Petition for Writ of Certiorari — Partington v. Gedan

Supreme Court brief1990

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JOSEPH FSPF NOL ii

CLE WK

saeininaeanaaiassicisit —_ Le ene —~meees

In The

Supreme Court of the United States

October Term 1989

EARLE A. PARTINGTON,

Petitioner,

JOSEPH M. GEDAN and HOWARD T. CHANG,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PARTINGTON AND Fo

EARLE A. PARTING

2450 Pacific Tower

LOQ] Bishop Street

Honolulu, Hawaii 96813

(SO8) 526-9500

) I

M7pofohy bY, Dd }?»

QUESTIONS PRESENTED

|. Whether institutional bias caused by prejudgment is

an “extraordinary circumstance” rendering Younger ab-

stention inappropriate without regard to the three-prong

test of Middlesex.

2. Whether the sixth amendment right to counsel clause

prohibits someone other than the client from waiving the

attorney-client privilege arising in a criminal case.

3. Whether the unconstitutionality of a sua sponte adju-

dication of ineffective assistance of counsel in a criminal

case in violation of Strickland v. Washington is raised by

pleadings attacking the subsequent attorney disciplinary

proceeding expressly triggered by that adjudication.

TABLE OF CONTENTS

Page

TABLE. OF ALT TIGCARIAIES «cee cnn ces aves eens iil

IURISDICTIONAL STATEMENT ...2-245 e055 caa8 ces

CONSTITUTIONAL AMENDMENTS INVOLVED... |

STATEMENT OF THE CASE: . o6 65 - seal ions, 3

REASONS RELIED ON FOR THE ALLOWANCE OF

TPE WOES oe ives wa ee Ee ee ee ee 8

1. THE HAWAII SUPREME COURT’S PREJUDG-

MENT IN STATE v. CLARKE CREATED INSTI

TUTIONAL BIAS, WHICH IS AN

EXTRAORDINARY CIRCUMSTANCE REN-

DERING ABSTENTION INAPPROPRIATE... 9

2. PARTINGTON’S INABILITY TO DEFEND

HIMSELF IS MANDATED BY THE SIXTH

AMENDMENT RIGHT TO COUNSEL CLAUSE

Pr ee eR Ren Ar rrr or mh 14

3. PARTINGTON’S CHALLENGE TO THE HSCR

13 PROCEEDING CONSTITUTED AN AT-

TACK ON THE UNCONSTITUTIONAL “FI

NAL ADJUDICATION” GQ?

INEFFECTIVENESS BY THE HAWAII SU

PRENGS GCUMURE. 6c. code ons bee eee 16

HS OED. 6 Ege = ae 23

iil

TABLE OF AUTHORITIES

CASES

Admiral Insurance v. District Court of Arizona, 881

F.2d 1486 (9th Cir. 1989)

Caplin & Drysdale Chartered v. Monsanto, 109 S. Ct.

2667 (1989) (Blackmun, J., dissenting)

Continental Oil Co. v. United States, 330 F.2d 347, 9

A.L.R.3d 1413 (9th Cir. 1964)

District of Columbia Court of Appeals v. Feldman, 460

U.S. 462 (1983)

1989)

Givson v. Berryhill, 411 U.S. 564 (1973)...........

Gideon v. Wainwright, 372 U.S. 335 (1963)

Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972) ...

Kugler v. Helfant, 421 U.S. 117 (1975).......... 9,

Mannhalt v. Reed, 847 F.2d 576 (9th Cir), cert. de-

nied, 109 S. Ct. 260 (1988)

Matsuo v. State, 70 Haw. 573, 778 P.2d 332 (1989)

Nanogen eras tig yy vv eee cces. 8, 12, 18,

Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423 (1982) ........ 6, 7,

Page

sete Se

ree |

0,142

TABLE OF AUTHORITIES —- Continued

Miller v. Washington State Bar Association, 679 F.2d

1313, reh’g denied, 691 F.2d 430 (1982)............. pa

Partington v. Gedan, 880 F.2d 116 (9th Cir. 1989)

a ie wey ee ree OE a ee 1, 3, 6, 9-11, 14, 16

People v. Davis, 114 Ill. App. 3d 537, 70 Ill. Dec.

ae Bh ee aks | rn nore *

Perringnon v. Bergen Brunswick Corp., 77 F.R.D. 455

iS ye.) Ce ror rr ae 15

Railroad Commission of Texas v. Pullman Co., 312

PS. o Rs. tener rr rere er rer ree a

Robinson v. Ariyoshi, 753 F.2d.1468 (9th Cir.), rev'd,

ty eee 2). eres ere rer ss Za

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ...22, 23

Smith v. Superior Court, 68 Cal. 2d 547, 440 P.2d 65,

68 Cal. Rptr. 1 (1968)... . 0... cece vees cee eee eres 22

State v. Clarke, No. 10041 (Haw. Sup. Ct. Dec. 27

S085). ......<.--<uuu te Fy Uke 43, OD, 17, &, 21, 22, 29

Strickland v. Washington, 466 U.S. 668, reh g denied,

ORE eo er CUED five co ete sais Co _.. 13, 20, 21

United States v. Blasco, 702 F.2d 1315 (11th Cir.

ee St Ma Me nm ny et ea ie eee 15

United States v. Melvin, 650 F.2d 641 (5th Cir. 1981).... 15

United States v. Wagner, 834 F.2d 1474 (9th Cir.

i. ob SEAR ene ese re rata Wi stir eter ame api MPG CON Ar Pe Vay ae Petes?

Von Moltke v. Gillies, 332 U.S. 708 (1948) ........ 16

Withrow v. Larkin, 421 U.S. 35 (1975)......... 7, 10

Younger v. Harris, 401 U.S. 37 (1971)..... 3, 6-9, 12

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONS, StatuTES & RuLes

United States Constitution

ee SR Fea pa Oe, Soe etn des ot Rg dd BMI oi A 2s 2

BE ete ie a eet mete at VON Oeiaes Sue ANN Rn ES 2

ue ems es nS Je tices bbe oe dw 2

Fourteenth Amendment.... .............-00-200-2- 5. 3

United States Code

ee es OE Sorc ce vs la eS ee ee eee |

ee Ms Rs os ok ks do 5 RR ee ew ee 6

ye a ey | rr er rr 6

Re es oe ie oie on ye i 3

a A en. rr

State Statutes

Cat. Bus. & Pror. Cope § 6068(n)(7) (West 1989

Wa tee ree eee eee ene 12

Supreme Court Rules

Re Eon Cree ee Ate te: Oe SP eee a eee eee y

ES 2 Be |: Speen Settee aan ane che ge MIO A, HU Sryneer cuter Aenean | She 8

Federal Rules of Civil Procedure

Rule 38 7

TABLE OF AUTHORITIES — Continued

Page

Hawaii Rules of Penal Procedure

RE 1 Rp pee An eet, 3 Bes Fae Dene anne ane Perea 8, 19

Hawaii Supreme Court Rules

| SM EM ea Re MS Bato 1 Sis a Bh tS AA ea ea ee 4

OS i Sgn eine ® ALAS 1 Se ae Sg passim

OTHER

Extending the Attorney-Client Privilege: A Constitu-

tional Mandate, 13 Pacific L.J. 437 (1982)...... ud... cee

PETITION FOR A WRIT QF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner Earle A. Partington respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Ninth Circuit affirming the judgment of the United States

District Court for the District of Hawaii in the above-

entitled proceeding. The opinion of the court of appeals is

reported as Partington v. Gedan, 880 F.2d 116 (9th Cir.

1989), attached as Appendix A to this petition.!

JURISDICTIONAL STATEMENT

The judgment sought to be reviewed was originally

entered on March 13, 1989, amended on April 6, 1989, and

further amended on July 12, 1989. Timely petitions for

rehearing by both sides and Partington’s suggestion for

rehearing en banc were denied by order filed December

22, 1989, which is attached as Appendix B to this petition.

This Court has jurisdiction to review this case by writ of

certiorari pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AMENDMENTS INVOLVED

This case raises issues involving the application of

the first, fifth, sixth and fourteenth amendments to the

Constitution of the United States.

* Persons with an interest in this action include the Jus-

tices of the Supreme Court of Hawaii (Chief Justice Herman

Lum, Associate Justices Frank Padgett, Yoshimi Hayashi, James

Wakatsuki, and Retired Justice Edward Nakamura).

ie)

Amendment |

Congress shall make no law respecting

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Gov-

ernment for a redress of grievances.

Amendment V

No person shall be hela to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any Criminal Case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law, nor

shall private property be taken for public use,

without just compensation.

Amendment VI

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining Witnesses in his

favor, and to have the Assistance of Counsel for

his defence.

Amendment XIV

Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the Unit-

ed States; nor shall any State deprive any person

of life, liberty, or property, without due process

of law; nor deny to any person within its juris-

diction the equal protection of the laws.

STATEMENT OF THE CASE

Partington is a criminal defense attorney with over

twenty years’ experience who filed suit pursuant to 42

U.S.C. § 1983 and 28 U.S.C. § 1343(3) for declaratory and

injunctive relief alleging that subjecting him to a Hawaii

Supreme Court Rule (HSCR) 13 disciplinary proceeding

violated his first, fifth, sixth and fourteenth amendment

rights. The district court abstained pursuant to Younger v

Harris, 401 U.S. 37 (1971), and the court of appeals at-

firmed by a divided vote with three separate opinions.

Partington v. Gedan, 880 F.2d at 116 (9th Cir. 1989) (Appen-

Partington had been appointed by a Hawaii trial

court to represent Clifford M. M. Clarke, Sr, who was

charged with the brutal murder of the child of his live-in

girlfriend. After a heavily publicized trial which sparked

public debate arising out of charges of negligence on the

part of the Hawaii Department of Social Services, Clarke

was convicted and sentenced to life in prison. Partington

also represented Clarke on appeal and raised numerous

issues of court error and prosecutorial misconduct. Dur-

ing the pendency of the appeal, the trial judge filed a

disciplinary complaint against Partington based on his

Waiver of closing argument at trial.? In response to this

complaint, Partington filed a motion in the Hawaii Su-

preme Court requesting a temporary remand for a hear-

ing on the trial judge’s allegation of ineffectiveness. That

motion was denied.

