Opposition Brief — Partington v. Gedan

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No. 89-1531 APR 26 1990

JOSEPH F. SPANIOL,

In The CLERK

Supreme Court of the United States

October Term 1989

—

EARLE A. PARTINGTON

JOSEPH M. GEDAN and HOWARD

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Ninth Circuit

—E ———_——— -—__- EE

RESPONDENTS’ BRIEF IN OPPOSITION

WARREN Pri [II*

Attorney General

State of Hawaii

*Counsel of Record

CoORINNE K.A. Wart

First Deputy Attorney |

State of Haw aii

STEVEN S. M

Deputy Attorne

‘ ft

State of Hawa

tate Capit

, , ,

Tr) 1111

QUESTIONS PRESENTED

1. Whether the failure by Petitioner in No. 89-1531

actually to “file” his petition for rehearing in the Court

below on or before the fourteenth day after judgment in

the Court of Appeals, as is required by Fed. R. App. P.

25(a) and 40, renders his petition for review here jurisdic-

tionally untimely in that the petition for rehearing timely

filed by Petitioners in No. 89-1506 (Respondents here) on

the fourteenth day after judgment below was addressed

to the collateral issue of attorneys fees?

2. Whether, assuming Petitioner has timely invoked

this Court’s authority, Petitioner’s claims arising out of

attorney disciplinary proceedings commenced against

him pursuant to Rule 13 of the Supreme Court of Hawaii

were correctly held to be subject to dismissal under the

precepts of comity, federalism, and restraint reflected in

Younger v. Harris, 401 U.S. 37 (1971), and its progeny, e.g.

Middlesex County Ethics Comm'n v. Garden State Bar Ass‘n,

457 U.S. 423 (1982), and Pennzuil Co. v. Texaco, Inc., 481

U.S. 1 (1987), or whether certiorari should be denied, or

the judgment affirmed, on the basis of the more funda-

mental reason that such claims are not ripe for federal

review?

3. Whether the claims presented in No. 89-1531 are

barred by the independent and adequate state ground

doctrine?

4. Whether, assuming, arguendo, the dispositions in

the state courts of which Petitioner here complaints are

‘final,” Petitioner’s exclusive avenue of federal review is

by way of petition under 28 U.S.C. § 1257, and not by a

QUESTIONS PRESENTED - Continued

“horizontal appeal” to the inferior federal courts of the

United States, or, if not, whether the principles of the

Full, Faith, and Credit Act, 28 U.S.C. § 1738 (1982), pro-

hibit departure in this case from the law of the case, if

any, developed in the state courts?

5. Whether any substantial federal question is pre-

sented by Petitioner’s claim that the highest court of a

state is unconstitutionally biased for purposes of attorney

disciplinary proceedings on the basis of rulings in favor

of Petitioner’s past client in a criminal case where Peti-

tioner was not a party?

6. Whether any substantial federal question is pre-

sented by Petitioner’s claim that the Due Process Clause,

per se, bars a State from granting an incentive for criminal

defense counsel to reveal client confidences so as to de-

fend themselves against allegations of impropriety, and

whether, if so, Petitioner’s former client’s free and open

waivers of the attorney client privilege moot federal pro-

tection of the confidences at issue?

7. Whether any substantial federal question is pre-

sented by Petitioner’s prayer for relief from statements in

a judicial opinion that, assertedly, defame one of the

lawyers in the case?

8. Whether for any other reason review should be

denied?

ili

PARTIES IN THIS COURT

Petitioner in this Court Earle A. Partington, Esq., is a

Honolulu attorney. He is plaintiff and appellant in the

courts below, and a Respondent in No. 89-1506 (U.S. pet.

for cert. filed Mar. 22, 1990), along with the Hawaii Asso-

ciation of Criminal Defense Lawyers, an amicus curiae

without standing to appeal the judgment below. Pet. for

Cert. at ii, No. 89-1506.

Respondents on this Petition, No. 89-1531, include

Joseph M. Gedan, the Rule 13 Special Master in proceed-

ings docketed in the Supreme Court of Hawaii variously

as In re: Earle A. Partington (Haw. Spec. Master filed 1986),

or State v. Clarke, No. 10041 (Haw. Spec. Master filed

1986). Special Master Gedan is a defendant in the district

court and an appellee in the appeal below, which sought

solely equitable relief. Because the relief ultimately

sought against Respondent Gedan was equitable in na-

ture, Respondent Gedan submits he has been named as a

Respondent in this Court in his official capacity, although

he appears in whatever capacity he is in fact so named.

Pet. for Cert. at ii, No. 89-1506 (citing Kentucky v. Graham,

473 U.S. 159, 167 n.14 (1985) (quoting Brandon v. Holt, 469

U.S. 464, 469 (1985))). The Petition in No. 89-1531 also

names Howard T. Chang, prosecutor in the Rule 13 pro-

ceedings, and a defendant-appellee below, as a Respon-

dent. Respondent Chang appears here as does Special

Master Gedan. On February 23, 1990, Rule 13 Prosecutor

Chang was succeeded by Mark J. Bennett, who ought to

be substituted automatically under this Court’s Rule 35.3.

TABLE OF CONTENTS

Page

BR Be gy 6 Se i

hf a ee a iii

RAs SP GPE ek si ccc ccc esaeucwsedetees iv

TPG Oe TAFE LU ¢ ov oo ve cheek awe x: vi

Pe Ae ee UE oa rsh os Pac wk Hike he ClO a. pe eA 2

Fp E so ais se eh Ce Oe aE ee hae eee 3

CONSTITUTIONAL AND STATUTORY PROVI-

Peete eM es Cie Re pwiee ek ae rts ree

SRA EPEE GE BECO Gi ins irre ee ewe eee ees

A. Background of the Litigation: Supreme Court

of Hawaii Rule 13 and the Protections Avail-

able to Respondent Counsel.........-.......

B. The Rule 13 Proceedings Here and Proceedings

in the United States District Court...........

C. Proceedings in the United States Court of Ap-

NG cit oa oS Pew eeeR GOT E SAK se 0%

D. Further Proceedings in the State Courts......

REASONS FOR DENYING THE WRIT

A. The Dismissal of Petitioner’s Claims Under the

Younger Doctrine Was and Remains Consistent

with the Sixth Amendment..........

B. Partington’s Assertions of “Institutional Bias”

are Wholly Insufficient to Overcome Dismissal

TABLE OF CONTENTS —- Continued

Page

C. Partington’s Challenges to the Asserted Immedi-

ate Impact of the Clarke Ruling Would Overrule

Younger Itself and Do Not Merit Review ...... 28

ee ee 8 | errr rrr yy rrr ere ret rere 30

TABLE OF AUTHORITIES

Page

CasEs:

Aetna Life & Casualty, Inc. v. Lavoie, 475 U.S. 813

Ra a ca 18, 25

Anders v. California, 386 U.S. 738 a ee 21

Ariyoshi v. Robinson, 477 U.S. 215 (1986)......--+-+-: 29

ASARCO v. Kadish, 109 S. Ct. 2037 (19GB) osc ccevees 21

Atascadero State Hospital v. Scanlon, 473 U.S. 234

ih ck vere eases FEA) thet ES AN ewes 10, 19

Brandon v. Holt, 469 U.S. 464 (1985)....----- Se

Budinich v. Becton Dickinson & Co., 486 U.S. 196

TN cave ivcsesheoesentsrenterre scenes t 3

Caplin & Drysdale, Chartered v. United States, 109 S.

oe SE: eae aaa Ca a 21

Chevron U.S.A. v. Natural Resources Defense Council,

Meera Bar CGB)... «5. cece eer creer eecees , 29

Christianson v. Colt Industries Operating Corp., 108

S Ct. 2166 (1988). ......-.--- eee eee: 30

Debartolo Corp. v. Florida Gulf Coast Trades Council,

485 U.S. 568 (1988)......-- ae ee 7

Department of Labor v. Triplett, No. 88-1671 (U.5

Mar. 27, 1990).....-.---- MarR rere 20

District of Columbia Court of Appeals v Feldman, 460

U.S. 462 (1983)...

Douglas v. California, 372 U.S. 353 (1963) 21

Engle v. Isaac, 456 U.S 107 (1982)

vil

TABLE OF AUTHORITIES - Continued

Page

Faretta v. California, 422 U.S. 806 4+) ee ie. 21

FDIC v. Mallen, 486 U.S. 230 (1986) ...----- seer eres 29

Felmeister v. Office of Attorney Ethics, 856 F.2d 529

A Os POMED fC inesen te cten oh heres er re™ bree Te 29

Frisby v. Schultz, 108 S. Ct. 2495 (1988).......---: zz, 2

Glass v. Pfeffer, 849 F.2d 1261 (10th Cir. 1988)......-- 25

Graham v. Teledyne-Continental Motors, 805 F.2d

same tOels Cin, 1908)... . cece ene haweet rs eaeeses ne 24

HOH Corp. v. Licensing Board, 736 P.2d 1271 (Haw.

OO oS cc arene ee wine Oe A See Re eee 10

Iron Arrow Honor Society v. Heckler, 464 U.S. 67

(1984) (per curiam).....-.---+-e errr “ 20

Kentucky v. Graham, 473 U.S. 159 (1985) .. iii

Kugler v. Helfant, 421 US. 117. C1976). 2 22, 27

Maier v. Orr, 758 F.2d 1578 (Fed. Cir. 1985) 25

Martin v. Wilks, 109 S. Ct. 2180 (1959)... | Y

Matsuo v. State, 70 Haw. 573, 778 P.2d 332 (1989) lo, 26

McKaskle v. Wiggins, 465 U.S. 168 (1984) 21

McLaughlin v. Union Oil of California, 869 F.2d 1039

(7th Cir. 1989).. 25

Michigan v. Harvey, 110 S. Ct 1176 (1977) Z

Michigan v. Jackson, 475 U.S 625 (1986) 23

Vill

TABLE OF AUTHORITIES - Continued

Page

Middlesex County Ethics Comm'n v. Garden State Bar

Fa aS Ss SS”) i, 6, 14

Missouri v. Jenkins, No. 88-1150 (U.S. Apr. 18, 1990)... .3, 4

Murray v. The Charming Betsy, 2 Cranch 64 (1804)..... 7

Nix v. Whiteside, 475 U.S. 157 (1986)................. 10

Ohio Civil Rights Comm'n v. Dayton Christian

SCnOew, 477 U.S. GIS (ISEB)... ccc cece vcccccces 6, 29

Partington v. Gedan, No. 87-0172 (D. Haw. dismiss-

ed July 1, 1987), aff’d, 880 F2d 116 (9th Cir.

1989), pets. for cert. filed, Nos. 89-1506 and

89-1531 (U.S. filed Mar. 22, 1990)............. passim

Paul v. Davis, 424 U.S. 693 (1976) ................ 19, 29

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987)

Bt Sy Ra Per ne neat teen tem sie 320, Sah i, 2, 6, 7, 15, 18, 28

Robinson v. Ariyoshi, 887 F.2d 215 (9th Cir. 1989). .... 29

Santos v. State, 64 Haw. 648, 646 P.2d 962 (1982)

Se IES sin 9 v nia hela oe hen eee be eh een kas Mane ees 9

Smith v. Murray, 477 U.S. 527 (1986) ................ 26

State v. Clarke, No. 10041 (Haw. Dec. 27, 1984) .. passim

State v. Smith, 68 Haw. 304, 712 P.2d 496 (1986)..... 10

Strickland v. Washington, 466 U.S. 668 (1984)....... 8, 20

United States v. Hohri, 482 U.S. 64 (1987)............ 26

Weatherford v. Bursey, 429 U.S. 545 (1977)............ 23

Wheat v. United States, 486 U.S. 153 (1988) ) 8, 21

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985) rrr +

TABLE OF AUTHORITIES - Continued

Page

Withrow v. Larkin, 421 U.S. 43 (1976)......... 14, 21, 26

Younger v. Harris, 401 U.S. 37 (1971)...... -. ee. passim

CONSTITUTIONAL PROVISIONS:

Meee Se, MN BONS ea Wiebke ew aneee eos ee x

U.S. Const. sixth amendment .................. 4, 18-25

U.S. Const. fourteenth amendment............ page ae

Haw. Const. art. I, § 14 (1978)............ 7 nares

STATUTES:

28 U.S.C. § 1254(1) (West 1989) .... 4

Be RFs Se GED oh ooo ete se cases: Fee Pe a

ae USK. & 1750 (ISS2) ... 25. 60 ee ae ii, 5, 30

28 U.S.C. § 2101 (1982).............. ee 3, 4

26 Usd. § 2111 C1962) . «2... cee eees. ae 5

Haw. Rev. Stat. § 602-5(6) (1985)... s

Haw. Rev. Stat. § 602-5(7) (1985) .... 8

Rutes or Court:

Fed. R. App. P. 25(a) ....... eee wees 1, 3

Ped. FB, Ape. Fl PB. onc cccesvses a 29

POG. B. AMG. FDO. ia ces ccces - 15

ren. me mpe. 7. @......5-. vet | i, 3

Fed. R. Civ. P. 11.. 15

TABLE OF AUTHORITIES - Continued

Page

ee a Oe & Ce re erie ony aie gh passim

Haw. DR 4-101(c), codified at Haw. S. Ct. R. 2.2(a)

CEU ol ett sec sae teceb ss tan esa cases ta eienie 9

Haw. R. Penal P. 40 (1969). ... 0... e see cece cereus. 26

OTHER AUTHORITY:

R. Stearns, E. Gressman, & S. Shapiro, Supreme

Court Practice § 6.3 (6th ed. 1986).............-.++:. 3

No. 89-1531

—

In The

Supreme Court of the United States

October Term 1989

—

EARLE A. PARTINGTON,

Petitioner,

JOSEPH M. GEDAN and HOWARD T. CHANG,

Respondents.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Ninth Circuit

—

RESPONDENTS’ BRIEF IN OPPOSITION

_—

Respondents Joseph M. Gedan, Special Master ap-

pointed by the Supreme Court of Hawaii in State v. Clarke

No. 10041 (Haw. Feb. 3, 1986), et al., officers of the State of

Hawaii (“State officials”), and Petitioners in No. 89-1506

(U.S. pet. for cert. filed Mar. 22, 1990), pray that the

petition for writ of certiorari in No. 89-1531 be denied, or

that on any review given, that the judgment below favor-

able to the State officials be affirmed.

