Lead Opinion
Attorney Partington filed suit pursuant to 42 U.S.C. § 1983 in the United States District Court, alleging that enforcement of Hawaii Supreme Court Rule 13 against him violated the first, fifth, sixth, and fourteenth amendments to the United States Constitution. He sought a declaratory judgment stating that Rule 13 violated these constitutional provisions and an injunction barring any further proceedings against him pursuant to Rule 13. The district court concluded that abstention under Younger v. Harris,
I
The Hawaii trial court appointed Parting-ton as trial counsel for Clarke. The State had charged Clarke with brutally murdering the three-year-old daughter of his live-in girlfriend. Partington represented Clarke at trial. Clarke was convicted of murder and sentenced to life in prison.
Partington’s appointment as counsel for Clarke continued on appeal. Clarke raised numerous contentions, but did not allege ineffective assistance of trial counsel.
During oral argument before the Hawaii Supreme Court on Clarke’s criminal appeal, some Justices sua sponte raised the issue of ineffective assistance of trial counsel. The Hawaii Supreme Court subsequently reversed Clarke’s conviction. Without addressing the numerous arguments made in Clarke’s brief, the court declared that Part-ington rendered ineffective assistance during trial. The court based this conclusion on the following: (1) Partington refused to make an opening statement; (2) he refused to cross-examine the mother of the victim ostensibly because the State did not make certain records concerning the witness available to him; (3) he subsequently refused to call the mother after receiving the records; (4) he elicited testimony from two State witnesses that they believed Clarke was guilty; and (5) he refused to make a closing argument. The Hawaii Supreme Court’s opinion concluded: “We remind both counsel of their obligations under [Hawaii Supreme Court Rule] 13 once a judgment on appeal has been issued by us in this case.”
Hawaii Supreme Court Rule 13
In accordance with Rule 13, on February 3, 1986, the Hawaii Supreme Court appointed Gedan as the special master. On February 7, 1986, Gedan notified Partington that he had forty-five days to submit an answer “showing cause why corrective action as provided for in Rule 13 should not be taken by the Supreme Court.” On March 27, 1986, Partington filed an answer in accordance with the Rule. Without waiving any constitutional challenges, Partington’s answer stated that he based all of his trial decisions on certain tactics, but that he could not explain his tactical choices because his client at trial, Clarke, refused to waive the attorney-client privilege.
Gedan did not appoint a special prosecutor within five days of receiving the answer as provided in Rule 13; however, on August 13, 1986, Gedan appointed Chang as the special prosecutor. Notwithstanding the time schedule set forth in Rule 13, the record does not reflect that the parties engaged in discovery during the forty-five day period as provided in the Rule or that the special master set the matter for a hearing within thirty days of the close of the discovery period.
On March 9, 1987, Partington filed a complaint under 42 U.S.C. § 1983 in the United States District Court for the District of Hawaii, naming Gedan and Chang as defendants. He alleged that the conduct of Gedan and Chang pursuant to Rule 13 deprived and continue to deprive him of rights under the free speech clause of the first amendment, the due process clause of the fifth and fourteenth amendments, the right to counsel clause of the sixth amendment, and the equal protection clause of the fourteenth amendment. The complaint sought (1) an injunction prohibiting Gedan and Chang from proceeding against Part-ington pursuant to Rule 13, (2) a declarato
On July 1, 1987, the district court granted the Defense Lawyers’ motion to file the amicus brief, granted the motion of Gedan and Chang to dismiss the complaint, and denied Partington’s motion for summary judgment. The district court concluded that Younger abstention, as interpreted and applied in Middlesex County Ethics Committee v. Garden State Bar Association,
II
Ordinarily, the dismissal of a complaint without the dismissal of the underlying action is not considered an appealable final order under 28 U.S.C. § 1291. See Allen v. Veterans Administration,
There is another reason why we may accept jurisdiction over this appeal. We have held that where Younger abstention is applicable, “a district court must dismiss the action.” World Famous Drinking Emporium, Inc. v. City of Tempe,
That brings us to our standard of review. When the district court, pursuant to the authority of Railroad Commission v. Pullman Co.,
Although abstention is the exception, not the rule, see World Famous Drinking Emporium,
A.
In applying the Younger doctrine, federal courts must examine (1) the nature of the state proceedings in order to determine whether the proceedings implicate important state interests, (2) the timing of the request for federal relief in order to determine whether there are ongoing state proceedings, and (3) the ability of the federal plaintiff to litigate its federal constitutional claims in the state proceedings. See Middlesex,
1.
Younger by its own terms requires federal courts to abstain from interfering in state criminal proceedings absent exceptional circumstances. See
Recognizing that “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved,” the Supreme Court proceeded to review the New Jersey State Bar disciplinary proceedings in light of the three requirements for abstention under Younger. Id. at 432,
The Rule 13 disciplinary proceeding initiated against Partington in Hawaii is strikingly similar to the New Jersey disciplinary proceedings at issue in Middlesex. Both proceedings are conducted by an ethics committee or its analogue, a special master, id. at 434 n. 13,
2.
Under the third prong of the test for Younger abstention, federal abstention is inappropriate unless the plaintiff is afforded the opportunity in the ongoing state proceedings to raise his constitutional claims “and have [those claims] timely decided by a competent state tribunal.” Gibson,
First, he maintains that the attorney-client privilege procedurally bars him from disputing the Hawaii Supreme Court’s finding of ineffectiveness of counsel, thereby depriving him of an opportunity to raise his federal constitutional claims during his Rule 13 proceedings. If a federal plaintiff cannot raise his federal claim in the state proceedings because state procedures do not afford him the opportunity to do so, then abstention is not appropriate. See, e.g., Gerstein v. Pugh,
Partington bears the burden of showing “ ‘that state procedural law bar[s] presentation of [his] claims.’ ” Pennzoil,
Partington has not met his burden. He does not explain how this alleged procedural bar prevents him from presenting his first, fifth, sixth, and fourteenth amendment claims in the Rule 13 proceedings. Nor has Partington unambiguously shown that Hawaii’s “self-defense exception” to the attorney-client privilege, see DR 4-101(C)(4), only applies when a client attacks his attorney’s conduct. Cf ABA/BNA Lawyer’s Manual on Professional Conduct, Disclosure: Attorney’s Benefit, at 55:701, 703, 706-08(BNA) (Nov. 11, 1987) (discussing cases where the privilege does not apply even though the client is not attacking the attorney’s conduct). In any event, Partington “should first set up and rely upon [this procedural] defense in the [Hawaii] state courts.” Younger,
Second, Partington argues that the third prong for abstention is not met in this case because both the special master and the Hawaii Supreme Court are biased against him. In Gibson, the Supreme Court recognized that if the federal plaintiff can establish that either the state administrative tribunal or the state court is not “competent” because of bias, then abstention is not appropriate. See
In claiming bias, Partington must overcome the presumption that the special master and the Hawaii Supreme Court are unbiased. See Schweiker v. McClure,
In support of his claim of judicial bias, Partington relies on Withrow v. Larkin,
The Supreme Court reversed the preliminary injunction, concluding that it was “quite unlikely” that the physician would ultimately prevail on his procedural due process challenge. Id. at 46,
must overcome a presumption of honesty and integrity in those serving as adjudicators; and [he] must convince [the court] that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.
