Earle A. Partington v. Joseph M. Gedan Howard T. Chang , 880 F.2d 116 ( 1989 )

WALLACE, Circuit Judge:

Attorney Partington filed suit pursuant to 42 U.S.C. § 1983 in the United States District Court, alleging that enforcement of Hawaii Supreme Court Rule 13 against him violated the first, fifth, sixth, and fourteenth amendments to the United States Constitution. He sought a declaratory judgment stating that Rule 13 violated these constitutional provisions and an injunction barring any further proceedings against him pursuant to Rule 13. The district court concluded that abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (Younger), was appropriate because Partington could raise these constitutional challenges in the ongoing Rule 13 proceedings. We have jurisdiction and affirm.

I

The Hawaii trial court appointed Parting-ton as trial counsel for Clarke. The State had charged Clarke with brutally murdering the three-year-old daughter of his live-in girlfriend. Partington represented Clarke at trial. Clarke was convicted of murder and sentenced to life in prison.

Partington’s appointment as counsel for Clarke continued on appeal. Clarke raised numerous contentions, but did not allege ineffective assistance of trial counsel. During the pendency of the appeal, however, the state trial judge who presided at Clarke’s trial complained to the Office of Disciplinary Counsel of the Hawaii Supreme Court about Partington’s failure to make a closing argument at Clarke’s trial. Following this complaint, Partington filed a motion with the Hawaii Supreme Court, on behalf of Clarke, requesting that the Supreme Court remand the appeal to the trial court to explore the trial judge’s complaint. The motion was denied.

During oral argument before the Hawaii Supreme Court on Clarke’s criminal appeal, some Justices sua sponte raised the issue of ineffective assistance of trial counsel. The Hawaii Supreme Court subsequently reversed Clarke’s conviction. Without addressing the numerous arguments made in Clarke’s brief, the court declared that Part-ington rendered ineffective assistance during trial. The court based this conclusion on the following: (1) Partington refused to make an opening statement; (2) he refused to cross-examine the mother of the victim ostensibly because the State did not make certain records concerning the witness available to him; (3) he subsequently refused to call the mother after receiving the records; (4) he elicited testimony from two State witnesses that they believed Clarke was guilty; and (5) he refused to make a closing argument. The Hawaii Supreme Court’s opinion concluded: “We remind both counsel of their obligations under [Hawaii Supreme Court Rule] 13 once a judgment on appeal has been issued by us in this case.”

Hawaii Supreme Court Rule 13 ¹ outlines proceedings that are to be brought against defense counsel following the adjudication of his or her ineffective assistance in criminal cases. Under Rule 13, the Hawaii Supreme Court appoints a special master “to determine whether action against the counsel alleged to have been incompetent is warranted.” Haw.Sup.Ct.R. 13. Within five days of this appointment, the special master notifies the defense counsel by mail. Within forty-five days of this mailing, the defense counsel must “file with the clerk of the supreme court an answer showing cause why corrective action as provided [in the Rule] should not be taken by the supreme court.” Id. Within five days of receiving the defense attorney’s answer, the special master must appoint an attorney to prosecute the proceedings. Id. The defense attorney and the special prosecutor then have forty-five days to conduct discovery. Within thirty days after the expiration of the discovery period, the special master holds a hearing. Within ten days after the conclusion of the hearing, the special master must render a decision and enter “an order either dismissing the proceedings or recommending corrective action against the respondent attorney.” Id. Within twenty days of the special master’s decision and proposed order, the defense attorney and the special prosecutor may file exceptions with the Hawaii Supreme Court. Within forty days of the special master’s decision and proposed order, the Supreme Court must “enter an order either dismissing the proceedings or ordering corrective action in accordance with the guidelines set forth” in the Rule. Id.

In accordance with Rule 13, on February 3, 1986, the Hawaii Supreme Court appointed Gedan as the special master. On February 7, 1986, Gedan notified Partington that he had forty-five days to submit an answer “showing cause why corrective action as provided for in Rule 13 should not be taken by the Supreme Court.” On March 27, 1986, Partington filed an answer in accordance with the Rule. Without waiving any constitutional challenges, Partington’s answer stated that he based all of his trial decisions on certain tactics, but that he could not explain his tactical choices because his client at trial, Clarke, refused to waive the attorney-client privilege.

Gedan did not appoint a special prosecutor within five days of receiving the answer as provided in Rule 13; however, on August 13, 1986, Gedan appointed Chang as the special prosecutor. Notwithstanding the time schedule set forth in Rule 13, the record does not reflect that the parties engaged in discovery during the forty-five day period as provided in the Rule or that the special master set the matter for a hearing within thirty days of the close of the discovery period.

On March 9, 1987, Partington filed a complaint under 42 U.S.C. § 1983 in the United States District Court for the District of Hawaii, naming Gedan and Chang as defendants. He alleged that the conduct of Gedan and Chang pursuant to Rule 13 deprived and continue to deprive him of rights under the free speech clause of the first amendment, the due process clause of the fifth and fourteenth amendments, the right to counsel clause of the sixth amendment, and the equal protection clause of the fourteenth amendment. The complaint sought (1) an injunction prohibiting Gedan and Chang from proceeding against Part-ington pursuant to Rule 13, (2) a declaratory judgment that Rule 13 as applied to Partington is unconstitutional, and (3) attorney’s fees, costs, and expenses for the action. Partington also sought damages for attorney’s fees and costs arising out of the Rule 13 proceeding, but later abandoned this claim. On March 30, 1987, Ge-dan and Chang moved to dismiss the complaint, arguing that the district court should abstain. They asserted that Part-ington could raise all of his constitutional claims in the Rule 13 hearing, which was scheduled to commence on April 14, 1987. The Rule 13 hearing was not held that day because Gedan stayed the hearing on Part-ington’s request. On April 22, Partington filed a motion for summary judgment. On May 12, the Hawaii Association of Criminal Defense Lawyers (Defense Lawyers) lodged a brief in the district court on behalf of Partington as amicus curiae.

On July 1, 1987, the district court granted the Defense Lawyers’ motion to file the amicus brief, granted the motion of Gedan and Chang to dismiss the complaint, and denied Partington’s motion for summary judgment. The district court concluded that Younger abstention, as interpreted and applied in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Middlesex), should be applied. After the district court entered its judgment, Partington filed a timely notice of appeal, challenging the dismissal of the complaint.