OPINIONS BELOW

The amended opinion of the Court of Appeals is

reported at 880 F.2d 116 (9th Cir. 1989), and is reprinted

in the appendix to Petitioner Earle A. Partington’s Peti-

tion for Certiorari, No. 89-1531 [“Pet. App. (No.

89-1531)”] as Appendix [“App.”] “A” and in the Appen-

dix to the State officials’ Petition for Certiorari, No.

89-1506 [“Pet. App. (No. 89-1506)”] also as Appendix

[(“App.”] “A.” The order of the United States District

Court for the District of Hawaii, granting, inter alia, the

State Officials’ motion to dismiss, is reprinted at Pet.

App. “C” (No. 89-1506). The unreported Memorandum

Opinion of the Supreme Court of Hawaii in State v. Clarke,

No. 10041 (Haw. Dec. 27, 1985), is reprinted in Pet. App

“D” (No. 89-1506). Other orders of the Supreme Court of

Hawaii or the Hawaii Rule 13 Special Master, dated De-

cember 6, 1984, and January 26, February 1, February 12,

and February 27, 1990, are reprinted in the appendix to

this opposition [“Resp. App. (No. 89-1531)”] as App. “C,”

“E,” “FE” “H” and “I,” to assist the Court in evaluating

No. 89-1531. See this Court’s Rule 15.1.!

' The Order of the Supreme Court of Hawaii dated De-

cember 6, 1984, appears in the record below as part of Exhibit

“B” to the Complaint, No. 87-0172 (D. Haw. filed Mar. 9, 1987)

(Clerk’s Record [“C.R.”] 1). The remaining orders, which were

issued after the denial of rehearing by the court below on

December 22, 1989, see Pet. App. “B,” No. 89-1531, are for that

reason not in the record in this action, but are properly ten-

dered to this Court if, contrary to Respondents’ arguments,

infra (citing e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17

(1987)), post-filing events are relevant to this Court’s review

nere.

—

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit affirming the District Court’s dismissal, pursuant

to Younger v. Harris, 401 U.S. 37 (1971), and its progeny,

was entered March 13, 1989. A timely petition for rehear-

ing was filed with the Clerk of the United States Court of

Appeals for the Ninth Circuit in San Francisco, on March

27, 1989, by the State officials, seeking reversal only of

attorneys fees award against them in the court below. See

Pet. App. 216-32 (No. 89-1506). A petition for rehearing,

and suggestion of the appropriateness of rehearing en

banc, dated March 27, 1989, was untimely filed in the

court of appeals on March 29, 1989, sixteen days after

judgment. See Fed. R. App. P. 25(a); 40. Both petitions and

the suggestion for en banc review were denied by the

court of appeals on December 22, 1989. See Pet. App. “B,”

No. 89-1531.

Despite the untimeliness of Partington’s petition for

rehearing in the lower court, the timeliness of the State

officials’ petition for rehearing may well render the peti-

tion for certiorari in No. 89-1531 timely under 28 U.S.C

§ 2101 and this Court’s Rule 13.4. See Missouri v. Jenkins,

No. 88-1150, 58 U.S.L.W. 4480, 4484 (U.S. Apr. 18, 1990);

R. Stearns, E. Gressman, & S. Shapiro, Supreme Court

Practice § 6.3 at 313 (construing former Rule 20.4 of this

Court). However, the issue is not free from doubt. Strictly

speaking, the State officials’ Petition for Rehearing below

did not seek to alter the “judgment” of the court of

appeals in Petitioner’s appeal, but rather was addressed

to an issue “ ‘[cJollateral to’” and “ ‘separate from’ the

decision on the merits.” Budinich v. Becton Dickinson &

Co., 486 U.S. 196, 200 (1988) (citations omitted). As this

Court recently reaffirmed, the practice of suspending the

finality of a lower court judgment “does not extend to

petitions for rehearing seeking only to correct a formal

defect in the judgment or opinion of the lower court.”

Jenkins, 58 U.S.L.W. at 4483 n.13. This rule would appear

to apply a fortiori here, as the State officials did not seek

any correction of the judgment of affirmance entered

below (and, indeed, were entirely satisfied with that

judgment). If the Court concludes that the State officials’

petition for rehearing below does toll the time both for

the State officials and for Petitioner here, however, the

Petition here, like that in No. 89-1506, having been filed

within 90 days of the denial of rehearing below, is timely

under 28 U.S.C. §§ 1254(1) and 2101(c). As will be briefed

below, despite its arguable timeliness, the Petition in No

89-1531 also contains substantial defects under Article III.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article III, section 2, clause 1 of the United States

Constitution provides in relevant part that

The Judicial Power [of the United States] shall

extend to... Cases ... [and] to Controver-

The Sixth Amendment to the United States Constitu-

tion provides in relevant part that

In all criminal prosecutions, the accused shall

enjoy the right .. . to have the Assistance of

Counsel for his defence.

The Fourteenth Amendment to the United States

Constitution provides in relevant part that

ee i

No State shall . . . deprive any person of life,

liberty, or property, without due process of

law[.]

Section 1257 of Title 28 of the United States Code

provides in relevant part that

Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed Ly the Supreme

Cour. ..:.

Section 1738 of Title 28 of the United States Code

provides in relevant part that

The records and judicial proceedings of any

court of any .. . State [of the United

States] . . . shall have the same full faith and

credit in every court within the United States

and its Territories and Possessions as they have

by law or usage in the courts of such State

... from which they are taken.

Section 2111 of Title 28, United States Code, provides

On the hearing of any appeal or writ of

certiorari in any case, the court shall give judg-

ment after examination of the record without

regard to errors or defects which do not affect

the substantial rights of the parties.

Article I, section 14, of the Hawaii Constitution of

1978 provides in relevant part that

[In all criminal prosecutions, the accused shall

enjoy the right .. . to have the assistance of

counsel for the accused’s defense.

Hawaii Supreme Court Rule 13 is reprinted in Pet

App. “D” (No. 89-1531) and in Pet. App. “E” (No

89-1506).

STATEMENT OF THE CASE

As stated in our petition in No. 89-1506, this case

arises out of the application by the courts below of the

rule laid down almost two decades ago in Younger v.

Harris, 401 U.S. 37 (1971). Reflecting this Nation’s com-

mitment to maintaining “the comity between the States

and the National Government” and avoidance of “unwar-

ranted determination of federal constitutional questions,”

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987), the

Younger doctrine takes as its siarting point the premise

that “[c]ertain types of injury, in particular, the cost,

anxiety and inconvenience of having to defend against a

single criminal [or important civil] prosecution, could not

by themselves be considered ‘irreparable’ in the special

legal sense of that term.” 401 U.S. at 46. Since its an-

nouncement, Younger dismissal has been held applicable

in numerous cases. While not all such expansions have

been met with total approval, Younger’s extension to suits

seeking to restrain state attorney disciplinary proceed-

ings “within the jurisdiction of the appropriate State Su-

preme Court” (see Ohio Civil Rights Comm'n v. Dayton

Christian Schools, 477 U.S. 619, 627 (1986)), has this

Court’s unquestioned support. See Middlesex County Eth-

ics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423 (1982);

id. at 438 (Marshall, J., joined by Brennan, Blackmun, and

Stevens, JJ.).

This Court’s rulings make clear that Younger concerns

are at their zenith when state courts have not been given

the chance to pass on federal claims. Thus, “when a

litigant has not attempted to present his federal claims in

related state-court proceedings, a federal court should

assume that state procedures will afford an adequate

remedy, in the absence of unambiguous authority to the

contrary.” Pennzoil, 481 U.S. at 15. Indeed, the require-

ment that a federal plaintiff show “state procedural law

bar[s] presentation of [its] claims,” Moore v. Sims, 442 U.S.

415, 432 (1979), is an established one, which traces its

origins to principles dating back over 185 years, and

which have “for so long been applied by this Court that

[they are] beyond debate.” Debartolo Corp. v. Florida Gulf

Coast Trades Council, 485 U.S. 568, 575 (1988) (citing Mur-

ray v. The Charming Betsy, 2 Cranch 64, 118 (1804) (Mar-

shall, C.J.)). In this case, the district court, backed by

findings that Petitioner’s evidence “failfed] to create even

an inference of prejudice” against him by the Supreme

Court of Hawaii, see Pet. App. 88 (No. 89-1506), and the

court of appeals, on review of the district court’s dismiss-

al, concluded that these principles prohibited Petitioner's

attempt to restrain, as in Middlesex, ongoing state attor-

ney discipline proceedings, particularly where, as in

Moore and Pennzoil, appropriate and sufficiently protec-

tive avenues for litigating federal issues had not yet been

exhausted in the state courts. Whether, having been dis-

missed by both courts below, Petitioner has raised any

substantial basis for overturning these exercises of re-

straint is the main issue here.

A. Background of the Litigation; Supreme Court of

Hawaii Rule 13 and the Protections Available to

Respondent Counsel.

This case arises from the paradox created by the Sixth

Amendment mandate that an indigent “accused shall en-

joy [not only] the right .. . to have the Assistance of

Counsel for his defense,” but “ ‘the right to the effective

iii aa

assistance of counsel.’ ” Strickland v. Washington, 466 U.S.

668, 686 (1984); see also Haw. Const. art. I, § 14; State v.

Antone, 62 Haw. 346, 615 P.2d 101 (1980). Because of the

vexing reality that a defendant may “win by losing,” and

Hawaii's “legitimate wish” “that [its] judgments remain

intact on appeal,” Wheat v. United States, 486 U.S. 153, 161

(1988), the Hawaii Supreme Court in 1984 promulgated a

rule intended properly to deter and remedy the unneces-

sary generation of “ineffective assistance” errors.

Rule 13 provides for the commencement of a Special

Master’s inquiry and recommendation “[w]here the con-

viction of a criminal defendant has been overturned and

a new trial ordered because of a finding that the defen-

dant had ineffective assistance of counsel in the proceed-

ings against him or her, and the order has become

final[.]” Haw. S. Ct. R. 13 (Pet. App. 88 (No. 89-1531)).

The Rule requires appointment of a master “to determine

whether action against the counsel alleged to have been

incompetent is warranted” (id. 92), and authorizes ave-

nues for raising of defenses by the respondent “why

corrective action . . . should not be taken,” appointment

of a Rule 13 prosecutor, discovery, evidentiary hearing,

recommended decision, and review in the Supreme Court

of Hawaii (id. 92-9). Review is also available under the

all-writs power, Haw. Rev. Stat. §§ 602-5(6) & (7).

For several reasons, both evident on the face cf the

rule, and from other provisions of Hawaii law, the deci-

sion of all issues by the Special Master, including the

underlying issue of ineffective assistance, is de novo. The

Rule expressly treats a respondent attorney as having

been only “alleged to have been incompetent,” and grants

the Special Master (and the Supreme Court) the express

authority to dismiss the proceedings for any reason “why

corrective action . . . should not be taken” (Rule 13 744, 7

(Pet. App. 88-89 (No. 89-1531)). These include the claim

that ineffectiveness did not occur (or, relatedly, was in

fact “caused” by a judge or prosecutor). Under settled

Hawaii preclusion principles, the triggering finding of

ineffectiveness has no bar, merger, issue preclusive, or

law of the case effect, particularly when reversal occurs

on a direct appeal. This is true as a respondent attorney

could not possibly be in privity with his former client on

the ineffectiveness issue. See Santos v. State, 64 Haw. 648,

652, 646 P.2d 962, 965 (1982) (per curiam); cf. Martin v.

Wilks, 109 S. Ct. 2180, 2185 (1989) (“party seeking a judg-

ment binding upon another cannot obligate that person to

intervene”). A fortiori, any federal reason why sanctions

may not issue may be advanced to the Master. See 1d.

Hawaii law also makes clear that the respondent

attorney is not required to respect the confidences of his

former client. Under DR 4-101(c), codified at Haw. S. Ct. R.

2.2(a) (1984), the respondent lawyer “may reveal . . . con-

fidences or secrets necessary ... to defend himself

against an accusation of wrongful conduct.” No Hawaii

case, moreover, limits this “self-defense” exception to the

attorney client privilege to instances where the client

charges that the lawyer’s conduct is wrongful.

The Rule permits full review of the master’s report in

the Supreme Court of Hawaii. See Rule 13, 410 (Pet. App.

90 (No. 89-1531)). The state court retains full discretion to

order “dismissal of the proceedings” (id.), and, under

Hawaii law, it is clear that the Supreme Court may con-

sider any federal claim why remedial measures ought be

denied, even if the Master may not. HOH Corp. v. Licens-

ing Board, 736 P.2d 1271 (Haw. 1987).