Id. In repudiating the appellant’s claim of presumptive bias, the Court observed that when an appellate court reverses an administrative law judge or a lower court judge, procedural due process does not mandate that a new judge retry the case. Id. at 48-49,
Partington argues that Withrow stands for the proposition that bias is established where the accusatory finding is incompatible with any adjudicative finding. He relies on the statement from Withrow that “if the initial view of the facts based on the evidence derived from nonadversarial processes as a practical or legal matter foreclose^] fair and effective consideration at a subsequent adversary hearing leading to ultimate decision, a substantial due process question would be raised.” Id. at 58,
Under the third prong of Younger, Part-ington must demonstrate that he would not have an adequate opportunity to litigate his federal constitutional claims — in this case, as he argues, before a competent and unbiased state adjudicator. Middlesex,
Moreover, we conclude that Partington has not demonstrated under Withrow that, as a practical or legal matter, the special master or the Hawaii Supreme Court is bound by State v. Clarke or has prejudged the ineffectiveness issue. Cf. Vanelli v. Reynolds School District No. 7,
The Hawaii Supreme Court’s initial determination of ineffectiveness will apparently not have collateral estoppel effect in the Rule 13 proceedings. See Santos v. State Department of Transportation,
B.
Even if the necessary three predicates exist, however, Younger abstention will not be appropriate if the federal plaintiff can establish (1) that the state proceedings are being undertaken in bad faith or for purposes of harassment or (2) that some other “extraordinary circumstances” exist, such as proceedings pursuant to a “flagrantly” unconstitutional statute. See, e.g., Younger,
1.
The scope of Younger’s bad faith exception is not clear. Although the Court in Younger and its progeny has continuously recognized that abstention would not be required if a federal plaintiff could establish that the state court proceedings were instituted in bad faith, the Court has never actually applied the exception. Federal circuit courts, however, have occasionally found the “bad faith” exception applicable. See, e.g., Rowe v. Griffin,
2.
Because “[t]he very nature of ‘extraordinary circumstances’ ... makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings," see Kugler v. Helfant,
The exception clearly recognizes, however, that a federal court need not abstain when faced with a flagrantly unconstitutional statute. See Younger,
Partington argues that Rule 13 flagrantly violates the first amendment, procedural due process, and the equal protection clause of the fourteenth amendment on its face and as applied. We have examined the arguments that Partington makes in challenging Rule 13. He has certainly raised some colorable constitutional arguments. Nonetheless, he has failed to demonstrate that Rule 13 is “ ‘patently viola-tive of express constitutional prohibitions in every clause, sentence, and paragraph, and in whatever manner and against whomever an effort might be made to apply it.’ ” Younger,
IV
Partington also contends that the Hawaii Supreme Court’s decision in State v. Clarke (1) violated the first amendment because the decision had a chilling effect on his ability to hold himself out as a competent counsel, (2) violated the fifth and fourteenth amendment because the decision deprived him of a liberty and property interest in his reputation without due process of law, and (3) violated the sixth amendment which he argues “necessarily includes a corresponding right of a criminal defense attorney to practice his profession without unreasonable hindrances.” Partington believes that both the fifth amendment and the sixth amendment require courts to grant a “pre-deprivation” hearing to all defense counsel alleged to have rendered ineffective assistance and that the Hawaii Supreme Court, in deciding State v. Clarke, did not comply with these constitutional requirements. Partington argues that the special master lacks the power to analyze these issues or to undo these constitutional harms and that it is unreasonable to believe that the Hawaii Supreme Court will analyze these issues or undo these harms; therefore, abstention is not appropriate. Accordingly, Partington requests a declaratory judgment stating that in rendering its decision in State v. Clarke and concluding that Partington rendered ineffective assistance of counsel, the Hawaii Supreme Court violated the first, fifth, and sixth amendments.
The district court did not expressly address any of these arguments or the requested declaratory relief regarding the Hawaii Supreme Court’s decision in State v. Clarke. At oral argument, we expressed doubt whether Partington presented these constitutional challenges in the district court concerning the manner and the effect of the Hawaii Supreme Court’s decision in State v. Clarke. We pointed out that the prayer for relief in Parting-ton’s complaint did not request a declaratory judgment that in rendering its decision in State v. Clarke the Hawaii Supreme Court violated the first, fifth, and sixth amendments. Rather, the complaint states that because of the defendants’ action he “is entitled to ... [a] declaratory judgment that HSCR 13 as applied to Plaintiff is unconstitutional.” At oral argument, Partington contended that his request for declaratory relief in the context of Rule 13 included the first, fifth, and sixth amendment challenges to the Hawaii Supreme Court’s decision in State v. Clarke. He claims that he couched his request for relief in terms of Rule 13 because the Hawaii Supreme Court’s decision in State v. Clarke was the “first step” under Rule 13. He argued that even if his complaint was not totally clear on the requested relief, his brief in the district court made his argument concerning the Hawaii Supreme Court’s decision in State v. Clarke clear.
Gedan and Chang denied that Partington had presented this challenge in the district court. They contend not only that it would be inappropriate to allow Partington to bypass the district court, but also that such an attack on State v. Clarke implicates the Rooker-Feldman doctrine forbidding lower federal courts to sit in direct review of state court judgments. See District of Columbia Court of Appeals v. Feldman,
We have reviewed Partington’s complaint and the brief he submitted to the district court. Although we might be able to read Partington’s rather unclear brief as contesting the constitutionality of the Hawaii Supreme Court’s decisionmaking process in State v. Clarke, his complaint merely sought declaratory and injunctive relief against the defendants — Gedan and Chang —involved in the Rule 13 proceedings. Thus, the lack of clarity in his brief and the wording of his complaint lead us to conclude that he did not clearly raise the issue in the district court.
We decline to review on this appeal Part-ington’s attack on the Hawaii Supreme Court’s decisionmaking process and judgment in State v. Clarke. The arguments implicate the Rooker-Feldman doctrine and neither party has briefed this significant issue. Cf. Worldwide Church of God,
V
Gedan and Chang requested costs and attorneys’ fees pursuant to Fed.R.App. P. 38. Under Rule 38, we may award fees and single or double costs “when the result is obvious and the arguments on appeal wholly lack merit.” McCarthy v. Mayo,
In response to this request for costs and attorneys’ fees, Partington requested sanctions pursuant to Fed.R.Civ.P. 11 against Gedan and Chang for their request for costs and attorneys’ fees. The Defense Lawyers joined Partington’s request for sanctions.
