Bundy v Leon County FL Petition for a Writ of Certiorari

    I n  the

fhtjmw (Emnrt nf tiw States
October T erm, 1978 

No. 78-

T heodore R obert B undy and 
M illard 0 . F armer, Jr.,

Petitioners, 
v.

J ohn A . R udd, in Ms capacity as Judge for the Circuit 
Court of the Second Judicial Circuit in and for Leon 
County, Florida, and

Charles M. M cClure, in his capacity as Judge in the 
County Court of Leon County, Florida, for the Second 
Judicial Circuit,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, 

IN AND FOR LEON COUNTY, FLORIDA

Jack Greenberg 
James M. N abrit, I I I  
J oel B erger 
John Charles B oger 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

A nthony  G. A msterdam
Stanford University Law School 
Stanford, California 94305

Attorneys for Petitioners



TABLE OF CONTENTS

PAGE

Citations to Opinions Below .............................  2

Jurisdiction ........................................................  2

Questions Presented ............................................ 3

Constitutional and Statutory Provisions
Involved ......................................................  3

Statement of the Case ........................................  4

How The Federal Questions Were Raised
And Decided Below ....................................  19

Reasons For Granting The Writ .........................  22

I. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER THE SIXTH AMEND­
MENT AND THE DUE PROCESS CLAUSE OF 
THE FOURTEENTH AMENDMENT REQUIRE A 
STATE COURT TO HOLD AN EVIDENTIARY 
HEARING, WITH PRIOR NOTICE OF 
APPLICABLE LEGAL STANDARDS AND 
OF SPECIFIC INSTANCES OF ALLEGED 
MISCONDUCT, BEFORE IT MAY DENY AN 
OUT-OF-STATE ATTORNEY PERMISSION TO 
REPRESENT A DEFENDANT PRO HAC VICE 
IN A CAPITAL CASE..................................  27

I I .  THE COURT SHOULD GRANT CERTIORARI 
TO CONSIDER WHETHER THE FIRST AND 
SIXTH AMENDMENTS AND THE DUE PRO­
CESS CLAUSE OF THE FOURTEENTH 
AMENDMENT IMPOSE ANY LIMITATIONS 
ON A STATE COURT'S DISCRETION IN 
DECIDING WHETHER TO PERMIT AN OUT- 
OF-STATE ATTORNEY TO REPRESENT A 
DEFENDANT PRO HAC VICE IN A
CAPITAL CASE .........................................  33

Conclusion ..........................................................  38



11

TABLE OF AUTHORITIES

PAGE

Argersinger v. Hamlin, 407 U.S. 25
(1972) ...............................................  28

Brotherhood of Railroad Trainmen 
v. Virginia ex rel Virginia 
State Bar, 377 U.S. 1 (1964) .........  36

Bundy v. Rudd, No. 55,610 (F la .,
Dec. 22, 1978) ...............................  14

Bundy & Farmer v. Rudd, et a l .,
581 F .2d 1126 (5th Cir.
1978) ...............................................  5

Bundy v. Katsaris, TCA 78-0913
(N.D. Fla. Sept. 13, 1978) .............. 13

Chandler v. Fretag, 348 U.S. 3
(1955) ...............................................  29

Cooper v. Hutchinson, 184 F.2d
119 (3d Cir. 1950) .........................  23, 26

Crooker v. California, 357 U.S.
433 (1958) ........................................ 29

Farmer v. Holton, petition for cert
f i l e d , 47 U.S.L.W. ____  (U.S.
Dec., 1978) (No. 78- ) ................  9,10

Flynt v. Leis, 574 F.2d 874 (6th 
C ir . ) ,  petition for cert 
f i led , 46 U.S.L.W. 3723 (U.S.
May 23, 1978) (No. 77-1618) ..20,24,26,31



I l l

Gardner v. Florida, 430 U.S. 349
(1977) .............................................  32

Gideon v. Wainwright, 372 U.S.
335 (1963) ........................................ 28

Goldfarb v. Virginia State Bar,
421 U.S. 773 (1975) ........................ 31

Gregg v. Georgia, 428 U.S. 153
(1976)   32

In re Evans, 524 F.2d 1004 (5th
Cir. 1975) ........................................ 20,26

In re Mosness, 39 Wis. 509, 20 Am.
Rep. 55 (Wis. 1976) ........................ 23

In re Primus, 436 U.S. 412 (1978) .......  31,37

Johnson v. Zerbst, 304 U.S. 458
(1938) ............................    28

Konigsberg v. State Bar of California,
353 U.S. 252 (1957) ........................ 30

Lee v. United States, 235 F.2d 219
(D.C. Cir. 1956) ............................. 29

Lefton v. City of Hattiesburg, 333 F.2d
280 (5th Cir. 1964) .......................  35

Lockett v. Ohio ____  U.S. ____ . 57
L.Ed. 2d 976 (1978) .........................  32

NAACP v. Button, 371 U.S. 415 (1963) .. 36

PAGE



IV

Norfolk & Western Ry. v. Beatty, 400 
F.Supp. 234 (S.D. 111.), 
a ff*d, 423 U.S. 1009 (1975) . . . . . .  26

PAGE

Paul v. Davis, 424 U.S. 693 (1976) . . .  30

Powell v. Alabama, 287 U.S. 45 (1932).. 28,32

Reichauer v. Cunningham, 299 F.2d 170 
(4th C ir . ) ,  cert denied, 371 
U.S. 866 (1962) ...............................  29

Reid v. Covert, 354 U.S. 1 (1957) .......  32

Releford v. United States, 298
(9th Cir. 1961) ...............................  29

Sanders v. Russell, 401 F.2d 241 (5th
Cir. 1968) ................................   35

Schware v. Board of Bar Examiners,
353 U.S. 232 ( 1957) ........................ 30

Silverman v. Browning, 414 F.Supp.
80 (D. Conn. 1976) ................................... 26

Sobol v. Perez, 289 F.Supp. 392
(E.D. La. 1968) ...............................  35

Spanos v. Skouras Theatres Corp.,
364 F.2d 161 (2d C ir . ) ,  cert
denied, 385 U.S. 987 (1966)“ .......  24

Stein v. New York, 356 U.S 156 (1953).. 32



V

Thomas v. Cassidy, 249 F.2d 91
(4th C ir . ) ,  cert denied 355
U.S. 958 (1957) ...............................  26

Thursby v. Warren, 4 Car. 1, 79
Eng. Sep. 738 (C.P. 1629) ............. 23

United States v. Bergamo, 154 F.2d 31
(3d Cir. 1946) ................................. 26

United States v. Jones, 369 F.2d 217
(7th Cir. 1966) ...............................  29

United Mine Workers v. I l l in o is
Bar Ass'n, 389 U.S 217 (1967) ___  36

United Transportation Union v.
State Bar of Michigan, 401
U.S. 576 (1971) ...............................  37

Williams v. Georgia, 349 U.S. 375
(1955) ...............................................  32

Wisconsin v. Constantineau, 400 U.S.
433 (1971) ........................................  30

Woodson v. North Carolina, 4"8 U.S.
280 (1976) ........................................  32

Statutes

Florida Rule of Judicial Administration
2.060(b) ............................................ 3,33

28 U.S.C. §1257(3) ................................... 2

PAGE

42 U.S.C. §1983 13



VI

Other Authorities

Annot•» Attorney's Right to Appear
Pro Hac Vice in Federal Courts,
33 A.L.R. Fed. 799 (1977) ............. 25

Brakel & Loh, Regulating the
Multistate Practice of Law, 50
Wash. L. Rev. 699 (1975) ............. 24,25

Note, Constitutional Right to Engage 
an Out-of-State Attorney, 19 
Stan. L. Rev. 856 (1967) ............... 24

Note, Retaining Out-of-State Counsel:
The Evolution of a Federal Right,
67 Colum. L. Rev. 731 (1967) ........  24,35

Wilkey, Proposal for a "United States 
Bar," 58 A.B.A.J. 355
(1972) ...............................................  25

ABA STANDARDS RELATING TO THE
FUNCTION OF THE TRIAL JUDGE,
Sec. 3.5 (1972) ...............................  18

6 Holdsworth, A History of English 
Law (1924) ...............................

PAGE

23



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1978 
No. 78-

THEODORE ROBERT BUNDY and 
MILLARD C. FARMER, JR.,

Pet it  ioners,

v.

