Petition for Writ of Certiorari — In re Bisbee

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Supreme Court, U.S,

FILED

971602 mar 26 1998

No. _ GEEICE OF TRE CLERK

In The

Supreme Court of the United States

October Term, 1997

In re John H. Bisbee,

Petitioner

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN H. Bispee*

Law Offices OF JOHN H. BisBeEE

437 North Lafayette Street

Macomb, Illinois 61455

Telephone: (309) 833-1797

“Counsel of Record, and

appearing pro se.

QUESTIONS PRESENTED

1. May a state court, consistently with the Privileges

and Immunities Clause of Article IV, § 2 and the Sixth

Amendment right to counsel, force a non-resident crimi-

nal defendant to trial on two felonies without any counsel

pursuant to a state law authorizing denial to defendant

the pro hac vice representation of his home state counsel of

choice without first hiring full time at full fee a forum

state lawyer as lead counsel which defendant neither

desires nor is financially able to do and notwithstanding

defendant’s having engaged local counsel to protect the

forum state’s interests as described in Supreme Court of

New Hampshire v. Piper, 470 U.S. 274, 285-287 (1980) and

Wheat v. United States, 486 U.S. 153, 159-164 (1988)?

2. Does the Seventh Circuit’s judgment sanctioning

as “frivolous” Petitioner’s argument that a non-resident

criminal defendant had the Article IV, § 2 privilege and

immunity and Sixth Amendment right to counsel to avoid

trial on two felonies without any counsel by reason of the

forum state court’s order denying, pursuant to state law,

defendant the pro hac vice representation of his home state

counsel of choice without first hiring full time at full fee a

forum state lawyer as lead counsel, notwithstanding

defendant’s having engaged local counsel to protect the

forum state’s interests as described in Supreme Court of

New Hampshire v. Piper, supra and Wheat v. United States,

supra, violate the mandate of this Court to the Seventh

Circuit in McKnight v. General Motors, 511 U.S. 659 (1994),

as Petitioner’s argument was specifically reserved for

QUESTIONS PRESENTED - Continued

decision in Leis v. Flynt, 439 U.S. 438, 442 n.4 (1979), and

has not yet been decided?

3. Does the Rule 38 F.R.A.P. sanction judgment

below conflict with this Court’s Sixth Amendment prece-

dents by punishing a lawyer for discharging his Sixth

Amendment duty to render the effective assistance of

counsel to a non-resident criminal defendant by pursuing

the only avenues available, federal removal and § 1983

injunctive relief, to prevent his client from being forced to

trial on two felonies with no counsel at all, notwithstand-

ing the likelihood that forum state appellate review

would reverse any resulting conviction and order a new

trial?

4. May a court of appeals sua sponte impose sanc-

tions for a “frivolous” appeal under Rule 38 FR.A-P.

notwithstanding the rule’s textual requirement that sanc-

tions may be imposed only “after a separately filed

motion or notice from the court and reasonable oppor-

tunity to respond”, particularly when the sanction judg-

ment of the court below is in direct conflict with the its

own judgments and those of all the other circuits constru-

ing Rule 38 F.R.A.P. in conformity with the rule’s textual

requirements and the requirements of due process?

ill

PARTIES IN THE COURT BELOW

The parties in the consolidated appeals below were,

in No. 97-2047, the State of Indiana as the Plaintiff-

Appellee v. Richard Haws as the Defendant-Appellant,

and in 97-2521, Richard Haws as the Plaintiff-Appellant v.

Individual Justices of the Indiana Supreme Court, Jeffery

Modisett, and Vincent F. Grogg, All in Their Official and /

or Administrative Capacities, as the Defendant-Appellees

(Haws and State or Indiana). Petitioner was counsel of

record for Haws in both appeals.

On October 27, 1997, Petitioner received letters from

Haws and Indiana Attorney James McCabe discharging

Petitioner and directing him to dismiss the appeals below,

respectively. On October 28, Petitioner so moved. On

October 30, Indiana responded and agreed to dismissal of

the appeals, but stated, as it had at the conclusion of its

main brief, that it,

“continue[d] to believe that these appeals [were]

patently frivolous and should never have been

filed ... and that [dismissal of the appeals] d[id]

not prevent the court from considering . . .

sanctions sua sponte under Circuit Rule 38.”

On November 4, Petitioner moved for leave to reply

by asking that if the court re‘ained jurisdiction, it do so to

reach the merits. The court below ordered oral argument

to proceed on November 6, 1997, resulting in the

PARTIES IN THE COURT BELOW - Continued

judgment hereafter described and which Petitioner is, by

this petition, asking this Court to review.!

| Petitioner filed a verified post argument motion seeking

leave to respond to false statements, not of record and never

before advanced, made by Indiana at oral argument in support

of sanctions. That motion attached correspondence among

Attorney McCabe, Haws’ Illinois business attorney, Petitioner’s

local counsel in the federal actions on appeal, and Petitioner,

which contemporaneously recorded that Haws was induced by

McCabe to discharge Petitioner on McCabe’s erroneous advice

that the appeals below were for the purpose of securing

Petitioner’s right to practice law in Indiana. McCabe also

advised, correctly or incorrectly, that Petitioner had angered the

Indiana trial court judize by naming him as a party defendant in

Haws’ § 1983 action. The court beiow did not rule on

Petitioner’s motion.

RULE 29.1 STATEMENT

There are no corporations involved and, therefore, no

subsidiary corporations.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......... ise e new en

PARTIES IN THE COURT BELOW................. iii

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CONSTITUTIONAL, STATUTORY AND OTHER

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REASONS FOR GRANTING THE WRIT ...........

A. The Decision Below Conflicts With and Violates

the Mandate of This Court to the Seventh Circuit

in McKnight v. General Motors Corp., 511 U.S. 659

(1994), by Finding “Frivolous” an Appeal Press-

ing the Important Unresolved Argument That a

Non-Resident Criminal Defendant Had the Sixth

Amendment Right to the Pro Hac Vice Represen-

tation of His Home State Counsel of Choice, an

Argument Specifically Reserved for Decision by

This Court in Lets v. Flynt, 439 U.S. 438, 442 n.4

CEST 9), Sie PEOe TOC EOC ons vo hos es oe canes

Vii

TABLE OF CONTENTS - Continued

Page

The Decision Below Conflicts With This Court's

Privileges and Immunities Precedents in Cana-

dian Northern Railway Company v. Eggen, 252 U.S.

553 (1920); Supreme Court of New Hampshire v.

Piper, 470 U.S. 274 (1980); and, Supreme Court of

Virginia v. Friedman, 487 U.S. 59 (1988), Neces-

sarily Including Such of This Court’s Right to

Counsel Precedents as Powell v. Alabama, 287 U.S.

45 (1932); Gideon v. Wainwright, 372 U.S. 335

(1963); Coleman v. Alabama, 399 U.S. 1 (1970);

United States v. Wade, 388 U.S. 218 (1967); Faretta

v. California, 422 U.S. 806 (1975); Wheat v. United

States, 486 U.S. 153 (1989) and, United States v.

FOE, ee As OOP LAOUE shina ks aed abe bem e es

1. The Decision Below Punishes Petitioner for

Advancing on Behalf of a Non-Resident State

Criminal Defendant the Right to “Equal

Access to the Courts of [the Forum State]” as

Accorded Citizens of the Forum State Sim-

ilarly Situated, Including the Right to Coun-

UG IN oso Bia ae ute ce Siig Ck eine 4 ao alec

The Decision Below Punishes Petitioner for

Advancing on Behalf of a Non-Resident State

Court Defendant the Argument That Defen-

dant Was Constitutionally Entitled Not to be

Forced to Trial on Two Felonies Without

Counsel Particularly in Light of His Having

Satisfied All the Concerns the Forum State

Could Assert as Described in inter alia Piper,

supra; Friedman, supra; and, Wheat, supra....

Vili

TABLE OF CONTENTS -— Continued

Page

The Decision Below Conflicts With Decisions of

the First, Third and Tenth Circuits Forbidding

Rejection or Disqualification of Pro Hac Vice

Counsel Without Specific Findings Justifying

Such Rejection or Disqualification, Particularly

Where the Rejection Has the Effect of Denying a

Non-Resident Criminal Defendant Any Counsel

at All, Contrary to the Sixth Amendment......

The Decision Below Conflicts With this Court's

Precedent in Justices of the Municipal Court v.

Lydon, 466 U.S. 294, 303 (1984), Barring, Under

the Younger v. Harris “Other Unusual Circum-

stances” Test, Abstention to Prevent Federal

Adjudication Seeking to Avoid a State Court

Order Subjecting a Defendant to a Second Jeop-

ardy, an Order Constitutionally and Functionally

Indistinguishable from an Order Forcing a Non-

Resident Criminal Defendant to Trial on Two

Felonies Without Counsel...................05.

The Decision Below Conflicts With This Court’s

Precedents in Gerstein v. Pugh, 420 U.S. 103, 108

n.9 (1975); Coopers and Lybrand v. Livesay, 437 U.S.

463 (1978); and, Flanagan v. United States, 465 U.S.

259, 268-269 (1984), as Ratifying a State Court

Order Forcing a Non-Resident Defendant to Trial

on Two Felonies Without Counsel, an Order Col-

lateral to the Merits of the State Prosecution and,

Therefore, Exempt from the Bar of Younger

fn Eee eR Peery ep, eM. RU 8 aR

TABLE OF CONTENTS — Continued

Page

The Decision Below Conflicts With This Court's

Sixth Amendment Precedents by Punishing

Counsel for Attempting to Discharge His Sixth

Amendment Duty to Render the Effective Assis-

tance of Counsel to a Defendant in a Criminal

Case by Pursuing the Only Remedies Available to

Prevent the Defendant from Facing Trial on Two

Felonies Without Any Counsel at All...........

The Decision Below Sua Sponte Imposing Rule 38

F.R.A.P. Sanctions Without the Appellees Filing a

Separate Motion for Same or the Court Giving a

Separate Notice and Affording Petitioner an

Opportunity to Be Heard Is in Direct Conflict

with the Text of Rule 38, in Conflict With the

Seventh Circuit’s Own Rule 38 Precedents and

the Precedents of All the Other Circuits, and

Denies Petitioner Due Process of Law .........

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34a

TABLE OF AUTHORITIES

Page

CASES

Abney v. United States, 431 U.S. 661 (1977)........ 21, 22

Argersinger v. Hamlin, 407 U.S. 25 (1972) ............ 16

Baldwin v. Montana Fish and Game Commission, 436

REY Pe CRONE Fh sews CAR We COR REEL ANN w Cas wee Re Sas 15

Barnard v. Thorstenn, 489 U.S. 546 (1989) ............ 19

Benton v. Maryland, 395 U.S. 784 (1969).............. 22

Brogan v. United States, __ U.S. ___, 118 S.Ct. 805

CR 56 55 Mea bn Oh bee ena dwee eRe aed bh aees s 28

Canadian Northern Railway Company v. Eggen, 252

Cha Ne RES bi Kes a gadaau doled endntbasheseus 14, 15

Coleman v. Alabama, 399 U.S. 1 (1970) .... 14, 17, 23, 25

Coopers and Lybrand v. Livesay, 437 U.S. 463 (1978) ..... 24

Corfield v. Coryell, 4 Wash., C.C. 371 (1823).......... 15

Faretta v. California, 422 U.S. 806 (1975) .......... 14, 17

Flanagan v. United States, 465 U.S. 759 (1984)..... 22, 24

Freer vw. cepeee, Ges To. GE CAME) wo ks oaks oe ee vace 19

Fuller v. Diesslin, 868 F.2d 604 (3d Cir. 1989) mee 18, 19

Gerstein v. Pugh, 420 U.S. 103 (1975) ................ 24

Gideon v. Wainwright, 372 U.S. 335 (1963)......... 14, 16

Hamilton v. Alabama, 368 U.S. 52 (1961).............. 23

Hudson v. United States, _ U.S. __, 118 S.Ct. 488

ROOFER bases hekdekd kdb RENO hed bee i eNe eae 22

SAREE RESCH INR e ey peep

" » RC etree

TABLE OF AUTHORITIES —- Continued

Page

In the Matter of Tad Bero, 110 F.3d 462 (7th Cir.

Led POEUN ee OTE CU OPE TEP Pe Oe Fee TP TE PPT 28

Justices of the Municipal Court v. Lydon, 466 U.S. 294

SOME 65.0 wb bc pe AK GRE EEACREUE SM ReS Lhe e ean bade ake ae

Kentucky v. Powers, 201 U.S. 1 (1906)................ 26

Late. @. Peyeet, SIP CG. GOR URIS) 6 oie avec caves: i, 12

Linc Finance Corp. v. Onwuteaka, 129 F.3d 917 (7th

ed EEE OT EE FE PEE TL Es ete e Tee eee Tr eee ey 28

Menn v. Jett, 781 F.2d 1448 (9th Cir. 1986)........... 23

McKnight v. General Motors Corp., 511 U.S. 659

PRO 52858 <b enek Chee en eben ckas saueae i, 12, 13, 14

McMann v. Richardson, 397 U.S. 759 (1970)........... 25

Neal v. Delaware, 103 U.S. 370 (1881) ................ 26

New York v. Galamison, 342 F.2d 255 (2d Cir. 1965) .... 26

Palko v. Connecticut, 302 U.S. 391 (1937)............. 22

Powell v. Alabama, 287 U.S. 45 (1932)......... 14, 16, 22

Shapiro v. Thompson, 394 U.S. 618 (1969)............. 21

Sherbert v. Verner, 374 U.S. 398 (1963) ............... 21

Speitser v. Randali, 357 US: 513 (1968) ............... 21

State of Georgia v. Rachel, 384 U.S. 780 (1966)...... 1, 26

State of Indiana v. Haws/Haws v. Individual Justices

of the Indiana Supreme Court, Jeffery Modisett, and

Vincent F. Grogg, in Their Official and/or Adminis-

trative Capacities, et al., 131 F.3d 1205 (7th Cir.