We have power to sanction Gedan and Chang pursuant to Rule 11. In re Mooney,
The Seventh Circuit’s discussion of a request for sanctions under Fed.R.App.P. 38 is particularly appropriate. The court limited its opinion to the defendant’s request for attorney’s fees under Rule 38. The court stated:
The plaintiff's appeal, although not meritorious, is plainly not frivolous; it is the defendant’s request for Rule 38 sanctions that is frivolous. We are troubled by the frequency with which lawyers in this court, whether representing appellants or appellees, are including in their briefs groundless requests for Rule 38 sanctions. The attitude seems to be, it can’t hurt to ask. It can. Any frivolous motion, pleading, or request is subject to sanctions, including a motion or request for sanctions. In re Central Ice Cream Co.,836 F.2d 1068 , 1074 (7th Cir.1987). We remind the bar that sanctions will be forthcoming if counsel routinely request Rule 38 sanctions without careful investigation to determine that the appeal or defense sought to be sanctioned is indeedfrivolous. See also Aircraft Trading & Services, Inc. v. Braniff Inc., 819 F.2d 1227 , 1236 (2d Cir.1987).
Meeks v. Jewel Co.,
Far from being frivolous, Partington’s and the Defense Lawyers’s arguments that Middlesex did not compel abstention were excellent, although not ultimately meritorious. The arguments required us to examine closely the Rule 13 proceedings and interpret whether Partington would be able to raise his serious constitutional challenges to Rule 13 in the Rule 13 proceedings before the special master and, if necessary, on appeal to the Hawaii Supreme Court. Moreover, we fully expect that the special master and the Hawaii Supreme Court will examine carefully and seriously Partington’s allegations that Rule 13 violates the first amendment free speech clause as incorporated by the fourteenth amendment, the fifth amendment guarantee of procedural due process as incorporated by the fourteenth amendment, and the fourteenth amendment equal protection clause, both on its face and as applied. All of these issues are important and will require careful and detailed examination. To charge that these issues are frivolous is surprising — to claim Rule 38 sanctions for Partington’s bringing them to our attention is the vice described by the Seventh Circuit in Meeks.
We deny the request by Gedan and Chang for Rule 38 sanctions and grant the Rule 11 request by Partington and the Defense Lawyers. We order Gedan and Chang to pay Partington’s and the Defense Lawyers’ costs and attorneys’ fees incurred in responding to the motion for Rule 38 sanctions. The district court is instructed to determine the amount of the sanction.
AFFIRMED.
Notes
. Haw.Sup.Ct.R. 13 provides:
PROCEEDINGS FOLLOWING FINAL ADJUDICATION OF INEFFECTIVE ASSISTANCE OF COUNSEL IN CRIMINAL CASES.
Whenever the conviction of a criminal defendant has been overturned and a new trial ordered because of a finding that the defendant had ineffective assistance of counsel in the proceedings against him or her, and the order has become final, either because it was not appealed, or because it has been finally affirmed on appeal, it shall be the duty of the prosecutor and the counsel for the individual defendant each within five days of the finality of such order to file a certificate in the title of the cause with the Supreme Court of Hawaii noting that such an order has been entered and attaching a copy of that order to the certificate.
Within five days of the first receipt of such a certificate by the supreme court, the chief justice shall appoint a special master to determine whether action against the counsel alleged to have been incompetent is warranted.
Within five days from his appointment, the special master shall mail a notice of his appointment together with a copy of the order of his appointment, the certificate or certificates, and the order reversing the conviction to the respondent attorney at his last known address as shown in the records of the clerk of the Supreme Court of Hawaii.
Within 45 days from mailing, the respondent attorney shall file with the clerk of the supreme court an answer showing cause why corrective action as provided herein should not be taken by the supreme court. If the respondent attorney wishes to disqualify the special master, he shall file with his return a motion therefore supported by an affidavit made upon personal knowledge and showing facts sufficient to establish the personal bias and prejudice of the special master toward him.
If a motion for disqualification is filed, the master shall rule on the same within five days from the date of filing. That ruling shall be appealable only after an order in the proceedings as hereinbelow set forth has been entered.
The master shall within five days after receipt of the answer of the respondent appoint an attorney to further prosecute the proceedings and shall give notice of the appointment to the respondent attorney in the same manner as provided above.
The respondent attorney may represent himself or may designate an attorney to represent himself. The respondent or his attorney and the attorney appointed by the master shall have 45 days from the appointment of the attorney by the master to conduct any discovery proceedings in accordance with the discovery chapter of the Hawaii Rules of Civil Procedure. On the expiration of the 45 days, the master shall set the matter for hearing within 30 days, take such evidence in accordance with the Hawaii Rules of Evidence as may be proffered by the parties, and within 10 days of the conclusion of the hearing, render a decision and an order either dismissing the proceedings or recommending corrective action against the respondent attorney.
Corrective action which may be recommended by the master and/or adjudicated by the supreme court may consist of any one or more of the following:
(1) Requiring the respondent attorney to take a prescribed course or courses of remedial education and to produce satisfactory evidence of his or her passing such courses;
(2) Suspending the respondent’s license to practice law until (1) has been complied with.
(3) In cases where the master finds that ineffective assistance of counsel may have resulted from a violation of DR 6-101 to DR 7-101, the master shall, in addition to (1) and (2), refer the matter to the Office of Disciplinary Counsel for investigation under Rule 2 of these rules. In the event of a reference under this subparagraph, the master’s finding and the reference shall be deemed confidential and shall not be disclosed except pursuant to the provisions of Rule 2.22 of these rules.
Within 20 days from the rendering of the master’s decision and proposed order, respondent or his attorney and the attorney appointed by the master to prosecute the proceedings may file exceptions with the Supreme Court of Hawaii supported by a memorandum in support thereof.
Within 40 days of the rendering of the decision and proposed order by the master, the supreme court shall enter an order either dismissing the proceedings or ordering corrective action in accordance with the guidelines set forth above.
. Disciplinary Rules, DR 4-101, Preservation of Confidences and Secrets of a Client, provides:
(A) "Confidence” refers to information protected by the attorney-client privilege under applicable law, and "secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a crime and the information necessary to prevent the crime. .
(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
(D)A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.
. The dissent suggests that we have misunderstood the third prong of the Middlesex test, the prong requiring that federal claimants have “an adequate opportunity in the state proceedings to raise constitutional challenges.”
. Relying on Gibson, the dissent suggests that the majority has misconceived "the basic rule governing abstention and biased state tribunals”
But more important, Gibson is distinguishable from the instant case. The state tribunal in Gibson was the Alabama Board of Optometry, "the statutory body with authority to issue, suspend, and revoke licenses for the practice of optometry.”
. Haw.Rev.Stat. § 601-7 provides:
(a) No person shall sit as a judge in any case in which the judge’s relative by affinity or consanguinity within the third degree is counsel, or interested either as a plaintiff or defendant, or in the issue of which the judge has, either directly or through such relative, any pecuniary interest; nor shall any person sit as a judge in any case in which the judge has been of counsel or on an appeal from any decision or judgment rendered by the judge.
