In re Webster, 21288.

• Decision Date: 13 September 1967
• Docket Number: No. 21288.,21288.
• Citation: 382 F.2d 79
• Parties: In re John M. WEBSTER, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

382 F.2d 79 (1967)

In re John M. WEBSTER, Appellant.

No. 21288.

United States Court of Appeals Ninth Circuit.

August 8, 1967.

Rehearing Denied September 13, 1967.

Finton J. Phelan, Jr., Agana, Guam, for appellant.

Committee of Bar Examiners, Harold W. Burnett, Atty. Gen., Chairman, Agana, Guam, for appellee.

Before HAMLEY and JERTBERG, Circuit Judges, and THOMPSON, District Judge.

HAMLEY, Circuit Judge:

This is an appeal from an order of the District Court of Guam, entered on September 2, 1966, disbarring John M. Webster from the practice of law in Guam. As indicated below, this is the second time this disbarment proceeding has reached this court.

The disbarment proceedings were instituted on June 8, 1965, when the Committee of Examiners, Judicial Council of Guam (Committee), received a written complaint charging Webster with embezzlement of funds belonging to a client. The Committee conducted a hearing pursuant to Government Code of Guam, section 28005. Based upon the evidence received and arguments presented at that hearing, the Committee found, in effect, that the charges were true. The Committee reported its findings to the District Court of Guam and requested that the appropriate action be taken to disbar or suspend Webster from practicing law in Guam.

On August 6, 1965, the court entered an order requiring Webster to show cause why he should not be disciplined. Webster responded with a motion to quash, and a return to, the show cause order. The court denied the motion and proceeded with the hearing, being assisted by two judges of the Island Court of Guam. A transcript of the Committee proceedings, and the exhibits there introduced, were received in evidence as exhibits in the court hearing. The transcript was orally read in court. Counsel for Webster was given the right to object to questions asked at the Committee hearing, but made no objections. No additional evidence was offered on behalf of the Committee, but Webster and two other witnesses testified in his behalf.

Based upon the testimony and exhibits received at the court hearing, findings of fact were entered fully sustaining the report of the Committee upholding the charges which had been made against Webster. Based on these findings the court entered an order disbarring Webster from the practice of law in Guam, but with leave to apply to the Committee, at the expiration of one year, for reinstatement.

Webster appealed to this court. We reversed and remanded for further proceedings, holding that the court erred in calling to its assistance two judges of the Island Court of Guam. In re Webster, 9 Cir., 363 F.2d 837.¹

After the certified copy of our judgment reached the District Court of Guam, that court, on August 26, 1966, entered a new show cause order reinstating the disbarment proceedings. The order provided for a hearing on September 2, 1966, before The Honorable Paul D. Shriver, judge of the District Court of Guam. At the outset of that hearing Webster filed a motion to vacate the show cause order or, in the alternative, transfer the proceeding to another judge. The motion was supported by Webster's "Affidavit of Bias and Prejudice."

Judge Shriver denied the motion, stating that he had no bias or prejudice against Webster. The court also observed that no other judge was immediately available to determine the matter and since the court of appeals had upheld the previous disbarment order except for the presence of two other judges, it was not necessary to assign a "stateside" judge to hear the case.

The court then again received in evidence the transcript and exhibits and the findings and recommendations of the Committee, stating that these materials established a prima facie case against Webster. The latter was invited to produce evidence in his own behalf, but he chose to rest upon his response to the previous order to show cause, then before the court. Findings of fact and conclusions of law adverse to Webster were thereupon entered, together with an order of disbarment similar to the disbarment order entered a year earlier. Webster's appeal from the new order of disbarment is now before us.

Webster first asserts that the findings and recommendations of the Committee were incorporated into the record by reference, that no new evidence was received, that no one appeared for the Committee, and that the trial court merely adopted the findings and recommendation of the Committee. This manner of proceeding, and the trial court's asserted failure to make "independent" findings, Webster contends, was "gross and reversible error."

The factual premise of this contention is, in principal part, inaccurate. Not only the findings and recommendation of the Committee, but a complete transcript of all proceedings before the Committee, and Committee exhibits, were received by the court. These materials were not incorporated by reference, but were physically received in evidence. The trial court did not "merely" adopt the findings and recommendation of the Committee, but made independent findings concerning the charges made against Webster, based upon the entire Committee record.

It is true that no evidence in addition to the Committee transcript, exhibits, findings and recommendation was received in the court hearing. But, under the circumstances, this is not ground for reversal. The Committee transcript and exhibits established a prima facie case for disciplinary action. Webster and his attorney were familiar with these materials because they had also been received in evidence at the 1965 court hearing. Webster chose not to produce countering evidence, thereby relieving the Committee from offering any additional evidence.

Webster was not prejudiced by the failure of the Committee to produce additional evidence against him. If he had thought members of the Committee or any other person could give testimony favorable to him, he had the means of bringing them to court.

The court did not err in any of the respects referred to above.

Webster's second, third and seventh contentions are, in large part, repetitions of his first contention. But he does add the new view, unsupported by argument, that following the remand resulting from the first appeal, the disbarment proceeding should have been sent back to the Committee for further consideration. In this connection Webster points out that there had been one change in the membership of the Committee, the new member being the newly-elected president of the Guam Bar Association.

The reversal and remand resulting from the first appeal was not due to any procedural or substantive deficiencies in the Committee disbarment proceedings. There was therefore no occasion to send the matter back to the Committee. The fact that there had been one change in the Committee membership is immaterial, at least in the absence of any request by the Committee that the matter be returned to it for further consideration.

Webster's remaining contentions on this appeal relate to the denial of his motion for the judge to disqualify himself.

The motion was purportedly based upon 28 U.S.C. § 144 (1964), providing procedures to be followed where a party to a proceeding in a district court of the United States believes the judge has a personal bias or prejudice against him. However, appellee correctly points out that this section has no application in the District Court of Guam. The term "district court," as used in section 144, means a court constituted by chapter 5 of Title 28. See 28 U.S.C. § 451 (1964). The District Court of Guam is not constituted under chapter 5 of Title 28, but rather under section 22(a) of the Organic Act of Guam, 64 Stat. 384 (1950), as amended, 48 U.S.C. § 1424(a) (1964). Corn v. Guam Coral Co., 9 Cir., 318 F.2d 622, 623. See also Tjosevig v. United States, 9 Cir., 255 F. 5; Callwood v. Callwood, D.C.V.I., 127 F.Supp. 179.

Webster argues in his reply brief that if 28 U.S.C. § 144 is not applicable to the District Court of Guam, the Fifth and Sixth Amendments of the Constitution in any event require a biased or prejudiced judge to disqualify himself. However, we need not pass upon this constitutional question because section 170(4) of the Guam Code of Civil Procedure specifically requires a judge of Guam to disqualify himself "when it is made to appear probable that, by reason of bias or prejudice of such judge, a fair and impartial trial cannot be had before him * * *."

Webster contends that the affidavit which he filed in support of his disqualification motion should have led Judge Shriver to disqualify himself.

In this affidavit Webster first alleged it to be his belief that Judge Shriver had a personal bias and prejudice against him and that, by reason thereof, Webster could not have a fair and impartial hearing before that judge. In explanation of this allegation, Webster's affidavit refers to two separate incidents.

The first of these pertains to the case of Jose L. G. Flores v. John M. Webster et al., civil case No. 66-65 in the District Court of Guam. Insofar as we can determine from the record before us, this was a case in which Flores sued Webster for damages arising out of an automobile accident. Webster filed a third-party complaint in that action...