Case 1:10-cv-01962-FJS Document 24 Filed 11/18/11 Page 1 of 4 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA EARLE A. PARTINGTON Plaintiff, Civil Action No.: 10-1962-FJS v. VICE ADMIRAL JAMES W. HOUCK, JAGC, USN, et al., Defendants. MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER Plaintiff Earle A. Partington ( Partington, by his attorney, moves this court to issue an emergency temporary restraining order, pursuant to Fed. R. Civ. P. Rule 65(b, without requiring the giving of notice to the defendants or their attorneys, and further that such order require the defendant Houck, as Judge Advocate General of the United States Navy, to temporarily stay the Order of Suspension against Partington entered by the Navy Judge Advocate General ( NJAG on May 17, 2010. As a result of the above-referenced suspension imposed by the NJAG, the Supreme Court of Hawaii imposed reciprocal discipline against Partington pursuant to the Rules of the Supreme Court of the State of Hawaii ( RSCH Rule 2.15. On November 9, 2011, that Court issued an order suspending Partington for thirty (30 days 1. By November 21, 2011, pursuant to RSCH 2.16(d, Partington is required to, inter alia, send notices to all clients represented in pending litigation matters of his suspension and further advise his clients of the desirability of the prompt 1 Although the issue had been litigated before the Hawaii Supreme Court prior to this time, Partington, in good faith, believed that the Court would stay its decision until such time as the above-captioned case was concluded. This was the approach taken by the Supreme Court of the Northern Marianas in considering reciprocal discipline action against Partington. See Exhibit 1, to Affidavit of Earle Partington. 1
Case 1:10-cv-01962-FJS Document 24 Filed 11/18/11 Page 2 of 4 substitution of another attorney or attorneys in his place 2. Currently, Partington has seven cases pending in the Hawaii Intermediate Court of Appeals and one in Hawaii Family Court. Without discussing the potential damage to his clients in their pending matters, having to notify them of his suspension, which is reciprocal to the action taken by the NJAG, Partington will unquestionably suffer irreparable harm both to his reputation as an attorney with a 42 year unblemished record, as well as financially. Moreover, the nature of the injury is a type than cannot be undone once it occurs. This injury would be especially harmful to Partington, who is in his twilight years of practice. If, however, this Court grants the requested Order, he will then be able to petition the Supreme Court of Hawaii to at least stay implementation of its order for reciprocal discipline pending a hearing and determination of plaintiff's motion for a preliminary injunction (filed contemporaneously herewith before this Court. Plaintiff further moves this court for an order setting a date for such hearing to a time certain convenient to the court and which would afford the American Civil Liberties Union of Hawaii the opportunity to file an amicus brief in this case 3. Inasmuch as the actions of the Hawaii Supreme Court were of a reciprocal nature to the suspension imposed by the NJAG, unless this motion is granted, plaintiff will suffer immediate and irreparable loss, damage, or injury as a result of the actions of defendant Houck, in his capacity as NJAG, before defendant Houck or his attorneys can be heard in opposition, and 2 The actual date of suspension is December 9, 2011 however, pursuant to Rule of the Supreme Court of Hawaii 2.16(d which states: Within ten days after the effective date of the disbarment or suspension order, the disbarred or suspended attorney shall file with the supreme court an affidavit showing: (1 that he or she has fully complied with these rules and with the portions of the order requiring completion before the effective date of the order; (2 all other state, federal and administrative jurisdictions to which he or she is admitted to practice; and (3 that he or she has served a copy of such affidavit upon Counsel. Such affidavit shall also set forth the residence or other address of the disbarred or suspended attorney where communications may thereafter be directed to him or her. 3 The President of the ACLU of Hawaii has represented to Partington that it is interested in filing such a brief in support. 2
Case 1:10-cv-01962-FJS Document 24 Filed 11/18/11 Page 3 of 4 before a hearing can be had on Partington's motion for preliminary injunction, as more fully appears in the affidavit of Earle A. Partington, and the certificate of the undersigned, attached to this motion. WHEREFORE, plaintiff respectfully requests that this Honorable Court grant his Motion for a Temporary Restraining Order, ex parte, ordering the defendant Houck, as Judge Advocate General of the United States Navy, to temporarily stay the Order of Suspension against Partington entered by the Navy Judge Advocate General ( NJAG on May 17, 2010. Dated: November 18, 2011 Respectfully submitted, EARLE A. PARTINGTON, Plaintiff By his attorney, /s/ Paul J. Andrews Judith L. Wheat (D.C. Bar No. 431411 Katherine Van Dyck (D.C. Bar No. 981272 GRIFFITH WHEAT, PLLC 1050 17th Street, NW, Suite 600 Washington, DC 20036 Phone: (202 496-4963 Fax: (202 587-2980 judithwheat@griffithwheatlaw.com kvandyck@griffithwheatlaw.conm and Jeffrey A. Denner, PHV Paul J. Andrews, PHV DENNER PELLEGRINO, LLP Four Longfellow Place, 35 th Floor Boston, MA 02114 Phone: (617 227-2800 Fax: (617 973-1562 jdenner@dennerpellegrino.com pandrews@dennerpellegrino.com 3
Case 1:10-cv-01962-FJS Document 24 Filed 11/18/11 Page 4 of 4 Certificate of Service I, Paul Andrews, hereby certify that on this the 18 th day of November 2011, I have served all parties registered with ECF for this matter with a true copy of the foregoing Motion for Ex Parte Temporary Restraining Order by virtue of transmitting the same to the Court via the ECF system. /s/ Paul J. Andrews Paul J. Andrews 4