(b) Whenever a party to any suit, action, or proceeding, civil or criminal, makes and files an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against the party or in favor of any opposite party to the suit, the judge shall be disqualified from proceeding therein. Every such affidavit shall state the facts and the reasons for the belief that bias or prejudice exists and shall be filed before the trial or hearing of the action or proceeding, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one affidavit; and no affidavit shall be filed unless accompanied by a certificate of counsel of record that the affidavit is made in good faith. Any judge may disqualify oneself by filing with the clerk of the court of which the judge is a judge a certificate that the judge deems oneself unable for any reason to preside with absolute impartiality in the pending suit or action.
. Haw.Rev.Stat. § 602-10 provides:
Parties shall be entitled to bring an appeal before a full court. Oral argument shall be before a full court; provided that in an appropriate case the court in its discretion may dispense with oral argument. In case of a vacancy, or if a justice of the supreme court is disqualified from sitting in any case pending before the supreme court, or is unable to attend, or is absent, or is recused or has been excused, the vacancy or the place of such justice may be temporarily filled by a circuit judge designated by the chief justice or by the appointment of a justice who has retired from the supreme court. Such retired justice chosen to serve as substitute justice shall not be actively engaged in the practice of law. A retired justice, when sitting as substitute justice, shall be compensated at a rate of pay of associate justices of the supreme court. When necessary, the court may consist of five circuit judges, so designated or five retired justices so appointed or any combination of circuit judges and retired justices. After oral argument of a case, if a vacancy arises or if for any other reason a justice is unable to continue on the case, the case may be decided or disposed of upon the concurrence of any three members of the court without filling the vacancy or the place of such justice.
. The dissent draws attention to language in the Chief Justice’s April 27, 1987, letter to Parting-ton which, the dissent suggests, indicates that the Chief Justice has prejudged Partington’s due process and equal protection claims. Dissent at p. 138 n. 8 & p. 144 n. 24. The Chief Justice is at liberty to recuse himself if his impartiality or the appearance of judicial objectivity is drawn into question.
. The dissent suggests that Rule 11 is not a proper basis for imposing sanctions against Chang and Gedan. Conceding that this court has sanctioned attorneys pursuant to Rule 11, the dissent maintains that in each case the sanctionable conduct occurred in the district court. Dissent at 35 & n. 34. The dissent is mistaken. In re Curl,
Curl’s excuses do not relieve him of responsibility for having brought an appeal that should not have been brought, for subjecting Harvester to the burden of appellate litigation, and for having put this court to the task of reading, analyzing, and judging his baseless arguments.... The brief filed by Curl was not well-grounded in fact and he had not made reasonable inquiry.
Id. (emphasis added). Contrary to the dissent's assertion, dissent at 35 n. 34, In re Curl is not ambiguous. This court sanctioned Curl for much more than filing a frivolous notice of appeal in district court; we sanctioned him for conduct occurring in the appellate court.
Concurrence Opinion
concurring:
I concur in the opinion of the court and note that the foundation of the dissent is that the Hawaii Supreme Court “is, as a matter of law, biased against Partington.” I do not find it so easy to reach the dissent’s conclusion in the light of what, in terms of current law and history, has constituted a biased tribunal. The ideal has always been an absolutely impartial judge. In practice, the ideal has been tempered by the qualification put by the old Constitution of Massachusetts which guaranteed a judge “as impartial as the common lot of humanity will admit.” Constitution of Massachusetts, Part 1, Declaration of the Rights of the Inhabitants (1780). What the common lot of humanity will admit has varied.
A leading recent case from this circuit is United States v. Conforte,
District Judge Warren J. Ferguson heard Conforte’s motion for a new trial on the grounds of the district judge’s bias and found that the district judge had not been disqualified. United States v. Conforte,
This standard, it is apparent, is such that a previous legal ruling would not constitute disqualifying bias because it is not the kind of aversion or hostility that a fair-minded person would be unable to set aside. Specifically, at a later point in the opinion, the panel held: “A judge’s view on legal issues may not serve as the basis for motions to disqualify.” Id. at 882 (citations omitted).
The history that lies behind this treatment of disqualifying prejudice as a term of art is worth reviewing. The Judiciary Act of 1789 provided that district judges should not review their own decisions on appeal to the circuit courts, but at the same time provided that Supreme Court Justices should regularly act as circuit judges and made no provision for disqualifying them from reviewing their own decisions. In 1790 Chief Justice John Jay composed a letter to be sent by the entire Supreme Court to President Washington on this problem. Jay pointed out that having once decided an issue, a justice would not be
secured against the influence of those predilections for individual opinions, and of those reluctances to relinquish sentiments publicly, though, perhaps, too hastily given, which insensibly and not unfrequently infuse into the minds of the most upright men some degree of partiality for their official and public acts.
Letter from John Jay to James Iredell (Sept. 15, 1790) (enclosing draft), reprinted in 2 G. McRee, Life and Correspondence of James Iredell (1857). Jay also alluded to the case where a justice might disqualify himself from sitting on his own decision but the public would still believe that in the decision of the Supreme Court reviewing his decision, “mutual interest had generated mutual civilities and tendernesses injurious to right.” Id. Chief Judge Jay observed that appellate cases were usually doubtful with “much appearance of reason on both sides”; it would shake the confidence of the losing litigant and the public if the court in reaching such difficult questions appeared to be biased by the pre-judgment made by one or more of its members.
It is unclear whether any other justice signed Chief Justice Jay’s letter. It was never sent. 1 J. Goebel, Jr., History of the Supreme Court of the United States, 556 (1971). The Supreme Court did not hesitate to act as a court of appeals from decisions of circuit courts made by the Justices as circuit judges. When in 1803 the practice was finally challenged by a litigant, the Court held that acquiescence in the practice prevented change. Stuart v. Laird,
It could not be much clearer that the Founders and the early Supreme Court did not believe that a judge was biased as a matter of law because he had previously ruled on the question being presented to him. Eventually by statute the practice ceased in 1891. Judiciary Act of March 3, 1891, ch. 517, 26 Stat. 826, § 3. But the problem has scarcely disappeared. It is the regular practice of the circuit courts of appeal to schedule sessions en banc in which panel members, who have previously heard the case, sit as members. The session is called a “rehearing” but the reality is that the reargument before the en banc court is a fresh hearing. Often there is new briefing and always there is new oral argument. There are always judges sitting who have never heard the ease before. At the same time the judges on the en banc panel who have heard the case the first time and decided it are not regarded as biased as a matter of law in sitting to judge this fresh appeal.
