Opposition Brief — Gedan v. Partington

In The —_ sete

Supreme Court of the United States

October Term 1989

+

JOSEPH M. GEDAN, et al.,

Petitioners,

v.

EARLE A. PARTINGTON, and HAWAII

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

Respondents.

+—

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

o—-

RESPONDENT PARTINGTON’S BRIEF

IN OPPOSITION

+

Earte A. PARTINGTON

PARTINGTON & FoLey

2450 Pacific Tower

1001 Bishop Street

Honolulu, Hawaii 96813

(808) 526-9500

Respondent pro se

coon ey eae

QUESTIONS PRESENTED

1. Whether a request for sanctions for taking a friv-

olous appeal is itself frivolous when the arguments sup-

poriing the appeal, although not ultimately successful,

are far from frivolous and are even excellent?

2. Whether a judgment by a court of appeals sanc-

tioning appellees for a frivolous request for sanctions for

an allegedly frivolous appeal was well founded in law

when the opinion cited Fed. R. App. P. 11, as incorpo-

rated by the court of appeals into its rules, as the source

oi: its power to impose such sanctions?

3. Whether appellees upon whom sanctions are im-

posed for filing a frivolous request are afforded due

process when (a) notice that sanctions will be considered

is provided by way of requests for such sanctions in the

reply brief and an amicus brief, (b) appellees decline to

request additional briefing on the issue, and (c) a hearing

on all issues in the case is held?

