217) (quoting
McDonald v. Smith, 472 U.S. 479, 484 (1985)), and that the
sanctions rules are no less susceptible to abuse than other
grounds for relief. When they are abused, federal courts
should act properly to deter such abuse
In this case, as the majority@ and Judge Reinhardt’s
opinions make clear, the panel did not believe that sanc-
tions were warranted under 28 USC. § 1927 or Fed. R.
App. P. 46(c), which facially authorize sanctions solely
against attorneys, not parties, or the court’s inherent
power. Compare 880 F.2d at 130-31, A34-35, with id. at
148-49, A82-83. Instead, the majority rested its sanction
against Petitioners solely on its belief that the court had
(Continued from previous page)
practice law is not a fundamental right tor purposes of due
process or equal protection analysis.”) (citing cases); see also
Paul v. Davis, 424 U.S. 693 (1976) (on procedural due process);
Younger v. Harris, 401 U.S. 37, 49 (1971) (on the First Amend-
ment). As this Court suggested in Nietzke v. Williams, 109 S. Ct.
1827 (1989), a claim is frivolous if “no rational argument”
could be made for it. /d. at 1820 n.2. Relatedly, as “ ‘[f]rivolity,
like obscenity, is often difficult to define,’ ” Braley v. Campbell,
832 F.2d 1504, 1511 (10th Cir. 1987) (en banc), Petitioners sub-
mit that the Ninth Circuit’s award of sanctions against Peti-
troners is erroneous under any standard of review this Court
may adopt in Cooter & Gells v. Hartmarx, No. 89-275.
22
“power to sanction Gedan and Chang pursuant to Rule
11.” 880 F.2d at 130, A34. In so doing, the panel, while
content to indulge limiting constructions of the sanction-
ing power available in state court under Rule 13, was not
similarly influenced by the substantial arguments raised
both by Judge Reinhardt and on the panel’s request for
supplemental briefing, why Rule 11 does not apply to
papers filed solely in the appellate courts. Because the
panel ruling creates a palpable inter-circuit conflict with
the Sixth, Seventh, and Tenth Circuits,? and resolves the
issue in a manner that conflicts with controlling princi-
ples of construction, review and reversal of the sanctions
award is independently required. Peralta v. Heights Medi-
cal Center, 485 U.S. 80, 86 (1988).
As noted by the parties in Cooter & Gells v. Hartmarx,
No. 89-275, the proposition that “” ‘Rule 11 applies exclu-
sively to district court proceedings’ ” is “uncontrover-
sial.” See Resp. Answering Brief at 40, No. 89-275 (U.S.
argued Feb. 20, 1990); see also Amicus Curiae Brief of the
Association of Trial Lawyers of America at 17, 1d. Indeed,
this result is compelled not only by the plain language of
Fed. R. Civ. P. 1, 81, and 82, but by the Advisory Commit-
tee notes, which state that Rule 11 was intended to foster
“{g]reater attention by the district courts to pleading and
motion abuses” (emphasis added). Nothing suggests Rule
11 was meant to be applicable to conduct wholly on
appeal, or that the sanctions available to redress improp-
er litigation by appellees, and their counsel, namely, 28
U.S.C. § 1927, Fed. R. App. 46, and the inherent power,
were intended to be augmented by Rule 11. See Radz-
anower v. Touche, Ross & Co., 426 U.S. 148, 153 (1976). Yet
9 See Leigh v. Engle, 858 F.2d 361, 370 n5 (7th Cir. 1988);
Webster v. Sowders, 846 F.2d 1032, 1040 (6th Cir. 1988); Braley v
Campbell, 832 F.2d 1504, 1510 n.4 (10th Cir. 1987) (en banc).
dinette
23
in adopting Rule 11, the Ninth Circuit has, for all practi-
cal purposes, so held. In this regard the existence of
Ninth Circuit Local Rule 1-1, which provides that “[t]he
Federal Rules of Civil Procedure, ... whenever relevant,
are adopted as part of the rules of this court,” does not
ameliorate the conflict, for the Ninth Circuit’s conclusion
that the “whenever relevant” language permits Rule 11 to
be swept up into the appellate courts is entirely circular.
See 880 F.2d at 130, A34-35 (and cases, e.g., In re Mooney,
841 F.2d 1003 (9th Cir. 1988), cited therein). Indeed, even
were such an incorporation of Rule 11 by local rule clear,
28 U.S.C. § 2071 requires that such rules “be consistent
with’ the ‘rules of practice and procedure prescribed by
the Supreme Court.’ ” Frazier v. Heebe, 482 U.S. 641, 646
(1987). Because, at the least, the same principles of lenity
ought to have applied to Respondents’ requests for sanc-
tions as were indulged in rejecting what we submit was
Petitioners’ colorable affirmative prayer, the judgment
should be reviewed, and the sanctions reversed.
C. Review Should Be Granted to Correct the Court of
Appeals’ Departure from Settled Procedure in
Awarding Sanctions.
As this Court has only recently emphasized, unless
post-deprivation remedies are “the only remedies the
[Government] could be expected to provide,” due process
requires “some kind of hearing before the [Government]
deprives a person of liberty or property.” Zinermon v.
Burch, 58 U.S. L.W. 4223, 4227, 4228 (U.S. Feb. 27, 1990).
Indeed, Petitioners’ central point in urging affirmance
below was that Partington would be provided with just
such process before any sanction were entered against
him in the state courts. The enduring irony of this case is
that, while properly concerned with the “guarantee of
fair procedure” in state court, m., the Ninth Circuit paid
little heed to this requirement in issuing its own sanctions
against Petitioners.
24
Although the form of procedure required by the Due
Process Clause before sanctions may be imposed is neces
sarily flexible, it is conceded by virtually every tederal
court that sanctions “may not be imposed upon a perso!
who is not on notice of (a) the fact that sanctions ar
under consideration, [and] (b) the reasons why sanctions
are under consideration.” See ABA Guidelines, 121 PRD
at 127 (and cases cited); Tom Growney Equipment, In
Shelley Irrig. Dev., Inc., 834 F.2d 833, 836-37 (9th Cir. 1987)
Here, as the prayers for sanctions were made, if at
all, for the first time in the Reply and Amicus Briefs, to
which no response is allowed under Fed. R. App. P. 28(c),
and which, for this reason, would be deemed pro-
cedurally improper under controlling law, e.g., Northwest
Acceptance Corp. v. Lynwood Equipment Inc., 841 F.2d 918,
924 (9th Cir. 1988), for all practical purposes tne sanctions
here were issued sua sponte, and on the basis of consider-
ations which were not even those precise reasons raised
(improperly) by Respondents (see A191-215). While such
a course of procedure may be fair in some instances,
where there are no “arguable issues,” Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 544 (1985), the fore -
going arguments in this Petition demonstrate that this is
plainly not so here. Although the opportunity to mow
the court of appeals for rehearing, or to seek review here,
certainly redressés in part a litigant’s sense that they have
been treated unfairly, the Ninth Circuit’s summary impo
sition of sanctions in this case, which is, except for the
possibility of review here, final and subject only to a
computation proceeding in the District Court, is sur-
rounded by sufficient constitutional doubt to warrant
review, and reversal, under the supervisory authority. See
Frazier v. Heebe, 482 U.S. 641, 645 (1987); id. at 651 (Rehn-
quist, C.J., joined by O’Connor and Scalia, J., dissenting)
(agreeing that the supervisory power properly exists to
“modify or reverse judgments of lower federal courts in
accordance with principles derived neither from the Unit
ed States constitution nor from any Act of Congress”);
25
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121,
128 (1985) (citing Ashwander v. TVA, 297 U.S. 288, 341-356
(1936) (Brandeis, J., concurring)).
— »
7
CONCLUSION
For the reasons above, the Court should grant the
petition for certiorari and summarily reverse that part of
the judgment below (Part V_ thereof) imposing sanctions
against the Petitioners, or set the case down for plenary
argument in this Court, and, thereon, reverse the sanc-
tions against Petitioners.
Respectfully submitted, March 22, 1990.
WARREN Price, III*
Attorney General
State of Hawaii
*Counsel of Record
CorRINNE K.A. WATANABE
First Deputy Attorney General
State of Hawaii
Steven S. MICHAELS
Deputy Attorney General
State of Hawaii
State Capitol
Honolulu, Hawaii 96813
(808) 548-4740
Counsel for Petitioners
la
APPENDIX A
Earle A. PARTINGTON,
Plaintiff-Appellant,
Vv.
Joseph M. GEDAN; Howard T. Chang,
Defendants-Appellees.
No. 87-2375.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 8, 1988.
Decided March 13, 1989.
Motion to Correct Opinion Granted in
Part and Denied in Part %
April 6, 1989.
As Amended April 6, 1989.
As Amended on Denial of Reconsideration
July 12, 1989.
Attorney who was made subject of disciplinary pro-
ceedings following reversal of client’s conviction for inef-
fective assistance of counsel brought civil rights action
against special master and special prosecutor. The United
States District Court for the District of Hawaii, Alan
Cooke Kay, J., held that abstention under Younger was
appropriate, and attorney appealed. The Court of Ap-
peals, Wallace, Circuit Judge, held that: (1) district court
properly abstained from hearing attorney’s constitutional
challenges to enforcement of Hawaii Supreme Court Rule
against him, but (2) attorney's arguments against absten
tion were not so frivolous as to warrant award of costs
and attorney fees under Federal Rule of Appellate Pro
4
=a
Affirmed.
Noonan, Circuit Judge, concurred and filed opinion.
Reinhardt, Circuit Judge, concurred in part and dis-
sented in part and filed opinion.
Earle A. Partington, Honolulu, Hawaii, for plaintiff-
appellant.
Susan L. Gochros, Deputy Atty. Gen., Honolulu, Ha-
wal, for defendants-appellees.
Appeal from the United States District Court for the
District of Hawaii.
Before WALLACE, REINHARDT and NOONAN, Cir-
cuit Judges.
WALLACE, Circuit Judge:
Attorney Partington filed suit pursuant to 42 U.S.C.
S 1983 in the United States District Court, alleging that
enforcement of Hawaii Supreme Court Rule 13 against
him violated the first, fifth, sixth, and fourteenth amend-
ments to the Unifed States Constitution. He sought a
declaratory judgment stating that Rule 13 violated these
constitutional provisions and an injunction barring any
further proceedings against him pursuant to Rule 13. The
district court concluded that abstention under Younger v
Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)
(Younger), was appropriate because Partington could raise
these constitutional challenges in the ongoing Rule 13
proceedings. We have jurisdiction and affirm.
The Hawaii trial court appointed Partington as trial
counsel for Clarke. The State had charged Clarke with
brutally murdering the three-year-old daughter of his
live-in girlfriend. Partington represented Clarke at trial.
Clarke was convicted of murder and sentenced to life in
prison.
Partington’s appointment as counsel for Clarke con-
tinued on appeal. Clarke raised numerous contentions,
but did not allege ineffective assistance of trial counsel.
During the pendency of the appeal, however, the state
trial judge who presided at Clarke’s trial complained to
the Office of Disciplinary Counsel of the Hawaii Supreme
Court about Partington’s failure to make a closing argu-
ment at Clarke’s trial. Following this complaint, Part-
ington filed a motion with the Hawaii Supreme Court, on
behalf of Clarke, requesting that the Supreme Court re-
mand the appeal to the trial court to explore the trial
judge’s complaint. The motion was denied.
During oral argument before the Hawaii Supreme
Court on Clarke’s criminal appeal, some Justices sua
sponte raised the issue of ineffective assistance of trial
counsel. The Hawaii Supreme Court subsequently re-
versed Clarke’s conviction. Without addressing the nu-
merous arguments made in Clarke’s brief, the court
declared that Partington rendered ineffective assistance
during trial. The court based this conclusion on the fol-
lowing: (1) Partington refused to make an opening state-
ment; (2) he refused to cross-examine the mother of the
victim ostensibly because the State did not make certain
records concerning the witness available to him; (3) he
4a
subsequently refused to call the mother after receiving
the records; (4) he elicited testimony from two State wit-
nesses that they believed Clarke was guilty; and (5) he
refused to make a closing argument. The Hawaii Supreme
Court’s opinion concluded: “We remind both counsel of
their obligations under [Hawaii Supreme Court Rule] 13
once a judgment on appeal has been issued by us in this
case.
