Petitioners Reply Brief — Arizona v. Ash Grove Cement Co.

Office . s\;-, me (Cs

Pp ame Court, U.S.

FILED

OCF 4 1982

NDER 1. STEVAS,

CLERK

No. 82-287

In THE

Supreme Court of the United States

Octoser Term, 1982

STATE OF ARIZONA ef al,

Petitioners,

Vs.

AsH Grove CEMENT COMPANY, ef al,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

Joser D. Cooper KENNETH R. REED

Counsel of Record Mark D. FRreitaG

Tracy R. KiRKHAM Reep, GOLDSTEIN &

Kirk A. MCKINNEY JENKINS-Reep, P.C.

Cooper, KiRKHAM, HAINLINE Special Assistant

& McKInney, P.C. Attorneys General for the

300 Montgomery Street, State of Arizona

Suite 600 114 West Adams,

San Francisco, CA 94104 Suite 760

(415) 788-3030 Phoenix, AZ 85003

(602) 254-1973

Counsel for Petitioners

( Additional Counsel Are Listed Foliowing the Signature Page)

TABLE OF CONTENTS

TABLE OF CONTENTS ..........-.--ccsscsseessereeeserseneneenes

TABLE OF AUTHORITIES ................ccceeseseeseeeenenes

SUPPLEMENTAL STATEMENT OF THE CASE

REASONS WHY THE WRIT SHOULD BE

I. The Petition Was Timely Filed ....................cc00s000

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Il. This Petition Should Be Held For Consideration

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CONCLUSION ...........:cccsccsscssssessesnsenscsenesencsnnes sennsnneenneees 7

TABLE OF AUTHORITIES

PAGE(S)

Bowman v. Lopereno, 311 U.S. 262 (1940) ..0........cccccceeeee 3,4

Forman v. United States, 361 U.S. 416 (1960) ................000. 3

“t 2 ee nae Regulator Co., 344 US. _,

Of GIP aIEIT \eccnsidenascniiieaptetintescensescetniiahnebontemmmniaiiinipinnaitadiminionsos

Pfister v. Northern Illinois Finance Corporation, 317 U.S.

Be UME PD ceeenznisancsichinitiencincepphitenianiccgiinbedailbnmnenssebcemnninnnn 3

State of Arizona, et al. vy. United States District Court For

the District of Arizona, No. 82-483, October Term, 1982 . 6

United States v. Healy, 376 U.S. 75 (1964) .........cccccccccceeeeeeee 3

Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U. *

BREESE S Rs ee ASE 3

MISCELLANEOUS

28 U.S.C.

TEI IIE SE SR AE 5 5

EET TE OO CER I /AESOON Anes eet NEO l

FERS ae Seer ane ke nO 3

R. Stern & E. Gressman, Supreme Court Practice,

SAD, Wee cashisincsaccaiaiiicensecicnanegsesntibniianeltiincihdeaitididcesn 3,4

No. 82-287

IN THE

Supreme Court of the United States

Octoser Term, 1982

STATE OF ARIZONA ef a/.,

Petitioners,

Vs.

AsH Grove Cement COMPANY, ef al,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

SUPPLEMENTAL STATEMENT OF THE CASE

In addition to the facts set forth in the “Statement of the

Case” at pages 2-7 of this “Petition For A Writ of Certiorari to

the United States Court of Appeals For the Ninth Circuit,” the

following facts are relevant to the timeliness issue raised in

respondents’ brief in opposition. At the January 4, 1982 oral

argument on the mandamus prtition from Judge Muecke’s

recusal order (which was accepted by the Ninth Circuit when

petitioners’ alternate jurisdictional grounds under 28 U.S.C.

$§ 1291 and 1!292(b) were rejected), the Panel raised the

question of the propriety of jurisdiction under 28 U.S.C.

$§ 1291 and 1292(b), and inquired why petitioners had not

requested reconsideration of the jurisdiction rulings. At that

2

hearing, petitioners so moved orally, and on January 11, 1982

petitioners filed a written motion for leave to file a petition for

reconsideration and attached a copy of the petition.