II

Ordinarily, the dismissal of a complaint without the dismissal of the underlying action is not considered an appealable final order under 28 U.S.C. § 1291. See Allen v. Veterans Administration, 749 F.2d 1386, 1388 (9th Cir.1984); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984) (Hoohuli). Here, the district judge abstained, but maintained jurisdiction over the cause by virtue of his failure to dismiss the underlying action. This procedure, if allowed, would grant the state permission to proceed first but allow the parties to maintain a federal court presence, if needed, after the state has finalized its assessment of the issues presented. See Crane v. Fauver, 762 F.2d 325, 328-29 (3d Cir.1985). We have jurisdiction over this interlocutory appeal, however, because of the denial of Partington’s request for an injunction preventing Gedan and Chang from proceeding against him pursuant to Rule 13. See 28 U.S.C. § 1292(a)(1); Sea Ranch Association v. California Coastal Zone Conservation Commission, 537 F.2d 1058, 1061 (9th Cir.1976).

There is another reason why we may accept jurisdiction over this appeal. We have held that where Younger abstention is applicable, “a district court must dismiss the action.” World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1081 (9th Cir.1987) (World Famous Drinking Emporium), quoting Fresh International Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353, 1356 (9th Cir.1986). Because the district judge was required to dismiss the action, we may assume he intended to do so and treat the dismissal of the complaint as a dismissal of the action. See Hoohuli, 741 F.2d at 1171 n. 1.

That brings us to our standard of review. When the district court, pursuant to the authority of Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), abstains from addressing the constitutionality of a state statute because state court proceedings interpreting the statute are still pending, we review its abstention for an abuse of discretion. C-Y Development Co. v. Redlands, 703 F.2d 375, 377 (9th Cir.1983). But when, as here, the district court abstains on the basis of Younger, which forbids federal courts from enjoining pending certain categories of state proceedings except in extraordinary circumstances, we review its abstention de novo. Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 468 (9th Cir.1984) (Goldie’s Bookstore). This de novo review is applied even though we are reviewing the action of the district court in granting or denying an injunction. See id.

III

Although abstention is the exception, not the rule, see World Famous Drinking Emporium, 820 F.2d at 1082, Younger and its companion cases generally require a federal district court to abstain from granting injunctive relief when state criminal actions or certain categories of state civil or administrative proceedings are pending against the federal plaintiff at the time he or she commences the federal action. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 1522, 95 L.Ed.2d 1 (1987) (Pennzoil) (injunctive relief against a prevailing civil litigant attempting to execute a judgment in its favor pending appeal of that judgment to a state appellate court); Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 625, 106 S.Ct. 2718, 2722, 91 L.Ed.2d 512 (1986) (Dayton Schools) (injunctive relief against administrative proceedings conducted by state civil rights commission); Middlesex, 457 U.S. at 428-29, 102 S.Ct. at 2519 (injunctive relief against state bar disciplinary proceedings); Moore v. Sims, 442 U.S. 415, 423, 433-35, 99 S.Ct. 2371, 2377, 2382-83, 60 L.Ed.2d 994 (1979) (Moore) (injunctive relief against state proceeding seeking to protect allegedly abused children); Trainor v. Hernandez, 431 U.S. 434, 435-38, 97 S.Ct. 1911, 1913-15, 52 L.Ed.2d 486 (1977) (Trainor) (injunctive relief against a state civil attachment/enforcement proceedings); Juidice v. Vail, 430 U.S. 327, 333-36, 97 S.Ct. 1211, 1216-17, 51 L.Ed.2d 376 (1977) {Juidice) (injunctive relief against state contempt proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592, 603-07, 95 S.Ct. 1200, 1207-09, 43 L.Ed.2d 482 (1975) (Huffman) (injunctive relief against state civil proceedings seeking abatement of a nuisance); Younger, 401 U.S. at 49-53, 91 S.Ct. at 753-55 (injunctive relief against state criminal proceedings). The Younger abstention doctrine is based on considerations of equity, comity, and federalism. See, e.g., Pennzoil, 107 S.Ct. at 1525-26; Younger, 401 U.S. at 43-45, 91 S.Ct. at 750-51.

A.

In applying the Younger doctrine, federal courts must examine (1) the nature of the state proceedings in order to determine whether the proceedings implicate important state interests, (2) the timing of the request for federal relief in order to determine whether there are ongoing state proceedings, and (3) the ability of the federal plaintiff to litigate its federal constitutional claims in the state proceedings. See Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521; World Famous Drinking Emporium, 820 F.2d at 1081, 1082. Courts must also examine whether the proceeding demonstrates “bad faith, harassment, or some other extraordinary circumstances that would make abstention inappropriate.” Middlesex, 457 U.S. at 435, 102 S.Ct. at 2522. But where a state tribunal has been found incompetent by reason of bias, the Supreme Court has held that there was effectively no opportunity to litigate constitutional claims. Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973) (Gibson); compare Kugler v. Helfant, 421 U.S. 117, 124-25 & n. 4, 95 S.Ct. 1524, 1530-31 & n. 4, 44 L.Ed.2d 15 (1975) (dictum agreeing that a biased state tribunal removes predicate for Younger v. Harris dismissal, but categorizing biased tribunal in Gibson as example of “extraordinary circumstance” rendering state tribunal incapable of fairly and fully adjudicating issues before it).

1.

Younger by its own terms requires federal courts to abstain from interfering in state criminal proceedings absent exceptional circumstances. See 401 U.S. at 53-54, 91 S.Ct. at 754-55. The Supreme Court, however, has never held that federal district courts should always abstain under Younger when state civil proceedings are pending. See Moore, 442 U.S. at 423 n. 8, 99 S.Ct. at 2377 n. 8; Huffman, 420 U.S. at 607, 95 S.Ct. at 1209. Nonetheless, the Court has held that, under Younger, federal courts should abstain from interfering with state disciplinary proceedings analogous to the Rule 13 proceeding currently pending against Partington. See Middle-sex, 457 U.S. 423, 102 S.Ct. 2515. In Mid-dlesex, the Middlesex County Ethics Committee, a tribunal under the jurisdiction of the New Jersey Supreme Court, charged Hinds, a member of the New Jersey Bar, with violating two New Jersey disciplinary rules. Id. at 425-28, 102 S.Ct. at 2518-19. Rather than filing an answer to the charges as provided in the New Jersey Bar disciplinary procedures, Hinds filed suit in federal district court, alleging that the disciplinary rules violated his first amendment rights and were facially vague and over-broad. Id. at 429, 102 S.Ct. at 2519. The district court abstained under Younger, but was reversed by the Third Circuit. Id. at 429, 102 S.Ct. at 2519.