PRET once soe WSs 4 ce hs Oe da L Wes ON anes Ceres 2

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TABLE OF AUTHORITIES —- Continued

Page

Strauder v. West Virginia, 100 U.S. 303 (1879) ........ 26

Supreme Court of New Hampshire v. Piper, 470 U.S.

Pe Re Reagerre pre eer rey ee eee ee ee ey eee passim

Supreme Court of Virginia v. Friedman, 487 U.S. 59

GRP S ous kegs azedceiscns pesuseaveas sein 14, 15, 16, 17

United States v. Collins, 920 F.2d 619 (10th Cir.

PPPS ae cccenrbceevaescdddtpnnsabeererinew 18, 19, 20

United States v. Cronic, 466 U.S. 648 (1984) ...... passim

United States v. Laura, 607 F.2d 52 (3d Cir. 1979) .... 18

Linited States v. Panzardi-Alvarez, 816 F.2d 813 (1st

Oe SA ® i's vic cue red bbassewevavaeddaeiineshaee 18

United States v. Wade, 388 U.S. 218 (1967)

ORG Re eG EER el REE ey Re 1, 14, 20, 23, 27

Wheat v. United States, 486 U.S. 153 (1989)....... passim

Younger v. Harris, 401 U.S. 37 (1971)....1, 10, 21, 23, 24

CONSTITUTION

United States Constitution, Article IV, § 2, Clause

Rikpcckaddp odes Senses Chena lee erun ere i; 2, 34, 83, 37

United States Constitution, Amendment VI...... passim

United States Constitution, Amendment XIV ......3, 16

STATUTES

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Tee CRS BS 5 6 ns a aaa ee vis 3, 9, 10

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TABLE OF AUTHORITIES - Continued

Page

EE IES +

Bik RE Re ee or er 2, 4, 10, 21, 24

FEDERAL RULEs

Oe ee i, 4, 13, 28

MIscELLANEOUS

Brief, United States, pp. 6-7, Wheat v. United

EE ES OLE eee 17

EE 6

Indiana Code, § 35-45-6-2(a)(1)...................05.. 6

People of the State of Illinois v. Haws, no. 96-

EE ee 11

People of the State of Illinois v. Haws, no. 97-

EE EE 11

People of the State of Illinois v. 1994 Ford F350

Pickup, Claimant Richard Haws, no. 96-MR-110

EE 11

Reply Brief, Appellant, pp. 12-17, Indiana v. Haws/

Haws v. Indiana, et al., 97-2047, 97-2521......... 26, 27

Rule 3 of the Indiana “Admission and Discipline

(BR SR SS ESE a On ei ee 4 |

State of Indiana v. Haws, no. 9609 CF 329 (Foun-

EE EEL SSE ELL DE 5

PETITION FOR WRIT OF CERTIORARI

Petitioner, John H. Bisbee (Petitioner), respectfully

prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the Sev-

enth Circuit dismissing and finding “frivolous” and

sanctionable the consolidated appeals below by reaching

the merits in both, holding in 97-2047 that State of Georgia

v. Rachel, 384 U.S. 780 (1966), restrictions on removal,?

and in 97-2521, that Younger v. Harris, 401 U.S. 37 (1971),

abstention required Petitioner to abandon his client,

appellant below, to face trial on two felonies without any

counsel by reason of an Indiana Circuit Court order,

facially authorized by Indiana law, denying appellant the

pro hac vice representation of Petitioner without first hir-

ing full time at full fee as lead counsel an Indiana lawyer,

notwithstanding Petitioner’s having engaged local Indi-

ana counsel to satisfy the concerns described in inter alia,

Supreme Court of New Hampshire v. Piper, supra and Wheat

v. United States, supra.

2 The court below also upheld the district court’s holding

that Petitioner’s Notice of Removal had been untimely as in

excess of 30 days from the putative November 25, 1996

arraignment of Haws, notwithstanding that Haws was

unrepresented at that arraignment, a critical stage of the

prosecution, United States v. Wade, 388 U.S. 218, 227 (1967), and

notwithstanding that Petitioner attempted to keep the

prosecution in the Indiana state court by seeking relief from the

Indiana Supreme Court in the nature of mandamus and/or

prohibition.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra)

l-lla, is reported at 131 F.3d 1205 (7th Cir. 1997). The

opinions of the district court removal action, IP97-0061-

C-T/G (Dillin, J.), and the 42 U.S.C. § 1983 action, no.

IP97-0461-C-D/F (Dillin, J.), (Apps. B and C, infra) 12-18a,

are not reported.

JURISDICTION

The judgment of the court of appeals (App. D, infra)

19a, was entered December 10, 1997. The Seventh Circuit

denied a timely petition for rehearing with suggestion for

rehearing en banc on January 26, 1998 (App. G, infra)

21-22a. This petition for certiorari is being brought within

90 days of the court of appeals’ denial of petitioner’s

petition for rehearing with suggestion for rehearing en

banc. Petitioner invokes this Court’s jurisdiction under

and pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY AND

OTHER PROVISIONS INVOLVED

A. The United States Constitution, Article IV, § 2, Clause

1 provides that,

“The citizens of each state shall be entitled to all

privileges and immunities of citizens of the several

states.”

B. The United States Constitution, Amendment VI pro-

vides in relevant part that, “In all criminal prosecu-

tions, the accused shall . . . have the Assistance of

Counsel for his defense.”

The United States Constitution, Amendment XIV

provides in relevant part:

“No state shall . . . deprive any person of life, liberty

or property without due process of law. . ¥g

Rule 3 of the Indiana “Admission and Discipline

Rules” (Rule 3) provides:

“A member of the bar of another state or territory of

the United States, or District of Columbia, may

appear, in the trial court’s sole discretion in Indiana

trial courts in any particular proceeding for tempor-

ary periods so long as said attorney appears with

local Indiana counsel after petitioning the trial court

for the courtesy and disclosing in said petition all

pending causes in Indiana in which said attorney has

been permitted to appear. Local counsel shall sign all

briefs, papers and pleadings in such cause and shall

be jointly responsible therefor.”

28 U.S.C. § 1443 provides in relevant part as follows:

“Any of the following . . . criminal prosecutions

commenced in a state court may be removed by the

defendant to the District Court of the United States

for the district and division embracing the place

wherein it is pending:

“(1) Against any person who is denied or cannot

enforce in the courts of such state a right under any

law providing for the equal rights of citizens of the

Unitea States, or of all persons within the jurisdic-

tion thereof.”

28 U.S.C. § 1446(c)(1) provides:

“A notice of removal of a criminal prosecution shall

be filed not later than 30 days after the arraignment

in the state court, or at any time before trial, which-

ever is earlier, except that for good cause shown, the

United States District Court may enter an order

granting the defendant. . . leave to file the notice at a

later time.”

G. 28 U.S.C. § 1446(c)(3) provides:

“The filing of a notice of removal of a criminal pros-

ecution shall not prevent the state court in which

such prosecution is pending from proceeding further,

except that a judgment of conviction shall not be

entered unless the prosecution is first remanded.”

H. 42 U.S.C. § 1983 provides in relevant part:

“Every person, who, under color of any statute, ordi-

nance, regulation, custom, or usage of any state .

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in [a] .. . suit in

equity, or other proper proceeding for redress.”

I. Rule 38 F.R.A.P. provides:

“If the court of appeals determines that an appeal is

frivolous, it may, after a separately filed motion or notice

from the court and reasonable opportunity to respond,

award just damages and single or double costs to the

appellee.”

STATEMENT OF THE CASE

The proceedings culminating in the Seventh Circuit's

judgment described supra at p. 1 began when the appel-

lant below, Richard Haws (Haws), a 67 year old resident

of Illinois, was notified by agents of the Federal Bureau of

Investigation for the Central District of Illinois that he

was the target of an investigation and likely to be

indicted in the United States District Court for the Cen-

tral District of Illinois for interstate trafficking in stolen

agricultural products under 18 U.S.C. §§ 2311-2315, App.

2a, infra. Pursuant to being so advised, Haws hired Peti-

tioner, a lawyer licensed in Illinois and other jurisdic-

tions, but not Indiana, to represent him at Petitioner’s

customary fee of $150.00 per hour respecting any federal

indictment or other criminal action resulting from the

investigation. App. 2a, infra.

Between September 1, 1996 and September 13, 1996,

Petitioner investigated the factual basis for what he antic-

ipated would be the federal prosecution against Haws by

conferring with the Assistant United States Attorney, the

FBI agent involved, and those privy to Haws’ means of

doing business as Haws Chemical in Catlin, Illinois. App.

2a, infra. Petitioner tentatively concluded that Haws had

a factual defense which he presented to the Assistant

United States Attorney and FBI on Friday, September 20,

1996, in preparation for a meeting Petitioner, the Assis-

tant United States Attorney and the FBI had scheduled

for Monday, September 23, 1996. App. 2a, infra.

On the morning cf Monday, September 23, 1996, the

FBI agent in charge of the investigation advised Peti-

tioner the government would not seek Haws’ indictment.

App. 2a, infra. However, the agent also advised he could

not assure the various state jurisdictions involved, Illi-

nois, Indiana and Kentucky, would likewise refrain from

prosecuting. App. 2a, infra.

In the evening of September 23, 1996, Haws was

arrested from his residence in Eastern Illinois on a war-

rant issued on an information filed September 16, 1996 by

the Circuit Court of Fountain County, Indiana in “State of

Indiana v. Haws”, no. 9609 CF 329, charging him in two

counts with theft of property in a value greater than

$100,000.00 and “Corrupt Business Practices” (Indiana

RICO). App. 2-3a, infra. Because Haws was suffering a

heart condition requiring medication at regular intervals,

he waived, through Petitioner, extradition, pursuant to

the representation of Indiana and Illinois authorities he

would be transported the short distance from his Illinois

home to Fountain County, Indiana where he could post

ten percent of the $15,000.00 bond and be forthwith

returned to his home. App. 2a, infra. The state officials

honored that representation.

The warrant required Haws to appear in the Indiana

court on September 30, 1996, which he did, accompanied

by Petitioner. App. 3a, infra. Petitioner did not attempt to

enter an appearance as he was and is not licensed to

practice in Indiana and had not been given permission to

do so by the Indiana Circuit Court. App. 3a, infra.

Haws sought pro se a continuance of the arraignment

which the Indiana Circuit Court granted to November 1,

1996, so as to afford Haws time to seek local Indiana

counsel to serve with Petitioner as Petitioner understood

to be the objective requirements of Indiana Rule 3, supra,

p. 2. App. 3a, infra.

Between September 30, 1996 and October 8, 1996,

Petitioner sent six letters to six Indiana lawyers whose

names had been referred him as having experience in

criminal cases. App. 3a, infra. Petitioner, on behalf of

Haws, engaged the services at $250.00 per hour of the

3 As prohibited respectively by Indiana Code, § 34-43-2, a

Class B felony and § 35-45-6-2(a)(1), a Class C felony.

oP EI

SE —

only Indiana lawyer to reply, Nick Thiros of Merrillville,

Indiana, for the purposes of serving as pro forma local

counsel to satisfy what both Petitioner and Thiros

thought Rule 3 required. App. 3a, infra.

As Petitioner and Thiros understood, Rule 3 required

that Thiros read and sign all pleadings filed on behalf of

Haws; confer with Petitioner respecting any and all

pleadings served upon Haws by the State; remain abreast

of and familiar with all developments in the Fountain

County, Indiana criminal action against Haws and remain

jointly responsible with Petitioner for same; and, agree to

take over responsibility for the case in the event of the

disability of Petitioner. App. 3-4a, infra. Petitioner, Thiros

and Haws agreed that Petitioner would be primarily

responsible for the conduct of the defense of the Fountain

County criminal action and would utilize Thiros on an as

needed basis over and above his participating in the

particulars which Petitioner and Thiros deemed to be in

compliance with the objective requirements of Rule 3.

App. 3-4a, infra.

After Petitioner engaged Thiros, Thiros spoke to the

Fountain County prosecutors requesting an extension of

the arraignment to November 4, 1996 at which time he

could move Petitioner’s admission as pro hac vice counsel

for Haws. App. 3-4a, infra. In so doing, Thiros learned

from the Fountain County prosecutor that if he moved for

the admission of Petitioner pro hac vice under the circum-

stances where Petitioner would be lead counsel, the Cir-

cuit Court per the Honorable Vincent F, Grogg, presiding

judge, would deny the motion, as Judge Grogg enforced

Rule 3 as it facially permitted him to do, namely require

that Indiana counsel be responsible for the lead represen-

tation of all criminal defendants in Fountain County.

App. 3a, infra. Thiros also learned from the Fountain

County prosecutors that Haws’ entitlement to the pro hac

vice representation of Petitioner was allowed only as a

courtesy and on an advisory basis. App. 3-4a, infra.

