Earle A. Partington v. Joseph M. Gedan Howard T. Chang

WALLACE, Before REINHARDT and NOONAN, Judges. Circuit WALLACE, Judge: Circuit Attorney Partington pursuant filed suit U.S.C. the United States § Court, alleging District that enforcement of Hawaii Court Rule 13 first, fifth, sixth, him violated and four teenth amendments to the United States sought declaratory Constitution. He judgment stating that Rule 13 violated provisions these an in constitutional junction barring any further pursuant against him to Rule 13. The dis trict court concluded that abstention under Harris, Younger v. (1971)(Younger), Partington appropriate because could raise challenges ongo these constitutional proceedings. jurisdic ing Rule 13 We have affirm. tion and

I appointed Parting-

The Hawaii trial court ton as trial counsel for Clarke. The State charged brutally murder- had Clarke with ing three-year-old daughter of his live- girlfriend. represented at trial. Clarke was convicted Clarke prison. murder and sentenced to life Partington’s appointment as counsel for appeal. raised Clarke continued on Clarke contentions, allege but did not numerous trial counsel. ineffective assistance of appeal, ington how- rendered ineffective assistance dur- During pendency ever, presided ing trial. The court based trial who this conclusion the state (1) complained following: to the Office of on the refused to Clarke’s trial statement; (2) an opening of the Hawaii Su- make he refused Disciplinary Counsel the failure to to cross-examine mother of the victim preme about Court ostensibly argument at the not make closing Clarke’s trial. because State did make a complaint, Partington concerning filed Following a certain records the witness this Court, him; (3) subsequently he re- Supreme Hawaii available to motion with the Clarke, receiving the to requesting that Su- fused call the mother after the of behalf records; (4) appeal testimony the to the he elicited from two remand trial preme Court complaint. they trial judge’s the State witnesses believed Clarke explore court (5) guilty; he a denied. was and refused to make The motion was closing argument. Supreme The Hawaii During argument before the Hawaii oral opinion remind Court’s concluded: “We appeal, on Clarke’s criminal Supreme Court obligations both counsel of their under [Ha- sponte some Justices sua the raised issue Supreme judg- waii 13 once a Rule] of trial ineffective assistance counsel. of appeal by ment on has been us in issued Supreme subsequently The Hawaii case.” conviction. Without ad- reversed Clarke’s dressing arguments numerous made in Hawaii Court Rule 13 outlines the brief, proceedings brought against the court declared that Part- that are to be Clarke’s Haw.Sup.Ct.R. provides: personal facts to establish bias sufficient the prejudice special and of the master toward FOLLOWING FINAL PROCEEDINGS ADJUDI- INEFFECTIVE ASSISTANCE him. CATION OF OF filed, disqualification CASES. COUNSEL IN CRIMINAL If a the motion for a criminal the conviction of de- days Whenever master rule on the five shall same within been overturned and a new trial fendant has filing. ruling from the shall be date of That finding a the because of defen- ordered appealable only proceed- an after order in the of counsel dant had ineffective assistance ings as hereinbelow set forth has been en- her, against proceedings and him or the the tered. final, either because it order has become days shall within after re- master five finally appealed, because been or it has ceipt respondent appoint of answer of the the appeal, duty be the of affirmed on shall the attorney prosecute proceed- an to further the prosecutor the counsel for the individual ings give appointment and shall notice of the days finality each within five defendant attorney respondent to the man- in the same a the title to file certificate in of of such order provided as ner above. the Court of the cause with respondent attorney may represent noting such order has been entered may designate attorney rep- himself or attaching copy order to of that the respondent resent himself. The or his attor- certificate. ney attorney appointed by the master the days receipt the first of such Within five days appointment shall have 45 from the court, supreme by the the a certificate chief any attorney by the the to conduct master special justice appoint a master to deter- shall discovery proceedings in with the accordance against action the counsel mine whether leged al- discovery chapter the Civil Hawaii Rules of incompetent is to have been warranted. days, expiration Procedure. On the of the 45 days appointment, from his Within five the hearing the set the master shall matter for special ap- shall mail a notice of his master days, within take such evidence in accord- together copy with the pointment order ance with the Hawaii of Evidence Rules appointment, certificate certifi- of cates, may by parties, proffered be and within reversing the and the order conviction days hearing, the conclusion of the attorney respondent at his last known and an dismiss- render decision order either shown in records of the clerk address as recommending ing the correc- Court of Hawaii. attorney. against respondent tive action days mailing, respon- Within may action which be recom- Corrective attorney file the clerk of dent shall by adjudicated mended the master and/or showing supreme why an answer cause court may supreme consist of one or provided action herein should corrective following: more court. If taken (1) respondent attorney Requiring attorney disqualify respondent wishes to master, prescribed take a course or courses of remedi- special he shall file with his return a satisfactory produce supported by evi- al education and an affidavit motion therefore courses; knowledge showing passing upon personal dence his or her such made

H9 following adjudication ary defense counsel Gedan notified or her ineffective assistance in crimi- of his forty-five days he had to submit an answer nal cases. Rule the Hawaii Su- Under “showing why cause corrective action as appoints special preme Court master “to provided for in Rule 13 should not be taken determine whether action the coun- by Court.” On March alleged incompetent sel been is 1986, Partington filed an answer in accord- Haw.Sup.Ct.R. 13. warranted.” Within ance with the Rule. Without waiving any days appointment, special five of this challenges, constitutional Partington’s an- master notifies the defense counsel swer stated that he based all of his trial forty-five days mail. of this mail- Within tactics, decisions on certain but that he ing, the defense counsel must “file with the explain could not his tactical choices be- supreme clerk of the court an answer trial, Clarke, cause his client at refused to showing why cause corrective action as attorney-client waive the privilege. provided the should not be taken [in Rule] did appoint special Gedan prosecu- the court.” Id. Within five tor days receiving within five the answer days receiving attorney’s the defense provided 13; as however, Rule on Au- answer, special appoint the master must an 13, gust appointed Chang Gedan as attorney prosecute proceedings. the Id. special the prosecutor. Notwithstanding attorney special prose- the defense and the time schedule set forth in Rule the forty-five days cutor then have to conduct record does not parties reflect the discovery. thirty days Within after the engaged in discovery during forty-five the expiration discovery period, spe- of the the day period provided as in the Rule or that hearing. cial master holds a Within ten special the master set the matter for a days after conclusion hearing, the of the hearing thirty days within of the close of special the master must render a decision discovery period. dismissing and enter “an order either proceedings recommending or corrective 9, 1987, Partington On March filed a against respondent attorney.” action complaint under 42 U.S.C. 1983 in the § twenty days special Id. Within of the mas- United States District Court for the Dis- order, proposed ter’s decision and the de- Hawaii, naming trict of Chang Gedan and attorney special prosecutor fense and the alleged defendants. He that the con- may exceptions file with the Hawaii Su- Chang pursuant duct of Gedan and to Rule preme forty days Court. Within of the deprived deprive and continue to him of special proposed master’s and decision or- rights speech under the free clause of the der, Court must “enter an amendment, first the due clause of dismissing proceedings order either amendments, the fifth and fourteenth ordering corrective action in accordance right to counsel clause of the sixth amend- guidelines with the set forth” in the Rule. ment, equal protection and the clause of Id. the fourteenth amendment. complaint sought (1) In accordance February injunction prohibiting with Rule on Gedan appoint- Chang and proceeding against from Part- ed special 13, (2) Gedan as the master. ington pursuant On Febru- to Rule a declarato- (2) Suspending respondent’s days rendering license to Within 20 from the of the practice (1) order, complied proposed law until has been respon- with. master’s decision and (3) attorney attorney In cases where the master appoint- finds that dent or his and the may ineffective prosecute proceedings assistance of counsel have re- ed may the master to sulted from a exceptions violation of DR 6-101 to DR file with the 7-101, shall, (1) master supported by in addition to and of Hawaii a memorandum in (2), Discipli- support refer the matter to the Office of thereof. nary investigation days rendering Counsel for under Rule 2 Within 40 of the of the deci- master, proposed of these rules. In the event of a reference sion and supreme order subparagraph, finding

under this the master’s court shall enter an order either dis- missing ordering and the reference shall be deemed confiden- correc- except pursuant tial guidelines and shall not be disclosed tive action in with the accordance provisions of Rule 2.22 of these rules. set forth above. ence, needed, has finalized if after the state applied Rule 13 judgment that

ry unconstitutional, (3) presented. at- its assessment issues Partington is Fauver, costs, expenses 762 F.2d fees, for torney’s Crane Cir.1985). sought (3d jurisdiction We over damages Partington also action. however, interlocutory appeal, because arising and costs out of attorney’s fees for request but later aban- the denial proceeding, the Rule Chang injunction preventing March Ge- Gedan this claim. On doned pursuant him proceeding the com- Chang moved dismiss dan 1292(a)(1); court Rule 28 U.S.C. Sea arguing that district 13. See plaint, § Part- They asserted that Ranch Association Coastal should abstain. California Commission, all of his Zone 537 F.2d ington could raise constitutional Conservation hearing, (9th Cir.1976). in the Rule claims April on scheduled commence why is another reason we There day hearing was not held that The Rule may appeal. accept jurisdiction over this stayed hearing Part- Gedan because Younger We have held where absten request. April ington’s On applicable, tion “a court must district summary judgment. On filed a motion for the action.” Famous dismiss World 12, May the Hawaii Association of Criminal Emporium, City v. Drinking Inc. (Defense Lawyers) Lawyers Defense 1079, (9th Cir.1987) Tempe, F.2d 820 1081 lodged a brief in the district court on behalf (World Drinking Emporium), Famous amicus as curiae. quoting Corp. Ag Fresh v. International 1, 1987, July grant the district On court Board, Labor 805 ricultural Relations Lawyers’ motion file the ed the Defense to 1353, (9th Cir.1986). F.2d 1356 Because brief, granted the motion amicus of Gedan judge required to dismiss district Chang complaint, to dismiss the action, may we assume he intended summary Partington’s motion for denied do so and treat the dismissal of the com judgment. district court concluded plaint a dismissal of action. abstention, as Younger interpreted Hoohuli, at 741 F.2d 1171 n. 1. applied County in Middlesex Ethics Committee v. Garden State Bar Associa brings us That to our standard of 423, tion, 2515, 457 U.S. 102 S.Ct. 73 L.Ed. court, pursuant review. When district (1982) (Middlesex), ap 2d 116 should be authority Railroad Commission plied. After the district court its entered Co., 496, 643, v. 312 61 S.Ct. Pullman judgment, Partington timely filed a notice (1941), 85 L.Ed. 971 abstains from address appeal, challenging the dismissal of ing constitutionality a state statute complaint. proceedings interpret court because state ing still pending, the statute are we review

II its abstention for an of discretion. abuse Redlands, Ordinarily, Development the dismissal a com 703 C-Y Co. v. 375, (9th when, plaint underly Cir.1983). without the dismissal of F.2d 377 But here, ing action is court appealable not considered the district abstains on the ba Younger, final order under 28 U.S.C. sis of federal 1291. See forbids § Administration, enjoining cate pending Allen Veterans 749 courts from certain 1386, Cir.1984); (9th gories except F.2d in ex proceedings Hoohuli v. of state e (9th circumstances, Ariyoshi, traordinary 741 F.2d n. 1 w review its Cir.1984) (Hoohuli). Here, Bookstore, de novo. the district abstention Goldie’s abstained, Court, jurisdic Inc. Superior but maintained 739 F.2d (9th Cir.1984) (Goldie’s Bookstore). virtue of tion over cause his failure This underlying applied pro though to dismiss the action. This de we novo review even cedure, allowed, grant reviewing if are the state action of the district permission proceed granting denying injunction. first but allow the court in parties pres- a federal maintain See id.

III A. In applying doctrine, the Younger Although excep abstention is the (1) federal courts must examine the nature tion, rule, see Famous World proceedings state in order to deter Drinking Emporium, 820 F.2d at mine proceedings implicate whether the im Younger companion generally and its cases interests, portant (2) timing state require a federal district court to abstain request for federal relief in order to deter granting injunctive relief when state mine ongoing pro whether there are state categories criminal actions or certain (3) ceedings, ability of the federal state civil or administrative plaintiff litigate its federal constitutional pending against plaintiff are the federal proceedings. claims the state See Mid the time he or she commences the federal dlesex, 2521; 457 U.S. at 102 S.Ct. at Texaco, Inc., action. See Pennzoil Co. v. Drinking Emporium, World Famous 1519, 1522, L.Ed.2d F.2d at 1082. Courts must ex also (1987) (Pennzoil) (injunctive relief amine whether the proceeding demon prevailing litigant attempt civil faith, harassment, strates “bad or some ing to judgment execute a in its favor extraordinary other circumstances pending appeal judgment of that to a state inappropriate.” would make abstention court); Middlesex, appellate Rights Ohio Civil Com 2522. But where a state been Schools, tribunal has Dayton mission v. Christian bias, incompetent by found reason of Inc., Supreme Court has held that there was (1986) (Dayton effectively opportunity litigate no consti Schools) (injunctive against relief adminis 411 Berryhill, tutional claims. Gibson v. proceedings by trative conducted state civil 1689, 1697,36 L.Ed. U.S. 93 S.Ct. commission); rights Middlesex, 457 U.S. at (1973)(Gibson); compare Kugler 2d 488 428-29, (injunctive 102 S.Ct. at 2519 relief 117, 4, 421 n. 95 Helfant, U.S. 124-25 & against disciplinary proceedings); state bar 1524, 4, 44 L.Ed.2d 15 S.Ct. 1530-31 & n. Sims, 415, 423, 433-35,

