Opposition Brief — Doctor v. General Electric Capital Corp.

Supreme Court, U.S,

| FILED

OCT 28 199}

No. 91-176

In the Supreme Court of the United States

OCTOBER TERM, 1991

R.V. Doctor, INC., an Oregon Corporation;

GEORGE E. THOMAS AND LINDA R. THOMAS,

dba R °’. DOCTOR, PETITIONERS,

Vv.

GENERAL ELECTRIC CAPITAL CORPORATION, RESPONDENT.

On Petition for a Writ of Certiorari to the

Oregon Court of Appeals

BRIEF FOR THE RESPONDENT IN OPPOSITION

E. JOSEPH DEAN

Stoel Rives Boley Jones

& Grey

900 S.W. 5th Ave.

Suite 2300

Portland, OR 97204

(503) 294-9459

ANDREW L. FREY

Counsel of Record

EVAN M. TAGER

Mayer, Brown & Platt

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 463-2000

WILSON - EPes PRINTING Co., INC.

- 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

After concluding that petitioners had violated the terms

of a financing agreement between the parties, GECC ob-

tained an ex parte TRO restraining petitioners from sell-

ing or otherwise disposing of inventory in which GECC

had a security interest. The post TRO show-cause hear-

ing initially was scheduled to take place roughly one

month after issuance of the TRO. During that time peti-

tioners declined GECC’s offer to negotiate a change in

the TRO that would enable them to continue to sell in-

ventory, failed to request an expedited hearing, and re-

fused to engage in expedited discovery. Because discov-

ery was not complete at the time of the scheduled hear-

ing, the hearing was rescheduled for a month later. At

that time petitioners stipulated to an indefinite continua-

tion of the TRO. The question presented is:

Whether, under these circumstances, a delay in holding

a show-cause hearing until two months after the issuance

of an ex parte TRO violates the Due Process Clause of

the Fourteenth Amendment.

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TABLE OF CONTENTS

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A.

B.

C.

D.

E.

F.

The Contractual Relationship Between The

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Thomas’s Breaches Of The IFA... 2h SUD abe

GECC’s Effort To Protect Its Security Interest

By Obtaining A Temporary Restraining Order..

Subsequent Proceedings .................2222222222222-00000000--

I csc SveuscwosguavevenceSeons

REASONS FOR DENYING THE PETITION ............

I.

Ii.

PETITIONERS DID NOT TIMELY RAISE,

AND THE STATE COURTS DID NOT

DECIDE, THE FEDERAL DUE PROCESS

ISSUE PRESENTED HERE ..............................

PETITIONERS’ PROCEDURAL DUE PROC-

ESS CHALLENGE TO THE TIMING OF THE

SHOW-CAUSE HEARING IS WHOLLY IN-

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Page

iv

TABLE OF AUTHORITIES

Cases: Page

Cardinale v. Lowisiana, 394 U.S. 437 (1969) .......... 9,13

Connecticut v. Doehr, 111 8. Ct. 2105 (1991) 12

Douglas Nat’l Bank v. Becker, 102 Or. App. 148,

oP 6B UE ee ee een 9

Exxon Corp. V. Eagerton, 462 U.S. 176 (1983) ........ 11

Fuentes v. Shevin, 407 U.S. 67 (1972) .................... 12

Kelly v. McBarron, 258 Or. 149, 482 P.2d 187

0s | SMU Re elo ierbe Senne Silay EAs pee ee 11

Larson Vv. Credit Bureau, 279 Or. 405, 568 P.2d

cece ari ed 11

Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974)... 11,12

Sniadach v. Family Fin. Corp., 395 U.S. 337

CT I EI aA GE: OTE E CE RET e Dcse se RD 12

Street v. New York, 394 U.S. 576 (1969) ..... 11

Webb v. Webb, 451 U.S. 493 (1981) -..000 0. 8

Statutes and Rules:

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Ju the Supreme Comet of the United States

OCTOBER TERM, 1991

No. 91-176

R.V. Doctor, INC., an Oregon Corporation;

GEORGE E. THOMAS AND LINDA R. THOMAS,

dba R.V. DOCTOR, PETITIONERS,

Vv.

