concurring and dissenting.
I concur only in the order set forth at the end of part V of the majority opinion which awards certain costs and attorneys’ fees to Partington and the Defense Lawyers. I *135dissent from the rest of Part V and all of Parts I through IV.
I do not believe that this is one of those exceptional cases in which Younger abstention is required. See World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir.1987). Rather, I believe we should now decide that by virtue of its prior decision in State v. Clarke, the Hawaii Supreme Court is biased against Partington on the issue whether he rendered ineffective assistance of counsel and that its holding of a disciplinary hearing would violate his due process rights. After applying the three-part test from Middlesex County Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982), the majority concludes that Younger abstention is applicable. The majority would permit the Hawaii Supreme Court to resolve the question of its own bias. It reaches this conclusion solely on the basis of its reading of the third part of the Middlesex test. As the majority describes that part of the test, the plaintiff must be able “to litigate his federal constitutional claims ... before a competent and unbiased state adjudicator.” Majority op. at 125. Because the majority concludes that the Hawaii Supreme Court may not be biased on the “constitutional question”, it opts for abstention.
The majority misconceives the third part of the Middlesex test. Bias plays no role in the application of the three-part test. Rather, bias is an entirely separate matter. Where bias exists, Younger abstention is inapplicable, regardless of whether the three-part test is met. 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). The bias need not be on any particular claim. All that is necessary to bar abstention is that the Hawaii Supreme Court be biased on the disciplinary proceedings. Here, under Hawaii Supreme Court Rule 13, the supreme court would have to determine whether Partington rendered ineffective assistance of counsel to Clifford Clarke. However, that court has already decided in State v. Clarke that Partington’s assistance was ineffective and that a murder conviction against Clarke must be reversed for that reason.1 Thus, Partington would be subjected to judgment by a tribunal which has already reached a judgment on the merits of his case.2 Because of its prior actions, the Hawaii Supreme Court is, as a matter of law, a biased forum with respect to the Partington proceedings and the federal courts need not abstain.
The majority offers recusal of all of the justices of the Hawaii Supreme Court as a solution to the prejudgment problem. However, the structure of Rule 13 makes it clear that recusal of the entire court is not an available option in this case. Rule 13 was specifically designed to ensure that the justices of the supreme court would make the final determination of ineffective assistance, not a different group of judges. Re-cusal of the entire court in cases like Part-ington’s would run directly contrary to the language and intent of the rule.
My conclusion that the Hawaii Supreme Court is biased against Partington is not meant to disparage the members of the court. They are undoubtedly able individuals and are entitled to a presumption of honesty and integrity. They have no adverse pecuniary interest. Nevertheless, other “[circumstances and relationships must be considered.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Bias exists where a court has prejudged, or reasonably appears to have prejudged, an issue. The disciplinary proceedings must “satisfy the appearance of justice.” In re Murchison, 349 U.S. at 136, 75 S.Ct. at 625 (quoting Offutt v. Unit*136ed States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)). In State v. Clarke, the justices concluded that the legal assistance Partington provided Clarke was ineffective, the very determination they would be called upon to make again in the Rule 13 proceedings. For this reason, a “realistic appraisal of psychological tendencies and human weakness” compels the conclusion that the Rule 13 proceedings involve an intolerably high risk of bias or prejudgment by the Hawaii Supreme Court. Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). Under these circumstances, abstract principles of comity, Younger v. Harris, 401 U.S. 37, 43, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), as important as they are, do not bar a federal court from exercising its jurisdiction.
In my view, we would not only be performing our duty as a federal court properly, but would be saving the Hawaii Supreme Court the expenditure of much unnecessary time and effort were we to declare Rule 13 unconstitutional now. I see little choice for the Hawaii court when Partington’s case reaches the justices. If they fail to invalidate the rule, certainly the federal courts will ultimately be required to do so.
I
RULE 13
Hawaii Supreme Court Rule 13 provides a procedure for determining whether a defense attorney should be disciplined for providing ineffective assistance of counsel. Under the rule, whenever a criminal conviction has been overturned on that ground by either the supreme court or the intermediate appellate court3, the supreme court appoints a special master to decide whether action against the attorney is warranted. The special master, in turn, appoints a special prosecutor. At the conclusion of the proceedings, the special master dismisses the proceedings or recommends to the supreme court that corrective action be taken against the attorney. Both the attorney and the special prosecutor may file exceptions to the special master’s decision with the court. The supreme court reviews the special master’s decision; the Court then makes an independent determination4 whether the attorney provided ineffective assistance to the defendant and on that basis decides whether to dismiss the proceedings or order corrective action against the attorney.
II
PREJUDGMENT
Clearly, the critical feature of the Rule 13 proceedings is the determination the Hawaii Supreme Court is required to make with respect to counsel’s ineffectiveness. It must make this critical determination regardless of whether it or the intermediate appellate court made the earlier determination that counsel’s representation was ineffective, and reversed the criminal conviction on that ground. Here, we are presented with an extreme form of the Rule 13 process: the supreme court, sua sponte, raised and determined the ineffectiveness issue during the criminal proceeding; it would now be required to resolve the identical issue a second time in the disciplinary proceeding.
The majority first asserts that Younger abstention is appropriate here because “[t]he Hawaii Supreme Court has never had the opportunity to hear Partington’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.... We cannot and should not guess how the court will respond.” Majority op. at 126. Thus, the majority apparently takes the position that Partington must demonstrate not only that the Hawaii Supreme Court has prejudged the merits of the disciplinary proceeding but also that the court has prejudged the issue of whether it has prejudged the merits of that proceeding.
The majority’s argument misconceives the basic rule governing abstention and *137biased state tribunals. The fundamental principle is that compelling an individual to present his case to a biased tribunal offends due process and federal courts will enjoin such an unconstitutional proceeding. Gibson v. Berryhill, 411 U.S. 564, 570, 577, 93 S.Ct. 1689, 1693, 1697, 36 L.Ed.2d 488 (1973). When a federal claimant alleges that a state adjudicator is biased, it is the federal court which determines whether that allegation is correct. See Gibson, 411 U.S. at 578-79, 93 S.Ct. at 1697-98; see also Kugler v. Helfant, 421 U.S. 117, 125, 127-28, 95 S.Ct. 1524, 1531, 1532, 44 L.Ed.2d 15 (1975). The question is not referred to the state court. If the federal court concludes that bias exists, the finding of a due process violation follows automatically. Gibson, 411 U.S. at 577, 93 S.Ct. at 1697.5 No more is required. The federal court does not abstain.6 In short, abstention doctrine does not require a person to ask a tribunal that is biased on the merits of his case whether it is in fact biased. Nor must that person ask the biased tribunal whether the fact that it is biased would violate the due process clause. Clearly, it would — as a matter of federal constitutional law, and a federal injunction, not abstention, is the appropriate remedy.