One difference exists between these practices and the case Partington presents. At least in the practices mentioned a party has had an opportunity to defend himself before the judge who ruled against him the first time, whereas Partington suffered an adverse ruling in a case where he had no possibility of defending himself. This distinction, however, is not material if the question is one of prejudice on the part of the judge. In the federal practices mentioned and in the Hawaii case the judges at
When a litigant was, for the first time, permitted to challenge a federal judge on the grounds of bias, it was on the basis of a statute enacted in 1911. The challenge could only be for “personal bias or prejudice.” Act of March 3, 1911, ch. 231, 36 Stat. 1090, § 21. Interpreting this statute, the Supreme Court said that the party seeking to disqualify the judge must “state facts which tend to show not merely adverse rulings already made, which may be right or wrong, but facts and reasons which tend to show personal bias or prejudice.” Ex Parte American Steel Barrel, Co. and Seaman,
The point could be raised that the Justices of the Hawaii Supreme Court might be prejudiced because of the publicity attending the reversal in the Clarke murder case. The fact of publicity generated by a judges’s prior ruling was considered at length in the Watergate case where the defendants included John Ehrlichman, Bob Haldeman and John Mitchell. The Court of Appeals for the District of Columbia, sitting en banc, rejected the defendants’ contention that Judge John Sirica had been biased against them because his “public image and reputation” had “become inextricably intertwined with the prosecution of the Watergate matter.” United States v. Haldeman,
Sensibilities no doubt are changing on the question of judicial bias. In 1765 Blackstone could write: “... the law will not suppose a possibility of bias or favor in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.” 3 W. Blackstone, Commentaries on the Laws of England *361. While recusal on the basis of challenge by a litigant had existed in Roman law, canon law, and early English law, it had disappeared by Blackstone’s time, id., and was permitted in federal law only in 1911. Since that turning point there have been other signs that judicial disqualification may be looked at more sharply. For example, Judge Aldrich’s decision in Perfect Parts was criticized by a
In making that decision, a Justice of the Hawaii Supreme Court will be asking, “Have I so made up my mind by my earlier ruling in the criminal case that I cannot give a fair hearing to Partington’s explanation of why he thought his strategy was appropriate?” and “Will public confidence in the courts be diminished if I, a justice who’s already found Partington to have given ineffective assistance, now sit on a case where he is defending himself against this charge?” A federal court is not in a position to anticipate how a justice of the Hawaii Supreme Court will answer those questions.
The dissent places weight on a statement in Withrow, upholding a procedure in which a later acquittal by the administrative body concerned would not be “logically inconsistent” with a prior finding of probable cause. Withrow v. Larkin,
The dissent also places emphasis on the “practical” probability of prejudice. But the dissent admits that a judge may charge an attorney with violating Fed.R.Civ.P. 11, order him to show cause, conduct a subsequent hearing, and find against him. The dissent also admits that a court may cite an attorney for contempt of court, order him to show cause, and then preside over the contempt trial and find against him. As a practical matter, the probability of a judge in these circumstances having in mind a vivid impression of the professional breach of the lawyer, and being influenced by this impression, is much greater than the probability of an appeals court, months or years after the initial decision that occasioned the reference of the lawyer to disciplinary proceedings, being still prejudiced against the lawyer. The dissent is on treacherous grounds when it argues that practical prejudice is more likely in Partington’s case than in the cases it accepts as routine judicial practice.
Judges have not been particularly good at recognizing their own biases. The major federal reforms have been made by the legislature — the elimination of Supreme Court Justices reviewing their own decisions in 1891; the introduction of recusal motions by litigants in 1911; the reasonable person test of objectivity in 1974. This history suggests the need for heightened self-scrutiny. The impartiality that “the common lot of humanity will admit” is now closer to the ideal.
Concurrence Opinion
concurring and dissenting.
I concur only in the order set forth at the end of part V of the majority opinion which awards certain costs and attorneys’ fees to Partington and the Defense Lawyers. I
I do not believe that this is one of those exceptional cases in which Younger abstention is required. See World Famous Drinking Emporium, Inc. v. City of Tempe,
The majority misconceives the third part of the Middlesex test. Bias plays no role in the application of the three-part test. Rather, bias is an entirely separate matter. Where bias exists, Younger abstention is inapplicable, regardless of whether the three-part test is met. Kugler v. Helfant,
The majority offers recusal of all of the justices of the Hawaii Supreme Court as a solution to the prejudgment problem. However, the structure of Rule 13 makes it clear that recusal of the entire court is not an available option in this case. Rule 13 was specifically designed to ensure that the justices of the supreme court would make the final determination of ineffective assistance, not a different group of judges. Re-cusal of the entire court in cases like Part-ington’s would run directly contrary to the language and intent of the rule.
My conclusion that the Hawaii Supreme Court is biased against Partington is not meant to disparage the members of the court. They are undoubtedly able individuals and are entitled to a presumption of honesty and integrity. They have no adverse pecuniary interest. Nevertheless, other “[circumstances and relationships must be considered.” In re Murchison,
In my view, we would not only be performing our duty as a federal court properly, but would be saving the Hawaii Supreme Court the expenditure of much unnecessary time and effort were we to declare Rule 13 unconstitutional now. I see little choice for the Hawaii court when Partington’s case reaches the justices. If they fail to invalidate the rule, certainly the federal courts will ultimately be required to do so.
I
RULE 13
Hawaii Supreme Court Rule 13 provides a procedure for determining whether a defense attorney should be disciplined for providing ineffective assistance of counsel. Under the rule, whenever a criminal conviction has been overturned on that ground by either the supreme court or the intermediate appellate court
II
PREJUDGMENT
Clearly, the critical feature of the Rule 13 proceedings is the determination the Hawaii Supreme Court is required to make with respect to counsel’s ineffectiveness. It must make this critical determination regardless of whether it or the intermediate appellate court made the earlier determination that counsel’s representation was ineffective, and reversed the criminal conviction on that ground. Here, we are presented with an extreme form of the Rule 13 process: the supreme court, sua sponte, raised and determined the ineffectiveness issue during the criminal proceeding; it would now be required to resolve the identical issue a second time in the disciplinary proceeding.
The majority first asserts that Younger abstention is appropriate here because “[t]he Hawaii Supreme Court has never had the opportunity to hear Partington’s argument that due process requires that he not be judged by the court after it has ruled on his performance in the criminal case.... We cannot and should not guess how the court will respond.” Majority op. at 126. Thus, the majority apparently takes the position that Partington must demonstrate not only that the Hawaii Supreme Court has prejudged the merits of the disciplinary proceeding but also that the court has prejudged the issue of whether it has prejudged the merits of that proceeding.
The majority’s argument misconceives the basic rule governing abstention and
Indeed, the parallel between Partington’s situation and the one considered by the Supreme Court in Gibson is striking. Gibson, like the present case, was a disciplinary proceeding (license revocation) before a body that was allegedly biased on the revocation issue. Thus, the licensee faced a potential due process violation. Notably, in Gibson, the Court did not inquire into whether the state licensing agency was biased on the question of the validity of the challenged statutory procedure. Rather, it considered only the question whether the agency was biased as to “the revocation of appellees’ licenses.”
The majority attempts to distinguish Gibson on the basis that “a tribunal comprised of optometrists does not have the ability to entertain constitutional claims.” Majority op. at 127 n. 4. This is not a material distinction. In deciding that Younger abstention was inappropriate, the Supreme Court did not even mention the fact that “a tribunal composed of optometrists” cannot hear constitutional claims, let alone rely on that fact (if indeed it is a fact).