ii

TABLE OF CONTENTS

Page

CUESTA PIECED oc ccccccccccncenccccseves i

pe Rw ee rer iii

eR GAS bras cit weibedescbiens ence «ee 1

—yyYe ee gy) oe a eee 2

REASONS FOR DENYING THE WRIT............. 4

A. It was highly appropriate for the court of ap-

peals to sanction Petitioners for their request

for sanctions for the allegedly frivolous appeal

taken by Respondent Partington, because an

appeal based on “excellent” arguments is, by

any objective standard, discrenable from a

STEVOUGUS BRDORE. «os sins 6> 40.5 uPA teks Waelnhns oss 4

B. The Ninth Circuit’s judgment sanctioning Peti-

tioners for a frivolous request is consonant

with the court’s power and is harmonious with

decisions in other circuits; that the opinion re-

lied on the Ninth Circuit’s incorporation of

Fed. R. Civ. P. 11 is irrelevant ............... 6

C. Petitioners were afforded due process as to the

imposition of sanctions, for Petitioners were

provided notice and an opportunity to be

heard before sanctions were imposed ........ 9

AGRO ocd ssn svns cheno bhvtedeeeeeneaseateds 13

iii

TABLE OF AUTHORITIES

Page

Cases

Aircraft Trading & Services, Inc. v. Braniff, Inc., 819

Oe EAEe Cie CEs, FPGA) oc nc ecccccscccsccccccccecs 8

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)..............0005- 9

In re Curl, 803 F.2d 1004 (9th Cir. 1986)........ 7, 8, 12

In re Mooney, 841 F.2d 1003 (9th Cir. 1988)......... 7, 8

Mathews v. Eldridge, 424 U.S. 319 (1976).......... 10, 11

Meeks v. Jewel Co., 845 F.2d 1421 (7th Cir. 1987) ...7, 12

Middlesex County Ethics Comm. v. Garden State Bar

Fe a le ee EG i ks Kc ieee ices See ees 3, 5, 6

Miranda v. Southern Pacific Transp. Co., 710 F.2d 516

RRSP LE a eer eT TTS ee er ee Tree Tee 12

Partington v. Gedan, 880 F.2d 116 (9th Cir. 1989). passim

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ....... 4,5

Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) ..... 9

Rockwell Int'l Credit Corp. v. United States Aircraft

Ins. Group, 823 F.2d 302 (9th Cir. 1987)........... 7,8

State v. Clarke, Haw. S. Ct. No. 10041 ............. 2, 11

Thigpen v. Roberts, 468 U.S. 27 (1984)................. 9

Withrow v. Larkin, 421 U.S. 35 (1975) .............006- 5

Younger v. Harris, 401 U.S. 37 (1971)........... 3, 4, 5, 6

iv

TABLE OF AUTHORITIES - Continued

Page

Zinermon v. Burch, 58 U.S.L.W. 4223 (U.S. Feb. 27,

DE tien ca eebc Cah eeu cones lek neki deeded 9, 10, 11

CONSTITUTIONAL PROVISIONS

eee Sn A rs CC, . can saws odutlecbevdbaes 2

ey Se IE PO Ls CVS aire vb n Whee cade eodbek mbes 2

See ee EE ord ee ablce deat ower aeeencess 2

pe as CI. se ew bd dubs vawwaracwebas 2

STATUTORY PROVISIONS

ee ad bs 8 6n eks Fike eee do ab Cee eka 2

Court RULES

I ee eee 8

oo he OO Pre Per ete rer oe 9, 10

Fs MN Oe IY Socio. 0'0'5 30:8 onan eakcenen cae

i ae al 3, 5, 6, 7, 8

I eg i ae ee 13

OTHER AUTHORITIES

Lewis Carroli, Alice in Wonderland and Through

the Looking Glass (Grosset & Dunlap 1948)........ 9

No. 89-1506

vv

In The

Supreme Court of the United States

October Term 1989

+

JOSEPH M. GEDAN, et al.,

Petitioners,

V.

EARLE A. PARTINGTON, and HAWAII

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

Respondents.

,‘

vy

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

RESPONDENT PARTINGTON’S BRIEF

IN OPPOSITION

—&

INTRODUCTION

Respondent Earle A. Partington respectfully requests

that the petition for a writ of certiorari in No. 89-1506 be

denied. In No. 89-1506, Petitioners Joseph M. Gedan and

Howard T. Chang seek review of the judgment of the

United States Court of Appeals for the Ninth Circuit

sanctioning them for their frivolous request for sanctions

for an allegedly frivolous appeals taken by Partington.

The points raised by Gedan and Chang are of little note

and certainly fail to raise special or important reasons

under Supreme Court Rule 10.1 for the writ to be granted.

A.

vy

STATEMENT OF THE CASE

On March 9, 1987, Respondent Partington filed suit in

the United States District Court for the District of Hawaii

under 42 U.S.C. §1983 against Petitioners Gedan and

Chang to prevent them from conducting an attorney dis-

ciplinary proceeding against Partington in deprivation of

his rights under the United States Constitution, including

the right to free speech, guarantees of due process and

equal protection, and the right to counsel, under the First,

Fifth, Sixth, and Fourteenth Amendments. A2,! A8-9;

Partington v. Gedan, 880 F.2d 116, 117, 119 (9th Cir. 1989)

(the opinion below). The Ninth Circuit’s description of

the attorney disciplinary proceeding and the underlying

case (namely, State v. Clarke, Haw. S. Ct. No. 10041) is

printed in the Appendix to Petitioners’ Brief. See A2-9;

880 F.2d at 117-20.

On July 1, 1987, in response to a motion filed by the

Hawaii Association of Criminal Defense Lawyers

(HACDL), which is a Respondent here, the district court

granted HACDL permission to file a brief as amicus cur-

iae; at the same time, the district court dismissed Part-

ington’s complaint the ground of abstention under

1 The abbreviation “A” followed by a page number is used

to refer to a particular page of the Appendix to the Petition for

Certiorari. (The same notation was used by Petitioners.)

Younger v. Harris, 401 U.S. 37 (1971), as applied in Mid-

dlesex County Ethics Committee v. Garden State Bar

Association, 457 U.S. 423 (1982). A9; 880 F.2d at 120.

Respondent Partington appealed to the Ninth Circuit

and filed his opening brief. See A97-147. Petitioners Ged-

an and Chang, in their answering brief, requested that

sanctions be imposed against Partington pursuant to Rule

11 of the Federal Rules of Civil Procedure (FRCP), Rule 38

of the Federal Rules of Appellate Procedure (FRAP), or

various statutory provisions. A149-50, A150-51, A167,

A188-89. Stating that the “objective good faith” standard

of Rule 11 applied to arguments “made on appeal” (citing

Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579, 1583 (9th

Cir. 1987)), Gedan and Chang argued for Rule 11 sanc-

tions because it was “apparent” that Partington’s appeal

was “meritless.” A189.