Indeed, the parallel between Partington’s situation and the one considered by the Supreme Court in Gibson is striking. Gibson, like the present case, was a disciplinary proceeding (license revocation) before a body that was allegedly biased on the revocation issue. Thus, the licensee faced a potential due process violation. Notably, in Gibson, the Court did not inquire into whether the state licensing agency was biased on the question of the validity of the challenged statutory procedure. Rather, it considered only the question whether the agency was biased as to “the revocation of appellees’ licenses.” 411 U.S. at 578, 93 S.Ct. at 1697. Moreover, it held irrelevant the fact that the state courts would review the revocation proceeding de novo. Id. at 577, 93 S.Ct. at 1697. Finally, the fact that petitioners had not sought to invalidate the unconstitutional state procedure in the available and unbiased state court forum did not deter the Court from affirming the district court’s action enjoining the state proceeding. Procedurally, our ease and Gibson are identical. In my opinion, Gibson is controlling here. If the Hawaii Supreme Court is biased as to Partington’s disciplinary issues, the result here should be the same as in Gibson; we should not abstain.
The majority attempts to distinguish Gibson on the basis that “a tribunal comprised of optometrists does not have the ability to entertain constitutional claims.” Majority op. at 127 n. 4. This is not a material distinction. In deciding that Younger abstention was inappropriate, the Supreme Court did not even mention the fact that “a tribunal composed of optometrists” cannot hear constitutional claims, let alone rely on that fact (if indeed it is a fact).7 Rather, the Court found Younger abstention unwarranted simply because the state tribunal (composed of optometrists or not) was biased on the revocation issue. No more was required to be shown in Gibson; no *138more should be required here. This point can not be overemphasized. If, as appears clear, the Hawaii Supreme Court is biased as to the merits of Partington’s disciplinary-proceeding, that tribunal is not competent to hear that proceeding — regardless of whether non-merit issues may be raised during that proceeding, or whether the court is or is not biased as to any of those non-merit issues.
Conversely, the majority asserts that Younger abstention is required here because the Hawaii Supreme Court “has the ability to entertain and resolve constitutional claims.” Majority op. at 127 n. 4. In essence, the majority appears to be contending that it is proper to force an individual to appear before a biased tribunal in a disciplinary proceeding, so long as that tribunal could conceivably avoid reaching the merits of the proceeding. My reading of Gibson leads me to the contrary conclusion. An individual can not be summoned before a biased tribunal when the primary issue before the tribunal is the very issue on which it is biased. It is fundamental that compelling an individual to present his case to a biased tribunal offends due process. Gibson, 411 U.S. at 570, 577, 93 S.Ct. at 1693, 1697. An individual required to appear before a state tribunal that is biased on the merits of the proceeding may resort directly to federal court, whether or not the state tribunal has the authority to dismiss the proceedings for bias, lack of jurisdiction, or on any other grounds.8 As Gibson illustrates, the fact that there are state remedies for resolving or determining the fairness of the procedure is irrelevant, regardless of when or in what state forum that determination could be made.
In Gibson, the Supreme Court stated explicitly that Younger abstention is not required “simply because [state] judicial review, de novo or otherwise, would be forthcoming at the conclusion of the administrative proceedings.” 411 U.S. at 577, 93 S.Ct. at 1697 (footnote omitted). Moreover, it is clear that the federal court plaintiff in Gibson had a completely unbiased state court system in which to seek injunctive relief prior to the administrative proceedings and thus had perfectly adequate state court remedies for his due process claims. For example, he could have asked a state trial or appellate court, rather than a federal district court, to enjoin those proceedings. An unbiased state court is, as the majority points out, generally presumed to be as capable as a federal court of protecting federal constitutional rights. Nevertheless, the Supreme Court in Gibson did not require the plaintiff to first seek relief in state court. Rather, he was permitted to go directly to federal court to obtain the appropriate remedy — a federal court injunction against the proceedings in the biased state forum.
The only difference between the facts and circumstances of Gibson and those in this case (other than the distinction previously discussed) is that in Gibson, the state provided both an entirely unbiased state court review of the unconstitutional proceedings and an unbiased state court system in which to seek an injunction against the unconstitutional proceedings, while here, there is neither an entirely unbiased state forum in which Partington could seek injunctive relief before the unconstitutional proceedings are held nor one in which he could do so afterwards.9 In Partington’s case, the Hawaii Supreme Court is not only the biased forum, but also the first and last judicial body from which Partington may seek relief. Thus, the state court remedies in Gibson were, if anything, far more hospitable to the plaintiff than those offered to Partington here. As Younger abstention was improper in Gibson, it is a fortiori improper here, if as I conclude, the Hawaii *139Supreme Court is biased on the ineffective assistance claim.10
The majority’s confusion regarding abstention and bias appears to be due to its misunderstanding of the third prong of the Middlesex test. The majority consistently describes that prong as requiring that Part-ington have the ability to litigate his constitutional claims before an unbiased state adjudicator. Majority op. at 120-21, 125-26. Actually, the third prong of Middle-sex does not mention bias — because under Younger that issue is dealt with separately. The third prong requires only that Partington have “an adequate opportunity in the state proceedings to raise constitutional challenges.” 457 U.S. at 432, 102 S.Ct. at 2521. The critical fact that the majority overlooks is that in Younger, the Supreme Court recognized that even if the three-part test for abstention (as later described in Middlesex) was met, abstention would be improper if the state action was brought in bad faith or for purpose of harassment or in other extraordinary circumstances. 401 U.S. at 53-54, 91 S.Ct. at 754-55; see also Middlesex, 457 U.S. at 437, 102 S.Ct. at 2524. Bias on the part of the state tribunal is one of those extraordinary circumstances which renders Younger abstention inappropriate, even if all three prongs of the Middlesex test are met. Kugler v. Helfant, 421 U.S. 117, 124-25 & n. 4, 95 S.Ct. 1524, 1531 & n. 4; cf. World Famous Drinking Emporium, 820 F.2d at 1082. Thus, it is simply irrelevant whether Partington will be able to raise his constitutional claims before the Hawaii Supreme Court or whether the Court is biased as to those claims; for if the Court has prejudged the merits of the disciplinary proceeding, it is a biased tribunal and Younger abstention is inapplicable.11
The majority dismisses the Court’s statement in Kugler that bias is a separate element by calling it dictum. Majority op. at 22 n. 3. Whatever the merits of that categorization, it seems apparent that the Court was correct when it reached its conclusion. Younger abstention is barred when, inter alia, “extraordinary circumstances” render the proceedings unfair, a concern that is independent of whether the federal court plaintiff will have an adequate opportunity in the state proceedings to raise his federal constitutional claims. Middlesex listed as examples of this rule a proceeding brought in bad faith or for purposes of harassment. 457 U.S. at 435, 102 S.Ct. at 2522. Certainly a proceeding brought before a biased tribunal is even more unfair to a licensee, and even more violative of his due process rights, than a proceeding that is merely initiated for an improper purpose. In the case of bad faith or harassment, the licensee is required to submit to a proceeding unnecessarily, but should prevail on the merits; in the case of bias, the licensee does not have a fair chance to prevail at all, and an adverse result is, for practical purposes, a foregone conclusion. Thus, the Court’s determination in Kugler that bias is an “extraordinary circumstance” barring Younger abstention was compelled by reason and logic as well as precedent, and the majority clearly errs in rejecting the Court's analysis.
