# Opposition Brief — Doctor v. General Electric Capital Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 967

## Text

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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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--

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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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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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9

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2457%3A2. Public record. Not legal advice.