Case 1:10-cv-01962-FJS Document 24-1 Filed 11/18/11 Page 1 of 3 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA EARLE A. PARTINGTON Plaintiff, Civil Action No.: 10-1962-FJS v. VICE ADMIRAL JAMES W. HOUCK, JAGC, USN et al., Defendants. AFFIDAVIT IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER Earle A. Partington, being first duly sworn, says: 1. I am the plaintiff in this action, and make this affidavit, pursuant to Fed. R. Civ. P. Rule 65(b, in support of my motion for issuance of a temporary restraining order, without notice to defendant Houck, JAGC, USN. 2. This is an action is derived a decision by the Judge Advocate General of the United States Navy ( NJAG purporting to suspend me from the practice of law in any and all proceedings conducted under the auspices of the NJAG. 3. I am requesting an emergency stay of any disciplinary proceeding arising out of the action of the Navy JAG until this immediate case is resolved. 4. I am now semi-retired and living in California, although I am not practicing California law. 5. On November 19, 2011, the Supreme Court of Hawaii imposed an order of reciprocal discipline against me, based upon the actions of the NJAG, which suspended me from the practice of law in the State of Hawaii for a period of thirty (30 days. This Order is to
Case 1:10-cv-01962-FJS Document 24-1 Filed 11/18/11 Page 2 of 3 take effect on December 9, 2011. Prior to that time, however, I am required, by virtue of Rule 2.16(d of the Rules for the Supreme Court of Hawaii ( RSCH to, inter alia, send notices to all of my clients represented by me in pending litigation matters of my suspension and further advise them of the desirability of the prompt substitution of another attorney or attorneys in my place. If I am forced to take such action, it will cause me immediate, severe and irreparable harm to my reputation and severe financial harm at a time in which my finances already have suffered because of the arbitrary and capricious actions of the defendant NJAG in suspending me from practice without authority. 6. I currently have pending in the Hawaii Intermediate Court of Appeals seven appeals, all fully briefed, and one family court criminal case set for trial in January 2012. This case will probably be dismissed because the complainant is leaving Hawaii permanently in December 2011. 7. With the exception of the purported discipline imposed upon me by the NJAG and the resulting reciprocal discipline imposed upon me, such as the recent action by the Hawaii Supreme Court, I have enjoyed an unblemished disciplinary record in 42 years of practice as an attorney in multiple jurisdictions. 8. I have been familiar with In re Ruffalo for decades. I refused to appear at the NJAG s investigative hearing for reasons stated in the case. 9. If this court grants my request for a Temporary Restraining Order requiring the NJAG to stay its purported Order of Suspension against me, then there will be no basis for the Hawaii Supreme Court to order reciprocal discipline against me and I can petition that court to have that Order set aside, at least until the conclusion of this matter. Due to the severe time constraints imposed upon me by the notification provisions of the RSCH,
Case 1:10-cv-01962-FJS Document 24-1 Filed 11/18/11 Page 3 of 3 there is no time to notify the defendants to permit them an opportunity to respond before I will have suffered irreparable damage to my reputation and income, which cannot be undone, once my clients have been notified of my suspension. Thus, I respectfully request that the Court grant this Order ex parte. 10. Attached hereto as Exhibit 1 is a true and correct copy of the Order of the Superior Court of the Commonwealth of the Northern Mariana Islands filed August 23, 2011, staying any disciplinary proceeding arising out of the action of the NJAG until the immediate suit is resolved. I believed, in good faith, that the Supreme Court of Hawaii would adopt a similar approach and not make a final decision regarding reciprocal discipline until the matters raised in this action could be fully adjudicated. 11. I have personal knowledge of the facts alleged in this affidavit. Further, there will be no harm to anyone if this court chooses to grant the requested relief. I understand that any false statements herein will subject me to the penalties of perjury. DATED: November 18, 2011 /s/earle A. PARTINGTON EARLE A. PARTINGTON
Case 1:10-cv-01962-FJS Document 24-2 Filed 11/18/11 Page 1 of 1
Case 1:10-cv-01962-FJS Document 24-3 Filed 11/18/11 Page 1 of 2 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA EARLE A. PARTINGTON Plaintiff, Civil Action No.: 10-1962-FJS v. VICE ADMIRAL JAMES W. HOUCK, JAGC, USN et al., Defendants. CERTIFICATE IN SUPPORT OF MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER I, Paul J. Andrews, am the attorney for Earle A. Partington, plaintiff in this action. In support of plaintiff's ex parte motion for a temporary restraining order, pursuant to Fed. R. Civ. P. Rule 65(b, I certify as follows: As set forth in the Ex Parte Motion for a Temporary Restraining Order and the Affidavit of the Plaintiff, Earle Partington, and consistent with the representations and arguments made therein, I believe that the plaintiff will suffer severe, irreparable harm should this Motion not be granted. Due to the severe time constraints imposed upon him by the Rules of the Supreme Court of Hawaii, i.e., notification to his clients and other courts of which he is a member of his suspension by November 21, 2011, there is insufficient time for the individual defendants to be served and respond to the Motion before November 21 st, after which time, the worst of the harm to Partington shall already have occurred. 1
Case 1:10-cv-01962-FJS Document 24-3 Filed 11/18/11 Page 2 of 2 Dated: November 18, 2011 Respectfully submitted, /s/ Paul J. Andrews Paul J. Andrews, PHV 2