Petition for Writ of Certiorari — Partington v. Kibe

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a5 oA Supreme Court, U.S.

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OCT 1 1992

No. 92-___ OFFICE O£ HE 6LERK

In The

Supreme Court of the United States

October Term, 1992

EARLE A. PARTINGTON and

CLIFFORD M.M. CLARKE, SR.,

Petitioners,

GERALD H. KIBE, CHARLENE M. NORRIS, and

STATE OF HAWAII,

Respondents.

ane ¢

Petition For Writ Of Certiorari

To The Supreme Court of Hawaii

PETITION FOR WRIT OF CERTIORARI

EarLe A. PARTINGTON

(Counsel of Record)

PARTINGTON & FOLey

2450 Pacific Tower

1001 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 526-9500

Petitioner Pro Se

Paut T. Murakami

Pacific Park Plaza, Suite 1475

711 Kapiolani Boulevard

Honolulu, Hawaii 96813

Telephone: (808) 523-7006

Counsel for Petitioner Clarke

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does a state supreme court violate the Sixth Amend-

ment strong presumption of effectiveness and right of

independence of counsel and/or the Fourteenth Amend-

ment right to due process of law by

(1) sua sponte adjudicating, without notice or

hearing, that a criminal defense attorney ren-

dered ineffective assistance of counsel when, as

a matter of law, the appellate record in the crim-

inal case does not establish ineffective assistance

by the attorney, and

(2) then subjecting the attorney to duplicative,

successive attorney-disciplinary proceedings

expressly premised solely upon the court’s inef-

fectiveness adjudication?

The

LIST OF PARTIES

petitioners in this case are:

EARLE A. PARTINGTON, a criminal defense

attorney

CLIFFORD M.M. CLARKE, SR., the defendant

and Partington’s client at trial and on appeal in

State v. Clarke, Haw. S. Ct. No. 10041

respondents in this case are:

GERALD H. KIBE, Chief Disciplinary Counsel

of the Office of Disciplinary Counsel of the

Supreme Court of Hawaii

CHARLEEN M. NORRIS, Assistant Disciplinary

Counsel of the Office of Disciplinary Counsel of

the Supreme Court of Hawaii

STATE OF HAWAII, the plaintiff in State v.

Clarke, Haw. S. Ct. Nos. 10041 and 10063

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES..........----0 +e see reer

OPINIONS BELOW............0 see eee cece ee eeee:

BASIS FOR JURISDICTION ........------+- +52 ee

CONSTITUTIONAL PROVISIONS AND RULES OF

ere te rr eee ee eee

STATEMENT OF THE CASE.........-----+++++s03>

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

II.

Certiorari should be granted to decide whether

the Sixth Amendment strong presumption of

effectiveness and right of independence of

counsel and/or the Fourteenth Amendment

right to due process of law protect the criminal

defense attorney from a court’s sua sponte adju-

dication of ineffective assistance of counsel

without notice or hearing where, as a matter of

law, the appellate record in the criminal case

does not establish ineffectiveness .........---

Certiorari should be granted to decide whether

the Sixth Amendment strong presumption of

effectiveness and right of independence of

counsel and/or the Fourteenth Amendment

right to due process of law is violated by sub-

jecting a criminal defense attorney to duplica-

tive, successive disciplinary proceedings

expressly premised solely upon the previously

discussed ineffectiveness adjudication........

EE assess urassnencensinscnneevesaes

TABLE OF AUTHORITIES

Page(s)

CASES

Caplin & Drysdale, Chartered v. Monsante, 491 U.S.

ie RAMs rer ene Ser er rrr e 14

In re Yagman, 796 F.2d 1165 (9th Cir. 1989).......... 15

Matsuo v. State, 70 Haw..573, 778 P.2d 332 (1989) ....17

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

cert. denied, 110 S. Ct. 3302 (1990) ("Partington

a CRS A eee ile hee 2,3,6,9

Partington v. Gedan, 961 F.2d 852 (9th Cir. 1992),

cert. pet. pending (“Partington IV”).................. 2

Ratnor v. Young, 465 F. Supp. 386 (D.V.I. 1979) ...... 13

Strickland v. Washington, 466 U.S. 668 (1984)..11, 12, 16

United States v. Hashimcto, 878 F.2d 1126 (9th Cir.

PEER IP aaan a iy trary opr ene, a Nira ROME ne a guna regen 13

United States v. Heinel, 9 U.S.C.M.A. 259, 26 C.M.R.

Se IE a8 5 ea eae RECUR R Re eer ees Che ee 13

United States v. Miller, 884 F.2d 1149 (9th Cir. 1989) .... 13

Withrow o. Larkin, 421 US. 35 (1975) ..........6005: 14

CONSTITUTIONAL PROVISIONS

a So I OE cin ck cacao erecdcceuecaee passim

FS DUS INOW has Convene deususcsesercdin passim

STATUTES

ee A hn cae ene KN hE Coes RN KC ERA eens 3

Re Ws aa cw on os een noes chan nviusetaceeeuns 8

TABLE OF AUTHORITIES - Continued

Court RULES

Haw.

~ 3

Page(s)

ee | i ePeeeere ee eee re ee 17

= Me Prrwerrrererrr re exe, 3

Ce BROODS. cca ca csecaviescesaveneetes ries 3

No. 92-___

In The

Supreme Court of the United States

October Term, 1992

EARLE A. PARTINGTON and

CLIFFORD M.M. CLARKE, SR.,

Petitioners,

GERALD H. KIBE, CHARLENE M. NORRIS, and

STATE OF HAWAII,

Respondents.

Petition For Writ Of Certiorari

To The Supreme Court of Hawaii

PETITION FOR WRIT OF CERTIORARI

Petitioners herein respectfully pray that a writ of

certiorari issue to review the order of the Supreme Court

of Hawaii entered on July 9, 1992, in State v. Clarke, Haw.

S. Ct. Nos. 10041 and 11633, which order denied Peti-

tioner Partington’s Motion to Vacate and Modify Mem-

orandum Opinion of December 27, 1985 (in No. 10041),

and to vacate Judgment and Modify Memorandum Opin-

ion of October 5, 1987 (in No. 11633), and for Writ of

Prohibition Directed to Chief Disciplinary Counsel Ger-

ald H. Kibe and Assistant Disciplinary Counsel Charlene

M. Norris of the Office of Disciplinary Counsel of the

Supreme Court of Hawaii.

OPINIONS BELOW

The order of the Supreme Court of Hawaii entered on

July 9, 1992 (see 1a-2a), is unreported. The opinion of the

Supreme Court of Hawaii which was the subject of Part-

ington’s motion was entered on December 27, 1985 (see

3a-5a), and is unreported. The orders of the Supreme

Court of Hawaii interpreting the December 27, 1985,

opinion were entered on September 24, 1990 (see 6a-8a),

and October 11, 1990 (see Sa-1la), and are unreported.

Petitioner Partington’s unsuccessful attempts to seek col-

lateral review of the December 27, 1985, opinion and the

first of two attorney disciplinary proceedings against him

predicated upon that opinion are reported as Partington v.

Gedan, 880 F.2d 116 (9th Cir. 1989), cert. denied, 110 S. Ct.

3302 (1990) - (“Partington I”) (see 12a-94a) and Partington

v. Gedan, 961 F.2d 852 (9th Cir. 1992), cert. pet. pending

(“Partington IV”).}

BASIS FOR JURISDICTION

The order of the Supreme Court of Hawaii denying

Petitioner Partington’s motion for relief was entered on

July 9, 1992 (see 1a-2a), and is a final judgment or decree

as the order expressly provides that no further filings

1 Partington IV is not reprinted in the appendix because

further reference thereto is unnecessary.

shall be accepted by the court in this matter (see 1a-2a).

This Court has jurisdiction to review a final judgment or

decree of a state’s highest court pursuant to 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISIONS AND

RULES OF COURT

United States Constitution, Amendment VI:

In all criminal prosecutions, the accused shall

. have the assistance of counsel for his

defense.

United States Constitution, Amendment XIV:

[NJor shall any state deprive any person of life,

liberty, or property without due process of

See

Hawaii Supreme Court Rule 2: see 201a-235a.

Hawaii Supreme Court Rule 13: see 236a-238a.

STATEMENT OF THE CASE

In 1984 Petitioner Partington was appointed to repre-

sent Petitioner Clarke in State v. Clarke in the Circuit

Court of the First Circuit, State of Hawaii. Clarke was

charged with first degree murder for the brutal, and

eventually fatal, abuse of his girlfriend’s three-year-old

daughter. Partington I, 880 F.2d at 117; 14a. Partington has

been an attorney since 1969 and is a former federal

defender in San Diego, a former assistant federal public

defender in San Francisco, and a former deputy prosecut-

ing attorney in Honolulu (Haw. S. Ct. No. 10041 Record

(hereinafter “R”) at 337). Clarke’s trial and sentencing

were highly publicized in the media.

During the trial, Partington made no opening state-

ment (11la-114a) and, for the purpose of impeachment,

asked three prosecution witnesses if it were true that they

believed that Clarke was guilty and thus were testifying

in order to convict him (12la-122a). There was no direct

evidence of Clarke’s guilt, and the child’s mother had

previously been in state family court for neglect and

possible abuse of the child, as set out in the Statement of

the Case in Clarke’s Opening Brief (R 97-114). Part-

ington’s pretrial motion to the family court for discovery

of these confidential court records was denied (114a; R

104). Partington renewed his discovery motion in the

family court on a Wednesday and it was heard in family

court that same day, during a recess in the state’s case in

Clarke’s circuit court trial (114a). At the hearing on the

discovery motion, the family court reversed itself and

ordered discovery (114a). However, based on the pros-

ecutor’s representation that the child’s mother would not

be called by the state in the circuit court trial until late in

the day two days later (a Friday), the family court

delayed releasing the discovery until the following Mon-

day in order to review it first (114a). However, the foliow-

ing morning (Thursday) in circuit court the prosecutor

called the child’s mother as a prosecution witness (115a),

claiming the prosecution had changed its mind overnight

(R 104).

After the prosecutor finished direct examination that

same morning, Partington informed the circuit court that

the defense was reserving cross-examination until after

the family court discovery was Provided the following

Monday (R 105). The circuit court refused to permit the

defense to reserve Cross-examination and directed Part-

ington to cross-examine the child’s mother at that time or

not at all (115a; R 105). The circuit court further informed

the defense that if it refused to cross-examine imme-

diately, it would be limited to calling the child’s mother

as its Own witness and cross-examination would not then

be permitted (R 105, 109). Partington refused to cross-

examine at that time (115a) and subsequently did not

include the child’s mother among the several defense

witnesses called. At the time for closing argument, Part-

ington informed the circuit court in the presence of both

the jury and Clarke that, in view of the court’s ruling on

Cross-examination of the child’s motner, both he and

Clarke felt that closing argument would be a waste of

time; no Closing argument was given by the defense

(122a-126a). Clarke Was convicted as charged (R 113).

The trial judge said nothing at trial or sentencing

about the defense tactics, but, after Clarke was found

guilty and sentenced and the appeal was pending, the

trial judge complained to the Office of Disciplinary Coun-

sel (ODC) of the Supreme Court of Hawaii that Part-

ington had been deliberately ineffective in refusing to

give a closing argument (R 113). Partington Properly

informed Clarke of the complaint, and Clarke wrote to

the circuit court requesting a court hearing on the com-

plaint (R 44-45); Clarke acknowledged in the letter that he

had consented to waiving closing argument as a trial

tactic (R 44-45). Partington, who continued on appeal as

Clarke's court-appointed attorney, then moved the

Supreme Court of Hawaii on behalf of Clarke to remand

the case to the circuit court for a hearing on the trial

judge’s complaint (R 29-46). The Supreme Court of

Hawaii denied this motion (R 49).

In Clarke’s opening brief in the Supreme Court of

Hawaii (R 86-218), Partington raised fifteen issues under

nine argument headings, which issues included pros-

ecutorial misconduct (above and beyond that set out

above), judicial impropriety, and numerous erroneous

rulings by the trial judge (R 114-15). No claim of ineffec-

tive assistance of counsel was then made, and at no time

has Clarke ever accused Partington of rendering ineffec-

tive assistance of counsel. Partington I, 880 F.2d at 123;

28a-29a. The appellate record was void as to the reasons

for Partington’s trial tactics except for (1) Clarke’s letter

requesting a hearing (R 44-45) and (2) Partington’s state-

ment to the trial judge that it would be incompetent to

cross-examine the child’s mother without first obtaining

the requisite discovery (R 105). However, at oral argu-

ment on the appeal, one of the justices of the Supreme

Court of Hawaii accused Partington of having deliber-

ately rendered ineffective assistance of counsel to Clarke

at trial — an allegation that both Partington and the pros-

ecutor denied during the argument (880 F.2d at 118; 14a).

Notwithstanding that Partington’s trial tactics are all

legitimate trial tactics in an appropriate case (110a-126a),

the Supreme Court of Hawaii, on December 27, 1985, in

an unpublished opinion and without addressing any of

the fifteen issues raised by Clarke, reversed Clarke’s mur-

der conviction holding sua sponte that any one of the

following actions by Partington in Clarke’s trial, standing

alone, constituted ineffective assistance of counsel: (1) the

tata aia eid

refusal to make an opening statement, (2) the refusal to

cross-examine the child’s mother the day she testified, (3)

the refusal to call the child’s mother as a defense witness;

(4) the eliciting from two Prosecution witnesses that they

believed Clarke was guilty, and (5) the refusal to make a

Closing argument (3a-5a). Clarke was subsequently

retried and reconvicted of murder, and his conviction

affirmed (in Haw. S. Ct. No. 11633), new counsel having

been appointed for Clarke as Partington was at Tulane

University obtaining a graduate law degree (R 337-38).

The reversal of Clarke’s conviction automatically

triggered a special disciplinary Proceeding against Part-

ington (5a), pursuant to Hawaii Supreme Court Rule

(HSCR) 13 (for text, 236a-238a). HSCR 13 Provides for

“proceedings following final adjudication of ineffective

assistance of counsel in criminal cases.” HSCR 13 pro-

ceedings are conducted before a special master within

and as a part of the criminal appeal in the Supreme Court

of Hawaii under the appeal case number (here Haw. S. Ct.

No. 10041). Clarke then invoked the attorney-client privi-

lege to silence Partington (R 788-89; 880 F.2d at 123-24;

28a-31a). Partington refused to cooperate in the proceed-

ing, claiming that the ineffectiveness adjudication and

HSCR 13 proceeding violated his federal constitutional

rights under the free speech, right to counsel, due pro-

cess, and equal protection clauses (HSCR 13 7/9/90

Motions and Transcript (hereinafter “7/9/90 Tr”) at

10:22-35:6).

Partington’s motion during the HSCR 13 proceeding

for interlocutory review of his constitutional claims by

the Supreme Court of Hawaii was denied (R 378-79).

Clarke’s objection to the HSCR 13 proceeding against

Partington was referred by the Supreme Court of Hawaii

to the HSCR 13 special master (R 1228-29), who rejected it

on the ground that Clarke lacked standing to object or

participate (7/9/90 Tr 41:6-42:2). Neither Clarke nor Part-

ington testified at the hearing, and the record therein was

identical to that which was before the Supreme Court of

Hawaii at the time of the 1985 ineffectiveness adjudica-

tion against Partington. The hearing was purportedly de

novo on the ineffectiveness issue, and at its conclusion

the special master held that the Sixth Amendment strong

presumption of effectiveness does not apply to attorney

disciplinary proceedings and that Partington’s refusal to

cooperate mandated a presumption of ineffectiveness

resulting in a finding against Partington (see “Decision &

Order” of Special Master, 7/31/90, not paginated in

Record). Partington filed extensive exceptions raising,

inter alia, the constitutional issues raised here (R

1369-1497).

On review in September 1990, the Supreme Court of

Hawaii refused to address the federal constitutional

issues raised by Partington, but nonetheless ruled in Part-

ington’s favor and dismissed the HSCR 13 proceeding

after rejecting the master’s findings in their entirety

(6a-8a). As clarified in October 1990 (upon the special

prosecutor’s motion for reconsideration), the court again

held that HSCR 13 proceedings are not de novo on the

ineffectiveness issue as that issue was finally adjudicated

in the reversal of the criminal conviction (9a-1la). Part-

ington’s prior collateral attack in the federal courts, pur-

suant to 42 U.S.C. § 1983 on the ineffectiveness

adjudication and on the HSCR 13 proceeding had been

Se |

defeated by Younger abstention and immunity based in

Part on misrepresentations from the HSCR 13 special

master and justices of the Supreme Court of Hawaii to the

federal courts that HSCR 13 Proceedings are de novo on

the ineffectiveness issue. Partington I, 880 F.2d 116;

12a-94a.

In July 1991, pursuant to HSCR 2 (which regulates

Ordinary attorney disciplinary Proceedings) (for text, see

201a-235a), ODC initiated an attorney disciplinary pro-

ceeding against Partington based on the 1985 ineffective-

ness adjudication and identical in scope and subject

matter to the HSCR 13 disciplinary proceeding. The 1985

ineffectiveness adjudication and the HSCR 13 special

master’s finding against Partington (based upon a pre-

sumption of ineffectiveness) are expressly pleaded in the

petition initiating this second disciplinary Proceeding

and are the sole bases for the Proceeding (158a-169a).

Unlike HSCR 13 proceedings, HSCR 2 Proceedings are

not original proceedings in the Supreme Court of Hawaii

(208a-212a). In HSCR 2 Proceedings, the trial level (i.e.,

the hearing committee) and the first level of appeal (i.e.,

the Disciplinary Board) have no jurisdiction to decide

constitutional issues: only the Supreme Court of Hawaii

as the second and final review level has such jurisdiction

(144a).