At oral argument on Clarke’s appeal, one of the

justices of the Hawaii Supreme Court accused Partington

of deliberate misconduct as trial counsel. Although

Clarke did not raise on appeal any ineffective assistance

issue, the Hawaii Supreme Court reversed Clarke’s con-

viction, sua sponte finding ineffective assistance of trial

defense counsel (presumably for intentional misconduct)

based on the following five acts or omissions: (1) Part-

ington’s refusal to make an opening statement, (2) his

refusal to cross-examine the victim’s mother without vital

discovery, which was provided a few days later, (3) his

refusal to call the mother as Clarke’s witness after receiv-

ing the discovery, (4) his eliciting of testimony from pros-

ecution witnesses of their belief that Clarke was guilty, as

part of an effort to impeach them by showing bias, and

(5) his waiver of closing argument. The Hawaii Supreme

Court did not address any of the substantial issues assert-

ed by Clarke as error. In its opinion, the Hawaii Supreme

2 The complaint was filed pursuant to HSCR 2, relating to

ordinary attorney disciplinary proceedings, rather than pur-

suant to the extraordinary disciplinary proceedings of HSCR

13.

Sal

Court triggered proceedings pursuant to HSCR 13 (“Pro-

ceedings Following Final Adjudication of Ineffective As-

sistance of Counsel in Criminal Cases”).3

HSCR 134 provides for disciplinary proceedings

against defense counsel against whom a final adjudica-

tion of ineffective assistance of counsel has been made

resulting in the reversal of a criminal conviction. HSCR

13 has no provision for any charge, written or otherwise,

against counsel, but is triggered by the opinion reversing

the conviction. Pursuant to a specified schedule, the Ha-

Waii Supreme Court then appoints a special master “to

determine whether action against the counsel alleged to

have been incompetent [sic] is warranted.” Upon the

appointment of a special master, counsel must file an

answer “showing cause why corrective action” should

not be taken by the Supreme Court. The special master

then appoints a special prosecutor, discovery may take

place, and a hearing is held according to the specified

schedule. No procedure is prescribed for the conduct of

the hearing or the prehearing proceedings. The master

may either dismiss the proceeding or make a recommen-

dation for corrective action, which is subject to review by

the Hawaii Supreme Court.

Respondents Gedan and Chang were duly appointed

as special master and special prosecutor, respectively. In

> The unpublished, but highly publicized, opinion of the

court in State v. Clarke, No. 10041 (Haw. Sup. Ct. Dec. 27, 1985),

is attached as Appendix C to this Petition.

+ The full text of HSCR 13 is set forth at Appendix D and

In note 1 of Appendix A to this Petition.

his “answer,” Partington, without waiving any constitu-

tional challenges, stated that the five acts or omissions

specified by the Hawaii Supreme Court were intentional

trial tactics, but he could not explain them because Clarke

had invoked the attorney-client privilege. Gedan made no

effort to comply with the HSCR 13 specified schedule,

and shortly after the filing of this section 1983 action, the

parties stipulated to stay the HSCR 13 proceeding.

In the district court, Partington moved for summary

judgment. Gedan and Chang moved for dismissal, argu-

ing that abstention was required because Partington’s

constitutional claims could be raised in the HSCR 13

proceeding. The Hawaii Association of Criminal Defense

Lawyers filed a brief on behalf of Partington as amicus

curiae. The district court denied Partington’s motion for

summary judgment and granted the motion to dismiss

after applying the three-prong test for Younger abstention

in attorney disciplinary proceedings laid down in Muid-

dlesex County Ethics Committee v. Garden State Bar Associa-

tion, 457 U.S. 423, 432 (1982).

The court of appeals took jurisdiction of Partington’s

timely appeal pursuant to 28 U.S.C. § 1291 and

§ 1292(a)(1). Partington, 880 F.2d at 120. Abstention was

upheld under Younger v. Harris for two reasons. First, the

majority opinion of the court of appeals held (without

benefit of briefing or argument) that the Hawaii Supreme

Court should rule on the issue of whether the Hawaii

attorney-client privilege is a procedural bar to Part-

ington’s ability to defend his trial tactics at the HSCR 13

hearing.

Second, the majority held that Partington had not

proven his claim of bias on the part of the special master

“J

and the Hawaii Supreme Court, and therefore the three

prongs of the Middlesex test were satisfied, thereby man-

dating Younger abstention.*> The majority rejected Part-

ington’s argument that, under Withrow v. Larkin, 421 U.S.

35 (1975), the Hawaii Supreme Court was biased based

upon its “final adjudication of ineffective assistance of

counsel” in State v. Clarke. The majority concluded that

Partington was not deprived of a competent tribunal

because, based on a letter written by the Chief Justice to

concerned members of the Hawaii defense bar, it appear-

ed that the HSCR 13 hearing would provide de novo

review of the Hawaii Supreme Court’s “final adjudica-

tion” of ineffectiveness. The majority also held that judi-

cial recusal was an adequate remedy for any judicial bias,

including institutional bias caused by prejudgment.

In addition, refusing to reach the issue of whether the

Hawaii Supreme Court’s “final adjudication” of ineffec-

tiveness against Partington violated his constitutional

rights, the majority found that this issue was not clearly

raised in the complaint or otherwise.© However, all three

circuit judges agreed that Gedan and Chang should be

sanctioned for filing a frivolous Federal Rules of Civil

Procedure 38 motion for sanctions against Partington.

On August 11, 1989, after the decision of the court of

appeals in this case, the Hawaii Supreme Court decided

> The applicability of the first two prongs of the Middlesex

test were not disputed in the trial court.

* In their Application for Extension of Time in Which to

File Petition for Writ of Certiorari, filed in this Court, Gedan

and Chang admitted that Partington had in fact raised this

issue in his complaint. See note 18.

Matsuo v. State, 70 Haw. 573, 778 |.2d 332 (1989), in which

it was held that where the record is void as to trial

defense counsel’s reasons for his tactical decisions at trial,

the accused’s burden “to demonstrate actual, not specula-

tive prejudice” could not be carried. Without giving trial

defense counsel “the opportunity to explain,” held the

court, any ineffectiveness determination would be “pre-

mature.” The court concluded that it would be “unfair” to

subject trial defense counsel to proceedings under HSCKR

13, “without first giving him an opportunity to explain

his side of the story.” 70 Haw. at 578, 778 P.2d at 335. In

November, 1989, the Hawaii Supreme C curt amended

Hawaii Rules of Penal Procedure (HRPP) 40(f) to provide

that in every postconviction proceeding where the inef-

fectiveness of trial defense counsel is alleged, the attor-

ney accused of ineffectiveness shall be given notice of the

proceedings and an opportunity to be heard. On February

21, 1990, the instant case was remanded to the district

court for determination of the amount of sanctions, and

further proceedings are pending.

REASONS RELIED ON FOR THE

ALLOWANCE OF THE WRIT

All three questions presented involve significant pol-

icy issues relating to Younger abstention and the sixth

amendment right to counsel clause. Certiorari should be

granted pursuant to Supreme Court Rule 17.1(c) because

the court of appeals decided, or refused to decide, impor-

tant questions of federal law which have not been, but

should be, settled by this Court. The court of appeals also

decided the first issue discussed below in conflict with

applicable decisions of this Court. Moreover, certiorari

should be granted pursuant to Rule 17.1(a) because, as to

the second issue discussed below, the court of appeals, by

sua sponte deciding an issue without benefit of briefing or

argument, so far departed from the accepted and usual

course of judicial proceedings as to call for an exercise of

this Court’s power of supervision.

1. THE HAWAII SUPREME COURT’S PREJUDG-

MENT IN STATE v. CLARKE CREATED INSTITU-

TIONAL BIAS, WHICH IS AN EXTRAORDINARY

CIRCUMSTANCE RENDERING ABSTENTION IN-

APPROPRIATE.

The court of appeals incorrectly applied the Middlesex

test for Younger abstention by holding that bias is a factor

to be considered as part of the third prong of the Mid-

dlesex test relating to the ability to have one’s constitu-

tional claims “timely decided by a competent state

tribunal.” Partington, 880 F.2d at 123. Rather, as stated by

the dissent (id. at 135-36), the court of appeals should

have held that institutional bias due to prejudgment is an

“extraordinary circumstance” rendering abstention inap-

propriate under Gibson v. Berryhill, 411 U.S. 564, 577

(1973), and Kugler v. Helfant, 421 U.S. 117, 124-25 & n.4

(1975).

The majority concluded that Gibson “analyzed incom-

petence caused by bias” as part of what became the third

prong of the Middlesex test. 880 F.2d at 125, n.3. The

majority recognized that in Kugler this Court categorized

“the biased tribunal finding in Gibson as an ‘extraordin-

P oF

ary circumstance’ ” which would make abstention inap-

propriate regardless of whether the three-prong test is

met. However, the majority rejected this language in

Kugler as dictum. Id. at 126, n.3.

Applying Kugler, the dissent reasoned that “[b]ias

plays no role in the application of the three-part test[,]”

but rather, bias is an extraordinary circumstance render-

ing abstention “inapplicable, regardless of whether the

three-part test is met.” Id. at 135. For the dissent, once

bias is established as to any aspect of a case, abstention is

inappropriate, whereas the majority analyzed bias in

terms of the aspect of the case to which the bias applies.

This case presents an opportunity for this Court to

accept or reject the majority’s interpretation of the rele-

vant language in Kugler. If the court of appeals’ inter-

pretation of Gibson is correct, then abstention has been

extended further than ever before by any court. Such an

extension of the abstention doctrine results in significant

and widespread prejudice to litigants seeking to enforce

their federal constitutional rights in federal court.

The effect of the majority holding is to nullify the

“logical inconsistency” test from Withrow v. Larkin,” in

7 In Withrow, it was held that:

[JJust as there is no logical inconsistency be-

tween a finding of probable cause and an acquittal in

a criminal proceeding, there is no incompatibility

between the agency filing a complaint based on

probable cause and a subsequent decision, when all

the evidence is in, that there has been no violation of

the statute. ...

(Continued on following page)

every case where the state tribunal has avoided passing

upon the issue of bias by refusing an opportunity to be

heard. The majority held that this test is irrelevant in such

a situation. Partington, 880 F.2d at 126.5 This result leads

to the following anomaly.

