Flynt v. Leis, 77-3426

• Decision Date: 12 April 1978
• Docket Number: No. 77-3426,77-3426
• Citation: 574 F.2d 874
• Parties: Larry FLYNT, Hustler Magazine, Inc., Herald Price Fahringer, and Paul J. Cambria, Jr., Plaintiffs-Appellees, v. Simon L. LEIS, Jr., Prosecuting Attorney for Hamilton County, William J. Morrissey, Judge of the Court of Common Pleas; Robert S. Kraft, Judge of the Court of Common Pleas, and the Hamilton County Court of Common Pleas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 874

574 F.2d 874

Larry FLYNT, Hustler Magazine, Inc., Herald Price Fahringer, and Paul J. Cambria, Jr., Plaintiffs-Appellees, v. Simon L. LEIS, Jr., Prosecuting Attorney for Hamilton

County, William J. Morrissey, Judge of the Court of Common

Pleas; Robert S. Kraft, Judge of the Court of Common Pleas,

and the Hamilton County Court of Common Pleas, Defendants-Appellants.

No. 77-3426.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 14, 1977.

Decided April 12, 1978.

Fred J. Cartolano, William E. Breyer, Cincinnati, Ohio, for defendants-appellants.

Andrew B. Dennison, Cincinnati, Ohio, Herald Price Fahringer, Paul J. Cambria, Jr., Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N. Y., for plaintiffs-appellees.

Before LIVELY, ENGEL and MERRITT, Circuit Judges.

MERRITT, Circuit Judge.

The Court of Common Pleas of Hamilton County, Ohio, has refused to allow two out-of-state lawyers, Herald Price Fahringer and Paul J. Cambria, Jr., to appear pro hac vice (meaning "for this turn" or case) on behalf of publisher Larry Flynt and Hustler Magazine, Inc., defendants in a pending state criminal obscenity case. After an unsuccessful attempt to obtain a writ of mandamus from the Supreme Court of Ohio, the two lawyers and their clients filed a complaint in the United States District Court for the Southern District of Ohio. They alleged a violation of the Sixth and Fourteenth Amendments and claimed federal jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

The District Court concluded that the attorneys' procedural due process rights under the Fourteenth Amendment were violated because the state court failed to hold a hearing before barring the attorneys' appearance pro hac vice. The District Court issued an injunction against the judges of the Court of Common Pleas and the local prosecutor, enjoining the prosecution of Flynt and Hustler temporarily until the two attorneys are granted a due process hearing. The judges and the prosecutor appeal. They argue that under the principle of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the federal court is precluded from enjoining the state prosecution, and that the two out-of-state lawyers were, in any event, properly refused pro hac vice admission.

We hold that the lawyers' rights of procedural due process were abridged and that the federal injunctive remedy does not transgress the principles of Younger v. Harris because the lawyers do not have an adequate state remedy in the pending state court proceedings.

I. STATEMENT OF THE CASE

A. The State Court Proceedings

Flynt and Hustler Magazine were indicted on February 8, 1977, under Ohio Revised Code § 2907.31 for disseminating material harmful to juveniles. The material in question was a publication entitled "War, The Real Obscenity," containing photographs which, according to the indictment, displayed "in lurid detail the violent physical torture, dismemberment, destruction or death of a human being." On February 25, 1977, the defendants were arraigned before Judge Rupert Doan. Prior to the arraignment, counsel-of-record forms were filed with the clerk of the Court of Common Pleas designating Fahringer as counsel for the defendant Flynt, Cambria as counsel for Hustler Magazine, and Andrew B. Dennison, a member of the Ohio Bar, as counsel for both defendants. These forms were approved and ordered entered of record by Judge Doan on February 23, 1977. The Judge made the entry under local Rule 10(F), which provides that the court itself must approve and enter counsel's appearance in the case and that trial counsel may not thereafter withdraw without court permission. ¹

On March 9, 1977, Judge William J. Morrissey, to whom the case was assigned for trial, advised Dennison that Fahringer and Cambria would be stricken as counsel of record in the case. They appeared before Judge Morrissey on April 8, 1977. Without granting the lawyers a hearing, he said simply that "Mr. Fahringer and Mr. Cambria are not attorneys of record in this case and will not be permitted to try this case" and told Flynt, "you will be restricted to having an attorney that's admitted to practice in the State of Ohio." No other explanation was given.