Moore v. 442 U.S. (1975)(dictum agreeing state that a biased 2371, 2377, 2382-83, 99 S.Ct. 60 L.Ed.2d predicate Younger v. tribunal removes (1979) (Moore) (injunctive 994 relief dismissal, categorizing Harris but biased against proceeding seeking protect state example tribunal in “extraor Gibson allegedly children); abused Trainor v. Her rendering dinary state tribu circumstance” nandez, 434, 435-38, 431 U.S. 97 S.Ct. fully incapable fairly adjudicat nal 1911, 1913-15, (1977)(Trai 52 L.Ed.2d 486 it). ing issues before nor) (injunctive against relief a state civil proceedings); attachment/enforcement Vail, 327, 333-36, 430 Juidice U.S. 97 requires terms Younger its own 1211, 1216-17, (1977) S.Ct. 51 L.Ed.2d 376 interfering abstain from federal courts to {Juidice) (injunctive against relief state excep proceedings in criminal absent state contempt proceedings); v. Pur Huffman 401 U.S. at 53- tional circumstances. See sue, Ltd., 592, 603-07, 420 U.S. 95 S.Ct. 54, 91 S.Ct. at 754-55. 1200, 1207-09, (1975) (Huff Court, however, held that federal has never man) (injunctive against relief state civil always abstain under district courts should proceedings seeking of a nui abatement proceedings are civil Younger when state sance); 49-53, Younger, 401 at U.S. 91 8, Moore, 442 at 423 n. pending. See (injunctive at relief S.Ct. 8; Huffman, at 2377 n. proceedings). state criminal Younger Nonetheless, 607, 95 at 1209. S.Ct. abstention doctrine is based on considera that, Younger, under feder Court has held equity, comity, tions of and federalism. interfering abstain from al courts should See, Pennzoil, 1525-26; e.g., 107 at S.Ct. proceedings analo disciplinary with state 43-45, currently Younger, 401 U.S. at 91 proceeding S.Ct. at 13 gous to the Rule Middle- against Partington. 750-51. See pending In Mid- enforcing federal sex, 423, they were violated 102 S.Ct. 2515. Id. County dlesex, the Middlesex guarantees.” Ethics Com- constitutional at jurisdiction mittee, original). under in (emphasis tribunal at Hav- S.Ct. Court, charged Jersey prerequisites ing New that the three concluded Bar, Hinds, Jersey of the member New satisfied, were for Younger abstention disciplinary violating Jersey New with two Circuit, holding Third Court reversed the 425-28, 102 S.Ct. at 2518-19. Id. at rules. for the court to proper that was district filing an answer Rather than id. hand in this case. stayed its Jersey Bar charges provided New at at 2524. S.Ct. disciplinary procedures, Hinds filed suit disciplinary proceeding initi- The Rule 13 court, alleging that the dis- federal district against Partington in is strik- ated ciplinary rules violated first amendment Jersey ingly disciplinary New similar to the facially vague rights and over- and were at issue Middlesex. proceedings Both Id. at 102 S.Ct. at 2519. broad. ethics proceedings are conducted Younger, abstained under district court analogue, special mas- committee or its Id. but Third Circuit. was reversed ter, 13, 102 S.Ct. at id. at 434 n. n. at at 2519. auspices under the state policies underly- Recognizing “[t]he 425-27, Compare U.S. at court. ing applicable Younger are fully to non- 2518-19, 2522 102 S.Ct. at Haw.S.Ct. impor- judicial criminal when as the Court Middlesex R. 13. Just involved,” tant interests are the Su- state Jersey New had concluded that State preme proceeded to the New review professional “in the “special” interest Jersey disciplinary proceedings Bar State attorneys conduct involved the admin- light requirements for ab- of the three justice,” at istration of criminal Younger. Id. stention under we conclude that First, observing S.Ct. at in ensuring interest Hawaii has a vital local Ethics acted as an arm of Committees perform criminal defense counsel in cases Court, Jersey New the Court profes- within the standards reasonable “[fjrom very beginning determined concedes, Partington competence. sional judicial a disciplinary in na- proceeding must, as he that the State of Hawaii has a ture, by filing initiated complaint with in very pro interest its Rule 13 important Id. grievance at ethics and committee.” Thus, requirement ceedings. the first for 433-34, 102 Significant S.Ct. at 2522. Younger abstention has been In ad met. the Court’s determination that the state dition, question that the Rule 13 there is no disciplinary proceedings “judicial” were begun pend and were still proceedings had analogizing nature was its of the role local ing Partington at filed in the the time suit spe- ethics or bar associations to that of a Partington concedes this district court. Id. at 434 n. 13, cial master. 102 at S.Ct. Thus, point require the second as well. Next, 2522 acknowledged n. 13. the Court Younger ment abstention has been extremely impor- the state “has an that, Partington can met. Unless show tant interest maintaining assuring Jersey disciplinary state unlike New professional attorneys conduct of Middlesex, proceedings discussed licenses,” especially professional “the con- 13 him do not proceedings Rule attorneys duct of involved in adminis- opportunity to raise his consti offer him an tration of criminal justice.” 434, Id. at timely them tutional and have decid claims (emphasis Last, added). 102 at 2522 S.Ct. tribunal, see Mid competent state ed opined that Hinds because dlesex, 437, 2524; at 102 S.Ct. at attempt 457 U.S. “failed even to federal raise Gibson, at 93 challenge in S.Ct. at pro- constitutional the state proceeding this demonstrates ceedings,” not he had that “the shown harassment, faith, ex or some other Committee, “bad members of the Ethics the ma- jority make lawyers, traordinary circumstance would of whom are Middlesex, inappropriate,” a claim abstention refused to consider that the rules 2522, 2524, U.S. at 102 S.Ct. at disables him from contesting the ineffec- must, governs according- tiveness of Middlesex and we counsel issue in either the Rule proceedings or in the ly, affirm the dismissal of this action under Partington Court. believes that the “self- Younger. exception defense” to the attorney-client privilege, see Disciplinary Rule 4- 101(C)(4),2only applies when the client prong the third Under the test for questions attorney’s conduct. Clarke abstention, Younger federal abstention is has not done so. We interpret argu- inappropriate plaintiff unless the is afford ment to mean that believes Ha- opportunity ongoing ed the state interpretation waii’s of the attorney-client proceedings to raise his constitutional privilege imposes procedural bar that ef- timely claims “and have de [those claims] fectively prevents him from testifying on by competent cided state tribunal.” Gib the issue of ineffectiveness because can- he son, 1697; 411 U.S. at fully present strategy his trial defense. Middlesex, accord Partington bears the burden of showing Partington strenuously S.Ct. at 2524. ad “ procedural ‘that state law ” presen- bar[s] grounds why pro vances two the Rule 13 tation of claims.’ Pennzoil, 107 [his] ceedings against him fail to meet this third Moore, S.Ct. at quoting required predicate for Younger abstention. 432, 99 S.Ct. at 2381. ambiguities Asserted First, he maintains that attorney- in Hawaii’s rule regarding the attorney- privilege client procedurally bars him from privilege client procedures or on the avail- disputing Court’s find- proceedings able Rule 13 presen- for the ing counsel, thereby of ineffectiveness of tation of his federal claims do not relieve depriving him opportunity of an to raise his him of this burden. Federal courts “can- during federal constitutional claims his not judges assume that state interpret will proceedings. Rule 13 If plaintiff a federal ambiguities in procedural state law to bar cannot raise his federal claim in the state presentation Pennzoil, of federal claims.” procedures because state do Moreover, given S.Ct. at 1528. so, him opportunity afford to do attempted present “has not See, then abstention appropriate. is not his federal claims in related state court e.g., Pugh, Gerstein v. 108 n. proceedings, assume that state [we will] 860 n. 43 L.Ed.2d 54 procedures adequate will afford an remedy, (1975). Partington argues that abstention unambiguous the absence of authority to inappropriate here because Clarke’s re- contrary.” Id.; Middlesex, see also attorney-client privilege fusal waive the addition, U.S. at 102 S.Ct. at 2522. In Rules, 4-101, Disciplinary (1) 2. DR Preservation Confidences or secrets with the consent Client, provides: and Secrets a affected, only of the client or clients but after Confidences (A) pro- "Confidence” refers to information a full disclosure to them. attorney-client privilege tected applicable (2) under permitted Confidences or secrets when law, and "secret” refers to other Disciplinary required by under Rules or law gained professional requested information rela- or court order. tionship that the client has be held (3) The intention of his client to commit a inviolate or the disclosure of which would be necessary pre- crime and the information embarrassing likely or would be to be detri- vent the crime. . mental to the client. (4) necessary Confidences or secrets to es- (B) Except permitted when under DR 4- tablish or his collect fee or to defend himself 101(C), lawyer knowingly: a shall not employees against or his or associates ac- an (1) Reveal a confidence or secret of his wrongful cusation of conduct. client. (D)A lawyer shall exercise reasonable care to (2) Use a confidence or secret of his client associates, prevent employees, his and others disadvantage of the client. whose services are utilized him from dis- (3) Use a confidence or secret of his client closing using or confidences or secrets of a advantage for the person, of himself or of a third client, except lawyer may that a reveal the unless the client consents after full 4-101(C) through information allowed DR disclosure. (C) lawyer may employee. A reveal: judicial his that novo on the plaintiff cannot raise nized de review federal even if a decision a “biased” administrative board administrative claims state constitutional satisfy competent re- does tribunal important implicate state proceedings that quirement predicate for third via interests, ability to the claims his raise id. Younger abstention. & n. 16. administrative judicial state review Here, finding in Partington contends that a Schools, Dayton suffices. proceedings proceeding special Rule 13 before Requiring a at 2724. 106 S.Ct. U.S. at Supreme or Hawaii master Court present his constitution- plaintiff federal counsel he rendered effective assistance of state rec- challenges in the al Ha- totally incompatible would be with the per- courts can and will ognizes state v. Court’s decision in State waii responsibility safeguard fed- form their this, Clarke. From he concludes that See, e.g., Penn- rights. eral constitutional prejudged of ineffectiveness has been issue 1528; Middlesex, zoil, at 107 S.Ct. Partington him. further assails 2520; Trainor, 431,102 S.Ct. at U.S. at impartiality of the Hawaii at S.Ct. at by asserting large amount met He Partington has not his burden. that State v. Clarke publicity generated alleged procedur- explain how this does not has biased presenting him from his prevents al bar against his case. first, fifth, sixth, and fourteenth amend- bias, claiming Partington In over must proceedings. in the Rule 13 ment claims special presumption mas come unambiguously Partington Nor shown un and the Court are ter exception” to that Hawaii’s “self-defense McClure, v. See Schweiker biased. see attorney-client privilege, DR 4- 1665, 1669, 188, 195, 102 72 L.Ed. U.S. 101(C)(4), only applies when a client at- (1982). presumption 2d 1 He can rebut attorney’s conduct. his tacks Cf showing or “by a of conflict interest Lawyer’s Manual on Profes- ABA/BNA specific disqualifica other some reason Attorney’s Conduct, Disclosure: sional tion.” Id. 55:701, 703, 706-08(BNA) (Nov. Benefit, at bias, support judicial In his claim 11, 1987) (discussing privi- cases where the Larkin, Partington Withrow relies though even lege apply client does 1456, 43 95 S.Ct. L.Ed.2d attacking conduct). attorney’s is not (1975) (Withrow). exam The Court there event, up first “should set a Wisconsin statute that allowed ined procedural] upon defense rely [this examining to warn and state medical board Younger, state courts.” [Hawaii] suspend physi reprimand physician, to quoting Fenner U.S. at temporarily, cian’s license institute Boykin, to revoke a criminal action or action (1926). as- 70 L.Ed. 927 We cannot probable when it found cause under license interpret its will attor- sume that Hawaii governing criminal revocation statutes. ney-client privilege to bar Id. 95 S.Ct. at When Pennzoil, speaking in own defense. examining inves medical board commenced 107 at 1528. S.Ct. Larkin, Larkin tigative against Second, argues that 42 filed suit in federal court under U.S.C. is not met in prong the third for abstention seeking injunction against 1983 § special this because both the master initially case investigation, was denied 39, are Id. and Hawaii Court biased 95 the federal district court. at Gibson, him. In subsequently no S.Ct. at 1460. board if recognized plain that federal Court it hold a “contest tified Larkin that would ad hearing” tiff that either the state determine whether can establish ed order to Id. temporarily. is at suspend or the state court license ministrative tribunal his bias, 40-41, dis “competent” not then ab 95 at 1461. federal because of S.Ct. enjoined the because 411 at court then board appropriate. is not trict stention addition, authorizing the board recog- In it concluded that at 1697. investigatory at 1469. perform adjudi- pointed dual and S.Ct. The Court out a that function, initial finding probable the Wisconsin statute cative cause to be- process physician due lieve a procedural raised con- had violated a statute serious was logically physician subsequent cerns lose his not with a permitting inconsistent decision, liberty complete at the hands of property a biased based on evidence 41-42, brought out at hearing, decisionmaker. Id. at S.Ct. at an adversarial that physician did not violate the statute. 57-58, Id. at 95 S.Ct. at 1469-70. prelimi- reversed the Supreme Court Partington argues that Withrow stands nary injunction, concluding that it was proposition for the that bias is established “quite physician unlikely” that the accusatory finding incompati- where ultimately procedural prevail on his due any adjudicative finding. ble He re- process challenge. Id. at at S.Ct. lies on the from statement Withrow that that biased Recognizing decision- “if the initial facts view of the based procedural satisfy pro- makers due do pro- evidence derived from cess, nonadversarial 46-47, id. at practical as a legal cesses matter the contention fore- rejected nonetheless “that fair investigative and effective consideration adjudi- the combination of and at a close^] subsequent adversary hearing leading necessarily cative un- functions creates an decision, process of bias in ultimate a substantial due constitutional risk administrative adjudication.” question Id. at 95 S.Ct. at 1464. would be raised.” Id. at Instead, added). emphasized (emphasis that one S.Ct. at 1470 From the Court this argument interpretation Withrow, Partington who advances such an then argues following that the three factors all presumption honesty must overcome legally indicate that foreclosed he is serving integrity adjudi- in those contesting the Court’s cators; and must convince [he] [the finding of of counsel ineffectiveness that, appraisal under a realistic court] (1) State v. Clarke: the title of Rule psychological tendencies human “Proceedings Following Adjudication Final weakness, conferring investigative and Ineffective Counsel Of Assistance Of adjudicative powers on the same individ- Cases,” Criminal indicates that the decision poses uals risk of actual such a bias or final; (2) part, the text of Rule prejudgment practice must be only speaks special master determin- guarantee process forbidden if the of due ing should whether “corrective action” adequately implemented. is to be taken; (3) Court’s In repudiating appellant’s Id. claim appointing special master order states bias, presumptive the Court observed that finding there “a of ineffective appellate when an court reverses an admin- assistance of trial counsel.” judge judge, istrative law or a lower court procedural prong Younger, does not Part- mandate Under third retry ington case. must that he would new Id. at demonstrate 48-49, adequate litigate Similarly, opportunity at 1465. have an S.Ct. case, rejected proposition simply federal constitutional claims—in findings argues, competent issued written he