The effect of the majority opinion is to put state

tribunals on notice that they can temporarily or even

permanently block access to the federal courts by deny-

ing the aggrieved party a hearing (as the Supreme Court

of Hawaii did to Partington in State v. Clarke). If the state

tribunal acts less outrageously and only denies the ag-

grieved party a fair hearing, immediate access to the

federal courts is permitted. A rule of abstention that

encourages the denial of an opportunity to be heard in

state tribunals is bad policy. Further, such a rule encour-

ages state tribunals to refuse to address issues thereby

directly contradicting one of the primary policy consider-

ations underlying the abstention doctrine: respect for the

ability of state tribunals to resolve federal constitutional

(Continued from previous page)

... Clearly, if the initial view of the facts based

on the evidence derived from nonadversarial pro-

cesses as a practical or legal matter foreclosed fair

and effective consideration at a subsequent adver-

sary hearing leading to ultimate decision, a substan-

tial due process question would be raised. [421 U.S.

at 58.|

* The majority’s erroneous conclusion that bias was not

proven because judicial recusal was an option tor the Hawaii

Supreme Court and because it could be assumed that the Rule

13 proceedings provided de novo review of the initial “final

adjudication” is discussed in argument 3, below.

—

issues and encouragement of the resolution of such issues

in state tribunais.?

This case demonstrates how damaging this rule is to

the independence of the criminal defense bar. The attor-

ney-client privilege prevents an attorney such as Part-

ington from defending himself, after the fact, on the

merits of a “final adjudication” of misconduct. Here, the

Hawaii Supreme Court can entirely avoid addressing

Partington’s constitutional claims by dismissing the

HSCR 13 proceeding.'!° Such a dismissal leaves Part-

ington’s reputation in shambles by virtue of the still

extant original “final adjudication”!! of ineffectiveness

and leaves him with no remedy.!* Further, Partington will

9° Kugler, 421 U.S. at 124; Gibson, 411 U.S. at 573-74; Young

er, 401 U.S. at 43-44.

'0 Note that a dismissal on the ground that inquiry into

Partington’s conduct is barred by the sixth amendment would

amount to a determination that he never should have been

adjudicated ineffective in the first place.

1! The majority opinion claims that Partington secks to

have this Court establish the rule that there must be a “pre-

deprivation” hearing before any defense attorney can be adju-

dicated ineffective. Partington does not seek such a broad rule

(although the Hawaii Supreme Court seems to have adopted

such a rule in Matsuo v. State), but he does claim that such a

rule is required wherever the allegation of ineffectiveness 1s

made by someone other than the client. Where the client claims

ineffectiveness, the attorney-client relationship is finished.

Where someone other than the client makes such an allegation,

the existing attorney-client relationship can be seriously im-

paired in violation of the sixth amendment.

12 One example of the irreversible damage that can be

done to counsel is presented by the requirement of the Calitor-

nia Business and Professions Code § 6068(n)(7) (West 1989

(Continued on following page)

have had to defend against a “final adjudication” of

ineffectiveness, a “final adjudication” against which the

sixth amendment bars him from defending and which

should not have been made at all because of the sixth

amendment presumption of effectiveness and right to

independence of defense counsel. Strickland v. Washing-

ton, 466 U.S. 668, 688-93, reh’g denied, 457 U.S. 1267 (1984).

The question inevitably follows whether Partington

will have any incentive to carry out his duty of undivided

loyalty to his future clients if the Hawaii courts are given

immunity by the federal courts from the protection of the

sixth amendment. The refusal of federal courts to provide

relief in situations such as State v. Clarke will have a

chilling effect on the willingness of competent and ethical

counsel to take risks in the defense of criminal cases or

even to accept appointments for the defense of the indi-

gent.'? Thus, the issue of how bias is analyzed and where

(Continued from previous page)

Supp.) that any “[rleversal of judgment in any proceeding

based in whole or in part upon misconduct, grossly incompe-

tent representation, or willful misrepresentation by an attor-

ney” be reported to the State Bar of California. The dismissal of

ax HSCR 13 proceeding would not obviate this requirement.

Partington is a member of the California bar.

'3-In Caplin & Drysdale Chartered v. Monsanto, 109 S. Ct.

2667, 2674 (1989) (Blackmun, J., dissenting), it was noted that

“[tlhere is a place in our system of criminal justice tor the

maverick and the risk-taker, for approaches that might not fit

into the structured environment of a public defender’s office,

or that might dispiease a judge whose preference for noncon-

frontational stvles of advocacy might influence the judge's

appointment decisions.” Indigents in particular will be left to

the appointment of only those counsel who are willing. to

conform out of fear of what happened to Partington.

bias lies in the Middlesex abstention analysis raises sub-

stantial constitutional questions with broad policy impli-

cations.

2. PARTINGTON’S INABILITY TO DEFEND HIM-

SELF IS MANDATED BY THE SIXTH AMEND-

MENT RIGHT TO COUNSEL CLAUSE.

Partington argued below that he is unable to raise his

federal constitutional claims or contest the “final adjudi-

cation” of ineffectiveness in either the HSCR 13 proceed-

ing or the Hawaii Supreme Court because of Clarke’s

refusal to waive the attorney-client privilege. The major-

ity in the court of appeals, sua sponte and without benefit

of briefing or argument, assumed that Partington’s argu-

ment meant that state law imposes a procedural bar

preventing him from defending himself. Thus, the major

ity ruled that Partington must first give the Hawaii Su-

preme Court the opportunity to interpret “Hawaii's rule

regarding the attorney-client privilege.” Partington, 880

F.2d at 123-24.

Confidential disclosures by a client to an attorney

made in order to obtain legal assistance are privileged.

Fisher v. United States, 425 U.S. 391, 403 (1976). Courts of

appeals in several of the circuits have recognized that the

attorney-client privilege of the criminal defendant is pro

tected as an important part of the sixth amendment right

to counsel.'* And it has been recognized that only the

client can waive the privilege,'!> which is permanant.!°

Thus, Clarke’s refusal to waive the attorney-client

privilege renders the application of state law irrelevant. '”

In holding that Partington may have a remedy in state

court on state procedural grounds, the majority clearly

erred, because the controlling attorney-client privilege

here is the privilege enshrined in the sixth amendment

right to counsel clause.!®

This question is one of first impression for this Court.

This Court should explicitly hold that the attorney-client

privilege is a part of the right to counsel clause of the

'4 Continental Oil Co. v. United States, 330 F.2d 347, 350, 9

A.L.R.3d 1413, 1415 (9th Cir. 1964); United States v. Melvin, 650

F.2d 641, 645 (5th Cir. 1981); United States v. Blasco, 702 F.2d

1315, 1329 (11th Cir. 1983); Comment, Extending the Attorney

Client Privilege: A Constitutional Mandate, 13 Pacific L.J. 437,

441-42 (1982).

15 Perrignon v. Bergen Brunswick Corp., 77 F.R.D. 455,

459-460 (N.D. Cal. 1978); see Esposito v. United States, 436 F.2d

603, 606 (9th Cir. 1970).

16 Admiral Insurance v. District Court of Arizona, 881 F.2d

1486, 1492 (9th Cir. 1989).

17 The sixth amendment right to counsel applies to the

states through the fourteenth amendment. Gideon v. Wain

wright, 372 U.S. 335 (1963). No one disputes that the attorney-

chent privilege applies to the communications between attor-

ney and client in State v. Clarke. The only issue is whether

someone other than Clarke can waive the privilege.

'8 The majority sub silentio applied Pullman abstention to

this case. sve Railroad Commission v. Pullman Co., 312 U.S. 496

(1941).

sixth amendment and that no one other than the client

has the right to waive the privilege.

If someone other than the client could waive the

privilege over the client’s objection, any prosecutor could

accuse a criminal defense attorney of ineffectiveness and

have him hauled before a disciplinary proceeding in or

der to force him to breach the privilege and reveal the

secrets of the client. The sixth amendment does not per-

mit such a substantial threat to (1) the sanctity of the

attorney-client relationship, (2) the defendant's right to

counsel’s undivided loyalty,'’ and (3) the right of inde

pendence of defense counsel.

Thus, Partington should not be required to seek a

ruling from the Hawaii courts on what is an irrelevant

issue. There was no basis for abstention on this ground

3. PARTINGTON’S CHALLENGE TO THE HSCR 13

PROCEEDING CONSTITUTED AN ATTACK ON

THE UNCONSTITUTIONAL “FINAL ADJUDICA-

TION” OF INEFFECTIVENESS BY THE HAWAII

SUPREME COURT.

The majority refused to rule on the constitutionality

of the Hawaii Supreme Court's “final adjudication” that

Partington rendered ineffective assistance of counsel to

Clarke, by holding that the issue had not been raised

Partington, 880 F.2d at 129-30.

19 Von Moltke v. Gillies, 332 U.S. 708, 726 (1948); Ferrt v

Ackerman, 444 U.S. 193 (1979); Mannhalt v. Reed, 847 F.2d 576

579 (9th Cir.), cert. denied, 109 S. Ct. 260 (1988); Fitzpatrick

McCormack, 869 F.2d 1247 (9th Cir. 1989).

First, Gedan and Chang admitted in pleadings to this

Court that Partington had raised this issue in his com-

plaint.2° This admission that the issue was raised in Part-

ington’s complaint should be dispositive of the question

of whether the issue was raised in the district court.?!

20 In their Application for Extension of Time in Which to

File Petition for Writ of Certiorari filed in this Court (No.

A-628), Gedan and Chang stated that “Partington sued in

Federal District Court seeking to nullify the state court’s order and

the Rule 13 case.” (Emphasis added.) The only state court order

at issue at the time of the filing of the complaint was that

portion of the Clarke opinion making a “final adjudication” that

Partington was ineffective and triggering an HSCR 13 proceed:

ing.

21 Even without Gedan and Chang’s admission, it is clear

that the issue of the constitutionality of the “final adjudication”

of ineffectiveness by the Hawaii Supreme Court in State &.