Recognizing that “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved,” the Supreme Court proceeded to review the New Jersey State Bar disciplinary proceedings in light of the three requirements for abstention under Younger. Id. at 432, 102 S.Ct. at 2521. First, observing that the local Ethics Committees acted as an arm of the New Jersey Supreme Court, the Court determined that “[fjrom the very beginning a disciplinary proceeding is judicial in nature, initiated by filing a complaint with an ethics and grievance committee.” Id. at 433-34, 102 S.Ct. at 2522. Significant to the Court’s determination that the state disciplinary proceedings were “judicial” in nature was its analogizing of the role local ethics or bar associations to that of a special master. Id. at 434 n. 13, 102 S.Ct. at 2522 n. 13. Next, the Court acknowledged that the state “has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses,” especially “the professional conduct of attorneys involved in the administration of criminal justice.” Id. at 434, 102 S.Ct. at 2522 (emphasis added). Last, the Court opined that because Hinds “failed even to attempt to raise any federal constitutional challenge in the state proceedings,” he had not shown that “the members of the Ethics Committee, the majority of whom are lawyers, would have refused to consider a claim that the rules which they were enforcing violated federal constitutional guarantees.” Id. at 435, 102 S.Ct. at 2522 (emphasis in original). Having concluded that the three prerequisites for Younger abstention were satisfied, the Court reversed the Third Circuit, holding that it was proper for the district court to have stayed its hand in this case. See id. at 437, 102 S.Ct. at 2524.

The Rule 13 disciplinary proceeding initiated against Partington in Hawaii is strikingly similar to the New Jersey disciplinary proceedings at issue in Middlesex. Both proceedings are conducted by an ethics committee or its analogue, a special master, id. at 434 n. 13, 102 S.Ct. at 2522 n. 13, under the auspices of the state supreme court. Compare 457 U.S. at 425-27, 433, 102 S.Ct. at 2518-19, 2522 with Haw.S.Ct. R. 13. Just as the Court in Middlesex concluded that the State of New Jersey had a “special” interest “in the professional conduct of attorneys involved in the administration of criminal justice,” 457 U.S. at 434, 102 S.Ct. at 2522, we conclude that Hawaii has a vital interest in ensuring that defense counsel in criminal cases perform within the standards of reasonable professional competence. Partington concedes, as he must, that the State of Hawaii has a very important interest in its Rule 13 proceedings. Thus, the first requirement for Younger abstention has been met. In addition, there is no question that the Rule 13 proceedings had begun and were still pending at the time Partington filed suit in the district court. Partington concedes this point as well. Thus, the second requirement for Younger abstention has been met. Unless Partington can show that, unlike the New Jersey state disciplinary proceedings discussed in Middlesex, the Rule 13 proceedings against him do not offer him an opportunity to raise his constitutional claims and have them timely decided by a competent state tribunal, see Middlesex, 457 U.S. at 437, 102 S.Ct. at 2524; Gibson, 411 U.S. at 577, 93 S.Ct. at 1695, or that this proceeding demonstrates “bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate,” Middlesex, 457 U.S. at 435, 437, 102 S.Ct. at 2522, 2524, Middlesex governs and we must, accordingly, affirm the dismissal of this action under Younger.

2.

Under the third prong of the test for Younger abstention, federal abstention is inappropriate unless the plaintiff is afforded the opportunity in the ongoing state proceedings to raise his constitutional claims “and have [those claims] timely decided by a competent state tribunal.” Gibson, 411 U.S. at 577, 93 S.Ct. at 1697; accord Middlesex, 457 U.S. at 437, 102 S.Ct. at 2524. Partington strenuously advances two grounds why the Rule 13 proceedings against him fail to meet this third required predicate for Younger abstention.

First, he maintains that the attorney-client privilege procedurally bars him from disputing the Hawaii Supreme Court’s finding of ineffectiveness of counsel, thereby depriving him of an opportunity to raise his federal constitutional claims during his Rule 13 proceedings. If a federal plaintiff cannot raise his federal claim in the state proceedings because state procedures do not afford him the opportunity to do so, then abstention is not appropriate. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 860 n. 9, 43 L.Ed.2d 54 (1975). Partington argues that abstention is inappropriate here because Clarke’s refusal to waive the attorney-client privilege disables him from contesting the ineffectiveness of counsel issue in either the Rule 13 proceedings or in the Hawaii Supreme Court. Partington believes that the “self-defense” exception to the attorney-client privilege, see Disciplinary Rule 4-101(C)(4),² only applies when the client questions the attorney’s conduct. Clarke has not done so. We interpret this argument to mean that Partington believes Hawaii’s interpretation of the attorney-client privilege imposes a procedural bar that effectively prevents him from testifying on the issue of ineffectiveness because he cannot fully present his trial strategy defense.

Partington bears the burden of showing “ ‘that state procedural law bar[s] presentation of [his] claims.’ ” Pennzoil, 107 S.Ct. at 1528, quoting Moore, 442 U.S. at 432, 99 S.Ct. at 2381. Asserted ambiguities in Hawaii’s rule regarding the attorney-client privilege or on the procedures available in Rule 13 proceedings for the presentation of his federal claims do not relieve him of this burden. Federal courts “cannot assume that state judges will interpret ambiguities in state procedural law to bar presentation of federal claims.” Pennzoil, 107 S.Ct. at 1528. Moreover, given that Partington “has not attempted to present his federal claims in related state court proceedings, [we will] assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.” Id.; see also Middlesex, 457 U.S. at 435, 102 S.Ct. at 2522. In addition, even if a federal plaintiff cannot raise his constitutional claims in state administrative proceedings that implicate important state interests, his ability to raise the claims via state judicial review of the administrative proceedings suffices. Dayton Schools, 477 U.S. at 629, 106 S.Ct. at 2724. Requiring a federal plaintiff to present his constitutional challenges in the state proceedings recognizes that state courts can and will perform their responsibility to safeguard federal constitutional rights. See, e.g., Pennzoil, 107 S.Ct. at 1528; Middlesex, 457 U.S. at 431,102 S.Ct. at 2520; Trainor, 431 U.S. at 443, 97 S.Ct. at 1917.

