Petition for Writ of Certiorari — Hubbard v. Kiefel

Supreme Court brief1971

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1 1ORARY.

eupReMe COURTs Ux

Supreme Court, U.S,

FILED

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E, ROBERT SEAVER, CLERK

IN THE

Supreme Cour: of the Gnited States

Ocroser TERM, 1970.

No. 149 8

REESE HUBBARD,

vs.

DONNA M. KIEFEL,

Petitioner,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Peter Firzpatrick,

Ten South LaSalle Street,

Chicago, Illinois 60603,

CE 6-3914,

FREDERICK W. TEMPLE,

221 North LaSalle Street,

Chicago, Illinois 60601,

RA 6-2500,

Counsel for Petitioner, Reese Hubbard.

THE GUNTHORP-WARRER PRINTING COMPANY, CHICAGO

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INDEX.

PAGE

Citations to Opinions Below ................0.ecces 1

I ire Gs cera n kan cc cau kc i ua eckcnuan ie ks et 2

oo era rare ree ee a ree eae 2-4

Statutes, Rules, and Constitutional Provisions In-

a. Pe rte Dee err tee rt te eer ear 4

ED SE I can ck acc ke yckasSuucanancne 5-13

ee PERE OLA KE RKARK AA UARS MAN ER OORG 7

Re Be RIN 6k. vhs ccc ccc cba sun dkune 7

The Charges of Misconduct Against Petitioner .. 7-13

1, What the Record Shows as to Charge 1 ...... 8-10

2. What the Record Shows on Charge 2....... 10-11

3. What the Record Shows as to Charge 3...... 11-13

Reasons for Granting the Writ; Arguments in Support

pg Re Or yee aa pes ft ne rag iy Gap Dae, e 13-32

bi Te EE 5 Loos dc Ws a sae hee ee exons 13-17

2. Mividentiary Hearing .......00csccsescecess 17-24

3. Improper Use of Past Decisions ............ 24-27

Di ile asad odes ce lsiteel ica 27-29

5. The Independence of the Bar ............... 29-32

RE Wi VCUls bare hg takes ba woue cee 33-34

CITATIONS.

Table of Cases.

Barber v. Page, 390 U. S. 719, 721, 88 S. Ct. 1318, 1320,

ee Rs RR nrc 18

Bartholomew v. Davies, 276 III. 505, 514-515, 114 N. E.

er ED 50 boy 6S a ee eh os Re we Se 31

Berger v. Calif., 37 U. S. Law Week 3247, 393 U. S.

314, 89 S. Ct. 540, 541, 21 L. Ed. 2d 508, 510 (1969).. 18

Boddie v. State of Connecticut, 39 L. W. 4294, 4295-6

SE Sie Cae ry Ai a5 oo hee Oe oe ee eas 34

Bone v. Walsh Construction Co., 235 F. 901 (S. D.

Dg yao ea tas eae a 32

Brotherhood of Loc. Fire & Eng. v. Bangor & Aroos-

tock R. Co., 280 F. 2d 570, 581 (D. C. Cir. 1967).... 18

Burnet v. J. Rogers Flannery & Co., 286 U. S. 524, 52

S. Ct. 497, 76 L. Ed. 1268, reversing 3 Cir., 54 F.

2d 369 PECECESSECBSCIOCZIECSCTOCECCOOEEESEEAALEE LE 2

Cammer v. United States, 350 U. S. 399, 76 S. Ct. 456,

Re eS oo a oe oo tee 30

Casey v. Sawyer Biscuit Co., 163 Ill. App. 145 (1911). 13

Clark v. Chicago Rys. Co., 192 Ill. App. 358, 360 (1915) 13

Consolo v. Federal Maritime Commission, 383 U. S.

607, 616, 16 L. Ed. 2d 131, 138-139, 86 S. Ct. 1018

Bo eee eee rk er ee ee pee nee 28

Cooke v. United States, 267 U. S. 517, 539 . .14, 16, 18, 23, 32

Deming v. Carlisle Packing Co., 226 U. S. 102, 57 L. Ed.

Re Ae ate ere pe eren aan eee 28

DeParcg v. U. S. District Court for Southern Iowa,

200 F. 20 GO2 (Sth Cir. 1966) ........ 0c ccccsscces 30

ili

Fleischmann v. Maier Brewing Co., 386 U. S. 714, 87 S.

Ct. 1404, 18 L. Ed. 2d 475 (1967) ...........46. 4, 27, 28

Globe Construction Co. v. Brewer, 197 F. 2d 707, 708-

RG We, | rer rrPrerr yr Try rrr ert TT yyy 29

Greene v. McElroy, 360 U. S. 474, 3 L. Ed. 2d 1377, 79

BS. Ce 100 Ce is a A ec eee 18

Gregory v. City of Chicago, 394 U. S. 111, 89 S. Ct.

ee ae ee he Berry yee errr sre 24

Groppi v. Wisconsin, 39 L. W. 4150, 4152 [1/25/71]

91 T Ch Oe, oi. 22. cece eee 16

Gold Dust Corporation v. Hoffenberg, 87 F. 2d 451 (2d

Ae. SERGE ec ie Ree ea ee a 32

Hendler v. Wolozin, 105 Ill. App. 2d 132, 245 N. E. 2d 74

(1969), cert. den., 396 U. S. 929 .......... kéxsanes 26

Holt v. Virginia, 381 U. S. 131, 14 L. Ed. 2d* 290, -85

B.. t, 00G CEGR) bee en oe eee 18

Kendall v. Lamberg, 69 TUL. 356 .....0:.cccccecsesess 13

Mangan v. Broderick & Bascom Rope Co., 351 F. 2d 24

ite a. kre rnr rr Tr yer ere rior sr: 25

Mastin v. National Tea Co., 278 Ill. App. 60 (1934)... 138

Mayberry v. Pennsylvania, No. 121, 39 L. W. 4133, 91

Bi eee ree ere rer err Tre. Chr ry y 2, 13, 15, 16, 17, 18

Re McConnell, 370 U. S. 230, 82 S. Ct. 1288, 8 L. Ed. 2d

434 (1962), reversing 294 F. 2d 310 (C. A. 7, 1961) . .30, 31

Mereer v. Theriot, 377 U. S. 152, 153-154, 12 L. Ed. 206,

208, 84 S. Ct. 1157 (1964) ...... cece cece cece ee enee 2

Michaelson v. United States, 335 U. S. 469, 474-475, 69

S. Ct. 213, 93 L. Ed. 168, 172 (1948) ..........60.. 27

Mokrzycki v. Olson Rug Co., 28 Ill. App. 2d 117, 124,

5S Sie He Ae 25

Motion Picture Patents Co. v. Steiner, 201 F. 63 (2d

ie 5k 64 6G Ree Ree head i x SERS aew A 32

In re Murchison, 349 U.S. 133, 99 L. Ed. 942, 75 S. Ct.

ery ets his Sas 18

Nehring v. Ricker, 126 Ill. App. 262 (1906) .......... 13

Neusus v. Sponholtz, 369 F. 2d 259 (C. A. 7, 1966) .... 25

Re Oliver, 333 U. S. 257, 275, 92 L. Ed. 682, 68 S. Ct.

Oe UD ack bo havea ckaess ¥eeinrs 16, 17, 18, 23, 29, 32

People v. Sorge, 301 N. Y. 198, 93 N. E. 637, 639 ..... 25

Pinkstaff v. The Pennsylvania R. Co., 23 Ill. App. 2d

907, 007-24, 163 N. EF. 2d 728 (1959), affirmed 20 Ill. 2d

193, 170 N. KE. 2d 139 (1961) cert. den. 365 U. S. 878,

Be te RC OED Kio Choke bess La dauakdaasnce 13

Pointer v. Texas, 380 U. S. 400, 13 L. Ed. 2d 923, 85 S.

oe ere pera Ce er ae ee eee 18

Quality Molding Co. v. American Nat’! Fire Ins., 287

ee ee a By ine £444 5 5h ck cc amie ceca 24

In re Realty Associates Securities Corporation, 53 F.

Dene. ia: (iy OM Ms Es 2048) see eevee sess s 32

In re Ruffalo, 390 U.S. 544, 20 L. Ed. 117 (1968)... .18, 24

Sk: on v. Manning, Maxwell & Moore, 127 Ill. App. 2d

145, 156, 262 N. KE. 2d 146 (1970) ................ 25, 26

Tauber v. Gordon, 350 F. 2d 843, 847 (C. A. 3, 1965).. 23

Widger v. U.S., 244 F. 2d 103, 107 (C. A. 5, 1957).... 23

Willner v. Committee on Character & Fitness, 373 U.S.

