Flynt v. Leis, Civ. No. C-1-77-319.
Decision Date | 06 July 1977 |
Docket Number | Civ. No. C-1-77-319. |
Citation | 434 F. Supp. 481 |
Parties | Larry FLYNT, Hustler Magazine, Inc., Herald Price Fahringer, and Paul J. Cambria, Jr., Plaintiffs, v. Simon L. LEIS, Jr., Prosecuting Atty., Hamilton County, Ohio, Hon. Robert S. Kraft, Judge of Hamilton County Common Pleas, and Hon. William J. Morrissey, Judge of Hamilton County Common Pleas, and the Hamilton County Court of Common Pleas, Defendants. |
Court | U.S. District Court — Southern District of Ohio |
Herald Price Fahringer, Paul J. Cambria, Jr., Buffalo, N. Y., Andrew B. Dennison, Cincinnati, Ohio, for plaintiffs.
Fred J. Cartolano, First Asst. Pros. Atty., Hamilton County, Cincinnati, Ohio, for defendants.
FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW
This matter is before the Court on the request of plaintiffs for a preliminary and permanent injunction and for a declaratory judgment. Oral argument to the Court was presented June 29, 1977. In accordance with Rule 52 of the Federal Rules of Civil Procedure, the Court does submit herewith its Findings of Fact and Conclusions of Law.
1. The significant plaintiffs involved herein are Herald Price Fahringer and Paul J. Cambria, Jr., both of whom are attorneys at law admitted to practice1 in the State of New York and in the United States District Court for the Western District of New York. Both have served as counsel for plaintiffs Larry Flynt and Hustler Magazine, Inc. in the Court of Common Pleas of Hamilton County, Ohio.
Significant defendants include William J. Morrissey, Judge of the Court of Common Pleas of Hamilton County, Ohio, and Robert S. Kraft, Presiding Judge of the Court of Common Pleas of Hamilton County, Ohio.
2. Plaintiffs Larry Flynt and Hustler Magazine, Inc. were indicted by the Grand Jury of Hamilton County, Ohio, under Indictment B-770341, charging violation of Ohio Revised Code § 2907.31. Such indictment was returned February 8, 1977. On February 23, 1977, plaintiffs Fahringer and Cambria entered an appearance by local counsel in the above-entitled matter and such entry was endorsed by The Honorable Rupert Doan, Judge of the Common Pleas Court of Hamilton County, Ohio. The form entry was in accordance with customary procedures of that court. On previous occasions and without imposition of any additional procedural requirements, plaintiffs Cambria and Fahringer had likewise been admitted to appear in the Court of Common Pleas of Hamilton County, Ohio. Specifically, in 1976 and 1977, the plaintiffs appeared in Criminal Matter No. B 761618 pursuant to an indictment filed against plaintiff Larry Flynt and others, and proceeded through all phases of such matter including pretrial motions and trial on the merits.
3. Plaintiffs Fahringer and Cambria are not now nor have they ever been admitted to practice in the State of Ohio.2 No evidence of any disciplinary action against them by any bar association has been presented to the Court, nor is there reason to believe that any such action is presently contemplated. Both are competent, experienced and qualified in the representation of persons charged with crimes.
4. On April 8, 1977, during an appearance in Criminal Matter No. B 770341, defendant The Honorable William J. Morrissey, ordered Mr. Fahringer and Mr. Cambria removed as counsel in the following language: "... While further colloquy occurred between plaintiffs and Judge Morrissey, no reasons for their removal were ever assigned nor was an opportunity for a hearing granted to plaintiffs either then or thereafter.
5. Through subsequent proceedings, this matter was transferred to defendant The Honorable Robert Kraft. On May 10, 1977, Judge Kraft, likewise without assigning reasons or granting an opportunity for hearing, concurred in the removal of plaintiffs by declining to permit their appearance.
As a basis for decision this Court relies upon the following propositions of law:
1. There can be no doubt that admission and removal of foreign counsel are matters within the sound discretion of a trial court. Such counsel do not possess an unlimited or unqualified right to practice law. Ross v. Reda, 510 F.2d 1172 (6th Cir. 1975); United States v. Dinitz, 538 F.2d 1214 (5th Cir. 1976); In re Evans, 524 F.2d 1004 (5th Cir. 1975); In the Matter of Melvin Belli, 371 F.Supp. 111 (D.D.C.1974); Thomas v. Cassidy, 249 F.2d 91 (4th Cir. 1957).
2. The right of a court to exclude foreign counsel is likewise not absolute. Ross v. Reda, supra; In re Evans, supra.
3. The exercise of sound discretion by a court can only follow a due process hearing after notice and an opportunity for counsel to defend himself and his professional reputation. In re Evans, supra; Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950).
Counsel have favored the Court with an exhaustive listing of appropriate authorities. In excess of 120 cases have been submitted as bearing upon the issues in question. Of those, 80 are determinations by the Supreme Court of the United States and 44 are holdings by various other Federal courts. In this extensive review there is not one case cited nor has one been found by this Court's own research where denial of appearance pro hac vice or removal therefrom was accomplished without a hearing.
Foreign counsel were excluded in Ross, Dinitz, Belli and Thomas. Foreign counsel were admitted in Evans and Cooper. But all such determinations occurred after hearing and for appropriate reasons. Indeed, the determination of the United States Court of Appeals for the Third Circuit in Cooper v. Hutchinson, supra, was based primarily upon the lack of a due process hearing.
There are grave implications inherent in any arbitrary exclusion of counsel from representation of a party. Aside from the obvious immediate loss of income, an attorney summarily removed from representation without cause or opportunity to be heard must suffer an irreparable blow to his professional standing and his future employment prospects.
While it is true that plaintiffs' interest in reputation alone is insufficient to implicate property rights under the Fourteenth Amendment, it is likewise true that when an "interest" has been initially recognized and protected by state law or the Constitution, a deprivation or restriction of that "interest" which results in injury to reputation requires procedural safeguards. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).
As the Supreme Court stated in Roth:
supra 408 U.S. at 577, 92 S.Ct. at 2709.
Plaintiffs' admission to appear pro hac vice in the Court of Common Pleas of Hamilton County, Ohio was such a property interest and its termination without due process violated their Fourteenth Amendment rights.
The conclusion that plaintiffs are entitled to a hearing before their property rights are withdrawn does not end the matter. Federal courts have been admonished not to interfere with the criminal processes of the state courts. The Supreme Court of the United States has spoken to this matter directly and specifically in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In Younger, Federal courts were directed not to enjoin pending state criminal prosecutions except under extraordinary circumstances.
In Kugler v. Helfant, 421 U.S. 117, 124-125, 95 S.Ct. 1524, 1531, 44 L.Ed.2d 15 (1975), the Supreme Court repeated this admonition and elaborated upon the meaning of the extraordinary circumstances exception:
The very nature of "extraordinary circumstances," of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. But whatever else is required, such circumstances must be "extraordinary" in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation.
The Court is convinced that this case presents such a need. Plaintiffs Fahringer and Cambria are not parties to the action before the Court of Common Pleas of Hamilton County, Ohio, and their rights cannot be the subject of an appeal therefrom. They may not, by a writ of mandamus, test the discretionary right of a judge of the Court of Common Pleas to exclude them from representation of their clients. Consequently, plaintiffs lack an opportunity to present their federal claims in the ongoing state proceeding, and the strictures of Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) do not apply.
The Court does not pass on the guilt or innocence of the indicted parties. It does not hold that the plaintiffs Fahringer and Cambria have an unlimited and...
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