On June 19, 1992, Partington moved the Supreme

Court of Hawaii in State v. Clarke, Haw. S. Ct. Nos. 10041

and 11633, to vacate the 1985 ineffectiveness finding

against Partington (and delete the reference to it in the

court’s opinion in the second appeal) and to enjoin

respondents Kibe and Norris from maintaining the HSCR

2 proceeding against Partington based solely on the inef-

fectiveness adjudication or the HSCR 13 special master’s

finding (95a-200a). Clarke —- who is not a party to, and has

no right to relief in, the HSCR 2 proceeding - joined in

Partington’s motion (R 1718-21). As to both Clarke and

Partington, the Supreme Court of Hawaii is the state

court of first and last instance in this matter.

Partington’s motion in the Supreme Court of Hawaii

raised the federal constitutional questions that are again

raised here (110a-152a). First, Partington showed that, as

a matter of law, each of the five tactics in question is well

established as legitimate trial tactics and that, as to some

of them, it is defense counsel alone who decides whether

to employ the tactics (110a-126a). Next, Partington

pointed out that the sua sponte adjudication of ineffective-

ness by the state supreme court denied him due process,

both as to the adjudication itself and as to any subsequent

disciplinary proceeding predicated on that adjudication

(126a-132a). Partington cited extensive federal and state

authority stating that ineffective assistance of counsel

may not be raised for the first time on appeal because the

record is invariably inadequate to decide such an issue

not raised below (132a-134a). Partington then argued that

the second, duplicative attorney disciplinary proceeding

against him not only violated the Sixth Amendment

strong presumption of effectiveness and right of indepen-

dence of counsel (134a-139a), but also was the kind of

intrusive post-trial inquiry prohibited by the Sixth

Amendment (139a-143a). Finally, Partington argued that

respondents Kibe and Norris were attempting to usurp

Clarke’s Sixth Amendment right to the effective assis-

tance of counsel (150a-152a).

On July 9, 1992, the Supreme Court of Hawaii denied

all relief without explanation and firmly stated that fur-

ther filings in State v. Clarke, Haw. S. Ct. Nos. 10041 and

11633, would not be permitted (la-2a). The HSCR 2 pro-

ceeding against Partington is presently pending with the

hearing set for February 1993.

REASONS FOR GRANTING THE WRIT

I. Certiorari should be granted to decide whether the

Sixth Amendment Strong presumption of effective-

ness and right of independence of counsel and/or

the Fourteenth Amendment right to due process of

law protect the criminal defense attorney from a

court’s sua sponte adjudication of ineffective assis-

tance of counsel without notice or hearing where, as

a matter of law, the appellate record in the criminal

case does not establish ineffectiveness.

This case presents the important question of whether

a state supreme court violates the Sixth Amendment

strong presumption of effectiveness and right of indepen-

dence of counsel and/or the Fourteenth Amendment

right to due process of law by sua sponte adjudicating,

without notice or hearing, that a criminal defense attor-

ney rendered ineffective assistance of counsel when, as a

matter of law, the appellate record in the criminal case

does not establish ineffectiveness. In Strickland v. Wash-

ington, 466 U.S. 668 (1984), this Court recognized that

from the Sixth Amendment right-to-counsel clause arise a

“constitutionally protected independence of counsel” and

“a strong presumption” that defense counsel effectively

represented an accused in a criminal case. 466 U.S. at

688-89. However, this Court did not address, and has

never addressed, to whom these Sixth Amendment rights

belong, who may assert them, and to what extent they

protect a criminal defense attorney from harassment and

damage or destruction to counsel’s livelihood.

In Strickland (as in the typical case of an ineffective

assistance claim), the government asserted, to the detri-

ment of the accused, both the presumption of effective-

ness and the right of independence of counsel.

Consequently, these rights in Strickland were not the

rights of the accused (and certainly the government has

no Sixth Amendment rights), which leads to the conclu-

sion that the rights in question belong to Strickland’s

counsel, who was not a party to the case and thus was

unable to assert his own rights. Certainly, if the govern-

ment may assert the rights of defense counsel, then

defense counsel may assert his own rights when he is a

varty to the proceeding. Moreover, as the Sixth Amend-

ment expressly vests rights in an accused, it is clear that

an accused may, in an appropriate case, assert these

rights as well.

The remaining question is the scope of protection

these rights provide in a criminal appeal such as State v.

Clarke where (1) a claim of ineffective assistance of coun-

sel is made by someone other than the accused, (2) the

accused has never made a voluntary, knowing, and intel-

ligent waiver of the attorney-client privilege, (3) the

appellate record is void as to the reasons for defense

counsel’s trial tactics and (4) none of defense counsel's

acts and omissions constitutes ineffectiveness per se. This

question is critical in the context of the instant case where

the rights of the accused are purportedly vindicated by

the reversal of his conviction, but the criminal defense

attorney is the one who suffers the devastating conse-

quences of the reviewing court’s decision when the deci-

sion is made without notice or hearing to counsel and

without the slightest knowledge of whether it is justified

on the facts of the case.

The defense in a criminal case is under no obligation

to assist the prosecution in having its evidence admitted

or to undo the effect of an earlier erroneous ruling to

which a proper objection has been interposed. United

States v. Miller, 884 F.2d 1149, 1151 (9th Cir. 1989); United

States v. Hashimoto, 878 F.2d 1126, 1134-35 (9th Cir. 1989);

United States v. Heinel, 9 U.S.C.M.A. 259, 262, 26 C.M.R.

39, 42 (1958). Yet, Partington was adjudicated ineffective

for not assisting the Prosecution even though such assis-

tance would have violated his duty to Clarke. In reality,

competent defense attorneys try to get reversible error

into the record in criminal cases, and there is nothing

improper with such efforts as long as they are not cor-

rupt. Ratnor v. Young, 465 F. Supp. 386, 395 (D.V.I. 1979).

The effect of the 1985 sua sponte final adjudication of

ineffectiveness against Partington is to abrogate these

rules and put criminal defense counsel in Hawaii on

notice that their trial tactics will be second guessed to

ensure that they do not legitimately take advantage of

Prosecutorial misconduct and judicial Overreaching to

benefit their clients. No longer may the defense choose its

strategy and tactics in a criminal case confined only by

the law and the Hawaii Code of Professional Respon-

sibility, but such decisions must also be “politically cor-

rect” so as not to offend the Supreme Court of Hawaii's

idea of how a criminal case should be defended.

The question of whether the defense attorney’s Four-

teenth Amendment right to due process of law is violated

by the sua sponte adjudication of ineffectiveness arises

because HSCR 13 (see 236a, first paragraph) mandates a

special proceeding against the attorney. The Supreme

Court of Hawaii has held that the ineffectiveness adjudi-

cation is res judicata and may not subsequently be reliti-

gated (6a-1la). In Withrow v. Larkin, 421 U.S. 35, 57-58

(1975), this Court discussed just such a fact situation and

said that “a substantial due process question would be

raised” if an adversarial proceeding were conducted

where the ultimate issue was res judicata by virtue of

prior “nonadversarial processes.” This due process issue

has two aspects. The first relates to whether the nonad-

versarial process violates due process because the deci-

sion (such as the sua sponte ineffectiveness adjudication

here) is thereafter res judicata. The second relates to

whether the adversarial proceeding (such as either of the

attorney disciplinary proceedings here) violates due pro-

cess because the critical issue was finally adjudicated in

the prior nonadversarial process and, being final, may

not be relitigated. (The second aspect will be discussed

under the second point.)

In Caplin & Drysdale, Chartered v. Monsante, 491 U.S.

617, 647 (1989), Justice Blackmun, dissenting, recognized

that there is a place in the criminal justice system for the

defense attorney who is a maverick and risk-taker and for

defenses that might displease some judges. The courts

have a duty to protect such attorneys from actions which

improperly “chill an attorney’s enthusiasm or creativity

in pursuing factual and legal theories.”2 In re Yagman, 796

F.2d 1165, 1182 (9th Cir. 1989). What the Supreme Court

of Hawaii did to Partington is to claim the power to drive

the maverick attorney, be he completely ethical, from

criminal practice and force a Strait-jacket of conformity

inhibiting the criminal defense bar. This is nothing less

than the power to abrogate the Sixth Amendment right to

counsel.

II. Certiorari should be granted to decide whether the

Sixth Amendment strong presumption of effective-

ness and right of independence of counsel and/or

the Fourteenth Amendment right to due process of

law is violated by subjecting a criminal defense

attorney to duplicative, successive disciplinary pro-

ceedings expressly premised solely upon the previ-

ously discussed ineffectiveness adjudication.

The second important issue presented here is

whether the Sixth Amendment strong presumption of

effectiveness and right of independence of counsel and /

or the Fourteenth Amendment right to due process of law

2 At the motions hearing in the HSCR 13 proceeding (see

7/9/90 Tr), four prominent criminal defense attorneys (includ-

ing the Federal Public Defender) testified to the chilling effect

the actions of the Supreme Court of Hawaii against Partington

had had on the criminal defense bar, as well as to the fact that

the record did not establish that Partington had rendered inef-

fective assistance of counsel because it was unclear why Part-

ington did what he did (the record being void as to the

reasons) and bona fide reasons for Partington’s tactics may

well have existed. The testimony of those four attorneys has

never been contradicted. The extensive record of the HSCR 13

proceeding is part of State v. Clarke, Haw. S. Ct. No. 10041.

is offended where a criminal defense attorney is subjected

to duplicative, successive attorney disciplinary proceed-

ings expressly promised solely upon the previously dis-

cussed ineffectiveness adjudication. In Strickland, this

Court condemned intrusive post-trial inquiries into

defense counsel’s conduct:

The availability of intrusive post-trial

inquiry into attorney performance or of detailed

guidelines for its evaluation would encourage

the proliferation of ineffectiveness challenges.

Criminal trials resolved unfavorably to the

defendant would increasingly come to be fol-

lowed by a second trial, this one of counsel’s

unsuccessful defense. Counsel’s performance

and even willingness to serve could be adverse-

ly affected. Intensive scrutiny of counsel and rigid

requirements for acceptable assistance could dampen

the ardor and impair the inde ‘endence of defense

counsel, discourage the accepta .2 of assigned cases,

and undermine the trust betu en attorney and cli-

ent.

466 U.S. at 690 [emphasis added]. In Strickland, it was the

intrusive nature of the post-trial inquiry that offends the

Sixth Amendment. The fact that the inquiry affords the

defense attorney an opportunity to defend himself is

irrelevant to that issue because the focus is on the nature

of the inquiry and not on the due process rights of the

defense attorney. However, where the defense attorney is

subjected to an intrusive post-trial inquiry without an

opportunity to defend himself, then issues under both the

Sixth and Fourteenth Amendments are raised. This is the

exact situation here: Partington was sua sponte and

wrongfully adjudicated ineffective and was sent through

one attorney disciplinary proceeding without any right to

iene ieatiaiaiaeaeil

contest the adjudication, and he is now being subjected to

a second disciplinary proceeding in which that adjudica-

tion is the predicate for the proceeding, the scope of

which is identical to the first proceeding.

While evading Partington’s repeated constitutional

objections by refusing to rule on them, the Supreme

Court of Hawaii had no difficulty in subjecting him to

two intrusive post-trial inquiries (the two disciplinary

proceedings) for his constitutionally protected conduct.

However, for other criminal defense attorneys in Hawaii

who have not displeased the Supreme Court of Hawaii,

such proceedings would be “unfair” because the attorney

must be given an opportunity “to explain his side of the

story” in a nondisciplinary hearing in the trial court prior

to any ineffectiveness adjudication. Matsuo v. State, 70

Haw. 573, 578, 778 P.2d 332, 335 (1989).3 Further, the

Supreme Court of Hawaii has never explained how it or

its agents acquired standing to assert Clarke’s Sixth

Amendment right to the effective assistance of counsel, a

right Clarke has never asserted against Partington and

now expressly refuses to assert.

Partington was not only finally adjudicated to have

rendered ineffective assistance of counsel without notice

or hearing and without any basis in the record for such

an adjudication, but his ethical duty to his client, Clarke,

prevented him from seeking to have the adjudication

* The Supreme Court of Hawaii also amended its rules

relating to post-conviction relief proceedings in 1989 to man-

date that defense counsel be given an opportunity to be heard

prior to an ineffectiveness adjudication in such a proceeding.

Rule 40(f), Haw. R. Pen. P.

overturned and Clarke’s conviction reinstated in 1985.

When that adjudication triggered the HSCR 13 proceed-

ing, Partington was denied collateral relief in the federal

courts by the state officials’ misrepresentation that the

HSCR 13 proceeding would be conducted de novo on the

ineffectiveness issue. When the HSCR 13 proceeding was

finally reviewed in 1990, the Supreme Court of Hawaii

held tnat the proceeding was not de novo on the ineffec-

tiveness issue, but it terminated the proceeding in Part-

ington’s favor by rejecting the special master’s finding

and dismissing the proceeding. As the prevailing party,

Partington had no avenue of direct review of the ineffec-

tiveness adjudication or for having been subjected to a

patently unconstitutional disciplinary proceeding.

When Ciarke challenged the HSCR 13 proceeding,

the Supreme Court of Hawaii sent him to the special

master who ruled that Clarke had no standing to partici-

pate or object. Partington’s motion for interlocutory

review of the constitutional issues raised by the ineffec-

tiveness adjudication and the HSCR 13 proceeding was

denied. Within months after the termination of the HSCR

13 proceeding, the Office of Disciplinary Counsel brought

a second disciplinary proceeding against Partington for

which the Supreme Court of Hawaii denies all interlocu-

tory review, even on the fundamental issue of whether a

criminal defense attorney may be subjected to a disciplin-

ary proceeding on these facts. The Supreme Court of

Hawaii has repeatedly refused to address the constitu-

tional issues raised by Partington. Clearly, the court will

never address these issues for the court would then be

forced to acknowledge that it had no basis for its sua

sponte ineffectiveness adjudication against Partington.

The 1985 ineffectiveness adjudication is, therefore,

beyond review outside this Court.

This Court should define the relationship between

the Sixth Amendment right to counsel clause and the

Fourteenth Amendment due Process clause to provide

appropriate protection to criminal defense attorneys

whose only “vice” is to go the extra yard for their clients.

Further, there is no state interest whatsoever in the rever-

sal of criminal convictions because of nonexistent ineffec-

tive assistance of counsel. The chilling effect on the

criminal defense bar, coupled with the denial of due

Process to Partington and the absence of any other forum

for review, calls for this Court to address these issues.

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari to the Supreme Court of Hawaii should be

granted.

Respectfully submitted,

EARLE A. PARTINGTON

(Counsel of Record)

PARTINGTON & FOLEY

2450 Pacific Tower

1001 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 526-9500

Petitioner Pro Se

Pau T. MURAKAMI

Pacific Park Plaza, Suite 1475

711 Kapiolani Boulevard

Honolulu, Hawaii 96813

Telephone: (808) 523-7006

Counsel for Petitioner Clarke

DATED: September 30, 1992

:<<mx< <<

NOS. 10041 and 11633

IN THE SUPREME COURT

OF THE STATE OF HAWAII

STATE OF HAWAII, CR. NO. 59285

Plaintiff-Appellee,

CLIFFORD M. M. CLARKE, SR.,

Defendant-Appellant.

)

vs. )

)

ORDER

(Filed July 9, 1992)

Upon consideration of Earle A. Partington’s “Motion

to Vacate Judgment and Modify Memorandum Opinion

of December 27, 1985 (in No. 10041), and to Vacate Judg-

ment and Modify Memorandum Opinion of October 5,

1987 (in No. 11633), and for Writ of Prohibition Directed

to Chief Disciplinary Counsel Gerald H. Kibe and Assis-

tant Disciplinary Counsel Charlene M. Norris,” the mem-

orandum, affidavit, and exhibits in support thereof,

Defendant-Appellant Clifford M.M. Clarke’s joinder in

motion, and the record in each of these appeals,

IT IS HEREBY ORDERED that the motion is denied.

IT IS FURTHER ORDERED that final judgments and

orders having been entered in appeal Nos. 10041 and

11633 and in the RSCH 13 Proceeding docketed in No.

10041, the clerks shall not accept any further filings in

case Nos. 10041 and 11633.

DATED: Honolulu, Hawaii, July 9, 1992.

/s/ Ronald T.Y. Moon

/s/ Robert G. Klein

/s/ Steven H. Levinson

/s/ James S. Burns

/s/ Walter M. Heen

NO. 10041

IN THE SUPREME COURT

OF THE STATE OF HAWAII

STATE OF HAWAII, CRIMINAL NO. 59285

APPEAL FROM THE

JUDGMENT; NOTICE OF

ENTRY, FILED JULY 2, 1984

FIRST CIRCUIT COURT

HONORABLE LELAND H.

SPENCER Judge

Plaintiff-Appellee,

CLIFFORD M.M.

CLARKE, SR.,

)

Defendant-Appellant. )

)

MEMORANDUM OPINION

(Filed Dec. 27, 1985)

)

VS. )

)

This is an appeal from a conviction for murder in

Violation of HRS § 707-701. The victim was the infant

child of appellant’s live-in girl friend.

Appellant raises numerous grounds on appeal, none

of which we reach or decide because, in our view, the

record is clear that the appellant did not have the effec-

tive assistance of counsel at trial and that therefore we

must reverse and remand for a new trial.

The State’s case against the appellant rested on cir-

cumstantial evidence. It is apparent from the record that a

possible defense, contemplated by appellant and his

counsel, was that the actual culprit was the mother. At

Oral argument, appellant’s counsel Suggested that

another possible defense was that, while appellant might

have inflicted the fatal abuse, he lacked the necessary

intent to cause the child’s death.