Partington has not met his burden. He does not explain how this alleged procedural bar prevents him from presenting his first, fifth, sixth, and fourteenth amendment claims in the Rule 13 proceedings. Nor has Partington unambiguously shown that Hawaii’s “self-defense exception” to the attorney-client privilege, see DR 4-101(C)(4), only applies when a client attacks his attorney’s conduct. Cf ABA/BNA Lawyer’s Manual on Professional Conduct, Disclosure: Attorney’s Benefit, at 55:701, 703, 706-08(BNA) (Nov. 11, 1987) (discussing cases where the privilege does not apply even though the client is not attacking the attorney’s conduct). In any event, Partington “should first set up and rely upon [this procedural] defense in the [Hawaii] state courts.” Younger, 401 U.S. at 45, 91 S.Ct. at 751, quoting Fenner v. Boykin, 271 U.S. 240, 244, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926). We cannot assume that Hawaii will interpret its attorney-client privilege to bar Partington from speaking in his own defense. Pennzoil, 107 S.Ct. at 1528.

Second, Partington argues that the third prong for abstention is not met in this case because both the special master and the Hawaii Supreme Court are biased against him. In Gibson, the Supreme Court recognized that if the federal plaintiff can establish that either the state administrative tribunal or the state court is not “competent” because of bias, then abstention is not appropriate. See 411 U.S. at 577, 93 S.Ct. at 1697. In addition, it recognized that de novo judicial review on the decision of a “biased” administrative board does not satisfy the competent tribunal requirement of the third predicate for Younger abstention. See id. & n. 16. Here, Partington contends that a finding in the Rule 13 proceeding before the special master or the Hawaii Supreme Court that he rendered effective assistance of counsel would be totally incompatible with the Hawaii Supreme Court’s decision in State v. Clarke. From this, he concludes that the issue of ineffectiveness has been prejudged against him. Partington further assails the impartiality of the Hawaii Supreme Court by asserting that the large amount of publicity that State v. Clarke generated has biased the Hawaii Supreme Court against his case.

In claiming bias, Partington must overcome the presumption that the special master and the Hawaii Supreme Court are unbiased. See Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1669, 72 L.Ed.2d 1 (1982). He can rebut this presumption “by a showing of conflict of interest or some other specific reason for disqualification.” Id.

In support of his claim of judicial bias, Partington relies on Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) (Withrow). The Court there examined a Wisconsin statute that allowed a state medical examining board to warn and reprimand a physician, to suspend a physician’s license temporarily, or to institute a criminal action or an action to revoke a license when it found probable cause under governing criminal or revocation statutes. Id. at 37, 95 S.Ct. at 1459. When the medical examining board commenced investigative proceedings against Larkin, Larkin filed suit in federal court under 42 U.S.C. § 1983 seeking an injunction against the investigation, which was initially denied by the federal district court. Id. at 39, 95 S.Ct. at 1460. The board subsequently notified Larkin that it would hold a “contested hearing” in order to determine whether to suspend his license temporarily. Id. at 40-41, 95 S.Ct. at 1461. The federal district court then enjoined the board because it concluded that by authorizing the board to perform a dual investigatory and adjudicative function, the Wisconsin statute raised serious procedural due process concerns by permitting a physician to lose his liberty or property at the hands of a biased decisionmaker. Id. at 41-42, 95 S.Ct. at 1462.

The Supreme Court reversed the preliminary injunction, concluding that it was “quite unlikely” that the physician would ultimately prevail on his procedural due process challenge. Id. at 46, 95 S.Ct. at 1464. Recognizing that biased decision-makers do not satisfy procedural due process, id. at 46-47, 95 S.Ct. at 1464, the Court nonetheless rejected the contention “that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication.” Id. at 47, 95 S.Ct. at 1464. Instead, the Court emphasized that one who advances such an argument

must overcome a presumption of honesty and integrity in those serving as adjudicators; and [he] must convince [the court] that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.

Id. In repudiating the appellant’s claim of presumptive bias, the Court observed that when an appellate court reverses an administrative law judge or a lower court judge, procedural due process does not mandate that a new judge retry the case. Id. at 48-49, 95 S.Ct. at 1465. Similarly, the Court rejected the proposition that simply because the board issued written findings of fact and conclusions of law in support of its probable cause determination, the board had prejudged the case. Id. at 56-57, 95 S.Ct. at 1469. The Court pointed out that an initial finding of probable cause to believe a physician had violated a statute was not logically inconsistent with a subsequent decision, based on complete evidence brought out at an adversarial hearing, that the physician did not violate the statute. Id. at 57-58, 95 S.Ct. at 1469-70.

Partington argues that Withrow stands for the proposition that bias is established where the accusatory finding is incompatible with any adjudicative finding. He relies on the statement from Withrow that “if the initial view of the facts based on the evidence derived from nonadversarial processes as a practical or legal matter foreclose^] fair and effective consideration at a subsequent adversary hearing leading to ultimate decision, a substantial due process question would be raised.” Id. at 58, 95 S.Ct. at 1470 (emphasis added). From this interpretation of Withrow, Partington then argues that the following three factors all indicate that he is legally foreclosed from contesting the Hawaii Supreme Court’s finding of ineffectiveness of counsel in State v. Clarke: (1) the title of Rule 13, “Proceedings Following Final Adjudication Of Ineffective Assistance Of Counsel In Criminal Cases,” indicates that the decision is final; (2) the text of Rule 13, in part, speaks only of the special master determining whether “corrective action” should be taken; and (3) the Hawaii Supreme Court’s order appointing the special master states that there was “a finding of ineffective assistance of trial counsel.”

Under the third prong of Younger, Part-ington must demonstrate that he would not have an adequate opportunity to litigate his federal constitutional claims — in this case, as he argues, before a competent and unbiased state adjudicator. Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521; Gibson, 411 U.S. at 577, 93 S.Ct. at 1697.³ He has not done so. The Hawaii Supreme Court has never had the opportunity to hear Parting-ton’s argument that due process requires that he not be judged by the court after it has ruled on his performance in the criminal case. There is neither legal nor practical reason to believe that the Hawaii Supreme Court will be biased on this issue which it has never addressed. We cannot and should not guess how the court will respond. Withrow is irrelevant to Parting-ton’s unaddressed due process claims.

