Mechem, In re, 88-6355

• Decision Date: 25 July 1989
• Docket Number: No. 88-6355,88-6355
• Citation: 880 F.2d 872
• Parties: In re Petition for Mandamus by Everett MECHEM, Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 872

880 F.2d 872

In re Petition for Mandamus by Everett MECHEM, Petitioner.

No. 88-6355.

United States Court of Appeals Sixth Circuit.

Submitted Feb. 20, 1989.

Decided July 25, 1989.

Everett H. Mechem, Kingsport, Tenn., pro se.

Before MARTIN and RYAN, Circuit Judges, and POTTER, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

John Doe, ¹ the petitioner in this case, seeks a writ of mandamus directing the district court to vacate its order of October 3, 1988, disqualifying Everett Mechem, his trial counsel in the civil rights action pending below. The district court responded in opposition. For the reasons stated below, the petition is denied.

On September 6, 1986, petitioner was arrested and charged with burglary. Doe broke into a store where he stole several comic books, pens and a calculator. He was arrested when he returned to the store less than an hour after the break-in. The missing property was discovered in his possession. Doe signed a confession after waiver of his rights. On September 7, 1986, Doe was placed in the Sullivan County Jail.

Everett Mechem was appointed counsel for Doe by the court for the criminal charges on September 9, 1986. Following a plea bargain, the charges were reduced and Doe pled guilty to misdemeanor charges. On September 11, 1986, Doe was sentenced to 11 months and 29 days of confinement, half of which was to be served on probation. Doe returned to the Sullivan County Jail where he was apparently incarcerated in a general holding cell. There he was allegedly harassed, assaulted and raped.

On September 22, 1987, Doe filed a section 1983 civil rights action in federal district court against Sullivan County, County Sheriff Mike Gardner, the superintendent of the jail, and various other deputy sheriffs and jail administrators. An amended complaint was filed on September 14, 1987. Doe alleged that the named defendants were responsible for the harassment, assault and rape suffered by Doe in jail. He complained that his apparent youth, slight stature and mental disability made him especially vulnerable to inmate assault and that the Sullivan County sheriffs and jailors were aware of this. Doe also alleged that the jail was overcrowded, poorly lit and that the jail personnel manning it were not properly trained in security and in the classification of prisoners. These conditions also allegedly contributed to Doe's victimization.

Trial in this case was scheduled for September 28, 1988. On September 17, 1988, Sullivan County moved to disqualify Doe's counsel, Everett Mechem because it wished to call him as a witness knowing that Mechem had represented Doe during the prior criminal proceedings. The district court entered an order granting the motion on October 3, 1988. A subsequent motion to reconsider was denied on October 28, 1988. Doe now seeks a writ of mandamus directing the district court to vacate its order entered October 3, 1988.

The Supreme Court has not specifically addressed the question of mandamus challenges to disqualification orders, nor has this court ever addressed this issue. ² Several recent Supreme Court cases regarding the use of interlocutory appeal to review disqualification orders as well as the extraordinary nature of mandamus lead us to conclude, however, that the writ is not the proper vehicle for voicing such challenges.

In Allied Chemical Corp. v. Daiflon Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam), the Supreme Court considered a petition for writ of mandamus directing a federal district court to restore a jury verdict. The district court had granted a motion for new trial following the verdict after the court concluded that it had erred in a number of its evidentiary rulings. Id. at 33, 101 S.Ct. at 188. The Court found that "[a]n order granting a new trial is interlocutory in nature and therefore not immediately appealable." Id. at 34, 101 S.Ct. at 190. Consequently, the Court saw the question presented in the case as "whether a litigant may obtain a review of an order concededly not appealable by way of mandamus." Id. That is, may a party obtain review of an order through mandamus when review could not be obtained through interlocutory appeal.

In the present case, Doe does not concede that an order disqualifying counsel is not immediately appealable. The Supreme Court, however, has forbidden interlocutory appeals of orders disqualifying counsel in civil cases. In Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), the Supreme Court considered whether a district court order disqualifying counsel in a civil case was a "final decision" granting jurisdiction to the courts of appeals under 28 U.S.C. Sec. 1291. The Court concluded that "[a]n order disqualifying counsel in a civil case is not a final judgment on the merits of the litigation." Id. at 430, 105 S.Ct. at 2761. The Court also held that orders disqualifying counsel in civil cases do not come within the "collateral order" exception to the final judgment rule of section 1291 announced by the Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Court in Koller also found that "[a]bsent a requirement of prejudice, the propriety of the trial court's disqualification order can be reviewed as effectively on appeal of a final judgment as on an interlocutory appeal." Koller, 472 U.S. at 438, 105 S.Ct. at 2765. The Court noted that it had "never held that prejudice is a prerequisite to reversal of a judgment following erroneous disqualification of counsel in either criminal or civil cases." Id. Because "the disqualification ruling may be challenged on appeal of a final judgment" id. at 435, 105 S.Ct. at 2763, the right affected by the ruling need not be protected by appeal prior to judgment.

In reaching this conclusion, the Court in Koller relied in part on two prior decisions, Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) and Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). In Firestone the Court held that a district court order denying a motion to disqualify counsel was not subject to immediate appeal under the "collateral order" exception to section 1291. Firestone, 449 U.S. at 377, 101 S.Ct. at 675 ("An order refusing to disqualify counsel plainly falls within the large class of orders that are indeed reviewable on appeal after final judgment, and not within the much smaller class of those that are not."). Similarly, in Flanagan the Court held that a district court's order disqualifying defense counsel in a criminal case is not subject to immediate appeal under the "collateral order" exception. This decision was due in part to a longstanding policy against piecemeal appellate litigation, especially in the context of criminal prosecution. Flanagan, 465 U.S. at 264-65, 104 S.Ct. at 1054.

Koller, Firestone and Flanagan do not of themselves constitute a bar to mandamus challenges to disqualification orders. These cases do, however, indicate the importance of immediate appeal of such orders. This in turn is relevant as to the propriety of mandamus in this context.

Although this court "clearly has the power to issue a writ pursuant to the All Writs Statute, 28 U.S.C. Sec. 1651," In re Bendectin Products Liability, 749 F.2d 300, 303 (6th Cir.1984) (citations omitted), mandamus remains a drastic remedy "to be invoked only in extraordinary situations." Kerr v. United States District Court for the Northern District of California, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976) (citing Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967)). To insure that the writ of mandamus is issued only in such extraordinary circumstances, the party seeking the writ must satisfy two conditions. First, the party seeking the writ must "have no other adequate means to attain the relief he desires." Allied Chemical Corp., 449 U.S. at 35, 101 S.Ct. at 190 (citing Kerr, 426 U.S. at 403, 96 S.Ct. at 2124; Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). Second, the petitioner must "satisfy 'the burden of showing that [his] right to issuance of the writ is "clear and indisputable." ' " Id. (citing Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106 (1953), quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43 L.Ed. 559 (1899)). See also In re Post-Newsweek Stations, Michigan Inc., 722 F.2d 325, 329 (6th Cir.1983).

Doe fails to satisfy both of these conditions in the present case. First, he cannot show that he has no adequate means, other than mandamus, of attaining the relief he desires. Orders disqualifying counsel "may be challenged on appeal of a final judgment." Koller, 472 U.S. at 435, 105 S.Ct. at 2763. It may be true that "[a] mistaken ruling...