We are faced with a record in which appellant’s trial

counsel (1) refused to make an opening statement; (2)

refused to cross-examine the mother of the victim, coun-

sel’s stated reason being that certain records with respect

to the witness had not been made available to him; (3)

subsequently refused to call the witness himself after the

records were made available to him;! (4) elicited testi-

mony from two prosecution witnesses that they believed

that the appellant was guilty; and (5) refused to make a

closing argument.

At oral argument, appellant’s counsel asserted that

each of the above decisions was justifiable as a matter of

tactics. We cannot agree. In our view, on this record, none

of the five alleged tactical decisions which we have enu-

merated above (let alone all five considered together) was

within the range of competency demanded of attorneys in

criminal cases. State v. Antone, 62 Haw. 346, 615 P.2d 101

(1980). The effect was to substantially impair what

defenses appellant had. Antone, supra.

1 Under HRE 607, counsel could have impeached her testi-

mony.

i aaeeeeerenecerniceacicaciiaiiiiiiliiiiiiiiiia sii

We remind both counsel of their obligations under

HSCR 13 once a judgment on appeal has been issued by

us in this case. Reversed and remanded.

DATED: Honolulu, Hawaii, December 27, 1985.

Earle A. Partington /s/ Herman T.F. Lum

Schweigert & Associat

Sri for einen /s/ Edward H. Nakamuca

appellant /s/ Frank D. Padgett

/s/ Yoshimi Hayashi

/s/ James H. Wakatsuki

Emlyn H. Higa,

Deputy Prosecuting Attorney,

for appellee

NO. 10041

IN THE SUPREME COURT

OF THE STATE OF HAWAII

STATE OF HAWAITI, CR. NO. 59285

Plaintiff-Appellee,

VS.

CLIFFORD M. M. CLARKE, SR.,

Defendant-Appellant.

)

IN RE EARLE A. PARTINGTON

)

ORDER

(Filed Sept. 24, 1990)

The report of the Special Master having been submit-

ted, this matter comes before this court pursuant to Rule

13 of the Rules of the Supreme Court of Hawaii which

provides in relevant part:

[T]he supreme court shall enter an order either

dismissing the proceedings or ordering correc-

tive action in accordance with the guidelines set

forth [in Rule 13 of the Rules of the Supreme

Court of the State of Hawaii].

Having considered the report by the Special Master,

the exceptions thereto, and the records and files in this

proceeding, this court rejects the contentions that

Supreme Court Rule 13 is unconstitutional on its face and

that the initiation of Rule 13 proceedings in this case

violated Respondent Partington’s constitutional rights ab

initio.

However, this court finds that the Special Master

exceeded the scope of his role and authority in the Rule

13 proceeding by considering and ruling de novo upon the

issue of whether Respondent Partington rendered ineffec-

tive assistance of counsel. This issue received final adju-

dication by this court in State v. Clarke, No. 10041 (Haw.

Dec. 27, 1985) (mem.), and could not be relitigated under

a Rule 13 Proceeding. The clear language of Rule 13 limits

the master to determine whether or not corrective action

should be recommended against the respondent attorney.

Moreover, it was inappropriate to address allegations

of ethical violations in a Rule 13 Proceeding. Rule 13 is

not a disciplinary Proceeding but was Promulgated to aid

the prevention of future violations of a criminal defen-

dant’s constitutionally protected right to effective assis-

tance of counsel by Providing retraining for attorneys

who have been adjudicated ineffective as counsel] in crim-

inal cases. Allegations of ethical violations should be

determined according to the procedures specified in

Supreme Court Rule 2.

The record reflects that such allegations have already

been brought to the attention of the Disciplinary Counsel

pursuant to Rule 2. This court expresses no opinion as to

the merits of any such allegations.

On the record here, this court finds that Respondent

Partington is not in need of corrective/remedial action

Pursuant to Rule 13.

IT IS HEREBY ORDERED that this proceeding is

dismissed with prejudice.

DATED: Honolulu, Hawaii, September 24, 1990.

/s/ Ronald T.Y. Moon

/s/ James S. Burns

/s/ Walter M. Heen

/s/ Harry T. Tanaka

/s/ Patrick K.S.L. Yim

NO. 10041

IN THE SUPREME COURT

OF THE STATE OF HAWAII

STATE OF HAWAII, CR. NO. 59285

Plaintiff-Appellee,

vs.

CLIFFORD M. M. CLARKE, SR.

Defendant-Appellant.

)

IN RE: EARLE A. PARTINGTON

)

ORDER

(Filed Oct. 11, 1990)

Upon consideration of the Rule 13 Prosecutor’s

Motion for Reconsideration and for Clarification, this

court reaffirms that the Rule 13 Special Master does not

have the power to reopen the final Judicial determination

that a defendant received ineffective assistance of coun-

sel. At the same time, Rule 13 affords the respondent

attorney an opportunity to put on all evidence relevant to

whether or not corrective action should be recommended.

Thus, the respondent attorney may present, or re-present,

evidence as to the surrounding circumstances and his or

her strategic reasons for the actions that resulted in the

finding of ineffective assistance. The finding of ineffective

assistance, although itself conclusive, does not bar the

Special Master from weighing with an open mind such

surrounding circumstances and strategic reasons, in con-

junction with all other relevant evidence, for the limited

10a

purpose of determining under Rule 13 whether or not

corrective action should be recommended against the

respondent attorney.

The motion additionally points to the provision in

Rule 13 that:

In cases where the master finds that ineffective

assistance of counsel may have resulted from a

violation of DR 6-101 or DR 7-101, the master

shall, in addition to (1) and (2), refer the matter

to the Office of Disciplinary Counsel for investi-

gation under Rule 2 of these rules. In the event

of a reference under this subparagraph, the mas-

ter’s finding and the reference shall be deemed

confidential and shall not be disclosed except

pursuant to the provisions of Rule 2.22 of these

rules.

Such a confidential reference by the Special Master to

the Office of Disciplinary Counsel is consistent with the

principle that any citizen, whether attorney, judge or

member of the general public, who suspects that a disci-

plinary violation may have occurred should refer the

matter confidentially to Disciplinary Counsel, so that Dis-

ciplinary Counsel may conduct an independent investiga-

tion pursuant to Rule 2. Rule 13 cleariy contemplates that

any investigation as to violations of the Disciplinary

Rules shall be initiated by Disciplinary Counsel, not by

the Rule 13 Prosecutor or the Special Master. There is

nothing in Rule 13 to authorize the Special Master to

conduct a mini-hearing as to whether a violation of the

Disciplinary Rules may have occurred, or to do anything

more in this area than refer confidentially to Disciplinary

ha anceenenieneeeemeieaeateimmeaal

lla

Counsel the finding that a disciplinary violation may

have occurred.

DATED: Honolulu, Hawaii, October 11, 1990.

/s/ Ronald T.Y. Moon

/s/ James S. Burns

/s/ Walter M. Heen

/s/ Harry T. Tanaka

/s/ Patrick K.S.L. Yim

12a

Earle A. PARTINGTON,

Plaintiff-Appellant,

Vv.

Joseph M. GEDAN; Howard T. Chang,

Defendants-Appellees.

No. 87-2375.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 8, 1988.

Decided March 13, 1989.

Motion to Cerrect Opinion Granted in

Part and Denied in Part

April 6, 1989.

As Amended April 6, 1989.

As Amended on Denial of Reconsideration

July 12, 1989.

Attorney who was made subject of disciplinary pro-

ceedings following reversal of client’s conviction for inef-

fective assistance of counsel brought civil rights action

against special master and special prosecutor. The United

States District Court for the District of Hawaii, Alan

Cooke Kay, J., held that abstention under Younger was

appropriate, and attorney appealed. The Court of

Appeals, Wallace, Circuit Judge, held that: (1) district

court properly abstained from hearing attorney’s consti-

tutional challenges to enforcement of Hawaii Supreme

Court Rule against him, but (2) attorney’s arguments

against abstention were not so frivolous as to warrant

award of costs and attorney fees under Federal Rule of

Appellate Procedure.

13a

Affirmed.

Noonan, Circuit Judge, concurred and filed opinion.

Reinhardt, Circuit Judge, concurred in part and dis-

sented in part and filed opinion.

Earle A. Partington, Honolulu, Hawaii, for plaintiff-

appellant.

Susan L. Gochros, Deputy Atty. Gen., Honolulu,

Hawaii, for defendants-appellees.

Appeal from the United States District Court for the

District of Hawaii.

Before WALLACE, REINHARDT and NOONAN, Cir-

cuit Judges.

WALLACE, Circuit Judge:

Attorney Partington filed suit pursuant to 42 U.S.C.

§ 1983 in the United States District Court, alleging that

enforcement of Hawaii Supreme Court Rule 13 against

him violated the first, fifth, sixth, and fourteenth amend-

ments to the United States Constitution. He sought a

declaratory judgment Stating that Rule 13 violated these

constitutional provisions and an injunction barring any

further proceedings against him pursuant to Rule 13. The

district court concluded that abstention under Younger v.

Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)

(Younger), was appropriate because Partington could raise

these constitutional challenges in the ongoing Rule 13

Proceedings. We have jurisdiction and affirm.

l4a

The Hawaii trial court appointed Partington as trial

counsel for Clarke. The State had charged Clarke with

brutally murdering the three-year-old daughter of his

live-in girlfriend. Partington represented Clarke at trial.

Clarke was convicted of murder and sentenced to life in

prison.

Partington’s appointment as counsel for Clarke con-

tinued on appeal. Clarke raised numerous contentions,

but did not allege ineffective assistance of trial counsel.

During the pendency of the appeal, however, the state

trial judge who presided at Clarke’s trial complained to

the Office of Disciplinary Counsel of the Hawaii Supreme

Court about Partington’s failure to make a closing argu-

ment at Clarke’s trial. Following this complaint, Part-

ington filed a motion with the Hawaii Supreme Court, on

behalf of Clarke, requesting that the Supreme Court

remand the appeal to the trial court to explore the trial

judge’s complaint. The motion was denied.

During oral argument before the Hawaii Supreme

Court on Clarke’s criminal appeal, some Justices sua

sponte raised the issue of ineffective assistance of trial

counsel. The Hawaii Supreme Court subsequently

reversed Clarke’s conviction. Without addressing the

numerous arguments made in Clarke’s brief, the court

declared that Partington rendered ineffective assistance

during trial. The court based this conclusion on the fol-

lowing: (1) Partington refused to make an opening state-

ment; (2) he refused to cross-examine the mother of the

victim ostensibly because the State did not make certain

records concerning the witness available to him; (3) he

aa eieeiatieieneeei meena

<< lllll

15a

subsequently refused to call the mother after receiving

the records; (4) he elicited testimony from two State wit-

nesses that they believed Clarke was guilty; and (5) he

refused to make a closing argument. The Hawaii Supreme

Court’s opinion concluded: “We remind both counsel of

their obligations under [Hawaii Supreme Court Rule] 13

once a judgment on appeal has been issued by us in this

case.”

Hawaii Supreme Court Rule i3! outlines proceedings

that are to be brought against defense counsel following

' Haw.St.Ct.R. 13 provides:

PROCEEDINGS FOLLOWING FINAL ADJUDICATION OF

INEFFECTIVE ASSISTANCE OF COUNSEL IN CRIMINAL

CASES.

Whenever the conviction of a criminal defendant

has been overturned and a new trial ordered because

of a finding that the defendant had ineffective assis-

tance of counsel in the proceedings against him or

her, and the order has become final, either because it

was not appealed, or because it has been finally

affirmed on appeal, it shall be the duty of the pros-

ecutor and the counsel for the individual defendant

each within five days of the finality of such order to

file a certificate in the title of the cause with the

Supreme Court of Hawaii noting that such an order

has been entered and attaching a copy of that order

to the certificate.

Within five days of the first receipt of such a

certificate by the supreme court, the chief justice

shall appoint a special master to determine whether

action against the counsel alleged to have been

incompetent is warranted.

(Continued on following page)

l6a

the adjudication of his or her ineffective assistance in

criminal cases. Under Rule 13, the Hawaii Supreme Court

(Continued from previous page)

Within five days from his appointment, the spe-

cial master shall mail a notice of his appointment

together with a copy of the order of his appointment,

the certificate or certificates, and the order reversing

the conviction to the respondent attorney at his last

known address as shown in the records of the clerk

of the Supreme Court of Hawaii.

Within 45 days from mailing, the respondent

attorney shall file with the clerk of the supreme court

an answer showing cause why corrective action as

provided herein should not be taken by the supreme

court. If the respondent attorney wishes to disqualify

the special master, he shall file with his return a

motion therefore supported by an affidavit made

upon personal knowledge and showing facts suffi-

cient to establish the personal bias and prejudice of

the special master toward him.

If a motion for disqualification is filed, the mas-

ter shall rule on the same within five days from the

date of filing. That ruling shall be appealable only

after an order in the proceedings as hereinbelow set

forth has been entered.

The master shall within five days after receipt of

the answer of the respondent appoint an attorney to

further prosecute the proceedings and shall give

notice of the appointment to the respondent attorney

in the same manner as provided above.

The respondent attorney may represent himself

or may designate an attorney to represent himself.

The respondent or his attorney and the attorney

appointed by the master shall have 45 days from the

(Continued on following page)

hi eniaaimemetil

17a

appoints a special master “to determine whether action

against the counsel alleged to have been incompetent is

(Continued from previous page)

appointment of the attorney by the master to con-

duct any discovery Proceedings in accordance with

the discovery chapter of the Hawaii Rules of Civil

Procedure. On the expiration of the 45 days, the

master shall set the matter for hearing within 30

days, take such evidence in accordance with the

Hawaii Rules of Evidence as may be proffered by the

parties, and within 10 days of the conclusion of the

hearing, render a decision and an order either dis-

missing the proceedings or recommending corrective

action against the respondent attorney.

Corrective action which may be recommended

by the master and/or adjudicated by the supreme

court may consist of any one or more of the follow-

ing:

(1) Requiring the respondent attorney to take a

Prescribed course or courses of remedial education

and to produce satisfactory evidence of his or her

Passing such courses;

(2) Suspending the respondent’s license to

practice law until (1) has been complied with.

(3) In cases where the master finds that ineffec-

tive assistance of counsel may have resulted from a

violation of DR 6-101 to DR 7-101, the master shall,

in addition to (1) and (2), refer the matter to the

Office of Disciplinary Counsel for investigation

under Rule 2 of these rules. In the event of a refer-

ence under this subparagraph, the master’s finding

and the reference shall be deemed confidential and

shall not be disclosed except pursuant to the provi-

sions of Rule 2.22 of these rules.

(Continued on following page)

18a

warranted.” Haw.Sup.Ct.R. 13. Within five days of this

appointment, the special master notifies the defense

counsel by mail. Within forty-five days of this mailing,

the defense counsel must “file with the clerk of the

supreme court an answer showing cause why corrective

action as provided [in the Rule] should not be taken by

the supreme court.” Id. Within five days of receiving the

defense attorney’s answer, the special master must

appoint an attorney to prosecute the proceedings. Id. The

defense attorney and the special prosecutor then have

forty-five days to conduct discovery. Within thirty days

after the expiration of the discovery period, the special

master holds a hearing. Within ten days after the conclu-

sion of the hearing, the special master must render a

decision and enter “an order either dismissing the pro-

ceedings or recommending corrective action against the

respondent attorney.” Id. Within twenty days of the spe-

cial master’s decision and proposed order, the defense

attorney and the special prosecutor may file exceptions

with the Hawaii Supreme Court. Within forty days of the

(Continued from previous page)

Within 20 days from the rendering of the mas-

ter’s decision and proposed order, respondent or his

attorney and the attorney appointed by the master to

prosecute the proceedings may file exceptions with

the Supreme Court of Hawaii supported by a mem-

orandum in support thereof.

Within 40 days of the rendering of the decision

and proposed order by the master, the supreme court

shall enter an order either dismissing the proceed-

ings or ordering corrective action in accordance with

the guidelines set forth above.

xoxo

19a

special master’s decision and Proposed order, the

Supreme Court must “enter an order either dismissing

the proceedings or ordering corrective action in accor-

dance with the guidelines set forth” in the Rule. Id.

In accordance with Rule 13, on February 3, 1986, the

Hawaii Supreme Court appointed Gedan as the special

master. On February 7, 1986, Gedan notified Partington

that he had forty-five days to submit an answer “showing

cause why corrective action as provided for in Rule 13

should not be taken by the Supreme Court.” On March

27, 1986, Partington filed an answer in accordance with

the Rule. Without waiving any constitutional challenges,

Partington’s answer stated that he based all of his trial

decisions on certain tactics, but that he could not explain

his tactical choices because his client at trial, Clarke,

refused to waive the attorney-client privilege.

Gedan did not appoint a special prosecutor within

five days of receiving the answer as Provided in Rule 13;

however, on August 13, 1986, Gedan appointed Chang as

the special prosecutor. Notwithstanding the time sched-

ule set forth in Rule 13, the record does not reflect that

the parties engaged in discovery during the forty-five

day period as provided in the Rule or that the special

master set the matter for a hearing within thirty days of

the close of the discovery period.

On March 9, 1987, Partington filed a complaint under

42 U.S.C. § 1983 in the United States District Court for the

District of Hawaii, naming Gedan and Chang as defen-

dants. He alleged that the conduct of Gedan and Chang

Pursuant to Rule 13 deprived and continue to deprive

him of rights under the free speech clause of the first

20a

amendment, the due process clause of the fifth and four-

teenth amendments, the right to counsel clause of the

sixth amendment, and the equal protection clause of the

fourteenth amendment. The complaint sought (1) an

injunction prohibiting Gedan and Chang from proceeding

against Partington pursuant to Rule 13, (2) a declaratory

judgment that Rule 13 as applied to Partington is uncon-

stitutional, and (3) attorney’s fees, costs, and expenses for

the action. Partington also sought damages for attorney’s

fees and costs arising out of the Rule 13 proceeding, but

later abandoned this claim. On March 30, 1987, Gedan

and Chang moved to dismiss the complaint, arguing the

the district court should abstain. They asserted that Part-

ington could raise all of his constitutional claims in the

Rule 13 hearing, which was scheduled to commence on

April 14, 1987. The Rule 13 hearing was not held that day

because Gedan stayed the hearing on Partington’s

request. On April 22, Partington filed a motion for sum-

mary judgment. On May 12, the Hawaii Association of

Criminal Defense Lawyers (Defense Lawyers) lodged a

brief in the district court on behalf of Partington as

amicus Curiae.