Hawaii Supreme Court Rule 13! outlines proceedings
that are to be brought against defense counsel following
1 Haw.St.Ct.R. 13 provides:
PROCEEDINGS FOLLOWING FINAL ADJUDICATION OF IN-
EFFECTIVE ASSISTANCE OF COUNSEL IN CRIMINAL
CASES.
Whenever the conviction of a criminal defendant
has been overturned and a new trial ordered because
of a finding that the defendant had ineffective assis-
tance of counsel in the proceedings against him or
her, and the order has become final, either because it
was not appealed, or because it has been finally
affirmed on appeal, it shall be the duty of the pros-
ecutor and the counsel for the individual defendant
each within five days of the finality of such order to
file a certificate in the title of the cause with the
Supreme Court of Hawaii noting that such an order
has been entered and attaching a copy of that order
to the certificate.
Within five days of the first receipt of such a
certificate by the supreme court, the chief justice
shall appoint a special master to determine whether
action against the counsel alleged to have been in-
competent 1s warranted.
(Continued on following page)
the adjudication of his or her ineffective assistance in
criminal cases. Under Rule 13, the Hawaii Supreme Court
(Continued from previous page)
Within five days from his appointment, the spe-
cial master shall mail a notice of his appointment
together with a copy of the order of his appointment,
the certificate or certificates, and the order reversing
the conviction to the respondent attorney at his last
known address as shown in the records of the clerk
of the Supreme Court of Hawaii.
Within 45 days from mailing, the respondent
attorney shall file with the clerk of the supreme court
an answer showing cause why corrective action as
provided herein should not be taken by the supreme
court. If the respondent attorney wishes to disqualify
the special master, he shall file with his return a
motion therefore supported by an affidavit made
upon personal knowledge and showing facts suffi-
cient to establish the personal bias and prejudice of
the special master toward him.
If a motion for disqualification is filed, the mas-
ter shall rule on the same within five days from the
date of filing. That ruling shall be appealable only
after an order in the proceedings as hereinbelow set
forth has keen entered.
The master shall within five days after receipt of
the answer of the respondent appoint an attorney to
further prosecute the proceedings and shall give no-
tice of the appointment to the respondent attorney in
the same manner as provided above.
The respondent attorney may represent himself
or may designate an attorney to represent himself.
The respondent or his attorney and the attorney
appointed by the master shall have 45 days from the
(Continued on following page)
warranted.” Haw.Sup.Ct.R. 13. Within five days of this
appointment, the special master notifies the defense
counsel by mail. Within forty-five days of this mailing,
the defense counsel must “file with the clerk of the su-
preme court an answer showing cause why corrective
action as provided [in the Rule] should not be taken by
the supreme court.” Id. Within five days of receiving the
defense attorney’s answer, the special master must ap-
point an attorney to prosecute the proceedings. Id. The
defense attorney and the special prosecutor then have
forty-five days to conduct discovery. Within thirty days
after the expiration of the discovery period, the special
master holds a hearing. Within ten days after the conclu-
sion of the hearing, the special master must render a
decision and enter “an order either dismissing the pro-
ceedings or recommending corrective action against the
“ Id. Within twenty days of the spe-
cial master’s decision and proposed order, the defense
attorney and the special prosecutor may file exceptions
with the Hawaii Supreme Court. Within forty days of the
respondent attorney.
(Continued from previous page)
Within 20 days from the rendering of the mas-
ter’s decision and proposed order, respondent or his
attorney and the attorney appointed by the master to
prosecute the proceedings may file exceptions with
the Supreme Court of Hawai supported by a mem-
Orandum in support thereof
Within 40 days of the rendering of the decision
and proposed order by the master, the supreme court
shall enter an order cither dismissing the proceed-
ings or ordering corrective action in accordance with
the guidelines set forth above
8a
special master’s decision and proposed order, the Su-
preme Court must “enter an order either dismissing the
proceedings or ordering corrective action in accordance
with the guidelines set forth” in the Rule. /d.
In accordance with Rule 13, on February 3, 1986, the
Hawaii Supreme Court appointed Gedan as the special
master. On February 7, 1986, Gedan notified Partington
that he had forty-five days to submit an answer “showing
cause why corrective action as provided for in Rule 13
should not be taken by the Supreme Court.” On March
27, 1986, Partington filed an answer in accordance with
the Rule. Without waiving any constitutional challenges,
Partington’s answer stated that he based all of his trial
decisions on certain tactics, but that he could not explain
his tactical choices because his client at trial, Clarke,
refused to waive the attorney-client privilege.
Gedan did not appoint a special prosecutor within
five days of receiving the answer as provided in Rule 13;
however, on August 13, 1986, Gedan appointed Chang as
the special prosecutor. Notwithstanding the time sched-
ule set forth in Rule 13, the record does not reflect that
the parties engaged in discovery during the forty-five
day period as provided in the Rule or that the special
master set the matter for a hearing within thirty days of
the close of the discovery period.
On March 9, 1987, Partington filed a complaint under
42 U.S.C. § 1983 in the United States District Court for the
District of Hawaii, naming Gedan and Chang as defen-
dants. He alleged that the conduct of Gedan and Chang
pursuant to Rule 13 deprived and continue to deprive
him of rights under the free speech clause of the first
9a
amendment, the due process clause of the fifth and four-
teenth amendments, the right to counsel clause of the
sixth amendment, and the equal protection clause of the
fourteenth amendment. The complaint sought (1) an in-
junction prohibiting Gedan and Chang from proceeding
against Partington pursuant to Rule 13, (2) a declaratory
judgment that Rule 13 as applied to Partington is uncon-
stitutional, and (3) attorney’s fees, costs, and expenses for
the action. Partington also sought damages for attorney’s
fees and costs arising out of the Rule 13 proceeding, but
later abandoned this claim. On March 30, 1987, Gedan
and Chang moved to dismiss the complaint, arguing the
the district court should abstain. They asserted that Part-
ington could raise all of his constitutional claims in the
Rule 13 hearing, which was scheduled to commence on
April 14, 1987. The Rule 13 hearing was not held that day
because Gedan stayed the hearing on Partington’s re-
quest. On April 22, Partington filed a motion for summa-
ry judgment. On May 12, the Hawaii Association of
Criminal Defense Lawyers (Defense Lawyers) lodged a
brief in the district court on behalf of Partington as am-
icus curiae.
On July 1, 1987, the district court granted the Defense
Lawyers’ motion to file the amicus brief, granted the
motion of Gedan and Chang to dismiss the complaint,
and denied Partington’s motion for summary judgment.
The district court concluded that Younger abstention, as
interpreted and applied in Middlesex County Ethics Com-
v. Garden State Bar Assoctatioy., 457 U.S. 423, 102
S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Middlesex), should be
applied. After the district court entered its judgment,
miuittee
10a
Partington filed a timely notice of appeal, challenging the
dismissal of the complaint.
I]
Ordinarily, the dismissal of a complaint without the
dismissal of the underlying action is not considered an
appealable final order under 28 U.S.C. § 1291. See Allen v.
Veterans Administration, 749 F.2d 1386, 1388 (9th Cir.1984);
Hoohult v. Ariyosht, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984)
(Hoohult). Here, the district judge abstained, but main-
tained jurisdiction over the cause by virtue of his failure
to dismiss the underlying action. This procedure, if al-
lowed, would grant the state permission to proceed first
but allow the parties to maintain a federal court presence,
it needed, after the state has finalized its assessment of
the issues presented. See Crane v. Fauver, 762 F.2d 325,
328-29 (3d Cir.1985). We have jurisdiction over this inter-
locutory appeal, however, because of the denial of Part-
ington’s request for an injunction preventing Gedan and
Chang from proceeding against him pursuant to Rule 13.
See 28 U.S.C. § 1292(a)(1); Sea Ranch Association v. Califor-
nia Coastal Zone Conservation Commission, 337 F.2d 1058,
1061 (9th Cir.1976).
There is another reason why we may accept jurisdic-
tion over this appeal. We have held that where Younger
abstention is applicable, “a district court must dismiss the
action.” World Famous Drinking Emporium, Inc. v. City of
Tempe, 820 F.2d 1079, 1081 (9th Cir.1987) (World Famous
Drinking Emporium), quoting Fresh International Corp. v.
Agneultural Labor Relations Board, 805 F.2d 1353, 1356 (9th
Cir.1986). Because the district judge was required to
lla
dismiss the action, we may assume he intended to do so
and treat the dismissal of the complaint as a dismissal of
the action. See Hoohuli, 741 F.2d at 1171 n. 1.
That brings us to our standard of review. When the
district court, pursuant to the authority of Railroad Com-
mission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.
971 (1941), abstains from addressing the constitutionality
of a state statute because state court proceedings inter-
preting the statute are still pending, we review its absten-
tion for an abuse of discretion. C-Y Development Co. v.
Redlands, 703 F.2d 375, 377 (9th Cir.1983). But when, as
here, the district court abstains on the basis of Younger,
which forbids federal courts from enjoining pending cer-
tain categories of state proceedings except in extraordin-
ary circumstances, we review its abstention de novo.
Goldte’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 468
(9th Cir.1984) (Goldie’s Bookstore). This de novo review is
applied even though we are reviewing the action of the
district court in granting or denying an injunction. See td.
I]
Although abstention is the exception, not the rule, see
World Famous Drinking Emporium, 820 F.2d at 1082, Youn-
ger and its companion cases generally require a federal
district court to abstain from granting injunctive relief
when state criminal actions or certain categories of state
civil or administrative proceedings are pending against
the federal plaintiff at the time he or she commences the
federal action. See Pennzoil Co. v. Texaco, Inc., 481 US. 1,
107 S.Ct. 1519, 1522, 95 L.Ed.2d 1 (1987) (Pennzoil)
(injunctive relief against a prevailing civil litigant
12a
attempting to execute a judgment in its favor pending
appeal of that judgment to a state appellate court); Ohio
Civil Rights Commission v. Dayton Christian Schools, Inc.,
477 U.S. 619, 625, 106 S.Ct. 2718, 2722, 91 L.Ed.2d 512
(1986) (Dayton Schools) (injunctive relief against adminis-
trative proceedings conducted by state civil rights com-
mission), Middlesex, 457 U.S. at 428-29, 102 S.Ct. at 2519
(injunctive relief against state bar disciplinary proceed-
ings); Moore v. Sims, 442 U.S. 415, 423, 433-35, 99 S.Ct.
2371, 2377, 2382-83, 60 L.Ed.2d 994 (1979) (Moore) (injunc-
tive relief against state proceeding seeking to protect
allegedly abused children); Trainor v. Hernandez, 431 U.S.
434, 435-38, 97 S.Ct. 1911, 1913-15, 52 L.Ed.2d 486 (1977)
(Trainor) (injunctive relief against a state civil attach-
ment/enforcement proceedings); Juidice v. Vail, 430 U.S.
327, 333-36, 97 S.Ct. 1211, 1216-17, 51 L.Ed.2d 376 (1977)
(Juidice) (injunctive relief against state contempt proceed-
ings); Huffman v. Pursue, Ltd., 420 U.S. 592, 603-07, 95
S.Ct. 1200, 1207-09, 43 L.Ed.2d 482 (1975) (Huffman) (in-
junctive relief against state civil proceedings seeking
abatement of a nuisance); Younger, 401 U.S. at 49-53, 91
S.Ct. at 753-755 (injunctive relief against state criminal
proceedings). The Younger abstention doctrine is based on
considerations of equity, comity, and federalism. See, e.¢.,
Pennzoil, 107 S.Ct. at 1525-26; Younger, 401 U.S. at 43-45,
91 S.Ct. at 750-51.
A.