Moreover, we conclude that Partington has not demonstrated under Withrow that, as a practical or legal matter, the special master or the Hawaii Supreme Court is bound by State v. Clarke or has prejudged the ineffectiveness issue. Cf. Vanelli v. Reynolds School District No. 7, 667 F.2d 773, 779 & n. 10 (9th Cir.1982) (rejecting claim that a school board could not, consistent with due process, conduct an impartial hearing to review its prior decision to terminate a teacher’s employment). As for the legal issue, the title of Rule 13 is somewhat troubling in that it may indicate that the finding of ineffectiveness is conclusive. Furthermore, the Rule itself is not clear on the issue of whether defense counsel can contest the issue of ineffectiveness anew before the special master and the Hawaii Supreme Court, and the Chief Justice’s order appointing Gedan can be read as indicating that the Supreme Court has already decided the ineffectiveness issue. But, as we have already observed, Partington bears the burden of demonstrating, through “unambiguous authority,” that both the special master and the Hawaii Supreme Court are precluded from considering the ineffectiveness issue de novo. See Pennzoil, 107 S.Ct. at 1528; Middlesex, 457 U.S. at 435, 102 S.Ct. at 2522. We do not believe that Partington has carried this burden by reciting the foregoing factors. Rule 13 states in its second paragraph that defense counsel is only “alleged to have been incompetent.” (Emphasis added.) The special master, moreover, has the power to dismiss the proceedings. This power presumably includes the power to conclude that the criminal defense attorney did not in fact render ineffective assistance.

The Hawaii Supreme Court’s initial determination of ineffectiveness will apparently not have collateral estoppel effect in the Rule 13 proceedings. See Santos v. State Department of Transportation, 64 Haw. 648, 652, 646 P.2d 962, 965-66 (1982) (per curiam) (discussing issue preclusion under Hawaii law). This conclusion is consistent with a letter written by the Chief Justice to Partington and others stating that Rule 13 provides “a procedure where the attorney in question ha[s] an opportunity to contest, on his own behalf, the charge of ineffective assistance of counsel, before an impartial master, who is in no way bound by the previous determination in the criminal case.” If the attorney disagrees, the Rule “provides for the master’s determination to be reviewed by the Supreme Court.” In Middlesex, the Court considered the actions of the New Jersey Supreme Court clarifying Hinds’s ability to raise his constitutional challenges. 457 U.S. at 436, 102 S.Ct. at 2523. Although the Hawaii Supreme Court has not formally spoken on this issue, we believe that, in the absence of clear authority to the contrary, the letter of the Chief Justice can be considered as an interpretive gloss for purposes of abstention clarifying that, as a legal matter, Parting-ton will be able to contest the finding of ineffectiveness during his Rule 13 proceedings. In addition, the primary issue before the special master and, perhaps ultimately, the Hawaii Supreme Court, is whether corrective action is warranted under Rule 13. Partington does not contend that the court has prejudged this issue.⁴

We also find no practical limitation on Partington’s ability to address any of his arguments to an impartial tribunal. To the extent that Partington believes that certain members of the Supreme Court may be personally biased against him, either by virtue of their finding of ineffectiveness of counsel in State v. Clarke or as a result of the high profile nature of the publicity in that case, he may be able to file an affidavit seeking recusal under Haw.Rev.Stat. § 601-7(b) (1985).⁵ Cf. Flangas v. State Bar of Nevada, 655 F.2d 946, 950 (9th Cir.1981) (holding that this court cannot ascertain the availability of the biased adjudicator exception to Younger abstention until appellant attempts to avail himself of state statutory procedures to disqualify allegedly biased supreme court justices). Hawaii provides that Hawaii circuit judges and retired Supreme Court Justices may sit on the Hawaii Supreme Court when one of the Justices recuses himself. See Haw. Rev.Stat. § 602-10 (1985).⁶ The statute even contemplates that some cases may arise in which all five Supreme Court Justices would recuse themselves, id. Moreover, we must presume that each Hawaii Supreme Court Justice will follow his duty under Haw.Sup.Ct.R. 5 to “be unswayed by partisan interests, public clamor, or fear of criticism,” Haw.Sup.Ct.R. 5, incorporating Code of Judicial Conduct, Canon 3(A)(1), and to recuse himself if “he has a personal bias or prejudice concerning a party.” Haw. Sup.Ct.R. 5, incorporating Code of Judicial Conduct, Canon 3(C)(1)(a). Partington has provided no reason to strip these individuals of the “presumption of honesty and integrity.” See Withrow, 421 U.S. at 47, 95 S.Ct. at 1464.⁷

B.

Even if the necessary three predicates exist, however, Younger abstention will not be appropriate if the federal plaintiff can establish (1) that the state proceedings are being undertaken in bad faith or for purposes of harassment or (2) that some other “extraordinary circumstances” exist, such as proceedings pursuant to a “flagrantly” unconstitutional statute. See, e.g., Younger, 401 U.S. at 49-50, 53-54, 91 S.Ct. at 753, 754-55.

1.

The scope of Younger’s bad faith exception is not clear. Although the Court in Younger and its progeny has continuously recognized that abstention would not be required if a federal plaintiff could establish that the state court proceedings were instituted in bad faith, the Court has never actually applied the exception. Federal circuit courts, however, have occasionally found the “bad faith” exception applicable. See, e.g., Rowe v. Griffin, 676 F.2d 524, 525-26 (11th Cir.1982); Heimbach v. Lyons, 597 F.2d 344, 346-47 (2d Cir.1979) (per curiam); Wilson v. Thompson, 593 F.2d 1375, 1381-83 (5th Cir.1979). No bad faith has been demonstrated in this case.

2.

Because “[t]he very nature of ‘extraordinary circumstances’ ... makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings," see Kugler v. Helfant, 421 U.S. 117, 124-25, 95 S.Ct. 1524, 1530, 44 L.Ed.2d 15 (1975), the scope of Younger ’s “exceptional circumstances” exception is also unclear. As with the bad faith exception, the Supreme Court has consistently recognized the exception, but has never held that the exception applied.