On July 1, 1987, the district court granted the Defense

Lawyers’ motion to file the amicus brief, granted the

motion of Gedan and Chang to dismiss the complaint,

and denied Partington’s motion for summary judgment.

The district court concluded that Younger abstention, as

interpreted and applied in Middlesex County Ethics Com-

mittee v. Garden State Bar Association, 457 U.S. 423, 102

S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Middlesex), should be

applied. After the district court entered its judgment,

2la

Partington filed a timely notice of appeal, challenging the

dismissal of the complaint.

Ordinarily, the dismissal of a complaint without the

dismissal of the underlying action is not considered an

appealable final order under 28 U.S.C. § 1291. See Allen v.

Veterans Administration, 749 F.2d 1386, 1388 (9th Cir.1984);

Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984)

(Hoohuli). Here, the district judge abstained, but main-

tained jurisdiction over the cause by virtue of his failure

to dismiss the underlying action. This procedure, if

allowed, would grant the state permission to proceed first

but allow the parties to maintain a federal court presence,

if needed, after the state has finalized its assessment of

the issues presented. See Crane v. Fauver, 762 F.2d 325,

328-29 (3d Cir.1985). We have jurisdiction over this inter-

locutory appeal, however, because of the denial of Part-

ington’s request for an injunction preventing Gedan and

Chang from Proceeding against him pursuant to Rule 13.

See 28 U.S.C. § 1292(a)(1); Sea Ranch Association v. Califor-

nia Coastal Zone Conservation Commission, 537 F.2d 1058,

1061 (9th Cir.1976). -

There is another reason why we may accept jurisdic-

tion over this appeal. We have held that where Younger

abstention is applicable, “a district court must dismiss the

action.” World Famous Drinking Emporium, Inc. v. City of

Tempe, 820 F.2d 1079, 1081 (9th Cir.1987) (World Famous

Drinking Emporium), quoting Fresh International Corp. v.

Agricultural Labor Relations Board, 805 F.2d 1353, 1356 (9th

Cir.1986). Because the district judge was required to

ieee

22a

dismiss the action, we may assume he intended to do so

and treat the dismissal of the complaint as a dismissal of

the action. See Hoohuli, 741 F.2d at 1171 n. 1.

That brings us to our standard of review. When the

district court, pursuant to the authority of Railroad Com-

mission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.

971 (1941), abstains from addressing the constitutionality

of a state statute because state court proceedings inter-

preting the statute are still pending, we review its absten-

tion for an abuse of discretion. C-Y Development Co. v.

Redlands, 703 F.2d 375, 377 (9th Cir.1983). But when, as

here, the district court abstains on the basis of Younger,

which forbids federal courts from enjoining pending cer-

tain categories of state proceedings except in extraordin-

ary circumstances, we review its abstention de novo.

Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 468

(9th Cir.1984) (Goldie’s Bookstore). This de novo review is

applied even though we are reviewing the action of the

district court in granting or denying an injunction. See id.

II]

Although abstention is the exception, not the rule, see

World Famous Drinking Emporium, 820 F.2d at 1082, Youn-

ger and its companion cases generally require a federal

district court to abstain from granting injunctive relief

when state criminal actions or certain categories of state

civil or administrative proceedings are pending against

the federal plaintiff at the time he or she commences the

federal action. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,

107 S.Ct. 1519, 1522, 95 L.Ed.2d 1 (1987) (Pennzoil)

(injunctive relief against a prevailing civil litigant

EEE

cra pesmi

23a

attempting to execute a judgment in its favor pending

appeal of that judgment to a state appellate court); Ohio

Civil Rights Commission v, Dayton Christian Schools, Inc.,

477 U.S. 619, 625, 106 S.Ct. 2718, 2722, 91 L.Ed.2d 512

(1986) (Dayton Schools) (injunctive relief against adminis-

trative proceedings conducted by state civil rights com-

mission); Middlesex, 457 U.S. at 428-29, 102 S.Ct. at 2519

(injunctive relief against state bar disciplinary proceed-

ings); Moore v. Sims, 442 U.S. 415, 423, 433-35, 99 S.Ct.

2371, 2377, 2382-83, 60 L.Ed.2d 994 (1979) (Moore) (injunc-

tive relief against state proceeding seeking to protect

allegedly abused children); Trainor v. Hernandez, 431 U.S.

434, 435-38, 97 S.Ct. 1911, 1913-15, 52 L.Ed.2d 486 (1977)

(Trainor) (injunctive relief against a state civil attach-

ment/enforcement proceedings); Juidice v. Vail, 430 U.S.

327, 333-36, 97 S.Ct. 1211, 1216-17, 51 L.Ed.2d 376 (1977)

(Juidice) (injunctive relief against state contempt proceed-

ings); Huffman v. Pursue, Ltd., 420 U.S. 592, 603-07, 95

S.Ct. 1200, 1207-09, 43 L.Ed.2d 482 (1975) (Huffman)

(injunctive relief against state civil Proceedings seeking

abatement of a nuisance); Younger, 401 U.S. at 49-53, 91

S.Ct. at 753-755 (injunctive relief against state criminal

Proceedings). The Younger abstention doctrine is based on

considerations of equity, comity, and federalism. See, 02..

Pennzoil, 107 S.Ct. at 1525-26; Younger, 401 U.S. at 43-45,

91 S.Ct. at 750-51.

In applying the Younger doctrine, federal courts must

examine (1) the nature of the state Proceedings in order to

determine whether the proceedings implicate important

State interests, (2) the timing of the request for federal

24a

relief in order to determine whether there are ongoing

state proceedings, and (3) the ability of the federal plain-

tiff to litigate its federal constitutional claims in the state

proceedings. See Middlesex, 457 U.S. at 432, 102 S.Ct. at

2521; World Famous Drinking Emporium, 820 F.2d at 1081,

1082. Courts must also examine whether the proceeding

demonstrates “bad faith, harassment, or some other

extraordinary circumstances that would make abstention

inappropriate.” Middlesex, 457 U.S. at 435, 102 S.Ct. at

2522. But where a state tribunal has been found incompe-

tent by reason of bias, the Supreme Court has held that

there was effectively no opportunity to litigate constitu-

tional claims. Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct.

1689, 1697, 36 L.Ed.2d 488 (1973) (Gibson); compare Kugler

v. Helfant, 421 U.S. 117, 124-25 & n. 4, 95 S.Ct. 1524,

1530-31 & n. 4, 44 L.Ed.2d 15 (1975) (dictum agreeing that

a biased state tribunal removes predicate for Younger v.

Harris dismissal, but categorizing biased tribunal in Gib-

son as example of “extraordinary circumstance” render-

ing state tribunal incapable of fairly and fully

adjudicating issues before it).

Younger by its own terms requires federal courts to

abstain from interfering in state criminal proceedings

absent exceptional circumstances. See 401 U.S. at 53-54, 91

S.Ct. at 754-55. The Supreme Court, however, has never

held that federal district courts should always abstain

under Younger when state civil proceedings are pending.

See Moore, 442 U.S. at 423 n. 8, 99 S.Ct. at 2377 n. 8;

Huffman, 420 U.S. at 607, 95 S.Ct. at 1209. Nonetheless, the

Court has held that, under Younger, federal courts should

25a

abstain from interfering with state disciplinary proceed-

ings analogous to the Rule 13 proceeding currently pend-

ing against Partington. See Middlesex, 457 US. 423, 102

S.Ct. 2515. In Middlesex, the Middlesex County Ethics

Committee, a tribunal under the jurisdiction of the New

Jersey Supreme Court, charged Hinds, a member of the

New Jersey Bar, with violating two New Jersey disciplin-

ary rules. Id. at 425-28, 102 S.Ct. at 2518-19. Rather than

filing an answer to the charges as provided in the New

Jersey Bar disciplinary procedures, Hinds filed suit in

federal district court, alleging that the disciplinary rules

violated his first amendment rights and were facially

vague and overbroad. Id. at 429, 102 S.Ct. at 2519. The

district court abstained under Younger, but was reversed

by the Third Circuit. Id. at 429, 102 S.Ct. at 2519.

Recognizing that “[t]he policies underlying Younger

are fully applicable to noncriminal judicial proceedings

when important state interests are involved,” the

Supreme Court proceeded to review the New Jersey State

Bar disciplinary proceedings in light of the three require-

ments for abstention under Younger. Id. at 432, 102 S.Ct. at

2521. First, observing that the local Ethics Committees

acted as an arm of the New Jersey Supreme Court, the

Court determined that “[f]rom the very beginning a disci-

plinary proceeding is judicial in nature, initiated by filing

a complaint with an ethics and grievance committee.” Id.

at 433-34, 102 S.Ct. at 2522. Significant to the Court’s

determination that the state disciplinary proceedings

were “judicial” in nature was its analogizing of the role

local ethics or bar associations to that of a special master.

Id. at 434 n. 13, 102 S.Ct. at 2522 n. 13. Next, the Court

acknowledged that the state “has an extremely important

26a

interest in maintaining and assuring the professional con-

duct of the attorneys it licenses,” especially “the profes-

sional conduct of attorneys involved in the adminis-

tration of criminal justice.” Id. at 434, 102 S.Ct. at 2522

(emphasis added). Last, the Court opined that because

Hinds “failed even to attempt to raise any federal consti-

tutional challenge in the state proceedings,” he had not

shown that “the members of the Ethics Committee, the

majority of whom are lawyers, would have refused to

consider a claim that the rules which they were enforcing

violated federal constitutional guarantees.” Id. at 435, 102

S.Ct. at 2522 (emphasis in original). Having concluded

that the three prerequisites for Younger abstention were

satisfied, the Court reversed the Third Circuit, holding

that it was proper for the district court to have stayed its

hand in this case. See id. at 437, 102 S.Ct. at 2524.

The Rule 13 disciplinary proceeding initiated against

Partington in Hawaii is strikingly similar to the New

Jersey disciplinary proceedings at issue in Middlesex. Both

proceedings are conducted by an ethics committee or its

analogue, a special master, id. at 434 n. 13, 102 S.Ct. at

2522 n. 13, under the auspices of the state supreme court.

Compare 457 U.S. at 425-27, 433, 102 S.Ct. at 2518-19, 2522

with Haw.S.Ct.R. 13. Just as the Court in Middlesex con-

cluded that the State of New Jersey had a “special”

interest “in the professional conduct of attorneys

involved in the administration of criminal justice,” 457

U.S. at 434, 102 S.Ct. at 2522, we conclude that Hawaii has

a vital interest in ensuring that defense counsel in crimi-

nal cases perform within the standards of reasonable

professional competence. Partington concedes, as he must,

that the State of Hawaii has a very important interest

icine ia

27a

in its Rule 13 proceedings. Thus, the first requirement for

Younger abstention has been met. In addition, there is no

question that the Rule 13 proceedings had begun and

were still pending at the time Partington filed suit in the

district court. Partington concedes this point as well.

Thus, the second requirement for Younger abstention has

been met. Unless Partington can show that, unlike the

New Jersey state disciplinary proceedings discussed in

Middlesex, the Rule 13 proceedings against him do not

offer him an opportunity to raise his constitutional claims

and have them timely decided by a competent state tribu-

nal, see Middlesex, 457 U.S. at 437, 102 S.Ct. at 2524;

Gibson, 411 U.S. at 573-74, 93 S.Ct. at 1695, or that this

proceeding demonstrates “bad faith, harassment, or some

other extraordinary circumstance that would make

abstention inappropriate,” Middlesex, 457 U.S. at 435, 437,

102 S.Ct. at 2522, 2524, Middlesex governs and we must,

accordingly, affirm the dismissal of this action under

Younger.

Under the third prong of the test for Younger absten-

tion, federal abstention is inappropriate unless the plain-

tiff is afforded the opportunity in the ongoing state

proceedings to raise his constitutional claims “and have

[those claims] timely decided by a competent state tribu-

nal.” Gibson, 411 U.S. at 577, 93 S.Ct. at 1697; accord

Middlesex, 457 U.S. at 437, 102 S.Ct. at 2524. Partington

strenuously advances two grounds why the Rule 13 pro-

ceedings against him fail to meet this third required

Predicate for Younger abstention.

28a

First, he maintains that the attorney-client privilege

procedurally bars him from disputing the Hawaii

Supreme Court’s finding of ineffectiveness of counsel,

thereby depriving him of an opportunity to raise his

federal constitutional claims during his Rule 13 proceed-

ings. If a federal plaintiff cannot raise his federal claim in

the state proceedings because state procedures do not

afford him the opportunity to do so, then abstention is

not appropriate. See, e.g., Gerstein v. Pugh, 420 U.S. 103,

108 n. 9, 95 S.Ct. 854, 860 n. 9, 43 L.Ed.2d 54 (1975).

Partington argues that abstention is inappropriate here

because Clarke’s refusal to waive the attorney-client priv-

ilege disables him from contesting the ineffectiveness of

counsel issue in either the Rule 13 proceedings or in the

Hawaii Supreme Court. Partington believes that the “self-

defense” exception to the attorney-client privilege, see

Disciplinary Rule 4-101(c)(4),2 only applies when the

2 Disciplinary Rules, DR 4-101, Preservation of Confidences

and Secrets of a Client, provides:

(A) “Confidence” refers to information protected by

the attorney-client privilege under applicable law,

and “secret” refers to other information gained in the

professional relationship that the client has

requested be held inviolate or the disclosure of

which would be embarrassing or would be likely to

be detrimental to the client.

(B) Except when permitted under DR 4-101(C), a

lawyer shall not knowingly:

(1) Reveal a confidence or secret of his client.

(2) Use a confidence or secret of his client to the

disadvantage of the client.

(Continued on following page)

29a

client questions the attorney’s conduct. Clarke has not

done so. We interpret this argument to mean that Part-

ington believes Hawaii’s interpretation of the attorney-

client privilege imposes a Procedural bar that effectively

prevents him from testifying on the issue of ineffective-

ness because he cannot fully present his trial strategy

defense.

Partington bears the burden of showing ” ‘that state

Procedural law bar[s] presentation of [his] claims.’ ”

(Continued from previous page)

(3) Use a confidence or secret of his client for the

advantage of himself or of a third person, unless the

client consents after full disclosure.

(1) Confidences or secrets with the consent of the

client or clients affected, but only after a full dis-

closure to them.

(2) Confidences or secrets when permitted under

Disciplinary Rules or required by law or court order.

(3) The intention of his client to commit a crime

and the information necessary to prevent the crime.

(4) Confidences or secrets necessary to establish

or collect his fee or to defend himself or his

employees or associates against an accusation of

wrongful conduct.

(D) A lawyer shall exercise reasonable care to pre-

vent his employees, associates, and others whose

services are utilized by him from disclosing or using

confidences or secrets of a client, except that a law-

yer may reveal the information allowed by DR

4-101(C) through an employee.

30a

Pennzoil, 107 S.Ct. at 1528, quoting Moore, 442 U.S. at 432,

99 S.Ct. at 2381. Asserted ambiguities in Hawaii’s rule

regarding the attorney-client privilege or on the pro-

cedures available in Rule 13 proceedings for the presenta-

tion of his federal claims do not relieve him of this

burden. Federal courts “cannot assume that state judges

will interpret ambiguities in state procedural law to bar

presentation of federal claims.” Pennzoil, 107 S.Ct. at 1528.

Moreover, given that Partington “has not attempted te

present his federal claims in related state court proceed-

ings, [we will] assume that state procedures will afford an

adequate remedy, in the absence of unambiguous author-

ity to the contrary.” Id.; see also Middlesex, 457 U.S. at 435,

102 S.Ct. at 2522. In addition, even if a federal plaintiff

cannot raise his constitutional claims in state administra-

tive proceedings that implicate important state interests,

his ability to raise the claims via state judicial review of

the administrative proceedings suffices. Dayton Schools,

477 U.S. at 629, 106 S.Ct. at 2724. Requiring a federal

plaintiff to present his constitutional challenges in the

state proceedings recognizes that state courts can and

will perform their responsibility to safeguard federal con-

stitutional rights. See, e.g., Pennzoil 107 S.Ct. at 1528;

Middlesex, 457 U.S. at 431, 102 S.Ct. at 2520; Trainor, 431

U.S. at 443, 97 S.Ct. at 1917.

Partington has not met his burden. He does not

explain how this alleged procedural bar prevents him

from presenting his first, fifth, sixth, and fourteenth

amendment claims in the Rule 13 proceedings. Nor has

Partington unambiguously shown that Hawaii's “self-

defense exception” to the attorney-client privilege, see DR

3la

4-101(C)(4), only applies when a client attacks his attor-

ney’s conduct. Cf. ABA/BNA Lawyer’s Manual on Pro-

fessional Conduct, Disclosure: Attorney's Benefit, at 55:701,

703, 706-08(BNA)(Nov. 11, 1987) (discussing cases where

the privilege does not apply even though the client is not

attacking the attorney’s conduct.) In any event, Part-

ington “should first set up and rely upon [this pro-

cedural] defense in the [Hawaii] state courts.” Younger,

401 U.S. at 45, 91 S.Ct. at 751, quoting Fenner v. Boykin, 271

U.S. 240, 244, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926). We

cannot assume that Hawaii will interpret its attorney-

client privilege to bar Partington from speaking in his

own defense. Pennzoil, 107 S.Ct. at 1528.