On the reply brief, Partington contested Petitioners’

claim that “each and every issue raised by him [was]

utterly without merit,” A191, and requested the imposi-

tion of Rule 11 sanctions against Gedan and Chang. A192.

On the amicus curiae brief, HACDL pointed to the “chill-

ing effect on constitutional rights” of unwarranted sanc-

tions in cases such as this one; HACDL expressed

approval of the sanctions against Gedan and Chang as

requested by Partington and asked for sanctions on its

own behalf as well. A214-15.

The arguments on the merits, as raised by Partington

and HACDL, were later unanimously characterized as

“excellent, although not ultimately meritorious” by the

Ninth Circuit (A37, A38, A81; 880 F.2d at 131, 148), which

affirmed the cistrict court’s judgment but sanctioned Pe-

titioners Gedan and Chang for requesting sanctions

against Partington for taking an allegedly frivolous ap-

peal. A35-38; 880 F.2d at 130-31. Judge Reinhardt dissen-

ted on the merits and would have decided in favor of

Respondent Partington. A81; 880 F.2d at 148.

—

REASONS FOR DENYING THE WRIT

A. It was highly appropriate for the court of ap-

peals to sanction Petitioners for their request

for sanctions for the allegedly frivolous appeal

taken by Respondent Partington, because an

appeal based on “excellent” arguments is, by

any objective standard, discernable from a friv-

olous appeal.

Gedan and Chang argue that their request to the

court of appeals for sanctions against Partington for tak-

ing an allegedly frivolous appeal was “at least colorable”

or “at least arguable” because they had argued that

Younger abstention, particularly as applied in Pennzoil Co.

v. Texaco, Inc., 481 U.S. 1 (1987), made the result of the

appeal “beyond debate.” P18-19.2 Gedan and Chang fur-

ther argue that if Younger abstention did not apply, “col-

orable arguments could be made that, [Partington’s

constitutional] arguments were plainly disposed of by

controlling precedent.” P20 n.8 (emphasis added).

Their argument is indistinguishable from a statement

that they believed their arguments would prevail. The

2 The abbreviation “P” followed by a page number is used

to refer to a particular page of the Petition for Certiorari.

standard for judging a request for sanctions for frivolity,

however, is not whether the request was “colorable” or

whether they believed they would prevail. As Gedan and

Chang pointed out below (in their reply brief in the Ninth

Circuit), the standard for imposing sanctions on appeal is

the “objective good faith” standard of Rule 11. A189.

On the appeal, the close questions involved excep-

tions to Younger abstention principles and the application

of those principles in Middlesex: should Middlesex, which

also involved attorney disciplinary proceedings, be dis-

tinguished from the instant case, or should Middlesex be

considered dispositive? Was the state tribunal biased on

the merits of the proceeding? Had it prejudged the case?

In particular, did the tribunal meet the impartiality re-

quirement of Withrow v. Larkin, 421 U.S. 35 (1975)? Was an

adequate opportunity available to raise constitutional

challenges? Did extraordinary circumstances foreclose

Younger abstention? Cf. A21-35, 880 F.2d at 124-30 (major-

ity op.) with A51-81, 880 F.2d at 136-48 (Reinhardt, J.,

dissenting). As Partington argued in his opening brief in

the Ninth Circuit, see A127-33, and as the dissenting

judge correctly pointed out, Withrow foreclosed Younger

abstention because a favorable second decision by the

same tribunal in Partington’s case would constitute an

implicit admission that its first decision was erroneous.

A66-67, 880 F.2d at 142-43 (Reinhardt, J., dissenting).

