Reply Brief — Gedan v. Partington

Supreme Court of the United Stz

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

+

PETITIONERS’ REPLY MEMORANDUM

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WarreN Price, III *

Attorney General

State of Hawaii

*Counsel of Record

Corinne K. A. WATANABE

First Deputy Attorney General

State of Hawaii

STEVEN S. MICHAELS

Deputy Attorney General

State of Hawaii

Hale Auhau

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1365

Coursel for Petitioners

(Respondents in No. 89-1531)

I.

II.

Il.

i

TABLE OF CONTENTS

Page

SUMMARY OF ARGUMENT. ...............-- 1

pe, MRO ies eta ee ee eye Pee rE ee ere 2

A. Review Should Be Granted to Correct the

B.

Court of Appeals’ Departure, in Punishing

Petitioners’ est for Appellate Damages,

from Settled Abstention and Constitutional

PHOCOIUB ie ose .cin ss srowe reiscice’s deceneebcveecs

Review Should Be Granted to Correct the

Ninth Circuit’s Expansive Invocation of

Rule 11 in the Appellate Courts..........:

Review Should Be Granted to Correct the

Court of Appeals’ Departure from Settled

Procedure in Awarding Sanctions..........

CAPPS vin wesc bap oe bonevc$eed) or 35 <6o't

ii

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ............ 5

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930)....... 9

Christianson v. Colt Industries Operating Corp., 486

UL Fe RE 6's hacen veh a5 455 abe ede Nees os 3

Cleveland Board of Education v. Loudermill, 470 U.S.

Be SI es 0504 00k bs nun sgn eubapheseueaeee sexe ss « 9

Cooter & Gell v. Hartmarx, 58 U.S.L.W. 4763 (U.S.

Une 31, TOG) vivk bab oS oe ccd bu suawes i, a ©, 7, 9, 10

DeBartolo Corp. v. Florida Gulf Coast Trades Council,

i ek pe SRN To Ye eee 4

First Lutheran Church v. Los Angeles County, 482

CF De EOD 5c 5 <5 ibe INE a hap has PE hoe ass 6

Hutto v. Davis, 454 U.S. 370 (1982)...............00-- 5

Illinois v. Gates, 462° U:S. 213 (1983) .............5-05: 6

Middlesex County Ethics Comm'n v. Garden State Bar

POE Gg ERE RE: Tad AAO s 6 5 5h ink cs Celene a es oes 2, 3

Northwest Acceptance Corp. v. Lynwood Equipment

Inc., 841 F.2d 918 (9th Cir. 1988).................-. 8

O’Connor v. Donaldson, 422 U.S. 563 (1985).......... 10

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

Peralta v. Heights Medical Center, 485 U.S. 80 (1988) ..... 6

Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) ..... 6

Saint Francis College v. Al-Khazraji, 481 U.S. 604

Aaa AGA ee o4y 600 ds baad Kode eh anibesatiriescecoss 9

United States v. Stanley, 483 U.S. 669 (1987)........... 5

TABLE OF AUTHORITIES - Continued

| Page

STATUTES -

28 U.S.C. § ee Oe ae pie knetseveesNe ee

RULES

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ED Cg os i dnc ccducnctevtosacess Oy Op OO

Te LEE OCT Sy VON SEC eM Oe a ER Ce ee eee ee ee Se Pe ey eee

No. 89-1506

_

ne 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.

+

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

>

PETITIONERS’ REPLY MEMORANDUM

+

I. SUMMARY OF ARGUMENT.

Respondent Earle A. Partington’s Brief in Opposition

proves why the sanctions ordered by the court of appeals

against Petitioners here (the “State Officials”) erode this

Court’s precedents, and otherwise merit review and

reversal.

As the judgment below also conflicts with Cooter &

Gell v. Hartmarx, No. 89-275 (U.S. June 11, 1990), the

Court may wish to grant the petition, vacate the judg-

ment, and remand for further consideration in light of

Cooter & Gell v. Hartmarx.

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In any case, the Petition in No. 89-1506 should be

granted to correct the Ninth Circuit’s departure, in its

sanctions judgment, from principles of comity, equity,

and restraint, and its improper invocation of Civil Rule 11

summarily to punish appellee-parties who seek their Rule

38 damages on appeal.

Il. ARGUMENT.

A. Review Should Be Granted to Correct the Court of

Appeals’ Departure, in Punishing Petitioners’

Request for Appellate Damages, from Settled

Abstention and Constitutional Precepts.

Respondent labors long to establish a proposition we

do not dispute: that “attorneys should be able to distin-

guish an appeal based on excellent arguments from a

frivolous appeal” (Resp. Br. at 6; see Pet. at 21 (No.