Clarke was properly raised by Partington as follows:

1) in the Complaint, the Hawai Supreme Court was

alleged to have found him guilty of serious misconduct

without a hearing or any opportunity to defend himselt

(see paragraph 18 and factual allegations at paragraphs

9-11; E.R. 4-6);

2) in the Complaint, a declaratory judgment that the

HSCR 13 proceedings are unconstitutional was requested

(E.R. 8);

3) in Partington’s Memorandum In Support of Plain

tiff’s Motion for Summary Judgment and in Opposition to

Defendants’ Motion to Dismiss Complaint in the district

court, he argued that he has been harmed by the decision

in Clarke as follows: both the decision of the Hawan

Supreme Court and the ongoing HSCR 13° proceedings

have a chilling effect on his right to free speech, that the

court’s finding of ineffectiveness has harmed his good

(Continued on following page)

This case should be summarily reversed and remanded to

the court of appeals based on this admission alone.

Second, the Hawaii Supreme Court has recognized

the inseparability | £ the “final adjudication” in the crimi-

nal appeal from the HSCR proceeding itself. In Matsuo v.

State, decided after the court of appeals’ opinion below,

the Hawaii Supreme Court held that:

The troublesome aspect with this [ineffec-

tive assistance of counsel] issue, however, is that

the record is void as to the reasons for trial

counsel's decision against calling any of the five

inmates as witnesses at Petitioner’s trial. Trial

counsel did- not testify at the hearing for post-

conviction relief. Only Petitioner testified,

* * *

Here, we believe that unless trial counsel 1s

given the opportunity to explain his reasons for

not calling any of the five inmates as witnesses

at Petitioner’s trial, any prejudice demonstrated

by Petitioner is speculative at best. Any ineffec

tive assistance of counsel determination, in turn,

is premature. Under these circumstances, there-

fore, we find it unfair to implement a Rule 13

proceeding against trial counsel without first

giving him an opportunity to explain his side of

the story. [70 Haw. at 578, 778 P.2d at 335.]

(Continued trom previous page)

name, reputation and law practice, and that the court

violated the sixth amendment presumption of effective

ness in finding him ineffective without considering the

reasons for his trial tactics (E.R. 245, 246, 248-51, 254); and

4) in Partington’s Opening Briet in the court of ap

peals (O.B. at 7, 16, 20-24).

This holding in Matsuo makes sense only when HSCR 13

proceedings ave viewed as merely dispositive, the “final

adjudication” of ineffectiveness having been made once

and for all by the appellate court in the opinion reversing

the criminal conviction. Thus, Matsuo contradicts the as:

sumption of the majority that HSCR 13 proceedings are de

7Ov0, an assumption which provided the basis for the

majority in its severing the HSCR 13 proceeding from the

“final adjudication” of ineffectiveness.22 In view of Mat-

suo, this Court should summarily vacate the judgment

and remand this case to the court of appeals for recon-

sideration.

The majority’s severing of the HSCR 13 proceeding

trom the triggering “final adjudication” of ineffectiveness

raises significant policy questions because such a sever-

Ing gives state courts the unbridled power to destroy the

reputation and livelihood of a criminal defense attorney

who displeases them without affording the attorney a

remedy, whenever a court takes a dislike to an attorney or

his trial tactics, no matter how ethical] those tactics may

be.23

”»

In November, 1989, the Hawan Supreme Court also

amended HRIP’P 40(f), relating to hearings in postconviction

relict, proceedings, to add a paragraph requiring that. trial

detense counsel be given notice and a hearing whenever the

issue of ineffective assistance at trial is raised in postconviction

proceedings. Taken together, this amendment and Matsuo

clearly indicate that the HSCR 13 proceeding itself does not

provide de novo review of the “final adjudication” of ineffec-

tiveness, thereby denving the defense attorney due process otf

law,

“* The risk of putting the attorney “out of business with-

ut convicting 2... [him] of anvthing,” is damage which is

(Continued on following page)

This severing also raises very serious constitutional

questions regarding the right to counsel clause of the

sixth amendment, because the Hawaii Supreme Court's

“final adjudication” of ineffectiveness in Clarke violated

Partington’s sixth amendment rights to the presumption

of effectiveness and the independence of defense counsel

as articulated in Strickland, 466 U.S. at 688-93. The pur-

pose of the presumption of effectiveness is to protect the

defense attorney and the judicial system from groundless

postconviction claims of ineffectiveness. The criminal de-

fendant is not protected by the presumption of effective-

ness, but rather the presumption protects others from a

claim of ineffective assistance by the criminal defendant.

Thus, the presumption is not a right of the criminal

defendant. It may be invoked against a criminal defen-

dant, as happens when the state invokes it to refute a

claim of ineffective assistance. Likewise, the defense at-

torney may invoke it when someone other than the client

accuses the defense attorney of rendering ineffective as-

sistance of counsel.?4

(Continued from previous page)

“irreparable and ‘great and immediate’ ” Krahm v. Graham, 461

F.2d 703, 707 (9th Cir. 1972).

24 It is Partington’s position that where the following four-

prong test is met, the sixth amendment right to counsel fore-

closes any inquiry into the tactics of trial defense counsel, and

a criminal defense attorney cannot be constitutionally sub-

jected to a disciplinary proceeding for his tactics:

(1) someone other than the client alleges that trial

defense counsel has been ineffective;

(Continued on following page)

—

The purpose of the right to “constitutionally pro-

tected independence of counsel”? is to protect both the

criminal defendant and the defense attorney from attacks

on the criminal defendant's right to counsel. While this

right of independence of counsel arises from the criminal

defendant's right to counsel, it must be a right belonging

to both the criminal defendant and the defense attorney.

This is apparent from Strickland, where this Court spoke

‘ of the

defense attorney being constitutionally protected.26 466

U.S. at 688. Only the defense attorney will always be in a

position to vindicate this right of independence of coun-

in terms of the “decisions” and “performance’

sel for the very reason found in this case: where a court

(Continued from previous page)

(2) the client invokes the attorney-client privilege;

(3) the record is void as to the reasons for counsel's

challenged acts or omissions; and

(4) counsel’s acts or omissions do not constitute in-

effectiveness per se.

The record in this case shows that all four prongs of this test

are met.

25 Strickland, 466 U.S. at 689.

26 The Hawaii Supreme Court recognized the presumption

of effectiveness in Matsuo by holding that prejudice must be

actual and on the record, and that without a hearing for tria!

defense counsel to explain tactical decisions, prejudice to the

accused is speculative at best. However, in Clarke, rather than

applying the presumption of effectiveness, the Hawaii Su-

preme Court indulged ina presumption of ineftectivness, abro

gating completely the presumption of effectiveness and the

right of independence of trial defense counsel.

drives a wedge between attorney and client as the Hawaii

Supreme Court (and the trial judge) did in State v. Clarke,

only the attorney can vindicate this right.27 As this case

presents a circumstance where it is necessary for defense

counsel to invoke these two aspects of the sixth amend-

ment right to counsel, this Court should make explicit

what Strickland provides implicitly: that these sixth

amendment rights can be invoked by counsel.

By challenging the triggering “final adjudication” of

the Hawaii Supreme Court, Partington is not challenging

the judgment in Clarke. The judgment in that case, revers-

ing Clarke’s conviction, was correct, albeit for the wrong

reasons. Partington asserted numerous legitimate reasons

mandating reversal of Clarke’s conviction, most of which

involve the conduct of the trial prosecutor and trial

judge, and Clarke had a right to have the issues he raised

adjudicated.*5

27 Inappropriate judicial involvement with the “unique

attorney-client relationship” also raises sixth amendment con-

cerns. See United States v. Wagner, 834 F.2d 1474 (9th Cir. 1987);

People v. Davis, 114 Il. App. 3d 537, 70 Ill. Dec. 363, 449 N-E.2d

237 (1983); Smith v. Superior Court, 68 Cal. 2d 547, 440 P.2d 05,

68 Cal. Rptr. 1 (1968).

28 The majority held that the Rooker-Feldman doctrine was

implicated here. 880 F.2d at 130. However, Partington Is not

attacking the judgment in State v. Clarke. Further, he lacks

standing to attack the judgment and would be ethically fore-

closed from attacking a judgment favorable to his own client

Pherefore, the Rooker-Feldman doctrine has no application to

this case. See District of Columbia Court of Appeals v. Feldman

460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413

(1923). Moreover, Partington was not a party to State v. Clarks

and his request for a hearing on the matter at issue was denied

(Continued on following page)

WwW

All of the proceedings in state and federal court

concerning this case since the 1985 “final adjudication” of

ineffectiveness in State v. Clarke arise directly from that

“final adjudication.” To artificially separate that “final

adjudication” from the HSCR 13 proceeding promotes 1)

the destruction of the attorney’s reputation without just

cause, 2) the destruction of the attorney-client relation-

ship, and 3) harassment of defense counsel who use

unconventional but ethical trial tactics or represent un-

popular clients.

CONCLUSION

This case presents a classic example of why appellate

courts should refrain from sua sponte raising and deciding

issues not raised or argued by the parties, and how

subsequent efforts to uphold ana pparently expedient but

erroneous ruling can snowball into a constitutional catas-

trophe. In addition, important questions are presented

requiring clarification of rulings by this Court both in the

abstention doctrine (under Gibson and Kugler) and the

sixth amendment right to counsel as discussed in Strick-

land. Moreover, important policy questions are presented

involving both the imposition of discipline on criminal

(Continued from previous page)

Rooker-Feldman and related doctrines have no application when

the tederal litigant has never had a day in state court. Robins

Artyosht, 753 F.2d 1468 (9th Cir. 1985). reo’d on ther ground

177 U.S. 902 (1986): Miller ov \ hington State Ba

bvdsrt} “a

679 F.2d 1313, reh’g denied, 691 F.2d 430 (9th Cir. 1982)

defense attorneys for the successful and ethical represen-

tation of unpopular criminal defendants and the potential

for interference with attorney-client relationships and the

right to counsel. For all of the foregoing reasons, Part-

ington respectfully asks this Honorable Court to grant

this Petition and either summarily vacate the judgment or

order briefing and argument on the merits.

Respectfully submitted,

PARTINGTON AND FOLEY

EARLE A. PARTINGTON

2450 Pacific Tower

1001 Bishop Street

Honolulu, Hawaii 96813

(808) 526-9500

Petitioner Pro se

March 22, 1990

App. 1

APPENDIX A

Earle A. PARTINGTON,

Plaintiff-Appellant,

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

Appeals, Wallace, Circuit Judge, held that: (1) district

court properly abstained from hearing attorney’s consti-

tutional challenges to enforcement of Hawaii Supreme

Court Rule against him, but (2) attorney’s arguments

against abstention were not so frivolous as to warrant

award of costs and attorney fees under Federal Rule of

Appellate Procedure.