96, 103, 105, 83 S. Ct. 1175, 10 L. Ed. 2d 224, 229,

ee ND ihc ries ha ah Kk nee bb enol 17-18

Wisconsin v. Constantineau, No. 95, 39 L. W. 4128

Ms: By BOER Ss. OE ee ROE os cased bccdedantvdas 33-34

Statutes, Rules and Amendments: Cited.

ee en's a cc wk kk Ka RAE Ona 6 wes 3, 4, 19, 29, 32

Re | Gere Gack cnweahn 4,19

ee ee ta Gan ks ced ece esas wawdadnawes 4, 28

EE TARGA. Ck RaSh Neda kand wed Oe ceks es 4

eee CKUL GA CK MA CAs Kak OOdew ENS Kea 4

SR a CAAA cc VASSKKRKANAec a Gescnee 3, 4, 29, 32

Cine a aM hawedkk eb ses ect ou bak 4,11

re LAA GAA MA wh ake 60S 00ee 8m 4

eae kA RK RRK CAN A MNase ees ees s 4,21

TE ae on ca Gk wh AS bk GAMA ens ee eae an 4

8 8 SS Re Ae Cee eee 3, 4, 18, 21, 29, 32

Rule 39, Federal Rules of Appellate Proceedure ...... 4, 28

Amendments to the United States Constittution:

AOE Pe ES Pty Nee eee eee oe ee ee ee 3, 4

ER A AA OA ee ee eee eee 3,4

ME AREA MAAS LAAGMONRAS MEK S CABAL CRRA DTS ROOTS 3, 4

Other Authorities.

Best’s Recommended Insurance Attorneys sy9¢q 1070) 7

Comment, 78 Harvard L. Rev. 426 (196/4) .......... 27

Martindale-Hubbell Law Directory (19711), p. 81 ..... 7

5 Moore, Federal Practice § 52.05(5) .. ............. 22

Comment, 10 Rutgers Law Review 531, 532 (1956)... 27

Stern & Gressman, Supreme Court Practice (4th Ed.

ee SS ol ty ery ee Pree 2

Comment, 70 Yale L. J. 763 (1961) ....... Peer 27

1 Wigmore on Evidence, § 57, p. 546 ... ..........-.. 27

3 Wigmore, Evidence §§ 896-918 (3rd Ed. 1940) ..... 27

3 Wigmore on Evidence (3rd Ed. 1940) § 1023 (‘‘Cross-

Exemination to Self Contradiction, W’ithout Extrin-

OO TR Dhan eksa ccd ca ciscadbetexerdoacis 25

~ Cryo Re

REE PTE

ee Ae Eras rene Sees te

IN THE

Supreme Court of the Anited States

Ocroser Term, 1970.

No.

REESE HUBBARD,

Petitioner,

vs.

DONNA M. KIEFEL,

Respondent.

PETIION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Petitioner, Reese Hubbard, prays that a writ of cer-

tiorari issue to review the judgments of the United States

Court of Appeals for the Seventh Circuit entered in cases

15976, and 18157 (Consolidated).

CITATIONS TO OPINIONS BELOW.

The memorandum opinion of the District Court (A. 35-41)

is reported in 39 F. R. D. 592-596 and is printed in Append-

dix ‘‘B’’, pp. A. 11-A. 18.*

The opinion of the United States Court of Appeals for

the Seventh Circuit on the first appeal is printed in Ap-

pendix ‘‘B’’, hereto, pp. A. 19-36, and is reported in 404

F. 2d 1163-1172.

The opinion of the Court of Appeals on the second appeal

is printed at pp. A. 39-42.

*The reference ‘‘A.’’ throughout this petition is to our sep-

arately-bound Appendix.

JURISDICTION.

The judgment of the Court of Appeals on the second

appeal was entered on December 23, 1970. (A. 39.)

The judgment on the first appeal was entered on Novem-

ber 15, 1968. (A. 19.) Rehearing timely sought was denied

on January 6, 1969.*

An uncontested motion for a stay of mandate was denied

by the Court of Appeals on January 20, 1971, but allowed

by Justice Thurgood Marshall on February 5, 1971.

The jurisdiction of this Court is invoked under 28

U.S. C., Section 1254(1).

QUESTIONS PRESENTED.

1. May a federal judge, long after the trial of a civil

case, summarily punish a trial lawyer for ‘‘objection-

able trial strategy’’ through a substantial judgment,

under the guise of ‘‘costs,’’ without according that

lawyer an evidentiary hearing as to disputed factual

issues?

2. Can 18 U.S. C., § 1927, be extended to authorize such

a procedure?

3. Under Mayberry v. Pennsylvania, No. 121, 39 L. W.

4133, was not the trial court required to refer plain-

tiff’s motion for ‘‘costs’’ and ‘‘attorneys’ fees,’’ to

* Nore: Following the first appeal, certiorari was sought un-

successfully at that interlocutory stage of these proceedings.

Cert. den. 395 U. S. 908.

We have filed the petition in the recognition that this Court

has often denied certiorari at an interlocutory stage of proceedings,

but later granted it, to review the entire proceedings, when ulti-

mately there was a final judgment. See, e.g. Burnet v. J. Rogers

Flannery & Co., 286 U. S. 524, 52 S. Ct. 497, 76 L. Ed. 1268,

reversing, 3 Cir., 54 F. 2d 365; Mercer v. Theriot, 377 U. S. 152,

153-154, 12 L. Ed. 206, 208, 84 S. Ct. 1157 (1964) ; Stern & Gress-

man, Supreme Court Practice (4th ed. 1967), p. 27.

another judge because of the ‘‘marked personal feel-

ings’’ of the court toward petitioner, which had already

prompted him to decline to retry the case?

. Is not a lawyer, accused of misconduct during the

trial of a lawsuit, entitled as a matter of fairness, and

due proce: 3, to:

(a) advance notice of the charges to be defended ;

(b) an opportunity to confront and cross-examine his

accusers ;

of his factual statements made during trial, and

(d) specific findings of fact and conclusions of law

which would structure the issues on appeal?

. Were not petitioner’s rights violated, although the

proceeding was called costs, rather than contempt?

. Does 28 U.S. OC. § 1927 create a new category of tax-

able ‘‘costs,’’ or does that section simply shift to an

attorney the burden of paying such items of ‘‘costs’’ as

might otherwise be taxed to the client?

. Does any other rule or statute permit taxation of at-

torneys’ fees on appeal as costs? Or, does the policy

of Fleischmann v. Maier Brewing Co., 386 U. S. 714, 87

S. Ct. 1404, 18 L. Ed. 2d 475 (1967), extend to at-

torneys’ fees on appeal?

. Was it not error, and a denial of due process, to re-

ceive opinions from several past cases, in which pe-

titioner was not a party, as evidence of ‘‘objectionable

trial strategy’’? Did not the Court of Appeals com-

pound that error by basing its decision on matter which

was neither urged to, nor relied on by the trial court?

Is such a change of theory at the review level con-

stitutionally permissible?

9. Does not this entire proceeding to punish a lawyer

summarily effectively nullify a statute especially en-

acted to protect the independence of the bar? 18

U.S. C. § 401; Rule 42, F. R. Cr. P.

Are not the courts bound by the strong public policy

of that statute, which was intended as the only way to

punish a trial lawyer?

STATUTES, RULES, AND CONSTITUTIONAL

PROVISIONS INVOLVED.

The following statutory provisions, reprinted in Ap-

pendix A., pp. 6-9 are involved: 18 U. S. C. A. § 401 (p.

A. 6); 18.U. S. C. A. $ 1503 (pp. A. 6-7); 28 U. S. C. A.

$1912 (p. A. 7); 28 U.S. C. A. § 1913 (p. A. 7); 28 U.S.

C. A. § 1920 (pp. A. 7-8); 28 U. S. C. A. § 1928 (p. A. 8);

28 U.S. C. A. § 1927 (p. A. 9)

Amendment VI (p. A. 9); Amendment VII (p. A. 9); and

Amendment V (p. A. 10) to the United States Constitution

are involved.

Rules 50 (pp. A. 1-2); 43 (p. A. 2); 52 (pp. A-2-3); 61

(p. A. 3) of the Federal Rules of Civil Procedure are in-

volved. Rule 42 (p. A. 4) of the Federal Rules of Criminal

Procedure is involved. Rule 39 (a, ¢, d, e) of the Federal

Rules of Appellate Procedure (pp. A. 4-5) is involved.

STATEMENT OF THE CASE.

Petitioner was defense counsel is a personal injury suit

which was tried twice in U. S. District Court for *»e North-

ern District of Illinois.

The district court had jurisdiction by reason of diversity

of citizenship.