JOHN A. RUDD, In His Capacity as Judge 
for the Circuit Court of the Second 
Judicial Circuit in and for Leon County, 
Florida, and

CHARLES M. McCLURE, In His Capacity 
as Judge in the County Court of Leon County, 
Florida, for the Second Judicial Circuit,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO 
THE CIRCUIT COURT OF THE SECOND JUDICIAL 
CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA

Petitioners pray that a writ of certiorari 

issue to review the judgment of the Circuit Court 

of the Second Judicial Circuit, in and for Leon 

County, Florida, rendered August 3, 1978.



CITATIONS TO OPINIONS BELOW

The memorandum order of the Circuit Court of 

the Second Jud ic ia l C ircu it ,  in and for Leon 

County, Florida, which was unreported, is annexed 

as Exhibit A. The Supreme Court of Florida denied 

petitions for writs of certiorari, of prohibition, 

of mandamus and for other r e l i e f  in orders without 

published opinion, reported at 362 So.2d 1050 

(1978), which are annexed as Appendix B.

JURISDICTION

The order of the Circuit Court of the Second 

Judicial Circuit, in and for Leon County, Florida 

was entered on August 3, 1978. The Supreme Court 

of Florida denied petitions for writs of certio ­

rar i,  of prohibition, of mandamus and for other 

r e l i e f  in orders entered August 21, 1978. This

Court, on November 16, 1978, granted an extension 

of time to f i l e  a petition for a writ of certio ­

rari to and including December 29, 1978. Juris­

diction of this Court is invoked under 28 U.S.C. 

§1257(3), petitioners having asserted below and 

asserting here deprivation  o f r igh ts  secured 

by the Constitution of the United States.



-  3 -

QUESTIONS PRESENTED

I. Whether the Sixth Amendment and the Due
Process Clause of the Fourteenth Amendment 
require a state court to hold an evidentiary 
hearing, with prior notice of applicable 
legal standards and of specific instances of 
alleged misconduct, before it  may deny 
an out-of-state attorney permission to 
represent a defendant pro hac vice in a 
capital case.

I I .  Whether the First and Sixth Amendments and 
the Due Process Clause of the Fourteenth 
Amendment impose any limitations on a state 
court's discretion in deciding whether to 
permit an out-of-state attorney to represent 
a defendant pro hac vice in a capital case.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

1. This case involves the First, Sixth and 

Fourteenth Amendments to the Constitution of the 
United States.

2. This case also involves Rule 2.060(b) of

the F lor ida  Rules o f Judic ia l Administration:

" Foreign Attorneys. Upon motion f i led  
with a court showing that an attorney is 
a member in good standing of the bar of 
another state and that, under the rules 
of comity of the other state a member of 
The Florida Bar is permitted to appear 
in that state, attorneys of other states 
may be permitted to appear in particular



-  4 -

cases in a Florida court. A request for 
an appearance shall be before ora l 
arguments in an appellate court proceed­
ing and before t r ia l  in a t r ia l  court. 
Attorneys of other states shall not do 
a general p ractice  unless they are 
members o f The F lorida  Bar in good 
standing."

STATEMENT OF THE CASE

On February 15, 1978, p e t i t ion e r  Theodore 

Robert Bundy ("Bundy") was arrested in Pensacola, 

Florida on suspicion o f theft. While incarcerated 

awaiting t r ia l ,  Bundy was charged with the January 

15, 1978 slayings in Tallahassee of two members of 

a F lor ida  State Un ivers ity  so ro r ity  in the 

so-called "Chi Omega" murders. These murders had 

received widespread attention in the Florida news 

media, and the arrest o f Bundy — a fu g i t iv e  

wanted in several other states for questioning 

concerning other crimes — in ten s i f ie d  public 

interest in the case.

Petitioner Bundy's f i r s t  telephone ca ll after 

his arrest was placed to petitioner Millard C. 

Farmer ("Farm er"), an attorney with the Team 

Defense Project, Inc., in Atlanta, Georgia, who 

had known Bundy for over two years and had rep­

resented him on crim inal charges in Colorado. 

The law practice of Farmer and of the Team Defense 

P ro jec t ,  In c .,  is devoted p r in c ip a l ly  to the



-  5 -

defense o f cap ita l  cases, and Bundy requested 

Farmer to come to Florida to defend him against 

expected capital charges.

Prior to Bundy's formal indictment in Leon 

County for the "Chi Omega" murders, the Honorable 

John A. Rudd, Judge for the Circuit Court of the 

Second Judicial Circuit in and for Leon County, 

Florida, on his own motion appointed the local 

Public Defender O ff ic e  to represent Bundy in 

certain matters related to the anticipated indict­

ments. On July 24, 1978, Bundy came before Judge 

Rudd on motions f i l e d  by the Public Defender. 

At the outset o f the hearing, Public Defender 

Michael Minerva f i led  a motion to permit Millard

Farmer to appear as defense counsel representing 
* /Bundy (A. 4 ).—'The motion was accompanied by a

c e r t i f i c a t e  evidencing Farmer's good standing

in the Georgia bar. Addressing the court, Public

Defender Minerva stated:

"[W]e believe that the motion is timely, we 
believe that the Court has the authority and 
Mr. Farmer is p a r t icu la r ly  well-versed  in

A ll references are to the Appendix on appeal 
in a companion case, Bundy & Farmer v. Rudd, et 
al ■ , 581 F.2d 1126 (5th Cir. 1978) from which a 
petition for a writ of certiorari has been f i led  
in this Court on December 29, 1978 (No. 78- ),
and each reference w i l l  be indicated by the 
abbreviation "A." followed by the number of the 
page on which the reference may be found.



-  6 -

these type cases of potential death cases. 
He has represented c l ien ts  a l l  over the 
country. He has been admitted in the Florida 
courts before on a pro hac vice basis and we 
would ask the Court to allow him to assist us 
in th is  case because o f the magnitude of 
the case and his expertise" (A. 6-7).

Judge Rudd then questioned Farmer:

"THE COURT: The Court read an art ic le  
not long ago of a l i s t  of speakers, and 
I believe Mr. Farmer was listed  as one 
of those speakers and he was going to 
address some group on pretria l publicity 
and things of that sort. Am I  in error?

MR. FARMER: Your Honor, I have spoken 
on that subject.

THE COURT: Well, I think you and I 
need to talk in Chambers or somewhere 
under a more relaxed condition about 
p r e t r ia l  p u b lic ity  and the ABA and 
F lo r id a  E th ic s ,  d e a l in g  w ith  that 
subject matter, before I admit you to 
practice in this court.

MR. FARMER: Your Honor, I would be 
glad to not only speak in Chambers, but 
speak on the record in court about that 
issue.

THE COURT: I'm not concerned about that 
e i t h e r .  I d on 't  want to take the 
time now. I don't think it  is appro­
p r ia te  at th is time. . . " (A. 7-8).

The court thereupon reserved decision on the 

motion (A. 8) and directed the Public Defender to 

proceed.



-  7 -

On July 27, 1978, a Leon County grand jury 

ind icted Bundy on two counts o f murder, three 

counts o f attempted murder and two counts of 

burglary (A. 12-13). The following day, Bundy 

appeared before the Honorable Charles A. McClure 

in the Leon County Court for a " f i r s t  appearance." 

Bundy f i led  a handwritten motion seeking to have 

Millard Farmer appointed to represent him during 

this appearance (A. 15), and stated to the court:

"Your Honor, I asked Mr. Farmer to be 
here this morning. I wished for him to 
represent me in my f i r s t  appearance 
as he has outlined to the Court he 
wishes to be appointed for the limited 
purpose o f representing me for this 
f i r s t  appearance. I would resist the 
appointment of any other attorney" (A. 
20) .

Judge McClure replied that

"since there is a motion pending in the 
Circuit Court . . .  I would make [an] 
appointment of the Public Defender at 
th is  point u n t i l  your qu a li f ica t ion s  
. . . and admissions and everything are 
. . . considered by Judge Rudd in the 
motion already pending. I'm certain he 
w il l  give you a fu l l  hearing on that" 
(A. 20).



-  8 -

Therea fter , on July 31, 1978, Bundy was 

arraigned on the capital indictment before the 

Honorable John Rudd. Farmer once again pressed 

for permission to defend Bundy but the court 

reserved dec is ion , promising a hearing on the 

issue on August 2, 1978 (A. 173).