because the board before unbi- Middlesex, in support adjudicator. of fact of law ased state and conclusions Gibson, determination, 2521; probable its cause the board U.S. at 102 S.Ct. at 56-57, prejudged had Id. at at 1697.3 He has not the case. suggests Younger agree 3. The dissent that we misunder- and the dissent abstention is test, prong inappropriate stood the of the Middlesex the bias renders a state tribunal third when categor- prong incompetent; disagree requiring to that federal claimants “an we over how adequate Supreme opportunity in in the state to ize the Court’s decision Gibson. by challenges.” analyzed incompetency caused raise 432, Gibson bias constitutional opportunity plaintiffs It is true that in connection the to S.Ct. at 2521. in neither with Younger litigate federal claims before a Middlesex nor is biased tribunal men- constitutional prong. majority competent The 411 U.S. at tioned under this third state tribunal. incompetent.” (Emphasis Supreme has have been Hawaii Court done so. added.) master, moreover, Parting- special to hear has opportunity never had the process requires due power proceedings. the This argument ton’s the to dismiss by the after it judged power not be includes power presumably he the in crimi- performance the attorney has ruled on the criminal defense conclude that legal prac- neither nor is nal There case. not in fact render ineffective assist- did that the Hawaii Su- tical to believe reason ance. biased this issue preme will be on Court cannot never addressed. We which it has Supreme The Hawaii Court’s initial de- guess how the court will should appar- termination of ineffectiveness will Parting- is irrelevant to respond. Withrow ently estoppel not have collateral effect in due claims. ton’s unaddressed proceedings. the Rule 13 See Santos v. Moreover, Partington we conclude that Department Transportation, State that, under has not demonstrated Withrow (1982) Haw. 646 P.2d matter, legal special the as a practical (per curiam) (discussing preclusion issue Supreme is Hawaii Court master or the law). under Hawaii This conclusion con- prejudged by v. Clarke bound State by sistent a letter with written the Chief issue. the ineffectiveness Vanelli Cf. Partington Justice to stating others F.2d Reynolds District No. School provides procedure that Rule 13 “a where (9th Cir.1982) (rejecting 10n. 779 & the attorney question opportuni- ha[s] not, consist claim board could that a school contest, behalf, ty to charge on his own the process, impartial conduct an ent counsel, ineffective assistance before prior its to ter hearing review decision master, impartial way who is in no employment). As for minate a teacher’s previous bound the determination the issue, title of 13 is some legal the the Rule attorney If disagrees, criminal case.” may troubling in that indicate that what “provides Rule for the master’s determi- ineffectiveness is conclusive. finding nation Supreme to be reviewed Furthermore, the Rule itself is not clear on Middlesex, Court.” In the Court considered whether defense counsel can the issue of the actions of the New Jersey Supreme of ineffectiveness anew contest the issue ability clarifying Hinds’s to raise his master Hawaii special and the before the challenges. constitutional Court, Supreme Chief Justice’s or Although 102 S.Ct. at 2523. can be as indi appointing der Gedan read formally spoken Court has not on already Court has cating that issue, that, this we believe absence But, issue. decided the ineffectiveness authority contrary, clear the letter of already observed, Partington we have the Chief can be Justice considered as an in- demonstrating, burden bears terpretive gloss purposes of abstention “unambiguous authority,” that through that, clarifying legal matter, as a Parting- special master and the Hawaii both the ton will finding be able to contest the in- precluded are from consid during effectiveness his Rule proceed- ering ineffectiveness issue de novo. addition, ings. 1528; primary Pennzoil, issue before Middle and, special sex, perhaps master ultimately, 102 S.Ct. at 2522. We U.S. at Court, do has carried whether cor- not believe reciting rective foregoing this action is warranted under Rule 13. burden para 13 states its second not contend factors. Rule does that the court graph only “alleged counsel is has prejudged that defense this issue.4 dissent, however, litigate opportunity is an focuses on whether there

S.Ct. at 1697. claims, Kugler categorizing which became federal constitutional dictum Helfant finding prong. in Gibson as an "extraor- third biased tribunal Middlesex dinary 4, n. at 124-25 & circumstance.” Gibson, suggests Relying the dissent Despite at 1530-31 & n. 4. dictum, majority "the basic rule has misconceived we believe it better follow Gibson's governing and biased state tribunals” approach analyzing abstention bias connection with 1981) (holding on Cir. that this practical limitation court cannot find no We also availability of any adju of his ascertain the the biased ability to address exception Younger to impartial To the dicator abstention arguments to an tribunal. appellant attempts to avail that certain until himself of believes extent may statutory procedures disqualify be state to al Supreme the Court of members him, by justices). legedly supreme either biased against personally biased provides judges of Hawaii that Hawaii circuit finding their of ineffectiveness virtue of Supreme may of or as a result and retired Court Justices sit counsel in v. Clarke State publicity in on the when one high profile nature of the of case, may file an affida the Justices recuses himself. Haw. he be able to (1985).6 seeking recusal under Haw.Rev.Stat. Rev.Stat. 602-10 The statute vit § 601-7(b) (1985).5 contemplates Flangas may v. State even that some cases § Cf. (9th Nevada, in F.2d arise which all five Court Jus- Bar of 137) (dissent require inquiry personal prejudice p. of has a bias or because we either party any opposite party biased. Dis- whether it is or in favor of a biased state tribunal suit, pp. disagree judge 137-38. disqualified sent While we do not shall be from legal premise, the dissent overlooks proceeding Every with the therein. such affidavit finding no that there has been shall state the facts and the reasons for the Hawaii is biased on the constitutional Court of prejudice belief that bias or exists and shall be issues. hearing filed before the trial or of the action distinguishable important, proceeding, good Gibson is But more or or cause shall be shown in the instant case. The state tribunal from for the failure to file it within such time. No Optometry, was the Alabama Board of Gibson party any shall be entitled in case to file more issue, body authority statutory sus- affidavit; "the with than one and no shall be affidavit practice pend, of and revoke licenses for accompanied by filed unless a certificate of optometry.” S.Ct. at 1692. counsel of record that the affidavit is made in comprised solely practicing of This Board was Any judge good may disqualify faith. oneself optometrists. course, Id. at S.Ct. at 1694. Of by filing clerk of the court of which comprised optometrists a tribunal of judge judge judge is a a certificate that the ability entertain constitu- does not have the any pre- deems oneself unable for reason to Optometrists incompetent claims. are tional impartiality pending side with absolute in the area; process, their domain is the visual suit or action. contrast, process. By state tribunal court, indeed, Partington is a the Hawaii Su- provides: 6. Haw.Rev.Stat. 602-10 § preme comprised experienced Court. It is bring appeal Parties shall be entitled to ability jurists. That this court has the to enter- argument a full court. before Oral shall be and resolve constitutional claims is incon- tain court; provided appro- a full in an before simply comparison trovertible. There is no be- priate may case the court in its discretion justices group tween State and a dispense argument. with oral In case of a optometrists competency in their face con- justice supreme vacancy, or if a court is competent, op- stitutional issues: Justices are disqualified sitting any pending from case tometrists are not. has failed to court, supreme before the or is unable to demonstrate that he will not be afforded the attend, absent, or or has been or is is recused litigate opportunity to his constitutional claims excused, vacancy place or the of such competent before a state tribunal. The third justice may temporarily a circuit filled prong requires us to abstain. Con- Middlesex designated by justice judge the chief or assertion, trary to the dissent's Gibson does not appointment justice of a who retired from dictate a different result. supreme justice court. Such retired cho- provides: 5. Haw.Rev.Stat. § justice not be sen to serve substitute shall (a) person judge any actively engaged practice No shall sit as a of law. A jus- judge’s by affinity justice, sitting case in which the relative retired tice, when as substitute consanguinity degree compensated pay or counsel, within the third shall be at a rate of plaintiff justices or interested either as court. or associate defendant, necessary, may judge or in the issue of which the When the court consist of five has, relative, directly through judges, designated either or so or five retired such circuit interest; any pecuniary any person appointed any justices nor shall so or combination judge justices. any judge judges After sit as a case in which the circuit and retired oral case, vacancy appeal any argument if has been of counsel or on an of a if a arises or judgment judge. any justice decision or rendered reason a is unable to other (b) suit, action, case, party any may Whenever a the case be decided or continue on criminal, proceeding, disposed upon civil the concurrence of makes and files filling without affidavit before whom the three members the court proceeding vacancy place justice. action or is to be tried or heard or the of such 128 themselves, More- id. recuse tices would 2. that each over, presume we must very of ‘extraordi- Because nature “[t]he duty follow his will Justice Supreme Court impossi- ... nary makes circumstances’ unswayed by 5 to Haw.Sup.Ct.R. “be under every and define situation anticipate ble to clamor, fear of interests, or public

partisan threat might a sufficient create 5,incorporating Haw.Sup.Ct.R. criticism,” immediate, irreparable great, inju- and such 3(A)(1), Conduct, Canon crimi- ry of Judicial as to intervention in state Code warrant personal if a Helfant, “he has proceedings," Kugler recuse himself nal see v. and to 124-25, 1524, 1530, concerning 117, Haw. 95 prejudice party.” 421 U.S. S.Ct. bias (1975), scope Young- of Judi- 44 L.Ed.2d 15 Code Sup.Ct.R. incorporating exception Partington “exceptional ’s circumstances” 3(C)(1)(a). er Conduct, Canon cial faith also unclear. As with the bad indi- strip these no reason provided has has consist- exception, the honesty and “presumption viduals ently recognized exception, but has Withrow, at integrity.” See exception applied. never held that the at 1464.7 S.Ct. 95 clearly recognizes, how- exception ever, that a federal court need abstain B. flagrantly unconstitu- when faced with Younger, tional statute. See predi necessary if the three Even 53-54, aspect 91 This S.Ct. at 754-55. however, exist, Younger abstention cates exception applies only a statute is when plain if the federal appropriate will not be “ patently of ex- ‘flagrantly and violative (1) proceed that the state tiff can establish prohibitions every in press constitutional being undertaken in bad faith or ings are clause, sentence, paragraph, and and in (2) harassment or purposes of against manner and whomever whatever “extraordinary other circumstances” some ” Id., might apply made it.’ an effort be exist, proceedings pursuant such Buck, quoting v. Watson See, unconstitutional statute. “flagrantly” 962, 967, (1941) 85 1416 L.Ed. 53-54, 49-50, at Younger, 401 U.S. e.g., (Watson); Trainor, 431 U.S. at accord at 754-55. S.Ct. 446-47, 97 at 1919. S.Ct. flagrant- argues that Rule 13 amendment, ly procedural violates the first excep- scope Younger’s faith bad protection process, equal and due Although the Court in tion is not clear. on its clause the fourteenth amendment progeny continuously its has Younger and applied. and have examined face We recognized that abstention would be arguments makes in plaintiff required if federal could estab- challenging certainly Rule 13. He has lish that the state were argu- raised some colorable constitutional faith, the has never instituted bad Nonetheless, he to dem- ments. has failed “ actually applied exception. Federal cir- ‘patently 13 is viola- onstrate that Rule however, courts, occasionally cuit express prohibitions tive constitutional exception applicable. found the “bad faith” every clause, sentence, paragraph, See, e.g., Griffin, F.2d Rowe whatever manner (11th Cir.1982); might ap- 525-26 Heimbach v. made to whomever an effort ” (2d 53-54, Cir.1979) Lyons, F.2d 346-47 it.’ at ply Younger, U.S. curiam); 754-55, Watson, (per Thompson, quoting at Wilson (5th Therefore, Cir.1979). F.2d No at bad at we reject Partington’s argument that this faith been demonstrated this case. ex- language p. p. n. 24. 7. The dissent draws attention to 138 n. & 144 The Chief Justice is April Parting- liberty impartiality Chief Justice’s letter to to recuse himself if his which, suggests, the dissent ton indicates that appearance judicial objectivity is drawn prejudged Partington’s the Chief Justice has process question. into protection equal Dissent claims. Supreme from in the Hawaii prevented the district court State v. Clarke ception first, fifth, Court violated the and sixth abstaining. Rather, complaint amendments. states that because of the defendants’ action he IV declaratory judgment “is entitled to ... [a] Partington also contends that applied 13 as to HSCR Plaintiff is in Supreme Court’s decision State Hawaii argument, unconstitutional.” At oral Part (1) first amendment violated the v. Clarke ington request contended that his for de chilling the decision had a effect because claratory in relief the context of Rule 13 as a ability on his to hold himself out first, fifth, included the and sixth amend counsel, (2) violated the fifth competent challenges Supreme ment to the Hawaii amendment the de and fourteenth because in Court’s decision v. He State Clarke. liberty proper deprived cision him of a and request claims that he couched his for re reputation in ty interest his without lief in of Rule 13 terms because the Hawaii law, (3) process of and violated the sixth Supreme decision in Court’s State v. argues “necessarily he amendment which step” Clarke was the “first under Rule 13. corresponding right of a criminal includes argued complaint He if that even his attorney practice profession defense to his relief, totally requested not clear on his Part without unreasonable hindrances.” argu in brief the district made his ington that both the fifth amend believes concerning Supreme ment require ment and the sixth amendment Court’s decision in State v. Clarke clear. grant “pre-deprivation” hearing courts to Chang Partington Gedan and denied that alleged all counsel to have ren to defense presented challenge had in the district dered ineffective assistance and that They only court. contend not that it would Court, Supreme deciding in Hawaii State v. inappropriate by- to allow Clarke, comply constitu did these court, pass the district also that such but requirements. Partington argues tional implicates an attack on v. State Clarke special power that the master lacks forbidding Rooker-Feldman doctrine lower analyze these issues or to undo these con in federal courts to sit direct review of stitutional harms and that it is unreason judgments. state court See District Co- Supreme able to believe that the Hawaii Feldman, Appeals lumbia Court v. analyze undo Court will these issues or 462, 482-86, 1303, 1314-16, S.Ct. harms; therefore, these is not abstention (1983); Fidelity Rooker v. appropriate. Accordingly, Partington re Co., 413, 415-16, 44 Trust quests declaratory judgment stating (1923); L.Ed. 362 see also rendering its decision in v. State Clarke (9th MacKay Pfeil, 827 F.2d 543-45 concluding rendered Cir.1987) curiam); (per Worldwide Church counsel, ineffective assistance of the Ha McNair, 805 F.2d God v. first, fifth, violated the waii Cir.1986) God). (9th (Worldwide Church of and sixth amendments. Partington’s We have reviewed com- expressly The district court did not ad- plaint he and the brief submitted arguments dress of these or the re- Although might district court. we be able declaratory quested regarding relief read rather unclear brief as Court’s decision in State contesting constitutionality of the Ha- argument, At oral we ex- Clarke. decisionmaking pro- waii Court’s pressed Partington present- doubt whether Clarke, complaint mere- cess State v. challenges ed these constitutional ly sought declaratory injunctive relief concerning Chang district court the manner and against the defendants—Gedan the effect of the Hawaii Court’s proceedings. in the Rule 13 —involved pointed Thus, clarity decision State v. Clarke. We in his and the the lack of brief prayer Parting- complaint for relief in wording out of his lead us con- complaint request clearly did not the issue ton’s a declarato- clude that he did not raise ry judgment rendering court. its decision the district pursuant to Fed.R.Civ.P. re tions decline to