Thiros further learned from the Indiana prosecutors

that if he moved Petitioner’s admission pro hac vice fol-

lowed by its denial, the Indiana Circuit Court would hold

Thiros solely responsible for representing Haws. App. 3a,

infra. Thiros did not desire that responsibility, nor did

Haws desire it for him as Haws did not know Thiros,

could not afford to pay an additional $250.00 per hour,

and desired the primary representation of Petitioner.

App. 3-4a, infra.

Petitioner and Thiros agreed it would be imprudent

for Thiros to move the admission of Petitioner pro hac

vice. App. 4a. Petitioner thus prepared for Haws to sign

and file pro se a motion for a continuance of the Novem-

ber 1, 1996 arraignment date and an amended motion for

Petitioner’s admission pro hac vice and Thiros’ admission

as local counsel on the basis both understood Rule 3 to

require. App. 4a, infra. The Indiana Circuit Court contin-

ued the arraignment to November 25, 1996, App. 24-25a,

infra, but denied Haws’ pro se motion for Petitioner’s

admission pro hac vice and Thiros’ limited admission as

local counsel. App. 25a, infra.

Petitioner then prepared a motion for Haws to sign

and file pro se to continue the November 25, 1996 arraign-

ment date so as to permit Petitioner to file on behalf of

Haws in the Indiana Supreme Court an original action

seeking relief in the nature of mandamus or prohibition

requiring that the circuit court permit Haws to be repre-

sented by Petitioner as lead counsel and Thiros as local

counsel on the grounds that Haws was entitled to the

same privileges and immunities in the Indiana courts as a

criminal defendant as similarly situated Indiana resi-

dents, including the right to counsel of choice. App. 26a,

infra. The Indiana Circuit Court denied Haws’ motion on

November 21, 1996. App. 4, 26, 27-29a, infra. On Novem-

ber 25, 1996, Haws, accompanied by Petitioner, whom

Haws requested be present, appeared pro se in the Indi-

ana Circuit Court for arraignment, a “critical stage” of a

criminal case. App. 25a, infra. He entered a plea of “not

guilty.” App. 25a, infra.

After the arraignment, Petitioner prepared and filed

on behalf of Haws on December 26, 1996,4 an original

action for relief in the nature of mandamus or prohibition

in the Indiana Supreme Court. App. 26a, infra. The Indi-

ana Supreme Court denied that petition on December 31,

1996. App. 27-29a, infra.

At the point the Indiana Supreme Court denied

Haws’ petition for relief in the nature of mandamus or

prohibition, Haws faced on January 17, 1997, an

“omnibus” hearing, a form of pretrial conference, and

thereafter, trial set for April 1, 1997, on two felonies

without any counsel at all. App. 25-26a, infra. As he had

been to engaged to represent Haws’ interests, Petitioner

perceived no means afforded under Indiana law to spare

Haws’ undergoing pretrial and trial in the Indiana Circuit

Court without counsel. Accordingly, Petitioner filed a

Notice of Removal pursuant to 28 U.S.C. §§ 1443(1) and

1446(c)(1) on January 14, 1997, 51 days after the putative

4 In conjunction with pro forma local counsel Robert Palmer

of May, Oberfell & Lorber of South Bend, Indiana.

November 25, 1996 arraignment of Haws in the Indiana

Circuit Court. App. 4, 26a, infra.

Indiana moved to remand the removed action on

only the ground that the notice was untimely as beyond

30 days specified in 28 U.S.C. § 1446(c)(1) of the Novem-

ber 25, 1996 putative arraignment of the unrepresented

Haws. App. 4a, infra. Prior to the district court’s ruling on

Indiana’s motion to remand, Haws, through Petitioner,

filed a 42 U.S.C. § 1983 action seeking declaratory judg-

ment that Rule 3 violated Haws’ Sixth Amendment rights

and his privilege and immunity to the same rights in an

Indiana court as Indiana residents and an injunction

against its enforcement. App. 4a, infra. Indiana moved to

dismiss that action on grounds of Younger abstention.

App. 4-5a, infra.

On April 17, 1997, the district court, per the Honor-

able S. Hugh Dillin, District Judge, ordered the removed

action remanded for the reason that it

s[{aw] no reason why it should grant [Haws]

leave to file [his Notice of Removal] at a time

later [than 30 days beyond November 25,

1996].”

App. B, 13a, infra. On June 5, 1997, the district court per

Judge Dillin ordered Haws’ § 1983 action dismissed on

grounds of Younger abstention. App. C, 19a, infra.

Haws perfected appeals from both orders which

appeals were then consolidated on Haws’ motion in the

Seventh Circuit. App. 34, 38a, infra. The Seventh Circuit

scheduled oral argument for November 6, 1997. App. 5a,

infra. Petitioner was discharged and directed to dismiss

RI OF oe nS mR

the appeals below, pursuant to which he filed a motion so

requesting, followed by Indiana’s response agreeing to

the dismissal but asking the Seventh Circuit to retain

jurisdiction to impose sanctions, followed by Petitioner’s

seeking leave to reply asking the court that if it retained

jurisdiction, to reach the merits. App. 5-6a, infra. The

court below did so and dismissed the appeals, found

them “frivolous” by reaching the merits, and sanctioned

Petitioner. App. 6-11a, infra.5

ty Me BN

> In support of sanctions, Indiana at argument falsely

asserted matters not of record and which it had never before

advanced that Petitioner had fraudulently represented Haws by

charging him the excessive fee of $120,000.00 for representing

him only in the Indiana Circuit Court case. See, Footnote 1,

supra, p. iii. In fact, Petitioner has been paid $40,000.00 cash and

received two notes in the amount of $80,000.00 to represent

Haws not only in the Indiana Circuit Court case, the two

Indiana federal actions, and the consolidated appeals

therefrom, but in two Illinois felony actions, People of the State

of Illinois v. Haws, no. 96-CF-602 and People of the State of

Illinois v. Haws, no. 97-CF-13, and an Illinois forfeiture action,

People of the State of Illinois v. 1994 Ford 350 Pickup, Claimant

Richard Haws, no. 96-MR-110, all in the Circuit Court of

i Vermilion County, Illinois. Petitioner secured for Haws

probationary sentences on the felony charges to run

concurrently, and the return of one of two vehicles in the

forfeiture action. As reflected in the post argument motion he

filed, Footnote 1, supra, p. i, Petitioner had expended 750.50

hours prior to October 27, 1997, and had earned $144,278.08 in

fees and reimbursable costs. Petitioner perceives that he cannot

ethically seek to collect the notes by reason of the sanction

judgment below finding the appeals “frivolous”.

REASONS FOR GRANTING THE WRIT

The Decision Below Conflicts With and Violates the

Mandate of This Court to the Seventh Circuit in

McKnight v. General Motors Corp., 511 U.S. 659 (1994),

by Finding “Frivolous” an Appeal Pressing the Impor-

tant Argument That a Non-Resident Criminal Defen-

dant Had the Sixth Amendment Right to the Pro Hac

Vice Representation of His Home State Counsel of

Choice, an Argument Specifically Reserved for Decision

by This Court in Leis v. Flynt, 439 U.S. 438, 442 n.4

(1979), and Not Yet Decided.

In Leis v. Flynt, supra, this Court held that attorneys

not licensed in the state of Ohio but requested by an Ohio

resident as a criminal defendant in an Ohio court to

represent him, had no liberty or property right under the

Fourteenth Amendment to appear and represent the

defendant in the Ohio court. This Court, however,

reserved for decision in Leis v. Flynt, supra, 439 U.S. at 442

n.4, the extent to which a state criminal defendant pos-

sessed the Sixth Amendment right to the pro hac vice

representation of counsel not licensed in the state where

the defendant faced criminal charges.®

In McKnight v. General Motors Corporation, supra, 511

U.S. at 659, this Court prohibited the issuance of

in Leis v. Flynt as the defendant-respondent, Larry Flynt, was an

Ohio Resident facing Ohio criminal charges in an Ohio court.

Flynt, accordingly, had no privileges and immunities argument

as would have had a non-Ohio criminal defendant who

attempted to engage the pro hac vice representation in an Ohio

court of his home state lawyer of choice, as obtains in this case.

sanctions for an appeal as “frivolous” under Rule 38

F.R.A.P. where this Court had not ruled on the core issue

presented by the appeal. All the issues presented for

review in this case, pp. i-ii, supra, and presented below,

center on the extent to which a non-resident criminal

defendant facing criminal charges in the forum state

court has the Sixth Amendment right to the pro hac vice

representation of his retained home state counsel of

choice. The record at bar shows appellant Haws had

taken all steps to protect the interests of Indiana as

described by this Court in such cases as Supreme Court of

New Hampshire v. Piper, supra, 470 U.S. at 285-287, and

Wheat v. United States, supra, 486 U.S. at 159-164, by hiring

local counsel to satisfy what both Petitioner and local

counsel perceived as the objective requirements of Rule 3.

As the published decision below is in direct conflict

with this Court’s holding in McKnight v. General Motors,

supra, this Court’s review is merited for two pressing

reasons. First, to require the Seventh Circuit to honor the

mandate and salutary rule of McKnight, supra. Without

that review, any lawyer raising an argument on direct

appeal of right either not resolved by this Court or speci-

fically reserved by this Court for decision, but with which

the court of appeals disagrees, is vulnerable to Rule 38

F.R.A.P. sanctions.

Second, that vulnerability to sanctions will inhibit

and make tentative the efforts of lawyers, particularly

those originally representing defendants in state criminal

cases who confront the Hobson’s choice of either remov-

ing and filing a § 1983 action or abandoning their clients

to face trial without counsel. Any appeal lawyers perfect

from adverse district court judgments for pursuing the

former will be subject to the real threat of sanctions under

the holding below. McKnight, supra, was presumably

decided to prevent that very Sword of Damocles inhibi-

ting the efforts of counsel in both the foregoing circum-

stances.

The Decision Below Conflicts With This Court’s Privi-

leges and Immunities Precedents in Canadian Northern

Railway Company v. Eggen, 252 U.S. 553 (1920); Supreme

Court of New Hampshire v. Piper, 470 U.S. 274 (1980);

and, Supreme Court of Virginia v. Friedman, 487 U.S. 59

(1988), Necessarily Including Such of This Court’s Right

to Counsel Precedents as Powell v. Alabama, 287 U.S. 45

(1932); Gideon v. Wainwright, 372 U.S. 335 (1963); Cole-

man v. Alabama, 399 U.S. 1 (1970); United States v.

Wade, 388 U.S. 218 (1967); Faretta v. California, 422 U.S.

806 (1975); Wheat v. United states, 486 U.S. 153 (1989),

and United States v. Cronic, 466 U.S. 648, 653 (1984).

The Decision Below Punishes Petitioner for Advancing

on Behalf of a Non-Resident State Criminal Defendant

the Right to “Equal Access to the Courts of [the Forum

State]” as Accorded Citizens of the Forum State Sim-

ilarly Situated, Including the Right to Counsel of

Choice.

Article IV, § 2 of the Constitution provides that, “the

citizens of each state shall be entitled to all the privileges

and immunities of the citizens of the several states.” In

Canadian Northern Railway Company v. Eggen, supra, 252

U.S. at 560, this Court observed that it,

“had never attempted to formulate a compre-

hensive list of the rights included within the

[Privileges and Immunities Clause] of the Con-

stitution, Article IV, § 2....”

Nonetheless, this Court observed in Eggen, id., that it,

“had repeatedly approved as authoritative the

statement by Mr. Justice Washington in 1823 in

Corfield v. Coryell, 4 Wash., C.C. 371, 380 (1823)

(the first federal case in which the clause was

considered), saying: “We feel no hesitation in

confining these expressions to those privileges

and immunities which are, in their nature, fun-

damental.’ ”

(Emphasis in Eggen). The Court in Eggen then noted that

in Corfield, the Court included in a partial list of such

“fundamental privileges”, “ ‘the right of a citizen of one

state . . . to equal access to the courts of another state.’ ”

Id. In Supreme Court of New Hampshire v. Piper, supra, 470

U.S. at 281 n.10, this Court noted, “those privileges on

Justice Washington’s list [are] still . . . protected by the

Clause.”

Further, this Court, in Piper, supra, 470 U.S. at 280 n.8,

recognized the “ ‘mutually reinforcing relationship’

between the Commerce Clause and the Privileges and

Immunities Clause.” In so doing, the Court in Piper held

that a non-resident lawyer who had passed the bar of a

state could not be precluded under the Privileges and

Immunities Clause from practicing law in that state by

reason of her non-residency. The Piper rule was extended

in Supreme Court of Virginia v. Friedman, supra, to the

rights of a non-resident lawyer to be admitted “on

motion” to the bar of a state where she was not a resi-

dent, similarly to the right of lawyers who were residents

of the state or otherwise permitted to be admitted “on

motion.”

y 3

The Decision Below Punishes Petitioner for Advancing

on Behalf of a Non-Resident State Court Defendant the

Argument That Defendant Was Constitutionally Enti-

tled Not to be Forced to Trial on Two Felonies Without

Counsel, Particularly in Light of His Having Satisfied

All the Concerns the Forum State Could Assert as

Described in inter alia Piper, supra; Friedman, supra;

and, Wheat, supra.

The Sixth Amendment mandates that, “in all criminal

prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defense.” Powell v. Ala-

bama, 287 U.S. 45, 68 (1932) (Emphasis supplied). The

right to counsel has been established as “fundamental”

since Powell v. Alabama, supra, in 1932 relative to capital

cases as deserving application to the States through the

Fourteenth Amendment Due Process Clause. It was so

found to be fundamental in Gideon v. Wainwright, 372 U.S.

