author: WILLIAM E. DOYLE, Circuit Judge.

text:
    William R. BURKETT et al., Appellants, Petitioners, v. Stephen S. CHANDLER, United States District Judge for the Western District of Oklahoma, Respondent. David HALL and Jo Evans Hall, Plaintiffs-Appellees, v. William R. BURKETT, United States Attorney for the Western District of Oklahoma, and Clyde L. Bickerstaff, Oklahoma District Director, Internal Revenue Service, Defendants-Appellants.
    Nos. 74-1120, 74-1297 and 74-1298.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 12, 1974.
    Decided Nov. 7, 1974.
    Rehearing Denied Jan. 29, 1975.

      Neil H. Koslowe, Atty., Dept, of Justice (Carla A. Hills, Asst. Atty. Gen., and Leonard Schaitman, Atty., Dept, of Justice, on the brief), for petitioners-appellants and defendants-appellants.
    Walter A. Steele, Denver, Colo., for respondent and appellee, Stephen S. Chandler.
    Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

■ This is an appeal together with extraordinary writs which seek to set aside judgments disbarring from the practice of law and citing for contempt the United States Attorney for the Western District of Oklahoma and several of his assistants. The cases in this court arise out of a Western District of Oklahoma proceeding, No. 74-30-C, in which David Hall, Governor of Oklahoma, and his wife, Jo Evans Hall, were plaintiffs. It sought injunctions against the United States Attorney and other federal officers.

The underlying controversy giving rise to all of this litigation arose from an investigation by the Justice Department and the Director of Internal Revenue of possible income tax evasion by Governor Hall. Dorothy Pike was an important witness in behalf of the government. Allegedly, under the auspices of the Internal Revenue Service, she was secreted in Arlington, Virginia. Her whereabouts was not known to either the Halls or to Judge Chandler. Her specific whereabouts was at first unknown to Mr. Burkett, but Judge Chandler believed that the information was accessible to Mr. Burkett and that he was not cooperating. Thus, the bone of contention was where she was, whether she was subject to having her deposition taken and whether the United States Attorney could and would produce her.

No. 74-30-C has generated several consolidated matters which are presently before us. Number 74-1120 is a petition for writ of mandamus; Number 74-1297 is an appeal from the judgments of disbarment; and Number 74-1298 is an appeal from an order to show cause for contempt.

THE PROCEEDINGS IN DISTRICT COURT

Number 74-29-C was a petition to perpetuate the testimony of one Dorothy Pike who had been Governor Hall’s secretary. Number 74-30-C essentially sought to enjoin interference with the efforts of Hall to communicate with Dorothy Pike. The definitive allegation was invasion of the Halls’ civil rights.

Number 74-30-C, the injunction action, was assigned to Judge Chandler who appears as an appellee-respondent. The main effort of the several hearings was to locate and bring the witness Dorothy Pike before the court for the giving of testimony.

On January 30, 1974, an application was made by the United States Attorney and the Director of Internal Revenue Service for writ of prohibition and mandamus. This court ordered that a writ issue directing the respondent to show cause within 10 days why the writ should not be made permanent and that pending final disposition of the petition further proceedings in the district court were to be stayed.

On March 11, 1974, Judge Chandler issued the judgments of disbarment against the United States Attorney and his assistants, the other individual appellants (in Mise. No. 7). That judgment charged that appellants had wilfully and corruptly aided and abetted and conspired with Burkett to conceal the whereabouts of Dorothy Pike from the court and from the United States Marshal; that Burkett had committed perjury at one of the hearings; and that the other appellants had known of this and had failed to reveal it to the court and were, on this account, guilty of misprision of a felony. A further charge in the disbarment judgment was that the appellants had conspired to violate the civil rights of Governor Hall and his wife and had concealed from the court an application for writ of prohibition and mandamus (the one filed in this court on January 30, 1974).

Also, on March 11, 1974, Judge Chandler issued an order directed to the appellants to show cause why they should not be punished for civil and criminal contempt for having obstructed justice by concealing the whereabouts of Mrs. Pike, for having committed perjury and for having been guilty of misprision of a felony.

On March 12, 1974, an application for writs of prohibition and mandamus were filed in this court challenging the disbarment and contempt orders. On that same day this court issued its order staying the order of disbarment until further order. On March 21, 1974, a clarifying order was issued providing that the stay of March 12 applied also to the citation for contempt.

The issue presented to us is whether the actions of the district court disbarring the appellants and charging them with contempt were valid. Appellants-petitioners seek to set aside the orders saying they are invalid and unconstitutional. The text of the judgment of disbarment is set forth in an appendix to this opinion.

PRIOR PROCEEDINGS IN THIS COURT

On February 1, 1974, in No. 74-1013, a temporary order was entered by this court staying the taking of the deposition of Dorothy Pike at the time and on the date specified in the court order until further order of this court. This pertained to Cause No. 74-30-C in the district court. At the same time, an order was entered directing the respondent to show cause why the writ should not be made permanent. Subsequently, a response was filed in accordance with the said order. The respondent also sought to clarify its position by a letter which explained that the district court had not exercised unlimited jurisdiction in the premises, but had merely undertaken to hear the application for a temporary injunction together with the defendants’ motion to dismiss.

On June 7, 1974, following oral arguments, we issued a per curiam order in Cause No. 74-30-C. A copy of this order is appended hereto. It recites that the above numbered district court action sought to enjoin the United States Attorney, the Director of Internal Revenue and others from conducting an investigation of the Honorable David Hall, Governor of Oklahoma, and that an effort had been made in these proceedings to take the deposition of Dorothy Pike, former secretary to Governor Hall. The essential holding was that the district court lacked jurisdiction to entertain this action since it sought to enjoin public officials from carrying out their duties; that it was in effect then a suit against the United States. The writ of prohibition was issued. The perpetuation action, No. 74-29-C, was not included in the writ.

THE EVIDENCE BEFORE JUDGE CHANDLER ANTECEDENT TO THE ISSUANCE OF THE DISBARMENT AND CONTEMPT ORDERS

On January 17, 1974, Mr. Burkett in testimony before Judge Chandler denied that the defendants in No. 74-30-C were interfering with the plaintiffs’ efforts to see Mrs. Pike. According to Burkett, the government’s access to Dorothy Pike was through the latter’s sister in Missouri.

Although Judge Chandler did not order the United States Attorney’s office to produce her, he made “suggestions” several times that the government agents cooperate in producing her or in obtaining the information as to her whereabouts so that the plaintiffs could proceed. The United States Attorney’s position was that he would not voluntarily assist in locating her.

On January 18 there was another hearing, and here again Judge Chandler repeatedly urged the parties to cooperate in getting the testimony of Dorothy Pike. The Judge ordered that a subpoena issue for her deposition. He suggested that counsel call her up and ask her to appear. Burkett stated his position as being that the government objected to subpoenaing Mrs. Pike to testify in the proceeding and before the court. The court continued to reiterate its hope that counsel would simplify the matter or cooperate in requesting Mrs. Pike to come into court. The telephone call suggested by the Judge was not completed.

On January 21 another hearing was held. At that time Judge Chandler suggested that an attempt to prevent production of the witness was either unethical or in violation of the law.

As a next step, Judge Chandler issued a new subpoena and requested the cooperation of all agencies in locating her. Mr. Burkett reminded the court that he objected to the proceedings. His request for a stay was, however, denied.

The following day Judge Chandler announced that the subpoena that he had ordered previously had not issued and he produced a new subpoena, handed it to the Marshal and directed him to serve it. Judge Chandler at the same time declared that anyone knowing the whereabouts of Mrs. Pike had the legal and ethical duty to advise the Marshal. On January 28, 1974, the Judge ordered the parties to assist in the search for Mrs. Pike. On that same day Mr. Burkett sent a memorandum to Mr. Bickerstaff, the Oklahoma Internal Revenue Director, stating that the Internal Revenue Service employees should be questioned as to her whereabouts and that he (Bur-kett) should be advised in writing as to the results of the inquiry. Soon thereafter, Mrs. Pike was found in Arlington, Virginia and the information was given to the Marshal. She was served a subpoena in Arlington at 4:00 p. m. on January 29. Meanwhile, Mr. Burkett sought relief by extraordinary writ in this court. A copy of this latter petition was given to Judge Chandler.

A stay was issued by this court and we ordered respondent to show cause why the writ should not be made permanent. Judge Chandler was concerned that he had not been notified of the filing of the petition and that this court had not been notified by Burkett of Judge Chandler’s desire to be heard. Mr. Burkett stated that there had not been a hearing and he had not made any oral presentation.

The judgments of disbarment against the United States Attorney and his assistants followed on March 11, 1974. Subsequently, the order of this court in No. 74-1013 holding that the district court lacked jurisdiction to proceed and making permanent the preliminary writ was entered. This, as has been previously explained, pertained to the deposition proceedings of Dorothy Pike.