App. 2

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

I . } }

Hlawall, for defendants-appellees

V nn ,] 5) } Tay 3 : , ° ig 1Y rT } )

Appeal from the United States District Court for the

Jistrict of Hawaii

Before WALLACE, REINHARDT and NOONAN, (¢

WALLACE, Circuit Judge

Attorney Partington filed suit pursuant to 42 U.S.C

¥53 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 United States Constitution. He sought a

Wee pees om : : > : = a

d iratory judgment stating that Rule 13 violated thes:

constitutional provisions and an injunction barring any

r Ine rr > ] 12 Th

f ner proceedings against him pursuant to Rule 13. The

district court concluded that abstention under Younger

Harri 101 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971

yp? ry ‘—atate mhriat b iu >» Partin rt yn ‘ould rai

477i Wars djppl bb icil€ CLAUSE c 205-46! LCUUI Padist

‘ ‘ ‘ 4

St stit challenges in the ongoing Rule 13

_ 1A

[ ed s. W Ssdiction and affirm

App. 3

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

y | }

+, > + ‘eof >.> + | ;

rartington s appointmer iS CcOUNSel for Clarke con

hina , ceaocal : . aaa comernns -_ '

f } Cu Ofl d +s | ( Kt 1iSe’c Litt us CUT es ) 2

yay 4 rn sce ‘ : .

ut ala O eve CC € ASSISTANCE (rlal COUNSE

Dyiirine th > Dena rc 1 yt tha Pabals ] } ) > Sa thp r tp

iJUTINY Ne Penhuency OF (he appeal 1Wwever, tne State

e 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

hol ~] = y + . ’ . . ie ;

behalf of Clarke, requesting that the Supreme Court

romana tha neal tn tho tr) ] ~oyra rt + wml \reo tho tri ]

remand rit appeal Litt (Tla COUrT CO eXpic it Litt (Tldal

lig . wriIla} T }, + ‘ ’ }

lage 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

reversed Clarke’s conviction. Without addressing the

nuMerous arguments made in Clarke’s brief, the court

= Be T rrr *? a | r | 7 §hoc )

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-

<) ne refuse d tO Cross-examine the mother of the

victim Ostensibly because the State did not make certain

le Witness available to him: (3) he

App. 4

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

PROCEEDINGS FOLLOWING FINAL ADJUDICATION OF

EFI PIVE ASSISTANCE OF COUNSEL IN CRIMINAI

\ er the conviction of a criminal defendant

is been overturned and a new trial ordered because

ling that the detendant had ineftective assis

ft counsel in the proceedings against him or

her, and tk rder has become final, either because it

is Not appealed, or because it has been finally

attirmed 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 Hawan noting that such an order

has been entered and attaching a copy of that order

to tl ‘rtiticate

f the first receipt ot such a

rtiticate by the supreme court, the chief justics

ippoint a special master to determine whether

ivainst the counsel alleged to have been

[ t 4s rranted

App.

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 been entered.

[he master shall within tive days atter receipt of

the answer of the respondent appoint an attorney to

further prosecute the proceedings and shall give

notice of the appointment to the respondent attorney

in the same manner as provided above.

[he respondent attorney may represent himself

or may designate an attorney to represent himself.

The respondent or his attorney and the attorney

ippointed by the master shall have 45 days from the

(Continued on following page)

App. 6

appoints a special master “to determine whether action

against the counsel alleged to have been incompetent is

(Continued from previous page)

appointment of the attorney by the master to con-

duct any discovery proceedings in accordance with

the discovery chapter of the Hawaii Rules of Civil

Procedure. On the expiration of the 45 days, the

master shall set the matter for hearing within 30

days, take such evidence in accordance with the

Hawaii Rules of Evidence as may be proffered by the

parties, and within 10 days of the conclusion of the

hearing, render a decision and an order either dis-

missing the proceedings or recommending corrective

action against the respondent attorney.

Corrective action which may be recommended

by the master and/or adjudicated by the supreme

court may consist of any one or more of the

following:

(1) Requiring the respondent attorney to take a

prescribed course or courses of remedial education

and to produce satisfactory evidence of his or her

passing such courses;

(2) Suspending the respondent’s license to

practice law until (1) has been complied with.

(3) In cases where the master finds that ineffec-

tive assistance Of counsel may have resulted from a

violation of DR 6-101 to DR 7-101, the master shall,

in addition to (1) and (2), refer the matter to the

Office of Disciplinary Counsel for investigation

under Rule 2 of these rules. In the event of a refer-

ence under this subparagraph, the master’s finding

and the reference shall be deemed confidential and

Shall not be disclosed except pursuant to the provi-

sions of Rule 2.22 of these rules.

(Continued on following page)

App. 7

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

supreme court an answer showing cause why corrective

action as provided [in the Rule] should not be taken by

the supreme court.” Jd. Within five days of receiving the

defense attorney's answer, the special master must

appoint 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

respondent attorney.” 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

(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 Hawati 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 either dismissing the proceed-

ings or ordering corrective action in accordance with

the guidelines set forth above.

App. 8

special master’s decision and proposed order, the

Supreme Court must “enter an order either dismissing

the proceedings or ordering corrective action in accor-

dance 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

App. 9

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

injunction 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

request. On April 22, Partington filed a motion for sum-

mary 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

amicus curlde.

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-

mittee v. Garden State Bar Association, 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,

App. 10

Partington fled a timely notice of appeal, challenging the

dismissal of the complaint.

—_-

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.

voterans Administration, 749 F.2d 1386, 1388 (9th Cir.1984);

Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984)

(Hoohuli). 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

allowed, would grant the state permission to proceed first

but allow the parties to maintain a federal court presence,

if 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, 537 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.

Agricultural Labor Relations Board, 805 F.2d 1353, 1356 (9th

Cir.1986). Because the district judge was required to

App. 11

dismiss the action, we may assume he intended to do so

and treat the dismissal of the complaint as a dismissal ot

the action. See Hoohult, 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.

Goldie’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 id.

II]

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 U.S. 1,

107 S.Ct. 1519, 1522, 95 L.Ed.2d 1 (1987) (Pennzoil)

(injunctive relief against a prevailing civil litigant

App. 12

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 US. 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 aon

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 US.

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)

(injunctive 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.g.,

Pennzoil, 107 S.Ct. at 1525-26; Younger, 401 U.S. at 43-45,

91 S.Ct. at 750-51.

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

App. 13

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

extraordinary 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 predicate 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;

Huffrran, 420 U.S. at 607,95 S.Ct. at 1209. Nonetheless, the

Court has held that, under Younger, federal courts should

App. 14

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

Supreme 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

interest in maintaining and assuring the professional con-

duct of the attorneys it licenses,” especially “the profes-

sional conduct of attorneys involved in the

administration of criminal justice.” Id. at 434, 102 S.Ct. at

2522 (emphasis added). Last, the Court opined that

because Hinds “tailed even to attempt to raise any federal

constitutional 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.” Id. 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

involved 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 crimi-

nal cases perform within the standards of reasonable

professional competence. Partington concedes, as he

must, that the State of Hawaii has a very important

App. 16

interest in its Rule 13 proceedings. Thus, the first require-

ment 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

abstention 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.

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.

sy J

App. 17

First, he maintains that the attorney-client privilege

procedurally bars him from disputing the Hawaii

Supreme 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) “Contidence” refers to information protected by

the attorney-client privilege under applicable law,

and “secret” refers to other information gained in the

professional relationship that the client has

requested be held inviolate or the disclosure ot

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

disadvantaye of the client.

(Continued on following page)

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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.” Young

401 U.S. at 45, 91 S.Ct. at 751, quoting Fenner v. Boykin, 271

US. 240, 244, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926). We

cannot assume that Hawaii will interpret its attorney

client privilege to bar 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. See

411 US. 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 toung

abstention. See id. & n.16. Here, Partington contends that

a finding in the Rule 13 proceeding betore the spe

master or the Hawaii Supreme Court that he rendered

effective assistance of counsel would be totally incompat

ible 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 ¢

against h

IS Case

aS DlaSed the Mawall Ou

ount of publicity that State

In claiming bias, Partington must overcome the pre

sumption that the special master and the Hawaii Supreme

Court are unbiased. See Schwetker 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 claim 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

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App. 22

the 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 1464. 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 individ-

uals 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.

ld. 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

App. 23

of probable cause to believe a physician had violated a

statute was not logically inconsistent with a subsequent

decision, based on complete evidence brought out at an

adversarial hearing, that the physician did not violate the

Statute. Id. at 57-58, 95 S.Ct. at 1469-70.

Partington argues with Withrow stands for the propo-

sition that bias is established where the accusatory find-

ing is incompatible with any adjudicative finding. He

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

58, 95 S.Ct. at 1470 (emphasis added). From this inter-

pretation of Withrow, Partington then argues that the

following three factors al! 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 state

adjudicator. Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521;

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Haw.Rev.Stat. § 602-10 (1985).6 The statute even contem-

plates that some cases may arise in which all five

Supreme 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)(1), 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,

6 Haw.Rev.Stat. § 602-10 provides:

Parties shall be entitled to bring an appeal

before a full court. Oral argument shall be betore a

full court; provided that in an appropriate case the

court in its discretion may dispense with oral argu-

ment. In case of a vacancy, or if a justice of the

supreme court is disqualified from sitting in any case

pending before this supreme court, or is unable to

attend, or is absent, or is recused or has been

excused, the vacancy or the place of such justice may

be temporarily filled by a circuit judge designated by

the chief justice 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 oO!

the supreme court. When necessary, the court may

consist of five circuit judges, so designated or five

retired justices so appointed or any combination ot

circuit judges and retired justices. After oral argu-

ment of a case, if 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

filling the vacancy or the place of such justice

App. 30

Canon 3(C)(1)(a). Partington bas provided no reason to

strip these individuals of the “presumption of honesty

and integrity.” See Withrow, 421 U.S. at 47, 95 S.Ct. at

1464.7

Even if the necessary three predicates exist, however,

Younger abstention will not be appropriate if the federal

plaintiff can establish (1) that the state proceedings are

being undertaken in bad faith or for purposes of harass

ment or (2) that some other “extraordinary circum

stances” exist, such as proceedings pursuant to a

flagrantly” unconstitutional statute. See, e.g., Younge)

t l U.S at 49-50, 53 54, 9] S.Ct at 753, 754-55

The scope of Younger’s bad faith exception is not

clear. Although the Court in Younger and its progeny has

continuously recognized that abstention would not be

required if a federal plaintiff could establish that the state

court proceedings were instituted in bad faith, the Court

has never actually applied the exception. Federal circuit

courts, however, have occasionally found that “bad faith”

exception applicable See, €.Q., Rowe v. Griffin, 676 F.2d

The dissent draws attention to language in the Chiet

Justice’s April 27, 1987, letter to Partington which, the dissent

suggests, indicates that the Chief Justice has prejudged Part

ington’s due process and equal protection claims. Dissent at |

138 n.8 & p. 144 n. 24. The Chiet Justice is at liberty to recuse

himself if his impartiality or the appearance ot judicial obj

tivity is drawn into question

A pp.