The exception clearly recognizes, however, that a federal court need not abstain when faced with a flagrantly unconstitutional statute. See Younger, 401 U.S. at 53-54, 91 S.Ct. at 754-55. This aspect of the exception applies only when a statute is “ ‘flagrantly and patently violative of express constitutional prohibitions in every clause, sentence, and paragraph, and in whatever manner and against whomever an effort might be made to apply it.’ ” Id., quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941) (Watson); accord Trainor, 431 U.S. at 446-47, 97 S.Ct. at 1919.

Partington argues that Rule 13 flagrantly violates the first amendment, procedural due process, and the equal protection clause of the fourteenth amendment on its face and as applied. We have examined the arguments that Partington makes in challenging Rule 13. He has certainly raised some colorable constitutional arguments. Nonetheless, he has failed to demonstrate that Rule 13 is “ ‘patently viola-tive of express constitutional prohibitions in every clause, sentence, and paragraph, and in whatever manner and against whomever an effort might be made to apply it.’ ” Younger, 401 U.S. at 53-54, 91 S.Ct. at 754-55, quoting Watson, 313 U.S. at 402, 61 S.Ct. at 967. Therefore, we reject Partington’s argument that this exception prevented the district court from abstaining.

IV

Partington also contends that the Hawaii Supreme Court’s decision in State v. Clarke (1) violated the first amendment because the decision had a chilling effect on his ability to hold himself out as a competent counsel, (2) violated the fifth and fourteenth amendment because the decision deprived him of a liberty and property interest in his reputation without due process of law, and (3) violated the sixth amendment which he argues “necessarily includes a corresponding right of a criminal defense attorney to practice his profession without unreasonable hindrances.” Partington believes that both the fifth amendment and the sixth amendment require courts to grant a “pre-deprivation” hearing to all defense counsel alleged to have rendered ineffective assistance and that the Hawaii Supreme Court, in deciding State v. Clarke, did not comply with these constitutional requirements. Partington argues that the special master lacks the power to analyze these issues or to undo these constitutional harms and that it is unreasonable to believe that the Hawaii Supreme Court will analyze these issues or undo these harms; therefore, abstention is not appropriate. Accordingly, Partington requests a declaratory judgment stating that in rendering its decision in State v. Clarke and concluding that Partington rendered ineffective assistance of counsel, the Hawaii Supreme Court violated the first, fifth, and sixth amendments.

The district court did not expressly address any of these arguments or the requested declaratory relief regarding the Hawaii Supreme Court’s decision in State v. Clarke. At oral argument, we expressed doubt whether Partington presented these constitutional challenges in the district court concerning the manner and the effect of the Hawaii Supreme Court’s decision in State v. Clarke. We pointed out that the prayer for relief in Parting-ton’s complaint did not request a declaratory judgment that in rendering its decision in State v. Clarke the Hawaii Supreme Court violated the first, fifth, and sixth amendments. Rather, the complaint states that because of the defendants’ action he “is entitled to ... [a] declaratory judgment that HSCR 13 as applied to Plaintiff is unconstitutional.” At oral argument, Partington contended that his request for declaratory relief in the context of Rule 13 included the first, fifth, and sixth amendment challenges to the Hawaii Supreme Court’s decision in State v. Clarke. He claims that he couched his request for relief in terms of Rule 13 because the Hawaii Supreme Court’s decision in State v. Clarke was the “first step” under Rule 13. He argued that even if his complaint was not totally clear on the requested relief, his brief in the district court made his argument concerning the Hawaii Supreme Court’s decision in State v. Clarke clear.

Gedan and Chang denied that Partington had presented this challenge in the district court. They contend not only that it would be inappropriate to allow Partington to bypass the district court, but also that such an attack on State v. Clarke implicates the Rooker-Feldman doctrine forbidding lower federal courts to sit in direct review of state court judgments. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S.Ct. 1303, 1314-16, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); see also MacKay v. Pfeil, 827 F.2d 540, 543-45 (9th Cir.1987) (per curiam); Worldwide Church of God v. McNair, 805 F.2d 888, 890-93 (9th Cir.1986) (Worldwide Church of God).

We have reviewed Partington’s complaint and the brief he submitted to the district court. Although we might be able to read Partington’s rather unclear brief as contesting the constitutionality of the Hawaii Supreme Court’s decisionmaking process in State v. Clarke, his complaint merely sought declaratory and injunctive relief against the defendants — Gedan and Chang —involved in the Rule 13 proceedings. Thus, the lack of clarity in his brief and the wording of his complaint lead us to conclude that he did not clearly raise the issue in the district court.

Ordinarily, we will decline to review an issue not clearly raised in the district court unless necessary to prevent manifest injustice, unless a new issue arises while the appeal is pending because of a change in the law, or unless the issue is purely one of law that is both central to the case and important to the public and the necessary facts are fully developed. See Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.1986) (per curiam), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987); Yuckert v. Heckler, 774 F.2d 1365, 1367 (9th Cir.1985), rev’d on other grounds, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). Even if one of these exceptions apply, we retain discretion to decline to address the issue.

We decline to review on this appeal Part-ington’s attack on the Hawaii Supreme Court’s decisionmaking process and judgment in State v. Clarke. The arguments implicate the Rooker-Feldman doctrine and neither party has briefed this significant issue. Cf. Worldwide Church of God, 805 F.2d at 893 n. 4 (noting that the Rooker-Feldman doctrine applies to section 1983 actions).

V

Gedan and Chang requested costs and attorneys’ fees pursuant to Fed.R.App. P. 38. Under Rule 38, we may award fees and single or double costs “when the result is obvious and the arguments on appeal wholly lack merit.” McCarthy v. Mayo, 827 F.2d 1310, 1318 (9th Cir.1987) (citation omitted). Gedan and Chang contend that Partington’s attempts to distinguish Middlesex were frivolous.

In response to this request for costs and attorneys’ fees, Partington requested sanctions pursuant to Fed.R.Civ.P. 11 against Gedan and Chang for their request for costs and attorneys’ fees. The Defense Lawyers joined Partington’s request for sanctions.

We have power to sanction Gedan and Chang pursuant to Rule 11. In re Mooney, 841 F.2d 1003, 1005 (9th Cir.1988); Rockwell International Credit Corp. v. United States Aircraft Insurance Group, 823 F.2d 302, 304-05 (9th Cir.1987); In re Curl, 803 F.2d 1004, 1007 (9th Cir.1986).⁸ Though Gedan and Chang’s request for Rule 38 sanctions appears in their opening brief, we consider their request as a separate motion to this court, severable from the balance of the brief.