On August 2, 1978, the Circuit Court convened 

to consider three matters: Farmer's pro hac vice 

motion; a motion by the State to postpone Bundy's 

t r ia l ;  and a motion to disqualify Judge Rudd on 

the grounds that the Judge was partial and pre­

judiced against Bundy, that he had engaged in ex 

parte communications without notice concerning the 

case, and that he had made public comments about 

the case which interfered with Bundy's right to a 

fa ir  t r ia l  (A. 36-37).

At the outset of the proceeding, Farmer was 

questioned by the court concerning other admis­

sions pro hac vice in Florida and indicated that 

he had been admitted pro hac v ic e  in a Dade 

County, Florida case within the prior year (A. 

44-45) and that he had "been admitted pro hac vice 

to represent clients in Louisiana, Mississippi, 

Alabama, South Carolina, North Carolina, South



-  9 -

Dakota and had never been denied admittance to 

appear pro hac vice in any case" (A. 45).

The court then asked Farmer about the status 

of two criminal contempt convictions against him 

which at that time were on petition for certiorari
" it /

in the Supreme Court of Georgia (A. 45).—'When

*/ The Supreme Court of Georgia denied Farmer's 
petition for a writ o f certiorari on two contempt 
convictions on September 14, 1978, reconsidera­
tion  denied, October 3, 1978. A p e t i t ion  for 
certiorari to review the judgment of the Georgia 
Court o f Appeals is presently pending in this 
Court in Farmer v. Holton, pet i t  ion for c e r t .
f i l e d , 47 U.S.L.W. _____ (U.S. Dec. , 1978)
(No. 78- ) .  The facts surrounding the con­
tempt convictions are set forth in the petition 
for c e r t io r a r i  in Farmer v. Holton, supra, at 
5-15. Briefly  stated, the contempt convictions 
arose out o f Farmer's resistance to what he 
perceived as invidious ra c ia l  d iscrim ination 
against his c l ien t  during a cap ita l t r i a l  in 
Georgia. Farmer's f i r s t  contempt citation during 
the case came after he vigorously objected to the 
Georgia prosecutor's  insistence on addressing 
Farmer's black client by his f i r s t  name "George" 
rather than as "M ister S t r e e t , "  the form of 
address the prosecutor had employed for white 
witnesses. The second citation came later in the 
t r ia l  after Farmer insisted that complaints of 
racial intimidation of black witnesses and spec­
tators be dealt with immediately by the court.



10 -

Farmer began to advert to the facts surrounding 

the contempt citations, Judge Rudd remarked, " I  

didn't want to bring up the subject matter of the 

case [Farmer v. Holton] Mr. Farmer . . . "(A. 46). 

Farmer responded that " i f  the Court's going to 

consider that, I  would like to put up evidence 

on i t  . . .  " (A. 47).

The court refused to grant Farmer's request, 

turning instead to the question of whether any 

disciplinary proceedings were pending as a result 

of the contempt convictions. U_. After Farmer 

assured the court that no disciplinary proceedings 

had ever been undertaken against him, the court's 

interrogation of Farmer continued:

"THE COURT: Well, haven't you, Mr.
Farmer, spoken e x t e n s iv e ly  on the 
va lu e  o f  p r e t r i a l  p u b l i c i t y  as i t  
affects the outcome of cases and things 
of that sort?

MR. FARMER: Your Honor, I am a member
of the faculty of the National College 
of Criminal Defense Lawyers and Public 
Defenders. I do, as far as continued 
legal education with that organization 
and as far as continued legal education 
with the state Bars of South Carolina, 
F lo r id a ,  G eorg ia ,  Lou is iana  . . .



11 -

THE COURT: But the question was: don't 
you speak extensively on that subject?

MR. FARMER: No, s i r .  I  don't speak 
e x t e n s iv e ly  on that su b je c t .  The 
subject that I speak extensively on is 
capital punishment cases, because that 
is the only type o f case — in other 
words, my practice is limited to capital 
punishment cases.

THE COURT: But isn 't i t  a part of your 
approach to a case, Mr. Bundy, to 
— seek or curry or — putting i t  more 
po lite ly  — not refuse an opportunity to 
comment on a case pending in this — in 
a Court?

MR. FARMER: Your Honor, you addressed
that to Mr. Bundy. Did you mean . . .

THE COURT: Excuse me. Mr . F arme r .

MR. FARMER: Yes, s ir . And excuse me
for miss ing your question.

THE COURT: Is n 't  that part o f your
approach to any given case ?

MR. FARMER: Your Honor, I don' t have an
approach to any case that is inconsist-
ent with the canons of ethics, the laws
of the state that I'm involved in and 
the constitution of the United States.

I am one of the strongest believers 
in our system of justice . . .

THE COURT: That —  t h a t ' s  f i n e .



12 -

MR. FARMER: . . . and the answer to that 
question would be, no, I have never 
advocated anyone to v io late  the consti­
tution o f the United States, the laws of 
the United States and — and the things 
that we cherish dearly.

THE COURT: But haven't you been quoted
extensively or quoted pretty regularly 

te levis ion , radio and newspaper for 
the last week or ten days as it  relates 
to this case?

MR. FARMER: Your Honor, i f  you have any
such quotations that ind icate in any 
way that I have v io la ted  any act, I 
think they should be placed in e v i ­
dence . . .

THE COURT: No one said you had violated
anything.

MR. FARMER: . . . Your Honor.

THE COURT: My question was: haven't you
spoken to a l l  media rather regu la r ly  
on this case?

MR. FARMER: Your Honor, I exercise my
F irs t  Amendment r ights at a l l  times 
consistent with the canon of ethics of 
the State of Florida and consistent with 
the laws of Florida and consistent with 
the constitution of Florida.

And I f e e l  that i f  there is any 
accusation that I am unfit that i t  
should be done in the form o f  sworn 
testimony and shouldn't be done between



13 -

a — this type of conference between you 
and I .  I f  there is sworn testimony to 
anything like that, I think the Coujt 
should have i t  presented" (A. 47-49).—

Judge Rudd next questioned Farmer extensively 

concerning Farmer's part in preparing the motion 

f i led  by Bundy to disqualify the judge, ascer­

ta in ing  that Farmer had ass isted  in d ra ft in g  

the motion and that he had in i t ia l ly  signed the 

papers, la te r  crossing out his signature. (A. 

51-52) .—'

*J Farmer had spoken publicly during the period 
in question, not principally about Bundy's pending 
crim inal charges, but about the conditions o f  
Bundy's pretria l detention and treatment. Subse­
quently, after these conditions had persisted, a 
federal suit was brought pursuant to 42 U.S.C. 
§1983 and on September 13, 1978, the United
States District Court for the Northern District of 
Florida, Tallahassee Division, granted preliminary 
injunctive r e l i e f  requested in Bundy v. Katsaris, 
TCA 78-0913 (N.D. Fla. Sept. 13, 1978) (A. 285-86). 
Farmer also stated to the press that excessive 
publicity surrounding Bundy should cease, and that 
the "circus atmosphere" should give way to orderly 
judicial proceedings.

* * / Although Judge Rudd dismissed the motion to 
disqualify himself on August 3, 1978, finding it
to be "defective on its  face . . . and fi led  for
the purpose of delaying and disrupting the



14 -

The State Attorney was then given an oppor­

tunity to address the Court, and after setting 

forth cases and statutory authorities supporting 

the court's discretion to grant or deny pro hac 

vice status, continued:

"MR SIMPSON [State Attorney]
I want to also point out to the Court a 
couple o f other things that I think 
should bear on the Court's mind in 
exerc is ing  d isc re t ion  in th is case. 
During the last week to ten days, I ,  
too, have been reading the newspaper. 
And it  appears that Mr. Farmer 
has . . .

MR. FARMER: Your Honor, I would object
to any r e c i t a t i o n  o f  the ev idence  
without it  being under oath so I  might 
examine him on th is  issue. I don't 
think that i t  is the proper way to put 
in ev id ence  on —  in th is  manner.

* * / Cont'd .

orderly procedure of matters set for hearing" (A. 
81), a f te r  Bundy brought a second motion to 
d isqu a li fy  Judge Rudd, the Supreme Court o f 
F lorida  on December 22, 1978 entered an order 
finding Judge Rudd in error for failure to dis­
qualify himself. The Supreme Court found that the 
circumstances of this case involved, "'an in to ler­
able adversary atmosphere' . . . between the t r ia l  
judge and the l i t i g a n t . "  Bundy v. Rudd, No. 
55,610 (F la . , Dec. 22, 1978).