I.

THE DISBARMENT PROCEEDINGS

It is apparent from the foregoing that a legal tug-of-war was taking place between Judge Chandler and the United States Attorney. It seems plain that the whereabouts of Dorothy Pike was ascertainable because once the Judge ordered something more than cooperation her whereabouts suddenly became known. The question then is whether the failure of Mr. Burkett to cooperate fully justified the imposition of the sanctions — • disbarment and contempt.

Defendants contend that the disbarment proceedings were void because there was neither a formal complaint, prior notice given, nor a hearing nor opportunity to be heard. Secondly, they contend that the evidence in the record is insufficient to support the judgment.

We first consider the contention that the procedure was invalid. The early decision of the Supreme Court in Ex parte Robinson, 86 U.S. (19 Wall.) 505, 22 L.Ed. 205 (1874), laid down the requirement that a judgment of disbarment cannot be entered without giving the attorney notice of the grounds of complaint and an opportunity to explain and defend. The Supreme Court there said:

Before a judgment disbarring an attorney is rendered, he should have notice of the grounds of complaint against him and ample opportunity of explanation and defense. There may be cases, undoubtedly, of such gross and outrageous conduct in. open court on the part of the attorney as to justify very summary proceedings for his suspension or removal from office; but even then he should be heard before he is condemned. The principle that there must be citation before hearing, and hearing or opportunity of being heard before judgment, is essential to the security of all private rights.

86 U.S. at 512-513.

The decisions of this court cited by Judge Chandler in his brief, In re Carroll, 416 F.2d 585 (10th Cir. 1969), cert. denied, 396 U.S. 1011, 90 S.Ct. 570, 24 L.Ed.2d 503 (1970) and Howard v. United States District Court, Dist. of Colorado, 318 F.2d 521 (10th Cir. 1963), are cases in which the attorney had a full hearing prior to the taking of disciplinary action. Cf. In re Ryder, 263 F.Supp. 360 (E.D.Va.), aff’d, 381 F.2d 713 (4th Cir. 1967). In the Ryder case the attorney had been guilty of an effort to conceal evidence which would have convicted his client of robbery. The facts in Ryder came out in a hearing in the main case. To prevent the continuation of the attorney in the case, the suspension order was issued. Ryder thus has nothing in common with the case at bar.

The Carroll and Howard decisions recognize the necessity for notice and hearing as prerequisites to the validity of disbarment proceedings. So also the more recent decision of the Supreme Court in In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968) demands that there be notice of the alleged professional misconduct as does Committee on Professional Ethics & Griev. v. Johnson, 447 F.2d 169 (3rd Cir. 1971). We must conclude that the disbarment judgments were proeedurally deficient and on that account were invalid.

We need not and do not consider the question whether the court’s jurisdiction over the case empowered it to disbar the appellants or to hold them in contempt for failure to comply with court orders or requests. We do not have to reach it because the facts fail to establish that Mr. Burkett’s conduct constituted the transgressions which the court found and the facts do not call for the sanctions which were imposed, and we now proceed to consider that.

We are mindful that the proceedings giving rise to the suit No. 74-30-C were adversary in the extreme. On the one hand, Governor and Mrs. Hall were seeking to utilize the process of the federal court to forestall or overcome an impending income tax investigation. On the other hand, the United States Attorney zealously sought to block these efforts. Judge Chandler was undoubtedly sincere in believing that an injustice was threatened but the action that he took was excessive and unwarranted. We note that there is far less basis for subjecting the Assistant United States Attorneys to the contempt and disbarment sanctions than exists as to Mr. Burkett, so if the proceedings as to appellant Burkett fail those against the others follow.

First, Judge Chandler found that the attorney had wilfully and corruptly conspired to conceal the whereabouts of Dorothy from the Marshal after the court had admonished them to ascertain and disclose her address and had ordered that a subpoena be served upon her.

At this point Judge Chandler had sought cooperation and the United States Attorney maintained that the court lacked jurisdiction to entertain the suit, a conclusion which was later borne out by our decision of June 10, 1974. The record fails to establish that an order was given or that the attorneys either concealed or conspired to conceal the whereabouts of Mrs. Pike from the Marshal following the exhortations or solicitations of the court.

On January 28 Judge Chandler ordered the appellants to assist in locating Mrs. Pike. This was obeyed. Immediately after this order, they did indeed aid in locating her.

We have to conclude that prior to January 28 the “orders” of Judge Chandler were not orders at all to assist in location of the witness. They were no more than requests for cooperative effort. These are not necessary predicates for disbarment or contempt.

Second, Judge Chandler found that the assistants wilfully and corruptly aided and abetted Burkett in concealing the whereabouts of Dorothy Pike. It follows from our analysis and conclusion as to the insufficiency of the evidence against Burkett that the insufficiency is even more marked as to the Assistant United States Attorneys.

Third, Judge Chandler found that Burkett committed perjury in testifying that neither he nor the Internal Revenue Service knew the whereabouts of Mrs. Pike. Burkett made clear in this testimony that he did not know the whereabouts of Dorothy Pike but he acknowledged that the Internal Revenue Service had a contact with her through her sister who lived in Southwest City, Missouri. From everything that appears in the record, this statement is true. There may have been non-cooperation, but no evidence that Burkett committed perjury.

Fourth, Judge Chandler found that the assistants knew of Mr. Burkett’s failure and were accessories after the fact. This must be also rejected. It is tenuous and frivolous.

Fifth, Judge Chandler found that the accused attorneys conspired to injure Governor and Mrs. Hall’s exercise of enjoyment of free rights.

The only evidence offered by the Halls in support of this civil rights contention was the testimony of Mr. Burkett, a newspaper article and a letter from Bur-kett to a state attorney requesting the state attorney to quash a subpoena for Mrs. Pike. The most that can be said of this is that Burkett and his assistants moved to thwart the efforts of the Halls to use the civil process of the United States court to advance their interest in avoiding an indictment. In performing these official functions, Burkett and his aides were not guilty of violating the Hall’s civil rights.

Sixth, Judge Chandler found that the appellants conspired to conceal from the court that an application for a writ of prohibition was to be filed and presented to this court on January 30, 1974, after the court had ordered that he and Governor and Mrs. Hall be notified of any such application. Admittedly, this was a request and not an order, and in any event Judge Chandler notified the court that he intended to represent himself. There is not any semblance of prejudice which resulted from the failure of Burkett to notify the judge of this fact, and in any event Mr. Burkett was never given access to and had no opportunity to communicate with the judges of this court.

II. THE CONTEMPT CITATIONS

We next consider Judge Chandler’s order of March 11, 1974, ordering the appellants-petitioners to show cause in writing why they should not be punished for both civil and criminal contempt. In passing, we note that this is not a final order within the meaning of 28 U.S.C. § 1291. Since there has not been a final adjudication of contempt or a sentence, the appeal remedy is not available. See 9 J. Moore, Moore’s Federal Practice § 110.13 [4] (1970). See also, Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67 (1936); SEC v. Naftalin, 460 F.2d 471 (8th Cir. 1972); Hyde Construction Co. v. Koehring Co., 348 F.2d 643, 647 (10th Cir. 1965), rev’d on other grounds, 382 U.S. 362 (1966). Cf. Massengale v. United States, 278 F.2d 344 (6th Cir. 1960) re necessity for punishment.

However, the matter is before us on the writ of mandamus, No. 74-1120, as well as appeal. We recognize that this writ is not to be used as a substitute for an appeal. See Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947); In re Chicago, R. I. & Pacific Ry., 255 U.S. 273, 275-276, 41 S.Ct. 288, 65 L.Ed. 631 (1921); In re Tiffany, 252 U.S. 32, 40 S.Ct. 239, 64 L.Ed. 443 (1920); Erie Bank v. United States Dist. Court for Dist. of Colo., 362 F.2d 539, 540 (10th Cir. 1966). We consider circumstances here to be exceptional and justifying entertaining the mandamus. See Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).

The order to show cause stems from the identical conduct that Judge Chandler relied on in the disbarment proceedings, and there is no necessity for repeating the evaluations already given. We merely say that the dearth of evidence in support of the adjudications is so plain that the accused attorneys are not to be subjected to meaningless procedure in connection with these contempt citations. It would be time consuming, expensive and would hinder performance of official duties. In addition, further proceedings would continue the turmoil. It is our opinion in view of this that the mandamus is an appropriate remedy here.

In United States v. Hemphill, 369 F.2d 539 (4th Cir. 1966) the. federal district judge had ordered the Secretary of Labor to answer interrogatories in an enforcement proceeding under the Fair Labor Standards Act. The Court of Appeals there held that compelling the Secretary of Labor to respond would impose great hardship and little countervailing value, and that it was proper for the Court of Appeals to issue the writ. The same is true here.