The Seventh Circuit’s discussion of a request for sanctions under Fed.R.App.P. 38 is particularly appropriate. The court limited its opinion to the defendant’s request for attorney’s fees under Rule 38. The court stated:

The plaintiff's appeal, although not meritorious, is plainly not frivolous; it is the defendant’s request for Rule 38 sanctions that is frivolous. We are troubled by the frequency with which lawyers in this court, whether representing appellants or appellees, are including in their briefs groundless requests for Rule 38 sanctions. The attitude seems to be, it can’t hurt to ask. It can. Any frivolous motion, pleading, or request is subject to sanctions, including a motion or request for sanctions. In re Central Ice Cream Co., 836 F.2d 1068, 1074 (7th Cir.1987). We remind the bar that sanctions will be forthcoming if counsel routinely request Rule 38 sanctions without careful investigation to determine that the appeal or defense sought to be sanctioned is indeed frivolous. See also Aircraft Trading & Services, Inc. v. Braniff Inc., 819 F.2d 1227, 1236 (2d Cir.1987).

Meeks v. Jewel Co., 845 F.2d 1421, 1422 (7th Cir.1988) (per curiam) (Meeks). We believe that Meeks fully applies to the request for attorneys’ fees and costs by Ge-dan and Chang.

Far from being frivolous, Partington’s and the Defense Lawyers’s arguments that Middlesex did not compel abstention were excellent, although not ultimately meritorious. The arguments required us to examine closely the Rule 13 proceedings and interpret whether Partington would be able to raise his serious constitutional challenges to Rule 13 in the Rule 13 proceedings before the special master and, if necessary, on appeal to the Hawaii Supreme Court. Moreover, we fully expect that the special master and the Hawaii Supreme Court will examine carefully and seriously Partington’s allegations that Rule 13 violates the first amendment free speech clause as incorporated by the fourteenth amendment, the fifth amendment guarantee of procedural due process as incorporated by the fourteenth amendment, and the fourteenth amendment equal protection clause, both on its face and as applied. All of these issues are important and will require careful and detailed examination. To charge that these issues are frivolous is surprising — to claim Rule 38 sanctions for Partington’s bringing them to our attention is the vice described by the Seventh Circuit in Meeks.

We deny the request by Gedan and Chang for Rule 38 sanctions and grant the Rule 11 request by Partington and the Defense Lawyers. We order Gedan and Chang to pay Partington’s and the Defense Lawyers’ costs and attorneys’ fees incurred in responding to the motion for Rule 38 sanctions. The district court is instructed to determine the amount of the sanction.

AFFIRMED.

1 . Haw.Sup.Ct.R. 13 provides:

PROCEEDINGS FOLLOWING FINAL ADJUDICATION OF INEFFECTIVE ASSISTANCE OF COUNSEL IN CRIMINAL CASES.

Whenever the conviction of a criminal defendant has been overturned and a new trial ordered because of a finding that the defendant had ineffective assistance of counsel in the proceedings against him or her, and the order has become final, either because it was not appealed, or because it has been finally affirmed on appeal, it shall be the duty of the prosecutor and the counsel for the individual defendant each within five days of the finality of such order to file a certificate in the title of the cause with the Supreme Court of Hawaii noting that such an order has been entered and attaching a copy of that order to the certificate.

Within five days of the first receipt of such a certificate by the supreme court, the chief justice shall appoint a special master to determine whether action against the counsel alleged to have been incompetent is warranted.

Within five days from his appointment, the special master shall mail a notice of his appointment together with a copy of the order of his appointment, the certificate or certificates, and the order reversing the conviction to the respondent attorney at his last known address as shown in the records of the clerk of the Supreme Court of Hawaii.

Within 45 days from mailing, the respondent attorney shall file with the clerk of the supreme court an answer showing cause why corrective action as provided herein should not be taken by the supreme court. If the respondent attorney wishes to disqualify the special master, he shall file with his return a motion therefore supported by an affidavit made upon personal knowledge and showing facts sufficient to establish the personal bias and prejudice of the special master toward him.

If a motion for disqualification is filed, the master shall rule on the same within five days from the date of filing. That ruling shall be appealable only after an order in the proceedings as hereinbelow set forth has been entered.

The master shall within five days after receipt of the answer of the respondent appoint an attorney to further prosecute the proceedings and shall give notice of the appointment to the respondent attorney in the same manner as provided above.

The respondent attorney may represent himself or may designate an attorney to represent himself. The respondent or his attorney and the attorney appointed by the master shall have 45 days from the appointment of the attorney by the master to conduct any discovery proceedings in accordance with the discovery chapter of the Hawaii Rules of Civil Procedure. On the expiration of the 45 days, the master shall set the matter for hearing within 30 days, take such evidence in accordance with the Hawaii Rules of Evidence as may be proffered by the parties, and within 10 days of the conclusion of the hearing, render a decision and an order either dismissing the proceedings or recommending corrective action against the respondent attorney.

Corrective action which may be recommended by the master and/or adjudicated by the supreme court may consist of any one or more of the following:

(1) Requiring the respondent attorney to take a prescribed course or courses of remedial education and to produce satisfactory evidence of his or her passing such courses;

(2) Suspending the respondent’s license to practice law until (1) has been complied with.

(3) In cases where the master finds that ineffective assistance of counsel may have resulted from a violation of DR 6-101 to DR 7-101, the master shall, in addition to (1) and (2), refer the matter to the Office of Disciplinary Counsel for investigation under Rule 2 of these rules. In the event of a reference under this subparagraph, the master’s finding and the reference shall be deemed confidential and shall not be disclosed except pursuant to the provisions of Rule 2.22 of these rules.

Within 20 days from the rendering of the master’s decision and proposed order, respondent or his attorney and the attorney appointed by the master to prosecute the proceedings may file exceptions with the Supreme Court of Hawaii supported by a memorandum in support thereof.

Within 40 days of the rendering of the decision and proposed order by the master, the supreme court shall enter an order either dismissing the proceedings or ordering corrective action in accordance with the guidelines set forth above.