In applying the Younger doctrine, federal courts must
examine (1) the nature of the state proceedings in order to
determine whether the proceedings implicate important
State Interests, (2) the timing of the request for federal
13a
relief in order to determine whether there are ongoing
state proceedings, and (3) the ability of the federal plain-
tiff to litigate its federal constitutional claims in the state
proceedings. See Middlesex, 457 U.S. at 432, 102 S.Ct. at
2521; World Famous Drinking Emporium, 820 F.2d at 1081,
1082. Courts must also examine whether the proceeding
demonstrates “bad faith, harassment, or some other ex-
traordinary circumstances that would make abstention
inappropriate.” Middlesex, 457 U.S. at 435, 102 S.Ct. at
2522. But where a state tribunal has been found incompe-
tent by reason of bias, the Supreme Court has held that
there was effectively no opportunity to litigate constitu-
tional claims. Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct.
1689, 1697, 36 L.Ed.2d 488 (1973) (Gibson); compare Kugler
v. Helfant, 421 U.S. 117, 124-25 & n. 4, 95 S.Ct. 1524,
1530-31 & n. 4, 44 L.Ed.2d 15 (1975) (dictum agreeing that
a biased state tribunal removes predicaie for Younger v.
Harris dismissal, but categorizing biased tribunal in Gib-
son as example of “extraordinary circumstance” render-
ing state tribunal incapable of fairly and fully
adjudicating issues before it).
&
Younger by its own terms requires federal courts to
abstain from interfering in state criminal proceedings
absent exceptional circumstances. See 401 U.S. at 53-54, 91
S.Ct. at 754-55. The Supreme Court, however, has never
held that federal district courts should always abstain
under Younger when state civil proceedings are pending
See Moore, 442 U.S. at 423 n. 8, 99 S.Ct. at 2377 n. 8;
Huffman, 420 U.S. at 607, 95 S.Ct. at 1209. Nonetheless, the
Court has held that, under Younger, federal courts should
l4a
abstain from interfering with state disciplinary proceed-
ings analogous to the Rule 13 proceeding currently pend-
ing against Partington. See Middlesex, 457 U.S. 423, 102
S.Ct. 2515. In Middlesex, the Middlesex County Ethics
Committee, a tribunal under the jurisdiction of the New
Jersey Supreme Court, charged Hinds, a member of the
New Jersey Bar, with violating two New Jersey disciplin-
ary rules. Id. at 425-28, 102 S.Ct. at 2518-19. Rather than
filing an answer to the charges as provided in the New
Jersey Bar disciplinary procedures, Hinds filed suit in
federal district court, alleging that the disciplinary rules
violated his first amendment rights and were facially
vague and overbroad. Id. at 429, 102 S.Ct. at 2519. The
district court abstained under Younger, but was reversed
by the Third Circuit. Id. at 429, 102 S.Ct. at 2519.
Recognizing that “[t]he policies underlying Younger
are fully applicable to noncriminal judicial proceedings
when important state interests are involved,” the Su-
preme Court proceeded to review the New Jersey State
Bar disciplinary proceedings in light of the three require-
ments for abstention under Younger. Id. at 432, 102 S.Ct. at
2521. First, observing that the local Ethics Committees
acted as an arm of the New Jersey Supreme Court, the
Court determined that “[f]rom the very beginning a disci-
plinary proceeding is judicial in nature, initiated by filing
a complaint with an ethics and grievance committee.” Id.
at 433-34, 102 S.Ct. at 2522. Significant to the Court’s
determination that the state disciplinary proceedings
were “judicial” in nature was its analogizing of the role
local ethics or bar associations to that of a special master.
Id. at 434 n. 13, 102 S.Ct. at 2522 n. 13. Next, the Court
acknowledged that the state “has an extremely important
15a
interest in maintaining and assuring the professional con-
duct of the attorneys it licenses,” especially “the profes-
sional conduct of attorneys involved in the adminis-
tration of criminal justice.” Id. at 434, 102 S.Ct. at 2522
(emphasis added). Last, the Court opined that because
Hinds “failed even to attempt to raise any federal consti-
tutional challenge in the state proceedings,” he had not
shown that “the members of the Ethics Committee, the
majority of whom are lawyers, would have refused to
consider a claim that the rules which they were enforcing
violated federal constitutional guarantees.” Jd. at 435, 102
S.Ct. at 2522 (emphasis in original). Having concluded
that the three prerequisites for Younger abstention were
satisfied, the Court reversed the Third Circuit, holding
that it was proper for the district court to have stayed its
hand in this case. See id. at 437, 102 S.Ct. at 2524.
The Rule 13 disciplinary proceeding initiated against
Partington in Hawaii is strikingly similar to the New
Jersey disciplinary proceedings at issue in Middlesex. Both
proceedings are conducted by an ethics committee or its
analogue, a special master, id. at 434 n. 13, 102 S.Ct. at
2522 n. 13, under the auspices of the state supreme court.
Compare 457 U.S. at 425-27, 433, 102 S.Ct. at 2518-19, 2522
with Haw.S.Ct.R. 13. Just as the Court in Middlesex con-
cluded that the State of New Jersey had a “special”
interest “in the professional conduct of attorneys in-
volved in the administration of criminal justice,” 457 U.S.
at 434, 102 S.Ct. at 2522, we conclude that Hawaii has a
vital interest in ensuring that defense counsel in criminal
cases perform within the standards of reasonable profes-
sional competence. Partington concedes, as he must, that
the State of Hawaii has a very important interest
l6a
in its Rule 13 proceedings. Thus, the first requirement for
Younger abstention has been met. In addition, there is no’
question that the Rule 13 proceedings had begun and
were still pending at the time Partington filed suit in the
district court. Partington concedes this point as well.
Thus, the second requirement for Younger abstention has
been met. Unless Partington can show that, unlike the
New Jersey state disciplinary proceedings discussed in
Middlesex, the Rule 13 proceedings against him do not
offer him an opportunity to raise his constitutional claims
and have them timely decided by a competent state tribu-
nal, see Middlesex, 457 U.S. at 437, 102 S.Ct. at 2524:
Gibson, 411 U.S. at 573-74, 93 S.Ct. at 1695, or that this
proceeding demonstrates “bad faith, harassment, or some
other extraordinary circumstance that would make ab-
stention inappropriate,” Middlesex, 457 U.S. at 435, 437,
102 S.Ct. at 2522, 2524, Middlesex governs and we must,
accordingly, affirm the dismissal of this action under
Younger.
r
Under the third prong of the test for Younger absten-
tion, federal abstention is inappropriate unless the plain-
tiff is afforded the Opportunity in the ongoing state
proceedings to raise his constitutional claims “and have
[those claims] timely decided by a competent state tribu-
nal.” Gibson, 411 U.S. at 577, 93 S.Ct. at 1697: accord
Middlesex, 457 U.S. at 437, 102 S.Ct. at 2524. Partington
strenuously advances two grounds why the Rule 13 pro
ceedings against him fail to meet this third required
predicate for Younger abstention.
17a
First, he maintains that the attorney-client privilege
procedurally bars him from disputing the Hawaii Su-
preme Court’s finding of ineffectiveness of counsel,
thereby depriving him of an opportunity to raise his
federal constitutional claims during his Rule 13 proceed-
ings. If a federal plaintiff cannot raise his federal claim in
the state proceedings because state procedures do not
afford him the opportunity to do so, then abstention is
not appropriate. See, e.g., Gerstein v. Pugh, 420 U.S. 103,
108 n. 9, 95 S.Ct. 854, 860 n. 9, 43 L.Ed.2d 54 (1975).
Partington argues that abstention is inappropriate here
because Clarke’s refusal to waive the attorney-client priv-
ilege disables him from contesting the ineffectiveness of
counsel issue in either the Rule 13 proceedings or in the
Hawaii Supreme Court. Partington believes that the “self-
defense” exception to the attorney-client privilege, see
Disciplinary Rule 4-101(c)(4),?2 only applies when the
2 Disciplinary Rules, DR 4-101, Preservation of Confidences
and Secrets of a Client, provides:
(A) “Confidence” refers to information protected by
the attorney-chent privilege under applicable law,
and “secret” refers to other information gained in the
professional relationship that the client has re-
quested be held inviolate or the disclosure of which
would be embarrassing or would be likely to be
detrimental to the client.
(B) Except when permitted under DR 4-101(C), a
lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the
disadvantage of the client.
(Continued on following page)
1a
client questions the attorney’s conduct. Clarke has not
done so. We interpret this argument to mean that Part-
ington believes Hawaii's interpretation of the attorney-
client privilege imposes a procedural bar that effectively
prevents him from testifying on the issue of ineffective-
ness because he cannot fully present his trial strategy
defense.
Partington bears the burden of showing ” ‘that state
procedural law bar[s] presentation of [his] claims.’
(Continued from previous page)
(3) Use a confidence or secret of his client for the
advantage of himself or of a third person, unless the
client consents after full disclosure.
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent of the
client or chents affected, but only after a full dis-
closure to them.
(2) Confidences or secrets when permitted under
Disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a crime
and the ‘*nformation necessary to prevent the crime.
(4) Confidences or secrets necessary to establish
or collect his fee or to defend himself or his employ-
ees or associates against an accusation of wrongful
conduct.
(D) A lawyer shall exercise reasonable care to pre-
vent his employees, associates, and others whose
services are utilized by him from disclosing or using
confidences or secrets of a client, except that a law-
ver may reveal the information allowed by DR
4-101(C) through an employee.
1Ya
‘
Pennzoil, 107 S.Ct. at 1528, quoting Moore, 442 U.S. at 432,
99 S.Ct. at 2381. Asserted ambiguities in Hawaii's rule
regarding the attorney-client privilege or on the pro-
cedures available in Rule 13 proceedings for the presenta-
tion of his federal claims do not relieve him of this
burden. Federal courts “cannot assume that state judges
will interpret ambiguities in state procedural law to bar
presentation of federal claims.” Pennzoil, 107 S.Ct. at 1528.
Moreover, given that Partington “has not attempted to
present his federal claims in related state court proceed-
ings, [we will] assume that state procedures will afford an
adequate remedy, in the absence of unambiguous authori-
ty to the contrary.” Id.; see also Middlesex, 457 U.S. at 435,
102 S.Ct. at 2522. In addition, even if a federa! plaintiff
cannot raise his constitutional claims in state administra-
tive proceedings that implicate important state interests,
his ability to raise the claims via state judicial review of
the administrative proceedings suffices. Dayton Schools,
477 U.S. at 629, 106 S.Ct. at 2724. Requiring a federal
plaintiff to present his constitutional challenges in the
state proceedings recognizes that state courts can and
will perform their responsibility to safeguard federal con-
stitutional rights. See, e.g., Pennzo’! 107 S.Ct. at 1528;
Middlesex, 457 U.S. at 431, 102 S.Ct. at 2520; Trainor, 431
U.S. at 443, 97 S.Ct. at 1917.
Partington has not met his burden. He does not ex-
plain how this alleged procedural bar prevents him from
presenting his first, fifth, sixth, and fourteenth amend-
ment claims in the Rule 13 proceedings. Nor has Part-
ington unambiguously shown that Hawaii's “self-defense
exception” to the attorney-client privilege, see DR
20a
4-101(C)(4), only applies when a client attacks his attor-
ney’s conduct. Cf. ABA/BNA Lawyer’s Manual on Pro-
fessional Conduct, Disclosure: Attorney's Benefit, at 55:701,
703, 706-08(BNA)(Nov. 11, 1987) (discussing cases where
the privilege does not apply even though the client is not
attacking the attorney’s conduct.) In any event, Part-
ington “should first set up and rely upon [this pro-
cedural] defense in the [Hawaii] state courts.” Younger,
401 U.S. at 45, 91 S.Ct. at 751, quoting Fenner v. Boykin, 271
U.S. 240, 244, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926). We
cannot assume that Hawaii will interpret its attorney-
client privilege to tar Partington from speaking in his
own defense. Pennzoil, 107 S.Ct. at 1528.
