Partington v. Gedan
| Decision Date | 02 July 1992 |
| Docket Number | 91-15194,Nos. 90-15942,s. 90-15942 |
| Citation | 961 F.2d 852 |
| Parties | , 74 Ed. Law Rep. 55 Earle A. PARTINGTON, Plaintiff-Appellant, v. Joseph GEDAN & Howard T. Chang, Defendants-Appellees. Jeffrey LAU & Earle A. Partington, Plaintiffs-Appellants, v. Herman T.F. LUM, Edward H. Nakamura, Frank D. Padgett, Yoshimi Hayashi, James H. Wakatsuki, Jeremy T. Harrison, Charlene M. Norris, Joseph M. Gedan & Mark J. Bennett, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Earle A. Partington, Partington & Foley, and Karen A. Essene, Honolulu, Hawaii, for plaintiff-appellant Earle A. Partington.
Earle A. Partington, Partington & Foley, Honolulu, Hawaii, for plaintiff-appellant Jeffrey J. Lau.
Paul Alston, Peter Hsieh, Special Deputy Attys. Gen., Honolulu, Hawaii, for defendants-appellees Herman T. Lum, Edward H. Nakamura, Frank D. Padgett, Yoshimi Hayashi, James H. Wakatsuki, and Jeremy T. Harrison.
Stanley E. Levin, Special Deputy Atty. Gen., Honolulu, Hawaii, for defendant-appellee Charlene Norris.
Steven S. Michaels, Girard D. Lau, Deputy Attys. Gen., Honolulu, Hawaii, for defendants-appellees Joseph M. Gedan, Howard T. Chang, and Mark J. Bennett.
Appeal from the United States District Court for the District of Hawaii.
Before: ALARCON, D.W. NELSON, and CANBY, Circuit Judges.
In 1985, plaintiff-appellant Earle Partington served as court-appointed counsel to criminal defendant Clifford Clarke. After his conviction in trial court, Clarke appealed. On appeal, the Hawaii Supreme Court found, sua sponte, that Clarke had received ineffective assistance of counsel and reversed his conviction. The Hawaii Supreme Court finding of ineffectiveness, which triggered disciplinary proceedings against Partington, and Partington's argument that he has never been permitted to defend against that finding, are at the center of this complex case. Before this panel, Partington appeals two district court decisions: the district court's denial of his Fed.R.Civ.P. 60(b) motion to vacate judgment in the original federal court case, Partington v. Gedan, and its dismissal of his complaint in a related case, Lau v. Lum.
Despite the many arguments Partington advances, we find that the causes of action underlying the two cases are simply nonjusticiable in federal court for a wide variety of reasons. Some claims are moot, others are barred by various immunity doctrines, others implicate the Rooker- Feldman doctrine, another is subject to Younger abstention, and yet others simply fail to identify a federal constitutional deprivation. Accordingly, we affirm the district court's decisions in both Partington v. Gedan and Lau v. Lum.
In 1985, plaintiff-appellant Earle Partington served as defense counsel to Clifford Clarke. Clarke was charged with the abuse and murder of his girlfriend's daughter. During Clarke's highly publicized state trial, Partington made several unconventional strategic decisions, including a refusal to cross-examine the victim's mother and a refusal to make a closing argument before the jury. Clarke was convicted; subsequently, he appealed to the Hawaii Supreme Court. Partington represented him on appeal. At no time did Clarke challenge his conviction on the ground that he received ineffective assistance of counsel.
During the pendency of the appeal, the presiding trial court judge filed a letter with the Office of Disciplinary Counsel of the Hawaii Supreme Court (ODC). In this letter, the judge stated his belief that Partington had given Clarke ineffective assistance of counsel, and that he had done so deliberately so as to create grounds for reversal on appeal. Partington filed a motion with the Hawaii Supreme Court requesting that it remand the case to the trial court to explore the trial judge's complaint. The Hawaii Supreme Court denied his motion, but ultimately reversed Clarke's conviction because it found, sua sponte, that Clarke had received ineffective assistance of counsel. An unpublished opinion, State v. Clarke, was entered to that effect.
As a consequence of State v. Clarke, the ODC commenced a Hawaii Supreme Court In March of 1987, Partington filed suit in federal district court seeking to enjoin the Rule 13 proceeding. He alleged that because the Hawaii Supreme Court had already decided the question of his conduct in State v. Clarke, the Rule 13 proceedings would not provide him with the chance to present his federal constitutional claims before an impartial tribunal. The district court abstained, invoking the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). On appeal, this court approved that abstention in Partington v. Gedan, 880 F.2d 116 (9th Cir.1989) (Partington I ). In deciding Partington I, we relied in part on an April 1987 letter from Hawaii Supreme Court Justices Lum and Padgett to Partington stating that the Rule 13 proceedings would in fact give Partington an opportunity to present evidence and legal arguments defending his trial tactics. Special Master Gedan also represented to Partington that the proceedings would consider de novo his effectiveness as counsel.