Conversely, the majority asserts that Younger abstention is required here because the Hawaii Supreme Court “has the ability to entertain and resolve constitutional claims.” Majority op. at 127 n. 4. In essence, the majority appears to be contending that it is proper to force an individual to appear before a biased tribunal in a disciplinary proceeding, so long as that tribunal could conceivably avoid reaching the merits of the proceeding. My reading of Gibson leads me to the contrary conclusion. An individual can not be summoned before a biased tribunal when the primary issue before the tribunal is the very issue on which it is biased. It is fundamental that compelling an individual to present his case to a biased tribunal offends due process. Gibson,
In Gibson, the Supreme Court stated explicitly that Younger abstention is not required “simply because [state] judicial review, de novo or otherwise, would be forthcoming at the conclusion of the administrative proceedings.”
The only difference between the facts and circumstances of Gibson and those in this case (other than the distinction previously discussed) is that in Gibson, the state provided both an entirely unbiased state court review of the unconstitutional proceedings and an unbiased state court system in which to seek an injunction against the unconstitutional proceedings, while here, there is neither an entirely unbiased state forum in which Partington could seek injunctive relief before the unconstitutional proceedings are held nor one in which he could do so afterwards.
The majority’s confusion regarding abstention and bias appears to be due to its misunderstanding of the third prong of the Middlesex test. The majority consistently describes that prong as requiring that Part-ington have the ability to litigate his constitutional claims before an unbiased state adjudicator. Majority op. at 120-21, 125-26. Actually, the third prong of Middle-sex does not mention bias — because under Younger that issue is dealt with separately. The third prong requires only that Partington have “an adequate opportunity in the state proceedings to raise constitutional challenges.”
The majority dismisses the Court’s statement in Kugler that bias is a separate element by calling it dictum. Majority op. at 22 n. 3. Whatever the merits of that categorization, it seems apparent that the Court was correct when it reached its conclusion. Younger abstention is barred when, inter alia, “extraordinary circumstances” render the proceedings unfair, a concern that is independent of whether the federal court plaintiff will have an adequate opportunity in the state proceedings to raise his federal constitutional claims. Middlesex listed as examples of this rule a proceeding brought in bad faith or for purposes of harassment.
In any event, whether bias is considered separately from the three-prong Middlesex test, or whether we disregard the clear language in Kugler and consider bias to be a part of the third prong of that test, the result in this case would be the same. As previously discussed, under Gibson it is clear that bias on the merits of a discipli
The majority next concludes that the Rule 13 procedure does not present an unacceptable risk of prejudgment on the ineffectiveness issue, although it is far from clear why it reaches that conclusion.
I believe that, as a practical matter, the Hawaii Supreme Court has prejudged Part-ington’s case. At the very least, there is an intolerable risk of prejudgment. The sole reason Partington is now facing disciplinary proceedings is because in a previous proceeding the Hawaii Supreme Court, sua sponte, raised and decided, on the merits, the issue of ineffective assistance of counsel in a manner adverse to him. The issue the court previously decided is the identical issue it will now be required to address in the Rule 13 proceedings. In my view, the Hawaii Supreme Court is not, as a practical matter, an unbiased adjudicator.
There are several federal statutes which are concerned with the issue of judicial bias. See 28 U.S.C. §§ 47, 144, & 455 (1982). These statutes are premised on the simple proposition that “[a] fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison,
While we can readily identify the reasons why judicial bias cannot be tolerated, we must still determine when a judge’s previous involvement with a case creates such a risk of bias that it would be a violation of due process to allow him to be further associated with the proceedings. Two decisions help frame the issue. Prejudgment, or an unconstitutional risk of prejudgment, has been found where the contents of a speech by a judge “plainly reveale[d]” that he had, prior to the commencement of the proceedings before him, reached a conclusion as to the merits of a case that involved complex questions of fact and law. Texaco, Inc. v. Federal Trade Commission,
While Texaco and Swann provide some guidance, there are significant differences between those cases and Partington’s. The commissioner’s prejudgment in Texaco was extrajudicial; the remarks were made during a public appearance and were not based on knowledge the commissioner obtained during an official proceeding. Cf. United States v. Studley,
Although Texaco and Swann are not dis-positive, the policies which underlie them
Here, the court which will decide in the disciplinary proceeding whether Partington provided ineffective assistance of counsel is the same body that has already determined in State v. Clarke that Partington did precisely that.
The conclusion that the Hawaii Supreme Court does not qualify as an impartial body insofar as Partington’s Rule 13 proceeding is concerned finds strong support in Withrow v. Larkin,
Here, the Hawaii Supreme Court has not merely made a preliminary or accusatory finding that Partington may have rendered ineffective assistance of counsel. Rather, it has made a finding on the merits that the assistance Partington rendered was so ineffective as to require the reversal of a murder conviction. Certainly, a subsequent finding by that same court in a Rule 13 proceeding that Partington had not rendered ineffective assistance of counsel would be logically inconsistent with its pri- or finding.
The concept of “logical inconsistency”, emphasized in Withrow, helps distinguish this case from cases holding that a judge who initiated the proceedings may preside at the hearing on the merits.
At first glance, a more troublesome analogue is presented when a trial judge presides over a trial for the second time after his initial decision has been reversed on appeal. This practice does not generally create a risk of bias or prejudgment implicating due process concerns.
None of the procedures which serve to eliminate or reduce the risk of prejudgment when a trial judge rehears a case following reversal or remand are applicable in Rule 13 proceedings. Under Rule 13, there is no superior authority that will have informed the supreme court that its initial decision was incorrect prior to the time it hears the issue for the second time; no higher court will have explained to the Hawaii Supreme Court the nature of its errors in the initial proceedings or provided it with guidance as to those errors. Nor will the supreme court have had the benefit of specific instructions as to how to conduct the second proceeding. While remand to a trial court occurs because that court’s initial decision has been found to be incorrect and has been reversed, no comparable events will have occurred here. To the contrary, the disciplinary proceedings will take place here because the Hawaii Supreme Court’s determination of ineffective assistance has not been vacated or set aside by a higher court. Equally important, the supreme court’s determination in the Rule 13 proceedings will be final, with no right of appeal to a superior judicial body.
Ill
RECUSAL
In concluding that Partington will be able to bring his claims before an impartial tribunal, the majority does not determine whether the justices of the Hawaii Supreme Court have, as a practical matter, prejudged his claim; nor does it consider whether disciplinary proceedings before those justices would give the requisite appearance of impartiality. See Majority op. at 120. Rather, its conclusion is based entirely on Partington’s supposed ability to obtain the recusal under Haw.Rev.Stat. § 601-7(b) (1985) of all five of the justices of the court.