We repeat that we have not condoned refusal to obey an incorrectly entered order. Cf. Hyde Construction Co. v. Koehring Co., supra. We will meet this issue if and when there exists a need to do so.

Viewing the record as a whole, we conclude that while Mr. Burkett was unenthusiastic in his responses to the suggestions and exhortations of Judge Chandler to cooperate, we find no evidence establishing contemptuous refusal to obey specific orders and find no evi-denee that Burkett misled the court or failed in any obligations to serve the court. The lack of responsiveness to suggestions does not suffice.

Accordingly, then, since there is a dearth of evidence to support the allegations of the order to show cause, the writ must issue.

It is the order of this court that No. 74-1297 be reversed and remanded with directions to appellee, Judge Chandler, to vacate and set aside the disbarment judgments against the several appellants. It is the further order of the court that the writ of mandamus presented to us in No. 74-1120 be made final and absolute and that the order or orders to show cause why petitioners should not be held in contempt be vacated, set aside and held for naught.

APPENDIX A

MAY TERM — May 28, 1974

Before Honorable Delmas C. Hill, Honorable Robert H. McWilliams and Honorable William E. Doyle, Circuit Judges

WILLIAM R. BURKETT, etc., et al.,

Petitioners,

STEPHEN S. CHANDLER, United States District Judge for the Western District of Oklahoma,

Respondent.

No. 74-1013

June 7, 1974

PER CURIAM ORDER

Petitioners seek writs of prohibition and mandamus against the Honorable Stephen S. Chandler. The thrust of the District Court proceedings in cause No. 74-30-C against which extraordinary writs are sought is to enjoin the United States Attorney, the Director of Internal Revenue and their agents and servants from proceeding to conduct an investigation against the Honorable David Hall, Governor of Oklahoma. In connection with these proceedings in the Distinct Court, an effort has been made to take the deposition of Dorothy Pike, former secretary to Governor Hall, the basis being that the testimony is essential to the defense of Governor Hall in the mentioned investigative proceedings.

An order to show cause has issued, oral arguments have been presented, briefs have been filed and it is now concluded that the action of the District Court has been and is now without jurisdiction in that the suit would seek to enjoin the defendants, petitioners here, from pursuing official duties. Thus, it is outside the jurisdiction of the District Court. See Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947).

In Dugan v. Rank, supra, property owners sought to enjoin officials of the Bureau of Reclamation from impounding water behind a federal dam. The Supreme Court decided that such action against officials who were acting within the scope of their statutory authority was in effect a suit against the United States without its consent.

Larson v. Domestic & Foreign Corp., supra, involved an action to enjoin the War Assets Administrator from selling surplus coal to any person other than the plaintiff. The Supreme Court dismissed the case on the grounds that it attempted to restrain a public official from performing his statutory function. However, the Court in Larson recognized two exceptions to the doctrine of sovereign immunity. These are; (1) actions by officers beyond their statutory powers and (2) although the actions by officers are within the scope of their powers, the powers themselves or the manner in which they are exercised are unconstitutional. Since neither of these exceptions applies to the case at bar, we conclude that the defendants in this action were immune from suit. See also Junior Chamber of Commerce of Rochester v. United States Jaycees, 495 F.2d 883 (10th Cir. 1974); National Helium Corp. v. Morton, 486 F.2d 995 (10th Cir. 1973).

It follows that the petitions for writ of prohibition and mandamus in cause No. 74-30-C in the district court, the injunction action against the United States Attorney and the Director of Internal Revenue, must be granted. The rule to show cause is made absolute, and it is ordered that the cause in the district court should be and the same is hereby dismissed.

The above order does not affect cause No. 74-29-C, the action seeking to perpetuate testimony.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

IN RE: WILLIAM R. BURKETT

JEFF R. LAIRD

JAMES M. PETERS

FLOY E. DAWSON

O. B. JOHNSTON III and

G. PHIL HARNEY

- Miscellaneous No. 7

JUDGMENT OF DISBARMENT

On this 11th day of March, 1974, the Court having considered the matters which have heretofore transpired in the very presence of the Court while sitting in and hearing

Civil Action Number 74-30-C pending in this Court entitled David Hall and Jo Evans Hall v. William R. Burkett, United States District Attorney for the Western District of Oklahoma; and Clyde L. Bickerstaff, District Director, Internal Revenue Service

and having carefully reviewed the entire record in said action, concludes that it is his duty under the law and the Canons of Judicial Ethics to disbar from the practice of law in the United States District Court for the Western District of Oklahoma,

WILLIAM R. BURKETT, United States District Attorney for the Western District of Oklahoma;
JEFF R. LAIRD, First Assistant United States District Attorney for the Western District of Oklahoma; JAMES M. PETERS,
FLOY E. DAWSON and
0. B. JOHNSTON III, Assistant United States District Attorneys for the Western District of Oklahoma; and
G. PHIL HARNEY, Senior Attorney, Regional Counsel, Internal Revenue Service.

The Court upon careful consideration finds from the complete record of the evidence the facts to be that the above named members of the Bar, in violation of their oaths as members of the Bar of this Court and in violation of their oaths as Officers of the United States

1. Did wilfully and corruptly conspire with William R. Burkett to conceal the whereabouts of Mrs. Dorothy Pike from the United States Marshal and the Court after the Court had admonished them to ascertain and disclose her address and had ordered a subpoena issued and served upon her which constitutes obstructing and impeding justice in said action.

2. Did wilfully and corruptly aid and abet William R. Burkett in concealing the whereabouts of said Mrs. Dorothy Pike.

3. William R. Burkett did testify under oath that neither he nor the Internal Revenue Service nor their employees and agents knew the whereabouts of Mrs. Pike when in truth and in fact he knew that he could obtain her address and failed to reveal said fact, which constituted perjury.

4. The fact that William R. Burkett had not told the whole truth was known to Jeff R. Laird, James M. Peters, Floy E. Dawson and O. B. Johnston III and G. Phil Harney and they failed to reveal the fact to the Court which constituted the crime of Misprision of Felony.

5. Did conspire to injure David Hall and Jo Evans Hall in the free exercise and enjoyment of their civil rights and privileges secured to them by the Constitution and laws of the United States in violation of Title 18 U.S.C. 241.

6. The said attorneys did conspire to conceal from the Court that an Application for Writ of Prohibition and Mandamus would be filed and presented to the United States Court of Appeals for the Tenth Circuit on January 30, 1974, in

Original Action Number 74-1013 entitled William R. Burkett, United States Attorney for the Western District of Oklahoma; and Clyde L. Bickerstaff, District Director, Internal Revenue Service

after the Court had ordered in

Civil Action Number 74-30-C pending in this Court entitled David Hall and Jo Evans Hall v. William R. Burkett, United States District Attorney for the Western District of Oklahoma; and Clyde L. Bickerstaff, District

Director, Internal Revenue Service that he and the real parties in interest be notified of any such application so that they could appear and defend and said William R. Burkett did file such an Application and obtain an ex parte Writ of Prohibition prohibiting further proceedings in Civil Action Number 74-30.

All in violation of the Professional Code of Ethics and Title 18 U.S.C. § 2, § 1503, § 241, § 371, § 401, § 402, § 1621, § 1622, § 1623.

THEREFOR°E, pursuant to Rule 4 (j) (1) of the Rules of the United States District Court for the Western District of Oklahoma, adopted January 1, 1971,

IT IS ORDERED AND ADJUDGED that

WILLIAM R. BURKETT

JEFF R. LAIRD

JAMES M. PETERS

FLOY E. DAWSON

O. B. JOHNSTON III and

G. PHIL HARNEY

are hereby DISBARRED and the Clerk of this Court is hereby ORDERED to strike their names from the roll of attorneys admitted to practice before the United States District Court for the Western District of Oklahoma.

In accordance with Rule 4(j)(l) said attorneys are advised that if they care to seek relief from this judgment by written Petition and care to show cause for the relief sought, they are ordered to file such a Petition with supporting brief in the Office of the Clerk of this Court on or before the 21st day of March, 1974.

The United States Marshal is ordered to make personal service of this Judgment upon each of named parties forthwith.

The Clerk of the Court is ORDERED to transmit forthwith a photostatic copy of this Judgment of Disbarment and the entire transcript of the evidence and proceedings in

Civil Action Number 74-30-C pending in this Court entitled David Hall and Jo Evans Hall v. William R. Burkett, United States District Attorney for the Western District of Oklahoma; and Clyde L. Bickerstaff, District Director, Internal Revenue Service

to The Attorney General of the United States of America and to the Oklahoma State Bar.

(s) Stephen S. Chandler

UNITED STATES DISTRICT JUDGE

ENTERED IN JUDGMENT DOCKET ON MAR. 11,1974.

By: Ruth T. Olsen

      . In this court Judge Chandler is represented by an outstanding member of the Colorado Bar, Walter A. Steele. We appointed Mr. Steele, and his representation of Judge Chandler has been and is excellent.

