Munoz v. Hauk, 26587.

• Decision Date: 17 March 1971
• Docket Number: No. 26587.,26587.
• Citation: 439 F.2d 1176
• Parties: Rosalio U. MUNOZ and Michael E. Tigar, Petitioners, v. Hon. A. Andrew HAUK and Hon. Jesse W. Curtis, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

439 F.2d 1176 (1971)

Rosalio U. MUNOZ and Michael E. Tigar, Petitioners, v. Hon. A. Andrew HAUK and Hon. Jesse W. Curtis, Respondents.

No. 26587.

United States Court of Appeals, Ninth Circuit.

March 17, 1971.

Carol K. Smith, Michael E. Tigar, Los Angeles, Cal., for petitioners.

Robert L. Meyer, U.S. Atty., Los Angeles, Cal., for respondents.

Joseph A. Ball, Long Beach, Cal., J. E. Simpson, Philip F. Westbrook, Jr., Los Angeles, Cal., for respondents, appearing as amici curiae for respondents at the request of the State Bar of California.

Before DUNIWAY, ELY, and HUFSTEDLER, Circuit Judges.

PER CURIAM:

This Petition arises out of United States v. Munoz, District Court No. 6540, a criminal proceeding in which Munoz is charged with having violated the Military Selective Service Act of 1967, 50 U.S.C.App. § 451 et seq. To represent him in the criminal proceeding, Munoz sought the assistance of Michael Tigar, his co-Petitioner in this court. In June, 1969, Tigar was appointed acting professor of law at the University of California at Los Angeles When he took up the position he became, and ever since has been, a resident of California. He has never sought admission to the California bar. For the purpose of representing Munoz, he applied for admission, pro hac vice, to the Bar of the United States District Court for the Central District of California. He had never theretofore appeared as an attorney in the Central District, nor had he previously sought leave to do so. A hearing on the application was conducted by the Honorable A. Andrew Hauk, to whom Munoz' criminal case had been assigned for the purpose of arraignment and plea. The evidence produced at such hearing contains no suggestion that Tigar is morally or professionally unfitted for the practice of law or for admission to the Bar of any federal court. Tigar is a graduate of the Law School of the University of California at Berkeley and has been admitted to practice before the United States District Court and the United States Court of Appeals for the District of Columbia. He represented that, were he to be granted leave to assist Munoz, he would do so without fee.

Judge Hauk denied Tigar's application to appear pro hac vice for the representation of Munoz. In doing this, Judge Hauk, as we have already indicated, did not suggest that Tigar was morally or professionally unfit. He based his ruling solely upon the provisions of Rule 1(d), Rules of the District Court for the Central District of California. Rule 1(d) read, in pertinent part, as follows:

"Any member in good standing of the Bar of any United States Court, or of the highest Court of any State or of any Territory or Insular possession of the United States, who has been retained to appear in this Court, and who is not a resident of this District, or does not maintain an office in this District for the practice of law, may be permitted after application, without previous notice, to appear and participate in a particular case. * * *" (emphasis added)

Judge Hauk apparently interpreted the quoted Rule as permitting the admission to the Bar of the Central District, pro hac vice, only of those attorneys who are non-residents of the Central District and who do not maintain an office for the practice of law in the Central District. As Tigar is a resident of the Central District, the Rule, so interpreted, would not permit his admission. The Petitioners argue that the italicized word "or" in the quoted Rule should not have been equated with the conjunctive "and."

Following Judge Hauk's denial of Tigar's application, a plea of not guilty was entered on Munoz' behalf, and his criminal case was transferred to the Honorable Jesse W. Curtis, whose name had been drawn by lot, for all further proceedings. Judge Curtis did not receive additional evidence in connection with Tigar's application. He, as had Judge Hauk, based his denial of the application upon the sole and only ground that Rule 1(d) did not authorize the admission, pro hac vice, of an attorney in Tigar's position. This Petition for Mandamus followed. Since the Petition possibly presented at least one constitutional problem. (See Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968)), our court called for responses under the provisions of Rule 21, Fed.R.App.P.

Within the time prescribed, responses were filed. Since it then appeared that the Honorable A. Andrew Hauk was no longer concerned with Munoz' case, we denied the Petition insofar as it was directed to Judge Hauk. Shortly before we took this action, it came to our attention that District Judge Warren J. Ferguson had granted Tigar's application to appear pro hac vice as an attorney for the defendant in United States v. Smith, 321 F.Supp. 424, in the Central District of California, and that a hearing had been conducted in connection therewith. We thereupon, when we entered our order denying the Petition as against Judge Hauk, called for a transcript of the hearing conducted by Judge Ferguson. That transcript has now been received. It reveals that Professor Tigar has also been admitted, from time to time, to the Bars of a United States District Court of Missouri, a United States District Court of Illinois, a United States District Court of Washington, the United States District Court of the Eastern District of California, and the United States District Court of the Eastern District of Louisiana. During the proceedings before Judge Ferguson, a discussion occurred concerning the effect of the Central District's Rule 1(d). At the conclusion thereof, and in granting Tigar's application, Judge Ferguson remarked: "The Court finds that the application is well taken. That it is permitted under...