GENERAL ELECTRIC CAPITAL CORPORATION, RESPONDENT.

On Petition for a Writ of Certiorari to the

Oregon Court of Appeals

BRIEF FOR THE RESPONDENT IN OPPOSITION

JUDGMENTS BELOW

The trial court’s Findings of Fact and Conclusions of

Law (Pet. App. 90-107) and its Foreclosure Judgment

(id. at 108-124) are unreported. The court of appeals’

order affirming the trial court’s judgment without opinion

(id. at 125-126) is reported at 105 Or. App. 414, 804

P.2d 1231. The Oregon Supreme Court’s order denying

review (id. at 127-128) is reported at 311 Or. 349, 811

P.2d 144.

JURISDICTION

The Oregon Supreme Court’s order denying review was

entered on April 30, 1991. The petition for a writ of

certiorari was filed on July 29, 1991. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1257. For

2

reasons explained more fully below, petitioners’ failure

to raise in timely fashion the federal constitutional claim

presented here deprives this Court of jurisdiction to

review the judgment of the Oregon Court of Appeals

in this case.

STATEMENT

A. The Parties

Respondent General Electric Capital Corporation

(“GECC”) is a corporation specializing in the making

of commercial loans.' During the relevant time period,

petitioner George Thomas, operating under the trade

name R,V. Doctor, was in the business of purchasing

new and used recreational vehicles and reselling them to

consumers.” Thomas financed his acquisition of such ve-

hicles by means of loans from GECC and other lenders.

B. The Contractual Relationship Between The Parties

On September 15, 1986, Thomas entered into an In-

ventory Financing Agreement (“IFA”) with GECC.

Contemporaneously, he executed an addendum to the IFA,

a UCC financing statement, and a personal guaranty in

favor of GECC. Pet. App. 91-92. Pursuant to the terms

of the IFA and its addendum, GECC provided financing

to Thomas for the purchase of new recreational vehicles

to be resold to the public. Jd. at 93.

The IFA and the financing statement together served

to give GECC a security interest both in GECC-financed

vehicles and in all other vehicles owned by Thomas. Un-

1GECC is a wholly owned subsidiary of General Electric

Financial Services, Inc., which in turn is a wholly owned sub-

sidiary of General Electric Company. GECC has no non-

wholly owned subsidiaries in the United States that have

publicly traded shares or debt securities.

? For simplicity’s sake, and because George Thomas was

the principal actor on behalf of petitioners, we will refer to

all petitioners collectively as “Thomas,”

3

der the terms of the IFA, each time Thomas sold a

GECC-financed vehicle he was obliged to repay GECC the

amount financed and to hold all proceeds of the sale in

trust for GECC until such repayment was made. Failure

to do so—known in the trade as a “sale out of trust’”—

constituted a default under the IFA and entitled GECC to

immediate possession of all remaining inventory in which

it held a security interest. Pet. App. 98. A sale out of

trust is a serious matter for lenders because it reduces

the collateral securing the loan.

C. Thomas’s Breaches Of The IFA

In order to ensure that inventory financing borrowers

comply with their obligation not to make sales out of

trust, GECC reserves the right to conduct periodic inspec-

tion of the borrowers’ inventory. In accordance with this

contractual entitlement, GECC employees periodically in-

spected Thomas’s inventory of GECC-financed recrea-

tional vehicles. Pet. App. 93-94. Notwithstanding this

safeguard, Thomas repeatedly violated the prohibition

against sales out of trust and actively attempted to con-

ceal these violations from GECC. As the trial court ex-

pressly found, “commencing in February 1987, Mr.

Thomas’s authorized employees made repeated misrepre-

sentations to GECC’s inspectors for the purpose of caus-

ing them to believe that units sold and paid for were in

fact unsold.” Id, at 94.