      . Mr. Burkett had also filed on that same day a motion to dismiss to which was appended a handwritten affidavit of Dorothy Pike stating that she had requested and received protection from the Internal Revenue Service because of fear for her personal safety and stating that she was free to come and go as she wished.

      . On this the Judge said :
      Of course I realized that you gentlemen, here, would know that it would be, to say the least, unethical and also, being lawyers, would realize that to attempt to keep her from appearing would be a violation of the criminal laws of the United ¡States, Section 1503, and Section 2 of Title 18, which provides that it would constitute obstructing and impeding justice, and would be a felony, which would apply not only to anyone doing the obstructing or the impeding but to anyone aiding or abetting, and who would be the same as a principal and that would constitute a felony.

      . He later said :
      I would flunk that the defendants in the action would furnish me with whatever facilities they have to expedite it and assist. I don’t want her arrested and brought in here. ... I believe that as soon as she’s informed by anybody that this Court has process out for her . . . and that all of the defendants and the plaintiffs and the Court want her to he either deposed somewhere or to come here . . . that she will come in.

      . We have considered fully the contention of Judge Chandler that in adjudging the disbar-ments he acted consistently with Local Rule 4(j) (1) which gave petitioners-appellants a remedy to seek a review of the disbarment judgments. To the extent that the Rule allows entry of a final judgment of disbarment witliout a hearing, it conflicts with the Supreme Court and other federal court decisions. On that account, we have had to reject this argument advanced by respondent. The finality of the adjudications here is unquestionable. It is equally clear that there were no hearings.

      . We have put to one side the question whether the lack of jurisdiction in the main lawsuit itself precluded the disbarment and contempt j)roceedings. See Hyde Construction Co. v. Koehring Co., 348 F.2d 643, 647 (10th Cir. 1965), rev’d on other grounds, 382 U.S. 362, 86 S.Ct. 522, 15 L.Ed.2d 416 (1966). In that case our court recognized that in a criminal contempt proceeding (which this purports to be) the court has the power to punish the actions constituting an affront to its dignity regardless of whether the order which was disobeyed was valid or not. Civil contempt was distinguished as being dependent on the validity of the order since it accrues to the benefit of the opposing party.

      . See Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957).

      . The Supreme Court explained that a suit against public officials is considered a suit against the sovereign “if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ . . or if the effect of the judgment would be ‘to restrain the Government from acting or to compel it to act.’” 372 U.S. at 620, 83 S.Ct. at 1006.


source: Caselaw Access Project

author: OPINION EUGENE A. WRIGHT, Circuit Judge:

license: Public Domain

text:
    In the Matter of Andrew KANTER and Carole Kanter, Bankrupts. Andrew R. KANTER and Carole Kanter, Petitioners-Appellants, v. Richard M. MONEYMAKER, Trustee, Respondent-Appellee.
    No. 73-1024.
    United States Court of Appeals, Ninth Circuit.
    Nov. 1, 1974.

      Leonard A. Goldman (argued), of Goldman, Goldman & Arnold, Los Ange-les, Cal., for petitioners-appellants.
    Gary J. Miller (argued), of Danning, Gin & Michaelson, Sherman Oaks, Cal., for respondent-appellee.
   OPINION

Before WRIGHT and GOODWIN, Circuit Judges, and EAST, District Judge.

EUGENE A. WRIGHT, Circuit Judge:

The appellant, Andrew Kanter, sustained injuries in an automobile accident in March 1970. In March of the following year, he filed suit in state court and two weeks later petitioned for adjudication as a bankrupt. The trustee, appel-lee herein, asserted that the personal injury lawsuit was an asset of the bankrupt estate and sought a determination to that effect by the bankruptcy judge.

The bankruptcy judge found that among Kanter’s debts were substantial medical bills resulting from the accident which was the subject of the state court action. The judge concluded that title to the personal injury action vested in the trustee and this was affirmed by the district court. In Re Kanter, 345 F.Supp. 1151 (C.D.Cal.1972).

The question before the district court and before us is whether Cal.Code Civ. Pro. § 688.1(b) so frustrates the full effectiveness of sections 70, sub. a(5) and 70, sub. c of the Bankruptcy Act that it is rendered invalid by the Supremacy Clause, Art. VI, Cl. 2. The district court found that the California law was in conflict with the Bankruptcy Act and declared the state provision unconstitutional. We affirm.

In Carmona v. Robinson, 336 F.2d 518 (9th Cir. 1964), we held that the predecessor to § 688.1 permitted a trustee in bankruptcy to include a personal injury action of the bankrupt among the estate’s assets, pursuant to § 70, sub. a(5) of the Bankruptcy Act. Subsequent to Carmona, California amended its law in an attempt to deny this right to the trustee, adding subsection (b) to former § 688.1. The legislative sponsor of the amendment stated:

The legislation was necessary since I was under the opinion that the law was then that — general damages in a personal injury cause of action, were assets of the bankrupt estate. And it was my desire to change this and the legislature obviously agreed when they enacted the bill.

The estate of the bankrupt does not include property which is exempt under state law, §§ 6 and 70, sub. a, Holden v. Stratton, 198 U.S. 202, 25 S.Ct. 656, 49 L.Ed. 1018 (1905). State law controls as to the validity of a particular exemption claim, In Re Jackson, 472 F.2d 589, 590 (9th Cir. 1973), and the exemption statutes of California are to be applied with liberality, Love v. Menick, 341 F.2d 680, 682 (9th Cir. 1965).

California obviously has the right to amend its law to expand the classes of property which are exempt from the claims of creditors, seeking to give debtors a “new opportunity in life and a clear field for future effort,” one of the goals of the Bankruptcy Act, Lines v. Frederick, 400 U.S. 18, 19, 91 S.Ct. 113, 27 L.Ed.2d 124 (1970), citing Local

Loan v. Hunt, 292 U.S. 234, 244, 245, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). Such an expanded exemption would, by operation of § 6 and § 7, sub. a or § 70, sub. a(5), remove the exempted property from the reach of the trustee in ■bankruptcy.

The district court approved the finding of the bankruptcy judge that § 688.1(b) is not an exemption statute, Kanter, supra 345 F.Supp. at 1155. We agree. The Bankruptcy Act recognizes the exemptions provided by state law in an effort to assist the bankrupt in making a fresh start, to protect the expectations of creditors and debtors under state law, and to eliminate any inducement for creditors to seek involuntary bankruptcy petitions as a means of reaching assets unavailable to them in state courts because of exemption provisions.

However, in recognizing state exemptions Congress did not provide the states with a free hand to circumscribe the powers of the bankruptcy trustee. It merely sought to recognize the limitations imposed by state law on the ability of creditors to reach the assets of debtors. “[I]f such exempt property is not subject to levy and sale under those statutes, then it cannot be made to respond under the act of Congress.” Smalley v. Laugenour, 196 U.S. 93, 97, 25 S.Ct. 216, 217, 49 L.Ed. 400 (1905), Flickinger v. McGavick, 262 F.2d 593, 594 (9th Cir. 1958); 1A Collier on Bankrutcy U 6.-14 at 869.

Section 688.1 is not such a general exemption provision. It specifically permits judgment creditors to obtain a lien on a debtor’s cause of action, and only limits the power of an “assignee by op-eratio'n of law,” a term intended to reach the trustee in bankruptcy. Hence it cannot be an exemption provision within the meaning of §§ 6 and 70, sub. a.

Similarly § 688.1 falls within the proviso in § 70, sub. a(5) since it specifically subjects a debtor’s cause of action to judicial process.

The operative effect of § 688.1(b) limits the powers of the trustee under § 70, sub. c:

The trustee shall have as of the date of bankruptcy the rights and powers of: (1) a creditor who obtained a judgment against the bankrupt upon the date of bankruptcy, whether or not such a creditor exists ....

11 U.S.C. § 110(c) (1970). It seeks also to prevent the vesting of the debtor’s cause of action in the estate through the operation of § 70, sub. a(5).

In Perez v. Campbell, 402 U.S. 637, 644, 91 S.Ct. 1704, 1708, 29 L.Ed.2d 233 (1971), the Court held in invalidating an Arizona statute which conflicted with the provisions of the Bankruptcy Act that:

Deciding whether a state statute is in conflict with a federal statute and hence invalid under the Supremacy Clause is essentially a two-step process of first ascertaining the construction of the two statutes and then determining the constitutional question whether they are in conflict.

The Supreme Court has held that “one of the prime purposes of the bankruptcy law has been to bring about a ratable distribution among creditors of a bankrupt’s assets; to protect the creditors from one another.” Young v. Hig-bee Co., 324 U.S. 204, 210, 65 S.Ct. 594, 597, 89 L.Ed. 890 (1945); Hassen v. Jonas, 373 F.2d 880 (9th Cir. 1967). To this end, “The main thrust of § 70(a)(5) is to secure for creditors everything of value the bankrupt may possess in alienable or leviable form when he files his petition.” Lines v. Frederick, 400 U.S. 18, 19, 91 S.Ct. 113 (1970), citing Segal v. Rochelle, 382 U.S. 375, 379, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966).