Second, Partington argues that the third prong for

abstention is not met in this case because both the special

master and the Hawaii Supreme Court are biased against

him. In Gibson, the Supreme Court recognized that if the

federal plaintiff can establish that either the state admin-

istrative tribunal or the state court is not “competent”

because of bias, then abstention is not appropriate. See

411 US. at 577, 93 S.Ct. at 1697. In addition, it recognized

that de novo judicial review on the decision of a “biased”

administrative board does not Satisfy the competent tri-

bunal requirement of the third Predicate for Younger

abstention. See id. & n.16. Here, Partington contends that

a finding in the Rule 13 proceeding before the special

master or the Hawaii Supreme Court that he rendered

effective assistance of counsel would be totally incompat-

ible with the Hawaii Supreme Court's decision in State v.

Clarke. From this, he concludes that the issue of ineffec-

tiveness has been prejudged against him. Partington fur-

ther assails the impartiality of the Hawaii Supreme Court

32a

by asserting that the large amount of publicity that State

v. Clarke generated has biased the Hawaii Supreme Court

against his case.

In claiming bias, Partington must overcome the pre-

sumption that the special master and the Hawaii Supreme

Court are unbiased. See Schweiker v. McClure, 456 U.S. 188,

195, 102 S.Ct. 1665, 1669, 72 L.Ed.2d 1 (1982). He can

rebut this presumption “by a showing of conflict of inter-

est or some other specific reason for disqualification.” Id.

In support of his claim of judicial bias, Partington

relies on Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43

L.Ed.2d 712 (1975) (Withrow). The Court there examined a

Wisconsin statute that allowed a state medical examining

board to warn and reprimand a physician, to suspend a

physician’s license temporarily, or to institute a criminal

action or an action to revoke a license when it found

probable cause under governing criminal or revocation

statutes. Id. at 37, 95 S.Ct. at 1459. When the medical

examining board commenced investigative proceedings

against Larkin, Larkin filed suit in federal court under 42

U.S.C. § 1983 seeking an injunction against the investiga-

tion, which was initially denied by the federal district

court. Id. at 39, 95 S.Ct. at 1460. The board subsequently

notified Larkin that it would hold a “contested hearing”

in order to determine whether to suspend his license

temporarily. Id. at 40-41, 95 S.Ct. at 1461. The federal

district court then enjoined the board because it con-

cluded that by authorizing the board to perform a dual

investigatory and adjudicative function, the Wisconsin

statute raised serious procedural due process concerns by

permitting a physician to lose his liberty or property at

33a

the hands of a biased decisionmaker. Id. at 41-42, 95 S.Ct.

at 1462.

The Supreme Court reversed the preliminary injunc-

tion, concluding that it was “quite unlikely” that the

physician would ultimately prevail on his procedural due

process challenge. Id. at 46, 95 S.Ct. at 1464. Recognizing

that biased decisionmakers do not Satisfy procedural due

process, id., at 46-47, 95 S.Ct. 1464, the Court nonetheless

rejected the contention “that the combination of investi-

gative and adjudicative functions necessarily creates an

unconstitutional risk of bias in administrative adjudica-

tion.” Id. at 47, 95 S.Ct. at 1464. Instead, the Court empha-

sized that one who advances such an argument

must overcome a presumption of honesty and

integrity in those serving as adjudicators; and

[he] must convince [the court] that, under a

realistic appraisal of psychological tendencies

and human weakness, conferring investigative

and adjudicative powers on the same individ-

uals poses such a risk of actual bias or prejudg-

ment that the practice must be forbidden if the

guarantee of due process is to be adequately

implemented.

Id. In repudiating the appellant’s claim of presumptive

bias, the Court observed that when an appellate court

reverses an administrative law judge or a lower court

judge, procedural due Process does not mandate that a

new judge retry the case. Id. at 48-49, 95 S.Ct. at 1465.

Similarly, the Court rejected the proposition that simply

because the board issued written findings of fact and

conclusions of law in support of its probable cause deter-

mination, the board had prejudged the case. Id. 56-57, 95

S.Ct. at 1469. The Court pointed out that an initial finding

34a

of probable cause to believe a physician had violated a

statute was not logically inconsistent with a subsequent

decision, based on complete evidence brought out at an

adversarial hearing, that the physician did not violate the

statute. Id. at 57-58, 95 S.Ct. at 1469-70.

Partington argues that Withrow stands for the propo-

sition that bias is established where the accusatory find-

ing is incompatible with any adjudicative finding. He

relies on the statement from Withrow that “if the initial

view of the facts based on the evidence derived from

nonadversarial processes as a practical or legal matter

foreclose[s] fair and effective consideration at a subse-

quent adversary hearing leading to ultimate decision, a

substantial due process question would be raised.” Id. at

58, 95 S.Ct. at 1470 (emphasis added). From this inter-

pretation of Withrow, Partington then argues that the

following three factors all indicate that he is legally fore-

closed from contesting the Hawaii Supreme Court’s find-

ing of ineffectiveness of counsel in State v. Clarke: (1) the

title of Rule 13, “Proceedings Following Final Adjudica-

tion Of Ineffective Assistance Of Counsel In Criminal

Cases,” indicates that the decision is final; (2) the text of

Rule 13, in part, speaks only of the special master deter-

mining whether “corrective action” should be taken; and

(3) the Hawaii Supreme Court’s order appointing the

special master states that there was “a finding of ineffec-

tive assistance of trial counsel.”

Under the third prong of Younger, Partington must

demonstrate that he would not have an adequate oppor-

tunity to litigate his federal constitutional claims — in this

case, as he argues, before a competent and unbiased state

adjudicator. Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521;

35a

Gibson, 411 U.S. at 577, 93 S.Ct. at 1697.3 He has not done

so. The Hawaii Supreme Court has never had the oppor-

tunity to hear Partington’s argument that due process

' requires that he not be judged by the court after it has

ruled on his performance in the criminal case. There is

neither legal nor practical reason to believe that the

Hawaii Supreme Court will be biased on this issue which

it has never addressed. We cannot and should not guess

how the court will respond. Withrow is irrelevant to Part-

ington’s unaddressed due process claims.

Moreover, we conclude that Partington has not dem-

onstrated under Withrow that, as a practical or legal mat-

ter, the special master or the Hawaii Supreme Court is

* The dissent suggests that we have misunderstood the

third prong of the Middlesex test, the prong requiring that

federal claimants have “an adequate opportunity in the state

proceedings to raise constitutional challenges.” 457 U.S. at 432,

102 S.Ct. at 2521. It is true that in neither Middlesex nor Younger

is a biased tribunal mentioned under this third prong. The

majority and the dissent agree that Younger abstention is inap-

propriate when bias renders a state tribunal incompetent; we

disagree over how to categorize the Supreme Court’s decision

in Gibson. Gibson analyzed incompetency caused by bias in

connection with the plaintiff’s Opportunity to litigate federal

constitutional claims before a competent state tribunal. 411

U.S. at 577, 93 S.Ct. at 1697. The dissent, however, focuses on

dictum in Kugler v. Helfant categorizing the biased tribunal

finding in Gibson as an “extraordinary circumstance.” 421 U.S.

at 124-25 & n. 4, 95 S.Ct. at 1530-31 & n: 4. Despite this dictum,

we believe it better to follow Gibson’s approach of analyzing

bias in connection with whether there is an opportunity to

litigate the federal constitutional claims, which became the

third Middlesex prong.

36a

bound by State v. Clarke or has prejudged the ineffective-

ness issue. Cf. Vanelli v. Reynolds School District No. 7, 667

F.2d 773, 779 & n. 10 (9th Cir.1982) (rejecting claim that a

school board could not, consistent with due process, con-

duct an impartial hearing to review its prior decision to

terminate a teacher’s employment). As for the legal issue,

the title of Rule 13 is somewhat troubling in that it may

indicate that the finding of ineffectiveness is conclusive.

Furthermore, the Rule itself is not clear on the issue of

whether defense counsel can contest the issue of ineffec-

tiveness anew before the special master and the Hawaii

Supreme Court, and the Chief Justice’s order appointing

Gedan can be read as indicating that the Supreme Court

has already decided the ineffectiveness issue. But, as we

have already observed, Partington bears the burden of

demonstrating, through “unambiguous authority”, that

both the special master and the Hawaii Supreme Court

are precluded from considering the ineffectiveness issue

de novo. See Pennzoil, 107 S.Ct. at 1528; Middlesex, 457

U.S. at 435, 102 S.Ct. at 2522. We do not believe that

Partington has carried this burden by reciting the forego-

ing factors. Rule 13 states in its second paragraph that

defense counsel is only “alleged to have been incompe-

tent.” (Emphasis added.) The special master, moreover,

has the power to dismiss the proceedings. This power

presumably includes the power to conclude that the crim-

inal defense attorney did not in fact render ineffective

assistance.

The Hawaii Supreme Court's initial determination of

ineffectiveness will apparently not have collateral estop-

pel effect in the Rule 13 proceedings. See Santos v. State

Department of Transportation, 64 Haw. 648, 652, 646 P.2d

i eeetensenemeeaiatil

37a

962, 965-66 (1982) (per curiam) (discussing issue preclu-

sion under Hawaii law). This conclusion is consistent

with a letter written by the Chief Justice to Partington

and others stating that Rule 13 provides “a procedure

where the attorney in question ha/s] an Opportunity to

contest, on his own behalf, the charge of ineffective assis-

tance of counsel, before an impartial master, who is in no

way bound by the previous determination in the criminal

case....” If the attorney disagrees, the Rule “provides

for the master’s determination to be reviewed by the

Supreme Court... . ” In Middlesex, the Court considered

the actions of the New Jersey Supreme Court clarifying

Hinds’s ability to raise his constitutional challenges. 457

U.S. at 436, 102 S.Ct. at 2523. Although the Hawaii

Supreme Court has not formally spoken on this issue, we

believe that, in the absence of clear authority to the

contrary, the letter of the Chief Justice can be considered

as an interpretive gloss for Purposes of abstention clarify-

ing that, as a legal matter, Partington will be able to

contest the finding of ineffectiveness during his Rule 13

Proceedings. In addition, the Primary issue before the

special master and, perhaps ultimately, the Hawaii

Supreme Court, is whether corrective action is warranted

under Rule 13. Partington does not contend that the court

has prejudged this issue.4

_—

* Relying on Gibson, the dissent suggests that the majority

has misconceived “the basic rule §0verning abstention and

biased state tribunals” (dissent at p. 137) because we require

inquiry of a biased state tribunal whether it is biased. Dissent

at pp. 137-138. While we do not disagree with the legal prem-

ise, the dissent overlooks that there has been no finding that

(Continued on following page)

38a

We also find no practical limitation on Partington’s

ability to address any of his arguments to an impartial

tribunal. To the extent that Partington believes that cer-

tain members of the Supreme Court may be personally

biased against him, either by virtue of their finding of

ineffectiveness of counsel in State v. Clarke or as a result

of the high profile nature of the publicity in that case, he

may be able to file an affidavit seeking recusal under

Haw.Rev.Stat. § 601-7(b) (1985).5 Cf. Flangas v. State Bar of

(Continued from previous page)

the Supreme Court of Hawaii is biased on the constitutional

issues.

But more important, Gibson is distinguishable from the

instant case. The state tribunal in Gibson was the Alabama

Board of Optometry, “the statutory body with authority to

issue, suspend, and revoke licenses for the practice of optome-

try.” 411 U.S at 567, 93 S.Ct. at 1692. This Board was comprised

solely of practicing optometrists. Id. at 571, 93 S.Ct. at 1694. Of

course, a tribunal comprised of optometrists does not have the

ability to entertain constitutional claims. Optometrists are

incompetent in this area; their domain is the visual process, not

due process. By contrast, the state tribunal in Partington is a

court, indeed, the Hawaii Supreme Court. It is comprised of

experienced jurists. That this court has the ability to entertain

and resolve constitutional claims is incontrovertible. There is

simply no comparison between State Supreme Court justices

and a group of optometrists in their competency to face consti-

tutional issues: Justices are competent, optometrists are not.

Partington has failed to demonstrate that he will not be

afforded the opportunity to litigate his constitutional claims

before a competent state tribunal. The third prong of Middlesex

requires us to abstain. Contrary to the dissent’s assertion,

Gibson does not dictate a different result.

5 Haw.Rev.Stat. § 601-7 provides:

(a) No person shall sit as a judge in any case in

which the judge’s relative by affinity or consanguinity

(Continued on following page)

39a

Nevada, 655 F.2d 946, 950 (9th Cir.1981) (holding that this

court cannot ascertain the availability of the biased adju-

dicator exception to Younger abstention until appellant

attempts to avail himself of state Statutory procedures to

disqualify allegedly biased Supreme court justices).

Hawaii provides that Hawaii circuit judges and retired

Supreme Court Justices may sit on the Hawaii Supreme

Court when one of the Justices recuses himself. See

(Continued from previous page)

within the third degree is counsel, or interested

either as a plaintiff or defendant, or in the issue of

which the judge has, either directly or through such

relative, any pecuniary interest; nor shall any person

Sit as a judge in any case in which the judge has been

of counsel or on an appeal from any decision or

judgment rendered by the judge.

(b) Whenever a party to any suit, action, or

proceeding, civil or criminal, makes and files an

affidavit that the judge before whom the action or

Proceeding is to be tried or heard has a personal bias

or prejudice either against the party or in favor of

any Opposite party to the suit, the judge shall be

disqualified from Proceeding therein. Every such

affidavit shall state the facts and the reasons for the

belief that bias or prejudice exists and shall be filed

before the trial or hearing of the action or proceed-

ing, or good cause shall be shown for the failure to

file it within such time. No party shall be entitled in

any case to file more than one affidavit; and no

affidavit shall be filed unless accompanied by a cer-

tificate of counsel of record that the affidavit is made

in good faith. Any judge may disqualify oneself by

filing with the clerk of the court of which the judge is

a judge a certificate that the judge deems oneself

unable for any reason to Preside with absolute

impartiality in the pending suit or action.

40a

Haw.Rev.Stat. § 602-10 (1985).© The statute even contem-

plates that some cases may arise in which all five

Supreme Court Justices would recuse themselves, id.

Moreover, we must presume that each Hawaii Supreme

Court Justice will follow his duty under Haw.S.Ct.R. 5 to

“be unswayed by partisan interests, public clamor, or fear

of criticism,” Haw.S.Ct.R. 5, incorporating Code of Judicial

Conduct, Canon 3(A)(1), and to recuse himself if “he has

a personal bias or prejudice concerning a party... . ”

Haw.S.Ct.R. 5, incorporating Code of Judicial Conduct,

Parties shall be entitled to bring an appeal

before a full court. Oral argument shall be before a

full court; provided that in an appropriate case the

court in its discretion may dispense with oral argu-

ment. In case of a vacancy, or if a justice of the

supreme court is disqualified from sitting in any case

pending before this supreme court, or is unable to

attend, or is absent, or is recused or has been

excused, the vacancy or the place of such justice may

be temporarily filled by a circuit judge designated by

the chief justice or by the appointment of a justice

who has retired from the supreme court. Such retired

justice chosen to serve as substitute justice shall not

be actively engaged in the practice of law. A retired

justice, when sitting as substitute justice, shall be

compensated at a rate of pay of associate justices of

the supreme court. When necessary, the court may

consist of five circuit judges, so designated or five

retired justices so appointed or any combination of

circuit judges and retired justices. After oral argu-

ment of a case, if a vacancy arises or if for any other

reason a justice is unable to continue on the case, the

case may be decided or disposed of upon the concur-

rence of any three members of the court without

filling the vacancy or the place of such justice.

4la

Canon 3(C)(1)(a). Partington has provided no reason to

strip these individuals of the “presumption of honesty

and integrity.” See Withrow, 421 U.S. at 47, 95 S.Ct. at

1464.7

Even if the necessary three predicates exist, however,

Younger abstention will not be appropriate if the federal

plaintiff can establish (1) that the state proceedings are

being undertaken in bad faith or for purposes of harass-

ment or (2) that some other “extraordinary circum-

stances” exist, such as proceedings pursuant to a

“flagrantly” unconstitutional statute. See, e.g., Younger,

401 U.S. at 49-50, 53-54, 91 S.Ct. at 753, 754-55.

The scope of Younger’s bad faith exception is not

clear. Although the Court in Younger and its progeny has

continuously recognized that abstention would not be

required if a federal plaintiff could establish that the state

court proceedings were instituted in bad faith, the Court

has never actually applied the exception. Federal circuit

courts, however, have occasionally found that “bad faith”

exception applicable. See, e.g., Rowe v. Griffin, 676 F.2d

? The dissent draws attention to language in the Chief

Justice’s April 27, 1987, letter to Partington which, the dissent

suggests, indicates that the Chief Justice has prejudged Part-

ington’s due process and equal protection claims. Dissent at p.

138 n. 8 & p. 144 n. 24. The Chief Justice is at liberty to recuse

himself if his impartiality or the appearance of judicial objec-

tivity is drawn into question.

42a

524, 525-26 (11th Cir.1982); Heimback v. Lyons, 597 F.2d

344, 346-47 (2d Cir.1979) (per curiam); Wilson v. Thompson,

593 F2d 1375, 1381-83 (5th Cir.1979). No bad faith has

been demonstrated in this case.

Because “[t]he very nature of ‘extraordinary circum-

stances’ . . . makes it impossible to anticipate and define

every situation that might create a sufficient threat of

such great, immediate, and irreparable injury as to war-

rant intervention in state criminal proceedings,” see

Kugler v. Helfant, 421 U.S. 117, 124-25, 95 S.Ct. 1524, 1530,

44 L.Ed.2d 15 (1975), the scope of Younger’s “exceptional

circumstances” exception is also unclear. As with the bad

faith exception, the Supreme Court has consistently rec-

ognized the exception, but has never held that the excep-

tion applied.