Hawaii law provides for recusal of the entire court “[w]hen necessary.” Haw. Rev.Stat. § 602-10. On its face, this language would seem to support the majority’s position. But recusal statutes are gen
Under Rule 13, the Hawaii Supreme Court makes the final determination in all disciplinary proceedings as to whether an attorney provided ineffective assistance of counsel. The event that triggers the Rule 13 proceedings is a determination, made in a criminal proceeding, by the supreme court or the intermediate appellate court or both that the attorney did in fact provide ineffective assistance.
As already noted, the majority contends that recusal of all of the Hawaii Supreme Court justices will solve whatever bias or prejudgment problem Partington may face. However, the majority’s “solution” would not apply to Partington’s case only. It would require the recusal of every member of the supreme court in every case which was initiated because the supreme court had made or affirmed the triggering ineffectiveness finding. All such cases would be heard by judges who are not sitting members of the Hawaii Supreme Court. Such a procedure would be directly contrary to the disciplinary system the Hawaii Supreme Court actually enacted, a disciplinary system which contemplates a final determination by the supreme court in all cases. The majority’s assertion that the recusal statute is applicable here is simply incompatible with the language and intent of Rule 13.
A Rule 13 system could easily have been devised under which the supreme court would make the determination of ineffective assistance of counsel in a disciplinary proceeding if the original finding of ineffectiveness had been made in an unap-pealed decision of the intermediate appellate court, and the intermediate appellate court would make the disciplinary determination if the supreme court had originated the earlier ineffective assistance finding.
It is clear that the Hawaii Supreme Court did not intend the recusal statute to be applicable in cases such as Partington’s, because application of the statute to such eases would do precisely what the court refused to do when it enacted Rule 13. It would require that disciplinary proceedings arising out of reversals ordered by the supreme court, or out of cases in which the supreme court upheld a reversal ordered by a lower court, be adjudicated by a group of judges who are not active members of the court. The majority errs in attempting to save Rule 13 by presuming the applicability of Hawaii’s recusal statute.
IV
CONCLUSION
Certainly, judges are entitled to a presumption of absence of bias, see Schweiker v. McClure,
The majority’s suggestion that Parting-ton must now present his arguments to a tribunal that has prejudged the merits of the disciplinary proceedings because he has not shown that the tribunal is biased on the issue of whether it is biased, misconceives the law of abstention. Partington has shown all that he need show in order to obtain a federal court injunction — he has shown that the state tribunal has prejudged the merits of the disciplinary proceedings. See Gibson,
Although the majority posits recusal of all of the justices as a possible solution to the prejudgment problem, it offers no support for the assumption that Hawaii’s general recusal statute is applicable. In fact, the structure of Rule 13 compels the conclusion that this remedy is simply not available here. Rule 13 explicitly requires that the Hawaii Supreme Court adjudicate all cases arising under the rule, not that the determination be made by an entirely different group of judges whenever the initial determination was made or affirmed by the supreme court.
For these reasons, the Hawaii Supreme Court simply cannot be said to provide Partington with an unbiased forum insofar as the disciplinary proceedings are concerned. Accordingly, Younger abstention is inappropriate.
SANCTIONS
While I agree with the majority that sanctions against Chang and Gedan are appropriate, I cannot agree that Rule 11 is a proper basis for imposing them. Certainly, Rule 11 was not the basis the Seventh Circuit relied upon in Meeks v. Jewel Cos., Inc.,
The majority attempts to avoid this problem by stating that, unlike the Seventh Circuit, this circuit has adopted Rule 11 for proceedings before this court. However, the cases cited by the majority, In re Mooney,
Of course, this still leaves the question of what the proper basis for our imposition of sanctions against Chang and Gedan should be. While Meeks did not make clear what basis the Seventh Circuit relied upon to grant sanctions, there are several options available to us: Fed.R.App.P. 46(c); 28 U.S.C. § 1927; or our inherent powers. Unwarranted sanctions motions serve to multiply proceedings unnecessarily and to harass one’s opponent. Because I believe that Chang and Gedan’s filing of a motion for sanctions against Partington for bringing this appeal was unreasonable and vexatious, I would impose sanctions pursuant to 28 U.S.C. § 1927.
. At the oral argument in State v. Clarke, one of the justices of the Hawaii Supreme Court accused Partington of misconduct, contending that he had been deliberately ineffective at trial. As discussed in the text, the Hawaii Supreme Court ultimately reversed Clarke’s conviction on the grounds that he received ineffective assistance from Partington.
. Subjecting Partington to disciplinary proceedings before a biased tribunal would violate his due process rights. See, e.g., Gibson v. Berryhill,
. See note 28, infra.
. See note 12, infra.
. Cf. Kugler,
. An exception exists where the state provides an alternate procedure which ensures a fair tribunal in place of the biased tribunal, e.g., by way of recusal. See Kugler v. Helfant,
. I must confess that I do not know whether the majority’s description of the powers possessed, in 1973, by the Board of Optometry under Alabama law is correct. In California until a few years ago, administrative agencies, including licensing boards, did have the power (and the duty, I believe) to make rulings on constitutional issues. This was so regardless of whether the board was an industry board or an industry-labor board, composed exclusively of laymen, or some other type of board. The Attorney-General’s office provided advice to all these boards on constitutional questions and the boards then made their rulings. Long after 1973, the voters of California adopted an initiative measure removing from all administrative boards, including those composed of lawyers, the power to declare statutes unconstitutional.
. Where state law provides that a biased judge must recuse himself, the state law does not, of course, require the individual to appear before a biased tribunal (except, possibly, in some instances for the limited purpose of filing the disqualification motion). The question of recu-sal is discussed in Section III, infra.
. I seriously doubt that, as a legal matter, a lower court, in Hawaii or elsewhere, has the authority to enjoin a proceeding before a higher court.
. In some instances, a claim of bias would be sufficient to preclude abstention, at least until the federal court has had an opportunity to resolve the factual issues relating to the claim. Here, however, there are no factual issues in dispute with respect to the alleged bias.
. It is worth noting that a letter dated April 27, 1987 to Partington from the Chief Justice, a letter the majority appears to accept as the view of the entire court, Majority op. at 126, suggests that the court has in fact prejudged the due process claim. See ER 444 (Chief Justice finds “mystifying" Partington’s contention that he could not receive an impartial hearing on the ineffectiveness claim). Surprisingly, at a later point in the majority opinion, the letter is summarily dismissed as at most reflecting the opinion of the Chief Justice. Majority op. at 128 n. 7.
.At one point, the majority argues that Part-ington has not alleged that the Hawaii Supreme Court is biased "on the primary issue ... [namely] whether corrective action is warranted [against Partington] under Rule 13.” Majority op. at 126. Any distinction between whether the court is biased "merely” on the ineffective assistance issue rather than on the corrective action issue is semantic gameplaying, at best. I find it hard to believe that anyone would suggest that a court that has prejudged the issue whether Partington rendered ineffective assistance is unbiased on the question whether he should be the subject of disciplinary action. The Hawaii Supreme Court is necessarily required to judge the issue on which it is biased before determining the appropriate remedy. Obviously, if the court were to decide the issue relating to conduct in Partington’s favor, there would be no need for it to reach the question whether corrective action is warranted.