2 . Disciplinary Rules, DR 4-101, Preservation of Confidences and Secrets of a Client, provides:

(A) "Confidence” refers to information protected by the attorney-client privilege under applicable law, and "secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:

(1) Reveal a confidence or secret of his client.

(2) Use a confidence or secret of his client to the disadvantage of the client.

(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.

(C) A lawyer may reveal:

(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.

(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.

(3) The intention of his client to commit a crime and the information necessary to prevent the crime. .

(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.

(D)A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.

3 . The dissent suggests that we have misunderstood the third prong of the Middlesex test, the prong requiring that federal claimants have “an adequate opportunity in the state proceedings to raise constitutional challenges.” 457 U.S. at 432, 102 S.Ct. at 2521. It is true that in neither Middlesex nor Younger is a biased tribunal mentioned under this third prong. The majority and the dissent agree that Younger abstention is inappropriate when bias renders a state tribunal incompetent; we disagree over how to categorize the Supreme Court’s decision in Gibson. Gibson analyzed incompetency caused by bias in connection with the plaintiffs opportunity to litigate federal constitutional claims before a competent state tribunal. 411 U.S. at 577, 93 S.Ct. at 1697. The dissent, however, focuses on dictum in Kugler v. Helfant categorizing the biased tribunal finding in Gibson as an "extraordinary circumstance.” 421 U.S. at 124-25 & n. 4, 95 S.Ct. at 1530-31 & n. 4. Despite this dictum, we believe it better to follow Gibson's approach of analyzing bias in connection with whether there is an opportunity to litigate the federal constitutional claims, which became the third Middlesex prong.

4 . Relying on Gibson, the dissent suggests that the majority has misconceived "the basic rule governing abstention and biased state tribunals” (dissent at p. 137) because we require inquiry of a biased state tribunal whether it is biased. Dissent at pp. 137-38. While we do not disagree with the legal premise, the dissent overlooks that there has been no finding that the Supreme Court of Hawaii is biased on the constitutional issues.

But more important, Gibson is distinguishable from the instant case. The state tribunal in Gibson was the Alabama Board of Optometry, "the statutory body with authority to issue, suspend, and revoke licenses for the practice of optometry.” 411 U.S. at 567, 93 S.Ct. at 1692. This Board was comprised solely of practicing optometrists. Id. at 571, 93 S.Ct. at 1694. Of course, a tribunal comprised of optometrists does not have the ability to entertain constitutional claims. Optometrists are incompetent in this area; their domain is the visual process, not due process. By contrast, the state tribunal in Partington is a court, indeed, the Hawaii Supreme Court. It is comprised of experienced jurists. That this court has the ability to entertain and resolve constitutional claims is incontrovertible. There is simply no comparison between State Supreme Court justices and a group of optometrists in their competency to face constitutional issues: Justices are competent, optometrists are not. Partington has failed to demonstrate that he will not be afforded the opportunity to litigate his constitutional claims before a competent state tribunal. The third prong of Middlesex requires us to abstain. Contrary to the dissent's assertion, Gibson does not dictate a different result.

5 . Haw.Rev.Stat. § 601-7 provides:

(a) No person shall sit as a judge in any case in which the judge’s relative by affinity or consanguinity within the third degree is counsel, or interested either as a plaintiff or defendant, or in the issue of which the judge has, either directly or through such relative, any pecuniary interest; nor shall any person sit as a judge in any case in which the judge has been of counsel or on an appeal from any decision or judgment rendered by the judge.

(b) Whenever a party to any suit, action, or proceeding, civil or criminal, makes and files an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against the party or in favor of any opposite party to the suit, the judge shall be disqualified from proceeding therein. Every such affidavit shall state the facts and the reasons for the belief that bias or prejudice exists and shall be filed before the trial or hearing of the action or proceeding, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one affidavit; and no affidavit shall be filed unless accompanied by a certificate of counsel of record that the affidavit is made in good faith. Any judge may disqualify oneself by filing with the clerk of the court of which the judge is a judge a certificate that the judge deems oneself unable for any reason to preside with absolute impartiality in the pending suit or action.

6 . Haw.Rev.Stat. § 602-10 provides:

Parties shall be entitled to bring an appeal before a full court. Oral argument shall be before a full court; provided that in an appropriate case the court in its discretion may dispense with oral argument. In case of a vacancy, or if a justice of the supreme court is disqualified from sitting in any case pending before the supreme court, or is unable to attend, or is absent, or is recused or has been excused, the vacancy or the place of such justice may be temporarily filled by a circuit judge designated by the chief justice or by the appointment of a justice who has retired from the supreme court. Such retired justice chosen to serve as substitute justice shall not be actively engaged in the practice of law. A retired justice, when sitting as substitute justice, shall be compensated at a rate of pay of associate justices of the supreme court. When necessary, the court may consist of five circuit judges, so designated or five retired justices so appointed or any combination of circuit judges and retired justices. After oral argument of a case, if a vacancy arises or if for any other reason a justice is unable to continue on the case, the case may be decided or disposed of upon the concurrence of any three members of the court without filling the vacancy or the place of such justice.

7 . The dissent draws attention to language in the Chief Justice’s April 27, 1987, letter to Parting-ton which, the dissent suggests, indicates that the Chief Justice has prejudged Partington’s due process and equal protection claims. Dissent at p. 138 n. 8 & p. 144 n. 24. The Chief Justice is at liberty to recuse himself if his impartiality or the appearance of judicial objectivity is drawn into question.

8 . The dissent suggests that Rule 11 is not a proper basis for imposing sanctions against Chang and Gedan. Conceding that this court has sanctioned attorneys pursuant to Rule 11, the dissent maintains that in each case the sanctionable conduct occurred in the district court. Dissent at 35 & n. 34. The dissent is mistaken. In re Curl, 803 F.2d 1004, 1007 (9th Cir.1986), held that:

Curl’s excuses do not relieve him of responsibility for having brought an appeal that should not have been brought, for subjecting Harvester to the burden of appellate litigation, and for having put this court to the task of reading, analyzing, and judging his baseless arguments.... The brief filed by Curl was not well-grounded in fact and he had not made reasonable inquiry.

Id. (emphasis added). Contrary to the dissent's assertion, dissent at 35 n. 34, In re Curl is not ambiguous. This court sanctioned Curl for much more than filing a frivolous notice of appeal in district court; we sanctioned him for conduct occurring in the appellate court.