In any event, whether bias is considered separately from the three-prong Middlesex test, or whether we disregard the clear language in Kugler and consider bias to be a part of the third prong of that test, the result in this case would be the same. As previously discussed, under Gibson it is clear that bias on the merits of a discipli*140nary proceeding is sufficient to preclude Younger abstention.
The majority next concludes that the Rule 13 procedure does not present an unacceptable risk of prejudgment on the ineffectiveness issue, although it is far from clear why it reaches that conclusion.12 Majority op. at 125. The majority appears to accept the Withrow test, which states that “if the initial view of the facts based on the evidence derived from non-adversarial 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 [is] raised.” Withrow, 421 U.S. at 58, 95 S.Ct. at 1470 (emphasis added). With respect to the issue of “legal” bias, the majority concludes that Partington has not demonstrated that the Hawaii Supreme Court is legally foreclosed “from considering the ineffectiveness issue de novo.” Majority op. at 126. On that point, I am in agreement.13 However, the majority also concludes that there is no “practical” impediment to the Court’s examining the issue in a fair and impartial manner. Id. at 125, 126. The majority offers no explanation for this conclusion, and cites no case law or other authority. In fact, the majority opinion contains no discussion whatsoever of the question whether the Hawaii Supreme Court could, as a practical matter, serve as an unbiased adjudicator. Instead, it avoids the issue entirely, apparently preferring to base its conclusion that Parting-ton will be able to obtain a fair hearing entirely on the supposition that all of the members of the supreme court will recuse themselves.14 Id. at 126.
I believe that, as a practical matter, the Hawaii Supreme Court has prejudged Part-ington’s case. At the very least, there is an intolerable risk of prejudgment. The sole reason Partington is now facing disciplinary proceedings is because in a previous proceeding the Hawaii Supreme Court, sua sponte, raised and decided, on the merits, the issue of ineffective assistance of counsel in a manner adverse to him. The issue the court previously decided is the identical issue it will now be required to address in the Rule 13 proceedings. In my view, the Hawaii Supreme Court is not, as a practical matter, an unbiased adjudicator.
There are several federal statutes which are concerned with the issue of judicial bias. See 28 U.S.C. §§ 47, 144, & 455 (1982). These statutes are premised on the simple proposition that “[a] fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). But a fair trial means more than simply the absence of actual bias. “[O]ur system of law has always endeavored to prevent even the probability of unfairness.” Id. (emphasis added). To this end, “justice must satisfy the appearance of justice.” Id. (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)). Thus, we must constantly be alert to procedures which “under a realistic appraisal of psychological tendencies and human weakness ... pose[] such a risk of actual bias or *141prejudgment that the practice[s] must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U.S. at 47, 95 S.Ct. at 1464.
While we can readily identify the reasons why judicial bias cannot be tolerated, we must still determine when a judge’s previous involvement with a case creates such a risk of bias that it would be a violation of due process to allow him to be further associated with the proceedings. Two decisions help frame the issue. Prejudgment, or an unconstitutional risk of prejudgment, has been found where the contents of a speech by a judge “plainly reveale[d]” that he had, prior to the commencement of the proceedings before him, reached a conclusion as to the merits of a case that involved complex questions of fact and law. Texaco, Inc. v. Federal Trade Commission, 336 F.2d 754, 760 (D.C.Cir.1964), vacated on other grounds, 381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d 714 (1965).15 Also, judges have been disqualified from presiding over appeals from decisions in cases, or involving issues, originally tried before them as lower court judges. See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d 135, 137 (5th Cir.1970) (Order of Disqualification and Memorandum of Decision by Craven, J.) (appeals court must “be constituted of judges uncommitted and uninfluenced by having expressed or formed an opinion in the court of first instance”) (quoting Moran v. Dillingham, 174 U.S. 153, 19 S.Ct. 620, 43 L.Ed. 930 (1899)).16
While Texaco and Swann provide some guidance, there are significant differences between those cases and Partington’s. The commissioner’s prejudgment in Texaco was extrajudicial; the remarks were made during a public appearance and were not based on knowledge the commissioner obtained during an official proceeding. Cf. United States v. Studley, 783 F.2d 934 (9th Cir.1986). Swann was concerned with the issue of what constitutes a meaningful review by a higher court of a lower court’s decision. In the present case, the issue is: when is a court that is called upon to decide a complex question of law and fact as to which it has already reached a final determination in an earlier proceeding presumed to have prejudged the question?
Although Texaco and Swann are not dis-positive, the policies which underlie them *142compel the conclusion that the Hawaii Supreme Court is biased in this case. The common thread that links Texaco and Swann is the concept that no person can be compelled to litigate a controversy before a judge whose prior conduct or connection with the ease makes it likely that he will have prejudged the outcome. The reason that due process does not permit a judge to hear an appeal of a case he previously tried as a lower court judge has been well stated. “Such an appeal is not from Phillip drunk to Phillip sober, but from Phillip sober to Phillip intoxicated with the vanity of a matured opinion and doubtless also a published opinion.” Swann, 431 F.2d at 137 (quoting an address by Walter B. Hill to the American Bar Association). The concerns reflected in Swann relate not only to the risk that a judge will have actually prejudged a case, but to the appearance of partiality as well. As the Supreme Court made abundantly clear in In re Murchison, “justice must satisfy the appearance of justice.” 349 U.S. at 136, 75 S.Ct. at 625.