There has been no state court opini-nion construing § 688.1(b). However, its intent seems clear in light of the statement of its legislative sponsor, supra. Moreover, the district court has construed the statute unequivocally to apply to the trustee and to limit his powers, 345 F.Supp. at 1156. We have held that “a district judge’s interpretation of the law of the state where he sits will not be overturned unless clearly wrong, particularly if the highest state court has not passed on the matter.” Douglas v. Beneficial Finance Co. of Anchorage, 469 F.2d 453, 455 (9th Cir. 1972).

Section 688.1(b) thus “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941), since it would operate to deny to the trustee assets which could ordinarily be reached in satisfying the claims of general creditors. Subsection (b) revives the race to the courthouse by creditors seeking to avoid the threat of having both their claims discharged and the assets necessary to satisfy them denied to the trustee. As the Court noted in Perez, supra at 652, 91 S.Ct. at 1712, “any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause.”

Since we decide this case on the basis of the Supremacy Clause, we need not consider whether § 688.1(b) is also infirm as a violation of the Equal Protection Clause of the 14th Amendment.

The decision of the district court is affirmed.

       Of the District of Oregon.

      . Nothing in this section shall he construed to permit an assignee by operation of law of a party to a personal injury action to acquire any interest in or lien rights upon moneys recovered by such party for general damages.

      . 70, sub. a(5), 11 U.S.C. § 110(a)(5) (1970) :
      “The trustee . . . shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under liis Act, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located . . . (5) property, including rights of action, which prior to the filing of the petition lie could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered: Provided, That rights of action ex delicto for . . . injuries to the person of the bankrupt . , . shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial jirocess. . .

      . Statement of Honorable Edwin L. Z’Berg, Member of Assembly, California Legislature, draftsman of section 688.1(b), cited in Kan-ter, supra 345 F.Supp. at 1154.

      . Carmona, supra; Skelton v. Clements, 408 F.2d 353 (9th Cir. 1969); In Re Calestini, 321 F.Supp. 1313 (N.D.Cal.1971).

      . Statement of Honorable Edwin L. Z’Berg, Kanter, supra, 345 F.Supp. at 1154. Note that the reach of the phrase arguably is broader since there are other assignees by operation of law, e.g., Cal.Code Lab. § 3852; Cal.Code Ins. § 11662; cf. Morris v. Standard Oil Co., 200 Cal. 210, 252 P. 605 (Sup. Ct.Cal.1926).

      . Takehara v. H. C. Muddox Co., 8 Cal.3d 168, 104 Cal.Rptr. 345, 501 P.2d 193 (Cal.Sup.Ct.1971).

      . Kanter, supra at 1159.


author: OAKES, Circuit Judge:

text:
    Michael MEEROPOL and Robert Meeropol, Appellants, v. Louis NIZER and Doubleday & Co., Inc., Appellees, and Fawcett Publications, Inc., Intervenor-Appellee.
    No. 1246, Docket 74-1587.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 16, 1974.
    Decided Oct. 17, 1974.

      Marshall Perlin, New York City (Samuel Gruber, Stamford, Conn., Max R. Millman, Philadelphia, Pa., of counsel), for appellants.
    Robert M. Callagy, New York City (James F. Rittinger, George Berger, Martin Stein, New York City, of counsel), for appellees.

      Before OAKES, Circuit Judge, and FRANKEL and KELLEHER, District Judges.

       Of the Southern District of New York and Central District of California, respectively sitting by designation.

   OAKES, Circuit Judge:

This appeal involves two related federal actions brought by the children of Julius and Ethel Rosenberg (the Meero-pols). The first was commenced in the United States District Court for the Southern District of New York against Louis Nizer (Nizer), the author of The Implosion Conspiracy, and his hard cover publisher, Doubleday & Co., Inc. (Doubleday); the second was commenced in the United States District Court for the District of Connecticut against Fawcett Publications, Inc. (Fawcett), the paperback publisher-licensee of the same book. The New York action set forth three counts: (1) for statutory copyright infringement, 17 U. S.C. § 101, in connection with the use of letters of Julius and Ethel Rosenberg, (2) for malicious defamation and invasion of privacy through publication of the book; and (3) for common law infringement of and for injury to appellants’ property rights in unpublished and uncopyrighted works of their parents. In the subsequent Connecticut action against Fawcett, the Meeropols’ complaint asserted the first and third counts of the New York complaint but they subsequently amended their pleadings to include a cause of action for malicious libel and invasion of privacy along the lines of the second count of the New York complaint.

This appeal is from an order of United States District Judge Harold R. Tyler, Jr., in the Southern District of New York staying the appellants from prosecuting the Connecticut action. To understand this opinion fully, it will be necessary to set forth in some further detail the rather complex procedural history of this litigation.

On June 19, 1973, when the Meeropols instituted the New York action, they moved simultaneously for a preliminary injunction enjoining Nizer and Doubleday from continuing the alleged infringement of their parents’ letters (supra note 1). On July 18, 1973, Judge Tyler denied the motion for a preliminary injunction and a cross motion of Nizer and Doubleday to dismiss the first count of the complaint. Meeropol v. Nizer, 361 F.Supp. 1063 (S.D.N.Y.1973). Answers were filed by Nizer and Doubleday admitting authorship and publication but placing in issue other material allegations of the complaint and pleading various affirmative defenses; these answers were followed by extensive discovery proceedings and pretrial motions by both parties. To date, the litigation has generated a number of written opinions and orders on the part of Judge Tyler.

In December, 1973, the Meeropols learned that Fawcett intended to publish a paperback edition of The Implosion Conspiracy which had been a hard cover best seller and book club selection. On December 7, 1973, their lawyer wrote a letter to Fawcett demanding that it cease and desist from printing, publishing or distributing the paperback edition, sending along a copy of the complaint against Nizer and Doubleday. Receiving no answer, the Meeropols instituted the Connecticut action on March 6, 1974, and sought, by way of an order to show cause, a preliminary injunction returnable before District Judge Newman on March 29, 1974.

On March 19, 1974, Fawcett, which was not a party to the New York action, applied to Judge Tyler for, and was granted, an order to show cause on March 22, 1974, why a stay of the Connecticut action should not be granted, and a temporary restraining order staying the Connecticut action until March 22 was signed. The supporting papers included an affidavit of the attorney appearing for both Fawcett and Doubleday, which presented as the principal ground for the application for a stay the argument that the defenses applicable to defendants Nizer and Doubleday in New York “will equally be applicable to Faw-cett in Connecticut” by virtue of certain contractual indemnification agreements between the parties. Further, it was argued that it would be in the interests of judicial economy to have all of the defendants litigate all of the issues in one court.

Accepting these arguments as valid, Judge Tyler subsequently granted the requested stay. While the order of Judge Tyler granting a temporary restraining order on the application of a non-party, see Zenith Radio Corp. v. Ha-zeltine Research, Inc., 395 U.S. 100, 110, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969), seems beyond his powers, we note that the order was for only a three-day period pending oral argument on March 22, 1974. At that time Judge Tyler ruled that he would stay the Connecticut action pending final disposition of the New York action on the condition that Fawcett intervene in the New York action. Thus, whatever jurisdiction the court below lacked at the time of issuing the temporary restraining order it gained when on March 28, 1974, Fawcett did move for leave to intervene and when, on April 3, 1974, that motion was granted. It is that same order of April 3, 1974, permanently staying the appellants from prosecuting the Connecticut action pending final judgment in the New York action which is the order here under appeal.

The appellants argue first that the district court had no jurisdiction to enjoin the Connecticut suit. As we have said, we assume they are correct as of the time the court below granted the temporary restraining order, since Fawcett was then a stranger to the New York proceeding. But when Fawcett was granted leave to intervene in the New York suit, the district court obtained jurisdiction for the order already granted. Where an action is brought in one federal district court and a later action embracing the same issue is brought in another federal court, the first court has jurisdiction to enjoin the prosecution of the second action. See Coakley & Booth, Inc. v. Baltimore Contractors, Inc., 367 F.2d 151 (2d Cir. 1966); National Equipment Rental, Ltd. v. Fowler, 287 F.2d 43 (2d Cir. 1961). This rule is applicable even where the parties in the two actions are not identical. See, e. g., Telephonies Corp. v. Lindly & Co., 291 F.2d 445 (2d Cir. 1961) (where an alleged infringer had sued for declaratory judgment of patent invalidity, a subsequent suit by the patent holder against the alleged infringer’s customer would be enjoined where there was an indemnity agreement running from the alleged infringer to the customer and where the customer was added as a plaintiff in the suit for declaratory relief); MacLaren v. B-I-W Group, Inc., 329 F.Supp. 545 (S.D.N.Y. 1971) (where the court in an action for a patent infringement in the Southern District of New York enjoined a suit by the patent holder against the alleged infringer’s manufacturer in the Western District of New York where there was an indemnity agreement between the manufacturer and the alleged infringer, the stay of the Western District action being on condition that the defendant manufacturer in the Western District intervene as a party defendant in the Southern District action). See also Ur-bain v. Knapp Brothers Manufacturing Co., 217 F.2d 810 (6th Cir. 1954), cert. denied, 349 U.S. 930, 75 S.Ct. 772, 99 L.Ed. 1260 (1955).

