# Opposition Brief — Gedan v. Partington > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0952%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 497 U.S. 1020 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0952%3A2. Public record. Not legal advice.