So understood, Rule 13 closely and compellingly

serves interests at the heart of Hawaii's criminal justice

system. The Rule’s overriding purpose is to protect crimi-

nal defendants who are in fact innocent, but whose de-

fenses are not believed (or not advanced at all) on

account of their counsel’s ineffectiveness. In this critical

way, the Rule reflects the state court’s commitment “to

enforce the Supreme law of the land.” Atascadero State

Hospital v. Scanlon, 473 U.S. 234, 240 in.2 (1985). The Rule

“stands as a disincentive for competent attorneys” to turn

criminal trials “ ‘into reversible trials,’ ” State v. Smith, 68

Haw. 304, 313-14, 712 P.2d 496, 502 (1986), and, by recog-

nizing that “the law” includes a defendant’s own rights,

confirms that “counsel is precluded from taking steps or

in any way assisting the client in presenting false evi-

den.e or otherwise violating the law.” Nix v. Whiteside

475 U.S. 157, 166 (1986).

B. The Rule 13 Proceedings Here and Proceedings in

the United States District Court.

Late in 1985, the Hawaii Supreme Court triggered the

filing of a Rule 13 case against Petitioner Earle A. Part-

ington, a Honolulu lawyer, by finding on direct appeal

that Clifford Clarke was denied effective assistance of

counsel by Partington’s representation at Clarke’s murder

trial in 1984. State v. Clarke, No. 10041 (Haw. Dec. 27

1985) (Pet. App. 86 (No. 89-1531)).

Though Partington, as appellate counsel, had not

included trial ineffectiveness in the Opening Brief in

Clarke, he did inform the appellate court prior to argu-

ment that the state trial judge had complained to the

Office of Disciplinary Counsel about his failure to make a

closing argument, and moved, on Clarke’s behalf, for a

remand to the trial court “for the limited purpose of

holding a hearing on the competence of [Clarke’s] present

attorney at the trial.” Motion to Remand, No. 10041 (Haw.

Nov. 9, 1984), Resp. App. 6 (No. 89-1531).

The trial judge’s complaint, brought to the attention

of the Hawaii Supreme Court by Clarke’s motion, stated

that “by failing to give a final argument to the jury on

behalf of his client and by stating in the presence of the

jury that it would be a ‘waste of time’, Mr. Partington

intentionally attempted to make reversible error, i.e., to

prejudice his own client’s case for the purpose of forcing

an appellate court to reverse what Mr. Partington antici-

pated would bea conviction.” Letter from Leland Spencer

to Office of Disciplinary Counsel (Aug. 1, 1984), at 3, Exh

“B” to Complaint, No. 87-0172 (D. Haw. filed Mar. 9,

1987), Clerk’s Record 1, Resp. App. 16 (No. 89-1531)

infra. According to the partial transcript attached to the

court’s letter, also presented to the Supreme Court of

Hawaii, at the time closing was to be given, and with the

record reflecting the presence of the jury, Partington had

stated that “in view of there being no cross-examination

of Debra Lin Arcala, my client and | feel closing argu

ment would be a waste of time.” Tr. at 2, Cr. No. 59

(Haw. Cir. May 24, 1984), Resp. App. 19 (No. 89-15

The Supreme Court of Hawaii was also informed of a

letter Clarke wrote to the Hon. Robert Won Bae Chang, a

judge of the Hawaii Circuit Court for the First Circuit

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because he (1) did not make an opening statement; (2) did

ot cross-examine the victim’s mother ostensibly because

the State did not make available records concerning her

(3) did not call the mother after receiving the records; (4)

elicited testimony from two State witnesses that they

yught Clarke was guilty; and (5) did not make closing

argument. See id.; 880 F.2d at 118, Pet. App. at 3 (No

39-1531). Following the judgment of vacatur, Rule 13

proceedings were commenced in February 1986 with the

appointment of Joseph M. Gedan as Special Master. Se

880 F.2d at 119, id. at 8. Partington filed an answer assert

ing that his decisions in Clarke were based on legitimate

it that the attorney-client privilege barred

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in Kule 13), Respondent Partington filed the action below

im th

he United States District Court for the District

Hawaii, seeking an injunction prohibiting the State offi

cials from proceeding against him under Rule 13 and

declaratory judgment that Rule 13 is unconstitutional. 88

F.2d at 119-20, Pet. App. 8-9 (No. 89-153]

In his suit, Partington asserted that the penden

= | wMCeLICLAC LIL Y

he Rule 13 case violated his rights under the First, Fifth

and Sixth Amendments. as incorporated by the Four

teenth Amendment, and the Equ al Protection Clause. [d

at 119. On July 1, 1987, the District Court, Kay J., granted

Petitioners’ motion to dismiss, or for summary judgment,

under Younger v. Harris, 401 U.S. 37 (1971), and its proge-

ny (Pet. App. 86-87 (No. 89-1506)).

Citing Middlesex County Ethics Comm'n v. Garden State

Bar Ass'n, 457 U.S. 423 (1982), the court rejected Part-

ington’s suggestion “that the Hawaii Supreme Court has

prejudged this case,” and found the absence of “even an

inference of prejudice” (Pet. App. 88 (No. 89-1506)). The

court rejected the claim that Withrow v. Larkin, 421 U.S. 43

(1976), forbade dismissal (Pet. App. at 88-89 (No.

89-1506)), and noted Partington did not argue that Rule

13 “is ‘flagrantly and patently’ unconstitutional” so as to

counsel against dismissal (id. at 90). Having so found, the

court rejected Partington’s summary judgment motion

(1d.).

C. Proceedings in the United States Court of Appeals.

On appeal,? a divided Ninth Circuit panel (Wallace,

and Noonan, JJ.), affirmed, reasoning that Partington’s

challenge was “strikingly similar” to that in Middlesex. In

response to Petitioner’s two main arguments why Young-

ers familiar three-part test was not met, namely, that “the

attorney-client privilege procedurally bars him from dis-

puting the Hawaii Supreme Court's finding of ineffective-

ness of counsel” and that “both the special master and

the Hawaii Supreme Court are biased against him,” 880

* A more complete recitation of the arguments on appeal is

presented at pp. 11-14 of the Petition in No. 89-1506. Because

of the limited grounds on which Partington seeks review, a

shorter summary of the argument below is provided here.

- ee

F.2d at 123, 124, Pet. App. 17, 20 (No. 89-1531), the court

of appeals reasoned that, under Pennzoil and other au-

thority, Partington’s challenge to the adequacy of the

State proceedings for Younger purposes failed on its face.

880 F.2d at 122, 123-28, Pet. App. 15, 16-30 (No. 89-1531).

The majority rejected any claim that the state proceedings

were animated by “bad faith” and dismissed claims that

Rule 13 was “flagrantly and patently violative of express

constitutional prohibitions in every clause, sentence, and

paragraph,” id. 128-29, Pet. App. 30-32, and denied as not

properly raised the claim that the Clarke reversal’s assert-

ed immediate defamatory impact made abstention inapt.

id. 129-30, Pet. App. 32-33.3

Judge Noonan concurred and filed a separate opinion

comparing the law of statutory recusal that controls the

proceedings in the federal courts. 880 F.2d at 131-38.

Judge Reinhardt dissented on the ground that because

“the Hawaii Supreme Court, sua sponte, raised and decided,

on the merits, the issue of ineffective assistance of coun-

sel in a manner adverse to [Partington,]” the state court,

in any subsequent review of a recommendation from the

Special Master, would not be, “as a practical matter, an

unbiased adjudicator.” 880 F.2d at 140, Pet. App. 61 (No.

89-1531). Although the record in the Rule 13 action might

be substantially different than in the Clarke appeal, and

> Having affirmed the dismissal below, the two-judge ma-

jority nonetheless imposed “Rule 11” sanctions against the

State officials for seeking their appellate damages under Fed.

R. App. P. 38. See Pet. for Cert. at 14-16 (No. 89-1506). Judge

Reinhardt concurred in the sanctions, but on other grounds.

See Pet. App. 82-83 (No. 89-1531).

indeed might never reach the Supreme Court if the Spe-

cial Master found, for example, that Partington’s actions

were legitimate responses to the trial judge’s rulings in

Clarke, Judge Reinhardt reasoned that, since it would be

“logically inconsistent” for the state court to find that

Partington was not “ineffective” in light of Clarke, the

proceedings could not be cured by a timely motion for

recusal, as a panel recusal “would be directly contrary to

the disciplinary system the Hawaii Supreme Court actu-

ally intended.” Pet. App. 68, 77 (No. 89-1531).

After petitions for rehearing were filed, the Supreme

Court of Hawaii decided Matsuo v. State, 70 Haw. 573, 778

P.2d 332 (1989), a post-judgment proceeding under Rule

40, Hawaii R. Penal P., which in the circumstances of that

case, involving a criminal conviction that had survived

direct review, held that it would be “unfair” to initiate a

Rule 13 proceeding without allowing the attorney ac-

cused of ineffectiveness-to be heard first. This decision

was calied to the court’s attention by Partington under

Fed. R. App. P. 28(j). In November, 1989, the Hawaii

Supreme Court also amended Rule 40 to provide that in

postconviction proceedings where ineffectiveness of

counsel is raised, the attorney accused of ineffectiveness

shall be given notice and an opportunity to be heard. This

matter, however, was not raised below by any party. On

December 22, 1990, the court denied all rehearing peti-

tions and rejected Petitioner’s request for en banc review

Pet. App. “B,” No. 89-1531.

D. Further Proceedings in the State Courts.

Following the denial of rehearing in the court of

appeals, the Special Master issued an Order to Show

Cause why the Rule 13 case should not proceed to a

hearing. See Resp. App. “F” (No. 89-1531). Partington did

not respond formally to this Order, and, instead, filed a

motion, in the Supreme Court of Hawaii, in the nature of

mandamus, seeking dismissal of the Rule 13 proceedings

with prejudice and recusal of the justices on the basis of

the state court’s asserted “institutional bias” and the “ut-

ter futility” of the Rule 13 proceeding in light of Clarke's

purported assertion of the attorney/client privilege. See

Resp. App. “D” (No. 89-1531). On January 26, 1990, the

Supreme Court of Hawaii, per its acting Chief Justice,

denied the motion “without prejudice to any timely ex-

ceptions that may be filed, or other timely relief that may

be sought, after the submission of the master’s decision

and proposed order[.]” Resp. App. “E”. The Master en-

tered further procedural orders and denied Partington’s

informal request for recusal. Resp. App. “F”. On February

12, 1990, the Supreme Court of Hawaii denied, also as

premature, a second motion to the Court in the nature of

mandamus, seeking immediate disqualification of the

Master and Rule 13 prosecutor, as well as further rulings

as to the course of proceedings below, (Resp. App. “G”

and “H”). The Special Master, despite this disposition,

took notice of several of Partington’s claims, and issued

further rulings, for example, that the Rule 13 proceedings

would be de novo as to all issues, and that the Rule 13

prosecutor shall have the initial burden of proof. Resp.

App. “I” (No. 89-1531). On February 23, 1990, a new Rule

13 prosecutor was appointed, who has, since the petition

was filed in No. 89-1531, obtained Clarke’s express writ-

ten waiver of the attorney client privilege for “all confi-

dential communications” “concerning Mr. Partington’s

decision: 1) whether or not to make an opening state-

ment, 2) whether or not to cross-examine or recall De-

bralin Arcala, and 3) whether or not to make a closing

argument.” Resp. App. “J” (No. 89-1531).

arene

REASONS FOR DENYING THE WRIT

The petition in No. 89-1531 presents no issue merit-

ing this Court’s review, and should be denied. As shown

already in the State officials’ petition in No. 89-1506,

taken seriously, the premises of Partington’s federal at-

tack on the ongoing Rule 13 proceedings at issue here

require repudiation of not only settled abstention pre-

cepts but principles of restraint that are “beyond debate.”

Debartolo Corp. v. Florida Gulf Coast Trades Council, 485

U.S. 568, 575 (1988).

Although the asserted “Sixth Amendment” bar to

Partington’s “fair opportunity to litigate” has been

marred by a waiver and standing defect from the begin-

ning of this lawsuit, was not firmly pressed in the courts

below, and in any case depends on reading the Sixth

Amendment in ways the Court has rejected, see Weather-

ford v. Bursey, 429 U.S. 545 (1977), Clarke’s recent waiver

of the attorney client privilege eliminates any argument

at the start, let alone any that could overcome Younger.

Likewise, Petitioner’s “institutional bias” arguments,

taken seriously, would wrongly weaken the rigorous

standards that must be met to effect judicial recusal as a

matter of federal constitutional law, see Aetna Life & Casu-

alty, Inc. v. Lavoie, 475 U.S. 813 (1986), and, as the court

below held, do not deal with Younger’s requirement that

Petitioner “assert its state remedies [to eliminate bias] in

a timely manner.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,

17 n.16 (1987). The Petition never addresses this, and, in

the end Petitioner’s bias argument is simply the improper

suggestion that state judges “will not enforce the su-

preme law of the land,” Atascadero State Hospital v. Scan-

lon, 473 U.S. 234, 240 n.1 (1985).

Finally, while it is debatable whether Petitioner pre-

served his claim that the asserted immediate impact of

State v. Clarke exempts this case from Younger dismissal,

that claim plainly presents no basis for review as Peti-

tioner faces no more than “the cost, anxiety and inconve-

nience of having to defend against a single criminal [or

important civil] prosecution[.]” 401 U.S. at 46; See also

Paul v. Davis, 424 U.S. 693 (1976).