The first time, in November, 1965, there was a verdict of

not guilty. The second time, in January, 1967, there was

a verdict of $100,000. (A. 19-36.)

The two trials were before different judges ((1) Robson,

and (2) Decker). The second trial resulted because the first

trial judge (in February, 1966) granted a new trial because

the court found that petitioner had been guilty of ‘‘objec-

tionable trial strategy’’ in several instances. (A. 11-18,

infra.) At that time, the court ‘‘disqualifie[d it]self’’

from any further proceedings in the case. (A. 79.)

Some eight months later (October, 1966) the same judge

[Robson], as a sort of addendum to his prior grant of a

new trial, reentered the .ase, and summarily entered a

judgment for $8,171.56 in costs and attorneys’ fees, against

petitioner personally, for ‘‘objectionable trial strategy.’’

(A. 43-45, 83.) a

The plaintiff’s motion for costs and attorneys’ fees was

not filed until many months after the grant of the new

trial, and the court’s order disqualifying itself. (A. 81.)

Petitioner denied the charges, and demanded trial there-

on, before a jury, or a different judge. ( A. 79, 82.) Both

requests were denied. (A. 80, 83.)

ae ea FT QO ARLE FRI ER IS

Judgment was entered summarily, without any sort of

evidentiary hearing, at which petitioner could confront his

accusers, or present evidence corroborative of his state-

ments of fact during trial. (A. 43-45; 83.) Nor were

there any findings of fact and conclusions of law which

might structure the appeal. (A. 11-18; A. 43-45.)

The first opinion of the Court of Appeals reduced the

award against petitioner from $8,171.56 to $1,741.20, by

eliminating the trial court’s award of attorneys’ fees, and

deposition travel expenses.

But, it then increased plaintiff’s recovery by allowing

plaintiff’s counsel their printing fees on appeal, $1,860.80,

by remanding the case for an award to plaintiff of a sum

up to one-third of their legal fees on appeal. (404 F. 2d 1163

at p. 1171; A. 19-36.) All of these awards were ordered

against petitioner personally, and not against his client.

On remand the trial court [Decker] entered judgment

for $1,741.20, pursuant to the directions contained in the

opinion of the Court of Appeals. (A. 33, 46a.) That

judgment and the judgment of $1,860.80, in printing costs,

inserted in the mandate of the Court of Appeals, were paid

at that time. (A. 46, 46a.) After a short hearing on

the value of plaintiff’s counsel’s services on appeal, the

court entered judgment for $4,000 in attorneys’ fees.

(A. 46, 46a.)* A $5,000 bond was set and filed.

On appeal those judgments were affirmed, on December

23, 1970. (A. 39-42.)

Petitioner seeks review and reversal of the three judg-

ments: $1,741.20 (‘‘costs’’); $1,860.00, printing expense

from first appeal; and $4,000.00, attorneys’ fees. (Infra, p.

A. 46, 46a.)

* NoTE: This award is in addition to the $46,974.58 received:

by plaintiff’s counsel out of the $117,436.47 paid to plaintiff, in

the injury action.

be-

Petitioner.

Petitioner is a trial lawyer in the City of Chicago, of

very wide experience. Since his graduation in 1935 from

the Harvard Law School, he has specialized in the repre-

sentation of numerous insurance companies, in the defense

of personal injury cases.* Thirteen sitting trial judges of

both the state and federal Bench gave evidence of his hon-

orable conduct and fairness as a lawyer. (A. 47-59.)

Personal Injury Action.

Donna Kiefel, plaintiff, was seriously assaulted in her

hotel room at the Las Vegas Hacienda and sustained severe

personal injuries. She sued Hacienda for $1,000,000. Her

then husband, sued for loss of consortium, but his action

was dismissed the morning of trial.

The Las Vegas Hacienda, defendant herein, was insured

by one of petitioner’s clients, '"he Royal Indemnity Com-

pany.

On their behalf petitioner acted as trial counsel in both

trials.

The Charges of Misconduct Against Petitioner.

The first trial judge described the three critical ques-

tions in the injury case as follows (A. 12):

(1) Who inflicted the injuries, her husband or an in-

truder?

(2) If an intruder, did he gain entrance through plain-

tiff’s contributory negligence by virtue of an unlatched

*Nore: II Martindale-Hubbell Law Directory (1971), p. 81

(a. v.); Best’s Recommended Insurance Attorneys (1969-1970),

p. 225) (Petitioner is a member of the International Association of

Insurance Counsel, and regularly represents some 20 major insur-

ance companies, including the Royal Liverpool Group, on whose

behalf petitioner was retained in this case).

door, or plaintiff’s negligence due to intoxication, or other

circumstance?

(3) Did the assault proximately result from defend-

ant’s negligence in failing to provide an adequate lock on

the door, or in not maintaining sufficient security guard in

the corridor?

In the same memorandum, the trial court said that it was

allowing plaintiff’s motion for a new trial because it felt,

‘‘the jury might or could have been influenced’’ by ‘‘objec-

tionable trial strategy’’ of petitioner in the following three

particulars (A. 15-17):

(1) Insinuating in his opening statement, and in cross-

examination of Carl Kiefel, that the plaintiff and her hus-

band had an altercation, which defendant would prove by

the husband’s statement to a telephone operator [Dixie

Tracy], and then failing to make the promised proof.

(2) Failing to file the uncertified deposition of a defense

witness [Hamlin].

(3) Precluding the court appearance at the Chicago

trial, of Stella Butterfield, the Las Vegas court reporter,

who took the Hamlin deposition and an out-of-court state-

ment from Hamlin.

1. What the Record Shows as to Charge 1 (Failure to Prove

Matter in Opening Statement).

Plaintiff was assaulted with a champagne bottle about

5:20 a.m. on March 1, 1962. It was one of four which had

been sitting on a table in the room. She was in bed at

the time.

Her husband testified that he was still down in the casino

gambling.*

* Norte: Between the trials, the Kiefels were divorced. He did

not testify in the retrial.

Pretrial investigation showed that between 2:00 and 6:15

a.m., he had made a series of about 14 attempted telephone

calls from a booth in the lobby, to his room. The telephone

operator [Tracy] asked him why he did not get a key from

the desk. He replied that his wife had put the chain on,

because they had had words, and he could not get in.

Plaintiff’s counsel took the statements of the proposed

witness before trial and her name was on the pretrial

witness list.

On the morning of the opening of trial, Carl Kiefel was

dismissed as a party to the suit. However, the pretrial order

was not amended to delist the witness.

Petitioner therefore described, without objection, the

Tracy evidence in his opening statement. (A. 60-64.)

Further, he brought her from Las Vegas to Chicago, to

testify.

Petitioner could not present her evidence, because the

court had ruled, during another witness’s testimony, that

he would not permit anything Carl Kiefel said outside

his wife’s presence, to be shown.*

‘“‘The Court: To anything that he said the objection will

be sustained.’’

Further, when petitioner had attempted to cross-examine

Carl Kiefel about the conversation with the telephone op-

erator, the court sustained objection.

Though Kiefel had been dismissed as a party to the suit,

petitioner believed that Kiefel’s declarations were still

admissible under three well-established exceptions to the

hearsay rule. Ample authority supports his actions. This

*Nore: The maid, who admitted Kiefel to the room with her

latchkey, after the occurrence, was barred from testifying that

Kiefel had told her that he had given his wife the key, and directed

her to leave the door unlocked for him,

authority was cited to the trial courts and Court of Ap-

peals.*

All other matters in the opening statement were proved.

Plaintiff herself admitted that the ‘‘light from the bath-

room shone on his [the attacker’s] face.’’

No objection was ever made to the opening statement

until after verdict.

2. What the Record Shows on Charge 2 (Failure to File Hamlin

Deposition).

After the occurrence, and while a hospital patient, plain-

tiff admitted to five different people that she had left the

door unlocked, for her husband. One person to whom she

made the statement was a nurse, Sharon Hamlin, who

recorded the conversation in the hospital record.

Petitioner naturally wanted to present her as a witness,

but it was uncertain whether she could come to Chicago

to testify, since she was a young married woman with a

baby. Accordingly, her deposition was taken in Las Vegas,

before reporter Stella Butterfield on October 22, 1965. One

of petitioner’s partners, Frank Hall, flew out to Las Vegas

and took the deposition. The place of the deposition was

the office of Singleton, Delanoy & Jemison, a law firm which

frequently represented the Royal Liverpool Group of insur-

ance companies, petitioner’s client in this case. See ‘pp.

12, 13, mfra.

Late in October, the reporter brought it to the deponent

for signature, and it was signed. It was not certified, since

Butterfield had forgotten her seal. Butterfield thus left

it with Hamlin.

