Rosalio Munoz and Michael E. Tigar v. United States District Court for the Central District of California

I dissent.

I agree that our opinion and order require that the local rule be read as permitting admission of Tigar pro hac vice if he does not maintain an office for the practice of law in the District. However, the rule does not require his admis *436 sion, assuming eligibility; it only permits it. It seems clear to me that Judge Curtis would not admit him if he believed that the rule permitted admission. I would not compel him to do so. Will v. United States, 1967, 389 U.S. 90, 104, 107 , 88 S.Ct. 269 , 19 L.Ed.2d 305 and Hooker v. United States District Court, 9 Cir., 1967, 380 F.2d 5, 6 , make it clear that mandamus is not to be used to compel a judge to exercise his discretion in a particular way. That is what the majority is doing.

Both Munoz and Tigar maintain that Tigar is uniquely qualified in Selective Service law. I decline to weigh such a claim. The Munoz case is just another draft case of which a large number are tried in the California federal courts every year. I can and do take judicial notice that there are plenty of competent attorneys in the Central District of California whom Munoz can find to represent him and who know a great deal about draft cases.

I…

ORDER

In its opinion accompanying this Court’s order upon the original writ of mandamus, this Court held that Rule 1 (d), Rules of the District Court for the Central District of California, was ambiguous. We remanded the case to the District Court with directions to resolve the ambiguity, and we indicated that the ambiguity should be resolved in favor of the applicant.

Upon remand the District Court received evidence directed to the question whether or not the applicant “does not maintain an office in this district for the practice of law.” The District Court did not resolve that issue. Instead, the Court decided that the rule was not ambiguous, but even if it were, the ambiguity should be resolved against the applicant. It then denied the application because the applicant was a resident of the district.

This Court did not remand the cause for the purpose of permitting the District Court to reach a construction of the rule at variance with that stated by this Court. The precatory language of the opinion about resolving the ambiguity in the applicants’ favor apparently led the District Court into overlooking our directions. Nothing in the record suggests that the District…

(dissenting) :

While it is disappointing that the entire court will not take this case en banc, I desire to point out that the panel has not held that a district court may not have a rule that forbids one from being admitted pro hac vice for a ease if the applicant has been in the State of California long enough to have qualified for admission to the California State Bar. Neither has it held that for good cause pro hac vice status may not be denied. (Judge Trask may be correct that a district judge does not have to make a record of “good cause” to reject a pro hac vice application, but I think such meaning may be implicit in the panel’s opinions of April 21, 1971.)

The majority of the panel has simply held that the present local rule does not ipso facto bar Tigar and that denial on the basis of the rule cannot stand.

(dissenting):

I join in Chief Judge Chambers’ dissent except that I disagree with the implication in it that a non-admitted attorney may not be denied pro hac vice status except for “good cause” shown of record. A non-admitted attorney may not appear by himself in a particular case except upon leave of court.

There is no rule of which I am aware that requires a judge in such a situation to make a record of “good cause” before rejecting his application. I do not un *437 derstand that the panel has announced such a rule here.

(dissenting):

I think Judge Duniway’s dissent to the order of April 21, 1971, was correct.

I join in Chief Judge Chambers’ dissent to the present order.

446 F.2d 434 Rosalio MUNOZ and Michael E. Tigar, Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent. No. 26587. United States Court of Appeals, Ninth Circuit. April 21, 1971, Rehearing Denied Aug. 9, 1971. ORDER Before DUNIWAY, ELY, and HUFSTEDLER, Circuit Judges. 1 In its opinion accompanying this Court's order upon the original writ of mandamus, this Court held that Rule 1 (d), Rules of the District Court for the Central District of California, was ambiguous. We remanded the case to the District Court with directions to resolve the ambiguity, and we indicated that the ambiguity should be resolved in favor of the applicant. 2 Upon remand the District Court received evidence directed to the question whether or not the applicant 'does not maintain an office in this district for the practice of law.' The District Court did not resolve that issue. Instead, the Court decided that the rule was not ambiguous, but even if it were, the ambiguity should be resolved against the applicant. It then denied the application because the applicant was a resident of the district. 3 This Court did not remand the cause for the purpose of permitting the…