In December 1987, GECC received a tip from a former

R.V. Doctor employee that GECC-financed vehicles for

which GECC had not been repaid were missing from the

R.V. Doctor lot. The former employee further stated

that when employed by Thomas he had been instructed

to tell GECC inspectors that missing GECC-financed ve-

hicles were at fairs or at the factory being repaired when

in fact they had been sold out of trust. Pet. App. 95.

On December 16, 1987, GECC employee Julie Englund

went to the R.V. Doctor lot to investigate the former em-

ployee’s tip. Ms. Englund discovered that six GECC-

4

financed vehicles were missing from the lot. Respondents

have subsequently admitted that each of those vehicles had

been sold out of trust. Pet. App. 95-96. At the time Ms.

Englund discovered the out-of-trust sales, petitioners

owed GECC $121,356.74 in principal alone in connection

with the financing of the six missing units. Tr. 208; P.

Ex. 15.

D. GECC’s Efforts To Protect Its Security Interest By

Obtaining A Temporary Restraining Order

On December 17, 1987, GE€C’s attorney notified

Thomas’s counsel that later that day GECC would seek

a temporary restraining order (“TRO”) preventing

Thomas from selling or otherwise disposing of any units

in which GECC had a security interest without court

approval. Thomas’s counsel indicated that he would be

unable to appear in court that afternoon. Pet. App. 97-

98.5 Pursuant to its rights under Oregon law, GECC

filed a sworn petition for a TRO in state court on De-

cember 17. Finding ‘“‘probabl[e] cause to believe that im-

mediate and irreparable injury, damage or loss to

[GECC] is imminent,” the court granted a TRO on the

condition that GECC post a bond in the amount of

$10,000 to cover damages “incurred or suffered by any

party who is found to have been wrongfully enjoined or

restrained * * *.” Id. at 29.

The TRO required Thomas to appear at a hearing to

show cause why the property that was the subject of

the order should not be permanently delivered to GECC.

Pet. App. 32. Rule 83(G) (1) of the Oregon Rules of

Civil Procedure provides that such hearings are to take

place between three and seven days after service of the

TRO unless the plaintiff requests that the hearing be

held at a later date. Pursuant to that provision, GECC

3 The record reflects that Thomas’s counsel elected to attend

an aerobics class instead of the hearing on the temporary

restraining order. Tr. 625-626.

5

requested that the show-cause hearing be s*« more than

seven days after service of the TRO. The court accord-

ingly set the hearing for January 19, 1988. Pet. App. 32.

E. Subsequent Proceedings

Immediately after the issuance of the TRO on Decem-

ber 17, the parties agreed to meet the following morning

to discuss ways of modifying the TRO to facilitate

Thomas’s continued sale of recreational vehicles, while

still protecting GECC’s rights. Pet. App. 98. The par-

ties and their counsel did meet briefly the following morn-

ing, but petitioners’ counsel terminated the meeting,

stating essentially that the TRO had already, in the few

hours it had been in existence, effectively put petitioners

out of business. Tr. 390-392. Accordingly, no modifica-

tion was pursued. Pet. App. 99.

Negotiation having failed, GECC’s counsel proceeded

to seek expedited discovery in order to be prepared for

the scheduled January 19 hearing. However, Thomas’s

counsel declined to engage in expedited discovery. As a

result, by January 14, 1988 the key witnesses had not

been deposed and Thomas had yet to turn over the criti-

cal documents to GECC. Pet. App. 36-47, 48 (transcript

of Jan. 14, 1988 hearing). On that day, the court held

a hearing to resolve the discovery dispute. At the hear-

ing, Thomas’s counsel continued to oppose expedited dis-

covery, insisting that he receive the full 30-day notice

period for depositions (see Or. R. Civ. P. 39.A, 7.C(2))

and 45-day period for responding to document requests

(see Or. R. Civ. P. 43.B) provided under Oregon law.