A few days later, on November 4, 1965, two days after

* Nore: The section of our brief in the Court of Appeals list-

aa on this point is reprinted in the Appendix,

the start of trial, Hamlin came to Chicago, and had it ~vith

her, uncertified, and left it at petitioner’s office.

She then went to her family home in Baltimore, Mary-

land. Twelve days later, on Novembez 16, 1965, she testi-

fied in this case.

While she was gone, petitioner had the deposition re-

turned to Las Vegas for certification.

Petitioner’s statements to the court about the where-

abouts of the deposition were corroborated by the testimony

of Hamlin, as well as by the factual assumption of the

plaintiff’s counsel’s questioning at the second trial.*

Further, petitioner had neither the right, nor the duty,

under Rule 30 (e, f), A. 1, 2, to file the uncertified deposi-

tion. Indeed, the rules do not contemplate that anyone,

but the reporter, shall have or file the original of a deposi-

tion.

It was never clear that the witness could stay away

from Las Vegas long enough to testify. Her child was ill.

She stayed away nearly two weeks before testifying. Rule

30(f), F. R. C. P., required that the deposition be certified

and filed by the reporter (Butterfield), if it were to be used

by petitioner as evidence.

3. What the Record Shows as to Charge 3 (Precluding the Court

Appearance of Stella Butterfield).

Hamlin finally testified on November 16, 1965, the next

to the last day of trial. Ptaintiff’s counsel, thereupon,

sought unsuccessfully to bring Butterfield, the reporter, to

*Nore: The only apparent contradiction is contained in a

deposition of Butterfield, taken months later out in Las Vegas,

on another aspect of the case, by counsel who were unfamiliar with

the precise question involved.

After the first trial, the deposition was shuttled back and forth

in Las Vegas, between Mrs. Hamlin and Mrs. Butterfield, for

review, resignature and certification. The deposition was not taken

in a sufficiently systematic way as to detail the precise chronology

of events.

Chicago from Las Vegas to impeach Hamlin about an out-

of-court statement she was alleged to have given in Septem-

ber, 1965 at her house.* He wanted to put her on on the

morning of November 17, 1965, the last day of the trial, as

a rebuttal witness.

The post trial motion contained an affidavit by Jacobson

[plaintiff’s counsel] that he called Butterfield on the after-

noon of November 16, 1965, asking her to fly east and

testify, and that she agreed. About 9:30 p.m., the affidavit

continued, she called back to say she had purchased her

ticket, but that an attorney named Singleton refused to

release her from a deposition set for the next morning.

Jacobson’s affidavit continues, that he then called Singleton

at his home (about 10:30 p.m.) asking rescheduling of the

deposition, and was flatly refused.

Petitioner categorically denied having anything to do

with any of the foregoing events. (A. 82-83.)

His demands to cross-examine Jacobson and to present

evidence corroborative of his denial were refused. (A. 82-

83.)

Neither Singleton, nor Butterfield, ever testified. Butter-

field, however, gave a deposition, before retrial of the case,

in which she denied talking to Jacobson personally (only

his office girl), denied purchasing a ticket (only checked the

flight schedule), and denied agreeing to come to Chicago

on November 17.

All she agreed was to try to find a substitute reporter

for Singleton’s previously-scheduled deposition. Unable

to find a substitute reporter in Las Vegas, she asked the

office of Singleton, Delanoy & Jemison to reschedule the

deposition. They refused, she said, statine that it was ‘‘a

very important case.’’

* Note: the impeachment issue was simply whether two answers

made by Hamlin in the tendered transcript were verbatim accurate.

The witness had stated that the transcript, which she had never

before seen, was ‘‘substantially correct.’’

om Saas aaa ST ER EE Pe

SEO ESN IER RAR, PLIES OOD

It is uncontradicted that Jacobson never contacted peti-

tioner, to inform him of the problem, and ask him to inter-

vene with Singleton.

Nor did plaintiff’s counsel move to obtain the reporter’s

[Butterfield] appearance on November 18 [a Friday], when

it became apparent that she could not make it to Chicago

by November 17 [a Thursday].* Indeed, even if Singleton

had agreed at 10:30 p.m., Nov. 16, 1965, to Jacobson’s re-

quest, it is doubtful that Butterfield could have flown to

Chicago and testified before Friday, November 18.

Plaintiff’s counsel, however elected to go to the jury on

November 17, without her testimony.

Such other factual matters as are relevant are stated in

connection with the several points urged for certiorari and

reversal.

REASONS FOR GRANTING THE WRIT; ARGUMENTS IN

SUPPORT THEREOF.**

Impartial Court.

Review should be granted, because the decision below

is in direct conflict with Mayberry v. State of Pennsylvania,

No. 121, 91S. Ct. 499, 39 L. W. 4133 (1/20/1971).

In Mayberry, a judgment of contempt was entered sum-

marily at the end of trial. This Court reversed, holding

that the practical and proper course would have been for

*Note: Under Illinois law, such an attempt, and a motion for

mistrial, or at least to continue, is an absolute prerequisite to the

grant of a new trial because of the absence of a witness. Pinkstaff

v. The Pennsylvama R. Co., 23 Til. App. 2d 507, 507-24, 163 N. E.

2d 728 (1959), affirmed 20 Ill. 2d 193, 170 N. E. 2d 139 (1961),

cert. den. 365 U. S. 878, 81 S. Ct. 1029 (1961) ; Kendall v. Limberg,

69 Ill. 355; Clark v. Chicago Rys. Co., 192 Ill. App. 358, 360

(1915) ; Casey v. Sawyer Biscuit Co., 163 Tl. App. 145 (1911) ;

Mastin v. National Tea Co., 278 Ill. App. 60 (1934); Nehring v.

Ricker, 126 Ill. App. 262 (1906).

** Summarized infra at pp. 33-34.

GRE ERAN? MEELIS ELE SONS NENG

the trial court to refer the charges to another judge. Quot-

ing Cooke v. United States, 267 U.S. 517, 539, the Court

stated (91 S. Ct. at 504, 39 L. W. 4136) :

‘¢+* * * All we can say upon the whole matter is

that where conditions do not make it impracticable,

or where the delay may not injury public or pri-

vate right, a judge called upon to act in a case of

contempt by personal attack upon him, may, with-

out flinching from his duty, properly ask that one

of his fellow judges take his place.’

‘“We conclude that that course should have been

followed here, as marked personal feelings were present

on both sides.’? (Kmphasis supplied.)

This Court further stated (91 S. Ct. at 504, 39 L. W.

4136) :

cw * * A judge cannot be driven out of a case.

Where, however, he does not act the instant the con-

tempt is committed, but waits until the end of the trial,

on balance, it is generally wise where the marks of the

unseemly conduct have left personal stings to ask a

fellow judge to take his place. * * *’? (Emphasis

supplied.)

Continuing, the Court emphasized (91 S. Ct. at pp. 504-

905, 39 L. W. at p. 4136) :

‘ew * * At times a judge has not been the image of

‘the impersonal authority of law’ (Offutt v. United

States, 348 U. S. 11, 17) but has become so ‘personally

embroiled’ with a lawyer in the trial as to make the

judge unfit to sit in judgment on the contempt charge.

‘<«s * * These are subtle matters, for they concern

the ingredients of what constitutes justice. Therefore,

justice must satisfy the appearance of justice.’ /d.,

at 14.

««* * * ‘Pair trials are too important a part of our

society to let prosecuting judges be trial judges of the

charges they prefer.’ [bid.’’

. ENTREE LEO FANE ER ae ROPER LENE TS RE AL PRET BEAM TPE

Here, the ‘‘personal feelings’? of the court [Robson]

toward petitioner [Hubbard] were so strong that in grant-

ing the motion for new trial, the court had ‘‘disqualifie[d]

it[self] from retrying the case. (A. 79-80.) Only months

later, when the petition for costs and attorneys’ fees was

filed, did the judge [Robson] reintervene, to punish pe-

titioner summarily.

The measure of the ‘‘personal involvement’’ and

‘‘marked personal feelings’’ of the trial court below, is

indicated by the following quotation from the trial court’s

opinion, granting a new trial in the civil action, 39 F. R. D.

592, 596. (A. 17-18.)

‘¢* * * Counsel for defendant is a lawyer who has had

long and extensive trial experience. These years in

the evurt should have taught him compassion and a

sense of fair play. Instead, he seeks to use his experi-

ence to assert and apply every sly trick and stratagem

to win his case. He does this with the hope that he

can stay within the bounds of professional ethics. In

this instance, he has far overstepped the bounds. This

court finds that his trial tactics were such that the jury

might or could have been influenced by his unfair

actions and as a result found for the defendant.”’