335, 344 (1963), as to all non-capital criminal cases. It was

so held fundamental in misdemeanor cases. Argersinger v.

Hamlin, 407 U.S. 25 (1972). Indeed, the right to the “guid-

ing hand of counsel”, Powell, supra, was recognized by

this Court’s unanimous decision in United States v. Cronic,

466 U.S. 648, 653 (1984), as so fundamental that, “[o]f all

the rights that an accused person has, [it] is by far the

most pervasive for it affects his ability to assert any other

rights he may have.’ ”

The right to the “guiding hand of counsel” requires

“in addition to counsel’s presence at trial [that]

the accused [be] guaranteed that he need not

stand alone against the State at any stage of a

prosecution, formal or informal, in court or out,

where counsel’s absence might derogate from

the accused’s right to a fair trial.”

Coleman v. Alabama, 399 U.S. 1, 7 (1970). The right to

counsel “presum[es] [a right] in favor of counsel of

choice.” Wheat v. United States, supra, 486 U.S. at 160,

specifically rejecting the government's argument that the

Sixth Amendment only insured an accused, “the assis-

tance of counsel for his defense.” Brief of the United

States, pp. 6-7, Wheat v. United States, No. 87-4. The right

to counsel of choice is personal and thereby permits a

defendant the choice of representing himself. Faretta v.

California, supra.

This case presents a problem more fundamental and

important than any lawyer’s right to practice law in a

particular jurisdiction. It does not present any claim by

Petitioner of a right to practice law in Indiana. But, this

case does starkly present the right of non-forum state

residents haled involuntarily into forum state courts as

criminal defendants to be represented by their counsel of

choice, where counsel is licensed in the defendants’ own

state but not the forum state.

It would be profoundly anomalous and contrary to

this Court’s Sixth Amendment and Article IV, § 2 prece-

dents to relegate the right of non-resident criminal defen-

dants in the courts of a forum state to a position inferior

to that of non-resident lawyers who had passed the bar to

practice in the forum state as non-residents. Piper, supra;

Friedman, supra. That profound anomaly has especial

force in this case. Petitioner had engaged local Indiana

counsel to protect the very interests which Indiana has a

right to demand, as outlined by this Court in Piper, supra,

470 U.S. at 285-288; Friedman, supra, 487 U.S. at 67-70;

and, Wheat, supra. The decision below requires this

Court’s review.

The Decision Below Conflicts With Decisions of the

First, Third and Tenth Circuits Forbidding Rejection or

Disqualification of Pro Hac Vice Counsel Without Spec-

ific Findings Justifying Such Rejection or Disqualifica-

tion, Particularly Where the Rejection Has the Effect of

Denying a Non-Resident Criminal Defendant Any

Counsel at All, Contrary to the Sixth Amendment.

The First Circuit, in United States v. Panzardi-Alvarez,

816 F.2d 813, 817 (1st Cir. 1987); the Third Circuit in Fuller

v. Diesslin, 868 F.2d 604 (3d Cir. 1989), and United States v.

Laura, 607 F.2d 52, 58 (3d Cir. 1979); and, the Tenth Circuit

in United States v. Collins, 920 F.2d 619, 626 (10th Cir.

1990), specifically held that a defendant in a criminal case

has the Sixth Amendment right to the pro hac vice repre-

sentation of his or her counsel of choice. In particular, the

Tenth Circuit in United States v. Collins said that while

“[t]he admission of attorneys pro hac vice is per-

mitted to the discretion of the district courts,

denial of admission pro hac vice in criminal cases

implicates the constitutional right to the counsel

of choice.”

Collins, supra, 920 F.2d at 626. In language mirroring that

of this Court in Piper, supra, 470 U.S. at 285-287, the Tenth

Circuit in Collins said:

“The defendant's choice to retain counsel must

be respected ‘unless it would unreasonably

delay proceedings or burden the court with

retained counsel who was incompetent or

unwilling to abide by court rules and ethical

guidelines’ (citation omitted) and ‘should be

deprived only where such drastic action is nec-

essary to further some overriding social or ethi-

cal interests’ (citations omitted). Courts must,

therefore, balance defendant’s constitutional

right to retain counsel of his choice against the

need to maintain the highest standard of profes-

sional responsibility, the public’s confidence and

the integrity of the judicial process and the

orderly administration of justice.”

Id.

The Third Circuit in Fuller, supra, 868 F.2d 607, noted

the “highly mobile” bar nationwide which has at its

disposal modern transportation and communication. The

court in Fuller said, therefore, “the number of occasions

in which a defendant will desire to be represented by

counsel pro hac vice is frequent and will be increasingly

so.” Id. This Court had made the same observations in

Barnard v. Thorstenn, 489 U.S. 546 (1989), and Frazier v.

Heebe, 482 U.S. 641, 648-665 (1987), as well as in Piper,

supra.

The court in Fuller, supra, 868 F.2d at 607, said that

not only did a defendant in a criminal case have the Sixth

Amendment right to pro hac vice counsel of choice, it said

further,

“[a]rbitrarily to deny defendant the right to

obtain counsel from outside the state would

untowardly limit the possible choices the defen-

dant might have. Thus, we conclude that the

right to counsel pro hac vice is encompassed

analytically within the right to counsel of

choice, and as such should be examined within

the analytic framework generally employed in

the right to counsel of choice cases.”

The Tenth Circuit in Collins, supra, 920 F.2d at 626, exam-

ined the means by which pro hac vice representation

could, nonarbitrarily and consistently with the Sixth

Amendment, be regulated. Similarly to this Court’s hold-

ing in Wheat, supra, the Tenth Circuit said, “[c]ourts may

consider an attorney’s ethical fitness before granting a

motion to proceed pro hac vice”, and require that counsel

satisfy the court’s interest that a defendant receive com-

petent representation. Id.

Thus, in Collins, the Tenth Circuit affirmed a district

court’s order disqualifying defendant’s pro hac vice coun-

sel because counsel was pursuing an “agenda” type

defense based on the lawyer’s personal crusade urging

the invalidity of the Sixteenth Amendment's grant of

power to levy the income tax. The court held that by so

doing, the pro hac vice lawyer was sacrificing his counsel's

legal interests to the espousal of his own rejected legal

philosophy.

Appellant below, through Petitioner, in moving for

Petitioner’s admission pro hac vice, asked for a hearing to

the extent the Indiana Circuit Court had any concerns of

the type expressed in Wheat, supra, and Collins, supra. The

Indiana court did not permit a hearing. Nothing in the

record presented before the Indiana court suggested any

basis for the court’s denying Haws the right to the pro hac

vice representation of Petitioner. App. 24-25a, infra.

The decision below conflicts with the foregoing pre-

cedents. The court below attempted to distinguish those

precedents on the ground that, procedurally, the right to

counsel issue arose on either direct appeal or federal

habeas corpus. App. 7-8a, infra. By so distinguishing the

precedents, the Seventh Circuit extinguished “the most

pervasive [of a criminal defendant’s rights] . . . affect[ing]

his ability to assert any other rights he may have”, Cronic,

supra, 466 U.S. at 653, at the only point functionally and

constitutionally meaningful, the first “critical stage” of a

criminal prosecution. United States v. Wade, supra, 388 U.S.

at 226-228.

The decision below thereby violates the longstanding

doctrine established by this Court that conditions cannot

be placed on the exercise of constitutional rights. See

Speiser v. Randall, 357 U.S. 513 (1968); Sherbert v. Verner,

374 U.S. 398 (1963); and, Shapiro v. Thompson, 394 U.S. 618

(1969). The decision below accords priority to Indiana's

Rule 3 over Haws’ privilege and immunity to equal

access to the courts of Indiana as accorded Indiana resi-

dents and his Sixth Amendment right to counsel. It

requires a non-resident criminal defendant to submit to

Rule 3’s requirements in order to enjoy that “most perva-

sive” constitutional right he possesses, the right to coun-

se]. Cronic, supra, 466 U.S. at 653. The holding below is

constitutionally untenable in light of this Court’s prece-

dents construing a criminal defendant’s Sixth Amend-

ment rights.

The Decision Below Conflicts With this Court’s Prece-

dent in Justices of the Municipal Court v. Lydon, 466

U.S. 294, 303 (1984), Barring, Under the Younger v. Harris

“Other Unusual Circumstances” Test, Abstention to Pre-

vent Federal Adjudication Seeking to Avoid a State

Court Order Subjecting a Defendant to a Second Jeop-

ardy, an Order Constitutionally and Functionally Indis-

tinguishable from an Order Forcing a Non-Resident

Criminal Defendant to Trial on Two Felonies Without

Counsel.

This Court in Justices of the Municipal Court of Boston

v. Lydon, 466 U.S. 294, 303 (1984), on the authority of

Abney v. United States, 431 U.S. 661 (1977), held that

Younger v. Harris abstention could not be employed to bar

a 42 U.S.C. § 1983 action seeking to enjoin a second trial

in violation of the Double Jeopardy Clause. The Court in

Lydon, supra, 466 U.S. at 303, held that Younger’s “other

unusual circumstances exception” barred abstention as its

application would require the state criminal defendant,

federal plaintiff, to “run the entire gamut of state pro-

cedures, including retrial, prior to consideration of his

claim in federal court. ...”7” Lydon, supra, recognized that

the bar against double jeopardy was an immunity of a

“special nature” which “could never be fully vindicated

”

on appeal following a final judgment... ”, as it “pro-

tected] ‘against being twice put to trial for the same

offense.’ ” Lydon, supra, 466 U.S. at 303, quoting Abney,

supra, 431 U.S. at 661. (Emphasis in Abney).

Notwithstanding Flanagan v. United States, 465 U.S.

259 (1984), discussed infra, the right to counsel is of no

less a “special nature” than the right not to be subjected

to a second jeopardy. Indeed, the right to counsel was

held to be “fundamental” in the sense of being “implicit

in the concept of ordered liberty”, Palko v. Connecticut,

302 U.S. 391, 325 (1937), 37 years before the guarantee

against double jeopardy was so held. Compare Powell v.

Alabama, supra, decided in 1932 with Benton v. *aryland,

395 U.S. 784 (1969).

Therefore, if anything, the right to the “guiding hand

of counsel”, Powell, supra, is more fundamental and pre-

sumably thereby more immune to abridgement prior to

trial than is the right to avoid being forced to a second

7 This Court’s decision last term in Hudson v. United States,

_. ~;U.S. ___, 118 S.Ct. 488 (1997), may have diluted the

protection of the Double Jeopardy Clause in this respect by

saying that it protects only against multiple punishments, not

multiple trials.

trial in violation of the Double Jeopardy Clause. No pre-

cedent of this Court permits a requirement that a criminal

defendant from the outset

“stand alone against the state at any stage of the

prosecution, formal or informal, in court or out,

where counsel’s absence might derogate from

the accused’s right to a fair trial.”

Coleman v. Alabama, supra, 399 U.S. at 7. The right has

generally been held to begin at the “critical stage” of a

criminal proceeding, usually the arraignment. See, United

States v. Wade, supra, 388 U.S. at 227, and Hamilton v.

Alabama, 368 U.S. 52 (1961).8

The decision below departs from long established

right to counsel norms. It, therefore, requires this Court's

review.

8 The court below relied only on Mann v. Jett, 781 F.2d 1448

(9th Cir. 1986), for its holding that Petitioner procedurally and

sanctionably erred in perfecting Haws’ right to counsel before,

rather than after any conviction he might suffer without

counsel. But, Mann v. Jett does not support the decision below.

Mann involved a federal plaintiff facing state charges in Arizona

but incarcerated in California. He sought to avoid the Arizona

prosecution on the grounds Arizona had not appointed counsel

for him. However, the Ninth Circuit rightly upheld Younger

abstention as the plaintiff had impeded his extradition from

California to Arizona, thereby making any claim for

appointment of counsel by the Arizona state court at best

premature.

The Decision Below Conflicts With This Court’s Prece-

dents in Gerstein v. Pugh, 420 U.S. 103, 108 n.9 (1975);

Coopers and Lybrand v. Livesay, 437 U.S. 463 (1978); and,

Flanagan v. United States, 465 U.S. 259, 268-269 (1984),

as Ratifying a State Court Order Forcing a Non-Resi-

dent Defendant to Trial on Two Felonies Without Coun-

sel, an Order Collateral to the Merits of the State

Prosecution and, Therefore, Exempt from the Bar of

Younger Abstention.

In Flanagan v. United States, supra, the Court held that

disqualification of joint counsel for multiple defendants

was not a final appealable order for the reason it was not

collateral to the merits of the case as defendants were

required to show prejudice to demonstrate the violation

of any right to counsel. The Court in Flanagan recognized,

however, that rights such as the right to avoid a second

jeopardy were collateral to the merits and, therefore,

were final and appealable orders under Coopers and

Lybrand v. Livesay, 437 U.S. 463, 468 (1978). In Gerstein v.

Pugh, 420 U.S. 103, 108 n.9 (1975), this Court held criminal

defendants’ § 1983 challenge to a Florida procedure per-

mitting detention on a prosecutor’s assertion, but not a

magistrate’s finding of probable cause was collateral to

the merits of a state prosecution and thereby not barred

by Younger abstention.