Pet. App. 48-49. As a result, GECC moved for a post-

ponement of the show-cause hearing because petitioners’

refusal to provide any discovery made the scheduled

January 19 date infeasible.

The court ordered reciprocal discovery on an expedited

basis and granted a postponement of the hearing, in part

because of the delay in conducting discovery and in part

6

because of some unanticipated changes in the court’s own

schedule. Pet. App. 59-61. After the parties conferred

with the docket clerk regarding dates that were con-

venient to all parties and the court, the hearing was re-

scheduled to February 23, 1988.

On that date, the parties stipulated to the continuation

of the TRO as to specified units. Pet. App. 64-69. The

agreement permitted, but did not require, GECC to re-

possess and dispose of most of the specified units and to

apply the proceeds against the debt those units secured.

Id. at 67. The agreement also permitted other creditors

to repossess vehicles that they had financed and that

initially had been subject to the restraining order. /d. at

66. Finally, the agreement provided that petitioners did

not waive their claims for conversion, wrongful restraint,

and commercially unreasonable sale or disposition of the

collateral. Jd. at 68-69.

F. The Decisions Below

On April 4, 1989, the parties went to trial on GECC’s

claims against petitioners and six counterclaims by peti-

tioners against GECC. The six counterclaims, as char-

acterized in petitioners’ amended answer, were: (1)

breach of contract; (2) trespass of chattels; (3) conver-

sion; (4) abuse of civil process; (5) declaratory judg-

ment (that GECC’s disposition of the collateral was com-

+ The key provision of the order embodying the stipulation

is paragraph 5, which provides:

The provisions of the Temporary Restraining Order

and Order to Show Cause herein shall continue in effect

as to all of the recreational vehicle units listed in Exhibit

1 attached hereto and incorporated herein by reference as

if fully set forth, until such time as the same have been

repossessed by or on behalf of plaintiff or until further

order of this court.

The italicized portion appears to have been inadvertently

omitted from petitioners’ Appendix.

7

mercially unreasonable); and (6) accounting. None of

the six counterclaims in the amended answer invoked 42

U.S.C. § 1983, the federal Constitution generally, or the

Due Process Clause of the Fourteenth Amendment in

particular. Nor did the counterclaims demand relief,

even under state law, on the basis of the delay in holding

the show-cause hearing.

Following trial, the court ruled in favor of GECC on

its claims against petitioners, finding Thomas “in de-

fault” under the IFA. Accordingly it held that GECC

was “entitled to relief pursuant to its prayer for fore-

closure.” Pet. App. 102. Because the trial court found

that Thomas was “in default” and that GECC “was en-

titled to relief pursuant to its prayer for foreclosure,” it

is plain that petitioners suffered no harm as a result of

the delay in holding the show-cause hearing.

The court then proceeded to reject each of petitioners’

substantive counterclaims.® The court rejected the breach

of contract claim out of hand. Pet. App. 103. It rejected

the conversion and trespass claims as unsupported by the

-evidence. Jd. at 102. It also held, ‘as a matter of [Ore-

gon| law,” that the evidence did not support an abuse

of process claim. Jd. at 104. Citing two Oregon Supreme

Court decisions, it explained that the evidence “estab-

lishes neither an ulterior purpose nor a willful act in the

use of process not proper in the regular conduct of the

proceeding.” Jbid. Finally, the court found no merit in

petitioners’ request for a declaration that GECC’s dispo-

sition of the collateral was commercially unreasonable.

Id. at 105-106.

5 On the accounting counterclaim, the court held that peti-

tioners were entitled to $5,939.91, but stayed its judgment be-

cause that entire amount was likely to be more than offset by

the amount of attorneys’ fees and costs to be awarded to

GECC. Pet. App. 106.

8

Petitioners appealed to the Oregon Court of Appeals,

contending, inter alia, that the timing of the show-

cause heariny violated the Due Process Clause of the

Fourteenth Amendment to the U.S. Constitution. GECC

pointed out that this issue had not been timely raised

before the trial court. The court of appeals subsequently

_ affirmed the trial court’s judgment in all respects without

written opinion.