The statement was repeated by the Court of Appeals in

404 F. 2d 1163 at 1165.

Under Mayberry Judge Robson could not have summarily

entered a contempt judgment of $8,171.56 after the civil

trial, so ‘‘marked’’ were his ‘‘ personal feelings,’’ so -‘‘per-

sonally embroiled’’ was he with this trial lawyer, Reese

Hubbard, your petitioner.

If the procedure of the court below is correct, the policy

of the Mayberry decision, and many like it, will be frus-

trated completely, if an ’’angered’’ trial court simply

changes the name of the proceeding, from ‘‘contempt,”’’ to

‘‘eosts.”’

In Mayberry, there was a jail sentence of 11-22 years.

Perhaps, this extreme sanction motivated the court to take

Mayberry. Lest it be contended, however, that its rule is

governed by, aud limited to such aggravated situation, the

recent statement of Justice Blackmun and Chief Justice

Burger in Groppi v. Wisconsin, 91 S. Ct. 490, 495, 39 L. W.

4150, 4152 [1/25/1971], is pertinent. ‘‘ Nevertheless,

unfairness anywhere, in small cases as well as in large, is to

be ferreted out.’’ (1mphasis supplied. )

In Mayberry, the only impediment to a contempt judg-

ment was the ‘‘marked personal feelings’’ of the trial

court. There was no question as to what words defendant

had uttered. There were no factual issues to be resolved

by the taking of evidence concerning events which took

place outside the courtroom. |

By contrast, in the case below, apart from the ‘‘marked

personal feelings’’ of the trial court, there was a further

impediment to summary punishment of the petitioner. Res-

olution of the serious charges against petitioner turned on

evidence of events which took place outside the presence

of the court. (See pp. 18-22, wnfra.) It has long been well

settled that summary punishment for contempt will not lie

in any instance where, as here, ‘‘any elements of the offense

are not personally observed by the judge, so that he must

depend on statements made by others for his knowledge of

these elements * * *.’? Re Oliver, 333 U. S. 257, 275, 92

L. Ed. 682, 68 S. Ct. 499 (1948); Cook v. U. S., 267 U. S.

517, 69 L. Ed. 767, 45 S. Ct. 390 (1925).

It is, of course, true that petitioner did not personally

revile or insult the judge. But, the court reacted as if it

had been personally vilified and insulted. Further, the

charges, if sustained, were in a real sense the equivalent

of personal insult.

Here, petitioner, a prominent and experienced trial

lawyer, was made to appear to have: (1) prevented an

important plaintiff’s witness [Butterfield] from coming to

Chicago to testify, and (2) to have secreted an important

deposition [Hamlin] during trial to prevent its use of cross-

examination, and then to have lied openly to the court,

during trial, about its whereabouts.

These charges absolutely enraged the trial court toward

petitioner. These charges, if proven, we submit, were likely

to provoke passion and ‘‘outrage’’ on the part of almost

any court. 404 F. 2d 1163 at p. 1170, A. 31.*

In these circumstances, (1) because of the court’s

‘‘marked,’’ ‘‘personal feelings’’ about the charges, and

(2) because their factual resoiution required evidence of

events which took place outside the courtroom, the trial

court’s only correct course, under Mayberry v. Pennsyl-

vania, 91 S. Ct. at 499, 39 L. W. 4133, 4136 (1/20/1971),

was to refer the petition, when it was filed, to another trier

of fact, not bearing the ‘‘sting’’ of personal attack and

having the ‘‘impersonal authority of the law’’, to determine

if the charges were factually based. Indeed, the court had

previously disqualified itself from retrying the civil case,

presumably because of its personal feelings toward pe-

titioner. (See pp. 5, 14-15, supra.)

Petitioner’s timely request for trial of those charges, by

a jury, or a different judge, was erroneously refused. A. .......

Beeause of the patent, direct, and substantial conflict be-

tween the judgments below and this Court’s opinion in

Mayberry, certiorari should be granted, and the judgment

below set aside.

Evidentiary Hearing.

In denying petitioner’s right to an evidentiary hearing

and to confront his accusers, the decision is in conflict with

this Court’s decisions in Willner v. Committee on Character

*NoTe: Well it may be that they amounted, if true, to an

‘obstruction of justice.’’ See A. 6-7. Cf. Concurring opinion of

Chief Justice Burger in Mayberry v. Pennsylvania, 91 S. Ct. at

p. 506, 39 L. W. 4136.

PRE AEE PRA EL PAST RR

é Fitness, 373 U. S. 96, 103, 105, 83 S. Ct. 1175, 10 L. Ed.

2d 224, 229, 231 (1963) ; In re Oliver, 333 U. S. 257, 259, 273,

275, 92 L. Ed. 682, 694, 695 (1948) ; Greene v. McElroy, 360

U. S. 474, 3 L. Ed. 2d 1377, 79 S. Ct. 1400 (1959). See also

Berger v. Calif., 37 U. S. Law Week 3247, 89 S. Ct. 540,

541 (1969); Barber v. Page, 390 U. S. 719, 721, 88 S. Ct.

1318, 1320, 20 L. Ed. 2d 255 (1969); Pointer v. Texas, 380

U. S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965); Holt

v. Virgmia, 381 U. S. 131, 14 L. Ed. 2d 290, 85 S. Ct. 1375

(1965) ; In re Oliver, 333 U. S. 257, 273, 92 L. Ed. 682, 2694

(1948) ; In re Ruffalo, 390 U.S. 544, 20 L. Ed. 117 (1968) ;

In re Murchison, 349 U. S. 133, 99 L. Ed 942, 75 S. Ct. 623.

See also Brotherhood of Loc. Fire & Eng. v. Bangor &

Aroostock R. Co., 380 F. 2d 570,581 (D. C. Cir. 1967).

If the record in the civil case could be used collaterally

and conclusively, as the courts below have done, then the

foregoing decisions, and Mayberry, No. 121, are wrong.

The trial court attempted to avoid the effect of the fore-

going decisions, on a theory that his personal presence and

‘‘observation’’ of the events of the first trial, eliminated

any requirements of a fair trial, of confrontation, or of an

evidentiary hearing. The argument proceeds on some sort

of analogy to the direct criminal contempt rule. (Rule 42a,

F. R. Cr. Pr.; A. 4) That rule permits summary

punishment if the court ‘‘heard the conduct constituting the

contempt and it was committed in the actual presence of the

court.’’ (Emphasis supplied.) But, that principle, even

in contempt cases, does not apply ‘‘if any element of the

offense are not personally observed by the judge, so that

he must depend on statements made by others for his

knowledge of these elements * * *.’’ (Emphasis supplied.)

Re Oliver, 333 U. S. 257, 275, 92 L. Ed. 682, 695, 68 S. Ct.

499 (1948); Cooke v. U. S., 267 U. S. 517, 69 L. Ed. 767,

45 S. Ct. 390 (1925). In all other instances, there must be

a full evidentiary hearing.

The prejudicial character of the court’s failure to con-

duct an ‘‘evidentiary hearing’’ is most forcefully shown in

connection with charge 3, namely that on November 16, 1965

petitioner caused a Las Vegas attorney, named Singleton,

to refuse to release a Las Vegas reporter named Butter-

field from a previously-scheduled deposition in another

case [in Las Vegas], so that she could come to Chicago

on one day’s notice to testify in this case.* (See pp. 11-13,

supra.)

This charge greatly angered the court. And, properly so.

If proven, it might well have constituted a serious ‘‘ obstruc-

tion of justice.’’ 18 U.S. C., § 401, 18 U. S. C. 1503. A. 6, 7.

But, petitioner categorically denied the carge. 3

Ordinarily, a trial lawyer’s statement of fact is taken at

face value. When it is not, an evidentiary hearing should

be had. At such hearing, Singleton [the Las Vegas law-

yer], Butterfield [the reporter], Hubbard [the petitioner],

and Jacobson [the plaintiff’s counsel], could have testi-

fied and been cross-examined.

Only at such a hearing could it be determined why

Singleton refused to release Butterfield from a previously-

scheduled deposition in another case. Only Singleton would

know whether Hubbard [the petitioner] had contacted him

on the matter. Only he could show the character of the

deposition in the other case which he refused to continue.

But, his evidence was never taken in this case.

Nor was Butterfield’s. In a deposition later taken on

another aspect of the case, she said Singleton told her he

could not release her because of the importance of the pre-

viously-scheduled deposition. ‘‘It was an important deposi-

tion’’. (See p. 12, supra.)

* Nore: Significantly, plaintiff’s counsel did not attempt to

move for mistrial, or to continue the case one more day, to permit

her to fily to Chicago to testify. (See p. 13, supra.)