Second, Partington argues that the third prong for
abstention is not met in this case because both the special
master and the Hawaii Supreme Court are biased against
him. In Gibson, the Supreme Court recognized that if the
federal plaintiff can establish that either the state admin-
istrative tribunal or the state court is not “competent”
because of bias, then abstention is not appropriate. Sve
411 U.S. at 577, 93 S.Ct. at 1697. In addition, it recognized
that de novo judicial review on the decision of a “biased”
administrative board does not satisfy the competent tri-
bunal requirement of the third predicate for Younger ab
stention. See id. & n.16. Here, Partington contends that a
finding in the Rule 13 proceeding before the special mas-
ter or the Hawaii Supreme Court that he rendered effec-
tive assistance of counsel would be totally incompatible
with the Hawaii Supreme Court’s decision in State
Clarke. From this, he concludes that the issue of ineffec
tiveness has been prejudged against him. Partington fur-
ther assails the impartiality of the Hawaii Supreme Court
21a
by asserting that the large amount of publicity that State
v. Clarke generated has biased the Hawaii Supreme Court
against his case.
In claiming bias, Partington must overcome the pre-
sumption that the special master and the Hawaii Supreme
Court are unbiased. See Schweiker v. McClure, 456 U.S. 188,
195, 102 S.Ct. 1665, 1669, 72 L.Ed.2d 1 (1982). He can
rebut this presumption “by a showing of conflict of inter-
est or some other specific reason for disqualification.” Id.
In support of his ciaim of judicial bias, Partington
relies on Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43
L.Ed.2d 712 (1975) (Withrow). The Court there examined a
Wisconsin statute that allowed a state medical examining
board to warn and reprimand a physician, to suspend a
physician’s license temporarily, or to institute a criminal
action or an action to revoke a license when it found
probable cause under governing criminal or revocation
statutes. Id. at 37, 95 S.Ct. at 1459. When the medical
examining board commenced investigative proceedings
against Larkin, Larkin filed suit in federal court under 42
U.S.C. § 1983 seeking an injunction against the investiga-
tion, which was initially denied by the federal district
court. Id. at 39, 95 S.Ct. at 1460. The board subsequently
notified Larkin that it would hold a “contested hearing”
in order to determine whether to suspend his license
temporarily. Jd. at 40-41, 95 S.Ct. at 1461. The federal
district court then enjoined the board because it conclud-
ed that by authorizing the board to perform a dual inves-
tigatory and adjudicative function, the Wisconsin statute
raised serious procedural due process concerns by per-
mitting a physician to lose his liberty or property at the
99
LaLa
hands of a biased decisionmaker. Id. at 41-42, 95 S.Ct. at
1462.
The Supreme Court reversed the preliminary injunc-
tion, concluding that it was “quite unlikely” that the
physician would ultimately prevail on his procedural due
process challenge. Id. at 46, 95 S.Ct. at 1464. Recognizing
that biased decisionmakers do not satisfy procedural due
process, id., at 46-47, 95 S.Ct. 1464, the Court nonetheless
rejected the contention “that the combination of investi-
gative and adjudicative functions necessarily creates an
unconstitutional risk of bias in administrative adjudica-
tion.” Id. at 47,95 S.Ct. at 1454. Instead, the Court empha-
sized that one who advances such an argument
must Overcome a presumption of honesty and
integrity in those serving as adjudicators; and
[he] must convince [the court] that, under a
realistic appraisal of psychological tendencies
and human weakness, conferring investigative
and adjudicative powers on the same individu-
als poses such a risk of actual bias or prejudg-
ment that the practice must be forbidden if the
guarantee of due process is to be adequately
implemented.
Id. In repudiating the appellant’s claim of presumptive
bias, the Court observed that when an appellate court
reverses an administrative law judge or a lower court
judge, procedural due process does not mandate that a
new judge retry the case. Id. at 48-49, 95 S.Ct. at 1465.
Similarly, the Court rejected the proposition that simply
because the board issued written findings of fact and
conclusions of law in support of its probable cause deter-
mination, the board had prejudged the case. Id. 56-57, 95
S.Ct. at 1469. The Court pointed out that an initial finding
f probable cause to believe a physician had vi lated
statute was not logically Inconsistent with a subsequent
decision, based on complete evidence br uught out at an
adversarial hearing, that the physician did not violate th
i ‘ vi AALC
statute. Id. at 57-58, 95 S.Ct. at 1469-70
. L
Partington argues that Withrow stands for the propo
sition that bias is established where the ac usatory find-
Ing is incompatible with any adjudicative finding
relies on the statement from Withrow that “if the initial
view of the facts based on the evidence derived from
nonadversarial processes as a practical or legal matter
foreclose[s] fair and effective consideration at a subse-
quent adversary hearing leading to ultimate decision, a
substantial due process question would be raised.” Id. at
98, 95 S.Ct. at 1470 (emphasis added). From this inter-
pretation of Withrow, Partington then argues that the
following three factors all indicate that he is legally fore-
closed from contesting the Hawaii Supreme Court's find-
ing of ineffectiveness of counsel in State v. Clarke: (1) the
title of Rule 13, “Proceedings Following Final Adjudica-
tion Of Ineffective Assistance Of Counsel In Criminal
Cases,” indicates that the decision is final; (2) the text of
Rule 13, in part, speaks only of the special master deter-
mining whether “corrective action” should be taken: and
(3) the Hawaii Supreme Court’s order appointing the
special master states that there was “a finding of ineffec
tive assistance of trial counsel.”
Under the third prong of Younger, Partington must
demonstrate that he would not have an adequate oppor
tunity to litigate his federal constitutional claims — in this
case, as he argues, before a competent and unbiased stat
a S
adjudicator. Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521
24a
Gibson, 411 U.S. at 577, 93 S.Ct. at 1697.3 He has not done
so. The Hawaii Supreme Court has never had the oppor-
tunity to hear Partington’s argument that due process
requires that he not be judged by the court after it has
ruled on his performance in the criminal case. There is
neither legal nor practical reason to believe that the Ha-
waii Supreme Court will be biased on this issue which it
has never addressed. We cannot and should not guess
how the court will respond. Withrow is irrelevant to Part-
ington’s unaddressed due process claims.
Moreover, we conclude that Partington has not dem-
onstrated under Withrow that, as a practical or legal mat-
ter, the special master or the Hawaii Supreme Court is
* The dissent suggests that we have misunderstood the
third prong of the Middlesex test, the prong requiring that
federal claimants have “an adequate Opportunity in the state
proceedings to raise constitutional challenges.” 457 U.S. at 432,
102 S.Ct. at 2521. It is true that in neither Middlesex nor You nger
is a biased tribunal mentioned under this third prong. The
majority and the dissent agree that Younger abstention is inap-
propriate when bias renders a state tribunal incompetent; we
disagree over how to categorize the Supreme Court’s decision
in Gibson. Gibson analyzed incompetency caused by bias in
connection with the plaintiff's opportunity to litigate federal
constitutional claims before a competent state tribunal. 411
U.S. at 577, 93 S.Ct. at 1697. The dissent, however, focuses on
dictum in Kugler v. Helfant categorizing the biased tribunal
finding in Gibson as an “extraordinary circumstance.” 421 U.S.
at 124-25 & n. 4, 95 S.Ct. at 1530-31 & n. 4. Despite this dictum,
we believe it better to follow Gibson's approach of analyzing
bias in connection with whether there is an Opportunity to
litigate the federal constitutional claims, which became the
third Middlesex prong.
25a
bound by State v. Clarke or has prejudged the ineffective-
ness issue. Cf. Vanellt v. Reynolds School District No. 7, 667
F.2d 773,779 & n. 10 (9th Cir.1982) (rejecting claim that a
school board could not, consistent with due process, con-
duct an impartial hearing to review its prior decision to
terminate a teacher’s employment). As for the legal issue,
the title of Rule 13 is somewhat troubling in that it may
indicate that the finding of ineffectiveness is conclusive.
Furthermore, the Rule itself is not clear on the issue of
whether defense counsel can contest the issue of ineffec-
tiveness anew before the special master and the Hawaii
Supreme Court, and the Chief Justice’s order appointing
Gedan can be read as indicating that the Supreme Court
has already decided the ineffectiveness issue. But, as we
have already observed, Partington bears the burden of
demonstrating, through “unambiguous authority”, that
both the special master and the Hawaii Supreme Court
are precluded from considering the ineffectiveness issue
de novo. See Pennzoil, 107 S.Ct. at 1528; Middlesex, 457
U.S. at 435, 102 S.Ct. at 2522. We do not believe that
Partington has carried this burden by reciting the forego-
ing factors. Rule 13 states in its second paragraph that
defense counsel is only “alleged to have been incompe-
tent.” (Emphasis added.) The special master, moreover,
has the power to dismiss the proceedings. This power
presumably includes the power to conclude that the crim-
inal defense attorney did not in fact render ineffective
assistang 3g
The Hawaii Supreme Court’s initial determination of
ineffectiveness will apparently not have collateral estop
pel effect in the Rule 13 proceedings. See Santos v. Stat
Department of Transportation, 64 Haw. 648, 652, 646 P.2d
2ha
Pd
962, 965-66 (1982) (per curiam) (discussing issue preclu-
sion under Hawaii law). This conclusion is consistent
with a letter written by the Chief Justice to Partington
and others stating that Rule 13 provides “a procedure
where the attorney in question ha[s] an opportunity to
contest, on his own behalf, the charge of ineffective assis-
tance of counsel, before an impartial master, who is in no
way bound by the previous determination in the criminal
case....” If the attorney disagrees, the Rule “provides for
the master’s determination to be reviewed by the Su-
preme Court... .” In Middlesex, the Court considered the
actions of the New Jersey Supreme Court clarifying
Hinds’s ability to raise his constitutional challenges. 457
U.S. at 436, 102 S.Ct. at 2523. Although the Hawaii Su-
preme Court has not formally spoken on this issue, we
believe that, in the absence of clear authority to the
contrary, the letter of the Chief Justice can be considered
as an interpretive gloss for purposes of abstention clarify-
ing that, as a legal matter, Partington will be able to
contest the finding of ineffectiveness during his Rule 13
proceedings. In addition, the primary issue before the
special master and, perhaps ultimately, the Hawaii Su-
preme Court, is whether corrective action is warranted
under Rule 13. Partington does not contend that the court
has prejudged this issue.4
* Relying on Gibson, the dissent suggests that the majority
has misconceived “the basic rule governing abstention and
biased state tribunals” (dissent at p. 137) because we require
inquiry of a biased state tribunal whether it is biased. Dissent
at pp. 137-138. While we do not disagree with the legal prem-
ise, the dissent overlooks that there has been no finding that
(Continued on following page)
Zia
We also find no practical limitation on Partington’s
ability to address any of his arguments to an impartial
tribunal. To the extent that Partington believes that cer-
tain members of the Supreme Court may be personally
biased against him, either by virtue of their finding of
ineffectiveness of counsel in State v. Clarke or as a result
of the high profile nature of the publicity in that case, he
may be able to file an affidavit seeking recusal under
Haw.Rev.Stat. § 601-7(b) (1985).> Cf. Flangas v. State Bar of
(Continued from previous page)
the Supreme Court of Hawaii is biased on the constitutional
issues.
But more important, Gibson is distinguishable from the
instant case. The state tribunal in Gibson was the Alabama
Board of Optometry, “the statutory body with authority to
issue, suspend, and revoke licenses for the practice of optome-
try.” 411 U.S at 567, 93 S.Ct. at 1692. This Board was comprised
solely of practicing optometrists. Jd. at 571, 93 S.Ct. at 1694. Of
course, a tribunal comprised of optometrists does not have the
ability to entertain constitutional claims. Optometrists are in-
competent in this area; their domain is the visual process, not
due process. By contrast, the state tribunal in Partington is a
court, indeed, the Hawaii Supreme Court. It is comprised of
experienced jurists. That this court has the ability to entertain
and resolve constitutional claims is incontrovertible. There is
simply no comparison between State Supreme Court justices
and a group of optometrists in their competency to face consti-
tutional issues: Justices are competent, optometrists are not.