By contract, Doubleday has agreed to indemnify Fawcett for claims arising from its publication of the paperback version of Nizer’s book. Paragraph 7 of their agreement dated April 27, 1973, contains a warranty by Doubleday that the rights granted to Fawcett are owned by Doubleday and that “the book does not infringe upon any statutory or other copyright, or any right of others whatsoever; also that the book contains no matter which is contrary to law.” It also contains in the same paragraph an indemnification agreement by which Doubleday agrees to hold Fawcett harmless against any loss or expense, including counsel fees, “arising out of any breach or alleged breach of any of the foregoing warranties.” We see no conflict of interest between Doubleday and Fawcett, and indeed for all practical purposes Doubleday is the real party in interest in the Connecticut action. Under Fed.R.Civ.P. 24(a), Fawcett therefore intervened as of right in the New York action since the disposition of the New York suit might as a practical matter have impaired or impeded Fawcett’s ability to protect its interests; by intervening, Fawcett was merely following the procedure essentially approved of, if not applied, in Cresta Blanca Wine Co. v. Eastern Wine Corp., 143 F.2d 1012 (2d Cir. 1944), and International Nickel Co. v. Ford Motor Co., 108 F.Supp. 833 (S.D.N.Y.1952). It is significant that there has been no appeal from that portion of Judge Tyler’s order of April 3, 1974, which granted Fawcett’s motion for leave to intervene in the New York action.

Appellants argue next that in any event the district court erred as a matter of discretion in enjoining the Connecticut proceedings because the defendants in the two cases are not “in privity” and that adjudication of the issues in the New York action “would not be dispositive of the issues” in the Connecticut case. As to the question of privity, as previously stated, there is an agreement by Doubleday to indemnify Fawcett against claims arising out of the publication of the paperback edition. Appellants argue that the Doubleday-Fawcett indemnification is significantly more limited than one between Nizer and Doubleday since the former does not specifically cover liability for libelous writing or any violation of any right of privacy. We do not read the indemnification agreement running from Doubleday to Fawcett so narrowly. It contains a warranty that the book does not infringe upon “any rights of others whatsoever” which would extend to rights against defamation or invasion of privacy and that the “book contains no matter which is contrary to law.”

Appellants argue also that adjudication of the issues in New York would not be dispositive of the issues in Connecticut with respect to the first count of their complaint, inasmuch as Fawcett had written notice for months prior to publication of the claim of copyright misappropriation and infringement and also had notice that appellants claim both defamation and invasion of privacy. They claim that prior notice would be a decisive circumstance in determining whether the defense of fair use of the copyrighted material would be available to Fawcett. They further contend that even were the trier in New York to find good faith and innocent use by Nizer and Doubleday, such a finding would not resolve the issue of good faith on Fawcett’s part in Connecticut, so as to permit it the benefit of the fair use privilege. The fact that Fawcett may-have had prior notice of appellants’ claims does not necessarily legitimize them, however, and it had been held by the district court that

defendants are likely to prove that their book is a serious, full and readable account of what was a trial of great historical interest; that resort to quotations of certain of the Rosen-bergs’ letters is important to any serious book on their trial; and that there is little possibility of injury to the plaintiffs.

Meeropol v. Nizer, 361 F.Supp. at 1068. Thus Judge Tyler had held that “plaintiffs are unlikely to prove their first stated claim of statutory copyright infringement by reason of the appropriate defense of fair use.” Id. at 1070.

So, too, the fact that notice might have a bearing upon punitive damages were the libel and invasion of privacy claims to be substantiated, see Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) does not make the underlying claim for relief so different as to prevent the district court from staying the Connecticut action. Appellants make no claim refuting the proposition that as a matter of discretion — absent the elements of privity and differentiation of issues above mentioned — Judge Tyler’s action was incorrect, nor could they do so, since the New York action had been actively litigated, with extensive discovery, for eight months prior to the institution of the Connecticut action; the nexus of the action was New York both with respect to the parties and potential witnesses and documents; Fawcett is located in New York where its editorial work is performed as are both Nizer and Doubleday; and the only connection with Connecticut is that it is the location of Fawcett’s principal place of business.

Appellants argue finally that the granting of the stay order was an abuse of discretion because it prejudiced appellants’ rights (a) to seek a preliminary injunction in Connecticut and (b) to a jury trial against Fawcett. Neither of these contentions has any merit. In the first place, in the action against Nizer and Doubleday appellants sought “the enjoining of any possible paperback publication,” Meeropol v. Nizer, 361 F.Supp. at 1066-1067, and this claim was considered and rejected by Judge Tyler before the Connecticut action was brought. While appellants filed a notice of appeal from that order, they thereafter formally withdrew it. Thus their request for a preliminary injunction in Connecticut was an attempt to relitigate this issue.

With reference to the claim for a jury trial against Fawcett, in no event could that right be lost even though there were prior determinations of equitable claims. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). It is true that Judge Tyler has held by order dated June 27, 1974, that jury trial as to Nizer and Doubleday was waived, but that demand for a jury trial against Fawcett was “premature” since appellants’ counsel had “failed to define the issues as to Fawcett by the filing of a supplemental complaint as suggested by order of this court on April 3, 1974.” In making this order of June 27, 1974, Fawcett’s motion to strike the jury demand as to it was denied “pending the filing of a supplemental complaint.” To the extent that appellants have a constitutional right' to trial by jury on the issues surviving for trial, that right can in no way be impaired by virtue of the exercise of trial court discretion either in granting the stay of the Connecticut action or otherwise. The right to jury trial adheres in the action against Fawcett. By intervening in New York it did so subject to the timely demand made against it in the Connecticut action, and to the extent that the district court did not condition its order granting the stay and granting Fawcett’s motion for leave to intervene on the preservation of that right to jury trial, we do so now by this opinion. Cf. Christenson v. Diversified Builders, Inc., 331 F.2d 992, 995 (10th Cir.), cert. denied, 379 U.S. 843, 85 S.Ct. 82, 13 L.Ed.2d 48 (1964); 5 J. Moore, Federal Practice ¶ 38.39 [2], at 320 (2d ed. 1971).

Judgment affirmed in accordance with this opinion.

      . In essence it is charged that Nizer in The Implosion Conspiracy quoted from some 29 letters of the Rosenbergs which appeared in the book entitled Death House Letters of ISthel and Julius Rosenberg (1953), published by .Tero Publishing Co.

      . It should be mentioned that no initial demand for a jury trial was made in the New York action, but a demand for a trial by jury was made in the Connecticut action.

      . The original motion for an order to show cause was brought only by Fawcett, but on March 20, 1974, counsel representing both Doubleday and Fawcett served both the court and opposing counsel with a letter indicating that the motion was on behalf of Doubleday as well as Fawcett; counsel for the Meeropols apparently did not receive this until March 21.

      . In an opinion dated July 31, 1974, Judge Tyler granted a motion for summary judgment by Nizer and Doubleday dismissing tlie libel and invasion of privacy claims.

      . Concededly, however, prior notice to Faw-cett would not affect other issues, such as whether there was a valid copyright, whetli- ■ er appellants had standing to sue, whether some of the material was in the public domain or other affirmative defenses.

      . Appellants cite to no authority in making this claim, and we find no authority supporting their position. It may well be that appellants, in referring to the effect of notice to Fawcett of their claims, are in fact referring to the issue of damages in a statutory copyright infringement claim. Under 17 U. S.C. § 101 certain limitations in the amount of recovery for copyright infringement are not applicable when there has been “actual notice to a defendant, either by service of process or other written notice served upon him.” However, if this be so, arguments that there are different “issues” involved' in the two suits really relate only to the question of damages.
      To the extent that there are any substantive differences in the claims against different defendants, it appears to us that they may readily be handled by the trial court in its instructions, or findings or rulings of law in any trial on the merits. It is, moreover, not to be forgotten that claims under Fed. R.Civ.P. 8 consist of short and plain statements of the claim showing that the pleader is entitled to relief, not allegations of “causes of action,” thus avoiding some of the fine distinctions of common law pleading between “evidentiary facts” and “ultimate facts” and “conclusions” and eliminating the rigidity and confusion surrounding the term “cause of action.” See 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1216 et seq. Essentially the claims for relief in both the amended Connecticut and New York complaints here were the same.