Similarly, cross-examination of Jacobson [plaintiff’s]

might have closed the discrepancy between (1) his affidavit

that the reporter Butterfield told him that she would come

to Chicago to testify, and then reneged, and (2) her later

deposition story, that she simply told him that she would

come if she could get another reporter for Singleton’s

deposition of the next morning.

With respect to the charge of failure to prove matter

in the opening statement, an orderly evidentiary hearing

would have shown that the witness [Tracy] was brought to

Chicago from Las Vegas, was in the courtroom, and was

not presented because of the court’s rulings as to her class

of evidence.* (See pp. 8-10, supra.)

The remaining charge, of ‘‘improper tactics,’’ relied on

by Judge Robson, was that petiticner, Hubbard, had

secreted the original of an uncertified deposition of a de-

fense witness named Hamlin, and then lied to the court |

about its whereabouts. (See pp. 10-11, supra.) Petitioner

claimed that he had sent it back to reporter Butterfield in

Las Vegas, when he discovered the deposition had not been

certified, because he thought he might have to use it as orig-

inal evidence. (It was not clear until the last minute that

the witness could be in Chicago to testify. Her testimony

was not given until the next to the last day of the two-week

trial.)

There is much contradiction and confusion in the civil

record of the two trials, as te when and by whom the Ham-

lin deposition was returned to the reporter [Butterfield] in

Las Vegas for certification. That confusion is vastly com-

pounded by the Butterfield deposition, which was taken in

*Nore: We note that Tracy’s name was still on the witness

list at the time. No objection was made by plaintiff’s counsel to

any part of the opening statement, until after verdict.

All other matters stated in the opening statement were proved.

(See p. 10, supra.)

Las Vegas months after the first trial by plaintiff’s co

; : ounsel

and which was directed to other aspects of the case. . ik ois

orderly, evidentiary hearing, directed to the precise ques-

tion, Hamlin, Butterfield, and petitioner could have aa

asked explicit questions, by a court and opposing co)

; .*% unsel,

and given responsive, explicit answers.

The proceeding below was far too unsystematic t, 19

solve this serious charge made against petitioner. (See

pp. 10, 11 and f.n., supra.)

To represent his client effectively, a trial lawyer Simply

has to have his words taken gt face value, as to what tran.

spires outside the courtroom. Once a court begins to qoubt

the lawyer, in fairness to itself, in fairness to the lawyer

[and his client], and as a simple matter of due priocess,

the court ought then to conduct a proper evidentiary

hearing.

Petitioner was entitled to an evidentiary hearing on the

court’s charges, after advance, specific notice. In Re

Ruffalo, 390 U. S. 544, 88 S. Ct. 1220, 20 L. Ed. 2d 117

(1968), in the course of a disbarment proceeding, an addi-

tional charge 13 was added. This Court held that adding

_ the new charge denied procedural due process: the lawyer

was entitled to. prior notice that the matter in Charge 13

would be considered a disbarment offense.

Had Hubbard been accorded an evidentiary hearing, With

specific findings of fact and conclusions of law, as required

by Rule 52, the appeal would have been structured bY the

findings. Hubbard then could not have been faced With

(1) ex parte statements from other cases, (2) urtried

charges not listed in the post trial motion, and (3) untried

charges from the subsequent retrial before Judge Decker:

F. R. C. P. 52, F. R. Cr. P. 42. (See pp. A. 2-3, 4.)

Irrespective of whether Rule 52 required specific findings

of fact and conclusions of law in the order grantin?® the

new trial [February 28, 1966}, such findings were required

when the court later [October 10, 1966] uecided to use that

collateral determination as the sole factual basis for its

‘*costs’’ judgment against Hubbard.

The object of Rule 52, requiring specific findings of fact

and law, is to define the issves for appellate review and

for application of the doctrine of res judicata. (5 Moore,

Federal Practice, § 52.05(5), citing committee report.)

The patent inadequacy of the trial court’s opinion, as

findings of fact, is perhaps best illustrated in connection

with charge 3, towit, that petitioner prevented the appear-

ance of Butterfield, by causing Singleton [the Las Vegas

- lawyer] to refuse to release her from a previously-scheduled

deposition. (See pp. 11-13, 19-20, supra.)

If Singleton refused to continue his previously-scheduled

deposition, because of its importance (perhaps it was court

set), or if he did so, because of his acquaintance with the

insurer herein (See p. A. 17), thinking it would help them,

but without ever discussing the matter with petitioner,

there can be no basis for a finding of misconduct on pe-

titioner’s part.

To warrant any proceeding against petitioner personally,

he must necessarily have communicated with Singleton or

his office after Hamlin testified on November 16, 1965, to

request them to refuse to release Butterfield on November

17, 1965.

But, the court did not find that Hubbard actually did

anything, The court, rather, avoids a finding, by using

such evasive, but emotionally-colored, phraseology, as (39

F. R. D. at 596; A. 17):

(a) he ‘‘hamstrung plaintiff’s counsel in precluding the

appearance of an out-of-town court reporter to testify ...’’

(b) ‘*. . . indications are that counsel [Hubbard]

manipulated matters so that the court reporter would not

be available... .’’

could have been brought to bear to preclude the release of

the court reporter .. .’’ (Emphasis supplied.)

Such language is completely insufficient, as a ‘‘recita-

tion’’ of ‘‘facts’’ under the foregoing rules.

More important, such language is a patently inadequate

circumlocution of the rule barring a court from punishing

summarily if ‘‘any elements of the offense are not personally

observed by the judge, so that he must depend on state-

ments made by others for these elements * * *.’? Re Oliver,

333 U. S. 257, 275, 92 L. Ed. 2d 682, 695, S. Ct. 493 (1948) ;

Cooke v. U. S8., 267 U. S. 517, 69 L. Ed. 767, 45 S. Ct. 390

(1925). That rule is eroded to, a nullity, by the judgment

below.

If the trial court could find only that there ‘‘could have

been’’ misconduct on petitioner’s part, in respect to the

refusal of the Las Vegas lawyer, Singleton, to release

his reporter, Butterfield from a previously-scheduled depo-

sition, then the court was powerless to proceed summarily.

It was required, as a matter of due process of law, either

to dismiss the charge, or grant petitioner’s timely request

for an evidentiary hearing.

A finding that impropriety ‘‘could have’’ occurred (39

F. R. D. at p. 562; A. 17) will not support punish-

ment, summary or otherwise, under our system of justice.

Nor will the statement quoted at 404 F. 2d at 1163, that

petitioner ‘‘uses every sly trick and stratagem to win

his cases.’’ Certainly, it is not a finding or a certificate

which ‘‘recite[s] the facts’? within the foregoing rules.

Widger v. U. S., 244 F. 2d 103, 107 (C. A. 5, 1957) ; Tauber

v. Gordon, 350 F. 2d 843, 847 (C. A. 3, 1965).

As the latter court pointed out (350 F. 2d at p. 845):

‘*Such a general characterization of behavior over a

seven day trial period is not specific enough to satisfy

the requirement of Rule 42a...

‘‘This requirement is more than a formality. It is

essential to disclosure of the basis of decision to permit

informed appellate review.

‘*But, counsel’s enumeration of occurrences which,

in his view after the event, afforded a proper basis for

the contempt order cannot be substituted for the re-

quired specification by the trial judge * * *’’ (Emphasis

supplied.)

Improper Use of Past Decisions.

The decisions below are in conflict with Gregory v.

City of Chicago, 394 U.S. 111, 89 S. Ct. 946, 22 L. Ed. 2d 734.

In relying for its fact finding on charges from the second

trial and from several opinions in other cases, the Court

of Appeals has engaged in just that type of change of

theory at the review level which was condemned in Gregory,

and in Ruffalo, 390 U.S. 544, 88 U. S. S. Ct. 1220, 20 L. Ed.

2d 117 (1968), discussed szpra, p. 21.

Further, at a proper hearing, it could be shown that there

was no basis for the inferences of a pattern of misconduct

on petitioner’s part, which was drawn by the courts below.*

The principal decision, used adversely, Quality Molding

Co. v. American Nat’l Fire Ins., 287 F. 2d 313 (C. A. 7,

1961), did not involve petitioner in either the trial or

appellate court. (See A. 67, 76-78.) In the remaining

cases, the course of trial procedure criticized was supported

by ample local precedent. (See A. 71-74.) That the Court

* Note: As part of the appendix, A. 67-75, we attach a copy of

pp. 39-47 of our brief in the Court of Appeals, describing each of

those opinions and charges.

of Appeals in cases such as Mangan v. Broderick & Bas-

com Rope Co., 351 F. 2d 24 (C. A. 7, 1951); and in

Neusus v. Sponholtz, 369 F. 2d 259 (C. A. 7, 1966), elected

to impose tighter restrictions on cross-examination which

was designed to show interest or bias, than were sanctioned

by petitioner’s authorities, does not reflect on petitioner’s

general or specific character.

