Burkett v. Chandler
| Decision Date | 29 January 1975 |
| Docket Number | 74-1297 and 74-1298,Nos. 74-1120,s. 74-1120 |
| Citation | 505 F.2d 217 |
| Parties | William R. BURKETT et al., Appellants, Petitioners, v. Stephen S. CHANDLER, United States District Judge for the Western District of Oklahoma, Respondent. David HALL and Jo Evans Hall, Plaintiffs-Appellees, v. William R. BURKETT, United States Attorney for the Western District ofOklahoma, and Clyde L. Bickerstaff, Oklahoma District Director, InternalRevenue Service, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Neil H. Koslowe, Atty., Dept. of Justice (Carla A. Hills, Asst. Atty. Gen., and Leonard Schaitman, Atty., Dept. of Justice, on the brief), for petitioners-appellants and defendants-appellants.
Walter A. Steele, Denver, Colo., for respondent and appellee, Stephen S. Chandler.
Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.
This is an appeal together with extraordinary writs which seek to set aside judgments disbarring from the practice of law and citing for contempt the United States Attorney for the Western District of Oklahoma and several of his assistants. The cases in this court arise out of a Western District of Oklahoma proceeding, No. 74-30-C, in which David Hall, Governor of Oklahoma, and his wife, Jo Evans Hall, were plaintiffs. It sought injunctions against the United States Attorney and other federal officers.
The underlying controversy giving rise to all of this litigation arose from an investigation by the Justice Department and the Director of Internal Revenue of possible income tax evasion by Governor Hall. Dorothy Pike was an important witness in behalf of the government. Allegedly, under the auspices of the Internal Revenue Service, she was secreted in Arlington, Virginia. Her whereabouts was not known to either the Halls or to Judge Chandler. Her specific whereabouts was at first unknown to Mr. Burkett, but Judge Chandler believed that the information was accessible to Mr. Burkett and that he was not cooperating. Thus, the bone of contention was where she was, whether she was subject to having her deposition taken and whether the United States Attorney could and would produce her.
No. 74-30-C has generated several consolidated matters which are presently before us. Number 74-1120 is a petition for writ of mandamus; Number 74-1297 is an appeal from the judgments of disbarment; and Number 74-1298 is an appeal from an order to show cause for contempt. 1
Number 74-29-C was a petition to perpetuate the testimony of one Dorothy Pike who had been Governor Hall's secretary. Number 74-30-C essentially sought to enjoin interference with the efforts of Hall to communicate with Dorothy Pike. The definitive allegation was invasion of the Halls' civil rights.
Number 74-30-C, the injunction action, was assigned to Judge Chandler who appears as an appellee-respondent. The main effort of the several hearings was to locate and bring the witness Dorothy Pike before the court for the giving of testimony.
On January 30, 1974, an application was made by the United States Attorney and the Director of Internal Revenue Service for writ of prohibition and mandamus. This court ordered that a writ issue directing the respondent to show cause within 10 days why the writ should not be made permanent and that pending final disposition of the petition further proceedings in the district court were to be stayed.
On March 11, 1974, Judge Chandler issued the judgments of disbarment against the United States Attorney and his assistants, the other individual appellants (in Misc. No. 7). That judgment charged that appellants had wilfully and corruptly aided and abetted and conspired with Burkett to conceal the whereabouts of Dorothy Pike from the court and from the United States Marshal; that Burkett had committed perjury at one of the hearings; and that the other appellants had known of this and had failed to reveal it to the court and were, on this account, guilty of misprision of a felony. A further charge in the disbarment judgment was that the appellants had conspired to violate the civil rights of Governor Hall and his wife and had concealed from the court an application for writ of prohibition and mandamus (the one filed in this court on January 30, 1974).
Also, on March 11, 1974, Judge Chandler issued an order directed to the appellants to show cause why they should not be punished for civil and criminal contempt for having obstructed justice by concealing the whereabouts of Mrs. Pike, for having committed perjury and for having been guilty of misprision of a felony.
