# Petition for Writ of Certiorari — In re Bisbee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1316%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1121 ## Text 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 il 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 iV 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. V RULE 29.1 STATEMENT There are no corporations involved and, therefore, no subsidiary corporations. v1 TABLE OF CONTENTS Page QUESTIONS PRESENTED .......... ise e new en PARTIES IN THE COURT BELOW................. iii Tae 95 BUTE ook ok es vac boo ahadecdacen V SAE CE ATI TORR ooo ono hoc cd eK Ob aeiens x EAU, sok cco ooke dan Oate ua cee nmeenn 2 IO 55 ks Li. evn ba ceo eminteecieeteees 2 CONSTITUTIONAL, STATUTORY AND OTHER TRV SIO KOE VOIE MEAs cc nhkoestesiowdes cua RLRE GRIESE GRE RUEES: KPA bie boo bee oe Bae ten eee 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 No 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.... 14 14 2 es 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 18 21 F, G. ix 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 ......... se Cian oln deh ewebakss dseehus deaeebes EERE RAS Ue b's be ees ae KOR eee ckwes hades aban IRE SC can rb tcc knee ah ees Ce aw een ee kb AaS RIE ins ook bade ened RERGe VA Oss Ne wee Se EN Ee as sla wb Ak Shoe CP OPA Odd Wee Uee keen EE Cal) eens aes PRED CKp ee VEER Se RDAs eRe RS Se Cocoa e ke cee seek chew habe hen danaeew ows ig gS RRR EE ee Sr ee rer ee eer GRE ic eX Cees MUO SR SKS Oh Ohas ere ee bees : SEE Bn 8c CAMs cae Naes pp bOVid vec eueaehbecesons 26 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 xi 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 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”. | 12 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 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 © This case is more compelling than the situation presented 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. 13 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 14 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. B. 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). 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 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 15 [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.” 16 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.” 17 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. ee 18 oo 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 0, 19 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 : 20 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. 21 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. D. 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 22 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. 23 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. 24 E. 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 25 “ ‘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 26 F. 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. 27 ““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. 28 G. 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, 29 “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 | la Nee vA APPENDIX A In the United States Court of Appeals for the Seventh Circuit No. 97-2047 THE STATE OF INDIANA, Plaintiff-Appellee, v. RicHARD Haws, Defendant-Appellant. No. 97-2521 RicHARD Haws, Plaintiff-Appellant, v. 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. 2a 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 3a 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. 4a 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 5a 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 6a 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 7a 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. 8a 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. 9a 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. ; i ; 4 a : 3 ; ; 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. ee 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 V. RICHARD HAWS, Defendant-Appellant No. 97-2521 RICHARD HAWS, Plaintiff-Appellant V. 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. 4 { 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 * Z 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, V. THE FOUNTAIN COUNTY CIRCUIT COURT AND THE HONORABLE VINCENT F. GROGG, one of the judges thereoi, i 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, i 2 i 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 01/15/97 01/15/97 01/15/97 01/16/97 02/06/97 02/13/97 02/13/97 03/03/97 03/03/97 NR. 10 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 03/07/97 03/11/97 03/11/97 03/14/97 03/14/97 03/27/97 04/17/97 04/25/97 04/25/97 04/25/97 11 12 13 14 15 16 17 18 19 20 21 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 06/04/97 22 23 24 25 26 27 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 04/17/97 04/17/97 04/17/97 04/21/97 04/21/97 05/01/97 05/06/97 05/15/97 05/16/97 05/13/97 11 14 16 17 18 19 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 06/17/97 06/17/97 06/17/97 eee ho WwW 24 25 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] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1316%3A1. Public record. Not legal advice.