Petitioner’s procedure in Mangan had been expressly ap-

proved by the Illinois courts in Mokrzycki v. Olson Rug Co.,

28 Ill. App. 2d 117, 124, 170 N. E. 2c 635 (1960). (Interest

of employer of witness to recover for workmen’s compensa-

tion benefits paid may be shown.)* Petitioner’s procedure in

Neusus was approved by 3 Wigmore on Evidence [3rd

Ed. 1940], § 1023 (‘‘Cross Examination to Self Contradic-

tion, Without Extrinsic Evidence’’]. See also People v.

Sorge, 301 N. Y. 198, 93 N. E. 637, 639. (See A. 73-74.)

Whenever a court decides between competing lines of

evidence law, a court is normally attempting to balance the

relevance of a given line of evidence against the possible

prejudice therefrom. Necessarily, all courts will not reach

the same results in such cases.

But, the advocate’s role (the trial lawyer’s role) in

such instances, is radically different from that of the re-

viewing court, faced with competing principles of evidence

law. In our adversary system of jurisprudence, the trial

lawyer is not only permitted, but, indeed, we submit, duty

bound to his client, to rely on and urge his point of law as

forcefully and effectively, as possible.

Petitioner represented some of the most important insur-

ance companies in America for over thirty years, following

his graduation from the Harvard Law School. His practice

*Note: Mangan has subsequently been rejected as authority

on this point by the Illinois courts. Skalon v. Manning, Marwell

@ Moore, 127 Ill. App. 2d 145, 156, 262 N. E. 2d 146 (1970).

was heavy and intense. It was devoted almost exclusively

to the defense of insurance companies in personal injury

litigation. (See p. 7, supra.)

Thirteen sitting judges of the state and federal courts,

before whom he has tried over 300 cases, gave affidavits

attesting his honorable conduct and fairness as a lawyer.

(A. 47-59.)

Further, numerous appellate court opinions have absolved

petitioner of charges of misconduct. See e.g., Skalon v.

Manning, Maxwell & Moore, 127. Ill. App. 2d 145, 262 N. E.

2d 146 (1970); Hendler v. Wolozin, 105 Tll. App. 2d 132,

245 N. E. 2d 74 (1969), cert den., 396 U. S. 929.

Significantly, in each instance, the opinions below were

offered as (1) evidence of a ‘‘pattern of misconduct’’ and

as (2) legal authority for the courts involved to look out-

side the record to several past cases in which petitioner

was counsel. In both instances the Illinois courts rejected

the Kiefel opinions for all purposes. Indeed, in the Hendler

ease, the Appellate Court, after lengthy deliberation, re-

fused to permit the opinions even to be filed as an addi-

tional authority to plaintiff’s previously-submitted brief.

In each instance, the court correctly elected to decide the

case before it, on its own record. So ruling, the court found

no evidence of misconduct on petitioner’s part, and, there-

fore, affirmed the judgments entered on verdicts in favor

of petitioner’s clients.

What more potent example could there be, of the prej-

udice to petitioner, from the improper, indeed, we submit,

unconstitutional, action of Judge Robson and the Court

of Appeals, in relying primarily on matters dehors the

record from opinions in several past cases in which peti-

tioner Hubbard had been defense counsel, as evidence of

‘objectionable trial strategy’’ in this case.

_ Certiorari should be grauted to review this unprece-

dented, and we submit, Jangerously unconstitutional pro-

cedure. References to past offenses, even if properly proven,

has long been the subject of the most severe condemnation.

See Comment, 78 Harvard L. Rev. 426 (1964); Comment,

70 Yale L. J. 763 (1961); 10 Rutgers Law Review 531,

032 (1956); 1 Wigmore on Evidence, § 57, p. 546; 3 Wig-

more, Evidence, §§ 896-918 (3rd Ed. 1940). As this Court

itself has observed, such matter is rejected as unconstitu-

tional, not because it is totally irrelevant, but because it

*‘tends so to overpersuade [triers of fact] as to prejudice

one with a bad general record and deny him a fair oppor-

tunity to defend against a particular charge. * * *”’

Michaelson v. U. S., 335 U. S. 469, 476, 69 S. Ct. 213, 93

L. Ed. 168, 174 (1948). (Emphasis supplied.)

The several past decisions cited against petitioner are

subject to explanation. (A. 68-74.) Further, they are not

a substitute for an orderly, evidentiary hcaring directed

to specific factual issues.

There was not the slightest semblance of due process

in these proceedings against petitioner.

Attorneys’ Fees.

The award of $4,000 of attorneys’ fees is in direct

conflict with this Court’s decision in Fleischmann v.-Maier

Brewing Co., 386 U. S. 714, 87 S. Ct. 1404, 18 L. Ed. 2d

475 (1967).

The judgment assessing one-third of all attorneys’ fees

in the three appeals is without foundation in American law

and is in direct conflict with Rule 39(c, e) of the recently

enacted Rules of Appellate Procedure, as well as with the

recent decision of the Supreme Court in Fleischmann v.

Maier Brewing Co., 386 U. S. 714, 87 S. Ct. 1404, 18 L.

Ed. 2d 475 (1967).

On the strength of Fleischmann the Court of Appeals

reversed Judge Robson’s judgment by eliminating the item

of plaintiff’s fees in the trial court. But, nothing in the

Fleischmann opinion remotely suggested that it was limited

to attorneys’ fees in the trial court.

Rule 39(c) exiended the costs allowable on appeal to

briefs. (A. 5.) Had counsel fees been within this Court’s

contemplation when it made such amendments, they could

easily have been permitted.

Similarly, Rule 39(e) makes taxable in the district court

the costs of the reporter’s transcript, the bond premiums

and the filing fee in the district court. (A. 5.)

The Court of Appeals was thus not authorized to direct

the trial court to determine and tax one-third of all counsel

fees on appeal. Nor did the trial court have authority to

enter judgment for $4,000 pursuant on remand.

If the trial court was forbidden by the F/e:schmann case

from awarding trial attorneys’ fees for ‘‘objectionable

trial strategy,’’ certainly it could not award appeal at-

torneys’ fees for ‘‘objectionable trial strategy.’’

Nor will 28 U. S. C., § 1912 (A. 7) sustain the award. In

Consolo v. Federal Maritime Commission, 383 U. S. 607,

616, 16 L. Ed. 2d 131, 138-139, 86 S. Ct. 1018 (1966), this

Court stated that ‘‘additional costs, although not attorney’s

fees, may be assessed against * * * the losing party under

28 U.S. C., § 1912.’’ (Emphasis supplied.)

Normally, an award under 28 U. S. C., §1912 is made

only wher an appeal has been dismissed on motion as un-

substantial or frivolous. Demimg v. Carlisle Packing Co.,

226 U. S. 102, 57 L. Ed. 140, 33 S. Ct. 102.

Where, however, as here, the judgment appealed from

is reversed or simply reduced, a court may not assess

additional costs under this section, which is by its terms

limited to ‘‘damages and costs on affirmance.’’ (A. 5.)

Globe Construction Co. v. Brewer, 197 F. 2d 707, 708-709.

(C. A. 5, 1952.)

The Independence of the Bar.

Certiorari should be allowed to review the unprec-

edented construction given to 18 U. S. C., § 1927, and to

review the relationship of that statute, to a statute especially

enacted to protect the independence of the bar. 18 U.S. C.,

§ 401. See also, Rule 42a, F. R. Cr. P. (Criminal Con-

tempt, Summary Disposition) (A. 4, 6, 9.)

That statute, 18 U. S. C., § 401, as it has always been

construed, would stand as a bar to these summary pro-

ceedings against petitioner. Re Oliver, 333 U. S. 257, 275,

92 L. Ed. 682, 695, 68 S. Ct. 499 (1948); Cooke v. U. S.,

267 U. S. 517, 69 L. Ed. 767, 45 S. Ct. 390 (1925). (See

pp. 14, 16, 18, 23, supra.) If left to stand as precedent, the

decisions below have the affect of nullifying that statute.

18 U.S. C., § 401.

Plaintiff made certain charges in a motion for a new

trial. Petitioner denied those charges. The court refused

petitioner the right to meet and disprove those charges.

Petitioner made a timely motion for a jury trial, and be-

fore a different judge. That request was likewise refused.