Ordinarily, we will Chang request their for in the dis Gedan clearly raised an issue view attorneys’ costs and fees. The necessary prevent Defense unless trict court request for joined Partington’s Lawyers a new issue injustice, unless manifest sanctions. pending because appeal is while the arises law, unless the issue change in the aof and power to sanction Gedan We central to of law that is both purely one is Mooney, Chang pursuant to Rule In re public and important to the case and Cir.1988); 1003, (9th 1005 Rock 841 F.2d fully developed. necessary facts are Corp. v. United well International Credit 1416, Shear, 1419 799 F.2d Romain Group, 823 Insurance States Aircraft denied, curiam), Cir.1986) cert. (9th (per (9th Cir.1987); Curl, 302, re In F.2d 2183, 1050, 95 L.Ed.2d Cir.1986).8 (9th F.2d 1007 803 Heckler, F.2d (1987); 774 Yuckert v. 840 Chang’s request for Though Gedan and (9th Cir.1985), rev’d on other 1367 appears opening in their Rule 38 sanctions 137, 107 S.Ct. 96

grounds, sepa brief, request as a we consider their (1987). these Even if one of L.Ed.2d 119 court, severable from rate motion to this discretion to exceptions apply, we retain of the brief. the balance the issue. decline to address of a re- Circuit’s discussion The Seventh appeal Part- on this We decline to review Fed.R.App.P. 38 quest for sanctions under ington’s attack on The court lim- particularly appropriate. is judg decisionmaking process and Court’s request opinion to the defendant’s ited its arguments ment State v. Clarke. Rule 38. The attorney’s fees under for doctrine implicate the Rooker-Feldman court stated: signifi party has this and neither briefed although plaintiff's appeal, not God, issue. Church cant Worldwide Cf. frivolous; meritorious, plainly not it is (noting that the Rook F.2d at 893 n. 4 request for Rule 38 sanc- the defendant’s applies to section doctrine er-Feldman are troubled that is frivolous. We tions actions). lawyers in frequency with which court, appel- representing this whether V including in their appellees, are lants Chang requested costs and Gedan Rule 38 groundless requests for briefs attorneys’ pursuant Fed.R.App. fees and be, it The attitude seems to sanctions. 38, may fees P. 38. Under Rule we award Any It can. frivolous can’t hurt to ask. single or double costs “when the result and motion, request subject to pleading, or arguments appeal is obvious and the sanctions, including request motion or wholly McCarthy Mayo, merit.” lack In re Ice Cream for sanctions. Central (9th Cir.1987)(citation 827 F.2d Cir.1987). (7th Co., 836 F.2d omitted). Chang contend Gedan will be remind the bar that sanctions We Partington’s attempts distinguish Mid routinely request forthcoming if counsel were frivolous. dlesex careful investi- Rule 38 sanctions without appeal or request gation to determine response In to this for costs fees, is indeed sought defense to be sanctioned attorneys’ requested sanc- litiga- appellate suggests Harvester to the burden tion, that Rule 11 is not a 8. The dissent having imposing put court to the task proper and for basis for sanctions Conceding judging Chang reading, analyzing, his baseless Gedan. that this attorneys pursuant arguments.... to Rule filed Curl was sanctioned The brief that in each case the sanc not well-grounded the dissent maintains in fact and he had court. inquiry. tionable conduct occurred in district made reasonable added). Contrary & n. The dissent is mistaken. Dissent at 35 dissent's (emphasis Id. Curl, (9th Cir.1986), assertion, re F.2d In Curl is not at 35 n. In re dissent held that: ambiguous. Curl for This court sanctioned filing frivolous notice of more than responsi- much not relieve him of Curl’s excuses do court; him for appeal we sanctioned brought in district bility having appeal for occurring appellate court. brought, subjecting conduct should not have been law, Trading against Partington.” matter of biased also & frivolous. See Aircraft Inc., Services, easy 819 F.2d I Inc. v. do find it so to reach the dis- Braniff (2d Cir.1987). what, light sent’s conclusion in the history, terms of current law and has con- Co., 1421, 1422 845 F.2d Meeks v. Jewel stituted a biased tribunal. The ideal has Cir.1988) curiam) (Meeks). (7th (per We always absolutely impartial been an judge. fully applies to the re- that Meeks believe practice, tempered by the ideal has been attorneys’ quest for fees and costs Ge- qualification put by the old Constitution Chang. dan and guaranteed of Massachusetts which frivolous, being Far from impartial “as as the common lot of and the Defense Lawyers’s arguments that humanity will admit.” Constitution of compel abstention were Middlesex did not Massachusetts, Part Declaration of the excellent, although ultimately meritori- Rights (1780). of the Inhabitants What the arguments required us ous. The to exam- humanity common lot of will admit has closely the Rule 13 ine varied. interpret Partington would be able whether chal- to raise his serious constitutional leading A recent case from this circuit is proceed- lenges to Rule 13 the Rule 13 Conforte, United States v. 624 F.2d 869 and, ings special master if nec- before Cir.), (9th denied, cert. 101 essary, appeal to the Hawaii on (1980). Here a Moreover, fully expect that Court. we panel consisting Judges Kennedy of Circuit special master and the Hawaii Tang Judge and District Palmieri con carefully seriously will examine appeal by Joseph sidered a criminal Con- Partington’s allegations that Rule 13 vio- forte, operator legalized of a house of speech first free lates the amendment prostitution in judge Nevada. The district incorporated by clause as the fourteenth had, presided presi who had at his trial amendment, guaran- the fifth amendment dent of the Reno Unit of the American procedural incorporat- tee of Bridge League, participated Contract in the amendment, ed the fourteenth and the reject application decision to Conforte’s equal protection amendment fourteenth join League prior because of his convic clause, applied. All both its face and as proprietorship tions and house important of these issues are and will re- prostitution. party aAt cocktail in 1973 quire careful and detailed examination. To judge against accept had also advised charge that these issues are frivolous is ing a contribution from Conforte for the surprising claim Rule 38 sanctions for —to University of Nevada football team. The Partington’s bringing them to our attention judge had remarked that Conforte ran a is the vice described the Seventh Circuit prostitution good house and “was not in Meeks. for Reno.” Id. at 879. deny request by We Gedan and Judge Ferguson District Warren J. heard Chang grant for Rule 38 sanctions and the Conforte’s motion for a new trial on the request by Partington 11 Rule and the De grounds judge’s of the district bias Lawyers. fense We order Gedan and found that the district had not been Chang pay Partington’s and the Defense disqualified. Conforte, United States attorneys’ Lawyers’ costs and fees in (D.Nev.1978). F.Supp. Upholding responding curred in to the motion for Rule ruling, Kennedy panel Judge for the 38 sanctions. The district court is instruct grounds stated: “We find no reasonable ed to determine the amount of the sanction. impartiality questioning judge’s be- AFFIRMED. prejudice_ nega- cause of bias or [T]he alleged prejudice tive bias or of the kind NOONAN, Judge, concurring: Circuit disqualify only here will if it is an attitude opinion I concur of the court and or state of an aversion [that evinces] mind— hostility degree note that the foundation of the dissent a kind or that a fair “is, person entirely that the Hawaii set aside as a minded could not justice It is unclear whether other persons or causes.” certain judging when Jay’s letter. It was signed Chief Justice F.2d at 881. Conforte, Goebel, Jr., History never sent. 1 J. standard, apparent, it is is such This States, Supreme Court the United ruling would not constitute legal previous (1971). The Court did not hes- kind it is not the because disqualifying bias appeals as a court of itate to act hostility that a fair-minded of aversion of circuit courts made the Jus- decisions Spe- aside. unable to set person would be judges. tices as circuit When 1803 the opinion, the point later cifically, at a practice finally challenged by a liti- legal issues judge’s “A view on panel held: acquiescence gant, the Court held motions to serve as the basis for may not prevented change. practice Stuart v. omitted). (citations disqualify.” Id. at 882 (1803). Laird, prac- Cranch history that lies behind this treat- judging appeals from one’s own tice of disqualifying prejudice as a term ment of court. decisions continued the Marshall reviewing. Judiciary is worth of art (10 Wheat.) Antelope, 23 U.S. E.g., The judges provided that district Act of (1825). 6 L.Ed. 268 decisions on not review their own should much clearer that It could be courts, at the same appeal the circuit but early Supreme Founders and the Court did Supreme provided that Court Justices time judge that a was biased as a not believe judges act as circuit regularly should previously matter of law because he had disqualifying provision for them made no question being presented to ruled on the reviewing their own decisions. Eventually by practice him. statute the Jay composed John a 1790 Chief Justice 3, Judiciary ceased in 1891. Act of March the entire letter to be sent 517, 826, ch. 26 Stat. 3. But the § Washington this to President Court problem scarcely disappeared. It is the having Jay pointed out that once problem. regular practice of the circuit courts of issue, justice would not be decided an appeal to schedule sessions en banc against the influence of those secured members, previously panel which who have opinions, and predilections for individual case, heard the sit as members. The ses- relinquish reluctances to senti- of those “rehearing” reality is called a sion but though, publicly, perhaps, too ments reargument is that the the en banc before insensibly hastily given, which and not hearing. court is a fresh there is Often unfrequently infuse into the minds of the briefing always there oral new is new upright degree partial- men some most argument. always judges sitting There are public ity for their official and acts. ease At who have never heard the before. Jay Letter from John James Iredell judges the same time the on the en banc 15, 1790) draft), (Sept. (enclosing reprinted panel who have heard the case the first McRee, Correspondence in G. Life regarded time and decided it are not (1857). Jay also alluded James Iredell sitting judge biased as a matter of law justice might disqualify to the case where appeal. this fresh sitting himself from on his own decision public would still that in the One difference exists between these but believe Partington presents. reviewing practices and the case decision of the Court decision, generat- practices party least in the mentioned a “mutual interest had At opportunity defend himself injuri- ed mutual civilities and tendernesses has had an judge against him right.” Judge Jay Id. Chief ob- before the who ruled ous to time, appellate usually first whereas suffered an served that cases were appearance ruling in a case where he had no with “much of reason adverse doubtful sides”; possibility defending it would confi- himself. This dis- on both shake the tinction, however, litigant not material if the losing public and the if dence part reaching ques- question prejudice such is one of on the the court difficult practices pre-judg- judge. In the federal men- appeared tions to be biased judges and in the Hawaii case the ment made or more of its members. tioned one appears unwilling to acknowl- In The dissent minds. up their made point have one prior the law now stands a prejudiced edge that as they are sense most literal ruling by judge case now does not show adverse they prejudged judges: practices it judge federal to be biased. In the them. before they can unmake is assumed was and could be raised that the Jus point the case afresh. consider minds and their might Court tices of assumption not be Why should publicity at prejudiced because of be case in Hawaii? murder tending the reversal Clarke time, was, the first litigant for aWhen publicity generated by a case. The fact of judge on challenge a federal permitted to prior ruling was considered at judges’s bias, the basis of it was on grounds Watergate length in the case where the challenge in 1911. statute enacted Ehrlichman, included John Bob defendants preju- bias or only “personal could be Mitchell. The Haldeman and John ch. Act of March dice.” Columbia, the District of sit Appeals for statute, Interpreting this Stat. § banc, rejected the con ting en defendants’ party said Judge had been tention that John Sirica “state disqualify must seeking to “public them because his biased merely ad- tend to show facts which reputation” had inex image and “become made, may already which rulings verse prosecution with the tricably intertwined and reasons wrong, facts right or but Watergate matter.” United States preju- personal bias tend to show (D.C.Cir.1976), Haldeman, 559 F.2d Barrel, American Steel dice.” Ex Parte nom., Ehrlichman v. cert. denied sub. 43-44, Seaman, Co. and U.S., L.Ed. (1913). 1007, 1009-10, 57 L.Ed. 1379 (1977). The court held that this kind 2d 250 disqualify District Applying the statute judge part “interest” on the of the was Landis in Judge Keneshaw Mountain in order to dis disqualifying. Interest “must be that the bias the Court observed extrajudicial emanate from qualify must rulings in something other than upon based sources, prohibition otherwise “the States, 255 Berger case.” v. United beyond anything far Con had a reach have 230, 232, 65 L.Ed. 481 rationally contemplated.” gress could Parts, 142 (1921). In Denis v. Perfect Judge to hold that The court refused Id. (D.Mass.1956), Judge Bailey F.Supp. 263 impermissibly biased. had been Sirica previous in case that had ruled a Aldrich Judge favorably by cited was Haldeman When the patent question in was valid. F.2d at 882. Kennedy Conforte, against a patentee brought a ease same changing are on no doubt Sensibilities defendant, objected the defendant different In 1765 judicial bias. question prejudiced because Judge Aldrich was “... the law will could write: Blackstone validity of the already had ruled on he favor in possibility a of bias or suppose disquali patent. Judge Aldrich refused already sworn to administer judge, a who is himself, is directed fy ruling, “The statute authority impartial justice, whose bias, judicial personal previous not to upon presumption greatly depends questions.” exposure to the same or similar Blackstone, 3 W. Commentaries idea.” Parts, F.Supp. The Perfect recusal *361. While England Laws must be general bias standard challenge by litigant a had on the basis extrajudi personal and also arise from an law, law, early canon in Roman existed stated as the law of cial source has been law, by Black- disappeared it had English Carignan, circuit. States v. this United time, id., permitted in fed- and was stone’s (9th Cir.1979). A F.2d turning in 1911. Since that only eral law prior judge’s participation a “related judi- signs that point have been other there though proceeding” is not sufficient even may at more disqualification be looked cial present parties against he ruled one of the Judge Aldrich’s de- example, sharply. For proceeding. Davis v. Fen in that earlier criticized (9th Cir.1981). Parts was dler, cision in F.2d Perfect Partington he had Note, nary proceeding “Disqualification of writer. student Courts,” strategy so that the court explained his in the Federal Bias Judges (1966). In 1974 he had not breached now satisfied that Harv.L.Rev. requiring lawyer. ques- the statute responsibilities as a Congress enacted if a reason- themselves disqualify deprivation, decid- judges to amendment tion of sixth impartiality. doubt their could person Clarke, logically able distinct from ed 455(a). practice 28 U.S.C. § disciplinary standards century in rela- first in its Supreme Court satisfy the Bar. meet to must strange now looks circuit decisions tion to emphasis on the places also The dissent time will come may It to us. prejudice. But probability of “practical” judges in panel participation when charge judge may dissent admits that hearings appear an will circuit en banc violating attorney Fed.R.Civ.P. impartiality. It impermissible breach cause, conduct a subse- him to show order prior ruling on a even that may happen against him. The hearing, and find quent sitting disqualify judge will matter may a court cite an also admits that dissent involving the same issue. case on another court, him contempt of order attorney for it is generally recognized that But it still cause, preside over the and then to show rule dis- lay down an absolute difficult against him. As a contempt trial and find ruled judge because he has qualifying a matter, probability of a practical context. litigant an earlier against a having mind a in these circumstances process due Note, at 1452. What supra impression professional of the breach vivid being worked out case case. requires is lawyer, being influenced of the history and the current state Given proba- greater than the impression, is much give the Ha- law, courts should the federal court, appeals years months or bility of an decide Supreme Court a chance to waii occasioned the the initial decisionthat requires. after what disciplinary pro- lawyer to reference of the decision, making that Justice against the ceedings, being prejudiced still asking, Court will be is on treacherous lawyer. dissent up my by my earlier I so made mind “Have practical prej- grounds argues when it ruling in the criminal case that I cannot likely Partington’s case udice is more hearing Partington’s explana- give a fair accepts judi- as routine than in the cases it thought why strategy he was tion of practice. cial public appropriate?” and “Will confidence I, justice in the diminished if courts be particularly good Judges have not been already Partington found to have who’s major recognizing their own biases. The assistance, given now sit on a ineffective made federal reforms have been defending against where he is himself case legislature Supreme elimination —the A federal in a charge?” court is not reviewing their own deci- Court Justices anticipate justice position to how a 1891; recusal sions in the introduction of will those Supreme Hawaii Court answer 1911; by litigants in the reason- motions questions. person objectivity test of able places weight The dissent on a statement height- history suggests This the need for Withrow, upholding procedure in impartiality self-scrutiny. ened The acquittal by a later the administra- which humanity “the common lot of will admit” is body “logically tive concerned would not be now closer to the ideal. prior finding proba- inconsistent” with a Larkin, cause. ble Withrow REINHARDT, Judge, Circuit 35, 57, 43 L.Ed.2d 712 concurring dissenting. would, (1975). however, logi- There no be only in at the I concur the order set forth inconsistency Supreme between the cal part majority opinion V of the reversing the end of Court murder conviction attorneys’ fees to awards certain costs and because of ineffective Clarke assistance Lawyers. I discipli- Partington and the Defense finding counsel and then that in the Supreme der dissent from the rest of Part V and all of Court Rule through I IV. supreme Parts court would have to determine whether rendered ineffective I not believe that this is one of those do assistance of counsel to Clifford Clarke. exceptional Younger cases in which absten- However, already that court has decided in required. Famous tion See World State v. Clarke that assist- Emporium, City Drinking Inc. v. ance ineffective was and that a murder (9th Cir.1987). Tempe, 820 F.2d conviction Clarke must be reversed Rather, I believe we should now decide that Thus, for that prior virtue of its would decision State reason.1 Clarke, subjected judgment Supreme the Hawaii Court bi- a tribunal against Partington ased on the issue already judgment which has reached a whether he rendered ineffective assistance the merits of his case.2 Because of its holding discipli- of counsel and that its of a actions, prior Supreme is, the Hawaii nary hearing would violate his due law, as a matter of a biased forum with rights. applying three-part After test respect Partington proceedings to the County Middlesex Ethics Comm. v. the federal courts need not abstain. Ass’n., Garden State Bar majority offers recusal of all of the justices of the Hawaii Court as a (1982), majority Young- concludes that prejudgment problem. solution to the applicable. majority abstention is er However, the structure of Rule 13 makes it permit the Hawaii Court to clear that recusal of the entire court is not question resolve the of its own bias. It option an available in this case. Rule 13 solely reaches this conclusion on the basis specifically designed to ensure that the reading part of its of the third of the justices of the court would make majority test. As the Middlesex describes the final determination of ineffective assist- part test, plaintiff of the must be ance, not a group judges. different Re- litigate able “to his federal constitutional cusal of the entire court in cases like Part- competent claims ... before a and unbi- ington’s directly contrary would run adjudicator.” Majority op. ased state language and intent of the rule. 125. Because the majority concludes that may My not be bi- conclusion that the Hawaii ased on the question”, “constitutional against Partington Court is biased is not opts for abstention. disparage meant to the members of the They undoubtedly court. are able individu- majority part misconceives the third presumption als and are entitled ato of the plays Middlesex test. Bias no role honesty They and integrity. have no ad- application three-part test. Nevertheless, pecuniary verse interest. Rather, entirely separate bias is an matter. relationships other “[circumstances exists, Where bias Younger abstention is Murchison, must be considered.” In re inapplicable, regardless of whether 133, 136, 623, 625, 349 U.S. 75 99 S.Ct. three-part test is Kugler Helfant, met. (1955). L.Ed. 942 Bias exists where a court 421 U.S. n.& 95 S.Ct. prejudged, reasonably appears (1975). 1530-31 & n. 44 L.Ed.2d 15 The prejudged, disciplinary an any particular bias need not on issue. be claim. proceedings All necessary “satisfy appearance that is must bar abstention is Supreme Murchison, that the Hawaii justice.” Court be re biased In Here, disciplinary proceedings. (quoting un- S.Ct. v. Unit- Offutt Clarke, argument Subjecting Partington 1. At the oral disciplinary proceed in State v. one of justices Supreme of the Hawaii Court ac- ings before a biased tribunal would violate his misconduct, contending cused See, process rights. e.g., Berryhill, Gibson v. deliberately that he had been As discussed in the ineffective at trial. 564, 577, 1689, 1697, 411 U.S. 93 S.Ct. 36 L.Ed. text, Supreme the Hawaii (1973). 2d 488 ultimately reversed Clarke’s conviction on grounds that he received ineffective assist- Partington. ance from 11, 14, 11, 13, States, special prosecutor may and the excep- file ed (1954)). Clarke, special In tions to the 99 L.Ed. State master’s decision with supreme justices legal concluded that the assistance court. court reviews the ineffective, special decision; master’s Partington provided Clarke was the Court then they independent makes very determination would be determination4 again attorney provided whether the upon called to make the Rule 13 ineffective reason, assistance to the proceedings. For this a “realistic defendant and on that appraisal psychological pro- tendencies and basis decides whether to dismiss the compels ceedings the conclusion or order corrective human weakness” action proceedings attorney. Rule 13 involve an the intolerably high prejudg risk of bias or II