The Indiana state court order denying Haws counsel

prior to trial is no less collateral under the Coopers and

Lybrand v. Livesay and Gerstein v. Pugh criteria. The state

court order denying Haws the pro hac vice representation

of Petitioner without first hiring full time at full fee an

Indiana lawyer as lead counsel thereby effectively deny-

ing Haws any counsel at all denied him a

“ ‘right . . . far more pervasive [than any other

constitutional rights], for it affect{ed] [Haws’]

ability to assert any other rights he may have

[had].’ ”

United States v. Cronic, supra, 466 U.S. at 563. Thus, the

order of the Indiana court denying Haws the right to

counsel was anterior to and preclusive of Haws’ ability to

even reach the merits of the criminal prosecution. /d.;

Coleman v. Alabama, supra, 399 U.S. at 7.

The Indiana order, ratified by the Seventh Circuit,

foreclosed Haws’ opportunity to assert prejudice. It

deprived him “ ‘a reasonably competent attorney’ ”

“whose advice [was] ‘within the range of competence

demanded of attorneys in criminal cases’ ”, the primary

vehicle through which he could assert prejudice. United

States v. Cronic, supra, 466 U.S. at 655, quoting McMann v.

Richardson, 397 U.S. 759, 770-771 (1970). The Seventh Cir-

cuit ratified an order precluding Haws from securing a

determination of the truth through a criminal trial’s

“character as a confrontation between adversaries. .. . ”

Cronic, supra, 466 U.S. at 657.

The Seventh Circuit thus upheld an order “presump-

tively unreliable [and] requir[ing] [n]o specific showing

of prejudice ... ,” id., at 659, “ ‘[and] [which] no. .

showing of want of prejudice [could] cure’ ”, and, there-

fore, collateral to the merits of the prosecution. Id. The

decision below, therefore, requires this Court’s review.’

° The state trial below was never enjoined. Rather, the

Indiana trial court, on Haws’ pro se motion, continued the April

1, 1997 trial date to November 1, 1997, thence to January 5, 1998,

and thence to March 5, 1998, at which time Haws appeared and

through Attorney McCabe changed his plea of “not guilty” to

“guilty” and awaits sentencing on April 20, 1998. However, the

The Decision Below Conflicts With This Court’s Sixth

Amendment Precedents by Punishing Counsel for

Attempting to Discharge His Sixth Amendment Duty to

Render the Effective Assistance of Counsel to a Defen-

dant in a Criminal Case by Pursuing the Only Remedies

Available to Prevent the Defendant from Facing Trial on

Two Felonies Without Any Counsel at All.

A lawyer engaged to represent a defendant in a crim-

inal case is constitutionally required to ensure that the

truth finding process be advanced by “ ‘powerful argu-

ments on both sides of the question.’ ” United States v.

Cronic, supra, 466 U.S. at 655. A lawver is, therefore,

required under the Sixth Amendment to ensure that

Notice of Removal and the pendency of the actions in the courts

below may have contributed to the Indiana court’s continuing

the criminal action.

Petitioner, on behalf of Haws, at pp. 12-17 of his Reply Brief,

demonstrated how Georgia v. Rachel, predicated on the present

wording of 28 U.S.C. § 1443(1) deriving from § 641 of the

Revised Statutes of 1874 specifically deleting prior reference to

“racial equality” and as construed by this Court’s precedents in

such cases as Strauder v. West Virginia, 100 U.S. 303 (1879); Neal

v. Delaware, 103 U.S. 370 (1881); and, Kentucky v. Powers, 201 U.S.

1 (1906), and the Second Circuit’s decision in New York v.

Galamison, 342 F.2d 255 (2d Cir. 1965), did not require that the

federal law which a state law of statewide application offended

protected a discrete class of United States citizens only with

respect to “racial equality” as held by the court below. Rather,

the pre-Rachel cases and New York v. Galamison, supra, adopted

by Rachel made clear that federal law need only protect “equal

rights”. Indiana’s argument, sustained below, that the

pre-Rachel cases had been “overruled by Rachel” is foreclosed by

Rachel itself.

““partisan advocacy on both sides of a case

. . » promote[s] the ultimate objective that the

guilty will be convicted and the innocent go

free.’ ”

Id. Most importantly, the duty of a lawyer in a criminal

case is to ensure that

“a7

an accused person has([] the right to be repre-

sented by counsel [as it] is by far the most

pervasive [of all the rights of a criminal defen-

dant] for it affects his ability to assert any other

rights he may have.’ ”

Id., at 654.

At the time he removed what became appeal No.

97-2047 below, Petitioner’s client Haws faced trial on two

felonies with no lawyer at all. The Seventh Circuit has

held Petitioner should have abandoned Haws at that

point. It has punished him for, instead, pursuing Haws’

“right to be represented by counsel . . . affect[ing]

[Haws’] ability to assert any other right he may have’ ”

had as a criminal defendant. Id., at 653. The decision

below has punished Petitioner’s attempt to satisfy his

obligation to ensure that Haws had

“7

counsel acting in the role of an advocate’ [for

the purpose of assuring] the right of [Haws] to

require the prosecution’s case to survive the

crucible of a meaningful adversarial testing.”

Id., at 656.

The decision below defeats this Court’s unanimous

requirement that a criminal defendant have, beginning at

arraignment, “ ‘most pervasive [right] . . . affect[ing] his

ability to assert any other rights he may have’ ”, id., at

654; Wade, supra, 388 U.S. at 227. This Court should,

therefore, review the decision below.

The Decision Below Sua Sponte Imposing Rule 38

F.R.A.P. Sanctions Without the Appellees Filing a Sepa-

rate Motion for Same or the Court Giving a Separate

Notice and Affording Petitioner an Opportunity to Be

Heard Is in Direct Conflict with the Text of Rule 38, in

Conflict With the Seventh Circuit’s Own Rule 38 Prece-

dents and the Precedents of All the Other Circuits, and

Denies Petitioner Due Process of Law.

Rule 38 F.R.A.P. is as explicit in its textual require-

ments as the statute construed this term in Brogan v.

United States, __ U.S. __, 118 S.Ct. 805 (1998), holding

that the “exculpatory no” defense, which may be con-

strued as false, was not a defense. Rule 38 requires a

separate motion seeking sanctions or a separate notice

from the court indicating its intent to impose them and

affording counsel an opportunity to respond.

The Seventh Circuit, in In the Matter of Tad Bero, 110

F.3d 462, 466 (7th Cir. 1997) and Linc Finance Corp. v.

Onwuteaka, 129 F.3d 917, 924-925 (7th Cir. 1997), decisions

written by two of the judges on the Panel sanctioning

Petitioner, recognized as much. In In the Matter of Tad

Bero, supra, 110 F.3d at 466, Judge Evans wrote,

“Before sanctions can be ordered, the rule

requires either a separate motion for sanctions

or a notice from us that sanctions are in the

winds. Although it may be a bit of a waste of

time in this case to require strict adherence to

procedure as Bero has received actual notice of

the request through Dougherty’s brief and rep-

lied to it in his own, we will do so. . . . Bero will

have 14 days to tell us why sanctions should not

be ordered or why the sum we note is too high.”

Also, Judge Cummings in Linc Finance Corp., supra, 129

F.3d at 924-925, said,

“sanctions under Rule 38 are justified ‘when the

result is obvious or when appellant’s argument

is wholly without merit’ . . . [a] ‘standard

[which] depends on the work product... . ’

[Appellant] could not reasonably have hoped to

prevail when his arguments on appeal

were ... pressed .. . before this court without a

single citation to a case or statute as support.”

The court below found Petitioner had “vigorously argued

that the [district court] orders . . . should be reversed.”

App. 5a, infra.

The merits of the appeals below warranted reversal

of the orders of the district court. Instead of reversal, the

court below found the appeals “frivolous” and sanc-

tioned Petitioner without prior notice or an opportunity

to be heard. The textual requirements of Rule 38, which

do no more than codify the essential requirement of due

process, together with conflicting precedents in the Sev-

enth Circuit and all the other circuits, require this Court’s

review of the decision below.

CONCLUSION

For the reasons stated herein, Petitioner prays that

this Court issue a writ of certiorari to review the decision

below.

Respectfully submitted,

Law Offices OF JOHN H. BisseE

437 North Lafayette Street

Macomb, Illinois 61455

Telephone: (309) 833-1797

APPENDIX

Seventh Circuit Published Opinion — Decem-

eS Es ee A Nene sue kes eens s

District Court Order of Remand - April 17,

(gS SS PERE Ge Sea ee Satie ay eT rang ee

District Court Memorandum of Opinion -

i ME va tct eu. phuke kane es tue sane eén'e 5 406

Seventh Circuit Judgment With Oral Argu-

ment —- December 10, 1997..............c0s000

Seventh Circuit Order Denying Petition for

Rehearing En Banc — January 26, 1998 .........

Fountain County Circuit Court Docket

ECR WA MAGE ESRC EES ON bSOS Na Se RKe eee es

Supreme Court of Indiana Order Dismissing

Petition - December 31, 1996..................

United States District Court Docket, IP97-

es wee bene ane

United "States District Court Docket, IP97-

nN Oe ee Si ee wake BCS

Nee vA

APPENDIX A

In the

United States Court of Appeals

for the Seventh Circuit

No. 97-2047

THE STATE OF INDIANA,

Plaintiff-Appellee,

RicHARD Haws,

Defendant-Appellant.

No. 97-2521

RicHARD Haws,

Plaintiff-Appellant,

THe INpivipuat Justices OF THE INDIANA SUPREME Court, in

their official and administrative capacities; JEFFERY Mop-

iseTT, in his official capacity as the Indiana Attorney Gen-

eral; Vincent F. Groce, in his official capacity as the

Circuit Judge of the Fountain County, Indiana Circuit

Court,

Defendants-Appellees.

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

Nos. IP97-0061-C-T/G and IP97-0461-C-D/F -

S. Hugh Dillin, Judge.

ARGUED Novemser 6, 1997 — Decipep Decemser 10, 1997

Before Cummincs, Manion, and Evans, Circuit Judges.

Evans, Circuit Judge. These were bizarre cases in the

district court, and they took a very bizarre turn shortly

before we were set to hear oral arguments on appeal. One

case is an appeal from an order remanding a state crimi-

nal prosecution to an Indiana court which followed Rich-

ard Haws’ removal of the case to the United States

District Court for the Southern District of Indiana; the

other case is an appeal from the dismissal of a 42 U.S.C.

§ 1983 suit against the individual justices of the Indiana

Supreme Court (and others) in which Haws sought a

judgment declaring that he was deprived of counsel of

his choice in the Indiana proceeding.

Haws is a 67-year-old man who says he has a heart

condition. He is an agricultural chemical dealer doing

business as Haws Chemical in Catlin, Illinois. It seems he

was advised by the FBI that he might be indicted in

federal court, the Central District of Illinois, for interstate

trafficking in stolen agricultural chemicals. This warning

prompted him to engage Attorney John Bisbee of Mac-

omb, Illinois, to represent his interests. On September 23,

1996, the FBI advised Bisbee that it decided not to seek an

indictment.

Haws’ troubles were not over, however, because on

that same day, Indiana agents, accompanied by Illinois

State Police agents, arrested him on a warrant noting

charges filed in the state circuit court for Fountain

County, Indiana. He was charged in two counts: (1) theft

oo rao ett ae ¢

SBR IG ISA fad Ong? AE

eee Se ge eee ee ead

of property valued at more than $100,000, an Indiana

Class B felony; and (2) corrupt business practices (RICO),

an Indiana Class C felony.

Haws appeared on September 30 in the Fountain

County circuit court accompanied by Mr. Bisbee, who

was not licensed to practice law in Indiana. Bisbee did

not enter an appearance as an attorney for Haws because

Rule 3 of the Indiana Rules on Admission and Discipline

says:

A member of the Bar of another state or

territory of the United States, or District of

Columbia, may appear, in the trial court’s sole

discretion, in Indiana trial courts in any particu-

lar proceeding for temporary period so long as

said attorney appears with local Indiana counsel

after petitioning the trial court for the courtesy

and disclosing in said petition all pending

causes in Indiana in which said attorney has

been permitted to appear. Local counsel shall

sign all briefs, papers and pleadings in such

cause and shall be jointly responsible therefor.

The case was continued for arraignment to November 1,

1996. Haws engaged Indiana counsel, Nick Thiros, to

serve as local counsel.

Thiros discussed the case with the Fountain County

prosecutor, who told him that the Fountain County circuit

court required that Indiana counsel serve as lead counsel,

with pro hac vice counsel serving in an advisory capacity,

and that if Thiros moved for Bisbee’s admission the

motion would be denied and Thiros would be required to

represent Haws alone.

Based on this information, Thiros told Haws it would

not be prudent for him to move for Bisbee’s admission.

Haws then filed a pro se motion for Bisbee’s admission as

lead counsel and for Thiros to appear on a limited basis.

He also filed an amended motion; this one was prepared

by Bisbee but signed by Haws. The motion was denied

without a hearing and the arraignment was continued to

November 25. Haws appeared on November 25, accom-

panied by Bisbee but otherwise unrepresented, and

entered a not guilty plea.

On December 27 Haws petitioned the Indiana

Supreme Court for mandamus or prohibition, claiming

that the denial of his pro se motion for pro hac vice counsel

(Bisbee) to represent him was a violation of his right to

counsel and of his rights under the Privileges and Immu-

nities and Equal Protection Clauses of the Constitution.

On January 6, 1997, the Indiana Supreme Court denied

the petition, saying that the trial judge may have erred

but that it was not necessary to address the issue now

because an appeal from the criminal case would ulti-

mately be available to correct any errors.