In sum, while the Petition may “involve significant

policy issues,” they are not issues presenting any true

conflict with this Court’s precedents or with those of

other federal courts, or which otherwise merit this

Court’s review. The court below, as to its judgment of

affirmance, did not depart from accepted practice so as to

justify exercise of this Court’s supervisory power.

In fact, from abstention to re judicata, Petitioner’s

arguments, if granted, would rewrite long-settled law

governing established relationships among the state and

federal courts.

A. The Dismissal of Petitioner’s Claims Under the

Younger Doctrine Was and Remains Consistent

with the Sixth Amendment.

Running throughout each of Petitioner’s arguments

why review should be granted is the novel argument that

the mandatory dismissal required by straightforward ap-

plication of the Younger doctrine is somehow overcome in

Rule 13 cases, which are intended to effect the Sixth

Amendment, on the basis that those proceedings offend

a a ee

the Sixth Amendment. See Pet. for Cert. at 11, 12, 13,

14-16, 20-21. Perhaps none of the arguments in the Peti-

tion have less merit than this set of novel contentions,

and, indeed, none of the judges below remotely sug-

gested the Sixth Amendment issues Partington raises

were, Younger aside, even “colorable” or “important.” Pet

App. 32, 37-38 (No. 89-1531).

Partington’s arguments, fairly stated, purport to raise

two sorts of Sixth Amendment interests: (1) a purported

“right of independence” of counsel (Pet. App. at 21); and

-) the asserted Sixth Amendment interest in client confi-

dences (Pet. App. 14). For at least the following reasons,

neither of these asserted interests in the slightest merits

this Court’s scarce resources.

As to the first asserted interest, it is dubious whether

Partington has Article III or prudential standing. As to

the former, the ineffective assistance issue in Clarke was

at least arguably decided as a matter of state constitution-

al law as to which the federal standard enunciated in

Strickland v. Washington, 466 U.S. 466 (1984), is not coter-

minous. Thus, even if, for “injury-in-fact” purposes, Part-

ington now stands in the shoes the State would have

worn had it sought review in Clarke, it is dubious whether

any federal court had authority over the State’s interest in

the so-called “presumption of effectiveness.” See Michigan

Long, 463 U.S. 1032 (1982). As to the latter, while on

occasion, this Court has recognized that counsel may

assert their clients’ rights, see Department of Labor v. Trip

ett, 58 U.S.L.W. 4388, 4390 (U.S. Mar. 27, 1990), here

Clarke, as an indigent defendant provided appointed

counsel, had no “due process right” to Partington’s style

of representation. Id. “Petitioner does not, nor could [he]

defensibly do so, assert that impecunious defendants

have a Sixth Amendment right to choose their counsel

Caplin & Drysdale, Chartered v. United States, 109 S. Ct

2646, 2652 (1989). Indeed, as Clarke raised no claim in his

appeal that, if granted, would have required outright

acquittal, Clarke himself would have had no standing to

appeal to this Court under 28 U.S.C. § 1257 on the Hawaii

Supreme Court’s remand in Clarke on a “presumption of

effectiveness” issue. Partington thus lacks standing. In-

deed, Partington virtually admits he lacked standing to

seek review of the Clarke ruling. See Pet. for Cert. at 22

n.28. If he lacked standing then, he lacks it now. Compan

ASARCO v. Kadish, 109 S. Ct. 2037, 2045 (1989). In addi

tion, although this Court has derived from the Sixth

Amendment a sphere of autonomy reserved to defen-

dants themselves to conduct their own defense, see Faretta

v. Caiifornia, 422 U.S. 806 (1975); McKaskle v. Wiggins, 466

U.S. 168, 178 (1984), this sphere of autonomy has never

been extended to appointed counsel, and, indeed, it is

clear that the State’s “legitimate wish” “that [its] judg

ments remain intact on appeal,” Wheat v. United States,

486 U.S. 153, 161 (1988), may override even defense strat-

egies to which the client expressly and knowingly con

sents, a point that applies a fortiori to Clarke’s equivocal

acquiescence in Partington’s actions

Indeed, Partington’s full forfeiture of any oppor

tunity to argue before the petit jury, even for a conviction

of a lesser included offense, raises serious doubts of

Partington’s effectiveness under any standard, even with

a “presumption of effectiveness.” See Evitts v. Lucey, 469

U.S. 387, 395 (1984); Anders v. California, 386 U.S. 738

S. 353 (1963)

(1967); Douglas v. California, 372

oie)

The main point here is that, even if everything above

7m +

on this score is wrong, Partington’s argument that he was

not ineffective is no basis for avoiding abstention. Coun-

sel’s effectiveness must simply be decided in state court

Partington makes no argument that the existence of

Rule 13 is, on these Sixth Amendment grounds, “ ‘pat-

ently violative of express constitutional prohibitions in

every clause, sentence, and paragraph, and in whatever

manner and against whomever an effort might be make

to apply it,’ ” 401 U.S. at 53-54, quoted, Pet. App. 31 (No

89-1531), and such an argument, if made, would plainly

be frivolous. Likewise, it would border on the absurd ti

prohibit any inquiry into Partington’s actions on the

ground that there could be no “reasonable expectation

of determining that action under Rule 13’s correctiv

standards was warranted. See Kugler v. Helfant, 421 US

117, 126 n.6 (1975).

Partington’s contention relating to the Sixth Amend

ments protections for attorney/client confidences like

wise does not merit review. As an initial matter, this

Sixth Amendment” argument was not firmly pressed

below, and, indeed, the Court of Appeals was generous t

Partington in “interpret[ing]” Partington’s privilege argu-

ments as even addressing the “opportunity to litigate

prong of Younger’s familiar three-part test. See Pet. App

15 (No. 89-1531). To the extent the Court of Appeals

decided the “Sixth Amendment” issues below “without

Lil

e benefit of briefing or argument” (Pet. for Cert. at 9

this defect can be laid squarely at Partington’s door. Th:

Issue 1S not one provoking “plain error’ review, see Frishy

Schultz, 108 S. Ct. 2495, 2401 (1988). and certiorari is

nannranry

Ipproy riate

“> Pp

Second, it is dubious whether Partington has any

standing to assert Clarke’s purported Sixth Amendment

rights in his communications with Partington. Because

Partington would be better off, 1.e., free of any “federal”

limit on his right to dispute the charge of ineffectiveness

if the Sixth Amendment were interpreted to permit dis-

closure of Clarke’s confidences, Partington does not meet

even the minimal “injury-in-fact” requirements of Article

III. See Caplin, 109 S. Ct. at 2650. Partington is simply the

wrong person to be asserting Clarke’s Sixth Amendment

interest in attorney/client confidentiality.

Third, contrary to Partington’s arguments, the Sixth

Amendment has never been interpreted to generate the

per se bar on compelled disclosure of client confidences

So long as those confidences are not used against the

accused, there is “no violation of the Sixth Amendment

insofar as it is applicable to the States by virtue of the

Fourteenth Amendment.” Weatherford v. Bursey, 429 U.S

545, 558 (1977); cf. Michigan v. Harvey, 110 S. Ct. 1176

(1990); Michigan v. Jackson, 475 U.S. 625 (1986)

Although Partington suggests cases where Rule 13

could be abused to generate improper coerced disclosure

of client confidences for use in subsequent criminal trials

(see Pet. at 16), these facts are not before the Court. The

issue here, at most, is whether Rule 13 offers Partington

an opportunity to “raise his constitutional claims ‘and

have [those claims] timely decided by a competent state

tribunal.’ ” Pet. App. 16.

This being so, the Ninth Circuit was on more than

solid ground in asserting that, at best, the issue here was

whether “Hawaii's interpretation of the attorney-client

privilege imposes a procedural bar that effectively pre-

vents him from testifying on the issue of ineffectiveness

because he cannot ied present his trial strategy de-

fense.” Pet. App. 1

Although the Ninth Circuit suggested this as a pro-

cedural due process interest, it is doubtful whether the

matter even rises to that level. As the Ninth Circuit

observed ina related context, “[c]ourts have consistently

rejected arguments that deprivation of evidence [due to a

privilege] constitutes a denial of due process.” Graham v.

leledyne-Continental Motors, 805 F.2d 1386, 1390 (9th Cir

1986) (cases from seo circuits).

As the Ninth Circuit held here however, what makes

‘artington’s challenge to the Rule 13 proceedings against

him plainly meritless is Pennzoil’s requirement that the

ittorney-client privilege must be shown by “unam-

biguous” authority to bar disclosure of the evidence Part-

ington asserts he needs to defend himself. See 481 US. at

15. Partington does not even assert such authority, as a

matter of state law, exists, and virtually concedes this

issue. See Pet. for Cert. at 15

If this were not enough, Partington’s assertion that

Clarke has “refus[ed] to waive the attorney client privi

lege” (id. at 14), has never been during this case’s pen-

dency, and, in any case, is not now, fully accurate. As

noted, Clarke in 1984 revealed the tactical considerations

leading to Partington’s decisions, and, in any case, has

now effected a broad waiver of the privilege. See Resp

App. 21, 54-59 (No. 89-1531). “Federal courts lack juris-

diction to decide moot cases because their constitutional!

authority extends only to actual cases or controversies

Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70 (1984

[his principle bars Partington’s “Sixth Amendment

claim.4

B. Partington’s Assertions of “Institutional Bias” are

Wholly Insufficient to Overcome Dismissal.

Partington’s claims of “institutional bias Pet

9-11) likewise do not merit review. Indeed, as noted

our petition in No. 89-1506, such unsupported challenges

to the fairness of judges have often led to sanctions. S

McLaughlin v. Union Oil of California, 869 F.2d 1039, 104

(7th Cir. 1989); Glass v. Pfeffer, 849 F.2d 1261, 1268

— L - i L.A

Cir. 1988); INVST v. Chem-Nuclear Sys., 815 F.2d 391

402-03 (6th Cir. 1987); Mater v. Orr, 758 F.2d 1578, 1583

(Fed. Cir. 1985). In fact, taken to its conclusion

tioner’s argument would render the Justices of this (

constitutionally disabled from hearing appeals challer

ing their past rulings. This could not be the

Petitioner’s and 4

Withrow v. Larkin, 421 U.S. 35 (1975), is belied

Court’s remarks in Aetna Life & Casualty Co. v. Lavoie, 475

U.S. 813 (1986), in which the Court made clear that even

judge’s “general frustration” with a class of

insufficient to establish any constitutional!

at 821. indeed, as this Court observed in a related

* Although this Court’s procedur

me moot pending appeal is to vacate thi idgn

remand with instructions to dismiss the pla

States v. Munsingwear, 340 U.S. 36 (195 that disposit

ilready been effected under the Younger doctrit thus, grant

ing review even for the purpose of vacating and remand

unnecessal’ry

depriving the state courts ” ‘of [the] opportunity’ to re-

consider previously rejected constitutional claims is fun-

damentally at odds with the principles of comity.” Srmth

v. Murray, 477 U.S. 527, 535 (1986)

As recognized by the panel majority, Petitioner s ar-

gument that Younger could be overcome depends on two

claims, both of which are incorrect, and neither of which

is sufficient to overcome Pennzoil’s admonition that pro-

cedural inhospitality in the state courts must be demon-

strated by “unambiguous authority.” First is the

contention that Rule 13 does not provide de novo review, a

contention rejected not only by the Chief Justice of the

Supreme Court of Hawaii's informal statements, see Pet

App. 26, but by the District Court, the Court of Appeals

and the Master. Insofar as these rulings, generous to Part-

ington’s claims, are reviewed “with great,” United States

Hohri, 482 U.S. 64, 74 n.6 (1987), if not “rigid defer-

ence,” Posadas v. Tourism Co., 478 U.S. 328, 339 & n.6

1986), Partington’s arguments of procedural inhos-

pitality seek only to infect these proceedings with the

very sort of “plain error” that prompts reversal in this

Court. See Frisby v. Schultz, 108 S. Ct. 2495, 2501 (1988)

Given these standards of deference and restraint,

nothing in Matsuo v. State, 70 Haw. 573, 778 P.2d 332

1989), or the recent amendments to Haw. R. Penal P

40(f), which, at most, properly give more process to coun-

sel whose trial strategies survive direct review, in the

least alters the basis of dismissal. It is error to urge

otherwise. See Frisby, supra. Likewise, Judge Reinhardt’s

assessment of the Justices of the Supreme Court of Ha

waii simply ignores the findings by the District Judge

who by reason of his position has “special insights into

Withrow, 421 U.S. at 58. Here, based on

local realities,”

Partington’s own submission that the facts were not in

dispute, Judge Kay found that “[t]he plaintiff's argu-

ments fail to create even an inference of prejudice’ Pet

App. 88 (No. 89-1506)).

As to the second issue, as the panel properly found

what makes Partington’s arguments of bias especially

unmeritorious is Partington’s failure properly to employ}

the state court recusal procedures that this Court held in

Kugler v. Heifant, 421 U.S. 117 (1987), decided the same

day as the reversal of preliminary relief in Withrow, pro

vided the “procedural safeguards to guarantee that [state

litigants] will not be denied due process of law.” Id. a

128. Judge Reinhardt’s suggestion that full-panel recusal

is not contemplated under Rule 13 is simply wrong

vesting authority to review Rule 13 recommendations

the Supreme Court of Hawaii, rather than in the three

member Intermediate Court of Appeals in Rule 13 cases

referred pursuant to final order of the Supreme Court

Rule 13 simply assures that all Rule 13 cases in w! ich

review is needed are reviewed by a five member Court

Particularly in light of Pennzoil’s requirement of un

ambiguous” inhospitality in the state courts, the courts

below were fully justified in finding that Partington en

ved every necessary opportunity to litigate, and

Pennzoil remains the law, which it should, Partington has

no basis for being in federal court.°

C. Partington’s Challenges to the Asserted Immediate

Impact of the Clarke Ruling Would Overrule

Younger Itself and Do Not Merit Review.