Gedan and Chang would ignore these questions and

rely on Pennzoil, even though Pennzoil presented “an

unusual fact situation,” 481 U.S. at 17, involving as it did

the applicability of Younger abstention to Texas bond and

lien provisions in postjudgment collection procedures,

particularly in light of the “open courts” provision of the

Texas Constitution, id. at 15, and not involving any situa-

tion remotely similar to attorney disciplinary procedures.

By any objective measure, it is frivolous to ignore the

close questions raised on appeal and to contend that the

arguments were utterly without merit.

This view is confirmed by the Ninth Circuit, which

unanimously determined that “[flar from being frivolous,

Partington’s and [HACDL’s] arguments that Middlesex

did not compel abstention were excellent, although not

ultimately meritorious.” A37, A38, A81; 880 F.2d at 131,

148. Judge Reinhardt was persuaded that Middlesex did

not compel abstention; stating that “Younger abstention is

inappropriate [here],” he would have reversed the district

court and decided in favor of appellant. A81; 880 F.2d at

148 (Reinhardt, J., dissenting). The panel was, therefore,

in unanimous agreement that Respondents’ arguments

were excellent and far from frivolous.

By any objective standard, attorneys should be able

to distinguish an appeal based on excellent arguments

from a frivolous appeal, for the two are nearly at opposite

ends of the spectrum. Gedan and Chang disregarded

their duty to determine whether their claim of frivolity

was well founded. Sanctions against them were, there-

fore, appropriately imposed.

B. The Ninth Circuit’s judgment sanctioning Peti-

tioners for a frivolous request is consonant with

the court’s power and is harmonious with deci-

sions in other circuits; that the opinion relied

on the Ninth Circuit's incorporation of Fed. R.

Civ. P. 11 is irrelevant.

In its decision below, the Ninth Circuit stated that it

has “power to sanction [Petitioners] pursuant to Rule 11

[of the Federal Rules of Civil Procedure as incorporated

in the Ninth Circuit Rules].” A35; 880 F.2d at 130 (citing

In re Mooney, 841 F.2d 1003, 1005 (9th Cir. 1988); Rockwell

Int'l Credit Corp. v. United States Aircraft Ins. Group, 823

F.2d 302, 304-05 (9th Cir. 1987); In re Curl, 803 F.2d 1004,

1007 (9th Cir. 1986)).

Gedan and Chang argue, contrary to the position

they took below,? that Rule 11 does not support the

imposition of sanctions against them because the Ninth

Circuit’s incorporation of Rule 11 “creates a palpable

inter-circuit conflict” with other circuits that do not use

Rule 11. P22. The argument elevates form over substance.

Other circuits agree with the Ninth Circuit that they have

power to sanction frivolous requests for sanctions; the

decisions are harmonious, even though the bases for arriv-

ing at the decisions may be different. See Meeks v. Jewel

Co., 845 F.2d 1421, 1422 (7th Cir. 1987) (imposing

3 When Gedan and Chang requested that the Ninth Circuit

sanction Partington for taking an allegedly frivolous appeal,

they relied primarily on Rule 11 (see A189), although they

suggested other possible bases as well (see A149-50, A150-51,

A167).

Their reliance below on Rule 11 is nowhere mentioned in

their petition for certiorari here. Gedan and Chang repetitively

cite Rule 38, FRAP, as the basis for their request below and

sometimes note that they relied on other — unspecified - au-

thorities. P5 (made their request “under Fed. R. App. P. 38, and

other authority”); P14 (moved for attorneys’ fees and costs

“pursuant to, inter alia, Fed. R. App. P. 38”); P18 (seeking their

rule 35 damages below”); P19 (their “request for Rule 38 sanc-

tions”); P20 (“Petitioners’ Rule 38 motion”).

sanctions on appellee for frivolous request for Rule 38

sanctions); Aircraft Trading & Services, Inc. v. Braniff, Inc.,

819 F.2d 1227, 1236 (2d Cir. 1987) (criticizing appellees’

request for sanctions when it “border[ed] on the frivo-

lous,” and stating that the court will impose penalties for

frivolous request for sanctions).