89-1506)). Our first basis for reversal of the sanctions

against us, however, is simply that, given the extraordi-

nary burdens imposed on litigants, such as Respondent,

who seek to enjoin ongoing state proceedings in this

context, “a request for Rule 38 sanctions was at least

arguable” (id. at 19). Seen clearly, the opposition brief

does not address, let alone refute, this conclusion.

Contrary to this Court’s recent decision in Cooter &

Gell v. Hartmarx, 58 U.S.L.W. 4763 (U.S. June 11, 1990),

Respondent, in large part simply invokes the law of the

case below that the “arguments that Middlesex did not

compel abstention were excellent” (Resp. Br. at 6 (citing

880 F.2d at 131)). As Cooter & Gell makes clear, this Court

must be satisfied at the least that the court below did not

rely “on a materially incorrect view of the relevant law in

determining that [Petitioners’] pleading was not ‘war-

ranted by existing law or a good faith argument’ for

SS ne ae

- Ow he

Ie. ee ee ee ay ee ee TT Ree he le Te Te pL ORD ee ere en

changing the law.” Id. at 4768; see Christianson v. Colt

Industries Operating Corp., 486 U.S. 800, 817 (1987). Here,

the Ninth Circuit’s assessment of the “relevant law”

clouded its view that our request for appellate damages

itself warranted Rule 11 punishment. The judgment that

Respondents’ arguments for distinguishing Middlesex

County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S.

423 (1982) were indisputably nonfrivolous is ieee and

merits review and reversal.'

As demonstrated in our Petition, the principles that

were necessary to the success of Partington’s appeal ©

below were not simply theories that the State Officials

“believed” “would prevail” (Resp. Br. 4). Rather, Part-

ington’s appeal rested in material part on challenges to

the procedural scheme under Hawaii Supreme Court

Rule 13 that themselves depended on reading what are, at

best, ambiguities in state law to generate conflict with

Partington’s claimed federal rights. Pet. at 17-19. Not

only were many of the conflicts irrelevant to any excep-

tion to Younger abstention, the arguments on appeal both

1 Significantly, Partington impliedly recognizes that the

State Officials’ motion for Appellate Rule 38 damages would

have been well founded if it had demonstrated that, irrespec-

tive of Partington’s underlying claims, no close questions exist-

ed involving “exceptions to Younger abstention principles and

the application of those principles in Middlesex” (Resp. Br. at

5); Partington also offers no reasoned argument that the Rule

38 motion below was ill-founded insofar as Partington invoked

the very narrow exception for statutes that are “ ‘ “flagrantly

and patently violative of express constitutional prohibitions in

every clause, sentence, and paragraph, and in whatever man-

ner and against whomever an effort might be made to apply

[them].”’” See Pet. 18 n.7 (citing 880 F.2d at 128 (citations

omitted)).

4

contravened precepts this Court has concluded are

“beyond debate,” DeBartolo Corp. v. Florida Gulf Coast

Trades Council, 485 U.S. 568, 575 (1988), and, quite simply,

sought to infect the case with “plain error,” Frisby v.

Schultz, 487 U.S. 474, 483 (1988).

Well before Frisby and DeBartolo were decided, this

Court reaffirmed these precepts of restraint in the Younger

context in Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14-15

(1987). Although Pennzoil provoked a number of concur-

rences, none of the concurring Justices found fault with

the Court’s requirement of “unambiguous” state pro-

cedural inhospitality as a pre-requisite to a federal injunc-

tion directed to state proceedings otherwise within

Younger’s scope. 481 U.S. 1 at 19 (Brennan, J., joined by

Marshall, J.); id. at 27 (Blackmun, J.); id. at 30 n.2 (Stevens,

J.). Our request for appellate damages, in turn, rested in

large measure on Respondent's total failure to address

Pennzoil’s bar below. See Pet. at 15.

Respondent’s own characterization of the asserted

unarguably “excellent” grounds for appeal shows why

the sanctions imposed below are wrong, and should be

reversed. While Partington asserts that “close questions”

were presented by his efforts to distinguish Middlesex, the

issues he identifies (Resp. Br. at 5) depend on denigrating

readings of state law that were foreclosed by controlling

precedent, or, worse, on attacks on the integrity of judges

that have been long condemned by the federal courts (see

id. and cf. Pet. at 19-20 (citing cases)), or on elevation of

federal interests “ ‘to a level that Younger squarely

rejected more than fifteen years ago’” (Pet. at 15)).

Respondent implies that it was appropriate for the

court below, in assessing the “relevant law,” to ignore

Pennzoil and the caselaw on which it relies, because

—"

5

“Pennzoil presented ‘an unusual fact situation’” “not

involving any situation remotely similar to attorney disci-

plinary procedures” (Resp. Br. 6). But this sort of claim

has been repeatedly rejected in other contexts, see United

States v. Stanley, 483 U.S. 669, 680 (1987); Anderson v.