Partington has failed to demonstrate that he will not be af-
torded the Opportunity to litigate his constitutional claims
before a competent state tribunal. The third prony ot Middlesex
requires us to abstain. Contrary to the dissents assertion
Gthson does not dictate a different result
Haw.Rev.Stat. § 601-7 provides:
(a) No person shall sit as a judge in any case in
which the judge’s relative by affinity or consanguinity
(Continued on following page)
28a
Nevada, 655 F.2d 946, 950 (9th Cir.1981) (holding that this
court cannot ascertain the availability of the biased adju-
dicator exception to Younger abstention until appellant
attempts to avail himself of state statutory procedures to
disqualify allegedly biased supreme court justices). Ha-
wail provides that Hawaii circuit judges and retired Su-
preme Court Justices may sit on the Hawaii Supreme
Court when one of the Justices recuses himself. See
(Continued from previous page)
within the third degree is counsel, or aes ei-
ther as a plaintiff or defendant, or in thedissue of
which the judge has, either directly or through such
relative, any pecuniary interest; nor shall any person
sit as a judge in any case in which the judge has been
of counsel or on an appeal from any decision or
judgment rendered by the judge.
(b) Whenever a party to any suit, action, or
proceeding, civil or criminal, makes and files an
affidavit that the judge before whom the action or
proceeding its to be tried or heard has a personal bias
Or prejudice either against the party or in tavor of
any Opposite party to the suit, the judge shall be
disqualified from proceeding therein. Every such af-
fidavit shall state the facts and the reasons for the
beliet that bias or prejudice exists and shall be filed
before the trial or hearing of the action or proceed-
ing, or good cause shall be shown tor the failure to
file it within such time. No party shall be entitled in
any case to file more than one affidavit; and no
attidavit shall be tiled unless accompanied by a cer
titicate of counsel of record that the attidavit 1s made
in good faith. Anv judge may disquality oneself by
filing with the clerk of the court of which the judge ts
a judge a certificate that the judge deems oneselt
unable for anv reason to preside with absolut
partialitv in the pending suit or action
29a
{
Haw.Rev.Stat. § 602-T0 (1985).6 The statute even contem-
plates that some cases may arise in which all five Su-
preme Court Justices would recuse themselves, id.
Moreover, we must presume that each Hawaii Supreme
Court Justice will follow his duty under Haw.S.Ct.R. 5 to
‘be unswayed by partisan interests, public clamor, or fear
of criticism,” Haw.S.Ct.R. 5, incorporating Code of Judicial
Conduct, Canon 3(A)(i), and to recuse himself if “he has
”
a personal bias or prejudice concerning a party.
Haw.S.Ct.R. 5, incorporating Code of Judicial Conduct,
Haw.Rev.Stat. § 602-10 provides:
Parties shall be entitled to bring an appeal be-
tore a full court. Oral argument shall be before a full
court, provided that in an appropriate case the court
in its discretion may dispense with oral argument. In
case Of a vacancy, or if a justice of the supreme court
is disqualified from sitting in any case pending be-
tore this supreme court, or is unable to attend, or is
absent, or is recused or has been excused, the vacan-
cy or the place of such justice may be temporarily
tilled by a circuit judge designated by the chief jus-
tice or by the appointment of a justice who has
retired from the supreme court. Such retired justice
chosen to serve as substitute justice shall not be
actively engaged in the practice of law. A retired
Justice, when sitting as substitute justice, shall be
compensated at a rate of pay of associate justices of
the supreme court. When necessary, the court may
consist of five circuit judges, so designated or five
retired justices so appointed or any combination of
circuit judges and retired justices. After oral argu-
Ment of a case, li a vacancy arises or if for any other
reason a justice is unable to continue on the case, the
case may be decided or disposed of upon the concur-
rence of any three members of the court without
tilling the vacancy or the place of such justice
32a
and as applied. We have examined the arguments that
Partington makes in challenging Rule 13. He has certainly
raised some colorable constitutional arguments. Nonethe
less, he has failed to demonstrate that Rule 13 is “ ‘pat
ently violative of express constitutional prohibitions in
every clause, sentence, and paragraph, and in whatever
manner and against whomever an effort might be made
to apply it.” ” Younger, 401 U.S. at 53-54, 91 S.Ct. at 754-55
yuoting Watson, 313 U.S. at 402, 61 S.Ct. at 967. Therefor
we reject Partington’s argument that this ex eption pri
vented the district court from abstaining
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the Hawaii Supreme Court will analyze these issues or
undo these harms; therefore, abstention is not appropri-
ate. Accordingly, Partington requests a declaratory judg-
ment stating that in rendering its decision in State
larke and concluding that Partington rendered ineffec-
tive assistance of counsel, the Hawaii Supreme Court
violated the first, fifth, and sixth amendments.
The district court did not expressly address any of
these arguments or the requested declaratory relief re-
rarding the Hawaii Supreme Court’s decision in State v.
larke. At oral argument, we expressed doubt whether
Partington presented these constitutional challenges in
/
the district court concerning the manner and the effect of
he Hawaii Supreme Court’s decision in State v. Clarke.
Ve pointed out that the prayer for relief in Partington’s
mplaint did not request a declaratory judgment that in
te v. Clarke the Hawaii Su-
ourt violated the first, fifth, and sixth amend
Rather, the complaint states that because of the
rendering its decision in Sta
Dreme (
ints’ action he “is entitled to . [a] declaratory
idgment that HSCR 13 as applied to Plaintiff is uncon
bfrittan
tional.” At oral argument, Partington contended that
> request for declaratory relief in the context of Rule 13
luded the first, fifth, and sixth amendment challenge
the Hawali Supreme Court's decision in State v. Clark
tle claims that he couched his request for relief in terms
tule 13 because the Hawali Supreme Court
‘
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yfat Clarke was the “first step” under Rule 13. El
.* . sf has = out «ae re '
ev (I bh btiS CPD aint Was not totd
requested relief, his brief in the district urt
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44a
prosecution of the Watergate matter.” United States v.
Haldeman, 559 F.2d 31, 137 (D.C.Cir.1976), cert. denied sub.
nom., Ehrlichman v. U.S., 431 U.S. 933, 97 S.Ct. 2641, 53
L.Ed.2d 250 (1977). The court held that this kind of “inter-
est” on the part of the judge was not disqualifying. Inter-
est in order to disquality must emanate from extrajudicial
sources, otherwise “the prohibition would have has a
reach far beyond anything Congress could rationally
have contemplated.” Id. The court refused to hold that
Judge Sirica had been impermissibly biased. Haldeman
was favorably cited by Judge Kennedy in Conforte, 624
F.2d at 882.
sensibilities no doubt are changing on the question of
judicial bias. In 1765 Blackstone could write: ”... the lau
will not suppose a possibility of bias or favor ina judge,
who is already sworn to administer impartial justice, and
whose authority greatly depends upon that presumption
and idea,” 3 W. Blackstone, Commentaries on the Laws o!
England *361. While recusal on the basis of challenge by a
litigant has existed in Roman law, canon law, and early
English law, it had disappeared by Blackstone’s time, id.,
and was permitted in federal law only in 1911. Since that
turning point there have been other signs that judicial
disqualification may be looked at more Sharply. For ex
ample, Judge Aldrich’s decision in Perfect Parts was crit
icized by a student writer. Note, “Disqualification of
udges for Bias in the Federal Courts,” 79 Harv.L.Re:
1435, 1451 (1966). In 1974 Congress enacted the statut
requiring judges to disqualify themselves if a reasonabk
person could doubt their impartiality. 28 U.S.C. § 455(a)
[he practice of the Supreme Court in its first century in
relation to circuit decisions now looks Strange to us. It
4 ba
proceeding against Partington he had explained his strat-
egy so that the court was now satisfied that he had not
breached his responsibilities as a lawyer. The question of
sixth amendment deprivation, decided in Clarke, is log-
ically distinct from the disciplinary standards which Part-
ington must meet to satisfy the Bar.
The dissent also places emphasis on the “practical”
probability of prejudice. But the dissent admits that a
judge may charge an attorney with violating Fed.R.Civ.P.
11, order him to show cause, conduct a subsequent hear-
ing, and find against him. The dissent also admits that a
court may cite an attorney for contempt of court, order
him to show cause, and then preside over the contempt
trial and find against him. As a practical matter, the
probability of a judge in these circumstances having in
mind a vivid impression of the professional breach of the
lawyer, and being influenced by this impression, is much
greater than the probability of an appeals court, months
or years after the initial decision that occasioned the
reference of the lawyer to disciplinary proceedings, being
still prejudiced against the lawyer. The dissent is on
treacherous grounds when it argues that practical preju-
dice is more likely in Partington’s case that in the cases it
accepts as routine judicial practice.
ludges have not been particularly good at recogniz-
ing their own biases. The major federal reforms have
been made by the legislature - the elimination of Su-
preme Court Justices reviewing their own decisions in
i891; the introduction of recusal motions by litigants in
1911; the reasonable person test of objectivity in 1974
;
=
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7
the Hawaii Supreme Court may not be biasec
tutional question”, it o
;
The majority misconceives the third part of the Mid
ilesex test. Bias plays no role in the application f the
three-part test Rather, bias is an entirely separate matter
Where bias exists, Younger abstention is inapplicable, r
irdless of whether the three-part test is met Kuele
Helfant, 421 U.S. 117, 124-25 & n. 4, 95 S.Ct. 1524, 15
®’ n. 4. 44 L.Ed.2d 15 (1975). The bias need not be on a1
particular claim. All that is necessary to bar abstentior
that the Hawaii Supreme Court be biased on the di
plinary proceedings. Here, under Hawaii Supreme ( rt
Qu 13, the supreme court w ild have to determi
hether Partington rendered ineffective assistance
Insel to Clifford Clarke H{ WeVel that uurt | >
ready decided in Stat larke that Partington’s as
tance was ineffective and that a murder conviction against
Clarke must be reversed for that reasor Thus art
nvgton would be subjected t udgment by a tribur
which has already reached a judgment on the merif f
1S¢ Because of its prior actions the Hawaii Suprem
Court is. as a matter of law, a biased forum with respect
\t the oral argument in Stat Clark ne of tl
f the Hawan Supreme Court accu ed Partington of n
{uct, contending that he had been deliberately inettective
trial. As discussed in the text, the Hawai Supreme ¢ irt
ltimately reversed Clarke’s conviction on the grounds that
received ineffective assistance from Partington
Subjecting Partington to disciplinary proceedit befor
1 biased tribunal would violate his due process right
n Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 3¢
|.Fd.2d 488 (1973)
\
51a
attorney and the special prosecutor may file exceptions to
the special master’s decision with the court. The supreme
court reviews the special master’s decision; the Court
then makes an independent determination‘ whether the
attorney provided ineffective assistance to the defendant ,
and on that basis decides whether to dismiss the proceed-
ings or order corrective action against the attorney.
4
I]
PREJUDGMENT
Clearly, the critical feature of the Rule 13 proceedings
is the determination of the Hawaii Supreme Court is
required to make with respect to counsel's ineffective-
ness. It must make this critical determination regardless
of whether it or the intermediate appellate court made
the earlier determination that counsel's representation
was ineffective, and reversed the criminal conviction on
that ground. Here, we are presented with an extreme
form of the Rule 13 process: the supreme court, sua
sponte, raised and determined the ineffectiveness issue
during the criminal Proceeding; it would now be required
to resolve the identical issue a second time in the disci-
plinary proceeding.
The majority first asserts chat Younger abstention is
appropriate here because “[t]he Hawaii Supreme Court
has never had the Opportunity to hear Partington’s argu-
ment that due process requires that he not be judged by
the court after it has ruled on his performance in the
4 See note 12, infra.
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later described in Middlesex) was met, abstention would
be improper if the state action was brought in bad faith or
for purpose of harassment or in other extraordinary cir-
cumstances. 401 U.S. at 53-54, 91 S.Ct. at 754-55; see also
Middlesex, 457 U.S. at 437, 102 S.Ct. at 2524. Bias on the
part of the state tribunal is one of those extraordinary
circumstances which renders Younger abstention inap-
propriate, even if all three prongs of the Middlesex test are
met. Kugler v. Helfant, 421 U.S. 117, 124-25 & n. 4, 95 S.Ct.