Altnough Partington hints that the asserted immedi-

ate impact of the reversal in Clarke warrants exempting

this case from Younger’s settled mandate, each of these

arguments is predicated on the improperly imputed bias

and procedural inhospitality that the Court of Appeals

properly rejected, and which this Court, too, would be

required to reject were review granted here.

Seen in this light, Partington’s claim that review

ought be granted to correct the Ninth Circuit’s refusal to

address his “immediate impact” argument is nothing less

than a challenge to Younger’s main premise, namely, that

“the cost, anxiety and inconvenience of having to defend

against a single criminal [or important civil] prosecution,

could not by themselves be considered ‘irreparable’ in the

special legal sense of that term.” 401 U.S. at 46. Although

the Ninth Circuit did not reach this argument, the Court

of Appeals, the State officials submit, acted well within

> Thus, even if this case 1s not viewed as of the day it was

filed, see Pennzoil, 481 U.S. at 17, Partington’s recent, but pre-

mature invocations of the state court’s mandamus authority to

effect, under state law, the recusal he has been denied by

federal law (see Resp. App. 36, 49 (No. 89-1531)), are insuffi-

cient to overcome Younger abstention, as Partington “cannot

escape Younger abstention by failing to assert [his] state rem-

edies in a timely fashion.” Pennzoil, 481 U.S. at 17 n.16.

its discretion in concluding that the issue had not been

properly preserved below, insofar as Appellant’s Open-

ing Brief, contrary to Fed. R. App. P. 28 and Ninth circuit

procedure, did not inform the Court specifically where

the “immediate impact” argument was raised in the trial

court. Our main point here is that “this Court reviews

judgments, not opinions,” Chevron U.S.A. v. Natural Re-

sources Defense Council, 467 U.S. 837, 842 (1984), and the

order in Clarke, as to Partington, was not reviewable in

the inferior federal courts under the Younger doctrine.

Indeed, insofar as Partington has not been deprived of

anything to which due process precepts attach, see Paul v.

Davis, 424 U.S. 693 (1976); FDIC v. Mallen, 486 U.S. 230

(1988), and the state court has not “arrived at a final,

definitive position regarding how it will apply the [law]

at issue to the particular [conduct] in question,” Wil-

liamson County Regional Planning Comm'n v. Hamilton

Bank, 473 U.S. 172, 191 (1985), review ought be denied

because the dismissal below was required not just by the

Younger doctrine, but by the more fundamental Article II]

requirement of a ripe controversy. See Ariyoshi v. Robin-

son, 477 U.S. 902 (1986), on remand, 887 F.2d 215 (9th Cir.

1989); compare Felmeister v. Office of Attorney Ethics, 856

F.2d 529, 535-38 (3d Cir. 1988); see also Ohio Civil Rights

Comm'n v. Dayton Christian Schools, 477 U.S. 619, 629

(1986) (Stevens, J., joined by Brennan, Marshall, and

Blackmun, JJ., concurring in the judgment). As the Ninth

Circuit suggested, Partington’s “immediate impact” argu-

ment, like his remaining arguments, will be subject to

review here under 28 U.S.C. § 1257 upon any final judg-

ment in the Supreme Court of Hawaii on review of the

Rule 13 case.

Petitioner was properly remanded to seeking federal

review here “in the customary course.” Pennzoil, 481 U.S.

at 18.6

CONCLUSION

For the foregoing reasons, the writ in No. 89-1531

should be denied.

WARREN Price, III*

Attorney General

State of Hawaii _

*Counsel of Record

CoriINNE K.A. WATANABI

First Deputy Attorney General

State of Hawaii

STEVEN S. MICHAELS

Deputy Attorney General

State of Hawaii

State Capitol

Honolulu, Hawaii 96813

(808) 548-4740

Counsel for Respondents

(Petitioners in No 89-1506)

6 Minimal respect for Congress’s prescribed avenues for

review ought to require Partington to seek review of any

adverse orders in the state courts pursuant to 28 U.S.C. § 1257

See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462

(1983). Indeed, to any extent the denials of mandamus in the

Rule 13 proceeding constitute “law of the case” adverse to

Partington, they are entitled to at least deference in these

proceedings, although they are subject to review pursuant to

28 U.S.C. § 1257. Compare 28 U.S sn § 1738 with Christianson 7

’

Colt Industries Operating Corp., 108 S. Ct. 2166 (1988).

APPENDIX “A”

NO. 10041

IN THE SUPREME COURT OF THE STATE OF HAWAII

OCTOBER TERM 1984

STATE OF HAWAII,

Plaintiff-Appellee,

CR. NO. 59285

APPEAL FROM

THE JUDGMENT

AND SENTENCE

ENTERED ON

JULY 2, 1984

VS.

CLIFFORD M. M. CLARKE, SR.,

Defendant-Appellant.

FIRST CIRCUIT

COURT

HONORABLE

LELAND H.

SPENCER,

JUDGE

ee ee ee ee ee, ee ee ee ee el

FILED

1985 APR 29 PM 3:17

Sandra N. Yasui

CLERK SUPREME COURT

APPELLANT’S OPENING BRIEF*

[material deleted in printing]

|. THE TRIAL COURT ABANDONED ITS ROLE OF IM-

PARTIAL JUDGE AND ASSUMED THE ROLE OF

PROSECUTOR IN THIS CASE AS WELL AS INTER-

FERED WITH THE APPELLANT'S ATTORNEY-CLI

ENT RELATIONSHIP.

On this issue Appellant relies on the cumulative et-

fect of the trial court’s conduct and rulings set out in A

*Addenda, tables and other material deleted in printing

through F above combined with the following. At trial

the State offered a photograph (State’s Exhibit “5”) and

x-rays (State’s Exhibit “13A-F”’, “14A-B”, “15A-B”) into

evidence without having provided discovery. The trial

court admitted the photograph and the x-rays ruling that

failure to grant discovery is not a basis to exclude evi-

dence (17 May 84 R.T. 42:17-44:25, 46:17-19; 21 May 84

R.T. 101:5-102:10). When the State offered two transcripts

of the recorded interviews with Appellant’s son, the trial

court sua sponte and over Appellant’s objection recessed

into chambers where it edited the transcripts for the State

determining what portions would be admissible (21 May

84 R.T. 87:10-22, 98:23-99:6).

A trial judge presiding over a trial has the obligation

to maintain impartiality and fairness in the proceedings

before him. State v. Alfonso, 65 Haw. 95, 98, 648 P.2d 696,

699 (1982). The trial judge must not violate the basic

principle that the judicial and prosecutorial functions are

separate and distinct and are not to be merged. United

States v. Jacquillon, 469 F.2d 380, 387 (5th Cir.1972); United

States v. Marzano, 149 F.2d 923, 926 (2nd Cir.1945). It is not

the role of the trial judge who thinks the prosecutor

inadequate to step in to the point where the jury will

regard him as associated with the prosecution. United

States v. Cuevas, 510 F.2d 848, 850 (2nd Cir.1975). Con

stantly restricting the defendant beyond any bounds ot

discretion while giving the prosecutor free rein is an

example of a violation of the basic principle. Killilea 7

United States, 287 F.2d 212, 217-218 (1st Cir.), cert. den

366 U.S. 969, 81 S.Ct. 1933, 6 L.Ed.2d 1259, reh. den. 368

U.S. 872, 82 S.Ct. 64, 7 L.Ed.2d 73 (1961). And if a judge’s

conduct in a trial does not comport with the appearance

of justice, the conviction must be reversed. United States v.

Gigax, 605 F.2d 507, 510 (10th Cir.1979).

The conduct of the trial judge throughout this case

showed an extraordinary bias for the State. The prosecu-

tor was given unbridled rein to offer evidence of dubious

or no value and designed solely to show that the Appel-

lant is truly a thoroughly rotten person. Non-compliance

with the rules of discovery to the prejudice of the Appel-

lant was repeatedly sanctioned by the trial court. Where

the prosecutor did not know how to get in prior consis-

tent statement evidence, the trial court sua sponte and

over Appellant’s objection took the transcripts which

contained the statements and edited them for the State.

Appellant’s cross-examination of State’s witnesses was

repeatedly curtailed without cause and in the case of the

alleged victim’s mother it was blocked entirely unless

Appellant’s counsel wanted to cross-examine without the

vital Family Court records relating to the mother’s con-

duct with the alleged victim. And when Appellant's

counsel sought to make an offer of proof in regard to

these records, the trial court refused to accept the Family

Court material in the record. This is but the tip of the

iceberg in regard to the trial court’s conduct. Only a full

reading of the record can give a true flavor of the extraor-

dinary bias of the trial court for the State.

Finally, notwithstanding the clear statement by Ap

pellant’s counsel that both he and Appellant felt that

closing argument would be a waste of time and therefore

would not be given (24 May 84 R.T. 40:5-41:22), the trial

court said nothing at that time and then later complained

against Appellant’s counsel to the Disciplinary Counsel

for failing to make closing argument (R 242-244). Appel

cep aas

lant’s counsel was compelled by his ethical duty to advise

Appellant of this complaint which obviously infringed on

the attorney-client relationship as evidenced by Appel-

lant’s letter to the Circuit Court (R.241, 262-263) While

\ppellant recognizes that a judge has a ¢

1ttornev misconduct, here the trial court made no ef

inquire as to whether Appellant had knowingly and

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APPENDIX “B”

NO. 10041

IN THE SUPREME COURT OF THE STATE OF HAWAII

OCTOBER TERM 1984

STATE OF HAWAII, ) CR. NO. 59285

» : Bus > sO }

Plaintiff-Appellee, APPEAL FROM

VS. THE OGM NI

CLIFFORD M. M. CLARKE, SR., |

Defendant-Appellant.

FIRST CIRCUIT

COURT

)

}

) HONORABI

) LELAND H

) SPENCER

) JUDGE

FILED*

1984 NOV 9 PM 3:37

Eugene L. Sabado

CLERK SUPREME COURT

MOTION TO REMAND CASE TO CIRCUIT COURT FOR

LIMITED PURPOSE OF HEARING ON COMPETENCE

OF PRESENT COUNSEL

MOTION TO APPOINT SEPARATE DEFENSE

COUNSEL FOR PURPOSE OF SAID HEARING

COMES NOW Defendant-Appellant, Clifford M. M

Clarke, Sr., by and through his court appointed attorney

Earle A. Partington, and respectfully moves this Honor

able Court for an order remanding this case to the Circuit

“Certificate of service and other material deleted in printing

Court for the limited purpose of holding a hearing on the

competence of Defendant-Appellant’s present attorney at

the trial of this case, and to further appoint separate

counsel for Defendant-Appellant at said hearing.

These motions are made pursuant to Rule 6 of the

Rules of the Supreme Court of the State of Hawaii and is

based on Hawaii Revised Statutes Chapter 8, the attached

Memorandum of Points and Authorities, the attached

Exhibits “A” and “B”, the Affidavit of Counsel attached

hereto, and the record and file in this case.

DATED: Honolulu, Hawaii, November 9, 1984.

NO. 10041

1—E SUPREME COURT O

OCTOBER TERM 1984

STATE OF HAWAII

—

aan

STATE OF HAWAII ») CR. NO. 59285

Plaintiff-Appellee, : ER

vs THE JUDGN

CLIFFORD M. M. CLARKE, SR..

Defendant-Appellant

AFFIDAVIT OF EARLE A. PARTINGTON

STATE OF HAWAITI

CITY & COUNTY OF

HONOLULU

bk ” I~ + } , ~ r |

Karle A. Partington, being first duly sw

deposes and says the following

l [ am the court appointed attorns

on 1] aus oe ce

dant-Appellant both on this appeal and it ’

i i s 4

’ vy because my client is indigs i

re 7

[ Or COuUNSeI!

) A , y y

2 Yefendant-Appse it iS present

incarcerated since his arrest on the murder charge tor

which he was convicted

3. Because of the nature of the charge against Di

fendant-Appellant (murder of a three year old child) and

the personality of Defendant Appellant, my relationshiy

with him has not been easy. Defendant-Appellant

lieves he is wrongly incarcerated for a crime he did not

commit, and has often expressed im

: vo + ! } ys ; | . :

isfaction at my inability to get him out OF prison

P . | : — ' ,

1 sTyA Moy = sac h rr oor rrat 1h tino

+ inis Impatience NaS VeEeCN ALVLPTAVATCA DY Ue at

1 ’ , 1.)

