Flangas v. State Bar of Nevada, 80-5286

• Decision Date: 08 September 1981
• Docket Number: No. 80-5286,80-5286
• Citation: 655 F.2d 946
• Parties: Peter L. FLANGAS, Plaintiff-Appellee, v. STATE BAR OF NEVADA et al., Defendants, John C. Mowbray, Gordon Thompson, Cameron M. Batjer and Noel Manoukian, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 946

655 F.2d 946

Peter L. FLANGAS, Plaintiff-Appellee, v. STATE BAR OF NEVADA et al., Defendants John C. Mowbray, Gordon Thompson, Cameron M. Batjer and Noel Manoukian, Defendants-Appellants.

No. 80-5286.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 13, 1981.

Decided May 29, 1981.

Rehearing and Rehearing En Banc Denied Sept. 8, 1981.

Donald Klasic, Deputy Atty. Gen., Carson City, Nev., argued, for defendants-appellants.

David Goldwater, Marrin J. Kravitz, Las Vegas, Nev., argued, Oscar Goodman, Las Vegas, Nev., on brief, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before WALLACE and FLETCHER, Circuit Judges, and KING, ^* District Judge.

WALLACE, Circuit Judge:

Four of the five justices of the Nevada Supreme Court appeal, claiming that the district court erred in granting a preliminary injunction against disciplinary proceedings involving attorney Flangas. In his original complaint, Flangas alleged that the Nevada disciplinary procedures were unconstitutional. The district court dismissed his action with prejudice. While his appeal of that dismissal was before this court, Flangas made a motion in the district court to amend his complaint based upon detailed and particularized allegations of bias on the part of four members of the Nevada Supreme Court. After our decision affirming the district court's earlier dismissal, the district court found, on the basis of those allegations with no counter affidavits filed, that Flangas could not receive a fair hearing and granted a preliminary injunction against a pending state quasi-criminal proceeding. The State Bar of Nevada was dismissed as a defendant. The four justices contend that the district court abused its discretion in granting the preliminary injunction. We agree and reverse the district court.

I

On September 11, 1978, the Nevada State Bar Board of Governors (Board) recommended that attorneys Ross and Flangas be fined $30,000 each and suspended from the practice of law for two years for allegedly charging excessive fees in connection with the probate of an estate. On April 26, 1979, Flangas commenced an action in federal district court pursuant to 42 U.S.C. § 1983 against the Nevada State Bar, the Board, and the members of the Nevada Supreme Court. He sought preliminary and permanent injunctive relief alleging that: (1) the Board violated his due process rights because it harbored a pecuniary bias; (2) his equal protection rights were violated because he, unlike other disciplined attorneys, was not afforded an interlocutory appeal; and (3) the Board was biased in fact because it performed the conflicting functions of investigation and adjudication. The district court dismissed Flangas's action on the ground that it lacked jurisdiction to review the determination of the award because Flangas had the option of appealing to the Nevada Supreme Court. Flangas appealed the district court's decision and we affirmed. ¹

While the appeal to this court was still pending, however, Flangas filed a motion for a new trial and a motion to file an amended complaint with the district court. He sought to add a new count to the original complaint, charging two of the three non-recused members of the Nevada Supreme Court with prejudice and bias towards him concerning the disciplinary proceedings. Flangas and William Richards, Chief Legal Advisor to the Nevada Supreme Court, submitted affidavits to the district court alleging that the Nevada Supreme Court was biased-in-fact against Flangas. An in camera affidavit was submitted by one of the Nevada Supreme Court justices, but apparently was not relied upon by the district judge.

In general, the affidavits charge an ongoing, continuous effort on the part of one of the Nevada Supreme Court justices, before and after he became a justice, to influence disciplinary action against Flangas and his associates. It is charged that he did so not only due to personal bias, but also to use resulting publicity in aid of his bid for election to the Nevada Supreme Court. It is also alleged that the influence of this justice is so pervasive that a fair hearing could not be secured before the Supreme Court even if substitute judges were provided from the Nevada trial court. Although that justice and one other recused themselves from considering the charges made against Flangas, two of the remaining three justices were also charged with bias-in-fact.

The district court granted the Board's motion to dismiss the action against the Board. Then, in view of the facts alleged in affidavits, the district judge granted Flangas's motions for preliminary injunction and leave to amend his complaint, despite our affirmance of his earlier order granting a motion to dismiss in favor of the justices. The district judge reasoned that although he would normally dismiss the motion for preliminary injunction on the basis of abstention, as he had originally done, he was required to grant the injunction based upon the fact that the Nevada Supreme Court was still biased-in-fact, despite the recusal of the two justices. The district judge concluded that the bias-in-fact on the Nevada Supreme Court constituted an "exceptional circumstance" that is an exception to the general rule against enjoining ongoing state proceedings. See Rosenthal v. Carr, 614 F.2d 1219 (9th Cir. 1980). The district court derived this particular exception from Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), in which the Court held that when a state administrative body is incompetent to adjudicate a matter by virtue of pervasive bias, a district court need not abstain from issuing appropriate judicial relief. Id. at 577, 93 S.Ct. at 1697.

II

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court established the general doctrine that federal courts must refrain from hearing constitutional challenges to state action under certain circumstances in which a federal action is regarded as an improper intrusion on the right of a state to enforce its laws in its own courts. The basic policy reason articulated by the Court in Younger for this type of abstention is to foster "a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." Id. at 44, 91 S.Ct. at 750. Younger involved federal court abstention from enjoining a state criminal prosecution. The Court stated that a federal injunction may be properly issued against a pending state criminal prosecution only on a "showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief." Id. at 54, 91 S.Ct. at 755.

Younger abstention applies where a state action is pending. See id. at 41, 91 S.Ct. at 749. Younger and its progeny have used the term "pending proceeding" to differentiate between state proceedings that have already commenced from those that are merely threatened. Huffman v. Pursue, Ltd., 420 U.S. 592, 607, 95 S.Ct. 1200, 1209, 43 L.Ed.2d 482 (1975). In the instant case under the Nevada Supreme Court rules then in effect relative to attorney discipline, the Board of Bar Governors could make recommendations concerning attorney discipline. Any final binding action had to be taken by the Nevada Supreme Court either by accepting or rejecting the Board's recommendations. If no petition for review was filed within 60 days by the attorney against whom there was a recommendation of discipline, the recommendation of the Board was to be acted on summarily by the Nevada Supreme Court. If a petition for review before the court was timely filed, the Nevada Supreme Court was to review the matter and issue a decision. Although Flangas has not filed a petition for review of the Board's recommendation, the Nevada Supreme Court has apparently issued an order staying the time requirements for petitioning for review. Therefore, we find that the disciplinary procedure is "pending" for purposes of Younger abstention.

Younger left open the question of how far the abstention doctrine restricts a federal court from interfering with civil actions in state courts. Younger and its companion cases had all involved state criminal proceedings. The Court, however, has expanded the abstention doctrine into civil actions. Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., supra. Although the Court has never held that the abstention doctrine precludes court interference with pending state attorney disciplinary proceedings, we have recently so held. Rosenthal v. Carr, supra, 614 F.2d at 1220. Other circuits have also extended Younger to attorney disciplinary actions. Gipson v. New Jersey Supreme Court, 558 F.2d 701, 704 (3d Cir. 1977); American Civil Liberties Union v. Bozardt, 539 F.2d 340, 342 (4th Cir.), cert. denied, 429 U.S. 1022, 97 S.Ct. 639, 50 L.Ed.2d 623 (1976); Anonymous v. Association of the Bar of City of New York, 515 F.2d 427, 432 (2d Cir.), cert. denied, ...