Gladstein v. McLaughlin

Decision Date08 April 1955
Docket NumberNo. 14639.,14639.
Citation230 F.2d 762
PartiesRichard GLADSTEIN, Petitioner, v. Hon. J. Frank McLAUGHLIN, as Judge of the United States District Court for the District of Hawaii, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Gladstein, Andersen, Leonard & Sibbett, I. M. Peckham, James B. Burns, Benjamin Dreyfus, San Francisco, Cal., Myer C. Symonds, O. P. Soares, Honolulu, Hawaii, for petitioner.

Louis B. Blissard, U. S. Atty., Honolulu, Hawaii, Lloyd H. Burke, U. S. Atty., Robert H. Schnacke, Asst. U. S. Atty., San Francisco, Cal., for respondent.

Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges.

DENMAN, Chief Judge.

Gladstein, an attorney practicing in this court, the District Court of Hawaii and several other district courts, petitions for a writ of mandamus or prohibition against the respondent, a federal judge of the District of Hawaii, having under consideration an order to Gladstein to show cause why the court should not disbar or suspend him from practice in that court, an order issued sua sponte by respondent. The ground of the disbarment proceeding is that Gladstein had been committed to jail for a contempt committed in the trial of United States vs. Dennis in the District Court of the Southern District of New York.

The ground of the petition here is that the respondent has no jurisdiction to entertain the disbarment proceeding because of the judge's personal bias and prejudice against Gladstein stated in his affidavit which the judge, in a hearing on its sufficiency, held insufficient. The affidavit is clearly sufficient to disqualify the district judge.

Outstanding is his order, made without any hearing on the merits of the order to show cause, but at a hearing on the sufficiency of the affidavit at which Gladstein appeared, that he be suspended from further practice in the Hawaiian district court save in the case of United States vs. Fujimoto in which Gladstein was then appearing as counsel for the defendants. This case, now pending in this court, involved the question whether the defendants were members of the Communist party seeking to overthrow by force the Government of the United States.

When Gladstein showed concern as to the effect elsewhere on his practice of this sua sponte suspension without a hearing on the merits, the judge stated, "Isn't it late for him to be thinking about it now? The consequence might have been reflected earlier by Mr. Gladstein. When he was performing in New York."

Further the judge stated concerning Gladstein's representation of clients in Hawaii that Gladstein had been "living on borrowed time, so to speak."

In the above hearing on the sufficiency of Gladstein's affidavit, Judge McLaughlin treats it as including the affidavit of former United States District Judge Metzger, in which the latter stated that Judge McLaughlin stated to him "that it was questionable if any American lawyer had a right to appear in any United States court and defend a person who was proved to be a member of the Communist Party which Party had been proved in the Dennis case to advocate and teach the overthrow of the government by force and violence; and that in making such an appearance, if the lawyer by misconduct or disrespect to the court was found to be in contempt of court, that lawyer should be disbarred from practice in every United States court of the land."

The Dennis case referred to is the one in which Gladstein was held guilty of contempt. He was then representing clients similarly accused and held guilty in the case of United States v. Fujimoto. This court in Connelly v. United States, infra, has stated the obvious duty of members of the bar to defend the accused in such cases. Equally obvious is that the finding of a contempt...

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20 cases
  • Municipal Publications, Inc. v. Snyder, 46
    • United States
    • Superior Court of Pennsylvania
    • 3 Febrero 1984
    ...in courts and proper administration of justice required that question be disposed of at earliest opportunity); Gladstein v. McLaughlin, 230 F.2d 762 (9th Cir.1955) (mandamus is proper remedy for judge's wrongful failure to recuse himself; otherwise record on appeal would be made up by judge......
  • Commonwealth of Pa. v. Local U. 542, Int. U. of Op. Eng., Civ. A. No. 71-2698.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 4 Diciembre 1974
    ...the prosecutors in the preparation of their case against the affiants. Clearly, that is not this case either. In Gladstein v. McLaughlin, 230 F.2d 762 (9th Cir. 1955), the trial judge had initiated, sua sponte, a disbarment proceeding against affiant. The latter's affidavit recited statemen......
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 9 Mayo 1958
    ...v. Harrison, 8 Cir., 1950, 185 F.2d 457, 459, and as to Connelly v. United States, Dist. Ct., supra, 191 F.2d 692, see Gladstein v. McLaughlin, 9 Cir., 1955, 230 F.2d 762, but see Pope J. at Based upon the foregoing we find that the affidavit and certificate were not timely or legally suffi......
  • Mitchell v. Sirica, 74-1492
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 7 Junio 1974
    ...States v. Ritter, 273 F.2d 30 (10th Cir. 1959), cert, denied, 362 U.S. 950, 80 S.Ct. 863, 4 L.Ed.2d 869 (1960); Gladstein v. McLaughlin, 230 F.2d 762 (9th Cir. 1955); Connelly v. United States District Court, 191 F.2d 692 (9th Cir. 1951); In re Honolulu Consol. Oil Co., 243 F. 348 (9th Cir.......
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