Here, the court which will decide in the disciplinary proceeding whether Partington provided ineffective assistance of counsel is the same body that has already determined in State v. Clarke that Partington did precisely that.17 It has also issued an opinion to that effect and has reversed a murder conviction on that ground. These circumstances present an unacceptable risk of prejudgment, one that neither Partington nor any other litigant should be required to assume. They also fall far short of satisfying “the appearance of justice”.
The conclusion that the Hawaii Supreme Court does not qualify as an impartial body insofar as Partington’s Rule 13 proceeding is concerned finds strong support in Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). In Withrow, the Court considered whether the combination of investigative and adjudicative functions in a state administrative agency violated due process. It suggested that bias or prejudgment would be established if an initial accusatory finding foreclosed, as a practical matter, a later adjudicatory finding to the contrary.18 Id. at 58, 95 S.Ct. at 1470. The Court concluded that the state practice did not violate due process, because the initial investigative decision was one of probable cause, a determination that would not be logically inconsistent with a subsequent adjudicatory determination of “no violation”. Id. at 57, 95 S.Ct. at 1469. Or, as the Court put it, a favorable second decision would not constitute an implicit admission that the first was erroneous.
Here, the Hawaii Supreme Court has not merely made a preliminary or accusatory finding that Partington may have rendered ineffective assistance of counsel. Rather, it has made a finding on the merits that the assistance Partington rendered was so ineffective as to require the reversal of a murder conviction. Certainly, a subsequent finding by that same court in a Rule 13 proceeding that Partington had not rendered ineffective assistance of counsel would be logically inconsistent with its pri- or finding.19 The Court would “implicitly *143be admitting error in its prior finding.”20 Id. 421 U.S. at 57, 95 S.Ct. at 1469.
The concept of “logical inconsistency”, emphasized in Withrow, helps distinguish this case from cases holding that a judge who initiated the proceedings may preside at the hearing on the merits.21 For example, a judge who charges an attorney with violating Rule 11 and orders him to show cause is permitted to conduct the subsequent hearing. See, e.g., Tom Growney Equipment, Inc. v. Shelley Irrigation Dev., Inc., 834 F.2d 833 (9th Cir.1987). A determination by the judge at the later hearing that Rule 11 sanctions are not appropriate would not be inconsistent with his issuance of the initial charge. The initial charge or finding is similar to one of probable cause, while the later determination on the merits is akin to one of guilt or innocence. Similarly, when a court cites an attorney for contempt, orders him to show cause, and then presides over the contempt trial, e.g., Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957), a finding of not guilty is not logically inconsistent with the fact that a charge was preferred. Another example is the issuance of a preliminary injunction by a judge who subsequently presides over a trial in which he determines whether a permanent injunction should issue. This practice is proper because the question at the *144hearing on the preliminary injunction is solely one of “reasonable cause”; no determination on the merits is made at that time. Thus, there is ordinarily neither the appearance nor the reality of logical inconsistency or prejudgment in any of the above cases when the merits are heard.22
At first glance, a more troublesome analogue is presented when a trial judge presides over a trial for the second time after his initial decision has been reversed on appeal. This practice does not generally create a risk of bias or prejudgment implicating due process concerns.23 See, e.g., NLRB v. Donnelly Garment Co., 330 U.S. 219, 236, 67 S.Ct. 756, 765, 91 L.Ed. 854 (1947); United States v. Hollis, 718 F.2d 277 (8th Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984). However, our judicial system has built-in mechanisms that serve to protect litigants against the risk of prejudgment in such cases, and help to maintain the appearance of impartiality. When a trial judge presides over a trial after remand, intervening appellate guidance significantly minimizes the risk of bias. The trial judge is advised that his initial decision was incorrect, and receives specific guidance from the reviewing court as to the aspects of the trial which created reversible error. Usually, the trial judge is also given specific instructions as to what remedial or corrective actions should be taken in the second trial. In addition, the decision in the second trial will itself be subject to judicial review. That review also serves as an independent restraint on the trial judge, because he will be aware that evidence of bias or prejudgment on his part will lead to a second reversal.24
None of the procedures which serve to eliminate or reduce the risk of prejudgment when a trial judge rehears a case following reversal or remand are applicable in Rule 13 proceedings. Under Rule 13, there is no superior authority that will have informed the supreme court that its initial decision was incorrect prior to the time it hears the issue for the second time; no higher court will have explained to the Hawaii Supreme Court the nature of its errors in the initial proceedings or provided it with guidance as to those errors. Nor will the supreme court have had the benefit of specific instructions as to how to conduct the second proceeding. While remand to a trial court occurs because that court’s initial decision has been found to be incorrect and has been reversed, no comparable events will have occurred here. To the contrary, the disciplinary proceedings will take place here because the Hawaii Supreme Court’s determination of ineffective assistance has not been vacated or set aside by a higher court. Equally important, the supreme court’s determination in the Rule 13 proceedings will be final, with no right of appeal to a superior judicial body.25
*145For the reasons discussed above, I cannot agree that Partington must show more than the fact that the Hawaii Supreme Court is biased on the merits of the disciplinary proceeding. Nor can I agree that Partington has failed to establish the existence of that bias. In my opinion, the court’s prior determination in State v. Clarke that Partington provided ineffective assistance would “give[] fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” United States v. Haldeman, 559 F.2d 31, 136 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). The Supreme Court has warned us to “be alert to the possibilities of bias that may lurk in the way particular procedures actually work in practice.” Withrow, 421 U.S. at 54, 95 S.Ct. at 1468. The majority fails to consider sufficiently the nature of the triggering determination in Rule 13 proceedings, and thus gives short shrift to the very real problem of prejudgment the rule presents. The Supreme Court has held that, if a state administrative agency is biased, Younger abstention is inappropriate even if state “judicial review, de novo or otherwise, would be forthcoming at the close of the administrative proceedings.” Gibson, 411 U.S. at 577, 93 S.Ct. at 1697 (footnote omitted). The same conclusion holds true a fortiori where, as here, the biased decision of a court will not be subject to any review.26
Ill
RECUSAL
In concluding that Partington will be able to bring his claims before an impartial tribunal, the majority does not determine whether the justices of the Hawaii Supreme Court have, as a practical matter, prejudged his claim; nor does it consider whether disciplinary proceedings before those justices would give the requisite appearance of impartiality. See Majority op. at 120. Rather, its conclusion is based entirely on Partington’s supposed ability to obtain the recusal under Haw.Rev.Stat. § 601-7(b) (1985) of all five of the justices of the court.27 Majority op. at 126-28. In short, the majority appears to assume that some group of judges other than the sitting supreme court justices will hear Parting-ton’s case. Once again the majority does not discuss the legal issue involved, that is, whether Hawaii’s recusal statute is applicable here; this time it simply asserts, ex cathedra, that it is.