1524, 1531 & n. 4; cf. World Famous Drinking Emporium,
820 F.2d at 1082. Thus, it is simply irrelevant whether
Partington will be able to raise his constitutional claims
before the Hawaii Supreme Court or whether the Court is
biased as to those claims; for if the Court has prejudged
the merits of the disciplinary proceeding, it is a biased
tribunal and Younger abstention is inapplicable."!
The majority dismisses the Court’s statement in
Kugler that bias is a separate element by calling it dictum.
Majority op. at 22 n. 3. Whatever the merits of that
categorization, it seems apparent that the Court was cor-
rect when it reached its conclusion. Younger abstention is
barred when, inter alta, “extraordinary circumstances”
render the proceedings unfair, a concern that is
'l It is worth noting that a letter dated April 27, 1987 to
Partington from the Chief Justice, a letter the majority appears
to accept as the view of the entire court, Majority op. at 126,
suggests that the court has in fact prejudged the due process
claim. See ER 444 (Chief Justice finds “mystifying” Partington’s
contention that he could not receive an impartial hearing on
the ineffectiveness claim). Surprisingly, at a later point in the
majority Opinion, the letter is summarily dismissed as at most
reflecting the opinion of the Chief Justice. Majority op. at 128 n.
59a
independent of whether the federal court plaintiff will
have an adequate opportunity in the state proceedings to
raise his federal constitutional claims. Middlesex listed as
examples of this rule a proceeding brought in bad faith or
for purposes of harassment. 457 U.S. at 435, 102 S.Ct. at
2522. Certainly a proceeding brought before a biased
tribunal is even more unfair to a licensee, and even more
violative of his due process rights, than a proceeding that
is merely initiated for an improper purpose. In the case of
bad faith or harassment, the licensee is required to submit
to a proceeding unnecessarily, but should prevail on the
merits; in the case of bias, the licensee does not have a
fair chance to prevail at all, and an adverse result is, for
practical purposes, a foregone conclusion. Thus, the
Court’s determination in Kugler that bias is an “extraordi-
nary circumstance” barring Younger abstention was com-
pelled by reason and logic as well as precedent, and the
majority clearly errs in rejecting the Court’s analysis.
In any event, whether bias is considered separately
from the three-prong Middlesex test, or whether we disre-
gard the clear language in Kugler and consider bias to be
a part of the third prong of that test, the result in this case
would be the same. As previously discussed, under Gib-
son it is clear that bias on the merits of a disciplinary
proceeding is sufficient to preclude You) tention
The majority next concludes that the
cedure does not present an unacceptable risk of prejudg
ment on the ineffectiveness issue, although it is tar from
clear why it reaches that conclusion.!? Majority op. at 125
19
At one point, the majority argues that Partington has
not alleged that the Hawaii Supreme Court is biased “on the
(Continued on following page)
60a
The majority appears to accept the Withrow test, which
states that “if the initial view of the facts based on the
evidence derived from non-adversarial processes as a
practical or legal matter foreclose[s] fair and effective con-
sideration at a subsequent adversary hearing leading to
ultimate decision, a substantial due process question [is]
raised.” Withrow, 421 U.S. at 58, 95 S.Ct. at 1470 (empha-
sis added). With respect to the issue of “legal” bias, the
majority concludes that Partington has not demonstrated
that the Hawaii Supreme Court is legally foreclosed
“from considering the ineffectiveness issue de novo.”
Majority op. at 126. On that point, I am in agreement.!?
However, the majority also concludes that there Is
(Continued from previous page)
primary issue... [namely] whether corrective action 1s war-
ranted [against Partington] under Rule 13.” Majority op. at 126.
Any distinction between whether the court is biased “merely”
on the ineffective assistance issue rather than on the corrective
action issue is semantic gameplaying at best. I find it hard to
believe that anyone would suggest that a court that has pre-
judged the issue whether Partington rendered ineffective assis-
tance is unbiased on the question whether he should be the
subject of disciplinary action. The Hawaii Supreme Court is
necessarily required to judge the issue on which it is biased
before determining the appropriate remedy. Obviously, if the
court were to decide the issue relating to conduct in Part-
ington’s favor, there would be no need for it to reach the
question whether corrective action is warranted.
13 Partington has not demonstrated by unambiguous au-
thority that the court is legally precluded from reconsidering
its initial determination of ineffectiveness. For the purposes of
our Younger analysis, we must assume that the Hawai
(Continued on following page)
a
6la
no “practical” impediment to the Court’s examining the
issue in a fair and impartial manner. Id. at 125, 126. The
majority offers mo explanation for this conclusion, and
cites no caseNaw or other authority. In fact, the majority
Opinion contains no discussion whatsoever of the ques-
tion whether the Hawaii Supreme Court could, asa prac-
tical matter, serve as an unbiased adjudicator. Instead, it
avoids the issue entirely, apparently preferring to base its
conclusion that Partington will be able to obtain a fair
hearing entirely on the supposition that all of the mem-
bers of the supreme court will recuse themselves.'4 Id. at
126.
I believe that, as a practical matter, the Hawaii Su-
preme Court has prejudged Partington’s case. At the very
least, there is an intolerable risk of prejudgment. The sole
reason Partington is now facing disciplinary proceedings
is because in a previous proceeding the Hawaii Supreme
Court, sua sponte, raised and decided, on the merits, the
issue of ineffective assistance of counsel in a manner
adverse to him. The issue the court previously decided is
the identical issue it will now be required to address in
the Rule 13 proceedings. In my view, the Hawaii Supreme
Court is not, as a practical matter, an unbiased adjudica-
tor.
(Continued from previous page)
Supreme Court is free to reexamine its previous legal conclu-
sion on the question of ineffective assistance. If, however, this
assumption turns out to be incorrect, | do not think anyone
could argue that the Rule 13 proceeding would satisfy due
process.
4 The question of recusal is discussed infra, section III.
6 2a
There are several federal statutes which are con-
cerned with the issue of judicial bias. See 28 U.S.C. §§ 47,
144, & 455 (1982). These statutes are premised on the
simple proposition that “la] fair trial in a fair tribunal is a
basic requirement of due process.” In re Murchison, 349
U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). But a
fair trial means more than simply the absence of actual
bias. “[O]ur system of law has always endeavored to
prevent even the probability of unfairness.” Id. (emphasis
added). To this end, “justice must satisfy the appearance
of justice.” Id. (quoting Offutt v. United States, 348 US. 11,
14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)). Thus, we’ must
constantly be alert to procedures which “under a realistic
appraisal of psychological tendencies and human weak-
ness ... pose[] such a risk of actual bias or prejudgment
that the practice[s] must be forbidden if tne guarantee of
due process is to be adequately implemented.” Withrow,
421 U.S. at 47, 95 S.Ct. at 1464.
While we can readily identify the reasons why judi-
cial bias cannot be tolerated, we must still determine
when a judge’s previous involvement with a case creates
such a risk of bias that it would be a violation of due
process to allow him to be further associated with the
proceedings. Two decisions help frame the issue. Prejudg-
ment, 0. an unconstitutional risk of prejudgment, has
been found where the contents of a speech by a judge
“plainly reveale[d]” that he had, prior to the commence-
ment of the proceedings before him, reached a conclusion
as to the merits of a case that involved complex questions
of fact and law. Texaco, Inc. v. Federal Trade Commission,
336 F.2d 754, 760 (D.C.Cir.1964), vacated on other grounds,
63a
381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d 714 (1965).15 Also,
judges have been disqualified from presiding over ap-
peals from decisions in cases, or involving issues, origi-
nally tried before them as lower court judges. See, e.g.,
Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d
135, 137 (5th Cir.1970) (Order of Disqualification and
Memorandum of Decision by Craven, J.) (appeals court
must “be constituted of judges uncommitted and uninflu-
enced by having expressed or formed an Opinion in the
court of first instance”) (quoting Moran v. Dillingham, 174
U.S. 153, 19 S.Ct. 620, 43 L.Ed. 930 (1899)).16
'> Our present Chief Justice has said that the mere fact that
a judge has expressed an opinion on a purely legal question
would not demonstrate bias or prejudgment, Laird v. iatum,
409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (memorandum on
recusal by Rehnquist, J.). We have reached the same conclu-
sion. United States v. Conforte, 624 F.2d 869, 882 (9th Cir.), cert.
denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). The
situations discussed by Justice Rehnquist and by this court in
Conforte were far different from the one present in Texaco.
Conforte is discussed further infra, note 20.
'6 In Swann, Judge Craven applied 28 U.S.C. § 47, which
explicitly forbids the practice of a judge hearing an appeal
from a case which he tried. The same result has been reached
through application of 28 U.S.C. § 455, which requires a judge
to recuse himself to avoid the appearance of impropriety. Rice
v. McKenzie, 581 F.2d 1114, 1116-18 (4th Cir.1978) (federal
judge. who, as chief justice of state supreme court, had _ pre-
sided in affirming appeal of convicted person was disqualified
from federal habeas corpus proceedings because of concerns
with impartiality). Cf. Withrow, 421 U.S. at 58 n. 25,95 S.Ct. at
1470 n. 25 (“when review of an initial decision is mandated, the
decisionmaker must be other than the one who made the
decision under review”).
(Continued on following page)
64a
While Texaco and Swann provide some guidance,
there are significant differences between those cases and
Partington’s. The commissioner’s prejudgment in dexaco
was extrajudicial; the remarks were made during a public
appearance and were not based on knowledge the com-
missioner obtained during an official proceeding. Cf.
United States v. Studley, 783 F.2d 934 (9th Cir.1986). Swann
was concerned with the issue of what constitutes a mean-
ingful review by a higher court of a lower court's deci-
sion. In the present case, the issue is: when is a court that
is called upon to decide a complex question of law and
fact as to which it has already reached a final determina-
tion in an earlier proceeding presumed to have prejudged
the question?
(Continued from previous page)
In light of current practice, the comments in the concurring,
opinion on the history of the practice of the Supreme Court
acting “as a court of appeals from decisions of circuit courts
made by the Justices as circuit judges,” Concurring op. at 132,
and specifically its discussion of Stuart v. Laird, 1 Cranch 295
(1803), and The Antelope, 23 U.S. 10 Wheat.) 66, 6 L.Ed. 265
(1825), while interesting, shed no light on the specific issue
before us. Just as our view of the slave trade has changed from
that espoused in The Antelope, so too has our view of the
propriety of judges sitting in judgment on their own decisions.
Moreover, in The Antelope, no challenge was made to the indi-
vidual Justice’s participation in an appeal from a case in which
he had sat as a circuit judge; perhaps more interestingly, 1n
Stuart, “[t]he Chief Justice, having tried the cause in the court
belew, declined to give an opinion.” Id. at 306. Most impor-
tantly, in neither case did the Justices even consider the ques
tion we are presented with, that is, whether a court comprised
wholly of judges who decided the same case at a lower judicial
level may hear an appeal of that lower court decision, and
certainly the concurring opinion does not suggest that any
such practice ever existed.
65a
Although Texaco and Swann are not dispositive, the
policies which underlie them compel the conclusion that
the Hawaii Supreme Court is biased in this case. The
common thread that links Texaco and Swann is the concept
that no person can be compelled to litigate a controversy
before a judge whose prior conduct or connection with
the case makes it likely that he will have prejudged the
outcome. The reason that due process does not permit a
judge to hear an appeal of a case he previously tried as a
lower court judge has been well stated. “Such an appeal
is not from Phillip drunk to Phillip sober, but from Phillip
sober to Phillip intoxicated with the vanity of a matured
opinion and doubtless also a published opinion.” Swann,
431 F.2d at 137 (quoting an address by Walter B. Hill to
the American Bar Association). The concerns reflected in
Swann relate not only to the risk that a judge will have
actually prejudged a case, but to the appearance of par-
tiality as well. As the Supreme Court made abundantly
clear in In re Murchison, “justice must satisfy the appear-
ance of justice.” 349 U.S. at 136, 75 S.Ct. at 625.