15 -

I f  he has any specific complaints that 
— that he wishes to make, I think that 
he is well aware of the proceedings, and 
I  think I  should have an opportunity to 
examine him.

THE COURT: I  don't know that this is an
ev iden tia ry  hearing to the extent that
sworn testim ony and w itnesses  are
necessary, Mr. Farmer. This is more or
le s s  a discussion for the bene fit o f
this Court, who feels a strong obliga­
t ion  to the bench and Bar to weigh 
carefully those persons who are admitted 
to practice before i t .

MR. FARMER: Your Honor, I  think . . .

THE COURT: And the Court w il l  hear Mr. 
Simpson and g ive  i t  what weight the 
Court finds it  should have.

MR. FARMER: A ll right. So, Your Honor, 
we would ob ject on the basis that i t  
violates the sixth amendment confronta­
tion right of the defendant, in addition 
to the fact that i t  would be hearsay. 
We would further object that i t  is 
a denial of due process to allow this 
type o f evidence with us not knowing 
what is the status of the acceptance or 
rejection o f it  by the Court.

I f  the Court is rejecting i t ,  I  think it  
shouldn't be admitted. I f  it  is being 
admitted, we should know under what



16

basis. But we would like a continuing 
ob jec t ion  on that as to any o f th is 
testimony given not under oath.

THE COURT: A ll right.

MR. SIMPSON: F ine . I ' l l  —  I ' l l
withdraw any statement that I  had in 
regard to the newspaper, Your Honor. I 
think the things that have happened in 
the newspaper are obvious" (A. 56-58). 
(Emphasis added.)

When Farmer again requested an opportunity to

"put up evidence on th is  issue" (A. 58-59),

the court replied, "Well, go ahead and state what

you have. Make a proffer of i t ,  i f  you w i l l "  (A.

59). Farmer f i r s t  attempted to direct the court's

attention to a number of decided cases concerning

pro hac vice admissions. When he began to address

the Georgia contempt issue, he was cut o f f :

MR. FARMER: And, you know, I  want to
say to the Court, I regret more than 
anything that that judge held me in 
contempt. But I don't regret making an 
objection when a black person is called

THE COURT: Now, Mr. Farmer, just wait a
minute.

MR. FARMER: . . .  by his f i r s t  name



17 -

THE COURT: Wait a minute. You had your
podium up there on that subject matter. 
That subject matter has no relationship 
to our hearing here. You can espouse 
that in another case where i t ' s  more 
appropriate. We're not concerned with 
that here. (A. 63-64)

Farmer then renewed his request to be permitted 

to introduce evidence in support of his motion, 

but the court responded, " I  don't think that's 

necessary, Mr. Farmer" (A. 64-65).

At the c lose o f the proceeding, the court 

reserved decision and issued a memorandum order 

the next day, denying the motion (A. 70-74). In 

its  order, the court acknowledged that " [ i ] t  is

accepted practice of the judiciary in this State

to permit, on proper motion, the appearance of

foreign counsel pro hac v ic e ;" that "the Courts 

o f th is C ircu it  and the State have been most 

libera l in granting pro hac vice motions;" and

that "this Court has never denied such motion" (A. 

71).
Despite these facts, the court held that it  

would deny Farmer permission to represent Bundy, 

announcing for the f i r s t  time that, " fo r  purposes 

of this case and in similar cases in the future,



18 -

this Court w i l l  u t i l i z e  the standards promulgated 

by the American Bar Association  in "Standards 

Relating to the Function of the Tria l Judge, Sec. 

3.5 (1972)" (A. 12).— Applying those ABA Stan­

dards, the court id e n t i f ie d  three bases for 

denying the motion:

( i )  f i r s t ,  Farmer's Georgia contempt 

conviction. Referring to the "record o f the t r ia l  

court proceeding" in the Holton case and the 

opinion of the Georgia Court of Appeals, the court 

denounced Farmer's behavior there as " t ru ly

*J §3.5 of the American Bar Association Stan­
dards Relating to the Function of the Trial Judge 
states in pertinent part:

Attorneys from other ju r isd ic t io n s .  
I f  an attorney who is not admitted to 
p ractice  in the ju r isd ic t io n  o f the 
court p e t i t i o n s  fo r  perm iss ion  to 
represent a defendant, the t r ia l  judge 
may

(a) deny such permission i f  the 
attorney has been held in contempt 
o f  court or otherwise formally 
disciplined for courtroom miscon­
duct, or i f  i t  appears by reliable 
evidence that he has engaged in 
courtroom misconduct su f f ic ien t  
to warrant disciplinary 
action . . . .



19 -

shocking"—̂ and declared, "This court simply 

. . . w i l l  not allow these proceedings to become 

a b izarre  circus where Mr. Farmer can play 

ringmaster for an audience that could not possibly 

include a jury;"
( i i )  second, Farmer's conduct during the 

pro hac vice motion, which the court characterized 

as "grounded on some perverse p r in c ip le  of 

maximized obfuscation;" and
( i i i )  third, Farmer's role in assisting 

Bundy to draft the motion to disqualify Judge Rudd 

which, the court stated, "conclusively shows that 

Mr. Farmer practices a frivolous kind o f law that 

simply is not to le ra ted  in this C ircu it "  (A. 

73).

HOW THE FEDERAL QUESTIONS WERE 
RAISED AND DECIDED BELOW

Bundy and Farmer requested both the Circuit 

Court and the County Court, orally and in writing,

*/ As indicated, Farmer has petit ioned  this 
Court for review of the Georgia Court of Appeals 
decision in Farmer v . Ho11on, petition for ce r t .
f i led , 47 U.S.L.W. ____  (U.S. Dec. , 1978) (No.
78- ) .



20 -

to permit Farmer to serve as Bundy's defense 

counsel pro hac v ic e . At Bundy's f i r s t  appearance 

in County Court on July 28, 1978, Assistant Public 

Defender Joseph Nursey, speaking on behalf of the 

motion, urged that " I  don't think the o f f ic e  of 

Public Defender can represent Mr. Bundy in this 

cause. . . .M r . Farmer is counsel o f his choice, 

1 fee l that i t  would be a deprivation of his Sixth 

Amendment right to counsel" (A. 21). The County 

Court denied the motion without comment on the 

Sixth Amendment issue.

At the August 2, 1978 hearing in the Circuit 

Court, Farmer repeatedly requested the right to 

present evidence in support of his motion, and 

objected to unsworn and hearsay statements and 

evidence. Farmer also re fe rred  the court to 

several federal cases in support of his right to 

represent Bundy, including Flynt v. Le is , 574 F.2d 

874 (6th Cir. 1978), " [ in  which the Sixth Circuit 

said ] that there had to be a find ing — there 

had to be a hearing, and at the hearing they had 

to find that the o u t-o f-s ta te  attorney was 

unfit. And in the In re Evans case [524 F.2d 1004 

(5th Cir. 1975)], i t  —  i t  stated unfitness 

had be be such that the — i t  was subject to



21

disbarment proceedings for his act; that he had to 

be placed on notice for what charges were being 

held against him; and allow an adequate opportunity 

for hearings" (A. 63).
In its  decision, the Circuit Court recognized 

that the "ru lin g  on these motions bottoms on 

the Sixth Amendment to our Federal Constitution 

(A. 71). The Court concluded, however, that other 

federal pro hac vice cases were distinguishable. 

While acknowledging that a reasonably c lear 

legal standard and a statement of the basis for 

any exclusion were required by due process (A. 

72), the Court announced that i t  would henceforth 

follow a new standard and denied the motion based 

upon it  (A. 72-75).
In his August 4, 1978 p e t i t io n  for a 

common law writ of certiorari to the Supreme Court 

of Florida, Bundy requested "an Order directing 

the state to show cause why Petitioner is being 

denied his Sixth Amendment right to counsel where 

there has been no prior notice given that Millard 

Farmer is un fit  for admission pro hac v i c e , 

including s p e c i f ic  a llega t ions  of unethical 

behavior to support such a finding, and there has



22 -

been no evidence presented of alleged misbehavior 

on his part" (A. 85).
In their August 14, 1978 joint petition to

the Supreme Court of Florida, Bundy and Farmer 

a lleged  that Bundy's Sixth Amendment r igh t to 

counsel, among others, had been v io la ted  (A. 

179-80) and that Farmer's First Amendment rights 

had been abridged (A. 181).
The Supreme Court of F lor ida  denied the 

petitions without comment.