ment Court. With Larkin, 35, 47, row v. PREJUDGMENT 1456, 1464, (1975). 43 L.Ed.2d 712 Under Clearly, the critical feature of the Rule circumstances, principles these abstract is the determination the Ha- Harris, 37, 43, comity, Younger v. required waii Court is to make (1971), respect with to counsel’s ineffectiveness. are, important they do not bar a federal It must make this critical determination exercising jurisdiction. court from its regardless of whether it or the interme- view, my only per- we would not be appellate diate court made the earlier de- forming duty proper- our as a federal court termination that representation counsel’s ly, saving but would be the Hawaii Su- ineffective, and reversed the criminal preme expenditure of much un- Here, ground. conviction on that we are necessary time and effort were we to de- presented extreme form of the clare Rule 13 unconstitutional now. I see process: court, Rule supreme sua little choice for the Hawaii court when sponte, raised and determined the ineffec- Partington’s justices. case reaches the If during proceed- tiveness issue the criminal they rule, certainly fail to invalidate the ing; required it would now be to resolve ultimately federal courts required will the identical issue a second time in the do so. disciplinary proceeding. majority first Younger asserts that

I appropriate abstention is here because RULE 13 Hawaii Court has never “[t]he opportunity had the to hear provides Court Rule 13 argument that due requires that he procedure determining for whether a de- judged by not be the court after it has attorney fense disciplined should be performance ruled on his in the criminal providing ineffective assistance of counsel. case.... We cannot guess and should not rule, Under the whenever a criminal convic- respond.” how court will Majority op. tion has been overturned ground by on that Thus, at 126. the majority apparently either the court or the interme- position takes the must court3, appellate diate the only demonstrate not that the Hawaii Su- appoints special a master to decide whether preme prejudged Court has the merits of attorney action the is warranted. disciplinary the proceeding but also that master, turn, special The appoints spe- a the prejudged court has the issue of wheth- cial prosecutor. At the conclusion of the prejudged er it has pro- the merits of that proceedings, special master dismisses ceeding. or recommends to the su- preme court that corrective majority’s action be taken argument misconceives against the attorney. Both attorney governing basic rule abstention 3. See note 4. See note infra. infra. licensing agency the state whether was bi- The fundamental tribunals. state