Here, the court which will decide in the disciplinary
proceeding whether Partington provided ineffective as-
sistance of counsel is the same body that has already
determined in State v. Clarke that Partington did precisely
that.'7 It has also issued an opinion to that effect and has
'’ The concurring opinion suggests at one point that pre-
judgment “must be based upon something other than rulings
in the case.” Concurring op. at 133, quoting Berger v. United
States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481 (1921); see
als) Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1981) (Gjudge’s
participation in prior or related proceeding not sufficient to
(Continued on following page)
66a
reversed a murder conviction on that ground. These cir-
cumstances present an unacceptable risk of prejudgment,
one that neither Partington nor any other litigant should
be required to assume. They also fall far short of satisfy-
ing “the appearance of justice”.
The conclusion that the Hawaii Supreme Court does
not qualify as an impartial body insofar as Partington’s
Rule 13 proceeding is concerned finds strong support in
Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d
712 (1975). In Withrow, the Court considered whether the
combination of investigative and adjudicative functions
in a state administrative agency violated due process. It
suggested that bias or prejudgment would be established
if an initial accusatory finding foreclosed, as a practical
matter, a later adjudicatory finding to the contrary.'* Id. at
58, 95 S.Ct. at 1470. The Court concluded that the state
practice did not violate due process, because the initial
investigative decision was one of probable cause, a deter-
mination that would not be logically inconsistent with a
subsequent adjudicatory determination of “no violation”.
Id. at 57, 95 S.Ct. at 1469. Or, as the Court put it, a
favorable second decision would not constitute an implic-
it admission that the first was erroneous.
(Continued from previous page)
constitute bias). However, none of the cases the concurring
opinion relies upon (with one exception) involves a situation in
which, as here, the judges will be called upon to determine the
same complex question of fact and law on which they previ-
ously reached a final determination. The one exception, Denis
v. Perfect Parts, Inc. 142 F.Supp. 263 (D.Mass.1956), 1s discussed
in note 20, infra.
18 The majority apparently does not disagree with this
suggestion. See Majority op. at 124, 126.
18) 7a
Here, the Hawaii Supreme Court has not merely
made a preliminary or accusatory finding that Partington
may have rendered ineffective assistance of counsel. Rath-
er, it has made a finding on the merits that the assistance
Partington rendered was so ineffective as to require the
reversal of a murder conviction. Certainly, a subsequent
finding by that same court in a Rule 13 proceeding that
Partington had not rendered ineffective assistance of
counsel would be logically inconsistent with its prior
finding.'” The Court would “implicitly be admitting error
in its prior finding.”?° Id. 421 U.S. at 57, 95 S.Ct. at 1469.
'’ None of this discussion is meant to minimize the prob-
lem of ineffective assistance of counsel for criminal defendants,
nor to suggest that the Hawaii Supreme Court cannot fulfill its
duty to supervise attorney conduct. Nevertheless, the Court
cannot exercise its authority in a manner which violates the
requirements of due process. A Rule 13 procedure can un-
doubtedly be devised which meets those requirements. See
infra pages 146-147.
2° The concurring opinion concludes that there would be
“no logical inconsistency between the Supreme Court reversing
the murder conviction in Clarke because of ineffective assis-
tance of counsel and then finding that in the disciplinary
proceeding against Partington he had explained his strategy so
that the court was now satisfied that he had not breached his
responsibilities as a lawyer.” Concurring op. at 134 (emphasis
in original). The logic of this statement escapes me. If the court
determines that Partington’s strategy was reasonable and that
it justified his trial tactics, | do not see how it could also Say
that there was a sixth amendment violation. If the strategy
justified the tactics, then the assistance was not ineffective.
The concurring opinion also concludes, without analysis,
that the tact that the Hawaii Supreme Court has already re-
versed a murder conviction because the defendant received
(Continued on following page)
68a
The concept of “logical inconsistency”, emphasized
in Withrow, helps distinguish this case from cases holding
(Continued from previous page)
ineffective assistance from Partington does “not constitute dis-
qualifying bias [on the part of the members of the court]
because it is not the kind of aversion or hostility that a tair-
minded person would be unable to set aside.” Concurring o}
at 132. However, the case that it relies on, United States ¢
Conforte, 624 F.2d 869 (9th Cir.) cert. denied, 449 U.S. 1012, 101
S.Ct. 568, 66 L.Ed.2d 470 (1980), involved a type of prejudg-
ment wholly unlike the prejudgment present in this case. In
Conforte, the alleged bias was personal - the trial judge had
allegedly made derogatory statements about the defendant
some years prior to the time when the defendant appeared
before the judge. 624 F.2d at 878-79. We held that the bias
alleged was not sufficient to require recusal, and that disqual-
ification for personal bias required “an animus more active and
deep-rooted than an attitude of [non-racial] disapprove! to-
ward certain persons because of their known conduct.” id. at
881 However, the question of the depth of personal animosity
required to constitute disqualifying bias bears no relationship
to the question whether a court has actually prejudged the
merits of the case before it because it has rendered a final
decision in a previous case on the same issue it is now called
upon to decide.
The only case that the concurring opinion relies on that is
at all factually similar to our case is Dents v. Perfect Parts, Inc.,
142 F.Supp. 263 (D.Mass.1956). In that case, the district judge
declined to recuse himself at the request of the defendant,
although he would be called upon to determine the validity ot
a patent which he had declared vatid in a previous case that
involved the same plaintiff but a different defendant. Jd. at 263.
The Judge declined to disqualify himself, because he conclud-
ed that 28 U.S.C. § 144, the disqualification statute, “is directed
to personal bias, not to previous exposure to the same or
similar questions.” Id. The judge believed that a contrary
(Continued on following page)
69a
that a judge who initiated the proceedings may preside at
the hearing on the merits.2! For example, a judge who
charges an attorney with violating Rule 11 and orders
him to show cause is permitted to conduct the subse-
quent hearing. See, e.g., Tom Growney Equipment, Inc. v.
Shelley Irrigation Dev. Inc., 834 F.2d 833 (9th Cir.1987). A
determination by the judge at the later hearing that Rule
11 sanctions are not appropriate would not be inconsis-
tent with his issuance of the initial charge. The initial
charge or finding is similar to one of probable cause,
while the later determination on the merits is akin to one
of guilt or innocence. Similarly, when a court cites an
attorney for contempt, orders him to show cause, and
then presides over the contempt trial, e.g., Nilva v. United
(Continued from previous page)
result would minimize or eliminate the value of ‘udicial experi-
ence and exposure. Id. Denis would thus suggest a different
result than the one that I reach here. However, as the concur-
ring Opinion points out, “[s]ensibilites no doubt are changing
on the question of judicial bias.” Concurring op. at 133. Indeed,
the author of the opinion in Denis has expressed considerable
doubt about the decision he reached in that case. See Codex
Corp. v. Milgo Electronic Corp., 553 F.2d 735, 739 (1st Cir.1977).
Thus, Dents, while never controlling on this court, cannot any
longer even be considered persuasive.
*! Although Judge Noonan does not disagree with the use
of the “logical inconsistency” standard, he would seem to rely
on each individual justice’s view as to whether he has pre-
judged Partington’s case. See Concurring op. at 134. This con-
clusion appears to be at odds with the prevailing notion that an
objective standard is to be used. See, e.g., Berger v. United States,
255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921); United
States v. Conforte, 624 F.2d 869, 881 (9th Cir.) cert. dented 449
U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980); 28 U.S.C. § 455
(1982); see aiso Concurring op. at 134.
70a
States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957), a
finding of not guilty is not logically inconsistent with the
fact that a charge was preferred. Another example is the
issuance of a preliminary injunction by a judge who
subsequently presides over a trial in which he determines
whether a permanent injunction should issue. This prac-
tice is proper because the question at the hearing on the
preliminary injunction is solely one of “reasonable
cause”; no determination on the merits is made at that
time. Thus, there is ordinarily neither the appearance nor
the reality of logical inconsistency or prejudgment in any
of the above cases when the merits are heard.??
At first glance, a more troublesome analogue is pre-
sented when a trial judge presides over a trial for the
second time after his initial decision has been reversed on
appeal. This practice does not generally create a risk of
bias or prejudgment implicating due process concerns.°”
°2 It is worth noting that the judge who initiates the con-
tempt proceedings is not always permitted to preside over
them. For example, if “the contempt charged involves disre-
spect to or criticism of a judge, that judge is disqualified from
presiding at the trial or hearing except with the defendant's
consent.” Fed.R.Crim.P. 42(a). See alsu In re Murchison, 349 U.S.
133, 137, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (trial for con-
tempt during grand jury proceedings before same judge who
acted as one-man grand jury violates due process because
“{thjaving been a part of that process a judge cannot be-
. Wholly disinterested in the conviction or acquittal of those
accused”).
23 Of course, an appellate court may, under its supervisory
powers, reassign the case on remand to a different trial judge,
if it determines under the circumstances of the case that allow-
ing the same judge to rehear the case poses an unacceptable
(Continued on following page)
—
71a
See, e.g., NLRB v. Donnelly Garment Co., 330 U.S. 219, 236,
67 S.Ct. 756, 765, 91 L.Ed. 854 (1947); United States v.
Hollis, 718 F.2d 277 (8th Cir.1983), cert. denied, 465 U.S.
1036, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984). However, our
judicial system has built-in mechanisms that serve to
protect litigants against the risk of prejudgment in such
cases, and help to maintain the appearance of impar-
tiality. When a trial judge presides over a trial after
remand, intervening appellate guidance significantly
minimizes the risk of bias. The trial judge is advised that
his initial decision was incorrect, and receives specific
guidance from the reviewing court as to the aspects of the
trial which created reversible error. Usually, the trial
judge is also given specific instructions as to what reme-
dial or corrective actions should be taken in the second
trial. In addition, the decision in the second trial will
itself be subject to judicial review. That review also serves
as an independent restraint on the trial judge, because he
will be aware that evidence of bias or prejudgment on his
part will lead to a second reversal.?4
(Continued from previous page)
risk of bias. See, e.g., Smith v. Mulvaney, 827 F.2d 558, 562-63
(9th Cir.1987).
°4 The practical reality of retrying numerous cases after
appeal virtually requires that, with appropriate safeguards, our
judicial system allow the same judge who presided over the
first trial to preside again after appeal. Untted States v. Harris,
458 F.2d 670, 678 (5th Cir.) (“ ‘used’ judges must simply be
recycled” to avoid problem of no judge in a particular venue
being able to hear a litigant’s case), cert. denied, 409 U.S. 888, 93
S.Ct. 195, 34 L.Ed.2d 145 (1972). Neither the courts generally
nor Hawai courts in particular face a comparable practical
problem with respect to the adjudication of disciplinary cases
None of the procedures which serve to eliminate or
reduce the risk of prejudgment when a trial judge rehears
a case following reversal or remand are applicable in Rule
13 proceedings. Under Rule 13, there is no superior au-
thority that will have informed the supreme court that its
initial decision was incorrect prior to the time it hears the
issue for the second time; no higher court will have
explained to the Hawaii Supreme Court the nature of its
errors in the initial proceedings or provided il with guid-
ance as to those errors. Nor will the supreme court have
had the benefit of specific instructions as to how to con-
duct the second proceeding. While remand to a triai court
occurs because that court’s initial decision has been
found to be incorrect and has been reversed, no compara-
ble events will have occurred here. To the contrary, the
disciplinary proceedings will take place here because the
Hawaii Supreme Court’s determination of ineffective as-
sistance has not been vacated or set aside by a higher
court. Equally important, the supreme court’s determina-
con in the Rule 13 proceedings will be final, with no right
of appeal to a superior judicial body.?>
25 The concurring opinion suggests that our current en
banc practice also presents a troublesome analog. Concurring
op. at 131-133. However, that circumstance is wholly different
from the one with which we are now confronted. When a
circuit court sits en banc, the court rehears the case at issue, just
as the original panel may. The en banc judges do not, as the
Hawaii Supreme Court under Rule 13 is required to do, decide
a complex issue of fact and law on which the court has already
reached a final determination in a prior case. The practice of
granting a rehearing in a pending case poses none of the
problems presented by a court requiring a party to submit to it
for decision an issue on which the court has already rendered a
tinal decision adverse to that party.
