Opposition Brief — Citizens Action Coalition of Indiana, Inc. v. PSI Energy, Inc.

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90-1896 ——

No. 90-1836 JUL 15 199%

ee : OFFICE Of THE CLERK

IN THE

- Supreme Court of the United States F

OCTOBER TERM, 1991

CITIZENS ACTION COALITION OF INDIANA, INC.,

CITY OF TERRE HAUTE, INDIANA,

SAVE THE VALLEY, INC.,

Petitioners,

PUBLIC SERVICE COMPANY OF INDIANA, INC.,

OFFICE OF UTILITY CONSUMER COUNSELOR, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Indiana Supreme Court

RESPONDENT’S BRIEF IN OPPOSITION

CHERYL M. FOLEY

DUEJEAN C. GARRETT

PSI ENERGY, INC.

1000 East Main Street

Plainfield, Indiana 46168

(317) 838-2336

VIRGIL L.. BEELER *

FRED E. SCHLEGEL

JOHN R. SCHAIBLEY III

MARK A. VOIGTMANN

BAKER & DANIELS

300 North Meridian Street

Suite 2700

Indianapolis, Indiana 46204

(317) 237-0300

Counsel for Respondent

Public Service Company

* Counsel of Record of Indiana, Inc.

WILSON - Ergs Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Should this Court grant certiorari to consider whether

to overturn a state supreme court decision denying dis-

cretionary review, based solely on the fact that the deci-

sion was inadvertently and harmlessly disclosed by one

of the state supreme court justices to a former state

supreme court justice prior to the ministerial entry of the

order, where the court itself later reconsidered its deci-

sion in light of the disclosure and unanimously let the

denial of discretionary review stand?

(i)

RULE 29.1 STATEMENT

Public Service Company of Indiana, Inc. (now PSI

Energy, Inc.), is a wholly-owned subsidiary of PSI

Resources, Inc., a publicly traded company. PSI Energy,

Inc., does not have any non-wholly-owned subsidiaries.

TABLE OF CONTENTS

iy te | is) |

TABLE OF AUTHORITIES .......2.2...2..222222-2--.-eceeceeceeeeeee

STATEMENT OF THE CASE..........2.00.0222--..e-ceeceeceeeeeee

REASONS FOR DENYING THE WRIT ...........0 0...

I. THE CAC HAS MISCHARACTERIZED THE

II.

ITI.

PROCEDURAL HISTORY OF THE CASE IN

AN EFFORT TO BOLSTER UNSUPPORTED

AND UNREASONABLE ALLEGATIONS OF

JUDICIAL IMPROPRIETY ...........020000...

JUSTICE GIVAN’S LUNCHEON REMARK

DOES NOT PRESENT AN ISSUE OF CON-

STITUTIONAL DIMENSION ........0200.202..-

A. The Situations Requiring Judicial Disqualifi-

cation on Procedural Due Process Grounds

Do Not Remotely Resemble This Case ..........

B. Even Under the More Exacting Statutory

Standards Governing Judicial Disqualifica-

tion, an Appearance of Partiality Does Not

Exist as a Matter of Law ................................

C. In Any Event, Whatever Appearance Problem

There May Have Been, It Was Erased When

the Indiana Supreme Court Considered the

Very Question of Judicial Disqualification

and Unanimously Ruled That Its Previous

Denial of Transfer Should Stand ...................

THIS CASE PRESENTS NO IMPORTANT

QUESTION WHICH NEEDS TO BE AD-

DRESSED BY THIS COURT ..............0000.0........

eR al LE a

TABLE OF AUTHORITIES

CASES Page

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986).. 9-10,

Argersinger v. Hamlin, 407 U.S. 25 (1972) ~........... 17

Bradley v. Milliken, 426 F.Supp. 929 (E.D. Mich.

IE ooiaiinechndcarnlentecieasehe ea ehecaietisinipnoecnig eh chiciden eaireatadeanion 14

Deren v. Williams, 521 So.2d 150 (Fla. App. 1988) .. 14

Easley v. University of Mich. Bd. of Regents, 853

F.2d 1851 (6th Cir. 1988), aff’d after remand,

906 F.2d 1143 (1990), cert. denied, US.

“e: 3 ee Be | 2k + le ee 15

Federal Trade Comm’n v. Cement Inst., 333 U.S.

BERR Ara RA PES SERS A We eee One 12

Gibson v. Berryhill, 411 U.S. 564 (1978) ............... 10

Hortonville Joint School Dist. v. Hortonville Educ.

py eS SE Bene 11

In re Corrugated Container Antitrust Litig., 614

F.2d 958 (5th Cir. 1980), cert. denied, 449 U.S.

ISS a MCSE S Tee - RC 14

In re Estate of Carlton, 378 So.2d 1212 (Fla. 1980),

awe, mamas GT UR, DI ava vin cassie nsnctbitesswse-... 14, 16

In re Federal Skywalk Cases, 680 F.2d 1175 (8th

RGSS RES NS - 14

In re Murchison, 349 U.S. 183 (1955) .......----... 11

In re Wirebound Boxes Antitrust Litig., 724 F.