924, 525-26 (11th Cir.1982); Heimback v. Lyons, 597 F.2d

hei 346-47 (2d Cir.1979) (per curiam); Wilson v. Thompson,

F.2d 1375, 1381-83 (5th Cir.1979). No bad faith has

been demonstrated in this case

é,

Because “[t]he very nature of ‘extraordinary circum-

stances’ makes it impossible to anticipate and define

every situation that might create a sufficient threat of

such great, immediate, and irreparable injury as to war-

rant intervention in state criminal proceedings,” see

Kugler v. Helfant, 421 U.S. 117, 124-25, 95 S.Ct. 1524, 1530

44 L.Ed.2d 15 (1975), the scope of Younger’s “exceptional

circumstances” exception is also unclear. As with the bad

faith exception, the Supreme Court has consistently rec-

ognized the exception, but has never held that the excep-

tion applied.

The exception clearly recognizes, however, that a fed-

eral court need not abstain when faced with a fla igrantly

unconstitutional statute. See Younger, 401 US. at 53-54, 91

S.Ct. at 754-55. This aspect of the exception applies only

when a statute is “ ‘flagrantly and patently violative of

express constitutional prohibitions in every clause, sen-

tence, and paragraph, and in whatever manner and

against whomever an effort might be made to apply it.’

Id., quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962,

967, 85 L.Ed. 1416 (1941) (Watson); accord Tratnor, 431 U.S

at 446-47, 97 S.Ct. at 1919.

Partington argues that Rule 13 flagrantly violates the

first amendment, procedural due process, and the equal

protection clause of the fourteenth amendment on its face

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 US. at 53-54, 91 S.Ct. at 754-55,

quoting Watson, 313 U.S. at 402, 61 S.Ct. at 967 Therefore,

we reject Partington’s argument that this exception pre-

vented the district court from abstaining

Partington also contends that the Hawaii Supreme

Court’s decision in State v. Clarke (1) violated the first

amendment because the decision had a chilling effect on

his ability to hold himself out as a competent counsel, (2)

violated the fifth and fourteenth amendment because the

decision deprived him of a liberty and property interest

in his reputation without due process of law, and (3)

violated the sixth amendment which he argues “neces-

sarily includes a corresponding right of a criminal

defense attorney to practice his profession without unrea-

sonable hindrances.” Partington believes that both the

fifth amendment and the sixth amendment require courts

to grant a “pre-deprivation” hearing to all defense coun

sel alleged to have rendered ineffective assistance and

that the Hawaii Supreme Court, in deciding State v Clarke

did not comply with these constitutional requirements

Partington argues that the special master lacks the power

to analyze these issues or to undo these constitutional

harms and that it is unreasonable to believe that the

App. 33

Hawaii Supreme Court will analyze these issues or undo

these harms; therefore, abstention is not appropriate.

Accordingly, Partington requests a declaratory judgment

stating that in rendering its decision in State v. Clarke and

concluding that Partington rendered ineffective assis-

tance of counsel, the Hawaii Supreme Court violated the

first, fifth, and sixth amendments.

[he district court did not expressly address any of

these arguments or the requested declaratory relief

regarding the Hawaii Supreme Court’s decision in State v.

Clarke. At oral argument, we expressed doubt whether

Partington presented these constitutional challenges in

the district court concerning the manner and the effect of

the Hawaii Supreme Court's decision in State v. Clarke.

We pointed out that the prayer for relief in Partington’s

complaint did not request a declaratory judgment that in

rendering its decision in State v. Clarke the Hawaii

Supreme Court violated the first, fifth, and sixth amend-

ments. Rather, the complaint states that because of the

defendants’ action he “is entitled to... [a] declaratory

judgment that HSCR 13 as applied to Plaintiff is uncon-

Stitutional.” At oral argument, Partington contended that

his request for declaratory relief in the context of Rule 13

included the first, fifth, and sixth amendment challenges

to the Hawaii Supreme Court's decision in State v. Clarke.

He claims that he couched his request for relief in terms

of Rule 13 because the Hawaii Supreme Court's decision

in State v. Clarke was the “first step” under Rule 13. He

argued that even if his complaint was not totally clear on

the requested relief, his brief in the district court made

his argument concerning the Hawaii Supreme Court's

decision in State v. Clarke clear

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States Aircraft Insurance Group, 823 F.2d 302, 304-05 (9th

Cir.1987); In re Curl, 803 F.2d 1004, 1007 (9th Cir.1986).5

Though Gedan and Chang’s request for Rule 38 sanctions

appears in their opening brief, we consider their request

as a separate motion to this court, severable from the

balance of the brief.

The Seventh Circuit’s discussion of a request for

sanctions under Fed.R.App.P. 38 is particularly appropri-

ate. The court limited its opinion to the defendant's

request for attorney’s fees under Rule 38. The court

stated:

The plaintiff's appeal, although not mer-

itorious, is plainly not frivolous; it is the defen-

dant’s request for Rule 38 sanctions that is

* The dissent suggests that Rule 11 is not a proper basis

for imposing sanctions against Chang and Gedan. Conceding

that this court has sanctioned attorneys pursuant to Rule 11,

the dissent maintains that in each case the sanctionable con-

duct occurred in the district court. Dissent at 35 & n. 34. The

dissent is mistaken. Jn re Curl, 803 F.2d 1004, 1007 (9th

Cir.1986), held that:

Curl’s excuses do not relieve him of responsibility

for having brought an appeal that should not have

been brought, for subjecting Harvester to the burden

of appellate litigation, and for having put this court

to the task of reading, analyzing, and judging his base-

less arguments The brief filed by Curl was not

well-grounded in fact and he had not made reason-

able inquiry

Id. (emphasis added). Contrary to the dissent’s assertion, dis-

sent at 35 n. 34, Im re Curl is not ambiguous. This court

sanctioned Curl for much more than filing a frivolous notice of

appeal in district court; we sanctioned him for conduct occur-

ring in the appellate court

App. 37

frivolous. We are troubled by the frequency with

which lawyers in this court, whether represent-

ing appellants or appellees, are including in

their briefs groundless requests for Rule 38

sanctions. The attitude seems to be, it can’t hurt

to ask. It can. Any frivolous motion, pleading, or

request Is subject to sanctions, including a

motion or request for sanctions. In re Central Ice

Cream Co., 836 F.2d 1068, 1074 (7th Cir.1987). We

remind the bar that sanctions will be forth-

coming if counsel routinely request Rule 38

sanctions without careful investigation to deter-

mine that the appeal or defense sought to be

sanctioned is indeed frivolous. See also Aircraft

Trading & Services, Inc. v. Braniff, Inc., 819 F.2d

1227, 1236 (2d Cir.1987).

Meeks v. Jewel Co., 845 F.2d 1421, 1422 (7th Cir. 1988) (per

curiam) (Meeks). We believe that Meeks fully applies to the

request for attorneys’ fees and costs by Gedan and

Chang.

Far from being frivolous, Partington’s and the

Defense Lawyers’ arguments that Middlesex did not com-

pel abstention were excellent, although not ultimately

meritorious. The arguments required us to examine

closely the Rule 13 proceedings and interpret whether

Partington would be able to raise his serious constitu-

tional challenges to Rule 13 in the Rule i3 proceedings

before the special master and, if necessary, on appeal to

the Hawaii Supreme Court. Moreover, we fully expect

that the special master and the Hawaii Supreme Court

will examine carefully and seriously Partington’s allega-

tions thet Rule 13 violates the first amendment free

speech clause as incorporated by the fourteenth amend-

ment, the fifth amendment guarantee of procedural due

process as incorporated by the fourteenth amendment,

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D.Mass.1956), Judge Bailey Aldrich had ruled in a pre-

vious case that the patent in question was valid. When

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defendant, the defendant objected that Judge Aldrich was

prejudice because he had already ruled on the validity of

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App. 46

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

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 lawver. 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

Judges have not been particularly good at recogniz

ing their own biases. The major federal reforms have

been made by the legislature the elimination of

Supreme Court Justices reviewing their own decisions in

1891; the introduction of recusal motions by litigants in

1911; the reasonable person test of objectivity in 1974

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Supreme Court. Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct.

1456, 1464, 43 L-Ed.2d 712 (1975). Under these circum-

stances, abstract principles of comity, Younger v. Harris,

401 U.S. 37, 43, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), as

important as they are, do not bar a federal court from

exercising its jurisdiction.

In my view, we would not only be performing our

duty as a federal court properly, but would be saving the

Hawaii Supreme Court the expenditure of much unneces-

sary time and effort were we to declare Rule 13 uncon-

stitutional now. | see little choice for the Hawaii court

when Partington’s case reaches the justices. If they fail to

invalidate the rule, certainly the federal courts will ulti-

mately be required to do so.

RULE 13

Hawaii Supreme Court Rule 13 provides a procedure

for determining whether a defense attorney should be

disciplined for providing ineffective assistance of coun-

sel. Under the rule, whenever a criminal conviction has

been overturned on that ground by either the supreme

court or the intermediate appellate court}, the supreme

court appoints a special master to decide whether action

against the attorney is warranted. The special master, in

turn, appoints a special prosecutor. At the conclusion of

the proceedings, the special master dismisses the pro-

ceedings or recommends to the supreme court that cor-

rective action be taken against the attorney. Both the

> See note 28, infra

App. 51

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.