On January 15, 1997, Bisbee, on behalf of Haws, filed

a detailed (18-page) “Notice of Removal Pursuant to 28

U.S.C. § 1443(1) and (2).” The case moved to federal

court, but it was subsequently remanded back to state

court by the federal district judge because the notice of

removal was untimely. Meanwhile, Haws, with Bisbee at

the controls, filed his § 1983 case against the justices of

the Indiana Supreme Court, the Indiana circuit court

judge assigned to his case, and the Fountain County

prosecutor, seeking declaratory and injunctive relief. On

June 5, 1997, the district court dismissed this complaint

citing abstention, pursuant to Younger v. Harris, 401 U.S.

37 (1971).

Attorney Bisbee has driven the bus on Haws’ two

appeals. He signed the main brief which was filed with

us on August 5, 1997, and the reply brief that followed 6

weeks later. The briefs vigorously argued that the orders

in each case should be reversed. Oral arguments on the

appeals were scheduled to be heard on November 6, 1997.

A few days prior to the oral argument date, the

appeals fizzled out when Haws fired Bisbee and we were

asked to dismiss the proceedings. But not so fast, said the

Hoosier State; the appeals were patently frivolous and

should never have been filed. Although the State “in the

interest of expediting resolution of this matter and avoid-

ing further wasted resources” told us it would not con-

tinue its quest for sanctions (it asked for them in its main

brief), we were reminded that we could impose them sua

sponte if we thought they were appropriate. Because

things were happening rather fast (a blitz of faxes were

coming in), we kept the case on the November 6 calendar,

and Mr. Bisbee and the attorney for the State were heard

on the dismissal motion and the matter of sanctions.

The first question is whether the appeals should be

dismissed. One would think they should be. In a letter to

Mr. Bisbee, Haws wrote, “I... terminate the services of

John H. Bisbee as my attorney on all matters” and |

“direct Mr. Bisbee to dismiss the appeal(s) now pending

in the U.S. Court of Appeals for the Seventh Circuit... .”

But Attorney Bisbee filed an odd response to the situation

in motion papers we received on November 4. In his

filing, Bisbee wrote that Haws’ request to dismiss the case

was motivated by “false representations, inducements

and importunings” of Attorney James McCabe of Wil-

liamsport, Indiana. He wrote further that Haws “gains no

perceivable benefit by dismissal of the above captioned

appeals but could suffer possible legal detriment by such

dismissal... .” Bisbee then went on to advance the rather

strange notion that we should take judicial notice of

Haws “as the representative of a class of non-Indiana

resident criminal defendants in Indiana courts” and in

that regard permit one of the suits “to continue on behalf

of the class judicially so noticed and proceed to argument

on November 6, 1997 and decision.” Shades of the Twi-

light Zone.

The appeals, we believe, should be dismissed. The

only appellant in each case wants to put an end to the

litigation, and he should get his wish. The more interest-

ing question is whether Attorney Bisbee should be sanc-

tioned. We think a sanction is called for because these

cases, from the get-go, had procedural obstacles that were

insurmountable.

The underlying issue as to whether Haws was enti-

tled to have Bisbee represent him could not properly be

presented in these cases even though the general rule is

that a court may not arbitrarily deny a defendant the

right to retain counsel of his choice. See United States v.

Solina, 733 F.2d 1208 (7th Cir. 1984); Wheat v. United States,

486 U.S. 153 (1988). Does this right extend to the right to

have counsel pro hac vice? The Supreme Court has

decided that it does not offend the lawyer’s constitutional

rights not to be allowed to appeal. See Leis v. Larry Flynt,

439 U.S. 438 (1979). But it left open the issue of the

defendant’s rights.

od AF ARERR Ati Be

= Aalto Rear

The First, Third, and Tenth Circuits have concluded

that denial of pro hac vice counsel implicates the Sixth

Amendment, and a defendant’s choice cannot be arbi-

trarily denied. United States v. Panzardi Alvarez, 816 F.2d

813 (1st Cir. 1987); Fuller v. Diesslin, 868 F.2d 604 (3rd Cir.

1989); United States v. Collins, 920 F.2d 619 (10th Cir. 1990).

Panzardi Alvarez was a federal trial and the issue was

raised on direct appeal; the court concluded his rights

had been violated because he did not have pro hac vice

counsel of his choice. United States v. Collins was also a

direct appeal of a federal prosecution in which the pro hac

vice admission of an obnoxious tax-protestor attorney was

revoked; the court upheld the revocation because it was

not arbitrary and was done in the same manner as a

revocation of a regular member of the Western District of

Oklahoma. Fuller was a state prosecution and the issue

was being considered on a habeas petition; the court

found that the writ was properly issued because the

denial of the right to counsel was violated.

But the cases illustrate that the problem Haws faced

was procedural. He had not yet been convicted and he

was not raising the issue on a direct appeal or in a habeas

petition. The purpose of his ploys was to pull the federal

court, prematurely, into Haws’ dispute with the State of

Indiana. Let’s look at each case separately.

Haws challenges the remand of his state criminal

action in the first case. Ordinarily, a decision to remand is

reviewed de novo. However, to the extent that the decision

was for a failure to show good cause for filing an

untimely notice of removal, we review for an abuse of

discretion.

Section 1446(c)(1) provides that a “notice of removal

of a criminal prosecution shall be filed not later than

thirty days after the arraignment in the State court, or at

any time before trial, whichever is earlier, except that for

good cause shown the United States district court may

enter an order granting the [petitioner] leave to file the

notice at a later time.”

Haws was arraigned on November 25, 1996, and his

notice of removal was filed 52 days later on January 15,

1997. Haws’ only real argument regarding good cause is

that the November 25 arraignment should not be the

triggering date because he was unrepresented at that

time. Also, Haws says that he spent the time between

November 25 and the filing of the removal petition

attempting to secure relief from the Indiana Supreme

Court. We cannot see any scenario here that would have

caused us to conclude that the dismissal for untimeliness

was an abuse of discretion. Also, Haws did not file an

opposition to the State’s motion to remand within 15 days

as set out in the local rules; instead he filed a motion to

require the state to address the merits of his petition.

In any case, whether the removal was timely or not,

this was not a case which could be removed under § 1443.

Section 1443(1) provides for removal of any state pro-

ceeding in which the defendant “is denied or cannot

enforce .. . a right under any law providing for the equal

civil rights of citizens of the United States. ...” The

Supreme Court has interpreted the statute to apply only

if the right alleged arises under a federal law providing

for civil rights based on race and the petitioner must

show that he cannot enforce the federal right due to some

formal expression of state law. Georgia v. Rachel, 384 U.S.

780 (1966); Chapman v. Houston Welfare Rights Org., 44]

U.S. 600, 621 (1979). Haws makes no allegations about

race so the removal statute does not apply. Furthermore,

although Haws would contend that Indiana’s Rule 3 is

the inherent bar to his enforcing his right to counsel, to

equal protection, and to privileges and immunities, he

could only raise the issue in a federal forum through a

habeas petition when the time was right. Furthermore,

there was no showing here that the Indiana courts were

unable or unwilling to resolve his claim. The Supreme

Court of Indiana, in fact, acknowledged that the trial

judge may have been in error, but that the claim just

wasn’t ripe for review. On top of that, the Indiana trial

j judge did not have a chance to decide the issue of

whether Rule 3 would allow Bisbee to represent Haws

because Bisbee never personally petitioned to appear, as

reouired under the rule, nor has he stated that he would

appear under the conditions outlined in the rule — that is,

wags NAR Seo gh CELA A RA tO tag Rp a

with local counsel jointly responsible for the case. So this

was not a removal case.

The § 1983 case was dismissed because entertaining it

would constitute federal interference with a pending

state court prosecution, contrary to Younger. This conclu-

sion was correct.

Younger holds that federal courts cannot enjoin ongo-

ing state criminal proceedings unless extraordinary cir-

cumstances are present. In a companion case, Samuels v.

MacKell, 401 U.S. 66 (1971), the Court applied a similar

result to actions for declaratory judgment because they

would also interfere with state prosecutions.

iil

10a

Younger and Samuels have been extended to apply to

various other situations beyond their literal boundaries.

In Simpson v. Rowan, 73 F.3d 134 (7th Cir. 1995), we

followed the examples of other circuits in extending the

doctrine to damage actions commenced after the state

criminal trial had concluded; the appeal, however, was

still pending and could be affected by a decision in the

damage action. In Barichello v. McDonald, 98 F.3d 948 (7th

Cir. 1996), we said that Younger has “come to mean that

absent unusual circumstances, a federal court must

refrain from entertaining injunctive relief which might

interfere with the officers or judicial process of state

courts and administrative agencies when important state

interests are involved.” At 954. What Haws asked the

district court to do in this suit would clearly “interfere”

with the state court prosecution.

The Ninth Circuit applied Younger abstention in a

case similar to Haws’ case — Mann v. Jett, 781 F.2d 1448

(9th Cir. 1986). A defendant contended that his right to

counsel was abridged because counsel was not appointed

for almost two years due to the difficulties encountered

in extraditing him from California to Arizona. The court

held that Mann could litigate his claim of deprivation of

counsel in the state criminal proceedings. Abstention was

properly invoked.

The positions taken by Attorney Bisbee in these

appeals had no reasonable basis in the law, nor did they

make reasonable arguments for the modification or rever-

sal of existing law. They were, particularly from a pro-

cedural standpoint, frivolous. And because the oral

arguments we heard on November 6 were devoted to the

issue of sanctions we will get right to the point; Attorney

lla

Bisbee should be sanctioned under Federal Rule of

Appellate Procedure 38. As a sanction, double costs are

assessed against Attorney Bisbee, and he is ordered to

pay an additional sanction of $2,500 to represent attor-

neys fees to the State of Indiana.

The appeals are Dismissep with costs and sanctions as

noted.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

12a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

STATE OF INDIANA, _ )

Plaintiff, ;

jie No. IP

97-61-C-D/F

RICHARD HAWS,

)

Defendant.

ORDER OF REMAND

Heretofore, on September 16, 1996, a prosecution by

information was filed against the defendant, Richard

Haws, in Fountain Circuit Court, Fountain County, Indi-

ana. On November 25, 1996, Haws was arraigned and a

plea of not guilty was entered for him as to each of the

two counts of the information.

Haws is a citizen of Illinois and wishes to have an

Illinois lawyer, one John H. Bisbee, as his primary counsel

pro hac vice. The judge of the Fountain Circuit Court

ruled, pursuant to Rule 3 of the Admission and Discipline

Rules of the Indiana Rules of Court, that defendant

would be required to procure local Indiana counsel who

would be considered to be defendant’s chief counsel.

Defendant then filed a petition in the Supreme Court of

Indiana, seeking a writ of mandate or prohibition over-

ruling the Fountain County court. The petition was sum-

marily denied on December 31, 1996. Thereafter, on

January 15, 1997 the defendant removed the criminal

action to this court pursuant to the provisions of 28

U.S.C. § 1443(1) and (2).

13a

The State of Indiana has moved to remand the crimi-

nal action. The motion is granted. The removal statute

provides at § 1446(c)(1) as follows:

A notice of removal of a criminal prosecu-

tion shall be filed not later than thirty days after

the arraignment in the State court, or at any

time before trial, whichever is earlier, except

that for good cause shown the United States

district court may enter an order granting the

petitioner leave to file the notice at a later time.

;

The purported removal in this case took place on

January 15, 1997, some 51 days after the defendant's

arraignment. This Court sees no reason why it should

grant the petitioner leave to file at a later time.

The Clerk is directed to return the file to the Fountain

Circuit Court forthwith.

Dated this 17th day of April, 1997.

/s/ S. Hugh Dillin

S. Hugh Dillin, Judge

Copies to:

Robert J. Palmer, May, Oberfell & Lorber, Suite 230,

300 North Michigan Street, South Bend, Indiana, 46601

John H. Bisbee, 437 North Lafayette Street, Macomb,

Illinois, 61455

Richard M. Holmes, Mark S. Christoff, Fountain County

Courthouse, 301 Fourth Street, Covington, Indiana, 47932

Jeffrey A. Modisett, Attorney General, Fifth Floor,

IGC-South, 402 West Washington Street, Indianapolis,

Indiana, 46204

(Wayne E. Uhl, Deputy Attorney General)

l4a

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

RICHARD HAWS,

Plaintiff,

-VSs-

THE INDIVIDUAL JUSTICES OF

THE INDIANA

SUPREME COURT,

in their official and

administrative capacities

only;

THE INDIANA ATTORNEY

GENERAL,

in his official capacity;

THE HONORABLE VINCENT

F. GROGG, a Circuit Judge of

the Circuit Court of

Fountain County, Indiana, in

his official capacity,

NO. IP

97-461-C-D/F

Defendants.

MEMORANDUM OF OPINION

This action was filed by the plaintiff who asks, in

effect, that this Court overrule the Chief Justice of the

Supreme Court of Indiana on a matter involving a rule of

state law. The Defendants have moved the Court to dis-

miss the complaint on the basis of equitable abstention.

The motion will be granted and the complaint dismissed.

The undisputed facts are that the plaintiff (“Haws”),

a resident of the State of Illinois, is the defendant in a

15a

criminal action filed in the Circuit Court of Fountain

County, Indiana. The defendant Vincent F. Grogg is the

judge of said court. Haws wants Illinois attorney John H.

Bisbee to represent him pro hac vice, but the judge has not

permitted Bisbee to appear for Haws as yet because Haws

insists upon an interpretation of Admission and Disci-

pline Rule 3, Indiana Rules for Admission to the Bar and

the Discipline of Attorney (“Rule 3”) contrary to that of

the judge.