      . We are rather surprised that appellees would have us give weight, but we give none, to Judge Tyler’s recollection of a telephone conversation with Judge Newman that the Connecticut court recognized that New York was the proper forum for the litigation and indeed that Judge Newman would have transferred the Connecticut action to New York.

      . Appellants’ amended complaint against Fawcett, filed in the Connecticut action, was never answered in that court because of the injunction issued with respect to that suit and Fawcett’s subsequent New York intervention. Fawcett, has since answered the complaint that was originally filed in New York against Nizer and Boubleday. But appellants have not, as requested by Judge Tyler, filed a supplemental complaint in New York naming Fawcett as a defendant. Appellants contend that this is unnecessary as Fawcett’s intervention in the New York action incorporated all of the pleadings from the Connecticut suit.

      . This may be an academic question since a timely request for a jury trial as to Fawcett was made before Judge Tyler, after Faw-cett’s intervention in the New York action. This was, however, treated as “premature” by Judge Tyler since the New York complaint had not been amended to name Faw-cett as a party. In any event, it cannot be deemed too tardy nor, in any case, under Fed.It.Oiv.P. 38(c), are the appellants required to specify the issues which they wish to have tried to a jury. The language of that rule specifically states that
      In his demand a party may specify the issues which he wishes so tried [before a jury] ; otherwise he shall be deemed to have demanded trial by jury for all the issues so triable.

      (Emphasis added.)


author: PECK, Circuit Judge.

text:
    Barbara Jean BERRY et al., Plaintiffs-Appellees-Cross-Appellants, v. SCHOOL DISTRICT OF the CITY OF BENTON HARBOR, MICHIGAN, et. al., Defendants-Appellants-Cross-Appellees.
    Nos. 71-1957 and 71-1958.
    United States Court of Appeals, Sixth Circuit.
    Nov. 1, 1974.

      Robert P. Small, Small, Shaffer & Small, Benton Harbor, Mich., for defendant-appellant-cross-appellee.

      Stuart J. Dunnings, Jr., Dunnings & Gibson, Lansing, Mich., Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., Nathaniel R. Jones, New York City, for plaintiffs-appellees-cross-appel-lants.
    Before PHILLIPS, Chief Judge and EDWARDS and PECK, Circuit Judges.
   PECK, Circuit Judge.

Plaintiffs instituted this desegregation action against the School District of the City of Benton Harbor, Michigan, members of the local school board and the district’s chief administrative officer in 1967, alleging unconstitutional segregation and inferior educational opportunities for black students. The case was tried before the late Judge W. Wallace Kent, Western District, Michigan, in February 1970. In the findings of fact and conclusions of law announced in July 1971 the court found that although a racial imbalance existed in the school district, defendants had not created it and had no affirmative legal duty to adopt a system wide remedial plan. The court, however, did find defendants guilty of discrimination in three areas: (1) assignment of teaching positions; (2) use of different systems to establish learning groups at three junior high schools; and (3) budgeting for operational expenses on a per-pupil basis. The court ordered defendants to discontinue discriminatory practices in the above areas. Defendants perfected this appeal from the above findings and from the orders to desist, and plaintiffs perfected a cross-appeal claiming that the court erred in not finding de jure segregation and in not providing adequate remedies for the discrimination it found.

Defendant school district was formed in 1965 by a process of consolidation, annexation and attachment of separate school districts in and around Benton Harbor. It encompasses an area of 57 square miles, and in 1969 it enrolled approximately 12,000 students in 28 regular schools. The professional staff consisted of 470 teachers and 50 administrators. At the time of consolidation the school board adopted the existing attendance area boundary lines of the predecessor districts, the result of which was that by 1970, seven of the 28 schools were more than 80% black and 14 more than 80% white. Only 7 of 28 schools could be termed mixed. The overall student population was approximately 49% black and 51% white. Both before and after consolidation, however, all area students attended Bénton Harbor High School, which during the 1969-1970 school year was 40% black and 60% white.

The district court attributed pupil population in the schools in the consolidated district to “the racial complexion of the area served by the individual schools.” It also pointed out that the number and density of the black population had increased between 1965 and 1970, and that with few exceptions the predominately black neighborhoods contained less than adequate housing. Although defendants were not held responsible for the segregated housing patterns, the court stated that the “containment of blacks [caused] the percentage of students attending schools with a student body of fifty percent or more of the same race [to increase].” The defendants made no effort to alter attendance boundaries to achieve a better racial balance.

In 1970 there were approximately 470 teachers in the district, 83 (17.7%) of whom were black. Black teachers were actively recruited by the school district and the years 1965 through 1970 saw a steady improvement in the percentage of black teachers employed. But the district court found that the method used to assign the teachers was racially motivated and that a disproportionate number of black and generally inexperienced teachers were assigned to predominantly black schools resulting in a denial of equal educational opportunity to black students. Nearly 70% of the black elementary and junior high teachers were assigned to predominantly black schools, while 15 schools had 100% white faculties. The district court ordered defendants to desist from assigning teachers on the basis of race.

The court also found that the physical conditions in a number of the schools turned over to the consolidated district in 1965 were grossly inadequate and that all of the buildings operated by the district were generally crowded. It further noted that the median age for predominantly black schools was 43 years, while the median age for predominantly white schools was 17 years. In spite of a well recognized need for improved facilities, no new construction or substantial remodeling was undertaken in the elementary or junior high schools after consolidation due to lack of funds. The court ascribed the differences among the various schools to different types of land and economic development and wide variances in assessed valuation for taxes in the predecessor districts.

Defendants operated three separate schools for junior high level students; Fairplain Junior High School (predominantly white), Hull School (mixed), and Benton Harbor Junior High School (predominantly black). Two different methods were used to establish learning groups in the three units and this led the district court to the following conclusion :

“The tracking system as used at Benton Harbor Junior High School as differentiated from that used at Fair-plain Junior High School and Hull Junior High School, results in a denial of equal opportunity to the students at Benton Harbor Junior High School to achieve the same level of education in junior high school and high school as is afforded to the students at Fair-plain Junior High School and at Hull Junior High School. This system is improper and denies equal opportunity to the children who are attending Benton Harbor Junior High School.”

The court ordered the tracking system used at Benton Harbor Junior High School discontinued.

The district court received extensive evidence regarding the district’s budgeting procedures. It found that the budgeting of funds for operational expenses was done on a per-pupil basis and that as a result predominantly white schools which were generally in good condition were able to maintain that status while the older and more dilapidated facilities in predominantly black schools were not upgraded due to lack of funds. Defendants were ordered to revise this budgeting procedure.

A thorough review of the record convinces us that the district court’s findings that defendants were guilty of discrimination in the assignment of teachers and in the use of two different methods of establishing learning groups in the junior high schools were supported by the evidence. However, it is clear that the district court erred in finding discrimination in the budgeting procedures.

The district court made the following finding of fact:

“[T]he budgeting of funds is done by the Defendant on a per-student basis, as a result of which many of the schools with majority white students which came into the consolidated district with good facilities are in a position to maintain good facilities, and those schools which came into the consolidated district without good facilities do not have sufficient funds to improve the situation. The budgeting provides for $10.00 per child for operational expense.”

The Superintendent explained that the per-student allocation was used only for “instructional supplies, library and office supplies.” Teachers’ salaries, maintenance and repairs, and capital expenditures all came from different and separate funds.

The conclusion reached by the district court was apparently based upon the erroneous assumption that the allocation of $10.00 per-pupil per year for operational expenses was spent to maintain the school buildings, or could have been spent to upgrade some of the older facilities. The only evidence of record, however, was that new construction, renovation, and regular .maintenance had nothing to do with the operating budget. Thus we must conclude that the district court was clearly erroneous in finding defendants guilty of discrimination in this regard.

It is clear from a recital of the facts of record in this case that a number of important indicia of de jure segregation were present even though a dual school system was neither compelled nor authorized by law. The school system was in fact racially imbalanced, teachers were assigned on the basis of race, the physical condition of the predominantly black schools was generally inferior to the conditions in the predominantly white schools, and the method of assigning students to learning groups in the black junior high school deprived black students of an equal opportunity for an education. The Supreme Court has stated that discrimination in these areas of education constitutes a prima facie case of the existence of a dual school system. Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 201, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). We are satisfied that a prima facie case was made out in this instance.

We recognize the difficulty in determining the quantum of state participation which is a prerequisite to a finding of a constitutional violation. “[T]he necessary degree of state involvement is incapable of precise definition and must be defined on a case-by-case basis.” United States v. Texas Education Agency, 467 F.2d 848, 864 (5th Cir. 1972), cited with approval in Keyes v. School District No. 1, Denver, Colorado, supra, 413 U.S. at 215, 93 S.Ct. 2686 (Douglas, J., concurring). The district courts are not without guidance in this difficult .task, however, as there have been a number of appellate decisions addressed to this problem. Although the relevant standards have not changed since Judge Kent rendered his decision in 1971, the Supreme Court has attempted to clarify the law in this area. For this reason, the issues presented by this case are particularly well suited to fresh consideration by the district court in light of recent case law. The question on remand will be whether defendants can successfully negate the prima facie case of de jure segregation that has been made against them.