REASONS FOR GRANTING THE WRIT

This case presents two re la ted  questions 

which have never been d irectly  addressed by this 

Court and on which the lower courts have reached 

varying conclusions: f i r s t ,  whether the due

process of law and a defendant's right to counsel 

require a state court to meet minimum procedural 

standards in resolving a motion for pro hac vice 

admission in a criminal case; and secondly, 

whether these same constitutional concerns combine 

with First Amendment rights of speech and associa­

t ion  to impose any substantive standards upon 

state courts in the exercise of their discretion

on such motions.



23

Pro hac v ice  admissions are, o f course, a 

longstanding legal tradition, "apparently recog­

nized as early as 1629 by English judges of Common 

Pleas," Cooper v. Hutchinson, 184 F.2d 119, 122 

(3d Cir. 1950), c iting Thursby v. Warren, 4 Car. 

1, 79 Eng. Rep. 738 (C.P. 1629) and 6 Holdsworth, 

A History o f English Law, 435-36, 453, 456-57 

(1924). In this country, the practice of admit­

ting out-of-state counsel in particular cases was 

well-recognized by the middle of the nineteenth 

century, see e .g . , In re Mosness, 39 Wis. 509, 20 

Am. Rep. 55 (Wis. 1976). As the Sixth Circuit 

has recently observed, "Nonresident lawyers have 

appeared in many of our most celebrated cases. 

For'example, Andrew Hamilton, a leader of the 

Ph iladelph ia  bar, defended John Peter Zenger 

in New York in 1735 in colonial America's most 

famous freedom-of-speech case. Clarence Darrow 

appeared in many states to plead the cause of an 

unpopular c l i e n t ,  including the famous Scopes 

t r ia l  in Tennessee where he opposed another well- 

known, ou t-o f-s ta te  lawyer, William Jennings 

Bryan. Great lawyers from Alexander Hamilton and 

Daniel Webster to Charles Evan Hughes and John W. 

Davis were specially admitted for the t r ia l  of



-  24 -

important cases in other states." Flynt v. Le is , 

574 F.2d 874, 878 (6th C ir . ) ,  petition for c e r t . 

f i led  46 U.S.L.W. 3723 (U.S. May 23, 1978) (No. 

77-1618).
Courts and commentators note that a number of 

p ra c t ica l  factors  ju s t i f y  the p ractice  o f pro 

hac vice admissions, including the frequent need 

to re ta in  a le ga l  s p e c ia l is t  who may have no 

lo ca l equ iva lent, many c l i e n t s '  des ire  to be 

represented by attorneys with whom they may have 

had pr ior  re la t ion sh ip s , and on occasion, the 

unwillingness o f lo ca l attorneys to represent 

zealously an unpopular c lient. See Note, Retain­

i ng O u t-o f-S ta te  Counsel: The Evoluation o f

a Federal Right, 67 Colum. L. Rev. 731 (1967); 

Note, Constitutional Right to Engage an Out-of- 

State A ttorney , 19 Stan. L. Rev. 856, 860-62 

(1967). Moreover, contemporary business and 

commercial practices, fostered by increasingly 

soph isticated  methods of transportation and 

communication, have helped make interstate prac­

tice the rule in several areas of the law. See 

Brake1 & Loh, Regulating the Multistate Practice 

o f Law, 50 Wash. L. Rev. 699-702, See, e . g . , 

Spanos v. Skouras Theatres Corp., 364 F.2d 161,



25 -

170-71 (2d C ir . ) ,  cert denied, 385 U.S. 987 

(1966).
Despite this long history of pro hac vice 

admissions and the widespread increase in the 

number of attorneys with a significant inter­

state p rac t ice ,  no uniform rules governing 

interstate admission procedures and standards 

have developed, Brake1 & Loh, Regulating the

Multistate Practice of Law, 50 Wash. 699, 702-04 

(1975). Instead, each state has promulgated its  

own rules without general guidance, as have the 

federal d is tr ic t  and circuit courts, See Annot■, 

" A t to rn e y 's  Right to Appear Pro Hac Vice in 

Federal Courts, 33 A.L.R. Fed. 799, 802ff.

(1977). The system has been generally character­

ized generally by Chief Justice Burger as "a 

hodgepodge o f standards for admission, and 

regu lations that are desperately in need o f 

care fu l re-exam ination." Quoted in Wilkey, 

" Proposa l fo r  a 'Uni ted States  Bar , ' 58

A.B.A.J. 355, 356 (1972).
As a result of these factors, serious con­

f l i c t  exists in the lower federal courts over 

whether state courts need conform to any minimum 

constitutional standards in resolving pro hac vice 

motions or in withdrawing permission to appear pro



-  26 -

hac vice once admission has been granted, compare 

Flynt v. Le is , 574 F.2d 874 (6th C ir . ) ,  petition 

for cert, f i le d ,  46 U.S.L.W. 3723 (U.S. May 23, 

1978) (No. 77-1618) and Cooper v. Hutchinson, 184 

F.2d 119 (3d Cir. 1950) with Norfolk & Western Ry. 

v. Beatty, 400 F.Supp. 234 (S.D. 111.), a f f 'd ,

423 U.S. 1009 (1975) and Silverman v. Browning,

414 F.Supp. 80 (D. Conn. 1976). A similar con­

f l i c t  has arisen concerning the ob liga tions 

imposed on federal d is tr ic t  courts in resolving 

pro hac v ic e  applications in federa l courts 

by attorneys admitted in other federal d is tr ic ts , 

compare In re Evans, 524 F.2d 1004 (5th Cir. 1975) 

and United States v. Bergamo, 154 F.2d 31 (3d Cir. 

1946) with Thomas v. Cassidy, 249 F. 2d 91 (4th 

C ir . ) ,  c e r t . denied, 355 U.S. 958 (1957).

P e t it ion e rs  re sp ec t fu l ly  submit that the 

importance of the question of standards governing 

pro hac vice admissions to the fa ir  administration 

of the criminal justice system, and the conflicts 

on the issue which have developed in the federal 

courts, warrant a grant o f c e r t io r a r i  by this

Court.



27 -

Petitioners further submit that the present 

case presents an especially compelling occasion 

for this Court to address these issues. Peti­

tioner Bundy, charged with two brutal and sensa­

tionalized murders, sought the voluntary services 

of Millard Farmer and Team Defense Project Inc., 

both because of Farmer's expertise and because of 

a prior attorney-client relationship. Farmer was 

denied persmission to represent Bundy, without an 

ev iden tia ry  hearing on the basis o f newly-an­

nounced le ga l standards which are capable o f 

being applied a r b i t r a r i l y  and which may have 

been so applied in the present case.

I.

THE COURT SHOULD GRANT CERTIORARI TO 
CONSIDER WHETHER THE SIXTH AMENDMENT 
AND THE DUE PROCESS CLAUSE OF THE 
FOURTEENTH AMENDMENT REQUIRE A STATE 
COURT TO HOLD AN EVIDENTIARY HEARING,
WITH PRIOR NOTICE OF APPLICABLE LEGAL 
STANDARDS AND OF SPECIFIC INSTANCES OF 
MISCONDUCT, BEFORE IT MAY DENY AN OUT- 
OF-STATE ATTORNEY PERMISSION TO 
REPRESENT A DEFENDANT PRO HAC VICE 
IN A CAPITAL CASE

Two in te rre la ted  in teres ts  were offended 

by the Florida court denial of Farmer's pro hac



28 -

v ice  motion without according p r ior  notice o f 

re levant issues and an adequate ev iden tia ry  

hearing: Petitioner Bundy's constitutional right 

to counsel of his choosing, and Farmer's interest 

in both his reputation and his employment in 

representing Bundy. In Powell v . Alabama, 

287 U.S. 45 (1932) this Court recognized a defen­

dant's right to appointed counsel in a capital 

case and also indicated that a defendant who could 

afford it  had a general constitutional right to 

counsel of his choice:
" I f  in any case, c i v i l  or criminal, a state 
or federal court were arb itrar ily  to refuse 
to hear a party by counsel, employed by 
and appearing for him, i t  reasonably may not 
be doubted that such a re fusa l would be a 
denial of a hearing, and therefore, of due 
process in the const itu t iona l sense." 287 
U.S. at 69.