On March 12, 1974, an application for writs of prohibition and mandamus were filed in this court challenging the disbarment and contempt orders. On that same day this court issued its order staying the order of disbarment until further order. On March 21, 1974, a clarifying order was issued providing that the stay of March 12 applied also to the citation for contempt.
The issue presented to us is whether the actions of the district court disbarring the appellants and charging them with contempt were valid. Appellants-petitioners seek to set aside the orders saying they are invalid and unconstitutional. The text of the judgment of disbarment is set forth in an appendix to this opinion.
On February 1, 1974, in No. 74-1013, a temporary order was entered by this court staying the taking of the deposition of Dorothy Pike at the time and on the date specified in the court order until further order or this court. This pertained to Cause No. 74-30-C in the district court. At the same time, an order was entered directing the respondent to show cause why the writ should not be made permanent. Subsequently, a response was filed in accordance with the said order. The respondent also sought to clarify its position by a letter which explained that the district court had not exercised unlimited jurisdiction in the premises, but had merely undertaken to hear the application for a temporary injunction together with the defendants' motion to dismiss.
On June 7, 1974, following oral arguments, we issued a per curiam order in Cause No. 74-30-C. A copy of this order is appended hereto. It recites that the above numbered district court action sought to enjoin the United States Attorney, the Director of Internal Revenue and others from conducting an investigation of the Honorable David Hall, Governor of Oklahoma, and that an effort had been made in these proceedings to take the deposition of Dorothy Pike, former secretary to Governor Hall. The essential holding was that the district court lacked jurisdiction to entertain this action since it sought to enjoin public officials from carrying out their duties; that it was in effect then a suit against the United States. The writ of prohibition was issued. The perpetuation action, No. 74-29-C, was not included in the writ.
On January 17, 1974, Mr. Burkett in testimony before Judge Chandler denied that the defendants in No. 74-30-C were interfering with the plaintiffs' efforts to see Mrs. Pike. 2 According to Burkett, the government's access to Dorothy Pike was through the latter's sister in Missouri.
Although Judge Chandler did not order the United States Attorney's office to produce her, he made 'suggestions' several times that the government agents cooperate in producing her or in obtaining the information as to her whereabouts so that the plaintiffs could proceed. The United States Attorney's position was that he would not voluntarily assist in locating her.
On January 18 there was another hearing, and here again Judge Chandler repeatedly urged the parties to cooperate in getting the testimony of Dorothy Pike. The Judge ordered that a subpoena issue for her deposition. He suggested that counsel call her up and ask her to appear. Burkett stated his position as being that the government objected to subpoenaing Mrs. Pike to testify in the proceeding and before the court. The court continued to reiterate its hope that counsel would simplify the matter or cooperate in requesting Mrs. Pike to come into court. The telephone call suggested by the Judge was not completed.
On January 21 another hearing was held. At that time Judge Chandler suggested that an attempt to prevent production of the witness was either unethical or in violation of the law. 3
As a next step, Judge Chandler issued a new subpoena and requested the cooperation of all agencies in locating her. 4 Mr. Burkett reminded the court that he objected to the proceedings. His request for a stay was, however, denied.
The following day Judge Chandler announced that the subpoena that he had ordered previously had not issued and he produced a new subpoena, handed it to the Marshal and directed him to serve it. Judge Chandler at the same time declared that anyone knowing the whereabouts of Mrs. Pike had the legal and ethical duty to advise the Marshal. On January 28, 1974, the Judge ordered the parties to assist in the search for mrs. Pike. On that same day Mr. Burkett sent a memorandum to Mr. Bickerstaff, the Oklahoma Internal Revenue Director, stating that the Internal Revenue Service employees should be questioned as to her whereabouts and that he (Burkett) should be advised in writing as to the results of the inquiry. Soon thereafter, Mrs. Pike was found in Arlington, Virginia and the information was given to the Marshal. She was served a subpoena in Arlington at 4:00 p.m. on January 29. Meanwhile, Mr. Burkett sought relief by extraordinary writ in this court. A copy of this latter petition was given to Judge Chandler.
A stay was issued by this court and we ordered respondent to show cause why the writ should not be made permanent. Judge Chandler was concerned that he had not been...
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