# Petition for Writ of Certiorari — Partington v. Gedan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 1038

## Text

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)

a

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
bs

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). ...... 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.

mt

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.

a
4

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

10

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)

1]

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.

12

—

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)

13

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.

14

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

-

15

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).

16

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)

18

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).

19

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)

20

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)

21

—

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.

i)
i)

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)

nN
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.

»
v

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)

24

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,
V.
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

l

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

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rartington s appointmer iS CcOUNSel for Clarke con
:

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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-

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A pp 20

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 ¢

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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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App. 36

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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481 (1921). In Denis v. Perfect Parts, 142 F.Supp 263

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

vious case that the patent in question was valid. When
the same patentee brought a case against a different
defendant, the defendant objected that Judge Aldrich was
prejudice because he had already ruled on the validity of
the patent. Judge Aldrich refused to disqualify himself
ing, “The statute is directed to personal bias, not to
previous judical exposure to the same or similar ques
tions.” Perfect Parts, 142 FSupp at 263. The general stan

dard that the bias must be personal and also arise from ar

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App. 50

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.

I
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.

Il
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°)
a

J

gy

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

~_ y i i \ {
overlooks is that in Younger, the Supreme Court recog
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nized that even if the three-part test for abstention (as
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pportunity to resolve the tactual issues relating to the claim
b4erre } ‘ r tt . , , ; r) dicen ;
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respe 2 t} rile | } }

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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App. 64

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.

IV
CONCLUSION

Certainly, judges are entitled to a presumption of
absence of bias, see Schweiker v. McClure, 456 U.S. 188, 195,
102 S.Ct. 1665, 1669, 72 L.Ed.2d 1 (1982), as well as one of
integrity and honesty. Withrow, 421 U.S. at 47, 95 S.Ct. at
1464. They are also entitled to a presumption that they
will follow their duty to “be unswayed by partisan inter-
ests, public clamor, or fear of criticism.” Haw.S.Ct.R.
8.5(a)(5), incorporating Code of Judicial Conduct, Canon
3(A)(1). But such a presumption “does not, of course,
preclude a court from determining from the special facts

(Continued from previous page)

district court’s dismissal of a complaint on the basis of Younger,
emphasizing that recusal would solve 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
appointment, the certificate or certificates, and
the order reversing the conviction to the respon-
dent 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 respon-
dent 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,

App. 89

he shall file with his return a motion therefore
supported by an affidavit made upon personal
knowledge and showing facts sufficient to
establish the personal bias and prejudice of the
special master toward him.

If a motion for disqualification is filed, the
master shall rule on the same within five days
from the date of filing. That ruling shall be
appealable only after an order in the proceed-
ings as hereinbelow set forth has been entered.

The master shall within five days after
receipt of the answer of the respondent appoint
an attorney to further prosecute the proceedings
and shall give notice of the appointment to the
respondent attorney in the same manner as pro-
vided above.

The respondent attorney may represent
himself or may designate an attorney to repre-
sent himself. The r respondent or his attorney and
the attorney appointed by the master shall have
45 days from the appointment of the attorney by
the master to conduct any discovery proceed-
ings 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
dismissing the proceedings or recommending
corrective action against the respondent
attorney.

Corrective action which may be recom-
mended by the master and/or adjudicated by
the supreme court may consist of any one or
more of the following:

a ee ee

App. 90

(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
ineffective 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 reference under this
subparagraph, the master’s finding and the ref-
erence shall be deemed confidential and shall
not be disclosed except pursuant to the provi-
sions of Rule 2.22 of these rules.

Within 20 days from the rendering of the
master’s decision and proposed order, respon-
dent or his attorney and the attorney appointed
by the master to prosecute the proceedings may
file exceptions with the Supreme Court of
Hawaii supported by a memorandum in support
thereof.

Within 40 days of the rendering of the deci-
sion and proposed order by the master, the
supreme court shall enter an order either dis-
missing the proceedings or ordering corrective
action in accordance with the guidelines set
forth above.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1302%3A1. Public record. Not legal advice.