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FURLAEK AFFIANT SAY]

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vv, vy " 2 14

, Sy~mirao

Commission Expires: 3

1Va

NO. 10041

IN THE SUPREME COURT OF THE STATE OF HAWAII

OCTOBER TERM 1984

STATE OF HAWAII ) CR. NO. 59285

APPEAL FROM

THE JUDGMENT

AND SENTENCE

)

CLIFFORD M. M. CLARKE, SR. : ENTERED ON

)

Defendant-Appellant JULY 2, 1984

) FIRST CIRCUIT

) COURT

)

) HONORABLE

) LELAND H

) SPENCER,

) JUDGE

MEMORANDUM OF POINTS AND AUTHORITIES

[hese Motions present a rather unusual situat

[he trial judge below feels that Defendant-Appellant

present counsel did not adequately represent Defendant

Appellant at trial. The trial judge did not take any actior

at the trial nor did he wait until after the appeal was over

and the attorney-client relationship terminated

action. Rather he waited only until he was no

involved in the case to complain to the Discipli

Counsel thereby causing serious problems in the

ney-client relationship on appeal

Litho . mite _| _ 1, er

hither present counsel must De relleve

ry? < rious | > 5 ' ‘T yh] TY) < ’ > ry<é

eNntS Sé OUS Que process if rOoOpiIeMS ff &

eld before further proceedings ‘

lla

Appellant seeks such a hearing and present counsel con-

curs in this in order to attempt to render harmless to the

attorney-client relationship the damage this complaint

has done. At such a hearing, Defendant-Appellant should

have separate counsel from his present counsel, and it is

requested that attorney Ray A. Findlay be so appointed

DATED: Honolulu, Hawaii, November 9, 1984

/s/ karle A. Partington

EARLE A. PARTINGTON

Attorney for Defendant-

Appellant

12a

1ST CIRCUIT COURT

STATE OF HAWAII

FILED

1984 AUG 13 AM 11:38

H. SETO

“CLERK

August 10, 1983

Clerk

Circuit Court of the First Circuit

Kaahumanu Hale

777 Punchbowl Street

Honolulu, Hawaii 96813

Re: State v. Clarke, CR. No. 59285

Dear Sir:

On August 6, 1984 I received from the Office of

Disciplinary Counsel the enclosed copy of a letter of

complaint by Judge Leland H. Spencer in the above-

entitled case. Because this letter concerns the conduct ot

the above-entitled case, which is awaiting preparation of

the Record on Appeal, I request that this letter of com-

plaint with my cover letter be filed in the Circuit court

records and included in the Record on Appeal for consid-

eration by the Supreme Court in the appeal. This letter of

complaint raises a serious issue, inter alia, as to whether

the trial judge in this case is interfering in my profession-

al relationship with my client as | am duty bound to

disclose this complaint to my client.

Sincerely,

/s/ Earle A. Partington

Earle A. Partington

Attorney for Defendant-

Appellant

Encl.

EAP: vs/ ff87

cc: Defendant-Appellant

Prosecuting Attorney

Disciplinary Counsel

13a

l4a

Circuit Court of the First Circuit

Judiciary Building

Honolulu, Hawaii

Chambers of the Third Division

August 1, 1984

DISCIPLINARY COUNCIL

1164 Bishop Street

Suite 600

Honolulu, Hawaii 96813

Gentlemen:

Re: Earle A. Partington

The case entitled, “State of Hawaii vs. Clifford M. M.

Clarke, Sr.”, Cr. No. 59285, was tried before me from May

7, 1984 to May 25, 1984. The defendant was charged with

the murder of the child of his girlfriend.

The defense counsel, Earle A. Partington, chose not

to cross-examine Debra Lynn Arcala, the child’s mother

and the State’s key witness, because he lacked possession

of Family Court records about the child and the mother

which he felt he needed for purpose of cross-examina-

tion.

By way of background, the defense had shortly be-

fore trial filed a motion with the Family Court for produc-

tion of the records and the motion was pending on May

18, 1984 when the defense had the opportunity to cross-

examine the mother. The Court denied a defense request

to continue the cross-examination until resolution of the

motion in the Family Court. The Court reasoned that the

defense had ample opportunity during the month preced-

ing the trial to seek production of the Family Court

records. The Court also reasoned that the defense would

15a

have a later opportunity to call the mother as a hostile

witness and to examine her with leading questions and to

impeach her under Hawaii Rules of Evidence 607 and

611. In this regard, the Court ordered the mother to

return for purpose of further testimony.

On May 23, 1984, the Family Court granted the de-

fense motion and defense counsel was provided with

Family Court records. Armed with the records, the de-

fense again chose not to examine the mother even though

the mother was present for purpose of further testimony.

At time for final argument, defense counsel made the

following statement in open court in the presence of the

jury:

“Your Honor, in view of there being no cross-

examination of Debra Lin Arcala, my client and

I feel closing argument would be a waste of

time.” (A copy of the transcript is attached.)

In my capacity a® presiding judge in the above case, |

am reporting Mr. Partington’s conduct to you for your

evaluation. In my opinion, his failure to give final argu-

ment and his statement in the presence of the jury that it

“would be a waste of time” constituted inexcusable viola-

tions of the Code of Professional Responsibility in at least

two respects.

First, by choosing to not argue his client’s case to the

jury, Mr. Partington failed in an extremely important

respect to perform his duty to zealously advocate his

client’s interest.

Mr. Partington states that it would be a “waste ot!

time” to argue the case to the jury, However, it is for the

jury, not the attorney, to determine whether the State had

loa

proved the defendant's guilt beyond a reasonable doubt.

Mr. Partington’s failure to at least argue that the State had

failed to prove its case constituted a clear failure to

perform his duty to zealously advocate his client’s inter-

est. His conduct is a violation of DR7-101 of the Code of

Professional Responsibility.

Secondly, by failing to give a final argument to the

jury on behalf of his client and by stating in the presence

of the jury that it would be a “waste of time”, Mr. Part-

ington intentionally attempted to make reversible error,

i.e., to prejudice his own client’s case for the purpose of

forcing an appellate court to reverse what Mr. Partington

anticipated would be a conviction. This conduct is a

flagrant violation of DR7-101 of the Code of Professional

Responsibility.

An attorney must obey the rules of law, evidence,

practice and procedure. Such rules do not permit an

attorney to deliberately prejudice his client’s case in order

(o force an appellate court to reverse an anticipated con-

viction. This type of trial conduct must receive a very

severe sanction in order to prevent a repetition from the

same attorney and to set an example and prevent such

conduct from other attorneys.

By hindsight, I was remiss in not ordering Mr. Part-

ington to give final argument on behalf of the defendant

with the sanction of contempt if he refused. My failure in

this regard should not affect your evaluation of his con-

duct under the code of Professional Responsibility.

I did not report this matter to you promptly after the

verdict in the case because I wanted to wait until sentenc-

ing was completed, post trial motion time limitations had

17a

expired and there was no possibility of further proceed-

ings before me as a presiding judge.

I fully realize that you may not agree with my eval-

uation of Mr. Partington’s conduct. The purpose of this

report to you is simply to give you the Opportunity to

evaluate his conduct and take whatever action you deem

appropriate.

Very truly yours,

/s/ Leland H. Spencer

LELAND H. SPENCER

Third Judge

LHS:tm

Attach.

18a

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

STATE OF HAWAII )

we ) CR. NO.

bins ) 59285

CLIFFORD M. M. CLARKE, SR., _ )

Defendant. | ORIGINAL

PARTIAL TRANSCRIPT OF PROCEEDINGS

held before the HONORABLE LELAND H. SPENCER,

Third Division Presiding, on Thursday, May 24, 1984

Jury Trial.

APPEARANCES:

I[ANICE FUTA For the State

-and-

EMLIN HIGA,

Deputy Prosecuting Attorneys

City & County of Honolulu

1164 Bishop Street

Honolulu, Hawaii

EARLE A. PARTINGTON, ESQ., For the Defendant

Schweigert & Associates

Suite 200, 250 S. Hotel St.,

Honolulu, Hawaii

REPORTER: SUSAN M. ECKEL, C.S.R. #12

Official Court Reporter

First Circuit Court

Thursday, May 24, 1984 2:20

(The clerk called the case.)

19a

THE COURT: All right. The record will reflect the

presence of all counsel, the defendant and the ladies and

gentlemen of the jury.

Mr. Partington, you may give your answering argu-

ment.

MR. PARTINGTON: Your Honor, in view of there

being no cross-examination of Debra Lin Arcala, my cli-

ent and I feel closing argument would be a waste of time

No closing argument

THE COURT: All right

STATE OF HAWAII

CITY AND COUNTY OF sy

HONOLULU

I, Susan M. Eckel, CSR #120, Official Court Re p

do hereby certify that the foregoing

pages complete at

and correct transcription of my stenographic notes i

ben}

above-entitled matter

Dated this 23rd day of July. 1984

s/ Susan M. Eckel

OFFICIAL COURT REPOR

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OCT. 30, 1984

Honorable Robert W.B. Chang

[amw riting this letter to you concerning my trial. |

feel that I didn’t get a fair trial because of udu Leland

Spencer being prejudice against me

| have a copy of letter that was sent to my Attorne\

charging him in not representing me good during my

trial.

Judge Spencer didn’t give my lawyer ample time to

cross examine Debralin Arcala, and making my lawyer

use Ms. Arcala as a witness in my behalf

Judge Spencer also charged my Attorney

making a closing argument at the end of my trial

At that time my Attorney Ear] Partington suggested

to me for not making a closing argument as a tactic

find pitty from the Jury at that time. | agreed because

didn’t fully understanding court procedure and tactic

Now I feel that I made the w rong decision in agree

ing with my lawyer.

Because I did want a closing argument, but took my

lawyers advice.

In the letter that | having in the matter of Judge

Spencer I feel that Judge Spencer has been interfering

with Client, Lawyer relation during the trial

eatin cincteniatiiieeeiienie

ra © |

would like to ask for a hearing in this matter

deeply appreciate a respond from you

Thank You Very Much

Clifford M. M. Clarke Sr

APPENDIX “C”

NO. 10041

IN THE SUPREME COURT OF THE STATE OF HAWAII

OCTOBER TERM 1984

STATE OF HAWAIL ) CR. NO. 59285

> . . : a )

Plaintiff-Appellee,

VS. )

CLIFFORD M. M. CLARKE, SR., |

Defendant-Appellant. )

FILED

1984 DEC -6 PM 1:30

Eugene L. Sabade

CLERK SUPREME COURT

ORDER

)

Upon consideration of Appellant's Motion to Re

mand Case to Circuit Court for Limited Purpose of Hear

ing on Competence of Present Counsel and Motion to

Appoint Separate Defense Counsel for Purpose of Said

Hearing, and documents in support thereof, and it ap

pearing that there is insufficient ground to grant leave t

withdraw as counsel for Appellant Clarke under Hawaii

Rules of Appellate Procedure 50,

IT IS HEREBY ORDERED that the motion to remand

is denied, without expressing an opinion on the issue of

effective assistance of counsel. It is unnecessary to rule on

————————————

APPENDIX “D”

NOS. 10041 AND 11633

IN THE SUPREME COURT OF THE STATE OF 1 \\)

FFORD M 4

\ WIXI M. M. ¢ ARK DIN

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Vetendant-Appellant

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26a

COMES NOW Attorney Earle A. Partington pro se

and respectfully moves this Honorable Court as follows:

1. to dismiss with prejudice the Hawaii Supreme

Court Rule 13 proceedings initiated by the court against

Attorney Partington (in No. 10041);

2. to modify the memorandum opinion of this court

filed on December 27, 1985 (in No. 10041), by withdraw-

ing all of the opinion after the first paragraph save and

except the last sentence, with reads “Reversed and re-

manded.”; and

3. to modify the memorandum opinion of the court

filed on October 5, 1987 (in No. 11633), by the deletion of

the words “because of the ineffective assistance of appel-

lant’s trial counsel” which appear in the second sentence

of the first paragraph; or;

In the alternative for disqualification or recusal of the

present justices of this court and retired Justice Na-

kamura and the appointment of substitute justices to

consider whether;

1. to dismiss with prejudice the Hawaii Supreme

Court Rule 13 proceedings initiated by the court against

Attorney Partington (in No. 10041);

2. to modify the memorandum opinion of this court

filed on December 27, 1985 (in No. 10041), by withdraw-

ing all of the opinion after the first paragraph, save and

except the last sentence, which reads “Reversed and re-

manded.”; and

3. to modify the memorandum opinion of this court

filed on October 5, 1987 (in No. 11633), by the deletion of

27a

the words “because of the ineffective assistance of appel-

lant’s trial counsel” which appear in the second sentence

of the first paragraph.

This Motion is made pursuant to Rule 27(a) of the

Hawaii Rules of Appellate Procedure and Hawaii Revised

Statutes § 601-7 and is based on the attached memoran-

dum of points and authorities and the records and files in

these cases.

DATED: Honolulu, Hawaii, January 19, 1990.

/s/ Earle A. Partington

EARLE A. PARTINGTON

Pre Se

28a

NOS. 10041 AND 11633

IN THE SUPREME COURT OF THE STATE OF HAWAII

STATE OF HAWAII, } -€K. NO. 592685

Plaintiff-Appellee, ‘

vs. )

CLIFFORD M. M. CLARKE, SR.,

)

Defendant-Appellant.

AFFIDAVIT OF DISQUALIFICATION

STATE OF HAWAII )

CITY AND COUNTY OF . SS:

HONOLULU

EARLE A. PARTINGTON, being first duly sworn on

oath, deposes and says the following:

1. I am the former attorney for Clifford M. M.

Clarke, Sr.; and I was wrongly adjudged to have rendered

ineffective assistance of counsel by this court on Decem-

ber 27, 1985.

2. The present sitting justices of this court and re-

tired Justice Nakamura have a personal bias or prejudice

against me as demonstrated by the following facts:

The present sitting justices and retired Justice

Nakamura, by the decision of December 27,

1985, prejudged the ultimate issue of ineffective

assistance of counsel without affording me prior

notice or opportunity to be heard and after de-

nying me a hearing on the issue of ineffective-

ness when such a hearing was requested on this

court by motion.