BR eee 14

Laird v. Tatum, 409 U.S. 824 (1972) ........0.0000000.... 5, 16

Liljeberg v. Health Services Acquisition Corp.,

PB SS RETR Oa Po oe ee 9,11,13

Little Rock School Dist. v. Pulaski County Special

School Dist., 839 F.2d-14296 (8th Cir. 1988), cert.

Gente ae ee ibd... 2 i. eis 13-14

Marshall v. Jerrico, 446 U.S. 238 (1980) .........0...... 10

Matter of Lewis, 535 N.E.2d 127 (Ind. 1989) _....... 13

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) .... 11

Offutt v. United States, 348 U.S. 11 (1954) ............ 11

Parrish v. Board of Comm’ rs of Ala. State Bar, 524

pe Ge ree 14

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) .. 10

State v. Barker, 420 N.W.2d 695 (Neb. 1988) _....... 15

State v. Valencia, 602 P.2d 807 (Ariz. 1979) ......... 15

| y

TABLE OF AUTHORITIES—Continued

| Page

| Taylor v. Hayes, 418 U.S. 488 (1974) .......000000....... 11

| Tumey v. Ohio, 273 U.S. 510 (1927) ....................-..- 10

Ungar v. Sarafite, 376 U.S. 575 (1964) —................ 11

United States v. Couch, 896 F.2d 78 (5th Cir.

RRs eae SS SRR 12

United States v. Kelly, 888 F.2d 732 (11th Cir.

SY SctiahLadiiacaieh accteoceh pated Amst tat lidiseaclasibesnenadinicicnibies 14

Ward v. Village of Monroeville, 409 U.S. 57

I a wasueucoune 10

Withrow v. Larkin, 421 U.S. 35 (1975) .................. 11

STATUTES AND RULES

ge | Eee ne enna 12

Ind. Appellate Rule 11(B) (5) —...........2-0000.22----- 3

Ind. Judicial Conduct Canon 3(C) (1) -....20000-00000-..... 12

OTHER AUTHORITY

Indiana Continuing Legal Education Forum, Ap-

pellate Practice, Petitions to Transfer to the

Supreme Court of Indiana (1991) .......0...0000000..... 3,14

Nadelmann, Disqualification of Constitutional

Court Judges for Alleged Bias? 52 Judicature

ee aaaieeuaaaraies 18

Smith & DeBonis, Appellate Handbook for Indiana

i 0 ee ceeieaelinaionias 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1836

CITIZENS ACTION COALITION OF INDIANA, INC.,

CITY OF TERRE HAUTE, INDIANA,

SAVE THE VALLEY, INC.,

. Petitioners,

PUBLIC SERVICE COMPANY OF INDIANA, INC.,

OFFICE OF UTILITY CONSUMER COUNSELOR, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Indiana Supreme Court

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, Public Service Company of Indiana, Inc.

(“PSI’),? submits this brief in opposition to the Petition

for a Writ of Certiorari filed by Petitioners, Citizens Ac-

tion Coalition of Indiana, Inc., et al. (the ‘““CAC”). The

CAC seeks review in this Court of a unanimous decision

by the Indiana Supreme Court (Pet. App. la) denying a

petition seeking the retroactive recusal of Justice Richard

M. Givan, and vacation and reconsideration of the court’s

previous order denying transfer (7.e., discretionary re-

view) of a decision of the Indiana Court of Appeals. For

the reasons explained below, PSI urges the Court to deny

the Petition.

1 Now PSI Energy, Inc,

STATEMENT OF THE CASE?

This case, which ostensibly presents a question of judi-

cial disqualification involving a justice of the Indiana

Supreme Court, arises from a state appellate challenge

that the CAC mounted in an attempt to overturn an order

of the Public Service Commission of Indiana* granting

PSI a rate increase in 1986. The increase, in the amount

of approximately $107 million annually, and its terms,

were approved by the commission and reflected a resolu-

tion of the case agreed upon by both PSI and the Indiana

governmental agency that acts on behalf of consumers,

the Office of the Utility Consumer Counselor.‘

The CAC appealed the commission order and the

Indiana Court of Appeals affirmed. Pet. App. 5a. The

CAC then sought transfer to the Indiana Supreme Court,°

2 The CAC’s Statement of the Case contains numerous mischarac-

terizations of fact and arguments cloaked as fact. Accordingly, PSI

has undertaken here to provide the Court with an accurate State-

ment of the Case. One inaccuracy deserves special mention. The

CAC has cited a statement from a previous PSI brief before the

Indiana Supreme Court for the apparent proposition that PSI does

not challenge the CAC’s account of events. Pet., p. 3 n.2. This

statement was taken out of context. PSI’s statement to the Indiana

Supreme Court that “[t]here are no identified, disputed issues of

fact before the Court” was immediately followed by the statement

that “‘[t]he Court knows when it voted and determined the outcome

in this case.” In other words, because the case below concerned the

internal processes of the Indiana Supreme Court, PSI was merely

pointing out that the justices themselves knew the facts.