73a
For the reasons discussed above, I cannot agree that
Partington must show more than the fact that the Hawaii
Supreme Court is biased on the merits of the disciplinary
proceeding. Nor can I agree that Partington has failed to
establish the existence of that bias. In my opinion, the
court’s prior determination in State v. Clarke that Part-
ington provided ineffective assistance would “give[ ] fair
support to the charge of a bent of mind that may prevent
or impede impartiality of judgment.” United States v.
Haldeman, 559 F.2d 31, 136 (D.C.Cir.1976) cert. denied, 431
U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). The Su-
preme Court has warned us to “be alert to the possi-
bilities of bias that may lurk in the way particular
procedures actually work in practice.” Withrow, 421 U.S.
at 54, 95 S.Ct. at 1468 The majority fails to consider
sufficiently the nature of the triggering determination in
Rule 13 proceedings, and thus gives short shrift to the
very real problem of prejudgment the rule presents. The
Supren int Das held that, if a state administrative
veger abstention is inappropriate
even if stat idicial review, de novo or otherwise, would
be forthcoming at the close of the administrative proceed-
ings.” Gibson, 411 U.S. at 577, 93 S.Ct. at 1697 (footnote
omitted). The same conclusion holds true a fortiori where,
as here, the biased decision of a court will not be subject
to any review.?°
26 The majority opinion contends that Hawati’s Rule 13
disciplinary procedure is “strikingly similar” to the New Jersey
disciplinary proceeding which the Supreme Court held, in
Middlesex County Ethics Committee v. Garden State Bar Ass‘n.,
457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), provided a
(Continued on following page)
74a
Ii]
RECUSAL
In concluding that Partington will be able to bring his
claims before an impartial tribunal, the majority does not
determine whether the justices of the Hawaii Supreme
Court have, as a practical matter, prejudged his claim; nor
does it consider whether disciplinary proceedings before
those justices would give the requisite appearance of
impartiality. See Majority op. at 120. Rather, its conclusion
is based entirely on Partington’s supposed ability to ob-
tain the recusal under Haw.Rev.Stat. § 601-7(b) (1985) of
all five of the justices of the court.27 Majority op. at
(Continued from previous page)
charged attorney with an adequate opportunity to raise his
constitutional claims. Majority op. at 121. However, any “sim-
ilarity” between the two systems is at most superficial, and in
any event irrelevant to the question of prejudgment.
Under the New Jersey attorney disciplinary system, a local
Ethics Committee is authorized to receive complaints about
attorney misconduct. It then makes an initial determination
whether an attorney should be disciplined for unethical con-
duct. 102 S.Ct. at 2518. If the Committee determines that disci-
plinary action is warranted, it prepares a presentment for the
Disciplinary Review Board. Id. at 2518-19. The Review Board
then decides what disciplinary action, if any, is warranted. The
New Jersey Supreme Court’s first involvement with the pro-
ceedings is when it reviews the Review Board’s decision. Id. at
2519.
27 Although the majority refers to Partington’s ability to
seck recusal of “certain members of the Supreme Court [who]
may be personally biased against him... by virtue of their
finding of ineffectiveness of counsel in State v. Clarke,” Major-
ity Op. at 127 (emphasis added), the opinion in Clarke shows
that all of the justices found that Partington’s assistance was
ineffective. ER 158-59.
75a
126-128. In short, the majority appears to assume that
some group of judges other than the sitting supreme
court justices will hear Partington’s case. Once again the
majority does not discuss the legal issue involved, that is,
whether Hawaii’s recusal statute is applicable here; this
time it simply asserts, ex cathedra, that it is.
Hawaii law provides for recusal of the entire court
“[wJhen necessary.” Haw.Rev.Stat. § 602-10. On its face,
this language would seem to support the majority’s posi-
tion. But recusal statutes are generally addressed to
claims of bias in individual cases, that is, the problem of
alleged bias on the part of some or all of the justices
arising from the peculiar facts of an individual case or
group of related cases. Cf. C. Wolfram, Modern Legal Eth-
ics 982-99 (1986) (discussion of disqualification of judges
for interest or bias contains no mention of types of bias
other than individual). Rule 13 presents a very different
problem than is usually addressed under recusal statutes.
Under Rule 13, prejudgment is not the exceptional case,
arising only under unusual circumstances. Rather, the
conflict the Hawaii Supreme Court justices are confronted
within Partington’s case is the inevitable result of the way
the rule is structured. That structure ensures that pre-
judgment will be endemic in disciplinary cases. Far from
being a random occurrence during a particular Rule 13
proceeding, prejudgment is the institutional norm.
Under Rule 13, the Hawaii Supreme Court makes the
final determination in all disciplinary proceedings as to
whether an attorney provided ineffective assistance of
counsel. The event that triggers the Rule 13 proceedings
is a determination, made in a criminal proceeding, by the
supreme court or the intermediate appellate court or both
76a
that the attorney did in fact provide ineffective assis-
tance.2® The supreme court may have been the first court
to make that determination in the criminal proceeding or
it may have affirmed the finding of the intermediate
court.2? Wherever or however the determination of inef-
fectiveness was made in the criminal proceeding, Rule 15
vests the Hawaii Supreme Court with the authority to
make the subsequent ineffectiveness determination in the
disciplinary proceedings.
As already noted, the majority contends that recusal
of all of the Hawaii Supreme Court justices will solve
whatever bias or prejudgment problem Partington may
face. However, the majority’s “solution” would not apply
to Partington’s case only. It would require the recusal of
every member of the supreme court in every case which
was initiated because the supreme court had made or
affirmed the triggering ineffectiveness finding. All such
cases would be heard by judges who are not sitting
members of the Hawaii Supreme Court. Such a procedure
26 Disciplinary proceedings are instituted whenever such a
determination is made and the criminal conviction is reversed.
Haw.S.Ct.R. 13. Conceivably, in rare instances the reversal of a
conviction on the ground of ineffective assistance of counsel
could originate in the trial court. However, in such cases, there
is still a reasonable possibility that the determination will
subsequently be affirmed (or reversed) by the intermediate
appellate court, the supreme court, or both. Accordingly, there
is no need to consider these cases separately, and they are
subsumed within the discussion contained in the text.
°% Of course, where the intermediate appellate court
makes the determination in the criminal proceeding and the
decision is not reviewed by the supreme court, no due process
issue Is presented by the provisions of Rule 13.
77a
would be directly contrary to the disciplinary system the
Hawaii Supreme Court actually enacted, a disciplinary
system which contemplates a final determination by the
supreme court in all cases. The majority’s assertion that
the recusal statute is applicable here is simply incompat-
ible with the language and intent of Rule 13.
A Rule 13 system could easily have been devised
under which the supreme court would make the deter-
mination of ineffective assistance of counsel in a disci-
plinary proceeding if the original finding of ineffec-
tiveness Fad been made in an unappealed decision of the
intermediate appellate court, and the intermediate appel-
late court would make the disciplinary determination if
the supreme court had originated the earlier ineffective
assistance finding.*? But the Hawaii Supreme Court chose
not to enact such a system. Instead, it chose to make itself
the final judge of whether an attorney had provided
ineffective assistance in all cases — those in which it had
made or affirmed the earlier determination that the attor-
ney was in fact ineffective as well as those in which only
the intermediate appellate court had made such a deter-
mination. Rule 13 explic tly provides that the disciplin-
ary proceeding be adjudicated by the supreme court,
not by appellate court judges or retired supreme
*° If the intermediate appellate court had made the initial
ineffectiveness finding and the Hawaii Supreme Court had
affirmed, neither the supreme court justices nor the appellate
court judges who participated in the criminal proceedings
could be involved in the disciplinary case. However, other
active appellate court judges as well as retired supreme court
justices, retired appellate court judges, or active or retired
circuit court judges would be eligible, if authorized by a re-
vised Rule 13.
78a
court justices. If, when it adopted rule 13, the Hawaii
Supreme Court had intended that intermediate court
judges or retired supreme court justices adjudicate the
disciplinary proceedings which had been initiated be-
cause of a finding made by the supreme court, it would
certainly have included a provision to that effect in the
text of the rule.*!
It is clear that the Hawaii Supreme Court did not
intend the recusal statute to be applicable in cases such as
Partington’s because application of the statute to such
cases would do precisely what the court refused to do
when it enacted Rule 13. It would require that disciplin-
ary proceedings arising out of reversals ordered by the
supreme court, or out of cases in which the supreme
court upheld a reversal ordered by a lower court, be
adjudicated by a group of judges who are not active
members of the court. The majority errs in attempting to
save Rule 13 by presuming the applicability of Hawaii's
recusal statute.*? The proper course would be to
31 For the same reason, it would not be reasonable to
suggest that the court had the recusal statute in mind when it
drafted Rule 13, and that it therefore expected retired justices
or active circuit judges, see Haw.Rev.Stat. § 602-10, to hear
those disciplinary cases which result from criminal proceed-
ings which have previously reached the supreme court level.
That class of cases constitutes far too significant a part of the
potential pool to have been overlooked by the court or ex-
cluded sub silentio from the regular procedure.
32: The Supreme Court has held that the ability to seck
recusal is sufficient to protect due process requirements. Kugler
v. Helfant, 421 U.S. 117, 130-31, 95 S.Ct. 1524, 1533-34, 44
L.Ed.2d 15 (1975). In Kugler, the Supreme Court affirmed the
(Continued on following page)
79a
invalidate the rule and permit the Hawaii Supreme Court
to reenact a version that does not offend due process.
IV
CONCLUSION
Certainly, judges are entitled to a presumption of
absence of bias, see Schweiker v. McClure, 456 U.S. 188, 195,
102 S.Ct. 1665, 1669, 72 L.Ed.2d 1 (1982), as well as one of
integrity and honesty. Withrow, 421 U.S. at 47, 95 S.Ct. at
1464. They are also entitled to a presumption that they
will follow their duty to “be unswayed by partisan inter-
ests, public clamor, or fear of criticism.” Haw.S.Ct.R.
8.5(a)(5), incorporating Code of Judicial Conduct, Canon
3(A)(1). But such a presumption “does not, of course,
preclude a court from determining from the special facts
(Continued from previous page)
district court’s dismissal of a complaint on the basis of Younger,
emphasizing that recusal would solve any due process problem
that might arise from the possibility of bias on the part of
individual members of the New Jersey Supreme Court. /d.
Kugler involved an individual instance of bias, not the systemic
bias present here. Because Rule 13 contemplates that the Ha-
wali justices will determine the question of ineffective assis-
tance of counsel under that rule and not that they will all be
recused from hearing such cases when the triggering deter-
mination has been made by the Hawaii Supreme Court, recusal
is not an available option here. Thus, Kugler is inapplicable. In
addition, this court has held that a plaintiff’s failure to utilize
state disqualification procedures will prevent us from making
a determination whether his case fits the bias exception to
Younger. Flangas v. State Bar of Nevada, 655 F.2d 946, 950 (9th
Cir.1981). However, Flangas, like Kugler, involved an individual
instance of bias to which the state recusal statute was clearly
applicable.
80a
and circumstances present in the case before it that the
risk of unfairness is intolerably high.” Withrow, 421 U.S.
at 58, 95 S.Ct. at 1470. This is just such a case. Under Rule
13, the Hawaii Supreme Court would be called upon to
determine whether Partington rendered ineffective assis-
tance of counsel, despite the fact that it has previously
determined, in reversing a murder conviction, that he did
precisely that. While I have no doubt that the justices of
the Hawaii Supreme Court would attempt to comply with
their duty to be impartial, the risk of prejudgment on the
part of the court is too great. So, too, is the price the
courts would pay for failing to preserve the appearance
of justice.
The majority’s suggestion that Partington must now
present his a
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