Petitioners then sought review in the Oregon Supreme

Court. Again, they attempted to raise a federal due

process challenge to the timing of the hearing, and again

GECC pointed out that that claim had not been preserved

in the trial court. The Oregon Supreme Court denied

review.

REASONS FOR DENYING THE PETITION

I. PETITIONERS DID NOT TIMELY RAISE, AND

THE STATE COURTS DID NOT DECIDE, THE

FEDERAL DUE PROCESS ISSUE PRESENTED

HERE

“It is a long-settled rule that the jurisdiction of this

Court to re-examine the final judgment of a state court

can arise only if the record as a whole shows either ex-

pressly or by clear implication that the federal claim was

adequately presented in the state system.” Webb v. Webb,

451 U.S. 493, 496-497 (1981).° To effectuate this ex-

® The policies underlying this settled jurisdictional principle

are well understood. First, if the federal issues have not been

properly raised in the state courts, “the record is very likely

to be inadequate, since it certainly was not compiled with those

questions in mind.” Second, principles of federalism mandate

“that state courts be given the first opportunity to consider the

applicability of state statutes in light of [federal] constitu-

tional challenge, since the statutes may be construed in a way

which saves their constitutionality.” Finally, if it had been

clearly presented below, the federal issue might have “befen]

blocked” by the state courts on an adequate and independent

9

tremely important jurisdictional rule, this Court’s Rule

14.1(h) requires that petitions seeking review of state

court judgments contain an express statement of how

and when the federal issue was raised and resolved in

the state courts.’ Petitioners have wholly failed to com-

ply with the requirements of Rule 14.1(h). Nowhere in

their statement of the case do they specify the stage in

the proceedings at which they first raised the federal

question presented here. Nor do they state “the method

or manner of raising” that question. The reason is that

they did not raise a due process challenge to the timing

of the show-cause hearing until after trial. In Oregon,

that is clearly too late. See Or. R. App. P. 5.45(2);

Douglas Nat'l Bank v. Becker, 102 Or. App. 148, 146,

792 P.2d 1246, 1248 (1990).

None of petitioners’ counterclaims even hinted at a

federal issue; indeed all were predicated upon principles

of state law. Moreover, none of the counterclaims even

remotely suggested that it was the timing of the show-

cause hearing—as opposed to the issuance of the TRO in

the first place or other actions of GECC not at issue ~

here—that petitioners were contesting. For example, the

state ground, thereby rendering review by this Court unneces-

sary. Cardinale Vv. Louisiana, 394 U.S. 437, 439 (1969).

7 Specifically, the Rule provides, in relevant part:

If review of a judgment of a state court is sought, the

statement of the case shall * * * specify the stage in the

proceedings, both in the court of first instance and in the

appellate courts, at which the federal questions sought to

be reviewed were raised; the method or manner of raising

them and the way in which they were passed upon by

those courts; and such pertinent quotation of specific por-

tions of the record or summary thereof, with specific ref-

erence to the places in the record where the matter ap-

pears * * * as will show that the federal question was

timely and properly raised so as to give this Court juris-

diction to review the judgment on a writ of certiorari.

10

critical allegation in the trespass counterclaim was that

“the [petitioners] were entitled to immediate possession

of the units and/or keys to the units * * *. [GECC and/

or its employees] took the keys to units numbered 1-51

with intent to interfere with the [petitioners’] right to

possession of said units and/or keys to said units.”

Defendants’ Amended Answer { 60. Similarly, the core

allegation in the conversion counterclaim was that “the

[petitioners] maintain an ownership interest in [enumer-

ated units] * * *. [GECC and/or its employees] took the

keys to said units with intent to permanently deprive

[petitioners] of their ownership interest and right to

immediate possession of said units.” Jd. 63. Finally,

the central allegation for the abuse of process counter-

claim was:

[GECC] obtained [the] temporary restraining or-

der without a lawful basis * * *. [GECC’s] actions

in obtaining this restraining order without a lawful

basis were willful and [were] not proper in the reg-

ular conduct of such proceedings; and was * * * a

form of coercion to obtain a collateral advantage not

properly included in these proceedings, and was done

with the ulterior purpose of attempting to pressure

or coerce [petitioners] into waiving any claims

against [GECC] for its improper conduct * * *.