On January 22, 1982, while petitioners’ motion for leave to

petition for reconsideration was pending before the Ninth

Circuit, an application for enlargement of time in which to file a

petition for writ of certiorari on the jurisdictional issues was

filed with this Court. On January 25, 1982, that application was

denied (Appendix III to Brief in Opposition to Petition For

Writ of Certiorari). The very next day, the Ninth Circuit

entered an Order {Petition Appendix F): (1) stating that an

“opinion expanding the views summarily expressed in the

Order filed October 30, 1981” would be filed the next day, (2)

ordering the petition for reconsideration lodged with the Court,

and (3) granting petitioners leave to file a petition for rehear-

ing within seven days of the filing of the Court’s opinion. The

extended opinion, with an eight page dissent, was filed January

27, 1982. On February 3, 1982, petitioners timely filed a

petition for rehearing and suggestion for rehearing en banc

based on the extended opinion in accordance with the Circuit

Court’s Order. On April 15, 1982, the Ninth Circuit issued an

“Amendment of Opinion and Denial of Rehearing” ( Petition

Appendix G) which denied the petition for rehearing and

rejected the suggestion for rehearing en banc.

Since five of the Justices of this Court have stockholdings

similar to Mrs. Muecke’s, the identical recusal issue before the

Ninth Circuit on the petition for writ of mandamus would be

presented by a petition for a writ of certiorari on the jurisdiction

issues. Therefore, on June 2, 1982, petitioners requested an

extention of time in whict: to file such a petition to give the

Ninth Circuit more time in which to rule. That request was

granted by Justice Rehnquist to the extent of allowing a thirty-

two day extension to Sunday, August 15, 1982. (Appendix L,

attached hereto.) As the Ninth Circuit still had r.ot ruled on the

mandamus petition by July 24, 1982, petitioners requested an

additional extension of twenty-eight days (thus totaling the

sixty days permitted by this Court’s rules) in which to file a

petition for a writ of certiorari on the jurisdiction issues, which

request was denied on August 2, 1982. On August 16, 1982,

3

petitioners timely filed this petition for a writ of certiorari from

the Ninth Circuit’s jurisdiction rulings which were final on April

15, 1982.

REASONS WHY THE WRIT SHOULD BE GRANTED

I. The Petition Was Timely Filed

Prior to January 28, 1982, the date by which a petition for

writ of certiorari for review of the Ninth Circuit’s October 30,

1981 Order would have been due, the Circuit Court granted

petitioners’ motion for leave to petition for reconsideration. By

ordering the petition for reconsideration lodged and inviting the

filing of a new petition for rehearing, the Circuit Court sus-

pended the finality of and put at issue both its October 30, 1981

summary Order and the January 27, 1982 extended Opinion.

The Ninth Circuit’s rulings on these issues were not resolved

until April 15, 1982. That is the first date on which a petition

for a writ of certiorari was proper. See Bowman v. Lopereno,

311 U.S. 262, 266 (1940), wherein the Court stated ( footnotes

omitted, emphasis added ):

The filing of an untimely petition for rehearing which is not

entertained or considered on its merits, or a motion for

leave tc ‘le such a petition out of time, if not acted on or if

denied by the trial court, cannot operate to extend the time

for appeal. But where the court allows the filing and, after

considering the merits, denies the petition, the judgment of

the court as originally entered does not become final until

such denial, and the time for appeal runs from the date

thereof.

See also, United States v. Healy, 376 U.S. 75, 77-80 (1964);

Forman v. United States, 361 U.S. 416, 426 (1960); Pfister v.

Northern Illinois Finance Corporation, 317 U.S. 144, 149-150

(1942); Wayne United Gas Co. v. Owens-Illinois Glass Co., 300

U.S. 131, 137 (1937); and R. Stern & E. Gressman, Supreme

Court Practice, § 6.3 (Sth ed. 1978).

4

Here, the Circuit Court considered the merits of petitioners’

motion for rehearing and modified the October 30, 1981 Order

in the April 15, 1982 “Amendment of Opinion and Denial of

Rehearing” (Appendix G). The ninety day period for filing a

petition for a writ of certiorari began to run from April 15, 1982

and would have expired on July 14, 1982.

However, on June 4, 1982 petitioners filed a motion to

extend time to file a petition for certiorari. This motion was

timely filed a full forty days before expiration of the period

available to petition for a writ of certiorari. Although respond-

ents filed an opposition setting forth the same timeliness

arguments made now, that motion was granted without a

caveat as to jurisdiction, and the date for filing a petition for a

writ of certiorari was extended untii Sunday, August 15, 1982.

This petition was filed and endorsed by the Supreme Court

Clerk on the next business day, August 16, 1982.