Rule 13 disciplinary proceeding against Partington. If a conviction is reversed on the ground that the defendant received ineffective assistance of counsel, Rule 13 requires that the Hawaii Supreme Court appoint a Special Master "to determine whether action against the counsel alleged to have been incompetent is warranted." Haw.Sup.Ct.R. 13. The court appointed Joseph Gedan to serve as Special Master. At that time, Partington filed two motions with the Hawaii Supreme Court asking for a clarification of the relationship between its opinion in State v. Clarke and the Rule 13 proceedings. Specifically, Partington inquired whether the Rule 13 proceedings would be conducted de novo, allowing him to put on evidence and advance arguments about his trial strategy that he had not had an opportunity to present before the Hawaii Supreme Court decided State v. Clarke. Both motions were denied
After we issued our decision in Partington I but before we considered Partington's petition for rehearing, the Hawaii Supreme Court decided Matsuo v. State, 70 Haw. 573, 778 P.2d 332 (1989). In Matsuo, a petitioner convicted of trying to escape from prison appealed his conviction on the ground that his attorney rendered ineffective assistance of counsel. The Hawaii Supreme Court, finding "the record ... void as to the reasons for trial counsel's decision[s]," remanded the case to the trial court to permit the attorney to explain the decisions in question. Id. at 335. The court found that it would be "unfair to implement a Rule 13 proceeding against trial counsel without first giving him an opportunity to explain his side of the story." Id. Arguing that under Matsuo the Hawaii Supreme Court's opinion in State v. Clarke violated his federal constitutional rights, Partington brought the case to our attention. We denied his petition for rehearing.
Partington then filed a motion with the Hawaii Supreme Court to dismiss the Rule 13 proceedings in light of Matsuo; his motion was denied. A motion that the justices who had presided in State v. Clarke recuse themselves from considering any motion he filed in conjunction with the Rule 13 proceedings was also denied. Partington then filed a motion asking the Hawaii Supreme Court to declare whether, in light of Matsuo, the Rule 13 proceeding would be conducted de novo; this motion, as well as a second motion requesting recusal, was denied in its entirety.
Partington then returned to the district court and filed a Fed.R.Civ.P. 60(b) motion to vacate the judgment in Partington v. Gedan. 2 On July 3, 1990, the district court denied his motion, finding that nothing had changed since the date Partington filed his original suit. Partington appeals that denial to this court.
On July 31, 1990, Special Master Gedan determined that Partington had indeed rendered ineffective assistance of counsel to Clarke. After Gedan's decision, the justices who had participated in the Clarke appeal recused themselves, and on September 24, 1990, a specially constituted Hawaii Supreme Court reviewed Gedan's decision. Rejecting's Gedan's decision on the ground In its order, the court stated that it might be appropriate for the ODC to institute a Hawaii Supreme Court Rule 2 proceeding against Partington. Under Rule 2, the ODC is authorized generally to investigate allegations of ethical violations. Unlike Rule 13, Rule 2 explicitly permits attorneys to put on evidence and otherwise defend their actions. Investigators, in turn, have the option of determining that an ethics violation did not occur. In July 1991, the ODC instituted formal Rule 2 proceedings against Partington.
that Gedan had exceeded his authority by conducting a de novo investigation, the court entered an order stating that its original opinion in State v. Clarke was the final adjudication of the question of Partington's misconduct. The court then dismissed the Rule 13 proceeding with prejudice. The court also stated that Partington was not in need of corrective action, and that Rule 13 was not unconstitutional
In April of 1989, Partington was serving as defense counsel to Jeffrey Lau in a criminal appeal pending before the Hawaii Supreme Court. Partington filed a motion with the court asking for permission to withdraw as Lau's counsel, stating that he could not draft an adequate opening statement within the period designated under an earlier court order. On behalf of the court, Justice Padgett stated that Partington's inability to meet the briefing schedule was caused by Partington's own failure to file a timely motion to adjust the schedule for docketing the appeal. The court gave...
To continue reading
Request your trial
-
In re Catholic Bishop of Spokane
...that the injury will be `redressed by a favorable decision.' The Ninth Circuit stated it more succinctly in Partington v. Gedan, 961 F.2d 852, 862 (9th Cir.1992) Article III of the Constitution requires that a would-be federal litigant allege some actual or threatened injury before a court ......
-
U.S. v. Fernandez
...The record therefore does not support Appellants' claims that their Sixth Amendment rights were violated. Cf. Partington v. Gedan, 961 F.2d 852, 863 (9th Cir.1992) ("[B]efore it amounts to a violation of the Sixth Amendment, any government interference with the [attorney-client] privilege m......
-
Applied Underwriters, Inc. v. Lara
...no intention of securing a conclusive resolution" or where there is evidence of "pecuniary bias by the tribunal." Partington v. Gedan , 961 F.2d 852, 861–62 (9th Cir. 1992). The Second Circuit has provided the following helpful guidance for determining what constitutes an allegation of "bad......
-
Noel v. Hall
...bar examination). Cases involving litigation and attorney disciplinary rules also fall into this category. See, e.g., Partington v. Gedan, 961 F.2d 852 (9th Cir.1992) (involving a litigation rule). The Supreme Court has never, outside of Rooker and Feldman themselves, employed the doctrine ......
-
Two Rights Collide: Determining When Attorney-Client Privilege Should Yield to a Defendant’s Right to Compulsory Process or Confrontation
...620 A.2d 259, 262 (D.C. 1993) (“In the criminal context the privilege acquires Sixth Amendment protection.”). 43. Partington v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992) (“[A] violation of the attorney-client privilege implicates the Sixth Amendment right to counsel . . . when the government......