In subsequent cases, this Court has expanded the 

protection of the right to counsel, calling it  

"one o f the safeguards o f the Sixth Amendment 

deemed necessary to insure fundamental human 

righ ts  o f l i f e  and l ib e r t y .  . . •" Johnson v . 

Zerbst, 304 U.S. 458, 462 (1938); see Gideon v . 

Wainwright, 372 U.S. 335 (1963); Argersinger v . 

Hamlin, 407 U.S. 25 (1972) and has also reaffirmed 

the suggestion in Powell that a defendant s right



29 -

to be heard through his own counsel [ is ]  unquali­

f ied ,"  Chandler v. Fretag, 348 U.S. 3, 9 (1955); 

Crooker v. California, 357 U.S. 433, 439 (1958).

The lower courts have echoed the general 

proposition that to deny a criminal defendant the 

"counsel o f his choice . . . v io la te s  the due 

process clause of the Fourteenth Amendment." 

Reickauer v. Cunningham, 299 F. 2d 170, 172 (4th 

C ir . ) ,  cert, denied, 371 U.S. 866 (1962); see, 

e .g . , United States v. Jones, 369 F.2d 217, 219 

(7th Cir. 1966); Releford v. United States, 288 

F. 2d 298, 301 (9th C ir. 1961); Lee v. United 

States, 235 F.2d 219, 221 (D.C. Cir. 1956). Bundy 

has been denied that r igh t without even an 

adequate hearing.
The court below minimized the importance of 

attorney Farmer's interest in representing Bundy, 

suggesting that i t  did not attain the status of a 

constitutionally protected right. Yet Farmer's 

interest, and his injury, are clearly substantial. 

As a specialist in capital punishment l it iga t ion  

engaged in a voluntary, m ultis tate  p ract ice , 

Farmer has been branded an unacceptable practi­

tioner in Leon County, Florida. Other prosecutors



30 -

throughout Florida and in other states who may not 

welcome Farmer's vigorous contest of a capital 

case have learned that Farmer may be excluded 

merely by the invocation o f his p r io r  Georgia 

contempt citations.

P e t it ion e rs  submit that the in ev itab le ,  

adverse impact on Farmer's m u lt is ta te  lega l 

practice en tit le  him to due process protection 

under the "stigma plus" test developed by this 

Court in Wisconsin v. Const antineau, 400 U.S. 433, 

437 (1971) and Paul v. Davis, 424 U.S. 693 (1976).

But in any event, this Court has expressed 

unwillingness to calculate an attorney's right to 

practice on a narrow rights-priv ileges standard in 

examining the re la ted  question o f s ta te  bar 

admission standards:

"We need not enter into a discussion whether 
the p r a c t i c e  o f law is  a ' r i g h t '  or a 
'p r iv i le g e ' .  Regardless of how the State's 
grant of permission to engage in this occupa­
tion is characterized, i t  is sufficient to 
say that a person cannot be prevented from 
pract ic ing  law except for v a l id  reasons. 
C erta in ly , the p ractice  o f law is not a 
matter of the State's grace."

Schware v. Board of Bar Examiners, 353 U.S. 232, 

239 n.5 (1957); see also Konigsberg v. State Bar 

of California, 353 U.S. 252 (1957). The admission 

o f attorneys pro hac v ice  in criminal cases

requires a similar concern for procedural fairness.



-  31

Petitioners do not, of course, suggest that 

the in teres ts  they id en t i fy  for th is Court 

necessarily require the admission pro hac vice of 

attorneys in every crim inal case -  or even of 

Farmer in this case. It  is undeniable that " [t ]h e  

States enjoy broad power to regulate 'the practice 

of professions within their boundaries' and '[ t ]h e  

interest of the States in regulating lawyers is 

especially great since lawyers are essential to 

the primary governmental function of administering 

justice and have h is to r ica lly  been "o ff icers  of 

the c o u r t . " " '  In re Primus, 436 U.S. 412, 422

(1978), quoting Goldfarb v. Virginia State Bar, 

421 U.S. 773, 792 (1975).

The issue however, is not whether states 

enjoy power to regulate pro hac vice admissions 

but whether the interests of attorneys and their 

clients require state courts to hold evidentiary 

hearings with pr ior  notice o f le ga l standards 

before ruling on pro hac vice motions. See, Flynt 

v. Le is , 574 F.2d 874, 877 (6th Cir. 1978); In re 

Evans, 524 F.2d 1004, 1008 (5th C ir. 1975).

Such measure o f procedural fa irness is 

particularly appropriate in a capital case; this



32 -

Court has repeatedly noted the qualitative d i f ­

ference of death as punishment, Lockett v. Ohio,

____  U.S. ____  57 L.Ed.2d 973, 988 (1978); Gardner

v. Florida, 430 U.S. 349, 357 (1977); Woodson v . 

North Carolina, 438 U.S. 280, 304-05 (1976), and 

has in s is ted  on high standards o f procedural 

fa irness in cap ita l cases, s ee , e . g . , Reid v . 

Covert, 354 U.S. 1, 45-46 ( 1957)(concurring

opinion of Frankfurter J . ) ;  _id_. at 77 (concurring 

opinion of Harlan, J . ) ;  Williams v. Georgia, 349 

U.S. 375, 391 (1955); Stein v. New York, 356 U.S. 

156, 196 (1953).

Further, this Court has long recognized the 

specia l need o f a cap ita l defendant for the 

"guiding hand o f counsel at every step in the 

proceedings against him" Powell v. Alabama, supra, 

287 U.S. at 69. Consequently, p e t it ion ers  

submit, a s ta te  court must be "p a r t icu la r ly  

sensitive to see that every safeguard is observ­

ed," Gregg v. Georgia, 428 U.S. 153, 187 (1976), 

— including the "safeguard" o f  a due process 

hearing — before depriving a capital defendant of 

the attorney whom he has chosen and in whom he has 

placed his trust.



-  33 -

I I .

THE COURT SHOULD GRANT CERTIORARI TO 
CONSIDER WHETHER THE FIRST AND SIXTH 
AMENDMENTS AND THE DUE PROCESS CLAUSE 
OF THE FOURTEENTH AMENDMENT IMPOSET ANY 
LIMITATIONS ON A STATE COURT'S DISCRETION 
IN DECIDING WHETHER TO PERMIT AN OUT-OF- 
STATE ATTORNEY TO REPRESENT A DEFENDANT 
PRO HAC VICE IN A CAPITAL CASE.

F lo r id a 's  Rule 2.060(b) governing pro hac 

vice admissions grants a t r ia l  judge very broad 

discretion in handling such motions and provides, 

in e f f e c t ,  no uniform d iscern ib le  standard. 

Indeed, the American Bar Association provision 

seized upon by the Florida court to deny Farmer's 

admission pro hac vice in this case would permit a 

state to impose an in d e f in i te  ban against any 

out-of-state attorney cited for criminal contempt 

without any inquiry into the circumstances of the 

contempt and without regard for any other factors 

bearing upon an attorney's fitness to practice. 

Petitioners respectfully submit that — apart from 

considerations of procedural fairness — the ABA 

standard adopted by the Florida court, and the 

Florida statute which permits its use, are uncon­

stitutionally  infirm, providing a broad weapon to 

keep controversial attorneys from appearing on 

behalf of unpopular criminal defendants.



-  34 -

Petitioners respectfully submit that Judge 

Rudd's decision in this case stemmed in large part 

from the court 's  improper consideration o f 

Farmer's public utterances and Farmer's public 

stance against capital punishment. Indeed, during 

two separate hearings before the court, Judge Rudd 

expressly indicated that he had learned from 

extra-judicial sources of Farmer's public lectures 

on capital punishment and the defense of capital 

cases, and that he disapproved o f Farmer's be­

havior (see the portions of transcript quoted, 

supra, at 6, 10-12). The overbreadth o f the 

F lorida  Rule provided no check on the court 's  

consideration of these factors.