Creighton, 483 U.S. 635, 640 (1987), and, indeed, misreads

Pennzoil. There, despite the unprecedented judgment

against Texaco, and enormous threatened harm, absten-

tion was still required. Indeed, even if Respondent’s

argument were a reason why denial of the State Officials’

motion for damages might be sustainable, it offers no

reason why Petitioners here were properly punished for

making that: motion.

Petitioners, in seeking to recover their damages on

appeal, properly relied on the notion that, when evaluat-

ing the frivolity of Partington’s appeal, “a precedent of

this Court must be followed by the lower federal courts.”

Hutto v. Davis, 454 U.S. 370, 375 (1982). Respondent’s

brief makes clear that the Ninth Circuit’s sanctions judg-

ment ignored this teaching.

Contrary to Respondent's brief (Resp. Br. at 1-2), the

sanctions judgment creates an anomalous privilege to file

federal suits precisely where this Court has held federal

interference with state proceedings to be improper. For

this reason alone, the writ should be granted and the

judgment reversed.

B. Review Should Be Granted to Correct the Ninth

Circuit’s Expansive Invocation of Rule 11 in the

Appellate Courts. ;

Respondent also offers no persuasive ground for

denying review as to our claim that the Court of Appeals

6

improperly relied on its “adoption” of Rule 11 as author-

ity for issuing sanctions in the appellate courts. See Pet. at

i, 17, 21-23. Indeed, as Cooter & Gell v. Hartmarx, No.

89-275 (U.S. June 11, 1990), dictates reversal of, or at least

severely undercuts, the sanctions judgment, the reasons

for granting certiorari are plain.?

As Cooter & Gell v. Hartmarx, No. 89-275 (US. June 11,

1990), confirms, the judgment below is plainly wrong, as

“[njeither the language of [Fed. R. Civ. P.] Rule 11 nor the

Advisory Committee Note suggests that the Rule could

2 Respondent, on this front, intimates, but does not argue

specifically, that Petitioners are disabled from raising this

ground, which was fully presented in our Petition. The sugges-

tion (Resp. Br. 7) is wrong. The court of appeals, in the context

of a vigorous debate between the majority and concurring and

dissenting judge, “passed upon” the issue of Rule 11’s appli-

cability to conduct wholly on appeal. See 880 F.2d at 134-35,

148, A34-35, 81-83; see also Pet. App. 239-56 (No. 89-1506)

(further briefing ordered by the panel). Even under the rig-

orous standards for bringing federal error up for review from

the state courts, the record here would permit review. See, ¢.g.,

Illinois v. Gates, 462 U.S. 213, 217-24 (1983); cf. First Lutheran

Church v. Los Angeles County, 482 U.S. 304, 314 n.8 (1987).

Indeed, while Respondent suggests that the judgment below

might be affirmed on other grounds (See Resp. Br. at 7-8),

Respondents did not expressly rely on any ground other than

Fed. R. Civ. P. 11 (see Pet. App. 192 (No. 89-1506); nor is it

shown how the distinct standards applicable to sanctions

under Fed. R. App. P. 46, 28 U.S.C. § 1927, or the inherent

power, are independently sustainable on the record below.

Compare Roadway Express, Inc. v. Piper, 447 U.S. 752, 766-67

(1980). Indeed, Respondent virtually concedes the State Offi-

cials did not act in subjective bad faith, and “believed their

arguments would prevail” (Resp. Br. at 4). In this context, this

will “deal with the case as it came here and affirm or

based on the ground relied upon below.” Peralta v.

Medical Center, 485 U.S. 80, 86 (1988).

Hi

7

require payment for any activities outside the context of

district court proceedings.” Id., 58 U.S.L.W. 4763, 4769.

The Ninth Circuit’s adoption of Rule 11 cannot be

squared with this logic. Pet. at 22-23. The tautological

invocation of the “whenever relevant” .anguage of Cir-

cuit Rule 1-1 cannot sustain the practice of applying Rule

11 to conduct wholly on appeal, as this Court has con-

cluded that Rule 11 is not “relevant” to appellate proceed-

ings. Indeed, the import of Cooter & Gell is that the Ninth

Circuit could not, even by explicit circuit rule, adopt Rule

11 for use in the appellate courts. See 58 U.S.L.W. at 4768

(Rule 11 was designed in light of the district court’s

particular competence to “marshall the pertinent facts

and apply the fact-dependent legal standard mandated

by Rule 11”). Here, as in Cooter & Gell, “(t]he Federal

Rules of Appellate Procedure [and other sanctions

authority] place a natural limit on Rule 11’s scope.” 58

U.S.L.W. at 4769. The sanctions here exceeded that

“limit.”

C. Review Should Be Granted to Correct the Court

of Appeals’ Departure from Settled Procedure

in Awarding Sanctions.