Hawaii law provides for recusal of the entire court “[w]hen necessary.” Haw. Rev.Stat. § 602-10. On its face, this language would seem to support the majority’s position. But recusal statutes are gen*146erally addressed to claims of bias in individual cases, that is, the problem of alleged bias on the part of some or all of the justices arising from the peculiar facts of an individual case or group of related cases. Cf. C. Wolfram, Modern Legal Ethics 982-99 (1986) (discussion of disqualification of judges for interest or bias contains no mention of types of bias other than individual). Rule 13 presents a very different problem than is usually addressed under recusal statutes. Under Rule 13, prejudgment is not the exceptional case, arising only under unusual circumstances. Rather, the conflict the Hawaii Supreme Court justices are confronted with in Part-ington’s case is the inevitable result of the way the rule is structured. That structure ensures that prejudgment will be endemic in disciplinary cases. Far from being a random occurrence during a particular Rule 13 proceeding, prejudgment is the institutional norm.
Under Rule 13, the Hawaii Supreme Court makes the final determination in all disciplinary proceedings as to whether an attorney provided ineffective assistance of counsel. The event that triggers the Rule 13 proceedings is a determination, made in a criminal proceeding, by the supreme court or the intermediate appellate court or both that the attorney did in fact provide ineffective assistance.28 The supreme court may have been the first court to make that determination in the criminal proceeding or it may have affirmed the finding of the intermediate court.29 Wherever or however the determination of ineffectiveness was made in the criminal proceeding, Rule 13 vests the Hawaii Supreme Court with the authority to make the subsequent ineffectiveness determination in the disciplinary proceedings.
As already noted, the majority contends that recusal of all of the Hawaii Supreme Court justices will solve whatever bias or prejudgment problem Partington may face. However, the majority’s “solution” would not apply to Partington’s case only. It would require the recusal of every member of the supreme court in every case which was initiated because the supreme court had made or affirmed the triggering ineffectiveness finding. All such cases would be heard by judges who are not sitting members of the Hawaii Supreme Court. Such a procedure would be directly contrary to the disciplinary system the Hawaii Supreme Court actually enacted, a disciplinary system which contemplates a final determination by the supreme court in all cases. The majority’s assertion that the recusal statute is applicable here is simply incompatible with the language and intent of Rule 13.
A Rule 13 system could easily have been devised under which the supreme court would make the determination of ineffective assistance of counsel in a disciplinary proceeding if the original finding of ineffectiveness had been made in an unap-pealed decision of the intermediate appellate court, and the intermediate appellate court would make the disciplinary determination if the supreme court had originated the earlier ineffective assistance finding.30 But the Hawaii Supreme Court chose not to *147enact such a system. Instead, it chose to make itself the final judge of whether an attorney had provided ineffective assistance in all cases — those in which it had made or affirmed the earlier determination that the attorney was in fact ineffective as well as those in which only the intermediate appellate court had made such a determination. Rule 13 explicitly provides that the disciplinary proceeding be adjudicated by the supreme court, not by appellate court judges or retired supreme court justices. If, when it adopted Rule 13, the Hawaii Supreme Court had intended that intermediate court judges or retired supreme court justices adjudicate the disciplinary proceedings which had been initiated because of a finding made by the supreme court, it would certainly have included a provision to that effect in the text of the rule.31
It is clear that the Hawaii Supreme Court did not intend the recusal statute to be applicable in cases such as Partington’s, because application of the statute to such eases would do precisely what the court refused to do when it enacted Rule 13. It would require that disciplinary proceedings arising out of reversals ordered by the supreme court, or out of cases in which the supreme court upheld a reversal ordered by a lower court, be adjudicated by a group of judges who are not active members of the court. The majority errs in attempting to save Rule 13 by presuming the applicability of Hawaii’s recusal statute.32 The proper course would be to invalidate the rule and permit the Hawaii Supreme Court to reenact a version that does not offend due process.
IV
CONCLUSION
Certainly, judges are entitled to a presumption of absence of bias, see Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1669, 72 L.Ed.2d 1 (1982), as well as one of integrity and honesty. Withrow, 421 U.S. at 47, 95 S.Ct. at 1464. They are also entitled to a presumption that they will follow their duty to “be unswayed by partisan interests, public clamor, or fear of criticism.” Haw.S.Ct.R. 8.5(a)(5), incorporating Code of Judicial Conduct, Canon 3(A)(1). But such a presumption “does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high.” Withrow, 421 U.S. at 58, 95 S.Ct. at 1470. This is just such a case. Under Rule 13, the Hawaii Supreme Court would be called upon to determine whether Partington rendered ineffective assistance of counsel, despite the fact that it has previously determined, in reversing a murder conviction, that he did precisely that. While I have no doubt that the justices of the Hawaii Supreme Court would attempt to comply with *148their duty to be impartial, the risk of prejudgment on the part of the court is too great. So, too, is the price the courts would pay for failing to preserve the appearance of justice.
The majority’s suggestion that Parting-ton must now present his arguments to a tribunal that has prejudged the merits of the disciplinary proceedings because he has not shown that the tribunal is biased on the issue of whether it is biased, misconceives the law of abstention. Partington has shown all that he need show in order to obtain a federal court injunction — he has shown that the state tribunal has prejudged the merits of the disciplinary proceedings. See Gibson, 411 U.S. at 577-78, 93 S.Ct. at 1697. I see no legal or practical reason for forcing Partington to first present his claims to the Hawaii Supreme Court.
Although the majority posits recusal of all of the justices as a possible solution to the prejudgment problem, it offers no support for the assumption that Hawaii’s general recusal statute is applicable. In fact, the structure of Rule 13 compels the conclusion that this remedy is simply not available here. Rule 13 explicitly requires that the Hawaii Supreme Court adjudicate all cases arising under the rule, not that the determination be made by an entirely different group of judges whenever the initial determination was made or affirmed by the supreme court.