biased question validity an individual to compelling ased on the is that principle of Rather, biased tribunal case to a present challenged statutory procedure. federal courts will process and fends due only question considered whether the proceeding. an unconstitutional enjoin such “the agency was biased as to revocation of 564, 570, 411 U.S. Berryhill, Gibson appellees’ licenses.” U.S. at 1689, 1693, 1697, 36 L.Ed.2d 93 S.Ct. Moreover, at 1697. it held irrelevant alleges (1973). a federal claimant When fact that the state courts would review biased, it is the adjudicator is that a state proceeding de novo. at the revocation Id. determines whether federal court which Finally, at the fact that 93 S.Ct. Gibson, 411 allegation is correct. See that sought petitioners had not to invalidate 1697-98; 578-79, at see 93 S.Ct. procedure in the unconstitutional state 117, 125, Helfant, 421 U.S. Kugler v. also forum available and unbiased state court 1524, 1531, 1532, 127-28, 44 L.Ed. 95 S.Ct. affirming the did not deter the Court from (1975). question is not referred 2d 15 enjoining the district court’s action state If the federal court the state court. Procedurally, proceeding. our ease exists, finding a that bias concludes my opinion, are identical. In Gib- Gibson automatically. follows process due violation controlling is here. If the Hawaii Su- son at 1697.5 Gibson, Partington’s preme as to biased The federal court required. No more issues, disciplinary the result here should short, doc In abstention does abstain.6 Gibson; we should not be the same as require person a to ask a trine does not abstain. the merits of his that is biased on tribunal majority attempts distinguish Gib- Nor must it is fact biased. case whether comprised on the basis that “a tribunal whether son person ask the biased tribunal ability optometrists would violate the does not have the fact that it is biased Clearly, process Majority clause. it would—as due entertain constitutional claims.” law, federal constitutional matter of op. at 127 n. 4. This is not a material abstention, is the injunction, federal deciding Younger ab- distinction. remedy. appropriate inappropriate, was stention the fact that “a did not even mention Indeed, parallel between composed optometrists” cannot tribunal one considered situation and the claims, rely let alone on hear constitutional striking. Supreme Court in Gibson is Gib- Rather, fact).7 (if fact indeed it is a case, son, discipli- present was a like Younger abstention un- the Court found revocation) (license nary proceeding before the state tribu- simply because warranted allegedly on the body that was biased not) (composed optometrists or was nal Thus, the licensee faced revocation issue. more issue. No biased on the revocation process Notably, violation. potential Gibson; no Gibson, inquire required into to be shown the Court did not until a few Kugler, bama law is correct. In California 95 S.Ct. at 1532 Cf. (framing including ago, agencies, years the abstention issue as whether the li- administrative "judicial system provides procedural safeguards boards, (and censing power did have the plaintiff] guarantee federal court [the believe) rulings duty, constitution- I to make denied due law in the will not be state regardless of whether the al issues. This was so added). (emphasis appellate process”) trial industry-la- industry board or an board was board, exclusively laymen, composed bor exception provides where state 6. An exists Attorney-Gener- type of board. The some other procedure which ensures a fair an alternate provided all these boards on al’s office advice to tribunal, place e.g., by the biased tribunal in questions the boards then constitutional way Kugler Helfant, of recusal. See rulings. Long after the voters made their 127-28, adopted measure re- of California an initiative (1975). applicability excep- of the recusal boards, III, moving includ- from all administrative tion is discussed in Section infra. lawyers, power ing composed the to those 7. I must confess that I do not know whether declare statutes unconstitutional. majority’s description powers possessed, 1973, by Optometry under Ala- Board required point proceedings.” here. This tive more should be U.S. at If, overemphasized. appears (footnote omitted). Moreover, can not be at 1697 it is clear, Supreme Court is the Hawaii biased plaintiff clear that the federal court in Gib- Partington’s disciplinary- as to the merits completely had a state son unbiased competent proceeding, that tribunal is not system in injunctive which to seek relief proceeding regardless to hear of prior proceedings — to the administrative may issues whether non-merit be raised perfectly adequate thus had state court during proceeding, or whether the remedies for his due claims. For any as to court is or is not biased those example, he could have asked state trial non-merit issues. court, appellate rather than a federal Conversely, majority asserts that court, enjoin district proceedings. those required here Younger abstention be- is, An unbiased state court majority as the cause the Hawaii Court “has the out, points generally presumed to be as ability to entertain and resolve constitution- capable protecting as a federal court of Majority op. al claims.” at 127 n. 4. In rights. federal constitutional Neverthe- essence, majority appears to be con- less, Court in Gibson did not tending proper that it is to force an individ- require plaintiff to first seek relief in appear ual to before a biased tribunal in a Rather, state court. permitted he was disciplinary proceeding, long so as that tri- go directly to court to obtain the federal conceivably reaching bunal could avoid appropriate remedy federal court in- —a proceeding. My reading merits of junction against proceedings in the bi- contrary me to Gibson leads conclu- ased state forum. sion. An individual can not be summoned only difference between the facts before a biased primary tribunal when the and circumstances of Gibson those very issue before the tribunal is the issue (other this case than the previ- distinction on which it is biased. It is fundamental discussed) ously Gibson, is that in the state compelling present individual to provided entirely both an unbiased state case to a biased pro- tribunal offends due pro- court review of the unconstitutional Gibson, cess. U.S. at ceedings sys- and an unbiased state court An required 1697. individual injunction tem in which to seek appear before a state tribunal that is bi- ased on the unconstitutional proceeding may proceedings, the merits while directly court, here, resort to federal entirely whether or there is neither an unbiased not the state authority tribunal has the state forum in could seek bias, dismiss lack of injunctive relief before the unconstitutional jurisdiction, grounds.8 or on other As proceedings are held nor one in which he illustrates, Gibson the fact that there are could do so afterwards.9 In resolving state remedies for or determining case, the Hawaii only Court is not procedure irrelevant, fairness of the forum, the biased but also the first and last regardless of when or what state forum judicial body from which Partington may that determination could be made. Thus, seek relief. the state court remedies were, Gibson, if anything, Gibson far hos- more stated ex- plicitly pitable plaintiff Younger than those abstention is not re- offered to quired “simply judicial Younger because re- here. As abstention [state] view, otherwise, improper Gibson, de novo or be forth- it is a fortiori coming here, at the conclusion of improper conclude, the administra- if as I provides that, matter, Where state law seriously that a legal biased I doubt as a himself, not, court, must recuse the state law does elsewhere, lower in Hawaii or course, require appear the individual to before a authority enjoin proceeding higher before a (except, possibly, biased tribunal in some in- court. purpose filing stances for the limited motion). disqualification question of recu- III, sal is discussed in Section infra.

139 the Court’s state- majority dismisses on the ineffective is biased Supreme Court separate Kugler in that bias is a ment claim.10 assistance Majority op. calling it dictum. element regarding ab confusion majority’s 3. merits of that at 22 n. Whatever to its appears to be due bias stention and categorization, apparent it seems prong misunderstanding of third when reached its con- Court was correct consistently majority test. Middlesex abstention is barred Younger clusion. requiring that Part- prong as describes when, alia, “extraordinary inter circum- ability litigate his consti to ington have the unfair, proceedings a stances” render state before an unbiased claims tutional independent concern is whether 120-21, 125- Majority op. at adjudicator. plaintiff will have an ade- federal prong of Middle- the third Actually, 26. quate opportunity proceedings in the state under mention does not bias—because sex to raise his federal constitutional claims. separate is dealt with Younger that issue examples listed as of this rule a Middlesex prong requires only The third ly. proceeding brought pur- in bad faith or for opportunity adequate “an Partington have poses of at harassment. U.S. to raise constitu in the state Certainly proceeding at 2522. a S.Ct. 432, 102 at challenges.” 457 U.S. tional is brought before a biased tribunal even fact The critical at 2521. S.Ct. licensee, unfair a and even more more Younger, is that majority overlooks process rights, than a violative his due recognized if the that even Supreme Court merely proceeding initiated for an that is (as de three-part for later test abstention purpose. In the of bad improper case faith Middlesex) met, abstention scribed in was harassment, required the licensee is if action was improper the state proceeding unnecessarily, to a but submit faith brought purpose or for bad merits; prevail in the should case extraordinary or in other cir harassment bias, a the licensee does not have fair 53-54, at at U.S. cumstances. all, prevail chance to at and an adverse 754-55; Middlesex, 457 U.S. at also see is, practical purposes, foregone for result part at 2524. Bias on the Thus, the conclusion. Court’s determina- the state is one of those extraordi tribunal Kugler that bias is an “extraordi- tion nary Younger which renders circumstances nary barring Younger circumstance” ab- if inappropriate, even all three abstention compelled logic reason and stention prongs of test are met. Ku the Middlesex precedent, majority and the as well n. Helfant, 124-25 & gler clearly rejecting analy- errs in the Court's 4; n. & World cf. sis. Drinking Emporium, F.2d at Famous event, Thus, simply 1082. it is irrelevant whether In whether bias is considered separately three-prong will be able to raise his constitu from the Middlesex test, disregard before the Hawaii or whether we the clear tional claims language Kugler Court or whether Court is biased as to consider bias to be test, claims; if pre part prong the Court of the third of that those pro in this same. As judged disciplinary the merits result case would be the discussed, ceeding, previously Young it is a biased tribunal and under Gibson it is inapplicable.11 discipli- er abstention clear that bias on merits of instances, prejudged bias some a claim of would be that the court has in fact 10. abstention, preclude (Chief at sufficient to the federal court has had an least until ER 444 claim. See Justice finds opportunity “mystifying" Partington’s he contention that relating to resolve the factual issues the claim. impartial hearing on the could receive Here, however, there factual are no issues claim). Surprisingly, aat later ineffectiveness dispute respect alleged bias. opinion, point majority the letter sum- marily reflecting opin- dismissed as at most noting April It is worth that a letter dated op. Majority ion of the Chief Justice. 128 n. Justice, from the Chief majority appears accept letter the view as the court, Majority op. suggests entire preclude is sufficient to members of the court will recuse nary proceeding Younger abstention. themselves.14 Id. next concludes that majority that, matter,