Respondent's argument (Resp. Br. at 9-12) that Peti-

tioners were afforded proper process before sanctions

were awarded against them is untenable. Indeed, Respon-

dent has no good answer to our claim that, “while prop-

erly concerned with the ‘guarantee of fair procedure’ in

state court,” “the Ninth Circuit paid little heed to this

requirement in issuing its own sanctions against Peti-

tioners” (Pet. 23).

Partington’s claim that due process is lacking in the

state courts (Resp. Br. at 11-12) has been addressed in our

Petition here (Pet. at 7-9, 13, 23-24), and in our papers in

the related petition in No. 89-1531. For present purposes,

it suffices to note that Partington’s due process argu-

ments make clear that the sanctions judgment below is

wrong. Partington at least implies that summary process

is inappropriate where a monetary sanction carriers with

it reputational injuries, but seeks to avoid the impact of

‘his logic by suggesting that Rule 11 sanctions have no

such effect (see Resp. Br. at 11). This latter suggestion is,

of course, incorrect. See Cooter & Gell, 58 U.S.L.W. at 4768

(finding is akin to finding of negligence). The claim that

Petitioners were afforded due process is thus flawed.

Partington in the end does not dispute that sanctions

“‘may not be imposed upon a person who is not on

notice of (a) the fact that sanctions are under consider-

ation, [and] (b) the reasons why sanctions are under

consideration,’” (Pet. at 24), or deny the existence of

Circuit precedent that makes clear that a claim for affir-

mative relief made for the first time in a reply (or amicus)

brief will not be considered. See id (citing Northwest

Acceptance Corp. v. Lynwood Equipment Inc., 841 F.2d 918,

924 (9th Cir. 1988)). Partington also does not dispute that

Respondents made no motion for sanctions under Fed. R.

App. P. 27, and that under Circuit Rule 39-1.6, it is

improper to seek fees in a Reply or Amicus Brief. None-

theless, Respondent asserts Petitioners ought to have

moved to strike the requests that were so made, or for

briefing (Resp. Br. at 10).

This novel understanding of Due Process is suffi-

ciently at odds Due Process precepts to warrant correc-

tion, as we have sought (see Pet. at i, 24-25), under the

supervisory power. Indeed, it is clear that litigants need

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not anticipate, on pain losing a pre-deprivaticn hearing,

changes in procedural law of the kind indulged here. E.g.,

Saint Francis College v. Al-Khazraji, 481 U.S. 604, 608

(1987); Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 679.

(1930). While the courts of appeals might be “well versed

in recognizing frivolous requests” (Resp. Br. at 12), cur

contentions why sanctions should not be entered against

the State officials plainly presented “arguable issues”

warranting notice of the procedural posture and an

opportunity to present at least written argument before

sanctions were entered. See Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 544 (1985). The proceedings war-

rant review and reversal.3

Ill. CONCLUSION

For the reasons above and in the Petition, the Court

should grant the Petition in No. 89-1506 and summarily

reverse that part of the judgment below (Part V thereof)

imposing sanctions against the Petitioners, or set the case

down for argument in this Court, and, thereon, reverse

the sanctions. Because the Court of Appeals did not have

the benefit of Cooter & Gell v. Hartmarx, No. 89-275 (US.

3 Here, the Court need not even reach the Due Process

question to reverse, as Fed. R. App. P. 27, which requires

motions to be separately filed and so denominated, Fed. R.

App. P. 28, which directs that a Reply Brief be directed “to the

brief of the appellee,” and Fed. R. App. P. 29, which requires

that the court, in allowing an untimely amicus curiae brief,

such as that allowed here, to “specify within what period an

opposing party may answer,” provide statutory grounds for

reversal that would moot the substantial due process issues we

have raised.

10

June 11, 1990), the Court may wish to grant the petition,

vacate the judgment adverse to Petitioners, and remand

for further consideration in light of Cooter & Gell v. Hart-

marx, No. 89-275 (U.S. June 11, 1990).4

Respectfully submitted, June 20, 1990.

Warren Price, III*

Attorney General

State of Hawaii

*Counsel of Record

Corinne K.A. WATANABE

First Deputy Attorney General

State of Hawati

Steven S. MicHAELs

Deputy Attorney General

State of Hawaii

Hale Auhau

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1365

Counsel for Petitioners

(Respondents in No. 89-1531)

* Such a disposition, see O’Connor v. Donaldson, 422 U.S.

563, 578 n.12 (1985), would have the beneficial impact of curing

Petitioners’ procedural ground for relief, particular since

Cooter & Gell addresses both the substantive standards for

a Rule 11 motion (see 58 U.S.L.W. at 4768) as well as

the propriety of Rule 11’s invocation in the courts of appeals

(id. at 4769-70), which are both central to our remaining issues.

7

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