In re Sawyer, 15109.

• Decision Date: 25 May 1956
• Docket Number: No. 15109.,15109.
• Citation: 256 F.2d 553
• Parties: In the Matter of Harriet Bouslog SAWYER, also known as Harriet Bouslog, an Attorney at Law, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

256 F.2d 553 (1956)

In the Matter of Harriet Bouslog SAWYER, also known as Harriet Bouslog, an Attorney at Law, Appellant.

No. 15109.

United States Court of Appeals Ninth Circuit.

May 23, 1956.

Dissenting Opinion May 25, 1956.

John T. McTernan, Los Angeles, Cal., Myer C. Symonds, Honolulu, Hawaii, A. L. Wirin, Los Angeles, Cal., for appellant.

A. William Barlow, U. S. Atty., Honolulu, Hawaii, Edward N. Sylva, Atty. Gen., Territory of Hawaii, Morio Omori, Sp. Deputy Atty. Gen., Territory of Hawaii, for appellee.

Before DENMAN, Chief Judge, and POPE and LEMMON, Circuit Judges.

PER CURIAM.

Appellant, ordered suspended from practicing law for one year by the Supreme Court of the Territory of Hawaii, has appealed to this court and now seeks an order staying the order of suspension pending her appeal here.

Opposing the motion, the Territory, and the Bar Association of Hawaii, which prosecuted the proceedings in the Hawaiian Court, argue that we are without jurisdiction to entertain the appeal.

A justiciable contention is here made that we have jurisdiction, both because there is the requisite value in controversy incidental to the order appealed from,¹ and because appellant asserts the order operates to infringe her rights under the First Amendment; Cf. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692.

Without expressing any views as to the merits of the appeal, we deem it a justiciable question whether the right to exercise the privilege of practicing law may be terminated because of statements which are protected as constitutional rights. Cf. Wieman v. Updegraff, 344 U.S. 183, 75 S.Ct. 215, 97 L.Ed. 216. Since appellant "has a fair question to raise as to the existence of such a right", as she claims here (American Federation of Musicians v. Stein, 6 Cir., 213 F.2d 679, 683), we may entertain the motion for stay. And since the extent of the discipline ordered is such as to be comparable in severity to imposition of a criminal penalty, we deem it appropriate to apply the principle which underlies the grant of bail pending a criminal appeal. We are of the opinion that the application of the discipline ordered should await the determination of the appeal. The motion for stay pending appeal is granted.

LEMMON, Circuit Judge, dissents and will file his dissent hereafter.

LEMMON, Circuit Judge (dissenting).

I find myself unable to agree with my colleagues regarding the proper disposition of this motion.

Our jurisdiction over appeals from final decisions of the Supreme Court of Hawaii is strictly limited by 28 U.S.C.A. § 1293. That jurisdiction embraces appeals in three types of cases:

1. "Cases involving the Constitution, laws or treaties of the United States or any authority exercised thereunder."

2. "Habeas corpus proceedings."

3. "All other civil cases where the value in controversy exceeds $5,000, exclusive of interest and costs."

Since this is not a habeas corpus proceeding, we need consider only groups 1 and 3.

1. This Case Does Not Involve Any Rights Protected by "the Constitution, Laws or Treaties of the United States," etc.

The right to practice law before a state or territorial court is not protected by the Constitution of the United States. In Bradwell v. State of Illinois, 1873, 16 Wall. 130, 138-139, 83 U.S. 130, 138-139, 21 L.Ed. 442, the Court said:

"* * * counsel proceeds to argue that admission to the bar of a state, of a person who possesses the requisite learning and character, is one of those privileges and immunities which a state may not deny.

"In this latter proposition we are not able to concur with counsel. We agree with him that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these and these alone which a state is forbidden to abridge. But the right to admission to practice in the courts of a state is not one of them."

See, also, In re Lockwood, 1894, 154 U.S. 116, 117, 14 S.Ct. 1082, 38 L.Ed. 929; Mitchell v. Greenough, 9 Cir., 1938, 100 F.2d 184, 185, and the cases there cited, certiorari denied 1939, 306 U.S. 659-660, 59 S.Ct. 788, 83 L.Ed. 1056; Emmons v. Smitt, 6 Cir., 1945, 149 F.2d 869, 872, certiorari denied 1945, 326 U.S. 746, 66 S.Ct. 59, 90 L.Ed. 446.

The very first case cited by the appellant on the subject of "the right to practice law" emphasizes the plenary power of a court to discipline the attorneys who practice before it. In Ex parte Garland, 1867, 4 Wall. 333, 378-379, 71 U.S. 333, 378-379, 18 L.Ed. 366. Mr. Justice Field used the following language:

"Attorneys and counsellors are not officers of the United States; they are not elected or appointed in the manner prescribed by the Constitution for the election and appointment of such officers. They are officers of the court; admitted as such by its order, upon evidence of their possessing sufficient learning and fair private character. * * * The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Case cited." Emphasis supplied.

The appellant's own "Motion for Stay Pending Appeal," etc., establishes beyond cavil that "The complaint was referred by the Supreme Court of the Territory to...