For these reasons, the Hawaii Supreme Court simply cannot be said to provide Partington with an unbiased forum insofar as the disciplinary proceedings are concerned. Accordingly, Younger abstention is inappropriate.33 I would reverse the district court’s decision and remand the case to that court with instructions to enjoin the Rule 13 proceedings.
SANCTIONS
While I agree with the majority that sanctions against Chang and Gedan are appropriate, I cannot agree that Rule 11 is a proper basis for imposing them. Certainly, Rule 11 was not the basis the Seventh Circuit relied upon in Meeks v. Jewel Cos., Inc., 845 F.2d 1421, 1422 (7th Cir.1988), a case the majority cites as precedent for its sanctioning of Chang and Gedan. The Seventh Circuit has made it abundantly clear that Rule 11 does not apply to proceedings before courts of appeals. See, e.g., Leigh v. Engle, 858 F.2d 361, 370 n. 5 (7th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1528, 103 L.Ed.2d 833 (1989); Borowski v. DePuy, Inc., 850 F.2d 297, 306 n. 6 (7th Cir.1988); Hays v. Sony Corp. of America, 847 F.2d 412, 420 (7th Cir.1988).
The majority attempts to avoid this problem by stating that, unlike the Seventh Circuit, this circuit has adopted Rule 11 for proceedings before this court. However, the cases cited by the majority, 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); and In re Curl, 803 F.2d 1004, 1007 (9th Cir.1986), when properly analyzed, do not stand for this broad proposition. Rather, in each of these cases, the objectionable conduct for which the attorney was sanctioned occurred in the district court.34 Here, in contrast, the sanctionable conduct took place exclusively in the court of appeals: Chang and Gedan filed a frivolous motion for sanctions against Partington for bringing this appeal. I do not believe that we can properly adopt Rule 11 for appellate proceedings through the exercise of our decision making function. Rule 11 is applicable to actions taken in the district courts not the bankruptcy courts, In re Akros Installations, Inc., 834 F.2d 1526, 1531 (9th Cir.1987); Fed.R.Civ.P. 81(a)(1), or the *149courts of appeals. Leigh; Borowski; Hays. If a rule similar or identical to Rule 11 is to be made applicable to federal appellate courts generally, an amendment to the Federal Rules of Appellate Procedure will be required. If, on the other hand, a judge of this court believes that our court should adopt such a rule for ourselves, he should request our Advisory Committee on Rules to act. However, even if we could extend Rule 11 to appellate proceedings, it would be unwise to do so. The satellite litigation we would be inviting is not worth the candle.
Of course, this still leaves the question of what the proper basis for our imposition of sanctions against Chang and Gedan should be. While Meeks did not make clear what basis the Seventh Circuit relied upon to grant sanctions, there are several options available to us: Fed.R.App.P. 46(c); 28 U.S.C. § 1927; or our inherent powers. Unwarranted sanctions motions serve to multiply proceedings unnecessarily and to harass one’s opponent. Because I believe that Chang and Gedan’s filing of a motion for sanctions against Partington for bringing this appeal was unreasonable and vexatious, I would impose sanctions pursuant to 28 U.S.C. § 1927.
. At the oral argument in State v. Clarke, one of the justices of the Hawaii Supreme Court accused Partington of misconduct, contending that he had been deliberately ineffective at trial. As discussed in the text, the Hawaii Supreme Court ultimately reversed Clarke’s conviction on the grounds that he received ineffective assistance from Partington.
. Subjecting Partington to disciplinary proceedings before a biased tribunal would violate his due process rights. See, e.g., Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973).
. See note 28, infra.
. See note 12, infra.
. Cf. Kugler, 421 U.S. at 128, 95 S.Ct. at 1532 (framing the abstention issue as whether the "judicial system provides procedural safeguards to guarantee that [the federal court plaintiff] will not be denied due process of law in the state trial or appellate process”) (emphasis added).
. An exception exists where the state provides an alternate procedure which ensures a fair tribunal in place of the biased tribunal, e.g., by way of recusal. See Kugler v. Helfant, 421 U.S. 117, 127-28, 95 S.Ct. 1524, 1532, 44 L.Ed.2d 15 (1975). The applicability of the recusal exception is discussed in Section III, infra.
. I must confess that I do not know whether the majority’s description of the powers possessed, in 1973, by the Board of Optometry under Alabama law is correct. In California until a few years ago, administrative agencies, including licensing boards, did have the power (and the duty, I believe) to make rulings on constitutional issues. This was so regardless of whether the board was an industry board or an industry-labor board, composed exclusively of laymen, or some other type of board. The Attorney-General’s office provided advice to all these boards on constitutional questions and the boards then made their rulings. Long after 1973, the voters of California adopted an initiative measure removing from all administrative boards, including those composed of lawyers, the power to declare statutes unconstitutional.
. Where state law provides that a biased judge must recuse himself, the state law does not, of course, require the individual to appear before a biased tribunal (except, possibly, in some instances for the limited purpose of filing the disqualification motion). The question of recu-sal is discussed in Section III, infra.
. I seriously doubt that, as a legal matter, a lower court, in Hawaii or elsewhere, has the authority to enjoin a proceeding before a higher court.
. In some instances, a claim of bias would be sufficient to preclude abstention, at least until the federal court has had an opportunity to resolve the factual issues relating to the claim. Here, however, there are no factual issues in dispute with respect to the alleged bias.
. It is worth noting that a letter dated April 27, 1987 to Partington from the Chief Justice, a letter the majority appears to accept as the view of the entire court, Majority op. at 126, suggests that the court has in fact prejudged the due process claim. See ER 444 (Chief Justice finds “mystifying" Partington’s contention that he could not receive an impartial hearing on the ineffectiveness claim). Surprisingly, at a later point in the majority opinion, the letter is summarily dismissed as at most reflecting the opinion of the Chief Justice. Majority op. at 128 n. 7.
.At one point, the majority argues that Part-ington has not alleged that the Hawaii Supreme Court is biased "on the primary issue ... [namely] whether corrective action is warranted [against Partington] under Rule 13.” Majority op. at 126. Any distinction between whether the court is biased "merely” on the ineffective assistance issue rather than on the corrective action issue is semantic gameplaying, at best. I find it hard to believe that anyone would suggest that a court that has prejudged the issue whether Partington rendered ineffective assistance is unbiased on the question whether he should be the subject of disciplinary action. The Hawaii Supreme Court is necessarily required to judge the issue on which it is biased before determining the appropriate remedy. Obviously, if the court were to decide the issue relating to conduct in Partington’s favor, there would be no need for it to reach the question whether corrective action is warranted.