29a

3. Joseph M. Gedan, the Rule 13 proceeding special

master, has a personal bias or prejudice against me as

demonstrated by the following facts:

Gedan has a pecuniary interest, or at least the

appearance of a pecuniary interest, in this mat-

ter by virtue of the monetary judgment I have

obtained against him (and special prosecutor

Howard T. Chang) in Partington v. Gedan, 880

F.2d 116, 131 (9th Cir. 1989).

FURTHER AFFIANT SAYETH NAUGHT.

/s/ Earle A. Partington

EARLE A. RTINGTON

Subscribed and sworn to before me

this 19th day of January, 1990.

/s/ Melanie Morris

NOTARY PUBLIC, State of Hawaii

My Commission Expires: 10/5/93

[seal]

30a

NOS. 10041 AND 11633

IN THE SUPREME COURT OF THE STATE OF HAWAII

STATE OF HAWAII, CR. NO. 59285

Plaintiff-Appellee,

—

)

vs. )

CLIFFORD M. M. CLARKE, SR.,

Gefendant-Appellant. )

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Attorney Partington pro se, former counsel for Defen-

dant-Appellant Clifford M. M. Clarke, Sr., was adjudi-

cated by this court to have rendered ineffective assistance

of counsel to Defendant-Appellant during trial. The issue

of ineffectiveness was raised sua sponte by this court

during oral argument on appeal. On February 3, 1986,

this court appointed Joseph M. Gedan as special master

to conduct proceedings under Rule 13, Hawaii Supreme

Court Rules. On August 13, 1986, Gedan appointed How-

ard T. Chang as special prosecutor for the Rule 13 pro-

ceedings.

On January 11, 1990, an Order to Show Cause was

filed wherein Gedan ordered Partington and Chang “to

show cause... within ten (10) days of the date of this

Order, why the hearing in [No. 10041] should not be

scheduled to be held [on February 12, 1990].”

Having received Gedan’s Order to Show Cause, Part-

ington now moves the court to dismiss the Rule 13 pro-

ceedings and to amend its memorandum opinions in the

3la

matter specified by the motion herein or, in the alterna-

tive, for disqualification or recusal of the present justices

of this court and retired Justice Nakamura and for the

appointment of substitute justices to consider whether to

dismiss the Rule 13 proceedings and amend the court’s

memorandum opinions in the manner specified by the

motion herein.

ARGUMENT

1. Institutional Bias

In a recent opinion issued by this court, it was held

that an attorney must have “an opportunity to explain his

side of the story” before a Rule 13 proceeding can be

initiated. Matsuo v. State, 70 Haw. __, __, 778 P.2d 332,

335 (1989). Rule 13 is entitled: “Proceedings Following

Final Adjudication of Ineffective Assistance of Counsel in

Criminal Cases.” Id. n.7. An adjudication of ineffective-

ness “is premature,” the court said, “unless trial counsel

is given the opportunity to explain his reasons for [the

trial decisions in question].” Id. at 335.

From Matsuo, then, it is clear that if the issue of

ineffectiveness is raised, then the proper sequence of

events is as follows: (1) counsel is given an opportunity

to explain the reasons for the tactical decisions in ques-

tion; (2) where appropriate, a finding of ineffectiveness is

entered; (3) with the entry of such a finding, the Rule 13

proceedings commence. I/d.

In this case, however, Partington was afforded nei-

ther notice nor opportunity to explain the reasons for his

tactical choices at trial. Indeed, when Partington re-

quested such an opportunity following the trial judge’s

32a

complaint to the Office of Disciplinary Counsel imme-

diately after the appeal was taken, this court denied his

request. Nonetheless, the finding of ineffectiveness was

made, and this court referred the matter to Rule 13 pro-

ceedings. As a result, Partington was denied due process

and, contrary to the guarantees of equal protection of the

law, as set out in the Fourteenth Amendment to the

United States Constitution and Article I, § 5, of the Ha-

waii Constitution, he was singled out for treatment differ-

ent from other counsel whose effectiveness is at issue. In

other words, the court in State v. Clarke created a pro-

cedure unique to Partington in that he was denied an

opportunity to be heard prior to being adjudicated inef-

fective, while under Matsuo v. State, every other attorney

who may be adjudicated ineffective is afforded prior

notice and an opportunity to be heard.

Partington’s being adjudicated ineffective was a nul-

lity, for, in the court’s own words, such a “determina-

tion... is premature” if counsel has not been given the

opportunity to explain his decision. The instant Rule 13

proceeding, which is premised on an invalid adjudication

of ineffectiveness, should not be allowed to go forward.

The special master cannot vacate the unconstitutional and

wrongful adjudication of ineffectiveness rendered by this

court, and therefore Partington cannot be required to go

through this meaningless proceeding. The utter futility of

the Rule 13 proceeding is even more apparent when it is

realized that Defendant-Appellant has invoked the attor-

ney-client privilege, thereby silencing Partington and pre-

venting him from defending himself at any proceeding.

The attorney-client privilege is part of the right to coun-

sel clauses of the Sixth and Fourteenth Amendments to

)

33a

the United States Constitution and Article I, § 14, of the

Hawaii Constitution. Continental Oil Co. v. United States,

330 F.2d 347, 350 (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). Further only the

client can waive the attorney-client privilege. Perrigion v.

Bergen Brunswick Corp., 77 F.R.D. 455, 459-60 (N.D. Cal.

1978); see United States v. Esposito, 436 F.2d 603, 606 (9th

Cir. 1970). Defendant-Appellant flatly refuses to waive

the attorney-client privilege.

The court’s institutional bias in this case is clear

because the court ordered the initiation of a Rule 13

proceeding upon a premature and unconstitutional deter-

mination of ineffectiveness.! A supreme court justice is

disqualified from sitting in review of a case that would

require the court to review the validity of an order previ-

ously made by him. In re Estate of Beckley, 31 Haw. 150

(1929). In the face of the clear institutional bias here, the

1 Partington notes that Gedan has a financial interest in

the case. Partington v. Gedan, 880 F.2d 116, 131 (9th Cir. 1989)

(ordering Gedan and Chang to pay costs and attorneys’ fees to

Partington and amicus curiae). Consequently, Gedan is in a

conflict of interest as the special master of the Rule 13 proceed-

ings. Thurston v. Allen, 8 Haw. 391 (1892); Canon 3C(1), Code of

Judicial Conduct; see also DR 5-101, Code of Professional Re-

sponsibility.

Partington also notes that, because of Chang’s financial

interest in the case, Partington v. Gedan, 880 F.2d at 131, Chang

will be in a conflict of interest if he proceeds further as the

special prosecutor in the Rule 13 proceedings. DR 5-101, Code

of Professional Responsibility.

34a

court must dismiss the Rule 13 proceedings and modify

the memorandum opinions accordingly.

2. Personal Bias

In the alternative, Partington requests the disqual-

ification or recusal of the present justices and retired

Justice Nakamura, in accordance with the provisions of

Hawaii Revised Statutes (HRS) § 601-7(b). Under Beckley,

disqualification is mandated. The question of bias or oth-

er reason for disqualification must be settled before the

Rule 13 proceedings actually commence. In re Bouslog-

Sawyer, 41 Hav. 270, 274 (1956); see HRS § 601-7 (requir-

ing the filing lof affidavits “before the trial or hearing of

the action or proceeding”).

Following the disqualification or recusal of the jus-

tices, substitute justices should be appointed to consider

the following: whether the adjudication of ineffectiveness

was premature, and hence a nullity, for failure of the

court to ascertain counsel’s “side of the story” (Matsuo v.

State, 778 P.2d at 335); whether the Rule 13 proceedings

should therefore be dismissed; and whether the mem-

orandum opinions should be modified as set out in this

Motion.

CONCLUSION

For the reasons outlined above, the requested relief

must be granted. Further, Partington respectfully requests

prompt disposition of this Motion.

35a

DATED: Honolulu, Hawaii, January 19, 1990.

/s/ Earle A. Partington

EARLE A. PARTINGTON

Pro Se

36a

APPENDIX “E”

NO. 10041

IN THE SUPREME COURT OF THE STATE OF HAWAII

STATE OF HAWAII, ) CR. NO. 59285

Plaintiff-Appellee,

VS. )

CLIFFORD M. M. CLARKE, SR., :

)

Defendant-Appellant.

FILED

1990 JAN 26

EUGENE L. SABADO

CLERK SUPREME COURT

ORDER

Upon consideration of the “Motion to Dismiss with

Prejudice HSCR Rule 13 Proceedings .. . , to Modify

Memorandum Opinion[s] . . . or, in the Alternative, for

Disqualification or Recusal of the Present Justices and

Retired Justice Nakamura and for Appointment of Substi-

tute Justices to Consider Whether to Dismiss ... HSCR 13

Proceedings...” filed by Earle A. Partington, it appear-

ing that the motion is premature,

IT IS HEREBY ORDERED that the motion is denied,

without prejudice to any timely exceptions that may be

filed, or other timely relief that may be sought, after the

submission of the master’s decision and proposed order

to this court in No. 10041. (cf. penultimate paragraph of

Supreme Court Rule 13.)

37a

DATED: Honolulu,|Hawaii, January 26, 1990.

FOR THE COURT:

/s/ Frank Padgett

Acting Chief Justice

38a

APPENDIX “F”

PROCEEDINGS BEFORE THE SPECIAL MASTER

STATE OF HAWAII

IN RE: EARLE A. PARTINGTON ) No. 10041

) Supreme Court

) Cr. No. 59285

) First Circuit

) Court

) State of

) Hawaii

)

FILED

1990 FEB 1 AM 9:02

Sandra Yasui

CLERK SUPREME COURT

ORDER

On January 11, 1990, the Special Master issued and

caused to be served an Order to Show Cause requiring

the parties hereto, Howard T. Chang, Esq., as Rule 13

Prosecutor, and Respondent Earle A. Partington, Esq., to

file memoranda and accompanying papers by January 22,

1990, showing cause why the hearing in this proceeding

required by Rule 13 should not be held at 9:00 a.m. on the

first business day thirty (30) days following the entry of

mandate in the United States Court of Appeals in appeal

No. 87-2375, as to which rehearing was denied by the

Court of Appeals on December 22, 1989. The parties were

also requested to address other matters, denoted as fol-

lows:

(1) the need and basis for discovery, if any; (2)

the procedures the parties desire or believe they

are entitled to re: filing of briefs and proposed

findings and conclusions of law, or any other

39a

papers the parties deem required or proper, as

to all matters raised by the parties hereto, in-

cluding claims and defenses under the Constitu-

tions of the United States and Hawaii, and any

and all grounds why the Rule 13 proceeding

should be dismissed; and (3) other matters the

parties deem necessary for immediate ruling,

including, but not limited to, the desire, or right,

of the parties for an earlier or later hearing date.

Order to Show Cause at 1-2. The parties were directed to

file their written responses in the Supreme Court of Ha-

waii in appeal No. 10041 in accord with the terms of the

Order to Show Cause.

On January 16, 1990, Respondent Partington, stating

he was representing himself in this proceeding, wrote a

letter to this Special Master, stating that without re-

sponses from the Special Master to the six questions

proffered by a letter dated March 19, 1987, from Respon-

dent’s then-counsel, Boyce R. Brown, Respondent did

“not know how I can respond to your order.” Respondent

also suggested that, for this Special Master to proceed in

the case would breach Code of Judicial Conduct Canon

3C(1) and § 601-7 of the Hawaii Revised Statutes (1985),

based upon the judgment awarding certain attorneys fees

in Partington v. Gedan, 880 F.2d 116 (9th Cir.), reh. denied

(9th Cir. Dec. 22, 1989).

On January 19, 1990, Rule 13 Prosecutor Chang wrote

a letter to this Special Master, stating that he had received

a copy of the Respondent’s letter, which had suggested as

well that the judgment in No. 87-2375 disqualified Pros-

ecutor Chang from continuing as Rule 13 Prosecutor.

Prosecutor Chang stated that he had tendered the matter

40a

of his continued representation to the Office of Disciplin-

ary Counsel, and accordingly, was unable “to comply

with the Order to Show Cause within the time required.”

On January 22, 1990, Respondent Partington also

wrote a letter to this Special Master, referring to Rule 13

Prosecutor Chang’s intention not to respond to the Order

to Show Cause, stated that Partington did not intend to

respond to the Order.

On January 22, 1990, no papers as required by this

Master’s order were filed in the Supreme Court of Ha-

waii, although, on January 19, 1990, Respondent Part-

ington filed a Motion to Dismiss the Rule 13 Proceedings

and for other relief, which motion has since been denied

by the Supreme Court without prejudice.

So the record will be complete, Respondent's letter of

January 16, 1990, together with the enclosed letter dated

March 19, 1987, Rule 13 Prosecutor Chang’s letter of

January 19, 1990, and Respondent's letter of January 19,

1990, are attached to this Order as Exhibits “A” and “B,”

and “C,” respectively.

As an initial matter, communications with the Special

Master by letter are, as a general rule, to be discouraged.

If the parties desire relief or wish to be excused from an

order of the Special Master, they should file a proper

motion in this proceeding with the Special Master, or, if

appropriate, with the Supreme Court of Hawaii. For these

and other reasons, the questions in Mr. Brown’s letter of

March 19, 1987, were not, and are not at this time, re-

sponded to. The Special Master will provide appropriate

guidance to the parties after briefing of the issues con-

tained in Mr. Brown’s letter and other matters.