The exception clearly recognizes, however, that a fed-

eral court need not abstain when faced with a flagrantly

unconstitutional statute. See Younger, 401 U.S. at 53-54, 91

S.Ct. at 754-55. This aspect of the exception applies only

when a statute is “ ‘flagrantly and patently violative of

express constitutional prohibitions in every clause, sen-

tence, and paragraph, and in whatever manner and

against whomever an effort might be made to apply it.’ ”

Id., quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962,

967, 85 L.Ed. 1416 (1941) (Watson); accord Trainor, 431 U.S.

at 446-47, 97 S.Ct. at 1919.

Partington argues that Rule 13 flagrantly violates the

first amendment, procedural due process, and the equal

protection clause of the fourteenth amendment on its face

43a

and as applied. We have examined the arguments that

Partington makes in challenging Rule 13. He has certainly

raised some colorable constitutional arguments. Nonethe-

less, he has failed to demonstrate that Rule 13 is ” ‘pat-

ently violative of express constitutional prohibitions in

every clause, sentence, and paragraph, and in whatever

manner and against whomever an effort might be made

to apply it.’ ” Younger, 401 U.S. at 53-54, 91 S.Ct. at 754-55,

quoting Watson, 313 U.S. at 402, 61 S.Ct. at 967. Therefore,

we reject Partington’s argument that this exception pre-

vented the district court from abstaining.

Partington also contends that the Hawaii Supreme

Court’s decision in State v. Clarke (1) violated the first

amendment because the decision had a chilling effect on

his ability to hold himself out as a competent counsel, (2)

violated the fifth and fourteenth amendment because the

decision deprived him of a liberty and property interest

in his reputation without due process of law, and (3)

violated the sixth amendment which he argues “neces-

sarily includes a corresponding right of a criminal

defense attorney to practice his profession without unrea-

sonable hindrances.” Partington believes that both the

fifth amendment and the sixth amendment require courts

to grant a “pre-deprivation” hearing to all defense coun-

sel alleged to have rendered ineffective assistance and

that the Hawaii Supreme Court, in deciding State v. Clarke

did not comply with these constitutional requirements.

Partington argues that the special master lacks the power

to analyze these issues or to undo these constitutional

harms and that it is unreasonable to believe that the

———

44a

Hawaii Supreme Court will analyze these issues or undo

these harms; therefore, abstention is not appropriate.

Accordingly, Partington requests a declaratory judgment |

stating that in rendering its decision in State v. Clarke and

concluding that Partington rendered ineffective assis-

tance of counsel, the Hawaii Supreme Court violated the

first, fifth, and sixth amendments.

The district court did not expressly address any of

these arguments or the requested declaratory relief

regarding the Hawaii-Supreme Court's decision in State v.

Clarke. At oral argument, we expressed doubt whether

Partington presented these constitutional challenges in

the district court concerning the manner and the effect of

the Hawaii Supreme Court’s decision in State v. Clarke. |

We pointed out that the prayer for relief in Partington’s

complaint did not request a declaratory judgment that in

rendering its decision in State v. Clarke the Hawaii

Supreme Court violated the first, fifth, and sixth amend-

ments. Rather, the complaint states that because of the

defendants’ action he “is entitled to .. . [a] declaratory

judgment that HSCR 13 as applied to Plaintiff is uncon-

stitutional.” At oral argument, Partington contended that

his request for declaratory relief in the context of Rule 13

included the first, fifth, and sixth amendment challenges

to the Hawaii Supreme Court’s decision in State v. Clarke.

He claims that he couched his request for relief in terms

of Rule 13 because the Hawaii Supreme Court’s decision

in State v. Clarke was the “first step” under Rule 13. He

argued that even if his complaint was not totally clear on

the requested relief, his brief in the district court made

his argument concerning the Hawaii Supreme Court’s

decision in State v. Clarke clear.

ee o

45a

Gedan and Chang denied that Partington had pre-

sented this challenge in the district court. They contend

not only that it would be inappropriate to allow Part-

ington to bypass the district court, but also that such an

attack on State v. Clarke implicates the Rooker-Feldman

doctrine forbidding lower federal courts to sit in direct

review of state court judgments. See District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S.Ct.

1303, 1314-16, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity

Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed

362 (1923); see also Mackay v. Pfeil, 827 F.2d 540, 543-45

(9th Cir.1987) (per curiam); Worldwide Church of God v.

McNair, 805 F.2d 888, 890-93 (9th Cir.1986) (Worldwide

Church of God).

We have reviewed Partington’s complaint and the

brief he submitted to the district court. Although we

might be able to read Partington’s rather unclear brief as

contesting the constitutionality of the Hawaii Supreme

Court’s decisionmaking process in State v. Clarke, his

complaint merely sought declaratory and injunctive relief

against the defendants - Gedan and Chang - involved in

the Rule 13 proceedings. Thus, the lack of clarity in his

brief and the wording of his complaint lead us to con-

clude that he did not clearly raise the issue in the district

court.

Ordinarily, we will decline to review an issue not

clearly raised in the district court unless necessary to

prevent manifest injustice, unless a new issue arises while

the appeal is pending because of a change in the law, or

unless the issue is purely one of law that is both central to

the case and important to the public and the necessary

facts are fully developed. See Romain v. Shear, 799 F.2d

46a

1416, 1419 (9th Cir.1986) (per curiam), cert. denied, 481

U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987); Yuchert v.

Heckler, 774 F.2d 1365, 1367 (9th Cir.1985), rev'd on other

grounds, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119

(1987). Even if one of these exceptions apply, we retain

discretion to decline to address the issue.

We decline to review on this appeal Partington’s

attack on the Hawaii Supreme Court’s decisionmaking

process and judgment in State v. Clarke. The arguments

implicate the Rooker-Feldman doctrine and neither party

has briefed this significant issue. Cf. Worldwide Church of

God, 805 F.2d at 893 n. 4 (noting that the Rooker-Feldman

doctrine applies to section 1983 actions).

Gedan and Chang requested costs and attorney fees

pursuant to Fed.R.App.P. 38. Under Rule 38, we may

award fees and single or double costs “when the result is

obvious and the arguments on appeal wholly lack merit.”

McCarthy v. Mayo, 827 F.2d 1310, 1318 (9th Cir.1987) (cita-

tion omitted). Gedan and Chang contend that Part-

ington’s attempts to distinguish Middlesex were frivolous.

In response to this request for costs and attorney

fees, Partington requested sanctions pursuant to

Fed.R.Civ.P. 11 against Gedan and Chang for their request

for costs and attorney fees. The Defense Lawyers joined

Partington’s request for sanctions.

We have power to sanction Gedan and Chang pur-

suant to Rule 11. In re Mooney, 841 F.2d 1003, 1005 (9th

Cir.1988); Rockwell International Credit Corp. v. United

47a

States Aircraft Insurance Group, 823 F.2d 302, 304-05 (9th

Cir.1987); In re Curl, 803 F.2d 1004, 1007 (9th Cir.1986).§

Though Gedan and Chang’s request for Rule 38 sanctions

appears in their opening brief, we consider their request

as a separate motion to this court, severable from the

balance of the brief.

The Seventh Circuit’s discussion of a request for

sanctions under Fed.R.App.P. 38 is particularly appropri-

ate. The court limited its opinion to the defendant's

request for attorney’s fees under Rule 38. The court

stated:

The plaintiff's appeal, although not mer-

itorious, is plainly not frivolous; it is the defen-

dant’s request for Rule 38 sanctions that is

8 The dissent suggests that Rule 11 is not a proper basis

for imposing sanctions against Chang and Gedan. Conceding

that this court has sanctioned attorneys pursuant to Rule 11,

the dissent maintains that in each case the sanctionable con-

duct occurred in the district court. Dissent at 35 & n. 34. The

dissent is mistaken. In re Curl, 803 F.2d 1004, 1007 (9th

Cir.1986), held that:

Curl’s excuses do not relieve him of responsibility

for having brought an appeal that should not have

been brought, for subjecting Harvester to the burden

of appellate litigation, and for having put this court

to the task of reading, analyzing, and judging his base-

less arguments. . . . The brief filed by Curl was not

well-grounded in fact and he had not made reason-

able inquiry.

Id. (emphasis added). Contrary to the dissent’s assertion, dis-

sent at 35 n. 34, In re Curl is not ambiguous. This court

sanctioned Curl for much more than filing a frivolous notice of

appeal in district court; we sanctioned him for conduct occur-

ring in the appellate court.

48a

frivolous. We are troubled by the frequency with

which lawyers in this court, whether represent-

ing appellants or appellees, are including in

their briefs groundless requests for Rule 38

sanctions. The attitude seems to be, it can’t hurt

to ask. It can. Any frivolous motion, pleading, or

request is subject to sanctions, including a

motion or request for sanctions. In re Central Ice

Cream Co., 836 F.2d 1068, 1074 (7th Cir.1987). We

remind the bar that sanctions will be forth-

coming if counsel routinely request Rule 38

sanctions without careful investigation to deter-

mine that the appeal or defense sought to be

sanctioned is indeed frivolous. See also Aircraft

Trading & Services, Inc. v. Braniff, Inc., 819 F.2d

1227, 1236 (2d Cir.1987).

Meeks v. Jewel Co., 845 F.2d 1421, 1422 (7th Cir.1988) (per

curiam) (Meeks). We believe that Meeks fully applies to the

request for attorneys’ fees and costs by Gedan and

Chang.

Far from being frivolous, Partington’s and the

Defense Lawyers’ arguments that Middlesex did not com-

pel abstention were excellent, although not ultimately

meritorious. The arguments required us to examine

closely the Rule 13 proceedings and interpret whether

Partington would be able to raise his serious constitu-

tional challenges to Rule 13 in the Rule 13 proceedings

before the special master and, if necessary, on appeal to

the Hawaii Supreme Court. Moreover, we fully expect

that the special master and the Hawaii Supreme Court

will examine carefully and seriously Partington’s allega-

tions that Rule 13 violates the first amendment free

speech clause as incorporated by the fourteenth amend-

ment, the fifth amendment guarantee of procedural due

process as incorporated by the fourteenth amendment,

49a

and the fourteenth amendment equal protection clause,

both on its face and as applied. All of these issues are

important and will require careful and detailed examina-

tion. To charge that these issues are frivolous is surpris-

ing — to claim Rule 38 sanctions for Partington’s bringing

them to our attention is the vice described by the Seventh

Circuit in Meeks.

We deny the request by Gedan and Chang for Rule 38

sanctions and grant the Rule 11 request by Partington and

the Defense Lawyers. We order Gedan and Chang to pay

Partington’s and the Defense Lawyers’ costs and attor-

neys’ fees incurred in responding to the motion for Rule

38 sanctions. The district court is instructed to determine

the amount of the sanction.

AFFIRMED.

NOONAN, Circuit Judge, concurring:

I concur in the opinion of the court and note that the

foundation of the dissent is that the Hawaii Supreme

Court “is, as a matter of law, biased against Partington.” |

do not find it so easy to reach the dissent’s conclusion in

the light of what, in terms of current law and history, has

constituted a biased tribunal. The ideal has always been

an absolutely impartial judge. In practice, the ideal has

been tempered by the qualification put by the old Consti-

tution of Massachusetts which guaranteed a judge “as

impartial as the common lot of humanity will admit.”

Constitution of Massachusetts, Part 1, Declaration of the

Rights of the Inhabitants (1780). What the common lot of

humanity will admit has varied.

50a

A leading recent case from this circuit is United States

v. Conforte, 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S.

1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). Here a panel

consisting of Circuit Judges Kennedy and Tang and Dis-

trict Judge Palmieri considered a criminal appeal by Jos-

eph Conforte, the operator of a legalized house of

prostitution in Nevada. The district judge who had pre-

sided at his trial had, as president of the Reno Unit of the

American Contract Bridge League, participated in the

decision to reject Conforte’s application to join the

League because of his prior convictions and proprietor-

ship of the house of prostitution. At a cocktail party in

1973 the judge had also advised against accepting a con-

tribution from Conforte for the University of Nevada

football team. The judge had remarked the Conforte ran a

house of prostitution and “was not good for Reno.” Id. at

879.

District Judge Warren J. Ferguson heard Conforte’s

motion for a new trial on the grounds of the district

judge’s bias and found that the district judge had not

been disqualified. United States v. Conforte, 457 F.Supp.

641 (D.Nev.1978). Upholding this ruling, Judge Kennedy

for the panel stated: “We find no reasonable grounds for

questioning the judge’s impartiality because of bias or

prejudice. . . . [T]he negative bias or prejudice of the kind

alleged here will disqualify only if it is an attitude or

state of mind — [that evinces] an aversion or hostility of a

kind or degree that a fair minded person could not

entirely set aside when judging certain persons or

causes.” Conforte, 624 F.2d at 881.

This standard, it is apparent, is such that a previous

legal ruling would not constitute disqualifying bias

because it is not the kind of aversion or hostility that a

5la

fair-minded person would be unable to set aside. Speci-

fically, at a later point in the opinion, the panel held: “A

judge’s view on legal issues may not serve as the basis for

motions to disqualify.” Id. at 882 (citations omitted).

The history that lies behind this treatment of disqual-

ifying prejudice as a term of art is worth reviewing. The

Judiciary Act of 1789 provided that district judges should

not review their own decisions on appeal to the circuit

courts, but at the same time provided that Supreme Court

Justices should regularly act as circuit judges and made

no provision for disqualifying them from reviewing their

own decisions. In 1790 Chief Justice John Jay composed a

letter to be sent by the entire Supreme Court to President

Washington on this problem. Jay pointed out that having

once decided an issue, a justice would not be

secured against the influence of those predilec-

tions for individual opinions, and of those reluc-

tances to relinquish sentiments publicly, though,

perhaps, too hastily given, which insensibly and

not unfrequently infuse into the minds of the

most upright men some degree of partiality for

their official and public acts.

Letter from John Jay to James Iredell (Sept. 15, 1790)

(enclosing draft), reprinted in 2 G. McRee, Life and Corre-

spondence of James Iredell (1857). Jay also alluded to the

case where a justice might disqualify himself from sitting

on his own decision but the public would still believe that

in the decision of the Supreme Court reviewing his deci-

sion, “mutal interest had generated mutual civilities and

tendernesses injurious to right.” Id. Chief Judge [sic] Jay

observed that appellate cases were usually doubtful with

“much appearance of reason on both sides”; it would

shake the confidence of the losing litigant and the public

52a

if the court in reaching such difficult questions appeared

to be biased by the pre-judgment made by one or more of

it members.

It is unclear whether any other justice signed Chief

Justice Jay’s letter. It was never sent. 1 J. Goebel, Jr.,

History of the Supreme Court of the United States, 556 (1971).

The Supreme Court did not hesitate to act as a court of

appeals from decisions of circuit courts made by the

Justices as circuit judges. When in 1803 the practice was

finally challenged by a litigant, the Court held that acqui-

escence in the practice prevented change. Stuart v. Laird, 1

Cranch 299, 309 (1803). The practice of judging appeals

from one’s own decisions continued in the Marshall

court. E.g., The Antelope, 23 U.S. (10 Wheat.) 66, 6 L.Ed.

268 (1825).

It could not be much clearer that the Founders and

the early Supreme Court did not believe that a judge was

biased as a matter of law because he had previously ruled

on the question being presented to him. Eventually by

statute the practice ceased in 1891. Judiciary Act of March

3, 1891, ch. 517, 26 Stat. 826, § 3. But the problem has

scarcely disappeared. It is the regular practice of the

circuit courts of appeal to schedule sessions en banc in

which panel members, who have previously heard the

case, sit as members. The session is called a “rehearing”

but the reality is that the reargument before the en banc

court is a fresn hearing. Often there is new briefing and

always there is new oral argument. There are always

judges sitting who have never heard the case before. At

the same time the judges on the en banc panel who have

heard the case the first time and decided it are not

53a

regarded as biased as a matter of law in sitting to judge

this fresh appeal.

One difference exists between these practices and the

case Partington presents. At least in the practices men-

tioned a party has had an opportunity to defend himself

before the judge who ruled against. him the first time,

whereas Partington suffered an adverse ruling in a case

where he had no possibility of defending himself. This

distinction, however, is not material if the question is one

of prejudice on the part of the judge. In the federal

practices mentioned and in the Hawaii case the judges at

one point have made up their minds. In the most literal

sense they are prejudiced judges: they have prejudged the

case now before them. In the federal Practices it was and

is assumed that they can unmake their minds and con-

sider the case afresh. Why should this assumption not be

the case in Hawaii?

When a litigant was, for the first time, permitted to

challenge a federal judge on the grounds of bias, it was

on the basis of a statute enacted in 1911. The challenge

could only be for “personal bias or prejudice.” Act of

March 3, 1911, ch. 231, 36 Stat. 1090, § 21. Interpreting

this statute, the Supreme Court said that the party seek-

ing to disqualify the judge must “state facts which tend to

show not merely adverse rulings already made, which

may be right or wrong, but facts and reasons which tend

to show personal bias or prejudice.” Ex Parte American

Steel Barrel, Co. and Seaman, 230 U.S. 35, 43-44, 33 S.Ct.

1007, 1009-10, 57 L.Ed. 1379 (1913). Applying the statute

to disqualify District Judge Keneshaw Mountain Landis

in 1921, the Court observed that the bias “must be based

upon something other than rulings in the case.” Berger v.

54a

United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed.

