Magee v. Superior Court, S.F. 22994

• Decision Date: 05 March 1973
• Docket Number: S.F. 22994
• Citation: 8 Cal.3d 949,506 P.2d 1023,106 Cal.Rptr. 647
• Court: California Supreme Court
• Parties: , 506 P.2d 1023 Ruchell MAGEE et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE, Real Party in Interest. In Bank

Page 647

106 Cal.Rptr. 647

8 Cal.3d 949, 506 P.2d 1023

Ruchell MAGEE et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent The PEOPLE, Real Party in Interest.

S.F. 22994.

Supreme Court of California,

In Bank.

March 5, 1973.

Robert D. Carrow, Novato, Ramsey Clark, Washington, D.C., Joseph A. Forest, San Francisco, Robert Y. Bell, Santa Rosa, Ernest L. Graves, Los Angeles, and David A. Applen, Novato, for petitioners.

Thomas M. O'Connor, City Atty., and Rene Auguste Chouteau, Deputy City Atty., for respondent.

Evelle J. Younger, Atty. Gen., and Albert W. Harris, Jr., Asst. Atty. Gen., for real party in interest.

BY THE COURT.

Petitioner Magee, charged with murder and other serious offenses, is presently defendant in a criminal proceeding now in progress before respondent court entitled People v. Ruchell Magee, superior court No. 83668. He, his court-appointed attorney of record Robert D. Carrow, and Ramsey Clark, seek a writ of mandate commanding respondent court to permit the association of Mr. Clark to assist in the defense of petitioner Magee in said criminal proceeding. Pending final determination of this matter we have stayed all proceedings below. Petitioners, respondent court, and the People as real party in interest, have all stipulated (a) that issuance by this court of an alternative writ or an order to show cause is waived, and (b) that oral argument is waived and the matter may be determined on the basis of the documents which have been heretofore filed.

Petitioner Ramsey Clark, a former Attorney General of the United States, is licensed to practice law in the states of New York and Texas and the District of Columbia. He is not a member of the State Bar of California and, therefore, is not licensed to practice in this state. On February 14, 1973, Magee and his attorney of record, Mr. Carrow, filed in open court a notice of association of attorneys together with an acceptance of association by Mr. Clark which stated his 'understanding that (said association) is without compensation by the City and County of San Francisco or the State of California.' On or about the same date they filed a document entitled 'Declaration re: Familiarity of Associated Counsel with Pending Cause,' wherein Mr. Carrow set forth facts relative to Mr. Clark's present readiness to proceed. However, respondent court refused to accept and purported to 'deny' said association, taking the position then and in subsequent proceedings that no new co-counsel would be 'appointed' unless the court personally knew such counsel and his qualifications and had confidence in him.

We have concluded (1) that respondent court has utilized improper standards in passing upon petitioners' attempted association of attorneys, and (2) that the circumstances of this case justify the correction of this error during the progress of the trial by means of the issuance of an extraordinary writ.

It must first be emphasized that petitioners herein are not seeking to have Mr. Clark Appointed under the provisions of section 987 of the Penal Code to serve at public expense. Neither do they ask that Mr. Clark be Substituted as attorney of record in place of Mr. Carrow. Rather, they seek to Associate Mr. Clark, an attorney licensed to practice in other states but not in this state, to assist in the defense. Because Mr. Clark has waived any right to public compensation he might have, he comes before the court as a Retained out-of-state attorney seeking to be associated in a pending proceeding.

The California Rules of Court explicitly provide for such an association. Rule 983, adopted by this court effective September 13, 1972, provides in substance that an attorney licensed to practice in other jurisdictions who has been retained to appear in a pending cause may in the discretion of the court be permitted to do so upon written application, provided that an active member of the State Bar is associated as attorney of record. Insofar as the record presented to us shows, neither the court nor any counsel were aware of this rule or its applicability. In view of this we deem it unnecessary to presently determine whether the documents filed in this case were sufficient to constitute an application for association of counsel Pro hac vice under the rule. The relief which we grant will require that the matter of Mr. Clark's association be considered under said rule according to the constitutional principles which we now proceed to explain.

The guiding precept governing the exercise of judicial discretion in this area was stated by this court in People v. Crovedi (1966) 65 Cal.2d 199 at page 208, 53 Cal.Rptr. 284, at page 290, 417 P.2d 868 at page 874. There, after a review of relevant cases, we embraced the conviction 'that the state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources--and that that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' It is...