Rule 3 provides, in pertinent part, as follows:

A member of the Bar of another state or

territory of the United States, or District of

Columbia, may appear, in the trial court’s sole

discretion, in Indiana trial courts in any particu-

lar proceeding for temporary period so long as

said attorney appears with local Indiana counsel

after petitioning the trial court for the courtesy

and disclosing in said petition all pending cases

in Indiana in which said attorney has been per-

mitted to appear. Local counsel shall sign all

briefs, papers and pleadings in such cause and

shall be jointly responsible therefor.

The question is simply whether the judge can require

local counsel to participate in the trial (or at least be

present during the trial), or whether Haws can decide

that counsel pro hac vice (Bisbee) can conduct the trial by

himself, without the presence of local counsel.

Interestingly, Bisbee has never applied for admission

pro hac vice in the Haws case so this action is perhaps

moot for that reason. A part of Rule 3 not under attack

provides that the attorney seeking to appear pro hac vice

l6a

may appear “after petitioning the trial court for the cour-

tesy and disclosing in said petition all pending cases in

Indiana in which said attorney has been permitted to

appear.” To this date Bisbee has filed no such petition.

Apparently because of hearsay from the Fountain

County deputy prosecuting attorney, Bisbee elected not to

apply personally for permission to defend Haws pro hac

vice, but instead caused Haws, a layman, to file such a

petition on September 30, 1996. However, such petition

was qualified by the following language:

Defendant states that Mr. Bisbee will retain

as local counsel a qualified member of the Indi-

ana Bar who will do all of those things neces-

sary and required of him and consistent with the

Indiana Admission and Disciplinary Rule 3 to

the extent those things are not inconsistent with

Defendant’s rights guaranteed by the Sixth and

Fourteenth Amendments to the United States

Constitution respecting the right to counsel, to

the extent those things are not violative of

Defendant’s privileges and immunities as a citi-

zen and resident of Illinois defending a criminal

cause in Indiana and to the extent those things

do not deny Defendant equal protection of the

awe...

On October 29, 1996 Haws filed an amended petition

in which he again sought the admission of Bisbee pro hac

vice as his chief counsel, and appearance of one Nick

Thiros, an Indiana lawyer, on a limited basis. The Foun-

tain Circuit Court denied both motions on October 29,

1996.

Following the action of the Fountain Circuit Court

denying the pro se motions of Haws, Haws filed with the

Oo i a

ODES | ett, Be Ss Praeet BPS

eee ee as

17a

Supreme Court of Indiana on December 27, 1996 an origi-

nal action petitioning for relief in the nature of man-

damus or prohibition against the Fountain Circuit Court

and Vincent F. Grogg, as “one of its judges,” seeking to

mandate the appearance pro hac vice of Bisbee on his own

terms. The Supreme Court, by Chief Justice Shepard,

summarily denied the petition on December 31, 1996,

noting that the appellate process is available for the cor-

rection of alleged errors, should the occasion arise.

The next move made by Haws (Bisbee) was to

remove the criminal action from the Fountain Circuit

Court to this Court on January 15, 1997, citing 28 U.S.C.

§ 1443(1) and (2) as authority. This Court remanded the

action to the Fountain Circuit Court on April 17, 1997,

noting that the removal came too late, being some 51 days

after Haws’ arraignment. 28 U.S.C. § 1446(c)(1). Such

ruling of this Court is now on appeai.

The relief which plaintiff seeks is a judicial declara-

tion that Rule 3 as construed is void and unconstitutional

on its face and as applied, and that defendants should be

enjoined from enforcing Rule 3 “in such a way as to

deprive Plaintiff and all others similarly situated their

constitutional and federal statutory rights. ... ”

Strangely, since the relief sought is equitable, plaintiff

demands a trial by jury.

It is obvious that plaintiff seeks to reverse the ruling

of a state court judge in a pending state court criminal

case (or more accurately, the anticipated ruling which the

court might make if plaintiff’s Illinois counsel ever files

his Rule 3 motion in proper form). We agree with Chief

Justice Shepard that the appellate process is available to

18a

the plaintiff for the correction of alleged errors, should

the occasion arise. More particularly, however, entertain-

ing a declaratory judgment proceeding under the facts of

this case would be improper, as it would constitute fed-

eral interference with a pending state court prosecution.

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.E.2d 669

(1970); Saumuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27

L.Ed.2d 688. We therefore abstain, and now dismiss the

action.

Dated this 5th day of June, 1997.

/s/ S. Hugh Dillin

S. Hugh Dillin, Judge

19a

APPENDIX D

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT - WITH ORAL ARGUMENT

Date: December 10, 1997

BEFORE: Honorable WALTER J. CUMMINGS,

Circuit Judge

Honorable DANIEL A. MANION,

Circuit Judge

Honorable TERENCE T. EVANS,

Circuit Judge

No. 97-2047

STATE OF INDIANA,

Plaintiff-Appellee

RICHARD HAWS,

Defendant-Appellant

No. 97-2521

RICHARD HAWS,

Plaintiff-Appellant

INDIVIDUAL JUSTICES OF THE INDIANA SUPREME

COURT, in their official and administrative

capacities only, JEFFREY A. MODISETT, in his

official capacity as the Indiana Attorney General,

20a

and VINCENT F. GROGG, in his official capacity

as the Circuit Judge of the Fountain County,

Indiana Circuit Court,

Defendants-Appellees'

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

Nos. 97 C 61 and 97 C 461, S. Hugh Dillin, Judge

The appeals are DISMISSED; and attorney

Bisbee is sanctioned under Federal Rule of

Appellate Procedure 38. As a sanction, double

costs are assessed against Attorney Bisbee, and

he is ordered to pay an additional sanction of

$2,500 to represent attorneys fees to the State of

Indiana. The above is in accordance with the

decision of this court entered on this date.

2la

APPENDIX E

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

January 26, 1998

Before

Hon. Walter J. Cummings, Circuit Judge

Hon. Daniel A. Manion, Circuit Judge

Hon. Terence T. Evans, Circuit Judge

THE STATE OF INDIANA, ) Appeals from the United

Plaintiff-Appellee, ) States District Court for the

) Southern District of

ae. « ) Indiana, Indianapolis

RICHARD HAWS, ) Division.

Defendant-Appellant —) ning. 1p97-0061-C-T/G and

RICHARD HAWS, IP97-0461-C-D/F

Plaintiff-Appellant, S. Hugh Dillin

No. 97-2521 v. Judge.

THE INDIVIDUAL

JUSTICES OF THE

INDIANA SUPREME

COURT, in their official

and administrative

capacities; JEFFREY

MODISETT, in his official

capacity as the Indiana

H Attorney General; and

‘ VINCENT F. GROGG, in

his official capacity as the

Circuit Judge of the

Fountain County, Indiana

Circuit Court,

Defendants-Appellees

de ee ee ee ee ee ee ee

22a

ORDER

On December 24, 1997, Richard Haws’ former coun-

sel, John H. Bisbee, filed a petition for rehearing with

suggestion for rehearing en banc limited to the issue of

sanctions. All the judges on the original panel have voted

to deny the petition, and none of the active judges have

requested a vote on the suggestion for rehearing en banc.

The petition is therefore DENIED.

{

23a

APPENDIX F

FOUNTAIN COUNTY CIRCUIT COURT

CHRONOLOGICAL CASE SUMMARY

DOCKET SHEET PAGE 0001

FILE: STATE VS HAWS, CASE NO.

RICHARD 23C01-9609-CF-329

ACTION: CRIMINAL FELONY FILED: 9/16/96

JUDGE: VINCENT F CHARGE 2:

GROGG, CIRC CT CORRUPT BUS

CHARGE 1: REC ST PROP INFLUENCE

GR 100,000.00

P 001 ATTORNEY(S):

STATE OF INDIANA

** vs **

D 001 ATTORNEY(S):

RICHARD HAWS

SSN: 325-30-7014

DATE TYPE DESCRIPTION

9/16/96 MISC INFORMATION FILED ALLEGING

THEFT AND RICO VIOLATION,

WARRANT ORDERED, BAIL FIXED

AT $15000, RJO

9/24/96 MISC WARRANT RETURNED SERVED BY

FOUNTAIN COUNTY SHERIFF TO

DEFENDANT ON 9-23-96. TA

9/26/96 MISC

9/30/96 MISC

10/08/96 MISC

10/29/96 MISC

24a

BOND RECEIVED IN THE

AMOUNT OF $1500. RECEIPT NO.

18462. TA

STATE APPEARS BY MARK CHRIS-

TOFF. DEFENDANT APPEARS IN

PERSON, FILES PRO SE MOTION

FOR CONTINUANCE. MOTION

GRANTED. HEARING CONTINUED

TO NOVEMBER 1, 1996, AT 9:00

A.M. DEFENDANT FURTHER

MOVES FOR MOTION FOR ADMIS-

SION PRO HAC VICE PER AD

RULE 3. SAME TAKEN UNDER

ADVISEMENT PENDING APPEAR-

ANCE OF LOCAL COUNSEL.

COMES NOW THE COURT REPOR-

TER AND FILES COPY OF TRAN-

SCRIPT OF HEARING HELD

9/30/96 WITH THE CLERK AND

ORIGINAL MAILED BY FEDEX TO

MR. BISBE [sic].

DEFENDANT FILES FIRST

AMENDED MOTION FOR ADMIS-

SION PRO HAC VICE AND FOR

ADMISSION OF NICK THIROS OF

THE INDIANA BAR ON A LIMITED

BASIS AND MOTION FOR CON-

TINUANCE; AND THE COURT

BEING ADVISED NOW: 1) OVER-

RULES AND DENIES PENDING

MOTION OF DEFENDANT FOR

JOHN H. BISBEE TO PROCEED PRO

HAC VICE FILED 9/30/96 PER

SUPREME COURT RULE AD 3; 2)

SRL ae *

11/21/96 MISC

11/25/96 MISC

12/06/96 MISC

25a

OVERRULES AND DENIES FIRST

AMENDED MOTION FOR ADMIS-

SION PRO HAC VICE AND FOR

ADMISSION OF NICK THIROS OF

THE INDIANA BAR ON A LIMITED

BASIS; 3) GRANTS MOTION FOR

CONTINUANCE AND INITIAL

HEARING IS CONTINUED TO

NOVEMBER 25, 1996, AT 9:00 A.M.

AND DEFENDANT ORDERED TO

BE PRESENT AT SAID TIME FOR

SAID HEARING.

__VINCENT F. GROGG, JUDGE

(COPY P/ATTY-DEFT-BISBEE)

DEFENDANT FILES PRO SE

MOTION TO CONTINUE, MOTION

DENIED. (COPY P/ATTY-DEFT)

STATE APPEARS BY MARK CHRIS-

TOFF. DEFENDANT APPEARS IN

PERSON. INITIAL HEARING HAD,

PRELIMINARY PLEA OF NOT

GUILTY ENTERED. CAUSE SET

FOR OMNIBUS HEARING ON JAN-

UARY 17, 1997, AT 10:00 A.M. AND

TRIAL SET FOR 8:30 A.M APRIL 1,

1997. (COPY TO CHRISTOFF)

COMES NOW THE COURT

REPORTED AND FILES COPY OF

TRANSCRIPT OF INITIAL HEAR-

ING HELD 11/25/96 IN THE

ABOVE ENTITLED CASE WITH

THE CLERK AND MAILS ORIGI-

NAL TO MR. BISBEE’S OFFICE VIA

FEDEX.

26a

12/27/96 MISC COPY OF PETITION FOR ORIGI-

NAL ACTION IN INDIANA

SUPREME COURT FILED, WITH

BRIEFS, ETC.

1/03/97 MISC COPY OF OPINION OF INDIANA

SUPREME COURT DENYING ORIG-

INAL ACTION FILED.

1/17/97 MISC DEFENDANT FILES PRO SE NOT-

CIE [SIC] RE: REMOVAL OF CRIMI-

NAL CASES FROM STATE TO

FEDERAL COURT.

1/17/97 MISC STATE APPEARS BY MARK CHRIS-

TOFF, DEFENDANT DOES NOT

APPEAR, SEE NOTICE RE

REMOVAL OF CRIMINAL CASES

FROM STATE TO FEDERAL COURT;

TRIAL DATE OF APRIL 1, 1997,

CONFIRMED. (COPY P/ATTY-

HAWS)

3/26/97 MISC DEFENDANT FILES PRO SE

MOTION FOR CONTINUANCE OF

TRIAL SETTING, MOTION

GRANTED, TRIAL CONTINUED,

BUT DEFENDANT ORDERED TO

APPEAR AT 9:00 A.M. APRIL 1,

1997, FOR PURPOSE OF RE-SET-

TING CAUSE FOR TRIAL. (COPY

P/ATTY-HAWS)

“aOR ADE Mt Sige S Sia san es Car! hl Ne Ki

Oe oe eo. an

CLA er tlphe SA DE CRESS None te a?

ISDA | dW

27a

APPENDIX G

IN THE

SUPREME COURT OF INDIANA

STATE EX REL.

RICHARD HAWS, CAUSE NO.

23S00-96 12-OR-797

Relator,

THE FOUNTAIN COUNTY

CIRCUIT COURT AND THE

HONORABLE VINCENT F.

GROGG, one of the judges

thereoi,

Respondents.