Respondents rely upon FTC v. Minneapolis-Honeywell

Regulator Co., 344 U.S. 206 (1952), for the proposition that the

petition here was untimely filed. However, this Court repeat-

edly emphasized that Minneapolis-Honeywell did ot concern

the filing of a motion for reconsideration, or the Circuit Court’s

acceptance of an application to file a motion for reconsidera-

tion:

The [Petitioner] filed no such petition [for rehearing].

Id. at 208. And:

[T]he memoranduta was labeled neither as a petition for a

rehearing nor as a motion to amend the previous judg-

ment, and in no manner did it purport to seek such relief.

On the contrary, the [ Petitioner] indicated that it was quite

content to let the Court of Appeals’ decision... stand

undisturbed.

Id. at 210.

Since the Ninth Circuit chose to lodge petitioners’

reconsideration petition, invited the filing of a new rehearing

petition and then considered the petition on the merits, the rule

enunciated in Bowman v. Lopereno, supra, controls. As stated

by R. Stern & E. Gressman, Supreme Court Practice, § 6.3 at

399 (Sth ed. 1978):

5

If rehearing is sought in the court below, there is no

absolute certainty that the judgment below will not be

altered. Only when there is such certainty can the judg-

ment properly be made the subject of a petition for

certiorari. And thus it is that the time for petitioning for

certiorari commences on the date when certainty and

finality attach to the action taken by the lower court.

Where rehearing has been sought, that date is the one on

which rehearing was denied.

Similarly here, once the Ninth Circuit granted petitioners leave

to file a petition for rehearing, any petition for a writ of

certiorari before the Circuit Court ruled on the rehearing

petition would have been premature. It is for that reason that

petitioners properly filed their petition for a writ of certiorari

after April 15, 1982, when the Ninth Circuit affirmed and

amended its October 30, 1981 and January 27, 1982 rulings,

and not by January 29, 1982 as respondents assert was re-

quired.

Having timely filed this petition for a writ of certiorari,

petitioners respectfully request that this Court determine wheth-

er it can convene a quorum consistent with 28 U.S.C.

§ 455(b)(4) so that it may rule upon this petition and accom-

panying “Motion For Relief From Compliance With Certain

Provisions of Supreme Court Rules 19.3, 21.1(b), 28.1 and

28.3.” As respondents implicitly concede,’ a federal judge or

justice is obligated to individually evaluate his or her capacity

to sit without regard to whether a similar recusal issue is

1 See Brief in Opposition to Petition For Certiorari at 12-13. Compare

the first and third sentences of the second paragraph on pg. !2 with the last

sentence of that paragraph (which continues onto page 13). A similar

inconsistency is present in respondents’ argument at pg. 8 regarding the Ninth

Circuit’s ruling on Section 1292(b) jurisdiction. In the first paragraph on

pg. 8 they stat. that the ¢enial of Section 1292(b) jurisdiction was based

upon a finding that a re usal question cannot be controlling, since “mo

party to litigation necessarily has a protectable interest in... a particular

judge. .. .” (Emphasis added.) However, in the next paragraph respondents

assert that the Ninth Circuit's ruling does not conflict with other circuits

permitting Section 1292(b) review of recusals because it turned on “the

particular facts and circumstances” of this case. It is noteworthy that

respondents do not reveal how the facts and circumstances here distinguish it

from the Third, Fourth, Sixth and Tenth Circuit precedent.

6

pending elsewhere. Such determination here will require each

justice owning stock in a class member to consider the substan-

tive issues resolved in Judge Muecke’s recusal Order totally

independent of the mandamus proceeding before the Ninth

Circuit. Petitioners agree with respondents that proper consid-

eration will require full briefing of the recusal issue to this

Court.?

Il. This Petition Should Be Held For Consideration With No.

82-483.

Petitioners respectfully direct this Court’s attention to their

“Petition For A Prejudgment Writ of Certiorari to the United

States Court of Appeals For the Ninth Circuit” in State of

Arizona, et al. v. United States District Court For the District of

Arizona, No. 82-483, October Term, 1982. No. 82-483 requests

prejudgment review of the recusal issue in the context of the

mandamus proceeding. Petitioners respectfully suggest that

because identical recusal questions are presented, this Petition

should be held for consideration and consolidated with No. 82-

483 after the real parties-in-interest there (respondents here )

file their brief in opposition on October 18, 1982.

2 Id. at 140.22.

7

CONCLUSION

This petition for a writ of certiorari is timely and should be

granted.

DATED: September 30, 1982

Joser D. Cooper

Counsel of Record

Tracy R. KirKHAM

Kirk A. MCKINNEY

Cooper, KIRKHAM, HAINLINE

& McKuwney, P.C.