Id.) 66.

Not surprisingly, in view of the fact that the counter-

claims did not contest the timing of the hearing and gave

no indication that petitioners were invoking the Due

Process Clause of the Fourteenth Amendment, the trial

court rejected the counterclaims without even mentioning,

let alone resolving, the federal constitutional issue pre-

sented here. Indeed, the court’s findings of fact and con-

clusions of law focused expressly and exclusively on state

law. For example, in rejecting the abuse of process claim

(which is the only one of petitioners’ counterclaims that

even arguably approaches the issue raised here), the court

concluded :

11

The evidence presented does not, as a matter of

law, constitute a claim for abuse of process. It es-

tablishes neither an ulterior purpose nor a willful

act in the use of the process not proper in the reg-

ular conduct of the proceeding. Kelly v. McBarron,

258 Or 149, 154 (1971); Larson v. Credit Bureau,

279 Or 405 (1977).

Pet. App. 104. So plain is it that no federal constitu-

tional challenge to the timing of the show-cause hearing

was timely raised or decided in the trial court that the

court of appeals affirmed the trial court’s judgment with-

out even issuing an opinion. When the state courts have

not expressly ruled on a federal constitutional claim, “it

will be assumed that the omission was due to want of

proper presentation in the state courts, unless the [peti-

tioner] can affirmatively show the contrary.” Street Vv.

New York, 394 U.S. 576, 582 (1969). See, e.g., Exxon

Corp. Vv. Eagerton, 462 U.S. 176, 181 n.3 (1983) (con-

cluding that this Court lacked jurisdiction where state’s

highest court did not address federal claim, and an ex-

amination of the trial court’s opinion revealed that that

court had not decided the issue).

Because petitioners did not timely raise, and the state

courts did not resolve, the federal due process issue pre-

sented here, the petition for certiorari must be denied.

II. PETITIONERS’ PROCEDURAL DUE PROCESS

CHALLENGE TO THE TIMING OF THE SHOW-

CAUSE HEARING IS WHOLLY INSUBSTANTIAL.

This Court has indicated that when, as here, state law

permits the ex parte issuance of a prejudgment remedy

against a debtor, due process generally requires that the

debtor be given an “early opportunity to put the creditor

to his proof.” Mitchell v. W.T. Grant Co., 416 U.S. 600,

609 (1974).° The gist of petitioners’ constitutional claim

8 Some kinds of prejudgment remedies are so onerous to

the party against whom they are invoked that only a pre-

12

is that Or. R. Civ. P. 83(G)(1) violates due process

because, as applied in this case, it prevented them from

having “an early opportunity” to put GECC to its proof.

This Court has not had occasion to determine the

amount of time within which a post-deprivation hearing

must occur in order for the prejudgment remedy proce-

dure to pass constitutional muster, but the present case

is certainly the wrong vehicle in which to begin that nec-

essarily case-by-case inquiry. See generally Mitchell, 416

U.S. at 610 (this Court will “[c]onsider[] the [State’s]

procedure as a whole” in determining whether “the State

has reached a constitutional accommodation of the re-

spective interests of [debtor and creditor]”). From the

very moment they were aware that GECC would seek a

TRO, petitioners and their counsel engaged in a course

of conduct that was squarely inconsistent with their pres-

ent assertion that they wanted an immediate hearing.