Plaintiffs ask that we hold defendants’ 1965 adoption of the previously existing school attendance boundaries an independent act of deliberate segregation sufficient in itself to warrant an order for “all-out” desegregation. We decline to do so.

The instant suit was commenced after consolidation and no court action was pending against the school district prior to that time. There had been no judicial finding that defendants were operating a dual school system and the defendants had made no determination that action ought to be taken. Further, the attendance lines had existed in substantially the same form for a number of years prior to consolidation and before any complaint of segregation. In light of the above, we cannot say as a matter of law that defendants were under a duty to alter the attendance lines in 1965. Defendants’ decision, however, not to adopt new attendance boundaries in the face of a readily discernable pattern of residential segregation may be considered part of the cumulative evidence of a possible constitutional violation.

We note in passing that the district court stated that except for the specific areas in which it found discrimination “there [was] no' evidence that race [had] been the sole consideration in any act, decision, assignment, choice or program of Defendant District or its Board.” (Emphasis supplied.) It is not necessary to prove discriminatory motive, purpose, or intent ás a prerequisite to establishing an equal protection violation when discriminatory effect has been demonstrated. The “sole criterion” test has been rejected by the Supreme Court. Wright v. Council of City of Emporia, 407 U.S. 451, 461-462, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1971); see United States v. Texas Education Agency, supra; Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F.Supp. 1245 (N.D.Ohio 1973). The question to be considered by the district court is whether defendants’ official acts resulted in a constitutionally impermissible dual school system.

For the reasons set forth hereinabove, the findings of the district court are affirmed in part and reversed in part and the orders entered pursuant thereto are vacated, and the cause is remanded to the district court for further proceedings consistent with this opinion.

      . The latest statistics of record are for the 1969-1970 school year.

      . The predominantly black schools operated at 103.6% capacity; the predominantly white schools operated at 96% capacity.

      . All building programs proposed by the school board were defeated by district voters,

      . The six criteria most often listed as indicia are composition of the student bodies, faculty, staff, transportation, extra-curricular activities, and facilities.


author: WIDENER, Circuit Judge:

text:
    Mary Kate BRENDLE, Administratrix of the Estate of William Charles Brendle, Deceased, Appellant, v. The GENERAL TIRE AND RUBBER COMPANY, Appellee.
    No. 14328.
    United States Court of Appeals, Fourth Circuit.
    Argued June 1, 1970.
    Decided Oct. 18, 1974.

      John Haworth, High Point, N. C. (Charles E. Nichols and William G. Pfef-ferkorn, Winston-Salem, N. C., on brief), for appellant.
    Beverly C. Moore, Greensboro, N. C. (Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, SOBELOFF, Senior Circuit Judge, and WIDENER, District Judge.

       Judge Sobeloff took part in the decision of the panel after oral argument but died prior to publication of the opinion.

       Sitting by designation. Now a Circuit Judge.

   WIDENER, Circuit Judge:

This diversity case was brought by an Administratrix, a North Carolina resident, against The General Tire and Rubber Company (defendant), an Ohio corporation, alleging that a single truck wreck, in which the driver (her decedent) was killed, had been caused by the blowout of a defective tire manufactured by the defendant. The suit was based on two theories of recovery: negligent design and manufacture of the tire, and breach of implied warranty of the tire’s fitness for use. Plaintiff appeals from an order granting defendant’s motion for summary judgment on the breach of warranty issue.

The defendant had previously moved for summary judgment on both theories of recovery, which the district court granted only as to the negligence theory. That decision was affirmed in Brendle v. General Tire and Rubber Co., 408 F.2d 116 (4th Cir. 1969).

This case is somewhat unusual. To begin, the accident occurred in Missouri and thus Missouri law was applied to the negligence theory in accordance with the lex loci delicti choice of law rule followed in the forum state of North Carolina. The negligence action was barred under the applicable Missouri statute of limitations, hence summary judgment was properly granted as to that issue. But the breach of warranty issue, again looking to the conflicts law of the forum state but under the category of sales, would be resolved under North Carolina law, where sale of the tire was consummated. The district court applied North Carolina law, concluded that a recent North Carolina decision still in litigation might make a material change in the warranty law, and accordingly denied the defendant’s previous motion for summary judgment on the warranty issue, but without prejudice to renew it. The motion was renewed six months later and was granted on the basis that North Carolina law requires privity of contract in an action based on warranty.

This appeal followed. After oral argument and deliberation, the panel determined that a similar North Carolina case, Dupree v. Batts, 276 N.C. 68, 170 S.E.2d 918 (1969), which had recently been remanded in order to decide the issue of privity, might be conclusive as to the privity issue here. Accordingly, we issued an order suspending further proceedings pending the North Carolina state court decision in Dupree.

The Dupree case, however, was not tried again but was settled. Since there has been no change in North Carolina law, we are of opinion that the district court was correct in its conclusion that privity between the parties is a necessary aspect of this action based on warranty, and we affirm the granting of summary judgment on that issue.

The facts are not complicated. On September 13, 1965, William Brendle was injured in an accident in Lafayette County, Missouri while he was driving a truck for his employer, a North Carolina corporation. He died a week later from his injuries. The accident allegedly was caused by a blowout of the truck’s right front tire, which had been made in Ohio by the defendant, and had been sold to Brendle’s employer in North Carolina by a North Carolina subsidiary of General Tire. The plaintiff, admin-istratrix of Brendle’s estate, sued General Tire to recover for the medical expenses and pain and suffering resulting from Brendle’s injuries before death, and for his subsequent wrongful death.

A federal court, sitting in North Carolina in a diversity case, must apply the law as announced by the highest court of that state or, if the law is unclear, as it appears the highest court of that state would rule. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); Lowe’s North Wilkesboro Hardware v. Fidelity Mutual Life Insurance Co., 319 F.2d 469, 472 (4th Cir. 1963).

The general rule, as stated by the Supreme Court of North Carolina in Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21 (1960), is that only persons in privity with the warrantor may recover on a warranty, and privity does not extend to an employee of a purchaser, because an employee is normally considered a stranger to the contract of warranty. Whatever erosion North Carolina has allowed to the privity requirement in breach of warranty actions has been limited to cases involving food and drink and insecticides in sealed containers which had warnings on the label which reached the ultimate consumer, or where the manufacturer had so advertised or given directions as to use so that a warranty could be viewed as running to the consumer. See Tedder v. Bottling Co., 270 N.C, 301, 154 S.E.2d 337 (1967); Corprew v. Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967); and Terry v. Double Cola Bottling Co., 263 N.C. 1, 138 S.E.2d 753 (1964) (especially the concurring opinion).

The plaintiff contends that because of the substantial amount of advertising General Tire used in the promotion of the particular brand of tire involved in this controversy, the implied warranty extended to the deceased truck driver, and thence to the administratrix of his estate. She relies primarily on Tedder v. Bottling Co., supra, which held that a jury question arose as to whether defendant bottler was liable for breach of implied warranty where the bottler had advertised its product in such a way as to promote its use by consumers, and plaintiff was a consumer injured by drinking from an allegedly contaminated bottle. However, we find no North Carolina case allowing privity, or an exception to privity, under any facts similar to those before us. The tire advertisements are of no help to the plaintiff here, for it was not the driver who relied on them, but rather his employer who bought the tire relying on the advertising. Under these facts, we have no reason to believe that the North Carolina Supreme Court would deviate from the general requirement of privity as set out in Wyatt.

Our conclusion is strengthened by the recent North Carolina Court of Appeals’ opinion in Byrd v. Star Rubber Co., 11 N.C.App. 297, 181 S.E.2d 227 (1971). The facts in Byrd are almost identical to those here; an employee of the purchaser of a tire was mounting the tire on a tractor wheel when it exploded, causing injury to him. The employee sued the tire manufacturer for breach of warranty. Although it may be argued that the Byrd case is distinguishable from the one at hand, in that the plaintiff there did not allege privity was established due to advertising, this distinction makes no difference since, as stated, the deceased here was not the one who could, or did, rely on the advertisements. The Byrd court held that the employee had no privity with the manufacturer and affirmed dismissal of the suit. Although Byrd was not passed on by the North Carolina Supreme Court, we think it is most persuasive in its interpretation of North Carolina law, and we are constrained to believe that the North Carolina Supreme Court would continue to find a lack of privity under the facts as we find them here.

Since, if the other issues mentioned in the briefs were resolved favorably to the plaintiff the outcome would not be changed, we do not reach them in this opinion.

The judgment of the district court is accordingly

Affirmed.