3 Now Indiana Utility Regulatory Commission.

* The CAC has also mischaracterized the merits of the proceedings

below. Since the merits are not at issue here, PSI has, in the inter-

est of brevity, dispensed with making specific corrections of these

errors.

5 The Indiana procedure for “transfer” to the Indiana Supreme

Court is similar in practice and purpose to this Court’s certiorari

practice. It provides for discretionary review of the decisions of

the Indiana Court of Appeals, and its purpose is to permit the

Indiana Supreme Court, as final arbiter of Indiana law, to establish

but the high court denied its petition. Pet. App. 8a. The

CAC then challenged the denial of transfer on judicial

disqualification and due process grounds. The focus of

this challenge was a luncheon remark made by a state

supreme court justice who had participated in the decision

to deny transfer, Justice Richard M. Givan. It is this

luncheon remark and its asserted constitutional conse-

quences which form the sole basis of the present Petition.

The salient events are these. Oral argument on the

petition seeking transfer to the Indiana Supreme Court

was held on March 6, 1991. Immediately following the

argument, the four justices participating in the case

voted. The vote was a 2-2 tie on the question of transfer,

thus resulting in an order denying transfer by operation

of Ind. Appellate Rule 11(B)(5).* The order, according

to one newspaper article relied upon by the CAC, “was

written and signed the next day.” Pet. App. 34a. For

reasons that are unclear, the order of denial was not

immediately released to the Indiana Supreme Court clerk.

One newspaper reported that there was “some confusion”

surrounding the vote. Pet. App. 25a. Another reported

that “the order was held up when some justices reconsid-

ered their votes.” Pet. App. 28a.

precedent and maintain its consistency. Common grounds for grant-

ing transfer petitions are that a decision of the Indiana Court of

Appeals (which sits in panels) contravenes Indiana Supreme Court

precedent, conflicts with another state court of appeals decision,

or erroneously decides a new question of law. The Indiana Supreme

Court may or may not hear oral argument on a transfer petition.

A denial of transfer has no legal effect other than to terminate the

litigation in the Indiana Supreme Court. It is not precedent and

simply leaves standing the decision of the state court of appeals.

See generally Indiana Continuing Legal Education Forum, Appellate

Practice, Petitions to Transfer to the Supreme Court of Indiana 1-25

(1991); Smith & DeBonis, Appellate Handbook for Indiana Lawyers

§ 20.1 et seq. (1987).

®Ind. Appellate Rule 11(B)(5) provides in pertinent part:

In all cases where the Supreme Cour. is evenly divided .. .

upon the question of accepting or denying transfer .. . transfer

shall be deemed denied... .

The delay, however, did not mean that the vote on

March 6 (after oral argument) was preliminary. After

an oral argument on a transfer petition, the vote is taken.

There is no provision by court rule or practice for “pre-

liminary” and “final” votes at this point.?, Whatever the

reason for the delay in the release of the order of denial

in the present case, no justice changed his vote. From

all that is known or can legitimately be inferred, the

decision to deny the petition for transfer was made in the

conference following oral argument on March 6.8

Five days after the vote, on March 11, one of the

justices wno had participated in the denial of transfer,

Justice Givan, met for lunch with a longtime friend,

Paul G. Jasper, himself a former justice of the Indiana

Supreme Court. Some supreme court personnel also joined

them. Pet. App. 28a. Former Justice Jasper was not a

representative of PSI, either officially or unofficially.

Although he had once been an officer of the company, that

relationship had ended with his retirement in 1974. At

82 years old, the former justice continued to be active on

a part-time basis in the bar and in a utility industry

trade association, but his purpose in having lunch with

Justice Givan and others appears to have been entirely

social. The two had a long history. Among other things,

Justice Givan had been a clerk in the court’s law library

under former Justice Jasper. Pet. App. 31a.

During that lunch, Justice Givan, under the impres-

sion that the decision had already been handed down,

7 Of course, the justices may have previously voted on the ques-

tion of whether to hear oral argument.

8 The entry of denial of transfer is routine and m:nisterial. The

denial is either endorsed or entered directly on the petition papers

by the chief justice, with the vote of each justice noted, followed

by notice to the parties of the entry by the clerk, or a form entry

is prepared, signed, filed with the clerk and sent to the parties, as

occurred in this case. Indiana Continuing Legal Education Forum,

Appellate Practice, Petitions to Transfer to the Supreme Court of

Indiana 19-20 (1991). Both methods require no further deliberation

by the court and are purely clerical functions,

atte ieinntiaanmenae

mentioned that the transfer petition had been denied be-

cause of a 2-2 tie. Pet. App. 28a, 33a. Apparently as a

result of this inadvertent disclosure, the denial of transfer

became publicly known, and reporters began making in-

quiries to the court. On the following day, March 12, the

court met to discuss the leak, and Justice Givan imme-

diately reported his conversation with former Justice

Jasper and apologized to the other justices for his mis-

take in assuming that the decision had already been an-

nounced. Pet. App. 32a, 34a. On March 138, the order

denying transfer was formally entered and announced.