KENNETH R. REED

Mark D. FreitaG

Reep, GOLDSTEIN &

JenKINS-Reep, P.C.

Special Assistant

Attorneys General

for the State of Arizona

By /s/ Joser D. Cooper

Josef D. Cooper

Counsel for Petitioners

ADDITIONAL COUNSEL FOR PETITIONERS

2115 State Capitol

Lincoln, NE 68501

1600 American Bank Tower

Austin, TX 78701

Jerome |. BRAUN

Joun L. Cooper

New A. GoTEeINER

Fareira, Braun & MarTer

235 wee me fy 3100

San Francisco, CA 94104

of Justice

235 Union Street, N.E.

Capitol

Tallahassee, FL 32301

360 Wabash Street, Suite 500

St. Paul, MN 55102

Rosert S. ATKINS

Rosert F. CoLeMan

Freeman, ATxins & Coceman, Lrp.

AaTuur J. Davicu

Davicu & PoLLock

2214 North Central Ave., Suite 108

Phoenix, AZ 85004

Jerraey Oritt

Assistant Attorney General

236 State Capitol

Salt Lake City, UT 84114

Caar W. Drveens

1950 Arizona Bank Building

101 North First Avenue

Phoenix, AZ 85003

STEPHEN L. DUNNE

Law Orrices or SrepHen L. DUNNE

1139 Camino del Mar

Del Mar, CA 92014

:

i

eo

Topeka, KS 66612

29th Floor, One Union Square

Seattle, WA 98101

117 University Avenue

St. Paul, MN 55155

MitcHet A. Kramer

Herseat W. Sacus, Ja.

Stéven K aPusTIN

KRAMER AND SALUS

1520 Locust Street, 7th Floor

Philadelphia, PA 19102

Joseru D. Typincs Perer K. SHack

Micuaei E. Kass Micuaet R. GRaNnen

Fincey, Kumaie, WaGner, Heine, Arg Spree Office

Unperserc & Cassy §80 Wilshire Boulevard, Suite 500

Suite 1010, Bender Los Angeles, CA 90010

Jet namomeg Hy w

Washington, D.C. 200 NR Ss

JUSTINE FisCcHER

Joun S. Lancy Strout & Strout. P.C.

Lancy, Scutt & Ryan 735 S.W. First Avenue

2601 First Federal Savings Bidg. Portland, OR 97204

3003 North Central Avenue

Phoenix, AZ 85912

Steven D. STEINHILBER

Assistant Attorney

GERALD MALTz Court Building

Joun A. Baave P.O. Box 899

Mutter, Prrt & Fe_pmMan Jefferson City, MO 65102

111 South Church Avenue

Tucson, AZ 85701

James WECHSLER

T. J. PANTALEO Assistant Attorneys

PANTALEO AND Kupon, Chartered = Department of Justice

Ahmanson Center East State of New Mexico

3701 Wilshire Boulevard, 7th Floor PO. Drawer 1508

Los Angeles, CA 90010 Santa Fe, NM 87503

ALISON B. Swan Puitip WEEKS

Chief Counsel _ Wittam L. NovoTNeEY

Antitrust Division MaariscaL, Weexs, McINTYRE

Cuarces EGER & FRiEDLANDER

ae ee RO Heeet as Aneaue

ato en eka yt 120 Phoenix, AZ

Phoenix, AZ 8

Tuomas P. MCMAHON

Chief Counsel

James V. SYLVESTER Jus A. Gross

Attorney Assistant

Consumer Protection and Antitrust Unit, Enforcement Section

— Division a 1525 Sherman

P.O. Box 12548 ee

Capitol Station

Austin, TX 78711

Samue. H. Seymour

Seymour Seerriep & HOrrMaN

1010 Wisconsin Avenue, Northwest

Suite 810

Washington, D.C. 20007

APPENDIX L

Supreme Court of the United States

No. A-1052

ARIZONA, et al,

Petitioners

Vv.

IpeaL Basic INDusTRIES, ef al.

and

ARIZONA, et al.,

Petitioners

Vv.

Asu Grove Cement COMPANY, ef al.

ORDER

Upon CONSIDERATION of the application of counsel for the

petitioners,

IT 1s OrnpeReED that the time for filing a petition for a writ of

certiorari in the above-entitled cases be, and the same is hereby,

extended to and including August 15, 1982.

/s/ WitiiaM H. REHNQUIST

Associate Justice of the Supreme

Court of the United States

Dated this 7th day of June, 1982.