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

880 F.2d 116 14 Fed.R.Serv.3d 1290 Earle A. PARTINGTON, Plaintiff-Appellant, v. Joseph M. GEDAN; Howard T. Chang, Defendants-Appellees. No. 87-2375. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 8, 1988. Decided March 13, 1989. Motion to Correct Opinion Granted in Part and Denied in Part April 6, 1989. As Amended April 6, 1989. As Amended on Denial of Reconsideration July 12, 1989. Earle A. Partington, Honolulu, Hawaii, for plaintiff-appellant. Susan L. Gochros, Deputy Atty. Gen., Honolulu, Hawaii, for defendants-appellees. Appeal from the United States District Court for the District of Hawaii. Before WALLACE, REINHARDT and NOONAN, Circuit Judges. WALLACE, Circuit Judge: 1 Attorney Partington filed suit pursuant to 42 U.S.C. Sec. 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…

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, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971) (Younger), was appropriate because Partington could raise these constitutional challenges in the ongoing Rule 13 proceedings. We have jurisdiction and affirm.

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. *118 During the pendency…

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, 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S. 1012 , 101 S.Ct. 568 , 66 L.Ed.2d 470 (1980). Here a panel consisting of Circuit Judges Kennedy and Tang and District Judge Palmieri considered a criminal appeal by Joseph Con-forte, the operator of a legalized house of prostitution in Nevada. The district judge who had presided at his trial had, as president of the Reno Unit of the American Contract…

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 *135 dissent from the rest of Part V and all of Parts I through IV.

I do not believe that this is one of those exceptional cases in which Younger abstention is required. See World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir.1987). Rather, I believe we should now decide that by virtue of its prior decision in State v. Clarke, the Hawaii Supreme Court is biased against Partington on the issue whether he rendered ineffective assistance of counsel and that its holding of a disciplinary hearing would violate his due process rights. After applying the three-part test from Middlesex County Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. 423, 432 , 102 S.Ct. 2515, 2521 , 73 L.Ed.2d 116 (1982), the majority concludes that Younger abstention is applicable. The majority would permit the Hawaii Supreme Court to resolve the question of its own bias. It reaches this conclusion solely on the basis of its reading of the third part of the Middlesex test. As the…