Pet. App. 3a.

On April 2, 1991, based on the premature disclosure at

the luncheon meeting, the CAC filed a petition in the

Indiana Supreme Court seeking the retroactive recusal

of Justice Givan, the vacation of the order denying trans-

fer and reconsideration of its original transfer petition.

After full briefing on these issues, the four Indiana Su-

preme Court justices who had participated in the original

decision to deny transfer voted unanimously to deny the

petition in all respects. Pet. App. la.

REASONS FOR DENYING THE WRIT

I. THE CAC HAS MISCHARACTERIZED THE PRO-

CEDURAL HISTORY OF THE CASE IN AN EF-

FORT TO BOLSTER UNSUPPORTED AND UNREA-

SONABLE ALLEGATIONS OF JUDICIAL IMPRO-

PRIETY.

Cases involving judicial disqualification are unique in

that “there is not apt to be anything akin to the ‘record’

which supplies the factual basis for adjudication in most

litigated matters.” Laird v. Tatum, 409 U.S. 824, 825

n.l (1972) (Rehnquist, J.). The CAC apparently views

this inherent characteristic as a license to exaggerate, if

not to fabricate.

The CAC would have this Court grant the Petition and

set sail upon the waters of procedural due process on the

basis of the allegation that Justice Given “disclosed ex

parte to a representative of Respondent [PSI] the out-

come of the court’s preliminary vote in conference re-

garding transfer.” Pet., p. 3 (emphasis added). The

quoted sentence, while concisely stating the CAC’s central

allegations, unfortunately suffers from any comparison to

reality.

The March 11, 1991, lunch between Justice Givan and

former Justice Jasper was not an ex parte meeting. No

party in the case was present. Nor was it a meeting

between a sitting justice and a representative of PSI.

Former Justice Jasper’s employment with PSI had ended

17 years earlier. He was not serving in any official or un-

official capacity on behalf of PSI. No one connected with

PSI had helped to arrange or even knew about the lunch

between the two justices. Yet the CAC makes free use of

the terms representative and ex parte, seemingly in the

hope of creating an atmosphere of underhandedness. This

is doubly unfair, because it also obscures the human

aspects of the relationship.

From the same sentence comes the CAC’s baseless and

unsupported characterization of the Indiana Supreme

Court’s vote to deny transfer on March 6 as preliminary.°

“Preliminary vote” is a highly useful phrase for the CAC’s

purposes: it has the virtue of making a case of premature

disclosure iook very much like a case of ex parte consulta-

tion during a break in judicial deliberations. In a con-

trived effort to cast its argument in this favorable light,

the CAC’s Petition claims that “[{t}he justices of the

® The CAC’s use of the term “preliminary vote” to describe the

March 6 decision by the Indiana Supreme Court reflects an inter-

esting variation from the terms the CAC used before the Indiana

Supreme Court itself. There, the CAC merely labeled the vote as

“non-final” (on the rationale that each participating justice ‘may

reconsider” his vote) and emphasized that the matter was a “pend-

ing case” until the written order was entered. Presumably this was

because the CAC recognized that the Indiana Supreme Court would

have instantly rejected the “preliminary vote” characterization as

inaccurate. A state high court obviously knows its own procedures.

‘

Indiana Supreme Court met in conference on the after-

noon of Tuesday, March 12, to discuss the case again.” °

Pet., p. 5 (emphasis added). With this choice of words,

the CAC clearly wants the implication to be drawn that

this was the “final” vote on the denial of transfer. There

is no evidence that any vote was taken on the transfer

petition after the vote on March 6. As noted previ-

ously, a second or “final” vote is not only contrary to the

court’s practices, it contradicts sources of information

available about the actual deliberations that were relied

upon by the CAC itself.’ Those sources of information

indicate that the court’s agenda for the March 12 meet-

ing was to discuss the recent leak of the March 6 decision.

Pet. App. 34a.

Perhaps the most outrageous of the CAC’s broadbrushed

attempts at innuendo is its not-so-veiled suggestion of

insider trading. Pet., p. 6-7. The CAC directs attention

to the fact that large blocks of PSI stock were sold on

March 12, apparently proceeding on the assumption that

this fact alone is suspect. The CAC de-emphasizes the

fact that the block sales were in connection with an on-

going stock liquidation program then being conducted by

an institutional investor, The Fund American Companies,

Inc., and it ignores the fact that the size of the blocks

10 For obvious reasons, the CAC did not make any reference to

this “fact” in its petition to the Indiana Supreme Court seeking the

retroactive recusal of Justice Givan and reconsideration of the peti-

tion to transfer. The justices of the Indiana Supreme Court clearly

know what was and was not discussed during their March 12 con-

ference.