18 U. S. C. §401 (the current citation) was enacted,

following the impeachment trial of Judge Peck, to restrict

the contempt power of courts, so that it would not be

used to discipline lawyers. We believe Congress intended

to prevent the very thing done in this case.

The reviewing courts, when cases involving lawyers have

come to their attention, always mention the historical fact

that this statute was passed especially to protect the inde-

pendence of lawyers in the exercise of their profession.

Cammer v. United States, 350 U. S. 399, 76 S. Ct. 456, 100

L. Ed. 474 (1956); Re McConnell, 370 U. S. 230, 82 S. Ct.

1288, 8 L. Ed. 2d 434 (1962) ; reversing 294 F. 2d 310 (C. A.

7, 1961) ; DeParcq v. U. 8. District Court for Southern Iowa,

235 F. 2d 692 (8th Cir. 1956). The Courts emphasize the

public policy reason for restricting the power of contempt

by quoting the argument of Congressman Buchanan (350

U. S. 399, 406: ‘*The public have almost as deep an inter-

est in the independence of the bar as of the bench.’’ (Em-

phasis supplied.)

In Re McConnell the Supreme Court reversed the con-

tempt conviction of a lawyer who had been fined $100 for

persistent interrogation of witnesses on an issue after it

had been (erroneously) ruled out of the case by the trial

judge. The lawyer stated: ‘‘We have a right to ask the

questions, and we propose to do so unless some bailiff

stops us.’? This Court said (370 U. S. 236):

‘‘The arguments of a lawyer in presenting his client’s

case strennously and persistently cannot amount to a

contempt of court so long as the lawyer does not in

some way create an obstruction which blocks the judge

in the performance of his judicial duty. The petitioner

created no such obstacle iicre.

‘se * * An independent judiciary and a vigorous, in-

dependent bar are both indispensable parts of our

system of justice. To preserve the kind of trials that

our system envisages, Congress has limited the sum-

mary contempt power vested in courts to the least

possible power adequate to prevent actual obstruction

of justice, and we think that that power did not extend

to this case.’’ (Emphasis supplied.)

In no sense did petitioner’s conduct approach that of

the trial lawyer in McConnell. The only matter stated in

Pantani satires Bis iin acts: ne

the opening statement, which petitioner did not prove, was

the substance of a conversation between a telephone opera-

tor [Tracy] and plaintiff’s then husband. However, the

court refused to permit the husband to be cross-examined

about the conversation. Further, when petitioner tried to

put on a maid [Carpenter], the court said it would not

permit any statements by the husband, outside his wife’s

presence, to go into evidence.* (See pp. 8-10, supra.)

In marked contrast to the behavior of the advocate in

McConnell, supra, p. 31, petitioner, properly, we submit,

refrained from calling the operator, then available, to make

an offer of proof, such as that which offended the trial

judge in McConnell, 370 U. S. at 232. His deference to the

court’s ruling on this crucial evidence question was beyond

criticism, as well as procedurally correct. Petitioner fol-

lowed the example of the trial lawyer in Bartholomew v.

Davies, 276 Ill. 505, 514-515, 114 N. E. 1017 (1917), rather

than the example of the lawyer in the McConnell case.

If a judgment of this type could be entered against a

lawyer, it would be a far greater threat to the independence

of the advocate than the penalties attempted to be imposed

in the Cammer and the McConnell cases.

Nothing said or done by Hubbard would constitute con-

duct within the power of the court to punish him for con-

tempt, summarily.* The judgment under review is not a

taxation of ‘‘costs’’ as that legal term is universally under-

stood.

The rights of a court to enter judgment, without a trial,

on the verity of its own observations is limited to matters

within the contempt siatute.

*Note: The unproven charges relating to prevention or con-

cealment or prevention of evidence, may well have charged an

“obstruction of justice,’’ but they required an evidentiary trial.

(See pp. 18-23, supra.)

Summary punishment for contempt, moreover, will not

lie in any instance where, as here, ‘‘any elements of the

offense are not personally observed by the judge, so that he

must depend on statements made by others for his know]-

edge of these elements * * *.’’ Re Oliver, 333 U.S. 257,

275, 92 L. Ed. 682, 695, 68 S. Ct. 499 (1948); Cooke v.

U. S., 267 U. S. 517, 69 L. Ed. 767, 45 S. Ct. 390 (1925).

(Emphasis supplied.)

In enacting and interpreting 18 U.S. C. § 401, Congress

and the Supreme Court were not just protecting the narrow

professional interests of lawyers. They were defending

our adversary system, which cannot exist without an in-

dependent bar.

28 U.S. C., § 1927 was not enacted to enable a federal

court to curtail the independence of the bar by ignoring

the limitations of 18 U. S. C., § 401, and F. R. Cr. P., p.

42, on its power to punish a trial lawyer.

In attempting to place its authority for this vast, un-

Mruwareu!’ cxpamilir ur® yuultzia’ puwen> ur a utkeryrus fie

herent power (p. A. 41), the decisions are in the face

of a century of legal tradition to the contrary.

Review should be granted to determine if the courts have

been wrong in this period in thinking that such power did

not exist, and in thinking that 28 U. S. C. § 1927 and its

predecessors did not enlarge the categories of allowable

costs, and were not enacted to enable a court to curtail the

limitations of 18 U. S. C., § 401, and F. R. C. P. 42 on its

power to punish a trial lawyer. See Motion Picture Patents

Co. v. Steiner, 201 F. 63 (2d Cir. 1912) ; Gold Dust Corpora-

tion v. Hoffenberg, 87 F. 2d 451 (2d Cir. 1937); In re

Realty Associates Securities Corporation, 53 F. Supp. 1013

(E. D. N. Y. 1943); Bone v. Walsh Construction Co., 235

F. 901. (S. D. Iowa 1916.)

wii

CONCLUSION.

ld [the

A short, evidentiary hearing, at which Butterfieorney],

Las Vegas reporter], Singleton [the Las Vegas atteounsel

Hamlin, petitioner [Hubbard], and _plaintiff’s amined

[Jacobson] could have been examined and cross-ex of this

would have resolved the very simple factual disputes

case: and by

(1) Such a hearing would have shown when ; Vegas

whom the Hamlin deposition was returned to Lagg trial,

for certification: to-wit, by petitioner’s office durin

or by Hamlin after trial. (Charge 2.) whether

(2) Such a hearing would also have shown 1 or his

petitioner [Hubbard] communicated with Singletor release

office on November 16 to urge him to refuse to iber 17.

Butterfield from a scheduled deposition on Novem

(Charge 3.) ' could

(3) At such a hearing Tracy (the operator)y from

have shown that petitioner brought her all the waictually

LAS VEgas 1 -_CWagen $n sontifraardkebishe weetually

in the courtroom to testify. (Charge 1.)

Moreover, such an evidentiary hearing, befo another

judge, was constitutionally required.

Petitioner is a widely-respected trial lawyer-Thirteen

sitting judges of the state and federal courts, be+e whom

he has tried over 300 cases, gave affidavits atkting his

honorable conduct and fairness as a lawyer. (A47-59.)

He ought as a simple matter of fairness and d, process

to have been accorded'an evidentiary hearingpefore a

jury or different judge, to disprove the very serio, charges

made against him. The proceedings below are ibject to

the very same constitutional defects as those iyolved in

Wisconsin v. Constantineau, No. 95, 91 S. Ct. 90739 L. W.

4128 [Jan. 29, 1971]. There, this Court stated 1 S. Ct.

at 510, 39 L. W. 4129):

‘*It is significant that most of the provisions of the

Bill of Rights are procedural, for it is procedure that

marks much of the difference between rule by law and

rule by fiat.

& c@ @ * &

‘“Where a person’s good name, reputation, honor, or

integrity are at stake because of what the government

is doing to him, notice and an opportunity to be heard

are essential. * * * Only when the whole proceedings

leading to the pinning of an unsavory label on a person

are aired can oppressive results be prevented.’’ (Em-

phasis supplied.)

‘*Notice and an opportunity to be heard,’’ here by way

of an evidentiary hearing, are the first essence of the Due

Process Clause. Boddie v. State of Connecticut, 39 L. W.

4294, 4295 (3/2/71).

These summary proceedings charging petitioner, a trial

lawyer, with ‘‘objectionable trial strategy,’’ are without

foundation in rule, statute, and the constitution. They

ignore a century of legal tradition, protecting the inde-

pendence of the bar.

For the foregoing reasons, certiorari should be granted

. > 6é , ts 9? °

a tas Spee dott £35 "hs odsts,”” gh b66U0" in”

printing expenses, and $4,000.00 in attorneys’ fees on appeal

should be vacated, reversed and set aside.

Respectfully submitted,

Peter FirzPatRick,