Petitioners maintain that employment of the 

F lor ida  Rule in th is  fashion in fr inged , not 

only Bundy's Sixth Amendment right to counsel, but 

Farmer's separate First Amendment rights of speech 

and association. During the c i v i l  rights movement 

in the 1960's, federal courts adjudicated a number 

of cases in which Southern courts sought to deny

i



-  35 -

attorneys from representing lo c a l ly  unpopular 

defendants by employing in flex ib le  rules to govern 

pro hac vice admissions. In Sanders v. Russell, 

401 F. 2d 241 (5th Cir. 1968), for example, the 

F ifth  C ircu it was forced to s tr ike  down rules 

promulgated by the United States District Court 

for the Southern District of Mississippi. Recog­

n iz ing "that the D is tr ic t  Court has a va l id  

in teres t  in regu la ting  the qu a l i f ic a t ion s  and 

conduct of counsel," 401 F.2d at 245, the court 

nevertheless insisted that " [ i ]n  these non-fee 

generating c i v i l  rights cases it  is clear that 

only reasonable limits can be placed on a federal 

l i t ig a n t 's  choice of counsel. . . ." 401 F. 2d at 

247. See Lefton v. City of Hattiesburg, 333 F. 2d 

280, 285-86 (5th Cir. 1964); see generally Sobol 

v. Perez, 289 F.Supp. 392 (E.D. La. 1968); Note, 

Retaining Out-of-State Counsel: The Evolution of a 

Federal Right, 67 Colum. L. Rev. 731, 734-37 

(1967).
This Court has i t s e l f  declared to be uncon­

stitutional certain restrictions on the practice 

of law that have either compromised the rights of



36 -

association or have restrained e fforts  at p o l i t i ­

cal expression through l i t iga t ion ,  insisting that 

"a State may not, under the guise of prohibiting 

professional misconduct, ignore constitutional 

r i g h t s . "  NAACP v. Button, 371 U.S. 415, 439 

(1963). In Button, th is  Court observed that 

"[b]road prophylactic rules in the area of free 

expression are suspect," and held that "only a 

compelling state interest in the regulation of a 

subject within the State's constitutional power to 

regu late can ju s t i f y  l im it in g  F irs t  Amendment 

freedoms." 371 U.S at 438.
This Court expanded the Button holding in 

Brotherhood o f Railroad Trainmen v. Virginia ex 

r e l .  V irg in ia  State Bar, 377 U.S. 1 (1964), 

upholding a union's practice of channeling FELA 

suits to selected union attorneys and establishing 

that Virginia "could not, by invoking the power to 

regulate the professional conduct of attorneys, 

in fr in ge  in any way the r igh t o f individuals 

and the public to be fa ir ly  represented in law­

suits authorized by Congress to effectuate a basic 

public in terest," 377 U.S at 7. See also United

Mine Workers v. I l l i n o i s  Bar Ass'n, 389 U.S.



-  37 -

217 (1967 );  United Transportation Union v - 

State Bar o f  Michigan, 401 U.S. 576 (1971).

Only last Term, in In re Primus, 436 U.S. 

412, 56 L.Ed.2d 417 (1978), this Court found that 

South Carolina's professional discipline of an 

ACLU lawyer who had s o l ic i t e d  a l i t i g a n t  in a 

s t e r i l i z a t i o n  case came within the expanding 

protection  o f Butt on. Finding that the ACLU 

"has engaged in the defense of unpopular causes 

and unpopular defendants", 436 U.S. at 427-28, and 

that the attorney's "actions were undertaken to 

express personal p o l it ica l  be lie fs  and to advance 

the c i v i l  l ibert ies  objectives of the ACLU, rather 

than to derive financial gain," 436 U.S. at 222, 

this Court held that South Carolina was obligated 

to demonstrate a compelling state interest for its 

bar disciplinary regulations which compromised 

the attorneys F irs t  Amendment in teres ts  and 

cautioned that a state could "'regulate in [th is] 

area only with narrow s p e c i f ic i t y , ' "  436 U.S. at 

422.
In the present case, petitioners respectfully 

submit that the Florida state court employed a 

s im ilar "broad prophylactic ru le "  to exclude 

Farmer from representing Bundy for reasons that



38 -

have l i t t l e  to do with legitimate concerns over 

Farmer's fitness to practice law and a great deal 

to do with disagreements over Farmer's social and 

po l it ica l  views. The First and Sixth Amendments 

and the Due Process Clause o f the Fourteenth 

Amendment forbid consideration of such factors 

in determining a motion for admission pro hac 

v ic e .

CONCLUSION

P e t it ion e rs  r e sp ec t fu l ly  pray that th e ir  

p e t i t io n  for a w rit o f  c e r t io r a r i  be granted.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, I I I  
JOEL BERGER 
JOHN CHARLES BOGER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

ANTHONY G. AMSTERDAM
Stanford University Law School 
Stanford, California 94305

ATTORNEYS FOR PETITIONERS



APPENDIX



la -

APPENDIX A

IN THE CIRCUIT COURT 
OF THE SECOND JUDICIAL 
CIRCUIT, IN AND FOR 
LEON COUNTY, FLORIDA.

CASE No. 78-670

STATE OF FLORIDA,

P la in t i f f ,

-vs-

THEODORE ROBERT BUNDY,

Defendant.

ORDER

This Cause came on to be heard upon motions 

f i led  by Theodore Robert Bundy and Hillard Farmer, 

for an Order permitting Millard Farmer to appear 

pro hac vice on behalf of Theodore Robert Bundy, 

in Case No. 78-670. The Court has ca re fu l ly  

considered a l l  of the issues raised by the motions 

with regard to the facts and the controlling law. 

Given the importance o f this ru ling  both to 

the movants as well as the State, the Court has 

sought to expedite ruling while setting forth in 

detail the reasons for the Order.



2a

On July 27, 1978, Theodore Robert Bundy was 

indicted by the Leon County Grand Jury for inter 

a lia , the multiple homicides that have come to be 

known as the Chi Omega murders. At the time 

of the indictment Defendant was incarcerated in 

the Leon County J a i l  for  criminal conduct un­

related to the homicides. When the Defendant was 

arraigned on July 31, 1978, for the crimes charged 

in the July 27, 1978 indictment, he declined the 

services of the Public Defender. Rather, Defen­

dant demanded that Mr. Millard Farmer, an Atlanta 

attorney and not a member of the Florida Bar, be 

permitted to represent him. The issue then is 

whether the Court, in the sound exerc ise  of 

discretion, should permit a member of the Georgia 

Bar to represent the defendant in Case No. 78-670.

In ruling on this motion the Court has been 

governed by two overriding considerations. First, 

that the Sixth Amendment guarantee is an important 

r igh t o f criminal defendants and not l i g h t ly  

considered. Secondly, in order for the defendant 

to be given f a i r  t r i a l ,  there is an absolute 

requirement that the court maintain a level of 

decorum commensurate with the seriousnessof the

event.



3a -

It  is accepted practice of the judiciary in 

th is  State to permit, on proper motion, the 

appearance of fo re ign  counsel pro hac v i c e . 

Although there is some discrepancy regarding the 

requirement of a co—counsel member of the Florida 

Bar (Compare; Integration Rule of the Florida Bar, 

Art. I I ,  Sec. 2; with Fla. R. App. P. 9.440 (a ) )  

there can be l i t t l e  argument on the discretion 

given to t r i a l  judges ru ling on pro hac v ice  

motions by both rules. Despite the discretionary 

nature of the rules, the Courts of this Circuit 

and the State have been most libera l in granting 

pro hac vice motions. In fact, this Court has 

never denied such motion, has generally welcomed 

foreign counsel into court, and has always treated 

fore ign  counsel with a le v e l  o f respect and 

courtesy consistent with Florida's Code of Judi­

c ia l  Conduct. Therefore, i t  is with no small 

sense o f g rav ity  that the Court orders these 

motions DENIED.

The ruling on these motions bottoms on the 

Sixth Amendment to our Federal Constitution. At 

the August 2, 1978 hearing on the Bundy/Farmer 

motions, Mr. Farmer relied on two cases which do 

not necessar ily  support his motion and in any



-  4a -

event are factually distinguishable. First, he 

r e l i e s  on I n Re Evans, 524 F.2d 1004 (CA 5th 

1975). In that case the appellate court granted a 

writ of mandamus ordering instatement of a pro hac 

vice attorney who had been denied appearance by 

the t r ia l  court. The court held that a Federal 

District Judge has no discretion to deny a pro hac 

vice motion, "in  absense of a complaint rising to 

a le v e l  ju s t i fy in g  disbarment." However, Mr. 

Farmer fa iled  to c ite  the case of US v. D initz, 

538 F.2d 1214 (CA 5th 1976), which substantially 

weakens the Evans holding. There the Court found 

that a defendant's sixth Amendment rights had not 

been abridged where the Federal District Court 

refused to hear the defendant through his chosen 

attorney. The court maintained that the standard 

of review in cases such as Dinitz is whether the 

t r ia l  judge abused discretion. The court held 

that the Sixth Amendment does not displace judi­

c ia l discretion in the governance of attorneys who 

appear in Court. The responsibility of the t r ia l  

judges in regulating (within reasonable lim its) 

the conduct of court practice does not necessarily 

do violence to any Sixth Amendment rights.