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

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

vious case that the patent in question was valid. When

the same patentee brought a case against a different

defendant, the defendant objected that Judge Aldrich was

prejudice because he had already ruled on the validity of

the patent. Judge Aldrich refused to disqualify himself,

ruling, “The statute is directed to personal bias, not to

previous judical exposure to the same or similar ques-

tions.” Perfect Parts, 142 F.Supp at 263. The general stan-

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

extrajudicial source has been stated as the law of this

circuit. United States v. Carignan, 600 F.2d 762, 763-64 (9th

Cir.1979). A judge’s participation in a “related or prior

proceeding” is not sufficient even though he ruled

againsi one of the present parties in that earlier proceed-

ing. Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir.1981).

The dissent appears unwilling to acknowledge that as the

law now stands a prior adverse ruling by a judge does

not show the judge to be biased.

The point could-be raised that the Justices of the

Hawaii Supreme Court might be prejudiced because of

the publicity attending the reversal in the Clarke murder

case. The fact of publicity generated by a judge’s prior

ruling was considered at length in the Watergate case

where the defendants included John Ehrlichman, Bob

Haldeman and John Mitchell. The Court of Appeals for

the District of Columbia, sitting en banc, rejected the

defendants’ contention that Judge John Sirica had been

biased against them because his “public image and repu-

tation” had “become inextricably intertwined with the

55a

prosecution of the Watergate matter.” United States v.

Haldeman, 559 F.2d 31, 137 (D.C.Cir.1976), cert. denied sub.

nom., Ehrlichman v. U.S., 431 U.S. 933, 97 S.Ct. 2641, 53

L.Ed.2d 250 (1977). The court held that this kind of “inter-

est” on the part of the judge was not disqualifying. Inter-

est in order to disqualify must emanate from extrajudicial

sources, otherwise “the prohibition would have has a

reach far beyond anything Congress could rationally

have contemplated.” Id. The court refused to hold that

Judge Sirica had been impermissibly biased. Haldeman

was favorably cited by Judge Kennedy in Conforte, 624

F.2d at 882.

> Sensibilities no doubt are changing on the question of

judicial bias. In 1765 Blackstone could write: “ .. . the law

will not suppose a possibility of bias or favor ina judge,

who is already sworn to administer impartial justice, and

whose authority greatly depends upon that presumption

and idea,” 3 W. Blackstone, Commentaries on the Laws of

England *361. While recusal on the basis of challenge by a

litigant has existed in Roman law, canon law, and early

English law, it had disappeared by Blackstone’s time, id.,

and was permitted in federal law only in 1911. Since that

turning point there have been other Signs that judicial

disqualification may be looked at more sharply. For

example, Judge Aldrich’s decision in Perfect Parts was

criticized by a student writer. Note, “Disqualification of

Judges for Bias in the Federal Courts,” 79 Harv.L. Rev.

1435, 1451 (1966). In 1974 Congress enacted the statute

requiring judges to disqualify themselves if a reasonable

person could doubt their impartiality. 28 U.S.C. § 455(a).

The practice of the Supreme Court in its first century in

relation to circuit decisicns now looks Strange to us. It

56a

may be that the time will come when the participation of

panel judges in en banc circuit hearings will appear an

impermissible breach of impartiality. It may happen even

that prior ruling on a matter will disqualify a judge from

sitting on another case involving the same issue. But it is

still generally recognized that it is difficult to lay down

an absolute rule disqualifying a judge because he has

ruled against a litigant in an earlier context. Note, supra

at 1452. What due process requires is being worked out

case by case. Given the history and the current state of

law, the federal courts should give the Hawaii Supreme

Court a chance to decide what due process requires.

In making that decision, a Justice of the Hawaii

Supreme Court will be asking, “Have | so made up my

mind by my earlier ruling in the criminal case that I

cannot give a fair hearing to Partington’s explanation of

why he thought his strategy was appropriate?” and “Will

public confidence in the courts be diminished if |, a

justice who’s already found Partington to have given

ineffective assistance, now sit on a case where he is

defending himseif against this charge?” A federal court is

not in a position to anticipate how a justice of the Hawaii

Supreme Court will answer those questions.

The dissent places weight on a statement in Withrow,

upholding a procedure in which a later acquittal by the

administrative body concerned would not be “légically

inconsistent” with a prior finding of probable cause.

Withrow v. Larkin, 421 U.S. 35, 57, 95 S.Ct. 1456, 1469, 43

L.Ed.2d 712 (1975). There would, however, be no logical

inconsistency between the Supreme Court reversing the

murder conviction in Clarke because of ineffective assis-

tance of counsel and then finding that in the disciplinary

57a

proceeding against Partington he had explained his strat-

egy so that the court was now Satisfied that he had not

breached his responsibilities as a lawyer. The question of

sixth amendment deprivation, decided in Clarke, is log-

ically distinct from the disciplinary standards which Part-

ington must meet to Satisfy the Bar.

The dissent also places emphasis on the “practical”

probability of Prejudice. But the dissent admits that a

judge may charge an attorney with violating Fed.R.Civ.P.

11, order him to show Cause, conduct a subsequent hear-

ing, and find against him. The dissent also admits that a

court may cite an attorney for contempt of court, order

him to show cause, and then preside over the contempt

trial and find against him. As a practical matter, the

probability of a judge in these circumstances having in

mind a vivid impression of the Professional breach of the

lawyer, and being influenced by this impression, is much

greater than the Probability of an appeals court, months

Or years after the initial decision that occasioned the

reference of the lawyer to disciplinary Proceedings, being

still prejudiced against the lawyer. The dissent is on

treacherous grounds when it argues that practical preju-

dice is more likely in Partington’s case that in the cases it

accepts as routine judicial practice.

Judges have not been Particularly good at recogniz-

ing their own biases. The major federal reforms have

been made by the legislature - the elimination of

Supreme Court Justices reviewing their own decisions in

1891; the introduction of recusal motions by litigants in

1911; the reasonable person test of objectivity in 1974.

58a

This history suggests the need for heightened self-scru-

tiny. The impartiality that “the common lot of humanity

will admit” is now closer to the ideal.

REINHARDT, Circuit Judge, concurring and dissent-

ing.

I concur only in the order set forth at the end of part

V of the majority opinion which awards certain costs and

attorneys’ fees to Partington and the Defense Lawyers. |

dissent from the rest of Part V and all of Parts I through

IV.

I do not believe that this is one of those exceptional

cases in which Younger abstention is required. See World

Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d

1079, 1082 (9th Cir.1987). Rather, I believe we should now

decide that by virtue of its prior decision in State v.

Clarke, the Hawaii Supreme Court is biased against Part-

ington on the issue whether he rendered ineffective assis-

tance of counsel and that its holding of a disciplinary

hearing would violate his due process rights. After apply-

ing the three-part test from Middlesex County Ethics Comm.

v. Garden State Bar Ass‘n., 457 U.S. 423, 432, 102 S.Ct. 2515,

2521, 73 L.Ed.2d 116 (1982), the majority concludes that

Younger abstention is applicable. The majority would per-

mit the Hawaii Supreme Court to resolve the question of

its own bias. It reaches this conclusion solely on the basis

of its reading of the third part of the Middlesex test. As the

majority describes that part of the test, the plaintiff must

be able “to litigate his federal constitutional claims

. . . before a competent and unbiased state adjudicator.”

Majority op. at 125. Because the majority concludes that

59a

the Hawaii Supreme Court may not be biased on the

“constitutional question”, it opts for abstention.

The majority misconceives the third part of the Mid-

dlesex test. Bias plays no role in the application of the

three-part test. Rather, bias is an entirely separate matter.

Where bias exists, Younger abstention is inapplicable,

regardless of whether the three-part test is met. Kugler v.

Helfant, 421 U.S. 117, 124-25 & n. 4, 95 S.Ct. 1524, 1530-31

& n. 4, 44 L.Ed.2d 15 (1975). The bias need not be on any

particular claim. All that is necessary to bar abstention is

that the Hawaii Supreme Court be biased on the disci-

plinary proceedings. Here, under Hawaii Supreme Court

Rule 13, the supreme court would have to determine

whether Partington rendered ineffective assistance of

counsel to Clifford Clarke. However, that court has

already decided in State v. Clarke that Partington’s assis-

tance was ineffective and that a murder conviction against

Clarke must be reversed for that reason.1 Thus, Part-

ington would be subjected to judgment by a tribunal

which has already reached a judgment on the merits of his

case.? Because of its prior actions, the Hawaii Supreme

Court is, as a matter of law, a biased forum with respect

* At the oral argument in State v. Clarke, one of the justices

of the Hawaii Supreme Court accused Partington of miscon-

duct, contending that he had been deliberately ineffective at

trial. As discussed in the text, the Hawaii Supreme Court

ultimately reversed Clarke’s conviction on the grounds that he

received ineffective assistance from Partington.

? Subjecting Partington to disciplinary proceedings before

a biased tribunal would violate his due process rights. See, e.g.,

Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36

L.Ed.2d 488 (1973).

60a

to the Partington proceedings and the federal courts need

not abstain.

The majority offers recusal of all of the justices of the

Hawaii Supreme Court as a solution to the prejudgment

problem. However, the structure of Rule 13 makes it clear

that recusal of the entire court is not an availablle option

in this case. Rule 13 was specifically designed to ensure

that the justices of the supreme court would nnake the

final determination of ineffective assistance, not a differ-

ent group of judges. Recusal of the entire court in cases

like Partington’s would run directly contrary to the lan-

guage and intent of the rule.

My conclusion that the Hawaii Supreme Court is

biased against Partington is not meant to disparage the

members of the court. They are undoubtly able individ-

uals and are entitled to a presumption of honesty and

integrity. They have no adverse pecuniary interest. Nev-

ertheless, other “[c]ircumstances and relationships must

be considered.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct.

623, 625, 99 L.Ed. 942 (1955). Bias exists where a court has

prejudged, or reasonably appears to have prejudged, an

issue. The disciplinary proceedings must “satisfy the

appearance of justice.” In re Murchison, 349 U.S. at 136, 75

S.Ct. at 625 (quoting Offutt v. United States, 348 U.S. 11,

14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)). In State v. Clarke,

the justices concluded that the legal assistance Partington

provided Clarke was ineffective, the very determination

they would be called upon to make again in the Rule 13

proceedings. For this reason, a “realistic appraisal of psy-

chological tendencies and human weakness” compels the

conclusion that the Rule 13 proceedings involve an intol-

erably high risk of bias or prejudgment by the Hawaii

6la

Supreme Court. Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct.

1456, 1464, 43 L.Ed.2d 712 (1975). Under these circum-

stances, abstract principles of comity, Younger v. Harris,

401 U.S. 37, 43, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), as

important as they are, do not bar a federal court from

exercising its jurisdiction.

In my view, we would not only be performing our

duty as a federal court properly, but would be saving the

Hawaii Supreme Court the expenditure of much unneces-

sary time and effort were we to declare Rule 13 uncon-

Stitutional now. I see little choice for the Hawaii court

when Partington’s case reaches the justices. If they fail to

invalidate the rule, certainly the federal courts will ulti-

mately be required to do so.

RULE 13

Hawaii Supreme Court Rule 13 provides a procedure

for determining whether a defense attorney should be

disciplined for providing ineffective assistance of coun-

sel. Under the rule, whenever a criminal conviction has

been overturned on that ground by either the supreme

court or the intermediate appellate court3, the supreme

court appoints a special master to decide whether action

against the attorney is warranted. The special master, in

turn, appoints a special prosecutor. At the conclusion of

the proceedings, the special master dismisses the pro-

ceedings or recommends to the supreme court that cor-

rective action be taken against the attorney. Beth the

3 See note 28, infra.

62a

attorney and the special prosecutor may file exceptions to

the special master’s decision with the court. The supreme

court reviews the special master’s decision; the Court

then makes an independent determination* whether the

attorney provided ineffective assistance to the defendant

and on that basis decides whether to dismiss the proceed-

ings or order corrective action against the attorney.

PREJUDGMENT

Clearly, the critical feature of the Rule 13 proceedings

is the determination of the Hawaii Supreme Court is

required to make with respect to counsel’s ineffective-

ness. It must make this critical determination regardless

of whether it or the intermediate appellate court made

the earlier determination that counsel’s representation

was ineffective, and reversed the criminal conviction on

that ground. Here, we are presented with an extreme

form of the Rule 13 process: the supreme court, sua

sponte, raised and determined the ineffectiveness issue

during the criminal proceeding; it would now be required

to resolve the identical issue a second time in the disci-

plinary proceeding.

The majority first asserts that Younger abstention is

appropriate here because “[t]he Hawaii Supreme Court

has never had the opportunity to hear Partington’s argu-

ment that due process requires that he not be judged by

the court after it has ruled on his performance in the

4 See note 12, infra.

eee) en ae ao-naee tram Ol

63a

criminal case. . .. We cannot and should not guess how

the court will respond.” Majority op. at 126. Thus, the

majority apparently takes the Position that Partington

must demonstrate not only that the Hawaii Supreme

Court has prejudged the merits of the disciplinary pro-

ceeding but also that the court has prejudged the issue of

whether it has prejudged the merits of that proceeding.

The majority’s argument misconceives the basic rule

governing abstention and biased state tribunals. The fun-

damental principle is that compelling an individual to

present his case to a biased tribunal offends due process

and federal courts will enjoin such an unconstitutional

proceeding. Gibson v. Berryhill, 411 U.S. 564, 570, 577, 93

S.Ct. 1689, 1693, 1697, 36 L.Ed.2d 488 (1973). When a

federal claimant alleges that a state adjudicator is biased,

it is the federal court which determines whether that

allegation is correct. See Gibson, 411 US. at 578-79, 93

S.Ct. at 1697-98; see also Kugler v. Helfant, 421 U.S. 117,

125, 127-28, 95 S.Ct. 1524, 1531, 1532, 44 L.Ed.2d 15 (1975).

The question is not referred to the state court. If the

federal court concludes that bias exists, the finding of a

due process violation follows automatically. Gibson, 411

U.S. at 577, 93 S.Ct. at 1697.5 No more is required. The

federal court does not abstain.® In short, abstention

> Cf. Kugler, 421 US. at 128, 95 S.Ct. at 1532 (framing the

abstention issue as whether the “judicial system provides pro-

cedural safeguards to guarantee that [the federal court plain-

tiff] will not be denied due process of law in the state trial or

appellate process”) (emphasis added).

° An exception exists where the state provides an alternate

procedure which ensures a fair tribunal in place of the biased

(Continued on following page)

64a

doctrine does not require a person to ask a tribunal that is

biased on the merits of his case whether it is in fact

biased. Nor must that person ask the biased tribunal

whether the fact that it is biased would violate the due

process clause. Clearly, it would — as a matter of federal

constitutional law, and a federal injunction, not absten-

tion, is the appropriate remedy.

Indeed, the parallel between Partington’s situation

and the one considered by the Supreme Court in Gibson is

striking. Gibson, like the present case, was a disciplinary

proceeding (license revocation) before a body that was

allegedly biased on the revocation issue. Thus, the

licensee faced a potential due process violation. Notably,

in Gibson, the Court did not inquire into whether the state

licensing agency was biased on the question of the val-

idity of the challenged statutory procedure. Rather, it

considered only the question whether the agency was

biased as to “the revocation of appellees’ licenses.” 411

U.S. at 578, 93 S.Ct. at 1697. Moreover,-it held irrelevant

the fact that the state courts would review the revocation

proceeding de novo. Id. at 577, 93 S.Ct. at 1697. Finally,

the fact that petitioners had not sought to invalidate the

unconstitutional state procedure in the available and

unbiased state court forum did not deter the Court from

affirming the district court’s action enjoining the state

proceeding. Procedurally, our case and Gibson are identi-

cal. In my opinion, Gibson is controlling here. If the

WS” SANE te) Bike Sm +

(Continued from previous page) 4

_ tribunal, e.g., by way of recusal. See Kugler v. Helfant, 421 U.S.

117, 127-128, 95 S.Ct. 1524, 1532, 44 L.Ed.2d 15 (1975). The

applicability of the recusal exception is discussed in Section III,

infra.

65a

Hawaii Supreme Court is biased as to Partington’s disci-

plinary issues, the result here Should be the same as in

Gibson; we should not abstain.

The majority attempts to distinguish Gibson on the

basis that “a tribunal comprised of optometrists does not

have the ability to entertain constitutional claims.” Major-

ity op. at 127 n. 4. This is not a material distinction. In

deciding that Younger abstention was inappropriate, the

Supreme Court did not even mention the fact that “a

- tribunal composed of optometrists” cannot hear constitu-

tional claims, let alone rely on that fact (if indeed it is a

fact).” Rather, the Court found Younger abstention unwar-

ranted simply because the state tribunal (composed of

optometrists or not) was biased on the revocation issue. No

more was required to be shown in Gibson; no more should

be required here. This point can not be overemphasized.

If, as appears clear, the Hawaii Supreme Court is biased

as to the merits of Partington’s disciplinary Proceeding,

that tribunal is not competent to hear that proceeding -

regardless of whether non-merit issues may be raised

” I must confess that I do not know whether the majority’s

description of the powers possessed, in 1973, by the Board of

Optometry under Alabama law is correct. In California until a

few years ago, administrative agencies, including licensing

boards, did have the power (and the duty, I believe) to make

rulings on constitutional issues. This was so regardless of

whether the board was an industry board or an industry-labor

board, composed exclusively of laymen, or some other type of

board. The Attorney-General’s office provided advice to all

these boards on constitutional questions and the boards then

made their rulings. Long after 1973, the voters of California

adopted an initiative measure removing from all administra-

tive boards, including those composed of lawyers, the power

to declare statutes unconstitutional.

66a

during that proceeding, or whether the court is or is not

biased as to any of those non-merit issues.