4la

Indeed, it was the purpose of the Order to Show

Cause to allow schedules to be set, and preliminary mat-

ters decided, in accord with the parties’ desires, and the

law, to facilitate informed adjudication. Neither party,

however, responded properly to the Order to Show

Cause. In order to give guidance to the parties, and to

allow this matter to be decided fairly, and expeditiously,

the Special Master hereby rules as foliows:

First, although no formal motion to recuse the Special

Master has been filed, the Special Master will, under the

circumstances, construe Respondent’s letter of January

16, 1990, as a motion to recuse, and will deny the motion.

The motion proceeds from the premise that the judgment

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

ing certain attorneys fees for a defense of a motion under

Fed. R. App. P. 38 in that appeal renders the Special

Master personally interested in this proceeding. As re-

spondent notes, if the federal Court of Appeals judgment

awarding fees is allowed to stand on such further review

as may be sought, all that remains is for the District Court

“to fix the amount.” Nothing the Special Master can do in

this proceeding can affect the collateral federal award,

and thus the Special Master has no personal interest in

this Rule 13 case that would prevent him from fairly and

fully judging Mr. Partington’s claims, or that would cre-

ate an appearance of impropriety warranting recusal. See

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986); Sussel v.

City and County Civil Service Comm'n, Nos. 13430, 13484

(Haw. Dec. 19, 1989).

Moreover, the motion for recusal rests on the added

premise that the Special Master is personally liable for

the fee award. This premise is not correct. The appeal in

42a

Partington v. Gedan, which sought prospective equitable

relief, was against both the Special Master and Rule 13

Prosecutor in their official capacities. See Papasan v. Al-

lain, 478 U.S. 265 (1986). Likewise, any award of attorneys

fees against appellees in Partington v. Gedan would be

against appellees in their official capacities. See Kentucky

v. Graham, 473 U.S. 159 (1973). The real party in interest

upon that part of the judgment in Partington v. Gedan

adverse to Appellees is the State of Hawaii. See Missouri

v. Jenkins, 109 S. Ct. 2463 (1989); Library of Congress v.

Shaw, 478 U.S. 310 (1986); Hutto v. Finney, 437 U.S. 678,

693 (1978) (in official capacity action “it is obvious that

the award will be paid with state funds”).! For the rea-

sons above, the motion for recusal is denied. As indicated

by the Order to Show Cause, the Special Master will give

the parties a full opportunity to present their claims.

Under the circumstances, to place the parties on no-

tice of the course of proceedings, and absent a contrary

order by the Supreme Court of Hawaii, it is hereby or-

dered that the hearing in the above-titled matter shall be

held at 9:00 a.m. on the first business day thirty (30) days

following the actual entry of mandate in the United States

Court of Appeals for the Ninth Circuit in Partington v.

Gedan, appeal No. 87-2375. The parties are well advised to

monitor the progress of the Office of the Clerk of the

United States Court of Appeals in issuing the mandate,

1 There is also a substantial claim that, given the structure

of the Court of Appeals’ ruling in Partington v. Gedan, the

propriety of a facial recusal motion such as that brought here is

procedurally precluded by the res judicata and collateral estop-

pel effects of the Court of Appeals’ decision.

43a

which has not yet issued. The parties will be notified, by

an appropriate order, of the courtroom or other place

where the hearing in this proceeding will take place.

Fifteen days before the hearing date, but not later

than March 10, 1990, the parties shall submit the follow-

ing papers to facilitate the Special Master’s adjudication

herein:

(1) Briefs addressing the first, third, fourth,

fifth, and sixth questions in Mr. Brown’s March

19, 1987, letter, stating definitively the party’s

position thereon;

(2) Proposed findings and conclusions of law,

and a hearing memorandum containing a state-

ment of the case, issues presented, standards of

review, and legal arguments, together with legal

citations and citations to proposed documentary

or testimentary evidence proposed, as to all

matters raised by the parties hereto, including

claims and defenses under the Constitutions of

the United States and the State of Hawaii, and

all grounds why the Rule 13 proceeding should

be dismissed, or why other action allowed by

Rule should or should not be undertaken;

(3) Memoranda addressing any other matters

the parties deem necessary for ruling, including,

but not limited to, the desire, or right, of the

parties for an earlier or later hearing, or post-

ponement for purposes of discovery;

(4) A list of all witnesses expected to be called,

documentary or other evidence to be proffered,

and a brief summary of the substance of the

evidence proposed;

(5) Any other documents, exhibits memoranda,

motions, or papers the parties believe appropri-

ate or necessary.

44a

A prehearing conference will be held five days prior

to the date of hearing, at 9:00 a.m. at a courtrooi or other

place to be announced. All parties shall file an original

and five copies of papers required or allowed by this

Order in the Supreme Court of Hawaii in appeal No.

10041, and under the caption as designated in the January

11, 1990, Order to Show Cause, and in this Order. Failure

to file papers in accordance with the time limits of this

Order will constitute a waiver of objection as to the

matters not presented. Formal motions in advance of

hearing will be entertained if filed up to and including

_the due date stated above for other filings. Any motion

shall state with particularity the grounds upon which it is

based, and the order or relief sought, and shall be accom-

panied by briefs, affidavits, or other papers as appropri-

ate. Motions shall be served on the opposing party by

hand delivery to the opposing party’s place of business,

and a response shall be filed within five days after ser-

vice. All papers on motions shall be filed in the Hawaii

Supreme Court in appeal No. 10041, and under the cap-

tion as designated in the January 11, 1990, Order to Show

Cause, and in this Order. The Special Master, in light of

the statements in Respondent’s letter of January 16, 1990,

considers Respondent to be now proceeding pro se. If any

other| persons are to appear for Respondent, a notice of

appearance shall be filed in the Supreme Court of Hawaii

in advance the appearance.

This order, or any part thereof, is subject to recon-

sideration if objection is filed within ten (10) days of its

entry.

The Office of the Clerk of the Supreme Court of

Hawaii is directed to serve this Order forthwith upon the

45a

parties at their present addresses, as furnished to the

Office of Disciplinary Counsel, State of Hawaii, by first

class United States Mails.

Dated: Honolulu, Hawaii, February 1, 1990.

/s/ Joseph M. Gedan

JOSEPH M. GEDAN

Rule 13 Special Master

[Exhibits Deleted]

46a

APPENDIX “G”

NO. 10041

IN THE SUPREME COURT OF THE STATE OF HAWAII

STATE OF HAWAII,

Plaintiff-Appellee,

CR. NO. 59285

VS.

CLIFFORD M. M. CLARKE, SR.,

Defendant-Appellant.

i ee

FILED*

1990 FEB 5 PM 3:05

Sandra H. Yasui

CLERK SUPREME COURT

MOTION FOR RECUSAL OF THE PRESENT

JUSTICES AND RETIRED JUSTICE NAKAMURA,

TO DISQUALIFY SPECIAL MASTER AND SPECIAL

PROSECUTOR, FOR DECLARATION AS TO THE

NATURE OF THE RULE 13 PROCEEDING HEREIN,

FOR AN ORDER REQUIRING THE ISSUANCE OF AN

ALLEGATION AND FOR DECLARATION AS TO THE

PROCEDURE BY WHICH THE PROCEEDING

IS TO BE CONDUCTED

Comes now Attorney Earle A. Partington pro se and

respectfully requests this court for relief as follows:

1) For recusal of the present justices of the Supreme

Court and Retired Justice Nakamura for the purpose of

ruling on (a) the relief sought herein, and (b) any other

matter before the court in this case, all based on the

Certificate of Disqualification filed herein on January 19,

*Certificate, Memorandum, and other material deleted in print-

ing.

47a

1990, and for the reasons set forth in the Motion filed

herein on January 19, 1990;

2) Foran order disqualifying the Special Master and

Special Prosecutor in No. 10041 for bias as set forth in the

Affidavit of Disqualification filed January 19, 1990, in

light of the Order filed by the Special Master on February

1, 1990, and the opinion in Partington ». Gedan, 880 F.2d

116 (9th Cir. 1989), that Partington has a Federal constitu-

tional right not to be subjected to a hearing before a

biased tribunal, 880 F.2d at 124;

3) For a declaration as to the nature of the Rule 13

proceeding herein in view of the confusion created as to

whether that proceeding is de novo (as argued by the

Special Master and Special Prosecutor in Partington v.

Gedan, supra), or is a dispositional proceeding only as

held by clear implication in Matsuo v. State, 70 Haw. 573,

778 P.2d 332 (1989);

4) Inthe event that the court declares in response to

Partington’s request in item (3) above that the Rule 13

proceeding against him is a de novo proceeding, it is

requested that an allegation or complaint in the matter be

served on Partington as required by Federal and state due

process of law;

5) For a declaration of the procedure under which

the hearing herein is to be conducted in view of the

Special Master’s refusal to provide Partington with notice

of same, as set forth in the Order of February 1, 1990.

This motion is made pursuant to Rule 27 of the

Hawaii Rules of Appellate Procedure, H.R.S. §601-7, and

Article I, §5, of the Constitution of the State of Hawaii

48a

and the Fourteenth Amendment to the Constitution of the

United States; and is based on the attached Memorandum

of Points and Authorities, and the records and files here-

in.

DATED: Honolulu, Hawaii, January 5, 1990.

/s/ Earle A. Partington

EARLE A. PARTINGTON

Pro Se

49a

APPENDIX “H”

NO. 10041

IN THE SUPREME COURT OF THE STATE OF HAWAII

STATE OF HAWAII, ) CR. NO. 59285

Plaintiff-Appellee,

VS. )

CLIFFORD M. M. CLARKE, SR.,

Defendant-Appellant. _)

)

FILED

1990 FEB 12

Eugene L. Sabado

CLERK SUPREME COURT

ORDER

Upon consideration of the “Motion for Recusal of the

Present Justices and Retired Justice Nakamura, to Dis-

qualify Special Master and Special Prosecutor, for Decla-

ration as to the Nature of the Rule 13 Proceedings Herein,

for an Order Requiring the Issuance of an Allegation and

for Declaration as to the Procedure by Which the Pro-

ceeding is to be Conducted” filed by Earle A. Partington,

it appearing inappropriate for this court to issue rulings

or declarations at this stage of the proceedings,

IT IS HEREBY ORDERED that the motion is denied,

without prejudice to any exceptions or other timely relief

that may be sought after the submission of the master’s

decision and proposed order to this court.

50a

DATED: Honolulu, Hawaii, February 12, 1990.

FOR THE COURT:

/s/ Frank Padgett

Acting Chief Justice

5la

APPENDIX “I”

PROCEEDINGS BEFORE THE SPECIAL MASTER

STATE OF HAWAII

IN RE: EARL A. PARTINGTON ) No. 10041

) Supreme Court

) Cr. No. 59285

) First Circuit

) Court

) State of

) Hawaii

)

FILED

1990 FEB 27 PM 2:58

Sandra H. Yasui

CLERK SUPREME COURT

AMENDMENT TO ORDER OF FEBRUARY 1, 1990

Based upon respondent's application, the applicable

Rules and law and the record to date the Special Master

makes the following determinations:

1. The findings in the Memorandum Opinion

of the Supreme Court dated December 27, 1985

reversing and remanding the underlying case

were necessary to adjudicate the rights of the

Appellant Clifford M. Clarke and with respect

to the conduct of the counsel were an expression

as to the state of the record for the purpose of

that adjudication only. Rule 13 was initiated for

the purpose of having a special master make an

independent judgement on that same record

with an opportunity for the respondent to offer

evidence and argue in his defence. The Special

Master therefore orders that these proceeding

are to be de novo without regard to any stated or

implied judgement by the Court on the conduct

of counsel.

52a

2. The five items enumerated in the Court's

Memorandum Decision is the conduct which is

at issue. The respondent has taken the position

(1) that his conduct was not occasioned by ne-

glect and (2) has not taken issue with the

Court’s finding that, absent justification as trial

tactics, conduct of counsel would not be within

the range of competency demanded of attorneys

in criminal cases. The respondent’s Answer filed

March 25, 1986 takes the position that respon-

dent’s actions were justifiable and appropriate

as trial tactics. Unless the respondent amends

his answer the Special Master shall consider

items (1) and (2) of this paragraph as admitted

and that justification as trial tactics as the initial

determination to be made.

The prosecutor shall have the burden of proving

by a preponderance of evidence that from the

record there appears no justifiable trial tactic

which would warrant the conduct of counsel.

That record does not contain any explanation by

respondent of the tactical considerations. The

respondent shall have the burden of going for-

ward with the evidence demonstrating the tacti-

cal considerations underlying his conduct.

The respondent in his answer claims that be-

cause of the attorney-client privilege he is pre-

cluded from discussing the reasons or the

circumstances for his tactical decision. Upon ap-

plication by respondent the Special Master will

continue the these proceedings to allow respon-

dent to ask for an opinion from the Disciplinary

Counsel on that matter. Respondent shall by

March 9, 1990 advise the Special Master (1)

whether he has or will ask the Disciplinary

Counsel for an opinion, (2) if a continuance is

requested for that purpose, (3) of the extent to

which he will go forward with the evidence, and

(4) of any other relief sought.

53a

3. The prosecutor shall respond by March 16,

1990 and a pretrial hearing will be held on

March 19, 1990 at 9:00 at a site to be designated

at which time the Special Master will hear argu-

ment on any motions and set a discovery and

hearing schedule.

4. The respondent and the prosecutor, subject

to the approval of the Special Master may agree

to modify the terms of this order.

5. To the extent it is inconsistent with this Or-

der, the Order of February 1, 1990 is amended

and the provisions of the full paragraph on page

6 of that order is withdraw.

DATED: Honolulu, Hawaii, February 27,

1990.

/s/ Joseph M. Gedan

Joseph M. Gedan

Rule 13 Special Master

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.