Further, the Ninth Circuit, unlike other circuits, has

adopted the Federal Rules of Civil Procedure, “whenever

relevant, as part of the rules of [the] court.” Rockwell, 823

F.2d at 304; Curl, 803 F.2d at 1007; Ninth Circuit Rule 1-1

(former Ninth Circuit Rule 5). The Ninth Circuit has thus

incorporated Rule 11 of the Federal Rules of Civil Pro-

cedure into its own rules. Mooney, 841 F.2d at 1005 (citing

Curl, 803 F.2d at 1007). Gedan and Chang suggest that it

is not “clear” that the Ninth Circuit Rules incorporate

Rule 11 (despite Curl, Mooney, and Partington v. Gedan)

and then point out that the rules adopted by the courts of

appeals must be “consistent” with Supreme Court Rules

P23. The implicit suggestion of some inconsistency, with-

out a word of explanation, is not worthy of response.

It is unnecessary, however to decide which rule or

which other authority forms the correct basis for the

Ninth Circuit’s judgment imposing sanctions on Gedan

and Chang, because this Court “reviews judgments, not

* As a subsidiary claim (left undeveloped in the argument

section of their brief), Gedan and Chang state that imposing

Rule 11 sanctions against them “upsets the framework under

which sanctions against appellee parties are to be judged[.]” P17

(emphasis added). Why appellees who burden the court with

frivolous requests should be entitled to preferential treatment

under Rule 11 is left unexplained.

—— - nail ee —————__ TT TS 4 > aul Je po ah—~wi x

opinions,” Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842 (1984), and “may affirm on

any ground that the law and record permit[.]” Thigpen v.

Roberts, 468 U.S. 27, 30 (1984). This Court “recognize[s]

the ‘well-acknowledged’ inherent power of a court to

levy sanctions in response to abusive litigation practices.”

Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980).

Accordingly, the judgment sanctioning Gedan and Chang

was well founded in law.

C. Petitioners were afforded due process as to the

imposition of sanctions, for Petitioners were

provided notice and an opportunity to be heard

before sanctions were imposed.

Gedan and Chang allege deprivation of due process

in that notice was provided, “if at all, for the first time in

the Reply and Amicus Briefs,5 to which no response is

allowed under Fed. R. App. P. 28(c)[.]” P24. They mention

the right to “ ‘some kind of hearing before [being de-

prived] liberty or property.’ ” P23 (quoting Zinermon v.

Burch, 58 U.S.L.W. 4223, 4227-28 (U.S. Feb. 27, 1990)).

Whether they intend to suggest they were denied such a

hearing is unclear.

5 Partington and HACDL wonder why Gedan and Chang

complain of receiving notice “for the first time” when the reply

and amicus briefs were filed, their request for sanctions having

been made in the answering brief. Should sanctions against

Gedan and Chang have been requested for frivolous conduct

before the conduct occurred? One is reminded of the White

Queen, who screamed and shouted before she pricked her

finger with her brooch. See Lewis Carroll, Alice in Wonderland

and Through the Looking Glass, at 219-20 (Grosset & Dunlap

1948).

10

Notice to all parties that sanctions would be consid-

ered occurred as follows: In the answering brief in the

court of appeals below, Gedan and Chang requested sanc-

tions against Partington for having taken an allegedly

frivolous appeal. A189, A149-50, A150-51, A167-68. In

reply, Partington requested sanctions against Gedan and

Chang for their frivolous claim that he had taken a frivo-

lous appeal. A191-92. In the amicus brief, HACDL sup-

ported Partington’s request and entered its own request

for sanctions against Gedan and Chang. A214-15. All

parties were, therefore, on equal — and sufficient — notice

that sanctions against any and all parties would be con-

sidered by the court.

The claim that rule 28(c), FRAP, foreclosed Gedan

and Chang from an opportunity to be heard is without

merit. Gedan and Chang declined even to request addi-

tional briefing on the issue of sanctions, and they further

declined to address the issue in the hearing that was held

- which was a hearing on all issues in the case before the

sanctions were imposed. Opportunities to be heard were

available. Gedan and Chang chose not to take advantage

of their opportunities.