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 that 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

App. 54

Hawaii Supreme Court is biased as to Partington’s disci-

plinary issues, the result here should be the same as in

Gibson; we should not abstain.

The majority attempts to distinguish Gibson on the

basis that “a tribunal comprised of optometrists does not

have the ability to entertain constitutional claims.” Major-

ity op. at 127 n. 4. This is not a material distinction. In

deciding that Younger abstention was inappropriate, the

Supreme Court did not even mention the fact that “a

tribunal composed of optometrists” cannot hear constitu-

tional claims, let alone rely on that fact (if indeed it is a

fact).” Rather, the Court found Younger abstention unwar-

ranted simply because the state tribunal (composed of

optometrists or not) was biased on the revocation issue. No

more was required to be shown in Gibson; no more should

be required here. This point can not be overemphasized

If, as appears clear, the Hawaii Supreme Court is biased

as to the merits of Partington’s disciplinary proceeding,

that tribunal is not competent to hear that proceeding -

regardless of whether non-merit issues may be raised

*’ I must confess that | do not know whether the majority's

description of the powers possessed, in 1973, by the Board ot

Optometry under Alabama law is correct. In California until a

few years ago, administrative agencies, including licensing

boards, did have the power (and the duty, | believe) to make

rulings on constitutional issues. This-was so regardless of

whether the board was an industry board or an industry-labor

board, composed exclusively of laymen, or some other type of

board. The Attorney-General’s office provided advice to all

these boards on constitutional questions and the boards then

made their rulings. Long after 1973, the voters of California

adopted an initiative measure removing from all administra-

tive boards, including those composed of lawyers, the power

to declare statutes unconstitutional

n°)

during that proceeding, or whether the court is or is not

biased as to any of those non-merit issues.

Conversely, the majority asserts that Younger absten-

tion is required here because the Hawaii Supreme Court

“has the ability to entertain and resolve constitutional

claims.” Majority op. at 127 n. 4. In essence, the majority

appears to be contending that it is proper to force an

individual to appear before a biased tribunal in a disci-

plinary proceeding, so long as that tribunal could con-

ceivably avoid reaching the merits of the proceeding. My

reading of Gibson leads me to the contrary conclusion. An

individual can not be summoned before a biased tribunal

when the primary issue before the tribunal is the very

issue on which it is biased. It is fundamental that compel-

ling an individual to present his case to a biased tribunal

offends due process. Gibson, 411 U.S. at 570, 577, 93 S.Ct.

at 1693, 1697. An individual required to appear before a

state tribunal that is biased on the merits of the proceed-

ing may resort directly to federal court, whether or not

the state tribunal has the authority to dismiss the pro-

ceedings for bias, lack of jurisdiction, or on any other

grounds.* As Gibson illustrates, the fact that there are

state remedies for resolving or determining the fairness

of the procedure is irrelevant, regardless of when or in

what state forum that determination could be made.

* Where state law provides that a biased judge must

recuse himself, the state law does not, of course, require the

individual to appear before a biased tribunal (except, possibly,

in some instances for the limited purpose of filing the disqual-

ification motion). The question of recusal 1s discussed in Sec-

tion Ill, infra

App. 57

could do so afterwards.’ In Partington’s case, the Hawaii

Supreme Court is not only the biased forum, but also the

first and last judicial body from which Partington may

seek relief. Thus, the state court remedies in Gibson were,

if anything, far more hospitable to the plaintiff than those

offered to Partington here. As Younger abstention was

improper in Gibson, it is a fortiori improper here, if as

conclude, the Hawaii Supreme Court is biased on the

ineffective assistance claim

The majority's confusion regarding abstention and

bias appears to be due to its misunderstanding of the

third prong of the Middlesex test. The majority consis

tently describes that prong as requiring that Partington

have the ability to litigate his constitutional claims before

an unbiased state adjudicator. Majority op. at 120-121

125-126 Actually, the third prong of Middlesex does ni

mention bias — because under Younger that issue is dé

with separately. The third prong requires only that Part

ington have “an adequate /pportunit n the state p

ceedings to raise constitutional challenges 157 US. at

432, 102 S.Ct. at 2521. The critical fact that the majority

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overlooks is that in Younger, the Supreme Court recog

;

nized that even if the three-part test for abstention (as

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App. 58

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, if is simply irrelevant whether

Partington will be able to raise his constitutional claims

before the Hawaii Supreme Court or whether the Court is

biased és 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 alia, “extraordinary circumstances

render the proceedings unfair, a concern that is

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 “mystitying” 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

7 ,

App. 59

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 tnnecessarily, 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-

} sled 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 Younger abstention

The majority next concludes that the Rule 13 pro-

cedure does not present an unacceptable risk of prejudg-

ment on the ineffectiveness issue, although it is far from

clear why it reaches that conclusion.!? Majority op. at 125

At one point, the majority argues that Partington has

not alleged that the Hawaii Supreme Court is biased “on the

(Continued on following page)

a ee

App 60

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

(emphasis added). With respect to the issue of “legal”

bias, the majority concludes that Partington has not dem-

onstrated that the Hawaii Supreme Court is legally fore-

closed “from considering the ineffectiveness Issue de

novo.” Majority op. at 126. On that point, I am in agree-

ment.13 However, the majority also concludes that there is

(Continued from previous page)

primary issue [namely] whether corrective action 1s Wat:

ranted [against Partington] under Rule 13.” Majority op. at 126

Any distinction between whether the court 1s biased “merely’

on the ineffective assistance issue rather than on the corrective

action issue is semantic gameplaying at best | 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 Hawan Supreme Court 1s

necessarily required to judge the issue on which it is biased

hefore 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 15 warranted

’ Partington has not demonstrated by unambiguous

yuthorityv that the court Is legally pre luded trom reconsidering

its initial determination ot inetfectiveness For the purposes ot

our Younger analysis, we musf assume that the Hawat

(Continued on following page?)

App. 61

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 case law or other authority In fact, the majority

opinion contains no discussion whatsoever of the ques-

tion whether the Hawaii Supreme Court could, as a 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 /d. at

126.

! believe that, as a practical matter, the Hawatl

Supreme 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 pro-

ceedings is because in a previous proceeding the Hawai

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 ts not, as a practical matter, an

unbiased adjudicator

(Continued from previous page)

Supreme Court ts 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

14 The question of recusal is discussed infra, section a

App 62

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 “[a] 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 U.S. 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 posel[] such a risk of actual bias or prejudgment

that the practice[s] must be torbidden if the guarantee ot

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 involvemert 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, or 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,

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While Texaco and Swann provide some guidance,

there are significant differences between those cases and

Partington’s. The commissioner’s prejudgment in Texaco

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 298

(1803), and The Antelope, 23 U.S. (10 Wheat.) 66, 6 L.Ed. 268

(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

propricty 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, in

Stuart, “[t]he Chief Justice, having tried the cause in the court

below, 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.

App. 65

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 appeai 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 Asscciation). 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

assistance 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

'7 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

also Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1981) (judge’s

participation in prior or related proceeding not sufficient to

(Continued on following page)

App. 66

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

implicit 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), is discussed

in note 20, infra.

18 The majority apparently does not disagree with this

suggestion. See Majority op. at 124, 126.

App. 67

Here, the Hawaii Supreme Court has not merely

made a preliminary or accusatory finding that Partington

may have rendered ineffective assistance of counsel.

Rather, it has made a finding on the merits that the assis-

tance Partington rendered was so ineffective as to require

the reversal of a murder conviction. Certainly, a subse-

quent 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.”2° Id. 421 U.S. at 57, 95 S.Ct. at 1469.

9 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

undoubtedly be devised which meets those requirements. See

infra pages 146-147.

20 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 fact that the Hawaii Supreme Court has already

reversed a murder conviction because the defendant received

(Continued on following page)

App. 68

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 fair-

minded person would be unable to set aside.” Concurring op.

at 132. However, the case that it relies on, United States v.

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] disapproval

toward certain persons because of their known conduct.” /d. 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 Denis 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 of

a patent which he had declared valid in a previous case that

involved the same plaintiff but a different defendant. Id. at 263.

The Judge declined to disqualify himself, because he con-

cluded 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)

App. 69

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 judicial 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]lensibilites 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, Denis, while never contrclling on this court, cannot any

longer even be considered persuasive.

21 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. denied 449

U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980); 28 U.S.C. § 455

(1982); see also Concurring op. at 134.

App. 70

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.??

22 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 also 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

“{h]aving 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)

App. 71

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).

24 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. United States v. Harris,

458 F.2d 670, 678 (Sth 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 Hawaii courts in particular face a comparable practical

problem with respect to the adjudication of disciplinary cases.

App. 72

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

authority 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 it 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 ‘o a trial court

eccurs because that court’s initial decision has been

‘ound 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

assistance has not been vacated or set aside by a higher

court. Equally important, the supreme court’s determina-

tion in the Rule 13 proceedings will be final, with no right

of appeal to a superior judicial body.?°

°5 The concurring opinion suggests that our current eu

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

final decision adverse to that party.

App. 73

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 tmerits 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

Supreme Court has warned us to “be alert to the possi-

bilities of bias that may lurk in the way particular pro-

cedures actually work in practice.” Withrow, 421 U.S. at

54, 95 S.Ct. at 1468. The majority fails to consider suffi-

ciently 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

Supreme Court has held that, if a state administrative

agency is biased, Younger abstention is inappropriate

even if state “judicial 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 fortior! where,

as here, the biased decision of a court will not be subject

to any review.?°

26 The majority opinion contends that Hawaii'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)

App. 74

Il]

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

obtain the recusal under Haw.Rev.Stat. § 601-7(b) (1985)

of all five of the justices of the court.?7 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. /d. at

2519.

27 Although the majority refers to Partington’s ability to

seek 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.

App. 75

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

“[w]hen 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

Ethics 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 differ-

ent problem than is usually addressed under recusal stat-

utes. Under Rule 13, prejudgment is not the exceptional

case, arising only under unusual circumstances. Rather,

the conflict the Hawaii Supreme Court justices are con-

fronted with in Partington’s case is the inevitable result of

the way the rule is structured. That structure ensures that

prejudgment 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

App. 76

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 13

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

°8 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 possibiuity 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.