. Partington has not demonstrated by unambiguous authority that the court is legally precluded from reconsidering its initial determination of ineffectiveness. For the purposes of our Younger analysis, we must assume that the Hawaii Supreme Court is free to reexamine its previous legal conclusion on the question of ineffective assistance. If, however, this assumption turns out to be incorrect, I do not think anyone could argue that the Rule 13 proceeding would satisfy due process.
. The question of recusal is discussed infra, section III.
. Our present Chief Justice has said that the mere fact that a judge has expressed an opinion on a purely legal question would not demonstrate bias or prejudgment. Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (memorandum on recusal by Rehnquist, J.). We have reached the same conclusion. United States v. Conforte, 624 F.2d 869, 882 (9th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). The situations discussed by Justice Rehnquist and by this court in Conforte were far different from the one present in Texaco. Conforte is discussed further infra, note 20.
. In Swann, Judge Craven applied 28 U.S.C. § 47, which explicitly forbids the practice of a judge hearing an appeal from a case which he tried. The same result has been reached through application of 28 U.S.C. § 455, which requires a judge to recuse himself to avoid the appearance of impropriety. Rice v. McKenzie, 581 F.2d 1114, 1116-18 (4th Cir.1978) (federal judge, who, as chief justice of state supreme court, had presided in affirming appeal of convicted person was disqualified from federal ha-beas corpus proceedings because of concerns with impartiality). Cf. Withrow, 421 U.S. at 58 n. 25, 95 S.Ct. at 1470 n. 25 ("when review of an initial decision is mandated, the decisionmaker must be other than the one who made the decision under review").
In light of current practice, the comments in the concurring opinion on the history of the practice of the Supreme Court acting “as a court of appeals from decisions of circuit courts made by the Justices as circuit judges,” Concurring op. at 132, and specifically its discussion of Stuart v. Laird, 1 Cranch 298 (1803), and The Antelope, 23 U.S. (10 Wheat.) 66, 6 L.Ed. 268 (1825), while interesting, shed no light on the specific issue before us. Just as our view of the slave trade has changed from that espoused in The Antelope, so too has our view of the propriety of judges sitting in judgment on their own decisions. Moreover, in The Antelope, no challenge was made to the individual Justice’s participation in an appeal from a case in which he had sat as a circuit judge; perhaps more interestingly, in Stuart, "[t]he Chief Justice, having tried the cause in the court below, declined to give an opinion.” Id. at 306. Most importantly, in neither case did the Justices even consider the question we are presented with, that is, whether a court comprised wholly of judges who decided the same case at a lower judicial level may hear an appeal of that lower court decision, and certainly the concurring opinion does not suggest that any such practice ever existed.
.The concurring opinion suggests at one point that prejudgment “must be based upon something other than rulings in the case.” Concurring op. at 133, quoting Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481 (1921); see also Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir.1981) (judge’s participation in pri- or or related proceeding not sufficient to constitute bias). However, none of the cases the concurring opinion relies upon (with one exception) involves a situation in which, as here, the judges will be called upon to determine the same complex question of fact and law on which they previously reached a final determination. The one exception, Denis v. Perfect Parts, Inc., 142 F.Supp. 263 (D.Mass.1956), is discussed in note 20, infra.
. The majority apparently does not disagree with this suggestion. See Majority op. at 124, 126.
. None of this discussion is meant to minimize the problem of ineffective assistance of counsel for criminal defendants, nor to suggest that the Hawaii Supreme Court cannot fulfill its duty to supervise attorney conduct. Nevertheless, the Court cannot exercise its authority in a manner which violates the requirements of due process. A Rule 13 procedure can undoubtedly be devised which meets those requirements. See infra pages 146-47.
. The concurring opinion concludes that there would be "no logical inconsistency between the Supreme Court reversing the murder conviction in Clarke because of ineffective assistance of counsel and then finding that in the disciplinary proceeding against Partington he had explained his strategy so that the court was now satisfied that he had not breached his responsibilities as a lawyer.” Concurring op. at 134 (emphasis in original). The logic of this statement escapes me. If the court determines that Partington’s strategy was reasonable and that it justified his trial tactics, I do not see how it could also say that there was a sixth amendment violation. If the strategy justified the tactics, then the assistance was not ineffective.
The concurring opinion also concludes, without analysis, that the fact that the Hawaii Supreme Court has already reversed a murder conviction because the defendant received ineffective assistance from Partington does “not constitute disqualifying bias [on the part of the members of the court] because it is not the kind of aversion or hostility that a fair-minded person would be unable to set aside.” Concurring op. at 132. However, the case that it relies on, United States v. Conforte, 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980), involved a type of pre-judgement wholly unlike the prejudgment present in this case. In Conforte, the alleged bias was personal — the trial judge had allegedly made derogatory statements about the defendant some years prior to the time when the defendant appeared before the judge. 624 F.2d at 878-79. We held that the bias alleged was not sufficient to require recusal, and that disqualification for personal bias required "an animus more active and deep-rooted than an attitude of [non-racial] disapproval toward certain persons because of their known conduct.” Id. at 881 However, the question of the depth of personal animosity required to constitute disqualifying bias bears no relationship to the question whether a court has actually prejudged the merits of the case before it because it has rendered a final decision in a previous case on the same issue it is now called upon to decide.
The only case that the concurring opinion relies on that is at all factually similar to our case is Denis v. Perfect Parts, Inc., 142 F.Supp. 263 (D.Mass.1956). In that case, the district judge declined to recuse himself at the request of the defendant, although he would be called upon to determine the validity of a patent which he had declared valid in a previous case that involved the same plaintiff but a different defendant. Id. at 263. The judge declined to disqualify himself, because he concluded that 28 U.S.C. § 144, the disqualification statute, "is directed to personal bias, not to previous exposure to the same or similar questions.” Id. The judge believed that a contrary result would minimize or eliminate the value of judicial experience and exposure. Id. Denis would thus suggest a different result than the one that I reach here. However, as the concurring opinion points out, "[s]ensibilities no doubt are changing on the question of judicial bias.” Concurring op. at 133. Indeed, the author of the opinion in Denis has expressed considerable doubt about the decision he reached in that case. See Codex Corp. v. Milgo Electronic Corp., 553 F.2d 735, 739 (1st Cir.1977). Thus, Denis, while never controlling on this court, cannot any longer even be considered persuasive.