The practical I believe present an un- procedure Rule 13 does not Supreme prejudged Court has Part- prejudgment acceptable risk of on inef- least, ington’s very At the there case. issue, although it is far fectiveness prejudgment. an intolerable risk of why Ma- clear it reaches conclusion.12 Partington facing sole reason is now disci- jority op. majority appears at 125. plinary proceedings previ- is because in a test, accept which states that the Withrow Court, proceeding Supreme ous the Hawaii “if the initial of the facts on the view based decided, sponte, raised sua on the pro- evidence derived from non-adversarial merits, the issue ineffective assistance practical legal matter fore- cesses as of counsel in a manner him. adverse to fair and effective consideration at a close^] previously The issue the court decided is subsequent adversary hearing leading required the identical issue it will now be decision, ultimate substantial due proceedings. my address the Rule 13 In Withrow, question raised.” [is] view, not, Supreme Court is added). (emphasis at 1470 matter, practical adjudicator. an unbiased bias, respect “legal” With to the issue of There are several federal statutes which majority Partington concludes that has are judicial concerned with the issue of not demonstrated that the Hawaii 47, 144, bias. U.S.C. & 455 §§ legally foreclosed “from consider- (1982). premised These statutes are on the ing the ineffectiveness issue de novo.” simple proposition that fair trial in a “[a] Majority op. point, at 126. On that I am requirement fair tribunal is a basic of due However, agreement.13 majority also process.” Murchison, In re “practical” concludes that there is no im- 623, 625, (1955). 99 L.Ed. 942 pediment examining to the Court’s the is- But a fair trial simply means more than impartial sue in a fair and manner. Id. at system absence of actual bias. “[O]ur majority explana- 126. The offers no always prevent law endeavored to even conclusion, tion for this and cites no case (em the probability Id. authority. fact, majori- law or other of unfairness.” added). phasis end, “justice To this must ty opinion contains no discussion whatsoev- satisfy appearance justice.” Id. question er of the whether the Hawaii Su- (quoting States, could, v. United preme practical matter, as a Offutt 11, 14, (1954)). 99 L.Ed. 11 Instead, adjudicator. serve as an unbiased Thus, constantly we must entirely, proce be alert to apparently pre- avoids the issue ferring dures Parting- appraisal to base its conclusion which “under a realistic psychological ton will be hearing able obtain a fair tendencies and human weak entirely supposition on pose[] that all of the ness ... such a risk of actual bias or point, majority argues 12.At one question that Part- would be no need for it to reach the ington alleged has not that the Hawaii whether corrective action is warranted. primary Court is biased "on the issue ... [name- ly] whether corrective action is warranted has not demonstrated unam- [against Partington] Majority under Rule 13.” biguous authority legally pre- that the court is op. Any at 126. distinction between whether reconsidering cluded from its initial determina- "merely” the court is biased on the ineffective purposes tion of ineffectiveness. For the of our assistance issue rather than corrective Younger analysis, we must assume that the Ha- gameplaying, action issue is semantic at best. I waii Court is free to reexamine its anyone sug- find it hard to believe that would previous legal question conclusion on the gest prejudged that a court that has the issue If, however, assump- ineffective assistance. whether rendered ineffective assist- incorrect, tion turns out to be I do not think question ance is unbiased on the whether he anyone argue proceeding could that the Rule 13 subject disciplinary should be the action. satisfy process. necessarily The Hawaii Court is re- quired the issue on which it is biased determining appropriate question infra, remedy. 14. of recusal is discussed before Obviously, if the court were to decide the issue section III. favor, relating to conduct in there Cir.1970) (Order 135, (5th 137 431 F.2d must be practice[s] that prejudgment of Deci- Memorandum Disqualification and process due guarantee if the forbidden Withrow, Craven, J.) must (appeals court “be by sion implemented.” adequately to be and un- judges uncommitted constituted 47, at 1464. 95 S.Ct. having expressed or formed by influenced readily identify the reasons can While we instance”) first opinion in the court of an tolerated, we cannot be why judicial bias Dillingham, (quoting Moran v. previ- judge’s a when must still determine (1899)).16 620, 153, 43 L.Ed. 930 19 S.Ct. a creates such with a case ous involvement and Swann While Texaco provide some a violation of it would be risk of bias differences significant there are guidance, further him to be to allow Partington’s. The those cases and between deci- proceedings. Two with the associated Texaco was in prejudgment commissioner’s Prejudgment, the issue. help sions frame made dur extrajudicial; the remarks were prejudgment, risk of or an unconstitutional ing public appearance and were not based a of a where the contents has been found obtained knowledge the commissioner on “plainly speech by judge reveale[d]” United during proceeding. an official Cf. had, prior to the commencement he Studley, (9th States 783 F.2d 934 Cir. him, a conclu- reached proceedings before Swann 1986). the is was concerned with involved the merits of a case that sion as to meaningful constitutes re sue of what law. Texa- complex questions of fact and higher court’s by a court of a lower view Commission, co, Federal Trade Inc. v. 336 case, present In the the issue is: decision. vacated on (D.C.Cir.1964), 754, F.2d 760 upon that is called to decide when is a court grounds, 739, 1798, other 381 85 S.Ct. U.S. question and fact as to complex of law (1965).15 Also, judges have final already it has reached a deter which ap- presiding from over disqualified been proceeding presumed mination in an earlier cases, involving peals from decisions prejudged question? to have issues, originally them as low- tried before See, Although Texaco and e.g., v. Char- Swann Swann are not dis- judges. er court Education, lotte-Mecklenburg Board of underlie them positive, policies which light practice, the comments in present In of current Chief Justice has said 15. Our opinion judge expressed concurring history opinion mere fact that a has an of the legal purely question not demon on a acting practice Court “as a court Tatum, prejudgment. Laird v. strate bias or appeals of circuit courts made from decisions 824, 7, (1972) (mem S.Ct. 34 L.Ed.2d U.S. Concurring op. judges,” as circuit the Justices 132, J.). by Rehnquist, orandum on recusal We have States v. specifically of Stuart its discussion reached the same conclusion. United Laird, (1803), Antelope, 1 Cranch 298 869, (9th Cir.), Conforte, 624 F.2d cert. de (1825), (10 Wheat.) L.Ed. 268 while nied, 449 U.S. 101 S.Ct. 66 L.Ed.2d interesting, light specific on the issue shed no (1980). The situations discussed Justice of the slave trade before us. Just as our view Rehnquist and this court in were Conforte espoused changed in The Ante- from that present far from the one in Texaco. different propriety of lope, has our view of the so too infra, is discussed further note 20. Conforte judges sitting judgment deci- on their own Swann, Moreover, Judge applied challenge Antelope, Craven 28 U.S.C. no sions. explicitly practice which forbids the of a § partic- individual Justice’s was made to the judge hearing appeal an from a case which he appeal ipation a case in which he in an tried. The same result has been reached judge; perhaps more inter- had sat as a circuit through application § of 28 U.S.C. Justice, Stuart, having estingly, in Chief "[t]he judge requires a to recuse himself to avoid the below, declined to tried the cause in the court McKenzie, appearance impropriety. Rice v. importantly, give opinion.” Id. at 306. Most (4th Cir.1978) (federal 581 F.2d case did the Justices even consider in neither who, judge, justice as chief of state with, is, question presented we are court, presided affirming appeal of con- had wholly judges comprised a court whether disqualified person victed from federal ha- judicial who decided the same case at a lower corpus proceedings beas because of concerns appeal may level decision, hear an of that lower Withrow, impartiality). 421 U.S. at 58 Cf. concurring certainly opinion ("when n. n. 1470 25 review of an practice suggest ever does not such mandated, initial decision the decisionmaker existed. must be other than the one who made the deci- sion under review"). that the Hawaii that the Hawaii Su- The conclusion compel the conclusion body is biased this case. preme qualify impartial does not links thread that Texaco common proceeding Rule 13 insofar concept person that no can be is the Swann strong support in is concerned finds With controversy compelled litigate a before Larkin, row v. conduct or connection prior whose (1975). Withrow, 43 L.Ed.2d likely makes it that he will with the ease the combination Court considered whether the outcome. The reason prejudged investigative adjudicative functions permit judge a that due does not agency in a state administrative violated previously a case he tried appeal hear an process. suggested It that bias or due judge stat- as a lower court has been well if an prejudgment would be established appeal Phillip ed. “Such an is not from foreclosed, accusatory finding as a initial sober, Phillip Phillip drunk to but from matter, practical adjudicatory find a later vanity Phillip intoxicated with the sober to 58, ing contrary.18 at Id. at 95 S.Ct. opinion of a matured and doubtless also a 1470. The Court concluded that the state Swann, published opinion.” 431 F.2d at practice process, did not violate be (quoting an address B. Hill Walter investigative cause the initial decision was Association). American Bar cause, probable one of a determination that reflected in relate not concerns Swann logically that not only judge to the risk will have would be inconsistent with case, actually prejudged ap- but to subsequent adjudicatory determination pearance partiality as well. As the Su- “no violation”. at at 1469. Id. 95 S.Ct. preme abundantly made clear in In Or, it, put favorable second Murchison, “justice satisfy re must implicit decision would not constitute an appearance justice.” 75 admission that the first was erroneous. at 625. Here, Court has not Here, the court which will decide in the merely preliminary accusatory made a disciplinary proceeding Partington whether finding Partington may that have rendered provided ineffective assistance of counsel is Rather, ineffective assistance of counsel. body already same that has determined finding it has made a on the merits Partington pre- State Clarke did Partington the assistance rendered was so cisely that.17 It has also opinion issued an require ineffective as to the reversal of a to that effect and has reversed a murder Certainly, murder conviction. a subse- ground. on conviction These circum- quent finding by that same court in a Rule present unacceptable stances risk of proceeding had not ren- prejudgment, one that neither dered ineffective assistance of counsel litigant nor other required should be They logically pri- inconsistent with its assume. also fall far be satisfy- short of ing appearance justice”. “the finding.19 “implicitly The Court would concurring opinion suggests point 17.The majority apparently disagree at one 18. not does prejudgment upon that thing “must be based suggestion. some- Majority op. with this at rulings other than the case.” Concur- ring op. States, quoting Berger at v. United 22, 31, 255 U.S. 41 S.Ct. 65 L.Ed. 481 19. None of this discussion is meant to minimize (1921); Fendler, see also Davis v. 650 F.2d problem of ineffective assistance of counsel (9th Cir.1981) (judge’s participation pri- defendants, suggest for criminal nor to proceeding or or related not sufficient to consti- duty Court cannot fulfill its bias). However, tute concurring none of the cases the Nevertheless, supervise attorney conduct. (with opinion upon excep- relies one authority Court cannot exercise its in a manner tion) which, here, involves a situation in requirements process. which violates the of due judges upon will be called to determine the procedure undoubtedly A Rule 13 can be de- complex question same of fact and law on requirements. vised which meets those See in- they previously reached a final determi- pages 146-47. exception, nation. The fra one Denis v. Perfect Parts, Inc., F.Supp. (D.Mass.1956), discussed in note infra. proba- finding to one is similar charge or finding.”20 prior in its admitting error cause, at later determination while the ble Id. guilt or inno- to one of is akin the merits inconsistency”, “logical concept of cites an Similarly, when a court Withrow, helps distinguish cence. emphasized in holding that a him to show contempt, orders attorney from cases case may preside initiated the contempt who cause, presides then over For exam- merits.21 hearing on the States, trial, e.g., Nilva United attorney with charges an judge who ple, a (1957), a to show him 11 and orders violating Rule incon- guilty logically finding the subse- conduct permitted to cause is charge was fact that a with the sistent Growney See, e.g., Tom hearing. quent example is the is- preferred. Another Irrigation Shelley Inc. v. Equipment, injunction a preliminary aof suance Cir.1987). (9th A Inc., Dev., 833 834 F.2d a subsequently presides over judge who later at the judge the determination per- he determines whether trial in which ap- are not 11 sanctions hearing that Rule prac- This should issue. injunction manent his inconsistent would be propriate the question the at proper initial tice is because charge. The initial of the issuance it has of the case before it because the merits concurring opinion that there concludes 20. The previous case on inconsistency the a final decision in a logical between rendered be "no upon called to decide. reversing conviction same issue it is now the murder the Supreme Court concurring opinion only of case that assistance of ineffective in Clarke because disciplinary factually finding to our that is at all similar that relies on and then counsel Parts, Inc., F.Supp. explained against Partington had 142 he is Denis v. proceeding case Perfect case, (D.Mass.1956). satisfied district strategy court was now In that so that the his 263 responsibilities request his at the judge had not breached to recuse himself that he declined defendant, (emphasis in Concurring op. although lawyer.” at 134 be called he would of the escapes logic original). validity patent this statement of of a which upon to determine the Partington’s that previous the court determines me. If in a case had declared valid he justified strategy and that plaintiff was reasonable de- but a different the same involved tactics, say it could also I do not see how judge trial declined to at 263. The fendant. Id. himself, violation. If a sixth amendment that there was that 28 disqualify because he concluded tactics, strategy justified statute, then the assist- disqualification "is di- § U.S.C. bias, ineffective. ance was not exposure previous personal not to to rected concludes, concurring opinion with questions.” also Id. The or similar to the same analysis, contrary the Hawaii Su judge that the fact that result would min- out believed that a already judicial experi- a murder preme has reversed the value of or eliminate imize sug- inef the defendant received exposure. conviction because thus Id. Denis would ence and Partington does “not assistance from reach gest fective than the one that I a different result part However, disqualifying of the concurring opinion bias [on constitute as the here. out, chang- it is not the kind members of the because points court] no doubt are "[s]ensibilities per hostility judicial fair-minded ing question of aversion bias.” Concur- Concurring Indeed, opin- be unable to set aside.” ring op. son would op. author of the at 133. on, However, that it relies expressed at 132. case considerable doubt in Denis has ion (9th Conforte, 624 F.2d 869 United States v. case. See he reached in that about the decision denied, Cir.), Corp., Milgo cert. F.2d Corp. Electronic 553 Codex 735, (1980), type pre- Thus, Denis, Cir.1977). (1st involved a while nev- 739 wholly prejudgment court, judgement any longer unlike the controlling cannot on this er alleged Conforte, the present in this case. persuasive. considered even be allegedly judge personal trial had bias was —the disagree Although Judge does not derogatory Noonan about the defen- made statements inconsistency” “logical stan prior use of the years the time when the with the dant some dard, rely judge. seem to on each individual appeared F.2d he would before the 624 defendant prejudged justice’s has alleged view as to whether he that the bias at 878-79. We held recusal, Concurring op. require that dis- case. not sufficient appears to be at odds with the personal required ani- This conclusion qualification bias "an objective standard is deep-rooted prevailing notion that an active than an atti- mus more States, See, e.g., Berger 255 disapproval v. United certain to be used. tude of toward [non-racial] 230, 233, 22, 33-34, L.Ed. 481 S.Ct. 65 persons Id. U.S. 41 because of their known conduct.” However, (1921); Conforte, F.2d question depth States v. 624 United at 881 (9th Cir.), 101 animosity cert. denied 449 U.S. personal required to constitute dis- 881 (1980); 28 U.S.C. relationship L.Ed.2d 470 qualifying S.Ct. bias bears no (1982); Concurring op. actually at 134. prejudged see also question whether a court has § preliminary injunction subject judicial is will itself review. hearing on cause”; no solely one “reasonable deter- independent That also serves as an review made merits is mination on judge, restraint on the trial because he will ordinarily Thus, there is neither the time. prejudg- be aware that evidence bias or reality logical incon- appearance nor part ment on his lead will second sistency prejudgment reversal.24 are heard.22 when merits above cases procedures None of the serve a more troublesome ana glance, At first prejudgment eliminate or reduce the risk logue judge pre when a trial presented following when a trial rehears a case for the time after sides a trial second over applicable reversal or remand are in Rule his initial decision been reversed on proceedings. Under no Rule there is practice appeal. generally does not This superior authority that will have informed prejudgment impli create of bias or a risk court its initial decision See, e.g., cating concerns.23 prior was incorrect to the time it hears the Co., Donnelly NLRB Garment time; higher issue for the second no 756, 765, L.Ed. 854 explained will to the Hawaii Hollis, (1947); States v. United 718 F.2d Court the nature of its errors in the initial denied, Cir.1983), cert. (8th provided or guidance it with 1309, (1984). L.Ed.2d 707 to those errors. Nor the supreme will However, judicial system our has built-in court have had the of specific benefit in- protect litigants mechanisms that serve to structions as to how to conduct the second of prejudgment the risk in such proceeding. While remand to a trial court cases, help appearance to maintain the occurs because that court’s initial decision of impartiality. judge pre When a trial has been found to be incorrect and has remand, sides over a trial after intervening reversed, comparable been no events will appellate guidance significantly minimizes contrary, occurred here. To the judge risk of bias. The trial is advised disciplinary proceedings will place take that incorrect, his initial decision was here because Hawaii guidance Court’s specific receives from the review determination of ing to ineffective assistance has aspects court as of the trial not been or higher vacated set aside created reversible error. Usually, court. judge given specific Equally important, trial is also instruc tions as to what remedial court’s pro- or corrective determination in the Rule 13 ac tions taken final, should be ceedings second trial. will be right with no In addition, the decision in the appeal superior second trial judicial body.25 to a noting 22. It judge is worth practical reality retrying who initiates 24. The numerous contempt proceedings always permit- that, is not appeal virtually requires cases after with preside ted example, over them. For if "the appropriate safeguards, judicial system our al contempt charged disrespect involves to or criti- judge presided low the same who over the first judge, judge cism disqualified of a that from preside again appeal. trial to after United States presiding trial hearing except at the with the Harris, (5th Cir.) (“‘used’ v. 458 F.2d 42(a). defendant’s consent.” Fed.R.Crim.P. See judges simply recycled" prob must be to avoid Murchison, also In re 623, 625, 349 U.S. 75 S.Ct. judge particular lem being of no in a venue able (1955) (trial 99 L.Ed. 942 contempt case), litigant’s denied, to hear a cert. during grand jury proceedings before same (1972). 93 S.Ct. Nei judge grand jury who acted as one-man violates generally ther the courts nor Hawaii courts in process "[hjaving part because been a particular comparable practical problem face a judge that wholly cannot ... disin- respect adjudication disciplinary terested accused”). acquittal in the conviction or of those cases. course, concurring suggests 25. appellate opinion may, Of that our under its supervisory powers, practice presents reassign current en banc also the case trouble- on re- analog. judge, mand to a some However, op. different Concurring trial if it at determines 131-33. under the circumstances of wholly the case that that allow- circumstance is different ing the same poses rehear the case the one with which we are now confront- See, unacceptable e.g., risk of banc, bias. Smith v. ed. When a circuit court en sits the court Mulvaney, (9th Cir.1987). 827 F.2d issue, just original rehears the case at as the of a court will be sub- above, biased decision I can discussed the reasons For ject review.26 show more must Partington agree that fact that than the discipli Ill the merits