A mandamus action was then filed in the Ohio Supreme Court, as well as an affidavit of bias and prejudice against Judge Morrissey. In a brief order the Court dismissed the mandamus action without explaining its reasons but granted the request to remove Judge Morrissey from the case. The case was reassigned for trial to Judge Robert Kraft who heard argument on whether the lawyers should be readmitted. Judge Kraft concluded that he was "bound" by the Ohio Supreme Court's decision dismissing the mandamus action and that he did not have the power to reopen the question.

B. Admissions Pro Hac Vice Under Ohio Law

The Court of Common Pleas has no rule which specifically permits pro hac vice admission of out-of-state attorneys, but Rule I, § 8(C) of the Supreme Court of Ohio Rules for the Government of the Bar of Ohio allows "participation by a nonresident of Ohio in a cause being litigated in this state when such participation is with leave of the judge hearing such cause." ² The desirability of pro hac vice admissions is also recognized by Canon 3 of Ohio's Code of Professional Responsibility which provides in part:

(T)he legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice. ³

The case law in Ohio establishes that the decision to grant special permission to appear is a matter "lying within the sound discretion of the trial court." ⁴

It is customary in Cincinnati for the Court of Common Pleas to allow out-of-state counsel to appear pro hac vice. The same two out-of-state lawyers had previously appeared as trial counsel in other cases in Judge Morrissey's court without incident, and both appear to have exemplary academic and professional qualifications, including extensive experience handling First Amendment cases in state and federal courts.

C. The Federal Court Proceedings

The two out-of-state lawyers and their clients filed a complaint in the United States District Court for the Southern District of Ohio asking for a finding that their Sixth and Fourteenth Amendment rights had been violated and for an injunction temporarily delaying the state criminal trial until after the state court held a hearing to consider pro hac vice admission of the two attorneys.

The District Court found that the state court routinely admitted out-of-state lawyers pro hac vice in other cases without any procedural requirements apart from the filing and court approval of counsel-of-record forms, that such forms had been filed by Cambria and Fahringer and approved by court order, and that the state court had then removed the two lawyers from the case without an opportunity for a hearing and without a statement of reasons.

The District Court held that counsel may not be refused appearance pro hac vice except upon a showing of prior unethical conduct or refusal to abide by the canons of ethics or the rules of the court. It did not reach the issue of whether the constitutional rights of Flynt and Hustler Magazine had also been violated. The court noted the general rule that federal courts must not enjoin pending state criminal prosecutions except under extraordinary circumstances, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), but it went on to hold that federal interference in the present case was justified since the two attorneys could not vindicate their federal rights in the ongoing state proceedings. On these grounds, the District Court issued an injunction against the Court of Common Pleas, temporarily enjoining the prosecution of the state action pending a hearing on the question of the admission of the lawyers pro hac vice. No hearing has yet been held.

II. THE PROCEDURAL DUE PROCESS ISSUE

A client may terminate a lawyer's services without cause or reason, but due process and elementary fairness require that we observe certain principles for the protection of lawyer and client when a judicial officer discharges the lawyer. In order to insure regularity and impartiality in the administration of justice and secure the similar treatment of similar cases, judges may not upset reasonable expectations in the important affairs of life such as employment of counsel without a hearing, the application of a reasonably clear standard, and a statement of reasons. Otherwise, it would be too easy to justify, and too difficult to remedy, random arbitrariness and sporadic injustice. ⁵

Precedent requires us to apply these principles of due process to the licensing and removal of officers of the court, including admissions pro hac vice. Federal courts have frequently invalidated arbitrary restrictions on bar admissions and the practice of law. Over one hundred years ago, the Supreme Court, in Ex parte Garland, ⁶ invalidated a federal statute excluding Confederate sympathizers from practice in federal courts. In Konigsberg v. State Bar ⁷ and Schware v. Board of Bar Examiners, ⁸ the Supreme Court held that California and New Mexico violated the Fourteenth Amendment by applying in an arbitrary way a vague standard in order to deny bar admission to applicants who had formerly belonged to the Communist party. ⁹ In a recent series of cases the Supreme Court has invalidated attempts by state bar associations to prohibit group legal services plans. ¹⁰

Due process and equal protection principles also apply to admission to practice pro hac vice. Judge Herbert Goodrich, writing for the Third Circuit in Cooper v. Hutchinson, ¹¹ held that a...