11 The order denying transfer was written and signed on March 7,

1991. Pet. App. 34a. The entry of the order with the clerk is rou-

tine and ministerial. Although newspaper accounts suggest the

possibility of some confusion, or the possibility of one or more

justices holding up the actual entry, thus resulting in Justice Givan’s

misunderstanding regarding the release date of the order denying

transfer, no information exists about any further consideration of

the transfer petition by the court and no further consideration

would be expected.

traded was not unusual under the circumstances. The 1.3

million PSI shares traded on March 12 (primarily due to

the Fund American liquidation) loses any possible sig-

nificance when compared to the volumes two weeks after

the announcement of the denial of transfer. On April 2

and 3, 2.5 and 3.1 million shares were traded, also as a

result of the Fund American liquidation. The Wall Street

Journal, -Apr. 4, 1991, at p. C2. Viewed objectively, it

hardly comes as a surprise to know that the price of PSI

stock did not rise significantly either before or after the

decision favorable to PSI was publicly announced, and no

trading irregularities later came to light.

While it is bad enough that the Petition’s discussion

of large block trades of PSI stock on March 12 is not

put into the context of what happened just two weeks

later, it is particularly egregious when the CAC’s infer-

ences are strung together, as they necessarily must be,

in an effort to fathom the possible relevance of such in-

formation. Can the Petition really be suggesting that

Justice Givan was an accomplice in an insider trading

scheme? Or is the CAC merely trying to plant the in-

ference that most members of the general public would

tend to believe that Justice Givan was involved in such

a scheme?

Either way, the conclusions from these and other

“facts” should be the same, although they are not quite

the ones that the CAC seems to want. The conclusions

are that allegations of insider trading are irrelevant.

The Petition is rife w'th innuendo. And this case is sim-

ply not a proper case for review by the Supreme Court.

II. JUSTICE GIVAN’S LUNCHEON REMARK DOES

NOT PRESENT AN ISSUE OF CONSTITUTIONAL

DIMENSION.

A. The Situations Requiring Judicial Disqualification

on Procedural Due Process Grounds Do Not Re-

motely Resemble This Case.

This Court has repeatedly undertaken to define the

boundaries of procedural due process in widely differing

contexts. Although, by necessity, the standards have been

flexible and fact specific, it can nevertheless be said that

within some contexts (the issue of judicial disqualifica-

tion being one) the boundaries are not only known, they

have been established with a reasonable degree of par-

ticularity. The problem with the Petition is that it wants

to fit itself into a category where it does not belong. It

wants to invoke the Due Process Clause when, at best,

only a question of state law is presented. In pursuit of

this goal, the CAC tries to blur the distinction between

the line of due process judicial disqualification cases rep-

resented by Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813

(1986), and the separate line of statutory judicial dis-

qualification cases represented by Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847 (1988). The

Liljeberg standard for judges, originating from a stat-

ute, is more rigorous; that is why the CAC wants to

apply it. Its motivation for employing this strategy be-

comes even more obvious once the applicable precedent,

the due process line of cases represented by Lavoie, is

even cursorily examined.

The allegations of the Petition have no place alongside

the due process violation that occurred in Lavoie. Lavoie

concerned an Alabama supreme court justice who was

in the process of personally suing insurance companies

for alleged bad faith failures to pay claims at the same

time that he supplied the deciding vote in an Alabama

Supreme Court case which allowed punitive damages

against an insurance company under similar facts. The

result was that the Alabama justice provided his own

lawsuits with highly favorable precedent, thus making

his interest “direct, personal, substantial and pecuniary.”

Id. at 824 (quoting Ward v. Village of Monroeville, 409

U.S. 57, 60 (1972) ).° While in Lavoie this Court vacated

the Alabama high court decision on procedural due proc-

ess grounds because of the judge’s pecuniary interest, the

opinion emphasized that if the Court had decided the dis-

qualification issue purely on the non-pecuniary allegations

that the judge was biased against insurance companies in

general, the conduct would have fallen “well below” the

level of a due process violation. Jd. at 822. The Court

went on to say that “[clertainly only in the most ez-

treme of cases would disqualification on this basis be

constitutionally required.” Jd. (emphasis added).

Justice Givan’s inadvertent disclosure of the denial of

transfer decision of the Indiana Supreme Court is, by

no stretch of the law or facts, “the most extreme of

cases.” Whatever else the CAC may allege or imply, it

cannot suggest that the disclosure in any way prejudiced

the Indiana Supreme Court’s deliberations. Obviously

prejudice could not result when the decision occurred be-

fore the disclosure and the decision was not changed af-

ter the disclosure.

12 Cases involving a judge’s pecuniary interest form the corner-

stone of the Court’s due process precedent in this area. In Ward,

supra, a mayor responsible for city finances also acted as the local

judge. A principal source of city revenue was judicially-assessed

fines. This was held to be a violation of due process. See also

Tumey v. Ohio, 273 U.S. 510 (1927) (dependence of judge’s salary

on fines was due process violation) ; Gibson v. Berryhill, 411 U.S.