. Partington has not demonstrated by unambiguous authority that the court is legally precluded from reconsidering its initial determination of ineffectiveness. For the purposes of our Younger analysis, we must assume that the Hawaii Supreme Court is free to reexamine its previous legal conclusion on the question of ineffective assistance. If, however, this assumption turns out to be incorrect, I do not think anyone could argue that the Rule 13 proceeding would satisfy due process.
. The question of recusal is discussed infra, section III.
. Our present Chief Justice has said that the mere fact that a judge has expressed an opinion on a purely legal question would not demonstrate bias or prejudgment. Laird v. Tatum,
. In Swann, Judge Craven applied 28 U.S.C. § 47, which explicitly forbids the practice of a judge hearing an appeal from a case which he tried. The same result has been reached through application of 28 U.S.C. § 455, which requires a judge to recuse himself to avoid the appearance of impropriety. Rice v. McKenzie,
In light of current practice, the comments in the concurring opinion on the history of the practice of the Supreme Court acting “as a court of appeals from decisions of circuit courts made by the Justices as circuit judges,” Concurring op. at 132, and specifically its discussion of Stuart v. Laird,
.The concurring opinion suggests at one point that prejudgment “must be based upon something other than rulings in the case.” Concurring op. at 133, quoting Berger v. United States,
. The majority apparently does not disagree with this suggestion. See Majority op. at 124, 126.
. None of this discussion is meant to minimize the problem of ineffective assistance of counsel for criminal defendants, nor to suggest that the Hawaii Supreme Court cannot fulfill its duty to supervise attorney conduct. Nevertheless, the Court cannot exercise its authority in a manner which violates the requirements of due process. A Rule 13 procedure can undoubtedly be devised which meets those requirements. See infra pages 146-47.
. The concurring opinion concludes that there would be "no logical inconsistency between the Supreme Court reversing the murder conviction in Clarke because of ineffective assistance of counsel and then finding that in the disciplinary proceeding against Partington he had explained his strategy so that the court was now satisfied that he had not breached his responsibilities as a lawyer.” Concurring op. at 134 (emphasis in original). The logic of this statement escapes me. If the court determines that Partington’s strategy was reasonable and that it justified his trial tactics, I do not see how it could also say that there was a sixth amendment violation. If the strategy justified the tactics, then the assistance was not ineffective.
The concurring opinion also concludes, without analysis, that the fact that the Hawaii Supreme Court has already reversed a murder conviction because the defendant received ineffective assistance from Partington does “not constitute disqualifying bias [on the part of the members of the court] because it is not the kind of aversion or hostility that a fair-minded person would be unable to set aside.” Concurring op. at 132. However, the case that it relies on, United States v. Conforte,
The only case that the concurring opinion relies on that is at all factually similar to our case is Denis v. Perfect Parts, Inc.,
. Although Judge Noonan does not disagree with the use of the “logical inconsistency” standard, he would seem to rely on each individual justice’s view as to whether he has prejudged Partington’s case. See Concurring op. at 134. This conclusion appears to be at odds with the prevailing notion that an objective standard is to be used. See, e.g., Berger v. United States,
. It is worth noting that the judge who initiates the contempt proceedings is not always permitted to preside over them. For example, if "the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent.” Fed.R.Crim.P. 42(a). See also In re Murchison,
. Of course, an appellate court may, under its supervisory powers, reassign the case on remand to a different trial judge, if it determines under the circumstances of the case that allowing the same judge to rehear the case poses an unacceptable risk of bias. See, e.g., Smith v. Mulvaney,
. The practical reality of retrying numerous cases after appeal virtually requires that, with appropriate safeguards, our judicial system allow the same judge who presided over the first trial to preside again after appeal. United States v. Harris,
. The concurring opinion suggests that our current en banc practice also presents a troublesome analog. Concurring op. at 131-33. However, that circumstance is wholly different from the one with which we are now confronted. When a circuit court sits en banc, the court rehears the case at issue, just as the original
. The majority opinion contends that Hawaii’s Rule 13 disciplinary procedure is "strikingly similar” to the New Jersey disciplinary proceeding which the Supreme Court held, in Middlesex County Ethics Committee v. Garden State Bar Ass’n.,
Under the New Jersey attorney disciplinary system, a local Ethics Committee is authorized to receive complaints about attorney misconduct. It then makes an initial determination whether an attorney should be disciplined for unethical conduct.
. Although the majority refers to Partington’s ability to seek recusal of “certain members of the Supreme Court [who] may be personally biased against him ... by virtue of their finding of ineffectiveness of counsel in State v. Clarke," Majority op. at 127 (emphasis added), the opinion in Clarke shows that all of the justices found that Partington’s assistance was ineffective. ER 158-59.
. Disciplinary proceedings are instituted whenever such a determination is made and the criminal conviction is reversed. Haw.Sup.Ct.R. 13. Conceivably, in rare instances the reversal of a conviction on the ground of ineffective assistance of counsel could originate in the trial court. However, in such cases, there is still a reasonable possibility that the determination will subsequently be affirmed (or reversed) by the intermediate appellate court, the supreme court, or both. Accordingly, there is no need to consider these cases separately, and they are subsumed within the discussion contained in the text.
. Of course, where the intermediate appellate court makes the determination in the criminal proceeding and the decision is not reviewed by the supreme court, no due process issue is presented by the provisions of Rule 13.
.If the intermediate appellate court had made the initial ineffectiveness finding and the Hawaii Supreme Court had affirmed, neither the supreme court justices nor the appellate court judges who participated in the criminal proceedings could be involved in the disciplinary case. However, other active appellate court judges as well as retired supreme court justices, retired appellate court judges, or active or retired circuit court judges would be eligible, if authorized by a revised Rule 13.
. For the same reason, it would not be reasonable to suggest that the court had the recusal statute in mind when it drafted Rule 13, and that it therefore expected retired justices or active circuit judges, see Haw.Rev.Stat. § 602-10, to hear those disciplinary cases which result from criminal proceedings which have previously reached the supreme court level. That class of cases constitutes far too significant a part of the potential pool to have been overlooked by the court or excluded sub silentio from the regular procedure.
. The Supreme Court has held that the ability to seek recusal is sufficient to protect due process requirements. Kugler v. Helfant,
. Because the Hawaii Supreme Court is biased for the reasons explained above, it is not necessary to decide whether it is also biased as to Partington's equal protection claim. Nevertheless, the April 27, 1987 letter to Partington from the Chief Justice strongly suggests that the Court has prejudged that issue as well. See note 11 supra and ER 446 (stating reasons that Rule 13 need not be applied to prosecuting attorneys as well as to defense attorneys).
. While In re Curl is at best ambiguous, it appears that the principal conduct the attorney was sanctioned for in that case was the filing in the district court of a frivolous notice of appeal.