First, petitioners’ counsel was afforded the opportunity

to appear in court when the request for TRO was pre-

remedy hearing will satisfy due process. See, e.g., Connecticut

v. Doehr, 111 S. Ct. 2105 (1991) (provision permitting pre-

judgment attachment of tort defendant’s property) ; Fuentes

Vv. Shevin, 407 U.S. 67 (1972) (prejudgment replevin statute) ;

Sniadach Vv. Family Fin. Corp., 395 U.S. 337 (1969) (pre-

judgment garnishment procedure). However, when, as here,

the creditor has a property right in the property at issue and

the debtor’s continued unfettered control over the property

might serve to permanently deprive the creditor of its prop-

erty right, a pre-deprivation hearing is not necessary as long

as other safeguards, including a timely post-deprivation hear-

ing, are available. See Mitchell, 416 U.S. at 609; see also

Doehr, 1118S. Ct. at 2115. Petitioners do not deny that Oregon

affords the other kinds of safeguards necessary to ensure that

a state’s prejudgment remedy procedure comports with due

process—e.g., the requirement that the moving party post a

bond and the establishment of a judge (rather than a sheriff

or notary) as decisionmaker. See Mitchell, 416 U.S. at 616,

620 n.14; Doehr, 111 S. Ct. at 2116-2119 (plurality opinion).

13

sented, but passed it up in order to attend an aerobics

class. Had he appeared at that hearing or sent a replace-

ment, he could have contested the allegations upon which

the petition for TRO was based as well as GECC’s re-

quest to hold the show-cause hearing more than seven

days after issuance of the TRO.

Second, when presented the next morning with an

opportunity to negotiate a modification of the TRO that

would have enabled petitioners to continue selling recrea-

tional vehicles, while at the same time protecting GECC’s

security interest,® petitioners and their counsel declined

to negotiate, stati..g that the TRO already (in less than

24 hours) had put them out of business. If petitioners

really were concerned that postponing the hearing would

cause them harm, they should have taken the opportunity

that was presented to them to mitigate the effects of

the TRO.

Third, even after they declined to engage in negotia-

tions to ameliorate the effects of the TRO, petitioners

retained the option of filing a motion informing the court

that the delay was harming them and requesting an

expedited hearing. They never did so.’

Fourth, by refusing to engage in expedited discovery,

petitioners themselves directly contributed to more than

half of the delay they challenge here. GECC attempted

® For example, the TRO could have been modified to permit

petitioners to sell vehicles on the condition that payment be

made either directly to GECC or into an escrow account that

would be applied against petitioners’ debt.

10 By failing to try this route, petitioners have deprived the

Oregon courts of the opportunity to interpret their own pro-

cedures ; they instead ask this Court to assume that the Oregon

courts would have selected an interpretation that would have

rendered those procedures subject to constitutional question.

This Court typically declines such invitations. See Cardinale,

394 U.S. at 439,

14

to obtain the necessary documents and take the necessary

depositions two weeks in advance of the original hearing

date, but petitioners-insisted that they be given the full

45-day period for responding to document requests and

30-day notice period for depositions that are provided for

under Oregon law. They gambled that by refusing to

engage in expedited discovery they could force GECC into

a hearing for which it was not prepared. They now are

hardly in a position to complain about the court’s decision

to reschedule the hearing so that discovery could be

completed.

Finally, after all was said and done, petitioners volun-

tarily stipulated to a continuation of the TRO well beyond

the scheduled February 23 hearing date. That act is

squarely inconsistent with their present assertion that

they desired an immediate hearing.

Thus, the delays in this case and the harm (if any)

stemming from them are as much a product of the peti-

tioners’ strategic behavior as anything else. This plainly

is the wrong case in which to make new law on the issue

of how prompt a post-deprivation hearing must be in

order to comport with due process.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

E. JOSEPH DEAN ANDREW L. FREY

Stoel Rives Boley Jones Counsel of Record

& Grey EVAN M. TAGER

900 S.W. 5th Ave. Mayer, Brown & Platt

Suite 2300 2000 Pennsylvania Ave., N.W.

Portland, OR 97204 Washington, D.C. 20006

(503) 294-9459 (202) 463-2000

OCTOBER 1991