The question of how much process is due depends on

three considerations: (1) the private interest affected, (2)

the risk of an erroneous deprivation of that interest under

the procedures used and the probable value of additional

procedural safeguards, and (3) the government’s interest,

including the burdens imposed by the additional safe-

guards, Zinermon v. Burch, 58 U.S.L.W. at 4227 (citing

Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

11

Gedan and Chang believe they are entitled to ex-

traordinary due process (as to the sanctions) while Part-

ington is entitled to none (as to his underlying claims).

Zinermon and Mathews would have it otherwise. Part-

ington’s interest is to be protected from the severe and

irreparable damage here to his professional reputation

and livelihood, for which there is no state remedy® to

undo the wrong against him from the erroneous adjudica-

tion of ineffectiveness. In contrast, Gedan and Chang’s

interest is a few thousand dollars, which can be returned

to them in the event that the award of sanctions should

be reversed (and incidentally is a small fraction of the

amount Partington must pay to defend his interests and

recover his professional reputation).

For Partington, the Hawaii Supreme Court's final

adjudication that he had provided ineffective assistance

of counsel came in the face of the following: the client

never accused Partington of ineffectiveness, the client

never waived the attorney-client privilege, the issue of

ineffectiveness was neither raised nor briefed by any

party, the Hawaii Supreme Court was not (for it could not

have been) privy to attorney-client communications, and

neither notice not opportunity to defend was allowed. See

A99-100 Consequently, there was a grave risk of Part-

ington being erroneously deprived of constitutional

rights. In stark contrast, for Gedan and Chang, the risk of

6 The most favorable result to Partington in the pending

disciplinary proceeding initiated by the Hawaii Supreme Court

against him in State v. Clarke would be Gedan’s dismissal of the

proceeding, which would leave the ineffectiveness finding in-

tact and the sixth amendment right to counsel in shambles.

12

an erroneous deprivation was truly minuscule because

the parties had presented their arguments for sanctions,

because Gedan and Chang were afforded notice and an

opportunity to be heard, and particularly because the

Ninth Circuit, like other courts of appeals, is well versed

in recognizing frivolous requests. Additional procedural

safeguards for Gedan and Chang “would not have im-

proved the accuracy of the [panel’s] decision [to impose

sanctions].” Miranda v. Southern Pacific Transp. Co., 710

F.2d 516, 525 (1983). The courts are already burdened

with “the task of reading, analyzing, and judging .. . b-

aseless arguments.” In re Curl, 803 F.2d 1004, 1007 (9th

Cir. 1986). The courts of appeals deplore “the frequency

with which lawyers . . . are including in their briefs

groundless requests for Rule 38 sanctions” and the atti-

tude that “it can’t hurt to ask.” A37; 880 F.2d at 130

(quoting Meeks v. Jewel Co., 845 F2d 1421, 1422 (7th Cir.

1987) (per curiam)). Additional procedural safeguards for

Gedan and Chang or others who are sanctioned for frivo-

lous requests would “increase the burden on the court

even further.” Miranda, 710 F.2d at 525.

Gedan and Chang were, therefore, entitled to mini-

mal due process. The due process they received was more

than sufficient, for they were afforded notice and oppor-

tunity to be heard, and a predeprivation hearing was held

even though it was not required. No denial of due pro-

cess can fairly be claimed in this case.

,%

vy

13

CONCLUSION

Gedan and Chang fail to show any “special and

important reasons” for granting the writ as required un-

der Supreme Court Rule 10.1. Subsection (a) of the rule is

inapplicable because the Ninth Circuit’s decision below is

consistent with decisions in other circuits, even though

other circuits have not adopted the Federal Rules of Civil

Procedure. Subsection (b) of the rule, which relates to

state court decisions, is plainly inapplicable here. And

subsection (c) is not applicable because no important

question of federal law is implicated.

For the foregoing reasons, the writ in No. 89-1506

must be denied.

EARLE A. PARTINGTON

PARTINGTON & FOLEY

2450 Pacific Tower

1001 Bishop Street

Honolulu, Hawaii 96813

(808) 526-9500

Respondent pro se