Conversely, the majority asserts that Younger absten-

tion is required here because the Hawaii Supreme Court

“has the ability to entertain and resolve constitutional

claims.” Majority op. at 127 n. 4. In essence, the majority

appears to be contending that it is proper to force an

individual to appear before a biased tribunal in a disci-

plinary proceeding, so long as that tribunal could con-

ceivably avoid reaching the merits of the proceeding. My

reading of Gibson leads me to the contrary conclusion. An

individual can not be summoned before a biased tribunal

when the primary issue before the tribunal is the very

issue on which it is biased. It is fundamental that compel-

ling an individual to present his case to a biased tribunal

offends due process. Gibson, 411 U.S. at 570, 577, 93 S.Ct.

at 1693, 1697. An individual required to appear before a

state tribunal that is biased on the merits of the proceed-

ing may resort directly to federal court, whether or not

the state tribunal has the authority to dismiss the pro-

ceedings for-bias, lack of jurisdiction, or on any other

grounds.® As Gibson illustrates, the fact that there are

state remedies for resolving or determining the fairness

of the procedure is irrelevant, regardless of when or in

what state forum that determination could be made.

8 Where state law provides that a biased judge must

recuse himself, the state law does not, of course, require the

individual to appear before a biased tribunal (except, possibly,

in some instances for the limited purpose of filing the disqual-

ification motion). The question of recusal is discussed in Sec-

tion III, infra.

67a

In Gibson, the Supreme Court stated explicitly that

Younger abstention is not required “simply because [state]

judicial review, de novo or otherwise, would be forthcom-

ing at the conclusion of the administrative proceedings.”

411 US. at 577, 93 S.Ct. at 1697 (footnote omitted). More-

over, it is clear that the federal court plaintiff in Gibson

had a completely unbiased state court system in which to

seek injunctive relief prior to the administrative proceed-

ings and thus had perfectly adequate state court remedies

for his due process claims. For example, he could have

asked a state trial or appellate court, rather than a federal

district court, to enjoin those proceedings. An unbiased

state court is, as the majority points out, generally pre-

sumed to be as capable as a federal court of protecting

federal constitutional rights. Nevertheless, the Supreme

Court in Gibson did not require the plaintiff, to first seek

relief in state court. Rather, he was permitted to go

directly to federal court to obtain the appropriate remedy

~ a federal court injunction against the proceedings in the

biased state forum.

The only difference between the facts and circum-

stances of Gibson and those in this case (other than the

distinction previously discussed) is that in Gibson, the

State provided both an entirely unbiased state court

review of the unconstitutional proceedings and an unbi-

ased state court system in which to seek an injunction

against the unconstitutional proceedings, while here,

there is neither an entirely unbiased state forum in which

Partington could seek injunctive relief before the uncon-

stitutional proceedings are held mor one in which he

68a

could do so afterwards.’ In Partington’s case, the Hawaii

Supreme Court is not only the biased forum, but also the

first and last judicial body from which Partington may

seek relief. Thus, the state court remedies in Gibson were,

if anything, far more hospitable to the plaintiff than those

offered to Partington here. As Younger abstention was

improper in Gibson, it is a fortiori improper here, if as |

conclude, the Hawaii Supreme Court is biased on the

ineffective assistance claim.!°

The majority’s confusion regarding abstention and

bias appears to be due to its misunderstanding of the

third prong of the Middlesex test. The majority consis-

tently describes that prong as requiring that Partington

have the ability to litigate his constitutional claims before

an unbiased state adjudicator. Majority op. at 120-121,

125-126. Actually, the third prong of Middlesex does not

mention bias — because under Younger that issue is dealt

with separately. The third prong requires only that Part-

ington have “an adequate opportunity in the state pro-

ceedings to raise constitutional challenges.” 457 U.S. at

432, 102 S.Ct. at 2521. The critical fact that the majority

overlooks is that in Younger, the Supreme Court recog-

nized that even if the three-part test for abstention (as

® | seriously doubt that, as a legal matter, a lower court, in

Hawaii or elsewhere, has the authority to enjoin a proceeding

before a higher court.

10 In some instances, a claim of bias would be sufficient to

preclude abstention, at least until the federal court has had an

opportunity to resolve the factual issues relating to the claim.

Here, however, there are no factual issues in dispute with

respect to the alleged bias.

69a

later described in Middlesex) was met, abstention would

be improper if the state action was brought in bad faith or

for purpose of harassment or in other extraordinary cir-

cumstances. 401 U.S. at 53-54, 91 S.Ct. at 754-55; see also

Middlesex, 457 U.S. at 437, 102 S.Ct. at 2524. Bias on the

part of the state tribunal is one of those extraordinary

circumstances which renders Younger abstention inap-

propriate, even if all three prongs of the Middlesex test are

met. Kugler v. Helfant, 421 U.S. 117, 124-25 & n. 4,95 S.Ct.

1524, 1531 & n. 4; cf. World Famous Drinking Emporium,

820 F.2d at 1082. Thus, it is simply irrelevant whether

Partington will be able to raise his constitutional claims

before the Hawaii Supreme Court or whether the Court is

biased as to those claims; for if the Court has prejudged

the merits of the disciplinary proceeding, it is a biased

tribunal and Younger abstention is inapplicable."

The majority dismisses the Court’s Statement in

Kugler that bias is a separate element by calling it dictum.

Majority op. at 22 n. 3. Whatever the merits of that

categorization, it seems apparent that the Court was cor-

rect when it reached its conclusion. Younger abstention is

barred when, inter alia, “extraordinary circumstances”

render the proceedings unfair, a concern that is

'! It is worth noting that a letter dated April 27, 1987 to

Partington from the Chief Justice, a letter the majority appears

to accept as the view of the entire court, Majority op. at 126,

Suggests that the court has in fact prejudged the due process

claim. See ER 444 (Chief Justice finds “mystifying” Partington’s

contention that he could not receive an impartial hearing on

the ineffectiveness claim). Surprisingly, at a later point in the

majority opinion, the letter is summarily dismissed as at most

reflecting the opinion of the Chief Justice. Majority op. at 128 n.

70a

independent of whether the federal court ptaintiff will

have an adequate opportunity in the state proceedings to

raise his federal constitutional claims. Middlesex listed as

examples of this rule a proceeding brought in bad faith or

for purposes of harassment. 457 U.S. at 435, 102 S.Ct. at

2522. Certainly a proceeding brought before a biased

tribunal is even more unfair to a licensee, and even more

violative of his due process rights, than a proceeding that

is merely initiated for an improper purpose. In the case of

bad faith or harassment, the licensee is required to submit

to a proceeding unnecessarily, but should prevail on the

merits; in the case of bias, the licensee does not have a

fair chance to prevail at all, and an adverse result is, for

practical purposes, a foregone conclusion. Thus, the

Court’s determination in Kugler that bias is an “extraordi-

nary circumstance” barring Younger abstention was com-

pelled by reason and logic as well as precedent, and the

majority clearly errs in rejecting the Court’s analysis.

In any event, whether bias is considered separately

from the three-prong Middlesex test, or whether we disre-

gard the clear language in Kugler and consider bias to be

a part of the third prong of that test, the result in this case

would be the same. As previously discussed, under Gib-

son it is clear that bias on the merits of a disciplinary

proceeding is sufficient to preclude Younger abstention.

The majority next concludes that the Rule 13 pro-

cedure does not present an unacceptable risk of prejudg-

ment on the ineffectiveness issue, ilthough it is far from

clear why it reaches that conclusion.!? Majority op. at 125.

12 At one point, the majority argues that Partington has

not alleged that the Hawaii Supreme Court is biased “on the

(Continued on following page)

——— <<

7la

The majority appears to accept the Withrow test, which

States that “if the initial view of the facts based on the

evidence derived from non-adversarial processes as a

practical or legal matter foreclose[s} fair and effective con-

sideration at a subsequent adversary hearing leading to

ultimate decision, a substantial due process question [is]

raised.” Withrow, 421 U.S. at 58, 95 S.Ct. at 1470

(emphasis added). With respect to the issue of “legal”

bias, the majority concludes that Partington has not dem-

onstrated that the Hawaii Supreme Court is legally fore-

closed “from considering the ineffectiveness issue de

novo.” Majority op. at 126. On that point, I am in agree-

ment." However, the majority also concludes that there is

(Continued from previous page)

primary issue . . . [namely] whether corrective action is war-

ranted [against Partington] under Rule 13.” Majority op. at 126.

Any distinction between whether the court is biased “merely”

on the ineffective assistance issue rather than on the corrective

action issue is semantic gameplaying at best. I find it hard to

believe that anyone would Suggest that a court that has pre-

judged the issue whether Partington rendered ineffective assis-

tance is unbiased on the question whether he should be the

subject of disciplinary action. The Hawaii Supreme Court is

necessarily required to judge the issue on which it is biased

before determining the appropriate remedy. Obviously, if the

court were to decide the issue relating to conduct in Part-

ington’s favor, there would be no need for it to reach the

question whether corrective action is warranted.

8 Partington has not demonstrated by unambiguous

authority that the court is legally precluded from reconsidering

its initial determination of ineffectiveness. For the purposes of

our Younger analysis, we must assume that the Hawaii

(Continued on following page)

72a

no “practical” impediment to the Court’s examining the

issue in a fair and impartial manner. Id. at 125, 126. The

majority offers no explanation for this conclusion, and

cites no case law or other authority. In fact, the majority

opinion contains no discussion whatsoever of the ques-

tion whether the Hawaii Supreme Court could, as a prac-

tical matter, serve as an unbiased adjudicator. Instead, it

avoids the issue entirely, apparently preferring to base its

conclusion that Partington will be able to obtain a fair

hearing entirely on the supposition that all of the mem-

bers of the supreme court will recuse themselves." /d. at

126.

I believe that, as a practical matter, the Hawaii

Supreme Court has prejudged Partington’s case. At the

very least, there is an intolerable risk of prejudgment. The

sole reason Partington is now facing disciplinary pro-

ceedings is because in a previous proceeding the Hawaii

Supreme Court, sua sponte, raised and decided, on the

merits, the issue of ineffective assistance of counsel in a

manner adverse to him. The issue the court previously

decided is the identical issue it will now be required to

address in the Rule 13 proceedings. In my view, the

Hawaii Supreme Court is not, as a practical matter, an

unbiased adjudicator.

(Continued from previous page)

Supreme Court is free to reexamine its previous legal conclu-

sion on the question of ineffective assistance. If, however, this

assumption turns out to be incorrect, | do not think anyone

could argue that the Rule 13 proceeding would satisfy due

process.

4 The question of recusal is discussed infra, section III.

73a

There are several federal statutes which are con-

cerned with the issue of judicial bias. See 28 U.S.C. §§ 47,

144, & 455 (1982). These statutes are premised on the

simple proposition that “[a] fair trial in a fair tribunal is a

basic requirement of due process.” In re Murchison, 349

U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). But a

fair trial means more than simply the absence of actual

bias. “[O]ur system of law has always endeavored to

prevent even the probability of unfairness.” Id. (emphasis

added). To this end, “justice must Satisfy the appearance

of justice.” Id. (quoting Offutt v. United States, 348 U.S. 11,

14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)). Thus, we must

constantly be alert to procedures which “under a realistic

appraisal of psychological tendencies and human weak-

ness .. . pose[] such a risk of actual bias or prejudgment

that the practice[s] must be forbidden if the guarantee of

due process is to be adequately implemented.” Withrow,

421 U.S. at 47, 95 S.Ct. at 1464.

While we can readily identify the reasons why judi-

cial bias cannot be tolerated, we must stil! determine

when a judge’s previous involvement with a case creates

such a risk of bias that it would be a violation of due

Process to allow him to be further associated with the

proceedings. Two decisions help frame the issue. Prejudg-

ment, or an unconstitutional risk of prejudgment, has

been found where the contents of a speech by a judge

“plainly reveale[d]” that he had, prior to the commence-

ment of the proceedings before him, reached a conclusion

as to the merits of a case that involved complex questions

of fact and law. Texaco, Inc. v. Federal Trade Commission,

336 F.2d 754, 760 (D.C.Cir.1964), vacated on other grounds,

i atntaiineaaciaemeaanmeadianauiiil

a ia

74a

381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d 714 (1965).'5 Also,

judges have been disqualified from presiding over

appeals from decisions in cases, or involving issues, origi-

nally tried before them as lower court judges. See, e.g.,

Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d

135, 137 (5th Cir.1970) (Order of Disqualification and

Memorandum of Decision by Craven, J.) (appeals court

must “be constituted of judges uncommitted and uninflu-

enced by having expressed or formed an opinion in the

court of first instance”) (quoting Moran v. Dillingham, 174

U.S. 153, 19 S.Ct. 620, 43 L.Ed. 930 (1899)).%6

15 Our present Chief Justice has said that the mere fact that

a judge has expressed an opinion on a purely legal question

would not demonstrate bias or prejudgment, Laird v. Tatum,

409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (memorandum on

recusal by Rehnquist, J.). We have reached the same conclu-

sion. United States v. Conforte, 624 F.2d 869, 882 (9th Cir.), cert.

denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). The

situations discussed by Justice Rehnquist and by this court in 3

Conforte were far different from the one present in Texaco.

Conforte is discussed further infra, note 20.

16 In Swann, Judge Craven applied 28 U.S.C. § 47, which

explicitly forbids the practice of a judge hearing an appeal

from a case which he tried. The same result has been reached

through application of 28 U.S.C. § 455, which requires a judge

to recuse himself to avoid the appearance of impropriety. Rice

v. McKenzie, 581 F.2d 1114, 1116-18 (4th Cir.1978) (federal

judge, who, as chief justice of state supreme court, had pre-

sided in affirming appeal of convicted person was disqualified

from federal habeas corpus proceedings because of concerns

with impartiality). Cf. Withrow, 421 U.S. at 58 n. 25, 95 S.Ct. at

1470 n. 25 (“when review of an initial decision is mandated, the

decisionmaker must be other than the one who made the

decision under review”).

(Continued on following page)

75a

While Texaco and Swann provide some guidance,

there are significant differences between those cases and

Partington’s. The commissioner’s prejudgment in Texaco

was extrajudicial; the remarks were made during a public

appearance and were not based on knowledge the com-

missioner obtained during an official proceeding. Cf.

United States v. Studley, 783 F.2d 934 (9th Cir.1986). Swann

was concerned with the issue of what constitutes a mean-

ingful review by a higher court of a lower court's deci-

sion. In the present case, the issue is: when is a court that

is called upon to decide a complex question of law and

fact as to which it has already reached a final determina-

tion in an earlier proceeding presumed to have prejudged

the question?

(Continued from previous page)

In light of current practice, the comments in the concurring

opinion on the history of the practice of the Supreme Court

acting “as a court of appeals from decisions of circuit courts

made by the Justices as circuit judges,” Concurring op. at 132,

and specifically its discussion of Stuart v. Laird, 1 Cranch 298

(1803), and The Antelope, 23 U.S. (10 Wheat.) 66, 6 L.Ed. 268

(1825), while interesting, shed no light on the specific issue

before us. Just as our view of the slave trade has changed from

that espoused in The Antelope, so too has our view of the

propriety of judges sitting in judgment on their own decisions.

Moreover, in The Antelope, no challenge was made to the indi-

vidual Justice’s participation in an appeal from a case in which

he had sat as a circuit judge; perhaps more interestingly, in

Stuart, “(t]he Chief Justice, having tried the cause in the court

below, declined to give an opinion.” Id. at 306. Most impor-

tantly, in neither case did the Justices even consider the ques-

tion we are presented with, that is, whether a court comprised

wholly of judges who decided the same case at a lower judicial

level may hear an appeal of that lower court decision, and

certainly the concurring opinion does not Suggest that any

such practice ever existed.

76a

Although Texaco and Swann are not dispositive, the

policies which underlie them compel the conclusion that

the Hawaii Supreme Court is biased in this case. The

common thread that links Texaco and Swann is the concept

that no person can be compelled to litigate a controversy

before a judge whose prior conduct or connection with

the case makes it likely that he will have prejudged the

outcome. The reason that due process does not permit a

judge to hear an appeal of a case he previously tried as a

lower court judge has been well stated. “Such an appeal

is not from Phillip drunk to Phillip sober, but from Phillip

sober to Phillip intoxicated with the vanity of a matured

opinion and doubtless also a published opinion.” Swann,

431 F.2d at 137 (quoting an address by Walter B. Hill to

the American Bar Association). The concerns reflected in

Swann relate not only to the risk that a judge will have

actually prejudged a case, but to the appearance of par-

tiality as well. As the Supreme Court made abundantly

clear in In re Murchison, “justice must satisfy the appear-

ance of justice.” 349 U.S. at 136, 75 S.Ct. at 625.

Here, the court which will decide in the disciplinary

proceeding whether Partington provided ineffective

assistance of counsel is the same body that has already

determined in State v. Clarke that Partington did precisely

that.!7 It has also issued an opinion to that effect and has

17 The concurring opinion suggests at one point that pre-

judgment “must be based upon something other than rulings

in the case.” Concurring op. at 133, quoting Berger v. United

States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481 (1921); see

also Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1981) (judge’s

participation in prior or related proceeding not sufficient to

(Continued on following page)

eRe

77a

reversed a murder conviction on that ground. These cir-

cumstances present an unacceptable risk of prejudgment,

one that neither Partington nor any other litigant should

be required to assume. They also fall far short of satisfy-

ing “the appearance of justice”.

The conclusion that the Hawaii Supreme Court does

not qualify as an impartial body insofar as Partington’s

Rule 13 proceeding is concerned finds strong support in

Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d

712 (1975). In Withrow, the Court considered whether the

combination of investigative and adjudicative functions

in a state administrative agency violated due process. It

suggested that bias or prejudgment would be established

if an initial accusatory finding foreclosed, as a practical

matter, a later adjudicatory finding to the contrary.!8 Id. at

58, 95 S.Ct. at 1470. The Court concluded that the state

Practice did not violate due process, because the initial

investigative decision was one of probable cause, a deter-

mination that would not be logically inconsistent with a

subsequent adjudicatory determination of “no violatio

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