Court is biased agree I Nor can proceeding. nary RECUSAL the exist to establish Partington has failed concluding will be In opinion, my In that bias. ence of impartial bring his claims before an able State prior determination court’s tribunal, not determine majority does provided ineffective Clarke the Hawaii Su- justices whether support to the “give[] fair would assistance matter, have, practical preme Court may prevent of mind that a bent charge of claim; nor does it consider prejudged his judgment.” impartiality of impede disciplinary proceedings before whether Haldeman, F.2d States United give requisite ap- justices those denied, (D.C.Cir.1976), cert. op. impartiality. Majority pearance of (1977). L.Ed.2d 250 Rather, its conclusion is based us to “be Supreme Court has warned Partington’s supposed ability to entirely on may possibilities of bias alert to the under Haw.Rev.Stat. the recusal obtain procedures actu way particular lurk in the 601-7(b) (1985) justices of all five of the § Withrow, 421 U.S. practice.” ally work Majority op. court.27 at 126-28. majority fails at 1468. The short, majority appears to assume that nature of the sufficiently the to consider sitting group judges other than the some pro in Rule 13 determination triggering justices Parting- hear supreme court will shrift to the ceedings, gives thus short again majority does ton’s case. Once the rule problem prejudgment very real is, involved, legal issue that not discuss the Supreme has held presents. The Court applica- recusal statute is whether Hawaii’s that, agency is if a state administrative asserts, here; simply this time it ex ble biased, inappropri is Younger abstention cathedra, that it is. review, novo “judicial if state de ate even of the otherwise, forthcoming provides the law for recusal would be at Hawaii necessary.” Haw. proceedings.” court the administrative entire close of “[w]hen face, this lan- On its Gibson, Rev.Stat. 602-10. U.S. § support majori- omitted). would seem to (footnote guage conclusion The same gen- here, statutes are where, ty’s position. But recusal holds true a fortiori not, attorney complaints about miscon- may. judges to receive panel The en banc do as the Supreme is re- Court under Rule 13 an initial determination Hawaii duct. It then makes do, complex quired of fact and attorney disciplined decide a issue an should be whether already the court has reached a law on which at 2518. If the conduct. 102 S.Ct. unethical prac- prior in a case. The determination disciplinary action final determines that Committee rehearing pending granting case a in a tice of poses warranted, presentment prepares a for the is by problems presented a none of the court Disciplinary Id. at 2518-19. Review Board. requiring party decision an a to submit to it for discipli- what Review Board then decides already rendered a which the court has issue on action, nary any, The New is warranted. if party. adverse to that final decision Jersey Supreme Court's involvement with first proceedings is when it reviews the Review majority opinion 26. contends Hawaii’s Id. at Board’s decision. disciplinary procedure "strikingly Rule 13 Jersey proceed- disciplinary to the New similar” ing Partington’s Although majority refers to held, Supreme Court in Middlesex which the ability members of seek recusal of “certain County Ethics Committee v. Garden State Bar Ass’n., may personally Supreme Court [who] 73 L.Ed.2d (1982), charged attorney finding provided their a him ... virtue of biased Clarke," adequate opportunity constitutional to raise his counsel in State v. of ineffectiveness of However, Majority any op. added), claims. "similarity” at 121. op. (emphasis opin- Majority at 127 systems between the two is at most justices of the found ion in Clarke shows that all superficial, in event irrelevant to the Partington’s was ineffective. ER assistance question prejudgment. 158-59. Jersey attorney disciplinary Under the New system, a local Committee is authorized Ethics Supreme ceeding, Rule 13 vests the Hawaii to claims of bias individ erally addressed is, cases, alleged problem authority to make the sub- Court with ual part some or all of the sequent ineffectiveness determination bias arising peculiar from the facts of justices disciplinary proceedings. group case or of related individual noted, already majority contends As Wolfram, Legal Modern Eth cases. C.Cf. Supreme recusal of all of the Hawaii (discussion (1986) disqualifica ics justices will solve whatever bias or Court or bias contains for interest judges tion of Partington may prejudgment problem face. than types of bias other no mention However, majority’s “solution” would individual). presents very differ Rule 13 only. It apply case usually un addressed problem than ent require every would the recusal of member 13, pre Under Rule statutes. der recusal every which supreme court case case, exceptional aris not the judgment is supreme was initiated because the court circumstances. unusual ing only under triggering had made or affirmed the inef- Rather, the conflict finding. fectiveness All such cases would confronted with Part- justices are sitting by judges be heard who are not result of the ington’s case is the inevitable members of the Hawaii Court. That structure way the rule is structured. procedure directly Such a would be con- prejudgment will be endemic ensures that system trary disciplinary the Hawaii being Far disciplinary cases. enacted, discipli- actually during particular random occurrence nary system contemplates a final in proceeding, prejudgment is the Rule 13 supreme court in determination all stitutional norm. majority’s cases. The assertion that Rule Under applicable simply recusal statute is here is the final determination in all Court makes incompatible language intent with the proceedings disciplinary as to whether an Rule 13. attorney provided ineffective assistance of system easily A Rule 13 could have been triggers The event that the Rule counsel. supreme devised under which the determination, is a made in make of ineffec- the determination proceeding, a criminal disciplinary in tive assistance of counsel appellate intermediate court or the court or proceeding original finding if of inef- the attorney provide

both that the did in fact unap- in fectiveness had been made supreme ineffective assistance.28 The pealed appel- the intermediate decision of may court have been the first court to court, appellate late and the intermediate in make that determination the criminal disciplinary make the determi- proceeding may court would or it have affirmed the originated finding supreme nation if the court had of the intermediate court.29 Wher- finding.30 ineffective assistance ever or however the determination of inef- the earlier pro- chose not to fectiveness was made the criminal But the Hawaii Court by Disciplinary proceedings proceeding the not reviewed 28. are instituted when- decision is court, ever such a determination is made and supreme the crim- the no due issue is Haw.Sup.Ct.R. 13. inal is reversed. conviction presented by provisions the of Rule 13. Conceivably, in rare instances the reversal of a ground conviction on the of ineffective assist- appellate intermediate court had made 30.If originate ance of counsel could in the trial finding ineffectiveness Ha- the initial However, cases, court. reasonable such there is still a affirmed, Court had neither waii possibility that the determination justices appellate supreme court court nor the (or reversed) subsequently by be will affirmed proceed- judges participated criminal who court, appellate supreme the intermediate ings disciplinary case. could be involved in the court, Accordingly, or both. there is no need to However, judges appellate court as other active separately, they consider these cases are justices, supreme retired court well as retired subsumed within the discussion contained in judges, cir- appellate or active or retired court the text. eligible, judges be if authorized cuit court would course, appellate 29. Of where the intermediate by Rule a revised court makes the determination the criminal proper Instead, recusal statute.32 it chose to Hawaii’s system. such enact the rule and would be invalidate final of whether course make itself assist- to reen- permit ineffective the Hawaii attorney provided had it had in which that does not offend cases—those act a version in all ance determination process. the earlier or affirmed made ineffective attorney was in fact interme- only in which as those

well IV a de- made such appellate court had diate CONCLUSION provides explicitly Rule 13 termination. adjudi- proceeding be disciplinary that the pre Certainly, judges are entitled to a court, appel- supreme cated bias, sumption absence see Schweiker supreme court or retired judges court late McClure, If, adopted it Rule when justices. (1982), 72 L.Ed.2d as well intended that Supreme Court had Withrow, honesty. integrity one su- judges court or retired intermediate They are 421 U.S. at S.Ct. at discipli- adjudicate the justices court preme they presumption to a will also entitled initiated which had been nary proceedings duty unswayed by parti their to “be follow finding supreme of a made because interests, clamor, public fear of criti san court, have included certainly it would 8.5(a)(5), incorporat cism.” Haw.S.Ct.R. of the that effect in the text provision to Conduct, of Judicial Canon ing Code rule.31 not, presumption “does 3(A)(1). But such a course, preclude a from determin Supreme of court clear that It is special facts and circumstanc ing intend statute did not the recusal case that the risk Partington’s, present in the before it in cases such as es applicable be intolerably high.” With to such of unfairness application the statute because row, This 95 S.Ct. at 1470. precisely do what the court eases would Rule just 13. It such a case. Under to do when enacted Rule refused Supreme Court be called proceedings Hawaii would require disciplinary Partington ren by the determine whether upon to arising out of reversals ordered counsel, court, de ineffective assistance of supreme or out of cases which dered it has deter by spite previously fact that upheld a reversal ordered conviction, court, mined, reversing adjudicated group of a murder by a a lower precisely that. While I have no are not that he did judges who active members Su majority attempting justices of the Hawaii errs in doubt court. preme attempt comply by presuming applicability Court would save Rule reason, possibility might of bias on not be reason- arise from 31. For the same it would New suggest part of individual members of the to that the court had the recusal the able Kugler an Jersey Supreme Court. Id. involved mind when it Rule statute in drafted bias, systemic expected justices bias or ac- instance of not the that it therefore retired individual 602-10, contemplates judges, present see Because Rule 13 § tive circuit Haw.Rev.Stat. here. ques- disciplinary justices those cases which result will determine the to hear the Hawaii that previ- proceedings criminal which have under from ineffective assistance of counsel tion of ously they reached the level. That court not that will all be recused that rule and significant a hearing triggering of cases constitutes far too class cases the such when pool part potential by to have been over- has been made determination by Court, the court or excluded sub silentio op- looked Supreme is available recusal not an regular procedure. Thus, Kugler inapplicable. from the In is tion here. addition, plaintiffs court has held that a this proce- Supreme ability disqualification Court to utilize state 32. The has held failure making protect pro- prevent a determina- is due will us from to seek recusal sufficient to dures exception Kugler Helfant, to requirements. his case fits the bias cess v. 421 tion whether Nevada, 117, 130-31, 1524, 1533-34, Younger. Flangas 655 v. State Bar 44 L.Ed.2d Cir.1981). However, (9th (1975). Flangas, Kugler, In af- 15 Court F.2d 950 Kugler, instance of the district of a com- involved individual firmed court's dismissal like plaint Younger, emphasizing state statute was clear- on the basis of that to which the recusal bias ly applicable. problem recusal would solve 148 impartial, pre- to be risk of SANCTIONS duty

their part on the the court is judgment too agree majority While I with the that So, too, is the courts great. price Chang sanctions Gedan are failing preserve ap- for pay I appropriate, agree cannot that Rule 11 is justice. pearance of proper imposing basis for them. Certain ly, Rule 11 was not the the Seventh basis suggestion Parting- majority’s upon Cos., Circuit v. relied Meeks Jewel arguments present now his ton must Inc., (7th Cir.1988), 845 F.2d prejudged has the merits of tribunal that majority precedent case the cites as for its disciplinary proceedings because he has Chang sanctioning The Sev Gedan. is that the tribunal biased on the shown abundantly enth has made Circuit it clear biased, it is misconceives issue of whether apply that Rule 11 does not abstention. has law of See, appeals. e.g., before courts of Leigh that he need in order to shown all show Cir.1988), (7th Engle, v. 858 F.2d 370 n. 5 injunction obtain a federal has—he — denied, U.S. -, rt. ce 1528, pre- shown the state tribunal (1989); Borowski v. judged disciplinary pro- the merits of the Inc., (7th DePuy, 850 F.2d 306 n. 6 577-78, Gibson, ceedings. Cir.1988); Hays Corp. America, Sony legal practical 1697. I see S.Ct. at no (7th Cir.1988). 847 F.2d forcing Partington reason for to first majority attempts prob avoid this present claims to the Hawaii that, by stating lem unlike the Seventh Court. Circuit, adopted this circuit has Rule 11 for Although majority posits recusal of proceedings However, before this court. justices possible all of the as a solution to majority, cases cited In re Moo problem, (9th prejudgment sup- offers ney, Cir.1988); no 841 F.2d port assumption gen- Corp. for the that Hawaii’s Rockwell International Credit United fact, Group, States Insurance applicable. eral recusal statute is Aircraft (9th Cir.1987); 823 F.2d and In compels of Rule 13 structure the con- Curl, (9th Cir.1986), re F.2d remedy simply clusion this not avail- properly analyzed, when do stand for Rule explicitly requires able here. Rather, this proposition. broad in each of adjudicate the Hawaii all cases, objectionable these conduct for rule, arising under cases not that the attorney which the was sanctioned oc entirely determination be made dif- Here, curred in the district court.34 in con judges ferent group whenever the initial trast, place sanctionable conduct took determination was made or affirmed exclusively appeals: in the court Chang supreme court. filed a Gedan frivolous motion for reasons, For these against Partington sanctions for bringing simply provide cannot said appeal. I do not that we believe can Partington with an unbiased forum insofar adopt properly appellate Rule 11 pro disciplinary proceedings as the are con- ceedings through the of our exercise deci Accordingly, cerned. Younger abstention making applica sion function. Rule is inappropriate.33 I would reverse the dis- ble to actions taken in the district courts trict court’s decision and remand the case courts, bankruptcy In re Akros to that enjoin instructions to Installations, Inc., 834 F.2d proceedings. (9th Cir.1987); Rule 13 81(a)(1), Fed.R.Civ.P. or the 33. applied Because prosecuting attorneys Court is biased need not be above, explained for the reasons it is not neces- attorneys). well as to defense sary to decide whether it is also biased as to Partington's equal protection claim. Neverthe- ambiguous, 34. While In re Curl is at best less, April 1987 letter to appears principal attorney conduct strongly suggests Chief Justice that the Court filing was sanctioned for in that was the case prejudged that issue as well. See note 11 appeal. district court a frivolous notice of supra (stating ER reasons that Rule 13 Borowski; Leigh; appeals. courts to Rule rule similar or identical If a

Hays. appel- applicable to federal made 11 is to be generally, an amendment late courts will Appellate Procedure Rules of Federal hand, If, other required. be that our court should court believes of this ourselves, he should a rule for adopt such Advisory Rules Committee on request our However, extend even if we could to act. appellate proceedings, it would Rule 11 to litigation to do so. satellite be unwise can- inviting is we not worth would dle. course, question of this still leaves the

Of imposition for proper basis our what Chang should against and Gedan sanctions did clear what Meeks not make be. While upon to relied basis the Seventh Circuit sanctions, options grant there are several 46(c); Fed.R.App.P. to us: available 1927; powers. or our inherent U.S.C. § serve to Unwarranted sanctions motions unnecessarily multiply proceedings opponent. I believe harass one’s Because Chang filing and Gedan’s of a motion bring- sanctions for appeal was and vexa- ing this unreasonable tious, impose pursuant I sanctions 1927.

28 U.S.C. § EICHMAN, Adrian C. Plaintiff-Appellant, CORPORATION, a FOTOMAT Corporation, Delaware Defendant-Appellee.

No. 87-6532. Appeals, States Court United Ninth Circuit. Argued and Submitted Nov. Decided March Rehearing Amended on As Denial of Rehearing En July Banc

Case Details

Case Name: Earle A. Partington v. Joseph M. Gedan Howard T. Chang

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 12, 1989

Citation: 880 F.2d 116

Docket Number: 87-2375

Court Abbreviation: 9th Cir.