564 (1973) (pecuniary interest of optometrists sitting on state

optometry board prevented them from giving fair hearing to com-

petitors accused of unprofessional conduct). Like all “standards”

arising from due process, however, this one has its limits. See

Marshall v. Jerrico, 446 U.S. 238 (1980) (institutional pecuniary

gain by Labor Department from assessment of civil fines did not vio-

late due process) ; Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)

(pecuniary connection to supreme court justice too attenuated to

justify disqualification).

Likewise, the event under scrutiny here does not bear

even a remote resemblance to the situations in which this

Court has invoked due process to vacate lower court rul-

ings on the basis of a non-pecuniary interest. It does

not resemble the line of non-pecuniary cases concerned

with the improper combination of the functions of ac-

cuser and judge. See In re Murchison, 349 U.S. 133

(1955) (judge serving as “one-man grand jury” who in-

dicted party, then conducted trial, violated due process) .'*

Nor does the subject matter of the Petition remotely re-

semble the non-pecuniary cases which have entailed

heated personal disputes between judges and lawyers

which simply got out of hand. See Taylor v. Hayes, 418

U.S. 488 (1974); Mayberry v. Pennsylvania, 400 U.S.

455 (1971); Offutt v. United States, 348 U.S. 11 (1954) ;

cf. Ungar v. Sarafite, 376 U.S. 575 (1964). In short, the

allegations of the Petition, even accepting its mischarac-

terizations as true, do not present an issue of constitu-

tional dimension.

Presented with this difficulty, the CAC has opted for

the strategy of erroneously attempting to equate proce-

dural due process with the much more exacting statutory

or judicial canon standards governing judicial disqualifica-

tion. In other words, the CAC wants the Court to adopt

the “appearance of partiality” criterion of Liljeberg v.

Health Services Acquisition Corp., 486 U.S. 847 (1988),

as the standard for procedural due process. While such

-an equivalence would do wonders for the CAC’s burden

here, it suffers from the handicap of being in contraven-

tion of settled precedent. It is axiomatic that not every

13 Even here, that which constitutes a due process violation is

strictly limited. See Withrow v. Larkin, 421 U.S. 35 (1975) (not

a violation of due process for medical licensing board to combine

investigatory and adjudicative functions) ; Hortonville Joint School

Dist. v. Hortonville Educ. Ass’n, 426 U.S. 482 (1976) (not a vio-

lation of due process for school board to hold disciplinary hearings

and fire teachers on strike, even though strike may be consequence

of school board actions).

alleged violation of a state or federal judicial canon, or

recusal statute, produces a violation of the Due Process

Clause. One need look no further than the cases cited

in the Petition to find this law. “The Due Process Clause

demarks only the outer boundaries of judicial disquali-

fications. Congress and the states, of course, remain free

to impose more rigorous standards for judicial disquali-

fication ... .” Lavoie, 475 U.S. at 829. Most matters re-

lating to judicial disqualification do not rise to a constitu-

tional level. Federal Trade Comm’n v. Cement Inst., 333

U.S. 683, 702 (1948). “{S]ection 455 establishes a stat-

utory disqualification standard more demanding than that

required by the Due Process Clause.” United States v.

Couch, 896 F.2d 78, 81 (5th Cir. 1990).

B. Even Under the More Exacting Statutory Standards

Governing Judicial Disqualification, an Appearance

of Partiality Does Not Exist as a Matter of Law.

Another problem with the CAC’s rush to equate proce-

dural due process with statutory disqualification is that

even if this sleight of hand is successful, the equivalence

does not produce the conclusion that the CAC is urging.

The legal standard the CAC wants is for this Court to

require the retroactive disqualification of state supreme

court justices on constitutional grounds if a justice’s im-

partiality “might reasonably be questioned.” This is the

language of both the Indiana canon and the federal re-

cusal statute. Ind. Judicial Conduct Canon 3(C) (1); 28

U.S.C. § 455 (a).

However, in its impassioned argument in favor of this

engrafted rule of law, the Petition then makes the follow-

ing statement: “[p]etitioners’ diligent search of the case

law nationally has yet to reveal even a single prior in-

stance which has been reported of a justice disclosing ex

parte the preliminary conference vote of a state supreme

court prior to entry of an order or issuance of an opin-

ion.” Pet., p. 17 (emphasis in original). Not only will

PSI stipulate to the thoroughness of the CAC’s research

in this area, it will take it one step further. PSI’s dili-

gent search cf the case law nationally has not revealed

even a single prior instance of any judge, state or fed-

eral, being disqualified on the basis of facts remotely

analogous to the facts here. The reason for this void is

plain. It does not mean, as the CAC would have it, that

leaks never happen.’ It does mean that inadvertent dis-

closure and friendship, without more, simply do not trig-

ger even the much more demanding scrutiny of state

judicial canons and federal recusal statutes.’