5a -

Second, Mr. Farmer r e l i e s  on the case o f 

Flynt v. Lies [s ic ] 574 F,2d 874 (CA 6th 1978) 

for the contention that he has a right to appear 

pro hac v ic e . However, Flynt merely holds that an 

out of state attorney was denied procedural due 

process when a State Court approved counsel of 

record forms and subsequently denied the attor­

ney's pro hac vice motion. Mr. Farmer has never 

been an attorney o f record in any proceeding 

before this Court and therefore under Flynt his 

14th Amendment rights could not have suffered. 

The Court in Flynt did not rule on the denial of 

any o f the defendant's r igh ts .  Although this 

court is not unmindful o f Mr. Farmer's 14th 

Amendment rights, there are, after a l l ,  greater 

concerns at issue in the case, to-wit: guarantee­

ing Mr. Bundy a t r ia l  in a courtroom atmosphere of 

fairness, calm and reason.

Nonetheless, the Flynt case is instructive on 

another c r i t i c a l  point. The case suggests 

that due process demands that a t r i a l  court 's  

ruling on a motion of this nature apply a reason­

ably clear legal standard and a statement of the 

basis for any exclusion. For purposes of this



-  6a

case and in similar cases in the future this Court 

w il l  u t i l iz e  the standards promulgated by the ABA 

in "Standards Relating to the Function o f  the 

Tria l Judge", Sec. 3.5 (1972). That Section reads 

as follows:

3.5 Attorneys from other ju r isd ic t io n .  

I f  an attorney who is not admitted to 

p ractice  in the ju r is d ic t io n  o f  the 

court p e t i t i o n s  fo r  perm iss ion  to 

represent a defendant, the t r ia l  judge 

may

(a) deny such permission i f  the attor­

ney has been held in contempt of court 

or otherwise formally disciplined for 

courtroom misconduct, or i f  it  appears 

by re liab le  evidence that he has engaged 

in courtroom misconduct sufficient to 

warrant disciplinary action;

(b) grant such permission on condition 

that

( i )  the petitioning attorney

associate with him as co-coun­

sel a local attorney admitted 

to practice in the jurisdic­

tion.



7a -

( i i )  the local attorney w ill  assume 

fu ll responsibility for the 

defense i f  the petitioning 

attorney becomes unable or 

unwilling to perform his 

duties, and

( i i i )  the defendant consents to the 

foregoing conditions.

It should be noted that the concurring opinion by 

Judge Clark in D in itz suggested a standard 

quite similr to the second part of Sub Section 

(a ).

Applying these standards this Court has ample 

grounds upon which to deny the motion. F irst, Mr. 

Farmer's conviction for criminal contempt by a 

Georgia t r ia l  court has recently been upheld by a 

Georgia Appellate Court (see attachment). A l­

though there is an outstanding p e t i t ion  for 

c e r t io r a r i  in the Georgia Supreme Court, the 

record o f the t r i a l  court proceeding is tru ly  

shocking. The appella te  court labeled Mr. 

Farmer's conduct as "insulting", "contemptuous" 

and "contumacious". A thorough reading of that 

opinion must lead one to the conclusion that Mr. 

Farmer's conduct during the t r i a l  in question 

was, by studied design, intended to provoke the



-  8a -

t r ia l  judge into intemperate remarks or precip it­

ous acts which might result in a m istrial. This 

court simply cannot and, in fa irness to the 

Defendant, w il l  not allow these proceedings to 

become a bizarre circus where Mr. Farmer can play 

ringmaster for an audience that could not possible 

include a jury.

Second, the attached transcrip ts  o f the 

experience that th is  court has had with Mr. 

Farmer w il l  show to any fa ir  minded person that 

Mr. Farmer's concept o f a t r i a l  is grounded 

on some perverse principle of maximized obfusca­

tion. These transcripts indicate that Mr. Farmer 

is incapable o f a simple yes or no response, 

regardless o f the s im p lic i ty  o f the question. 

This sort of conduct is d ilatory and disruptive 

and in no manner advances the cause of a defen­

dant, justice or respect for the law.

Finally, the attached Fla. R. Crim. P. 3.230 

motion, prepared by Mr. Farmer and o r ig in a l ly  

signed by him, conclusively shows that Mr. Farmer 

practices  a f r iv i lo u s  [s i c ]  kind o f law that 

simply is not tolerated in this Circuit. Even a 

casual reading of the allegations contained in the 

motion indicates that at the least Mr. Farmer



9a

treats facts cavalierly and at the worst purpose­

fu lly  misstates them. I f  this motion is the kind 

of motion that is routinely penned by Mr. Farmer 

(and this Court fervently believes that i t  is ) we 

could no doubt expect a deluge of frivolous and 

dilatory motions that have no basis in fact and 

are to ta l i ty  beyond the bounds of rea lity .

Accordingly, based on the facts and law as 

above outlined, the court finds that the pro hac 

vice motions do not have suffic ient support and 

are hereby denied.

DONE AND ORDERED, in Chambers, Tallahassee, 

Leon County, F lor ida , th is 3rd day o f August, 

1978, nunc pro tunc August 2, 1978.

Is/ John A. Rudd 
JOHN A. RUDD 
Circuit Judge

Copies furnished to:

Millard Farmer
Michael Minerva, Public Defender 
Larry Simpson, State Attorney 
Theordore Robert Bundy



APPENDIX B

FLORIDA DECISIONS WITHOUT PUBLISHED OPINIONS

SUPREME COURT

Docket
Title Number
Acousti Engineering Co. v.

Sea .................................... 53332

Advance Mortgage Corp. v.
Hatmaker........................... 53001

Allied Products Corp. v. Esgro 54239
Arnold Ford Sales, Inc. v.

Special Disability Trust
Fund . .................................. 53248

Bared v. Miami Professional 
Sports, Ltd............................ 5322C

Barkett Oil Co. v. Hill ........... 53400
Barney Ryais Fruit Co., Inc. v.

Liberty Mutual Ins. Co...........54286
Bates v. District Court of 

Appeal, Third District ......... 54732
Beaver v. Lumbermen’s Mutual 

Casualty Co...........................53917
Becks v. Jacobs....................... 53968

Biscayne Roofing Co. v. Clark 53639
Blackburn v. State .. . . : ......... 54322
Boggs v. State.........................52526

Bowles v. State....................... 53436

Brooks v. Howard ..................53101
Brown v. Coleman ..................54518
Buckley v. Buckley..................52675

Bundy v. Rudd ....................... 54839
Bundy v. State ....................... 54793
Butram v. State ..................... 53758

Campbell v. Seigler ................ 54740
Carnes Concrete Pipe Co. v.

Gehrig..............' ................. 54178

** Appeal from
* Date Disoosition and Citation

7/18/78 Cert. den. 1st DCA 
352 So.2d 1250

6/ 6/78 Cert. dism. 4th DCA
351 So.2d 728

6/20/78 Cert. dism. Ind. Rel. Comm.

9/11/78 Cert. den. Ind. Rel. Comm.

7/24/78 Cert. den. 3d DCA 
353 So.2d 167

5/31/78 Cert. den. Ind. Rel. Comm.

7/28/78 Cert. dism. Ind. Rel. Comm.

8/28/78 Hab. Corp. den.

8/17/78 Cert. dism.
8/28/78 Cert. den. 1st DCA 

355 So.2d 1241
6/13/78 Cert. dism. Ind. Rel. Comm.
6/14/78 Hab. Corp. den.
7/27/78 Dism. 4th DCA 

348 So.2d 973
7/18/78 Cert. den. 2d DCA 

354 So.2d 990
6/ 5/78 Mand. den.
8/28/78 Hab. Corp. den.
7/18/78 App. dism. 4th DCA 

343 So.2d 890
8/21/78 Cert, den. Cir. Ct. (Leon)
8/21/78 Cert. den.
8/28/78 Dism. 2d DCA 

356 So.2d 387
8/28/78 Hab. Corp. den.

8/24/78 Cert. dism. Ind. Rel. Comm.

Date of decision or date rehearing denied ;if requested).
Court or agency rendering decision appealed and citation (if reported).



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