. Although Judge Noonan does not disagree with the use of the “logical inconsistency” standard, he would seem to rely on each individual justice’s view as to whether he has prejudged Partington’s case. See Concurring op. at 134. This conclusion appears to be at odds with the prevailing notion that an objective standard is to be used. See, e.g., Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921); United States v. Conforte, 624 F.2d 869, 881 (9th Cir.), cert. denied 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980); 28 U.S.C. § 455 (1982); see also Concurring op. at 134.
. It is worth noting that the judge who initiates the contempt proceedings is not always permitted to preside over them. For example, if "the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent.” Fed.R.Crim.P. 42(a). See also In re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (trial for contempt during grand jury proceedings before same judge who acted as one-man grand jury violates due process because "[hjaving been a part of that process a judge cannot be ... wholly disinterested in the conviction or acquittal of those accused”).
. Of course, an appellate court may, under its supervisory powers, reassign the case on remand to a different trial judge, if it determines under the circumstances of the case that allowing the same judge to rehear the case poses an unacceptable risk of bias. See, e.g., Smith v. Mulvaney, 827 F.2d 558, 562-63 (9th Cir.1987).
. The practical reality of retrying numerous cases after appeal virtually requires that, with appropriate safeguards, our judicial system allow the same judge who presided over the first trial to preside again after appeal. United States v. Harris, 458 F.2d 670, 678 (5th Cir.) (“‘used’ judges must simply be recycled" to avoid problem of no judge in a particular venue being able to hear a litigant’s case), cert. denied, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972). Neither the courts generally nor Hawaii courts in particular face a comparable practical problem with respect to the adjudication of disciplinary cases.
. The concurring opinion suggests that our current en banc practice also presents a troublesome analog. Concurring op. at 131-33. However, that circumstance is wholly different from the one with which we are now confronted. When a circuit court sits en banc, the court rehears the case at issue, just as the original *145panel may. The en banc judges do not, as the Hawaii Supreme Court under Rule 13 is required to do, decide a complex issue of fact and law on which the court has already reached a final determination in a prior case. The practice of granting a rehearing in a pending case poses none of the problems presented by a court requiring a party to submit to it for decision an issue on which the court has already rendered a final decision adverse to that party.
. The majority opinion contends that Hawaii’s Rule 13 disciplinary procedure is "strikingly similar” to the New Jersey disciplinary proceeding which the Supreme Court held, in Middlesex County Ethics Committee v. Garden State Bar Ass’n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), provided a charged attorney with an adequate opportunity to raise his constitutional claims. Majority op. at 121. However, any "similarity” between the two systems is at most superficial, and in any event irrelevant to the question of prejudgment.
Under the New Jersey attorney disciplinary system, a local Ethics Committee is authorized to receive complaints about attorney misconduct. It then makes an initial determination whether an attorney should be disciplined for unethical conduct. 102 S.Ct. at 2518. If the Committee determines that disciplinary action is warranted, it prepares a presentment for the Disciplinary Review Board. Id. at 2518-19. The Review Board then decides what disciplinary action, if any, is warranted. The New Jersey Supreme Court's first involvement with the proceedings is when it reviews the Review Board’s decision. Id. at 2519.
. Although the majority refers to Partington’s ability to seek recusal of “certain members of the Supreme Court [who] may be personally biased against him ... by virtue of their finding of ineffectiveness of counsel in State v. Clarke," Majority op. at 127 (emphasis added), the opinion in Clarke shows that all of the justices found that Partington’s assistance was ineffective. ER 158-59.
. Disciplinary proceedings are instituted whenever such a determination is made and the criminal conviction is reversed. Haw.Sup.Ct.R. 13. Conceivably, in rare instances the reversal of a conviction on the ground of ineffective assistance of counsel could originate in the trial court. However, in such cases, there is still a reasonable possibility that the determination will subsequently be affirmed (or reversed) by the intermediate appellate court, the supreme court, or both. Accordingly, there is no need to consider these cases separately, and they are subsumed within the discussion contained in the text.
. Of course, where the intermediate appellate court makes the determination in the criminal proceeding and the decision is not reviewed by the supreme court, no due process issue is presented by the provisions of Rule 13.
.If the intermediate appellate court had made the initial ineffectiveness finding and the Hawaii Supreme Court had affirmed, neither the supreme court justices nor the appellate court judges who participated in the criminal proceedings could be involved in the disciplinary case. However, other active appellate court judges as well as retired supreme court justices, retired appellate court judges, or active or retired circuit court judges would be eligible, if authorized by a revised Rule 13.
. For the same reason, it would not be reasonable to suggest that the court had the recusal statute in mind when it drafted Rule 13, and that it therefore expected retired justices or active circuit judges, see Haw.Rev.Stat. § 602-10, to hear those disciplinary cases which result from criminal proceedings which have previously reached the supreme court level. That class of cases constitutes far too significant a part of the potential pool to have been overlooked by the court or excluded sub silentio from the regular procedure.
. The Supreme Court has held that the ability to seek recusal is sufficient to protect due process requirements. Kugler v. Helfant, 421 U.S. 117, 130-31, 95 S.Ct. 1524, 1533-34, 44 L.Ed.2d 15 (1975). In Kugler, the Supreme Court affirmed the district court's dismissal of a complaint on the basis of Younger, emphasizing that recusal would solve any due process problem that might arise from the possibility of bias on the part of individual members of the New Jersey Supreme Court. Id. Kugler involved an individual instance of bias, not the systemic bias present here. Because Rule 13 contemplates that the Hawaii justices will determine the question of ineffective assistance of counsel under that rule and not that they will all be recused from hearing such cases when the triggering determination has been made by the Hawaii Supreme Court, recusal is not an available option here. Thus, Kugler is inapplicable. In addition, this court has held that a plaintiffs failure to utilize state disqualification procedures will prevent us from making a determination whether his case fits the bias exception to Younger. Flangas v. State Bar of Nevada, 655 F.2d 946, 950 (9th Cir.1981). However, Flangas, like Kugler, involved an individual instance of bias to which the state recusal statute was clearly applicable.
. Because the Hawaii Supreme Court is biased for the reasons explained above, it is not necessary to decide whether it is also biased as to Partington's equal protection claim. Nevertheless, the April 27, 1987 letter to Partington from the Chief Justice strongly suggests that the Court has prejudged that issue as well. See note 11 supra and ER 446 (stating reasons that Rule 13 need not be applied to prosecuting attorneys as well as to defense attorneys).
. While In re Curl is at best ambiguous, it appears that the principal conduct the attorney was sanctioned for in that case was the filing in the district court of a frivolous notice of appeal.