Put another way, courts have quite rightly concluded

that it is not every indiscretion that constitutes an ap-

pearance of partiality. As this Court noted in Liljeberg,

supra, judicial recusal is required under section 455(a)

only when “a reasonable person knowing all the circum-

stances” would question the judge’s impartiality. Jd. at

861 (emphasis added). Reasonable persons understand

and tolerate simple mistakes. Thus, in Little Rock School

Dist. v. Pulaski County Special School Dist., 839 F.2d 1296

(8th Cir. 1988), cert. denied, 488 U.S. 869, a district

judge’s impromptu criticism of a litigant school district

in a meeting with students before the issuance of a

desegregation order was not seen as rising to the level of

a section 455(a) violation. The Eighth Circuit observed:

$ 455(a) [does not] require recusal every time a

judge commits a procedural error or departs from

14 This Court, like most, has experienced leaks on occasion. For

instance, on June 15, 1986, a reporter disclosed that the Court

would shortly overturn a key section of the Gramm-Rudman-Hollings

budget balancing law. See The Washington Post, June 17, 1986

at p. Al.

15 Inadvertent disclosure and friendship also do not trigger state

bar disciplinary action. The Indiana disciplinary cases cited by the

CAC are easily distinguishable on their facts. For instance, the

principal case cited, Matter of Lewis, 535 N.E.2d 127 (Ind. 1989),

involved a judge’s persistent pattern of ex parte discussions of the

merits of cases, as well as favor brokering.

protocol in some way. If it did, it would be extremely

difficult for any human being (a category that in-

cludes judges) to preside for the duration of a case

as complex and protracted as this one.

Id. at 1302. See also In re Federal Skywalk Cases, 680

F.2d 1175, 1184 (8th Cir. 1982) (judge did not abuse his

discretion in not recusing himself following an ex parte

telephone communication with counsel) ; Jn re Corrugated

Container Antitrust Litig., 614 F.2d 958, 966-67 (5th

Cir. 1980), cert. denied, 449 U.S. 888 (judge’s comments

about upcoming civil trial while playing golf with coun-

sel invoived in related litigation did not raise questions

of judge’s partiality) ; In re Wirebound Boxes Antitrust

Litig., 724 F.Supp. 648, 651 (D. Minn. 1989) (recusal

not required after judge inadvertently held ex parte meet-

ing concerning proposed order) ; Bradley v. Milliken, 426

F.Supp. 929, 941 (E.D. Mich. 1977) (recusal not required

when judge’s ex parte discussions did not involve disputed

issues or trial strategy). The Fifth Circuit has described

the inference of partiality created by the friendship be-

tween a judge and one of the lawyers appearing before

him, without more, as “so lacking in merit as to warrant

no discussion.” Parrish v. Board of Comm’rs of Ala. State

Bar, 524 F.2d 98, 102 (5th Cir. 1975), cert. denied, 425

U.S. 944 (1976). See also In re Estate of Carlton, 378

So.2d 1212, 1219 (Fla. 1980), cert. denied, 447 U.S. 922

(state supreme court justice was not required to recuse

himself merely because of friendship with a lawyer whose

law firm represents one of the parties).

The non-pecuniary disqualification decisions cited by the

CAC stand in stark contrast to those involving mere com-

munication or friendship. In United States v. Kelly, 888

F.2d 732 (11th Cir. 1989), the judge made repeated

statements on the record suggesting that his judgment

was being influenced by his relationship to a witness. In

Deren v. Williams, 521 So.2d 150 (Fla. App. 1988), the

judge openly expressed sympathy with the plight of the

plaintiff. In both State v. Barker, 420 N.W.2d 695 (Neb.

1988) and State v. Valencia, 602 P.2d 807 (Ariz. 1979),

judges received extrajudicial information from the family

of a victim prior to the sentencing of a criminal de-

fendant."®

Justice Givan’s inadvertent and harmless disclosure of

the Indiana Supreme Court’s vote does not even approach

the gravity of the state and federal disqualification cases

cited by the Petition. This contrast is apparent even

after making the CAC’s unwarranted assumption that

state judicial canons and the Due Process Clause impose

exactly the same standard.

The inescapable conclusion is that there is only one

truly appropriate classification of the subject matter of

the Petition, despite its mischaracterizations to the con-

trary. This case does not belong among those discussing

due process of law. It does not belong in the statutory

disqualification cases. It does belong alongsid= all those

other unreported (or unlitigated) situations that “[p]eti-

tioners’ diligent search of the case law nationally” was

unable, for good reason, to identify as having risen to the

level of a case.

C. In Any Event, Whatever Appearance Problem There

May Have Been, It Was Erased When the Indiana

Supreme Court Considered the Very Question of

Judicial Disqualification and Unanimously Ruled

That Its Previous Denial of Transfer Should Stand.

By the time that the CAC had raised the issue of

Justice Givan’s luncheon conversation, the case was over.

The Indiana Supreme Court had already decided the ques-

16In one case cited by the CAC, Easley v. University of Mich.