°9 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.

App. 77

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-

ibie 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-

minaticn of ineffective assistance of counsel in a disci-

plinary proceeding if the original finding of

ineffectiveness had been made in an unappealed decision

of the intermediate appellate court, and the intermediate

appellate court would make the disciplinary determina-

tion if me supreme court had originated the earlier inef-

fective 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 attorney was in fact ineffective as well as those in

which only the intermediate appellate court had made

such a determination. Rule 13 explicitly provides that the

disciplinary proceeding be adjudicated by the supreme

court, not by appellate court judges or retired supreme

30 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 cligible, if authorized by a

revised Rule 13.

App. 78

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

because 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

excluded sub silentio from the regular procedure.

32 The Supreme Court has held that the ability to seek

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)

App. 79

invalidate the rule and permit the Hawaii Supreme Court

to reenact a version that does not offend due process.

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 anv 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

Hawaii 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.

App. 80

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 arguments to a tribunal that has prejudged

the merits of the disciplinary proceedings because he has

not shown that the tribunal is biased on the issue of

whether it is biased, misconceives the law of abstention.

Partington has shown all that he need show in order to

obtain a federal court injunction — he has shown that the

state tribunal has prejudged the merits of the disciplinary

proceedings. See Gibson, 411 U.S. at 577-78, 93 S.Ct. at

1697. I see no legal or practical reason for forcing Part-

ington to first present his claims to the Hawaii Supreme

Court.

Although the majority posits recusal of all of the

justices as a possible solution to the prejudgment prob-

lem, it offers no support for the assumption that Hawaii's

general recusal statute is applicable. In fact, the structure

of Rule 13 compels the conclusion that this remedy is

simply not available here. Rule 13 explicitly requires that

the Hawaii Supreme Court adjudicate all cases arising

App. 81

under the rule, not that the determination be made by an

entirely different group of judges whenever the initial

determination was made or affirmed by the supreme

court.

For these reasons, the Hawaii Supreme Court simply

cannot be said to provide Partington with an unbiased

forum insofar as the disciplinary proceedings are con-

cerned. Accordingly, Younger abstention is inappropri-

ate.*? | would reverse the district court’s decision and

remand the case to that court with instructions to enjoin

the Rule 13 proceedings.

SANCTIONS

While I agree with the majority that sanctions against

Chang and Gedan are appropriate, I cannot agree that

Rule 11 is a proper basis for imposing them. Certainly,

Rule 11 was not the basis the Seventh Circuit relied upon

in Meeks v. Jewel Cos., Inc., 845 F.2d 1421, 1422 (7th

Cir.1988), a case the majority cites as precedent for its

sanctioning of Chang and Gedan. The Seventh Circuit has

made it abundantly clear that Rule 11 does not apply to

proceedings before courts of appeals. See, e.g., Leigh v.

Engle, 858 F.2d 361, 370 n. 5 (7th Cir.1988), cert. denied,

33 Because the Hawaii Supreme Court is biased for the

reasons explained above, it is not necessary to decide whether

it is also biased as to Partington’s equal protection claim.

Nevertheless, the April 27, 1987 letter to Partington from the

Chief Justice strongly suggests that the Court has prejudged

that issue as well. See note 11 supra and ER 446 (stating reasons

that Rule 13 need not be applied to prosecuting attorneys as

well as to defense attorneys).

App. 82

U.S. __, 109 S.Ct. 1528, 103 L.Ed.2d 833 (1989); Bor-

owski v. DePuy, Inc., 8°90 F.2d 297, 306 n. 6 (7th Cir.1988);

Hays v. Sony Corp. of America, 847 F.2d 412, 420 (7th

Cir.1988).

The majority attempts to avoid this problem by stat-

ing that, unlike the Seventh Circuit, this circuit has

adopted Rule 11 for proceedings before this court. How-

ever, the cases cited by the majority, In re Mooney, 841 F.2d

1003, 1005 (9th Cir.1988); Rockwell International Credit

Corp. v. United States Aircraft Insurance Group, 823 F.2d

302, 304-05 (9th Cir.1987); and In re Curl, 803 F.2d 1004,

1007 (9th Cir.1986), when properly analyzed, do not stand

for this broad proposition. Rather, in each of these cases,

the objectionable conduct for which the attorney was

sanctioned occurred in the district court.*4 Here, in con-

trast, the sanctionable conduct took place exclusively in

the court of appeals: Chang and Gedan filed a frivolous

motion for sanctions against Partington for bringing this

appeal. I do not believe that we can properly adopt Rule

11 for appellate proceedings through the exercise of our

decision making function. Rule 11 is applicable to actions

taken in the district courts not the bankruptcy courts, In

re Akros Installations, Inc., 834 F.2d 1526, 1531 (9th

Cir.1987); Fed.R.Civ.P. 81(a)(1), or the courts of appeals.

Leigh; Borowski; Hays. if a rule similar or identical to Rule

11 is to be made applicable to federal appellate courts

generally, an amendment to the Federal Rules of Appel-

late Procedure will be required. If, on the other hand, a

34 While In re Curl is at best ambiguous, it appears that the

principal conduct the attorney was sanctioned for in that case

was the filing in the district court of a frivolous notice of

appeal.

App. 83

judge of this court believes that our court should adopt

such a rule for ourselves, he should request our Advisory

Committee on Rules to act. However, even if we could

extend Rule 11 to appellate proceedings, it would be

unwise to do so. The satellite litigation we would be

inviting is not worth the candle.

Of course, this still leaves the question of what the

proper basis for our imposition of sanctions against

Chang and Gedan should be. While Meeks did not make

clear what basis the Seventh Circuit relied upon to grant

sanctions, there are several options available to us:

Fed.R.App.P. 46(c); 28 U.S.C. § 1927; or our inherent

powers. Unwarranted sanctions motions serve to multi-

ply proceedings unnecessarily and to harass one’s oppo-

nent. Because I believe that Chang and Gedan’s filing of a

motion for sanctions against Partington for bringing this

appeal was unreasonable and vexatious, | would impose

sanctions pursuant to 28 U.S.C. § 1927.

App. 84

APPENDIX B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

) No. 87-2375

)

EARLE A. PARTINGTON, )D.C. No.

) CV-87-0172-KAY

)

-VS- ) ORDER

Plaintiff-Appellant,

JOSEPH M. GEDAN: ) DENYING

HOWARD T. CHANG ) PETITION FOR

: ) REHEARING

Defendants-Appellees. )

) FILED DEC 22 1989

)

Appeal from the United States

District Court for the

District of Hawaii

Before: WALLACE, REINHARDT, and NOONAN,

Circuit Judges.

The panel as constituted above has voted to deny the

petitions for rehearing and to reject the suggestion for

rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc. An active judge called for an en banc

vote and a majority of the judges of the court has voted to

reject the suggestion for rehearing en banc. Fed. R. App.

P. 35(b).

The petitions for rehearing are denied, and the sug-

gestion for rehearing en banc is rejected.

App. 85

APPENDIX C

NO. 10041

IN THE SUPREME COURT

OF THE STATE OF HAWAII

) CRIMINAL NO. 59285

)

JAPPEAL FROM THE

STATE OF HAWAII, ) JUDGMENT;

) NOTICE OF ENTRY,

Plaintiff-Appellee, ) FILED JULY 2, 1984

VS. )

CLIFFORD M.M. FIRST CIRCUIT COURT

CLARKE, SR.,

) HONORABLE

Defendant-Appellant. =) LELAND H. SPENCER

) Judge

)

) FILED 1985 DEC 27

MEMORANDUM OPINION

This is an appeal from a conviction for murder in

violation of HRS § 707-701. The victim was the infant

child of appellant’s live-in girl friend.

Appellant raises numerous grounds on appeal, none

of which we reach or decide because, in our view, the

record is clear that the appellant did not have the effec-

tive assistance of counsel at trial and that therefore we

must reverse and remand for a new trial.

The State’s case against the appellant rested on cir-

cumstantial evidence. It is apparent from the record that a

possible defense, contemplated by appellant and _ his

counsel, was that the actual culprit was the mother. At

oral argument, appellant’s counsel suggested that

another possible defense was that, while appellant might

App. 86

have inflicted the fatal abuse, he lacked the necessary

intent to cause the child’s death.

We are faced with a record in which appellant’s trial

counsel (1) refused to make an opening statement; (2)

refused to cross-examine the mother of the victim, coun-

sel’s stated reason being that certain records with respect

to the witness had not been made available to him; (3)

subsequently refused to call the witness himself after the

records were made available to him;! (4) elicited testi-

mony from two prosecution witnesses that they believed

that the appellant was guilty; and (5) refused to make a

closing argument.

At oral argument, appellant’s counsel asserted that

each of the above decisions was justifiable as a matter of

tactics. We cannot agree. In our view, on this record, none

of the five alleged tactical decisions which we have enu-

merated above (let alone all five considered together) was

within the range of competency demanded of attorneys in

criminal cases. State v. Antone, 62 Haw. 346, 615 P.2d 101

(1980). The effect was to substantially impair what

defenses appellant had. Antone, supra.

We remind both counsel of their obligations under

HSCR 13 once a judgment on appeal has been issued by

us in this case. Reversed and remanded.

' Under HRE 607, counsel could have impeached her

testimony.

App. 87

DATED: Honolulu, Hawaii, December 27, 1985.

/s/ Herman Lum

/s/ Edward H. Nakamura

/s/ Frank Padgett

/s/ Yoshimi Hayashi

/s/ James Wakatsuki

Earle A. Partington

(Schweigert & Associates

of counsel) for appellant

Emlyn H. Higa,

Deputy Prosecuting Attorney,

for appeliee

App. 88

APPENDIX D

HAWAII SUPREME COURT RULES

Rule 13 - PROCEEDINGS FOLLOWING FINAL ADJUDI-

CATION OF INEFFECTIVE 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 assistance of counsel in the pro-

ceedings 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 prosecutor

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 sucha

certificate by the supreme court, the chief justice

shall appoint a special master to determine

whether action against the counsel alleged to

have been incompetent is warranted.

Within five days from his appointment, the

special master shall mail a notice of his appoint-

ment together with a copy of the order of his

appoin

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