ORDER

(Filed Dec. 31, 1996)

Relator, by counsel, has filed a “Petition for Tempor-

ary and Permanent Relief in the Nature of Mandamus or

Prohibition” with accompanying application papers.

Relator is the defendant in a criminal action pending in

the respondent court. Relator asks this Court to overrule

the respondent court’s denial of his motion for the admis-

sion of an Illinois attorney pro hac vice in the criminal

proceeding.

This Court’s rules governing the admission of attor-

neys to practice in Indiana courts provide, in relevant

part, that a member of the bar of another state “may

appear, in the trial court's sole discretion, in Indiana trial

ORR ak i He at

28a

courts in any particular proceeding ...” Ind. Admission

and Discipline Rule 3 (emphasis added).

The original action process is intended to address

situations where a trial court acts beyond its jurisdic-

tional authority or where a trial court fails to act when it

is under a duty to act. Ind. Original Action Rule 3(A)(3).

The Court takes due note of Relator’s various constitu-

tional arguments attempting to promote the trial court’s

action to the violation of a duty. However, the inescapable

fact is that Relator asserts error in the denial of his

motion for admission pro hac vice of an Illinois attorney, a

matter committed to the discretion of the trial court. It

may be that the respondent court erred in so ruling. The

Court need not and does not address that issue now. The

appellate process is available for the correction of alleged

errors, should the occasion arise. The original action pro-

cess, on the other hand, is viewed with disfavor and may

not be used as a substitute for the taking of an appeal.

Orig. Act. R. 2(E).

Where an application for a writ of mandamus “seeks

an unquestionably inappropriate remedy, the Chief Jus-

tice . . . shall enter an order dismissing the application

without the intervention of the full Court” Orig. Act. R.

2(D) (in part). For the foregoing reasons, this writ petition

is accordingly DISMISSED.

The Clerk is directed to send copies of this order to

Robert J. Palmer, 300 N. Michigan, South Bend, IN 46001;

to Mark Christof, Prosecuting Attorney, Courthouse, 301

4th Street, Covington, IN 47932; to Teryl D. Martin, Clerk

Fountain County Circuit Court, P.O. Box 183, Covington,

IN 47932; to the Honorable Vincent F. Grogg, P.O. Box 97,

Na kia cate

bible lial Lites WRG

oF SEAL IS

soe es

RS Sake Bed ee i,

29a

Covington, IN 47932; and to Pamela Carter, Attorney

General of Indiana.

DONE AT INDIANAPOLIS, INDIANA this 31st day

of December, 1996.

/s/ Randall T. Shepard

Randall T. Shepard

Chief Justice of Indiana

I, H. John Okeson,

Clerk of the Supreme

Court and Indiana Court

of Appeals do hereby

certify that the above and

foregoing is a full true,

complete and correct copy

of the original

Notification letter and 2

page Order Cause No.

23500-9612-OR-797 Dated

December 31, 1996 as to

the same appears upon

the record of said court,

and in my custody as

Clerk.

In testimony Whereof I

have hereunto subscribed

my name and affirmed

the Seal of said Court this

7th day of January, 1997

/s/ Mllegible Clerk

By: /s/ Illegible Deputy

30a

APPENDIX H

IP97-C-0061-D/F

UNITED STATES DISTRICT COURT DOCKET

COUNSEL FOR PLAINTIFF(S)

MARK CHRISTOFF

PROSECUTORS OFFICE FOUNTAIN COUNTY

61ST JUDICIAL CIRCUIT

301 FOURTH STREET/COURTHOUSE

COVINGTON IN 47932

(317) 793-2411

For:

STATE OF INDIANA

WAYNE E UHL

OFFICE OF ATTORNEY GENERAL

FIFTH FLOOR —- IGC SOUTH

402 WEST WASHINGTON STREET

INDIANAPOLIS IN 46204-2794

(317) 232-6333

For:

STATE OF INDIANA

COUNSEL FOR DEFENDANT(S)

JOHN H BISBEE

437 N LAFAYETTE

MACOMB IL 61455

(309) 833-1797

For:

HAWS, RICHARD

ROBERT PALMER

MAY OBERFELL AND LORBER

300 N MICHIGAN

SOUTH BEND IN 46601

(219) 232-2031

For:

HAWS, RICHARD

eae Sa

Sel

a aati

SS Pe ee ae

————

DATE

01/15/97

01/16/97

02/06/97

02/13/97

03/03/97

NR.

3la

PROCEEDINGS

NOTICE OF REMOVAL from the Circuit

Court of Fountain County Indiana

under cause number 23C01-9609-CF-329

by the deft-Richard Haws eod 01/16/97

[CBU]

CIVIL COVER SHEET eod 01/16/97

[CBU]

MAGISTRATE’S NOTICE eod 01/16/97

[CBU]

RECEIPT #024294 in the amount of

$150.00 eod 01/16/97 [CBU]

SUBMISSION OF FIRST AMENDED

NOTICE OF REMOVAL c/s DEFT eod

01/16/97 [CBU]

APPEARANCE of Wayne Uhl on behalf

of the State of Indiana c/s PLTF eod

02/07/97 [CBU]

MOTION FOR REMAND and for Costs

(Pltf) c/s eod 02/14/97 [MHK]

MEMORANDUM of Law in Support of

State of Indiana’s Motion to Remand

and for Costs (PItf) c/s eod 02/14/97

[MHK] '

MOTION for lv to file second amended

notice of removal c/s DEFT eod

03/03/97 [CBU]

MOTION to require the State of Indiana

to submit all its arguments in support of

its motion to remand in one motion and

supporting memorandum, rather than

reserving other arguments for a later

time c/s DEFT eod 03/03/97 [CBU]

03/07/97

03/11/97

03/14/97

03/27/97

04/17/97

04/25/97

32a

RESPONSE opposing motion for lv to

file second amended notice of removal

c/s PLTF-State of Indiana eod 03/10/97

[CBU]

RESPONSE opposing motion to require

further briefing c/s PLTF-State of Indi-

ana eod 03/10/97 [CBU]

NOTICE OF FILING motion for admis-

sion pro hac vice DEFT eod 03/12/97

{CBU}

MOTION PRO HAC VICE of John H.

Bisbee on behalf of the deft c/s eod

03/12/97 [CBU]

REPLY to pltfs response opposing

motion to require that pltf set forth all

its arguments in one memorandum c/s

DEFT eod 03/14/97 [CBU]

REPLY to pltf response opposing motion

for lv to file second amended notice of

removal c/s DEFT eod 03/14/97 [CBU]

ORDER grants the admission of John

Bisbee retroactively effective 1/13/97

cm KPF eod 03/27/97 [CBU]

CLOSED Remanded to state court

(Fountain Circuit) - cm bb SHD eod

04/17/97 [JMC]

NOTICE OF APPEAL to CA from the

order of remand entered April 17, 1997,

c/s, ~ DEFENDANT/APPELLANT eod

04/25/97 [JAT]

DOCKETING STATEMENT or jurisdic-

tional statement, c/s. - DEFENDANT/

APPELLANT eod 04/25/97 [JAT]

APPEAL FEES PAID RECEIPT # 025603

eod 04/25/97 [JAT]

04/25/97

05/05/97

05/16/97

05/30/97

06/04/97

33a

SHORT RECORD SENT TO CA w

Notice, Info Sheet & Docket Sheet Des-

ignation of record letter sent to parties.

eod 04/25/97 [JAT]

ACK FROM CA SHORT RECORD

received & assigned CA # 97-2047 eod

05/13/97 [JAT]

MOTION FOR ATTNY’S FEES and costs

c/s PLTF-State of Indiana eod 05/19/97

[CBU]

MOTION to defer pitfs petition for costs

and attnys fees c/s DEFT eod 06/02/97

[CBU]

RESPONSE to motion to defer petition

for costs and attnys fees c/s PLTF eod

06/05/97 [CBU}

SUPPLEMENT to petition for costs and

attnys fees c/s PLTF eod 06/05/97

[CBU]

34a

APPENDIX I

IP97-C-0461-D/F

UNITED STATES DISTRICT COURT DOCKET

COUNSEL FOR PLAINTIFF(S)

JOHN H BISBEE

437 N LAFAYETTE

MACOMB IL 61455

(309) 833-1797

For:

HAWS, RICHARD

ROBERT PALMER

MAY OBERFELL AND LORBER

300 N MICHIGAN

SOUTH BEND IN 46601

(219) 232-2031

For:

HAWS, RICHARD

COUNSEL FOR DEFENDANT(S)

WAYNE E UHL

OFFICE OF ATTORNEY GENERAL

FIFTH FLOOR - IGC SOUTH

402 WEST WASHINGTON STREET

INDIANAPOLIS IN 46204-2794

(317) 232 6333

and

DOUGLAS E CRESSLER

ADMINISTRATOR

INDIANA SUPREME COURT

312 STATE HOUSE

INDIANAPOLIS IN 46204

(317) 232-2540

35a

For:

THE INDIVIDUAL JUSTICES OF THE

THE INDIANA SUPREME COURT,

INDIANA ATTORNEY GENERAL, AND

THE HONORABLE VINCENT F GROGG,

IN THEIR OFFICIAL AND

ADMINISTRATIVE CAPACITIES

DATE _NR. PROCEEDINGS

03/20/97 1 COMPLAINT for Declaratory Judg-

ment & Appropriate Equitable Relief

eod 03/21/97 [KAH]

03/20/97 2 RECEIPT #025163 FOR $150.00 eod

03/21/97 [KAH]

03/20/97 3 CIVIL COVER SHEET eod 03/21/97

[KAH]

03/20/97 4 MAGISTRATE’S NOTICE eod

03/21/97 [KAH]

03/20/97 5 SUMMONS issued eod 03/21/97

[KAH]

03/20/97 6 MOTION PRO HAC VICE of John H.

Bisbee — PLTF eod 03/21/97 [KAH]

04/10/97 7 WAIVER OF SERVICE OF SUMMONS

SERVED ON AND RET’D BY 04-02-97

by Hon. Vincent F. Grogg eod

04/10/97 [KAH]

04/10/97 8 APPEARANCE of Wayne E. Uhl for

Defts c/s - DEFTS eod 04/17/97

[KAH]

04/17/97 9 APPEARANCE of Douglas E. Cressler

for Deft IN Supreme Court c/s/ -

DEFT SUPREME COURT eod

04/17/97 [KAH]

04/17/97 10 MOTION TO DISMISS c/s - DEFTS

eod 04/17/97 [KAH]

04/17/97

04/21/97

05/01/97

05/06/97

05/15/97

05/16/97

05/13/97

36a

MEMORANDUM of Law tn Support of

Motion to Dismiss c/s — DEFTS eod

04/17/97 [KAH]

REASSIGNED from Judge TINDER to

Judge DILLIN eod 04/17/97 [JMC]

REASSIGNED from Mag GODICH to

Mag FOSTER eod 04/17/97 [JMC]

ORDER grants John H. Bisbee of Illi-

nois admission pro hac vice for pltf —

em SHD eod 04/17/97 [JMC]

WAIVER OF SERVICE OF SUMMONS

SERVED ON AND RET’D BY Wayne

Uhl of the DAG’s office on 4/3/97 eod

04/21/97 [CBU]

WAIVER OF SERVICE OF SUMMONS

SERVED ON AND RET’D BY Douglas

Cressler, administrator of the Indiana

Supreme Court on 4/4/97 eod

04/21/97 [CBU]

MOTION for ten additional days w/i

which to file response to defts’ motion

to dismiss cs PLTF eod 05/01/97

[LMW]

ENTRY grants pltf time thru 5/12/97

to respond to defts’ mot to dismiss -

cm SHD eod 05/07/97 [JMC]

MOTION for lv to file memorandum in

opposition to motion to dismiss instan-

ter c/s PLTF eod 05/16/97 [CBU]

ORDER grants pltf leave to file memo

in opposition to defts’ mot to dismiss

instanter -— cm SHD eod 05/27/97

[JMC]

RESPONSE (memo in opp) to motion

to dismiss - c/s PLTF eod 05/27/97

[JMC]

05/13/97

05/27/97

06/05/97

DELETED

06/06/97

06/05/97

06/17/97

eee

WwW

37a

AFFIDAVIT of John H. Bisbee eod

05/27/97 [JMC]

REPLY to pltfs memorandum in oppo-

sition to motion to dismiss c/s DEFTS

eod 05/28/97 [CBU]

ENTRY (memo of opinion) grants

defts’ mot to dismiss - cm bb SHD

OBV 43 PG 579 eod 06/06/97 [JMC]

CLOSED Judgment MOT to dismiss for

deft OBV 43 PG 579 eod 06/06/97

[JMC] -

MOTION pursuant to LR 7.5 (a) for

oral argument on defts motion to dis-

miss c/s PLTF eod 06/09/97 [CBU]

CLOSED Judgment MOT to dismiss for

deft, pltf to pay costs of action - cm

SHD OBV 43 PG 592 eod 06/10/97

[JMC]

NOTICE OF APPEAL to CA from

memorandum opinion entered June 5,

1997, c/s. — PLAINTIFF/ APPELLANT

eod 06/17/97 [JAT]

APPEAL FEES PAID RECEIPT #

026298 eod 06/17/97 [JAT]

DOCKETING STATEMENT (jurisdic-

tional statement), c/s — PLAINTIFF/

APPELLANT eod 06/17/97 [JAT]

‘SHORT RECORD SENT TO CA w

Notice, Info Sheet & Docket Sheet Des-

ignation of record letter sent to parties.

eod 06/17/97 [JAT]

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.