Bd. of Regents, 853 F.2d 1351 (6th Cir. 1988), aff'd after remand,

906 F.2d 1143 (1990), cert. denied, U.S. , 111 S.Ct. 1414

(1991), a judge’s active involvement in the affairs of one of the

parties was rightfully questioned initially, but on remand even this

relationship was found not to rise to an appearance of partiality.

tion of discretionary review. Nevertheless the court per-

mitted the CAC, despite the absence of precedent or pro-

cedure for any further proceedings, to bring the matter

of retroactive disqualification before it. Both the CAC

and PSI were allowed to submit full briefs.

Justice Givan quite properly decided the issue of his

own recusal. Laird v. Tatum, 409 U.S. 824 (1972); In

re Estate of Cariton, 378 So.2d 1212 (Fla. 1980). Even

so, the importance of Justice Givan’s participation may be

only of academic interest. The vote to deny the petition

was unanimous, 4-0; the two Indiana Supreme Court jus-

tices who had originally favored granting review did not

agree with the CAC’s arguments for reopening the mat-

ter. Pet. App. la. Thus, all four of the justices who par-

ticipated in the denial of transfer—the only individuals

who knew firsthand the course of their deliberative

process—ruled that recusal was inappropriate, and that

the CAC’s due process rights had not been violated.

Ill. THIS CASE PRESENTS NO IMPORTANT QUES-

TION WHICH NEEDS TO BE ADDRESSED BY

THIS COURT.

There is no important question in this case requiring

the Court’s attention. There has not been a rash of leaks

of the decisions of either state or federal appellate courts.

So, at best, the Petition addresses an isolated miscue, not

a problem of systemic proportions or a probiem that di-

rection from this Court would likely cure. Moreover, the

area of the law that the CAC unsuccessfully attempts to

invoke—the due process constraints on judicial disqual-

ification decisions—has just recently been visited by this

Court. No further development of this area by this Court

would seem necessary at this time (particularly the type

of development that the facts of this isolated case would

produce). It would be far better to let the lower courts

apply the guidance provided in this Court’s recent deci-

sions in this area."

Before closing, a few words should be said about the

nature of the CAC’s attack upon Justice Givan. If the

CAC’s allegations against Justice Givan were confined

to the distinct questions of law presented here, with the

protocol and dignity such discourse demands, it would be

one thing. In such a case PSI would undoubtedly dispute

the CAC’s legal theories (as it has here), but as a foun-

dational matter, PSI would not be challenging the CAC’s

right to assert those theories, and see them succeed or

fail. Here, however, the CAC’s conduct has made it clear

that this is not just a legal attack, it is a personal attack

against the reputation of a distinguished state supreme

court jurist. This anti-judicial campaign, and its vindic-

tiveness, are plainly not appropriate for Supreme Court

involvement.

It has become increasingly clear that not only does the

CAC dislike losing legal battles, it is quick to personalize

its defeats. Thus, the CAC has not been satisfied with

merely seeking the retroactive recusal of Justice Givan

before this Court; the CAC has seen it necessary to con-

currently and publicly lambaste Justice Givan, sarcasti-

cally “awarding” him its “Burned Out Light Bulb

Award.” The Indianapolis Star, June 23, 1991, at p. C2.

The CAC’s labeling of Justice Givan—a respected justice

of the Indiana Supreme Court for more than two dec-

17The interests of comity and federalism also counsel against

reviewing another case in this area in such a short period of time.

State supreme court justices—like members of this Court—take

oaths to uphold the Constitution, and the CAC essentially is asking

this Court to second-guess its state court counterparts in discharg-

ing their obligation to safeguard due process guarantees. As this

Court observed in Argersinger v. Hamlin, 407 U.S. 25, 38 (1972),

“[wle do not sit as an ombudsman to direct state courts how to

manage their affairs but only to make clear the federal constitu-

tional requirement.” This is not the proper case for such review,

and not the proper time.

ades—-its chief justice for most of those years—as a

burned out light bulb shortly after it filed its certiorari

petition in this Court is beyond the pale. He deserves

better, as thousands of Indiana lawyers can attest.

Mocking Justice Givan scarcely comports with the proper

appearances that the CAC has so emphatically advo

cated.*®

There is no dispute that Justice Givan misunderstood

the release date of the denial of transfer order. But

“(j]udges being human, ‘slips’ occur. Justice would not

be advanced if a ‘slip’ coiuid be the basis for a forced

disqualification of a high court judge who feels that he

can approach the case impartially.” Nadelmann, Dis-

qualification of Constitutional Court Judges for Alleged

Bias? 52 Judicature 27, 31 (1968).

Although nothing may prevent the CAC from grasping

at legal straws—and the few of those it has grasped are

not “certworthy”—it would be wrong to give this ad

hominem campaign against Justice Givan the attention

and status of a Supreme Court case.

18 Justice Givan is only the latest target. When the CAC was

arguing its case before the Indiana Court of Appeals, it was a

member of the Public Service Commission of Indiana who was

the target of its attacks, also on the basis of a luncheon meeting—

this time with creditors of PSI. The court of appeals rejected the

CAC’s allegation of bias. Pet. App. 15a.

Pi ae

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

* Counsel of Record

Respectfully submitted,