Opposition Brief — Dillon v. Potomac Hospital Corp.

—

IN THE

Supreme Court, U.S.

FILED

QCT 19 1988

JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE UNITED bTATES

OCTOBER TERM, 1985 ~*

No. 85-388

JOSEPHINE A. DILLON, Committee of

HILDA NADINE AMIDON, a legally

incompetent person,

Petitioner,

Vv.

POTOMAC HOSPITAL CORPORATION,

Respondent.

OBJECTION OF RESPONDENT TO MOTION FOR

LEAVE TO FILE BRIEF AMICUS CURIAE BY

VIRGINIA BROWN, ET AL.

BRIEF FOR RESPONDENT IN OPPOSITION

TO BRIEF AMICUS CURIAE

Robert H. J. Loftus

MILES & STOCKBRIDGE

4069 Chain Bridge Road

(703) 273-2440

Counsel of Record

for Respondent

Fairfax, Virginia 22030

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No. 85-388

JOSEPHINE A. DILLON, Committee of

HILDA NADINE AMIDON, a legally

incompetent person,

Petitioner,

Vv.

POTOMAC HOSPITAL CORPORATION,

Respondent.

OBJECTION OF RESPONDENT TO MOTION FOR

LEAVE TO FILE BRIEF AMICUS CURIAE

BY VIRGINIA BROWN, ET AL.

Potomac Hospital Corporation, |

Respondent herein, objects to the motion of

\The Listing pursuant to rule 28.1 is

stated in the Brief for Respondent in

Opposition to Petition for a Writ of

Certiorari.

Virginia Brown, Executrix of the Estate of

Wilbur Brown, and 370 other individuals

(Amicus Petitioners) represented by Robert

R. Hatten for leave to file a Brief Amicus

Curiae in this proceeding. The reasons why

leave to file such Brief should be denied

are as follows:

1. Rule 36.1 states that a Motion to

file a Brief Amicus Curiae prior to con-

sideration of the Petition for a Writ of

Certiorari is not favored. Amicus

Petitioners make their Motion prior to con-

sideration of the Petition herein.

2 Judge McKenzie of the United

States District Court for the Eastern

District of Virginia has ruled in a case in

which two Amicus Petitioners’ herein,

Charles Wesley Mann, Administrator of the

Estate of Elizabeth Francis Mann, and

Francis Marion Cave, are plaintiffs, that

the issue of settlement and release in the

asbestos cases in which Amicus Petitioners

are involved will be governed by federal

common law, and not by the decision of the

Virginia Supreme Court herein, Potomac

Hospital Corporation v. Dillon, 229 Va. Were

329 S.E.2d 41 (1985). See Mann v. H. K.

Porter and Southern Textile Corp.,

No. 83-477-N Civ. (E.D. Va. July 8, 1985)

and Francis Marion Cave v. Johns-Manville

Corp., No. 77-738N (E.D. Va. July 8, 1985).

Amicus Petitioners’ interest is not

ripe. It is entirely probable, under the

doctrine of stare decisis, that the Amicus

Petitioners will never be subject to the

Dillon decision. They therefore lack the

interest necessary for amicus status.

3. Amicus Petitioners do not set

forth any facts or questions of law which

they contend have not been, or may not be,

adequately presented by the parties. As

counsel for Petitioner Dillon are retained

counsel who have been present in the case

since its inception, adequate presentation

of the facts and questions of law must be

presumed, until shown otherwise.

4. The Attorney General of the

Commonwealth of Virginia has filed a Brief

Amicus Curiae in support of the Petition

for a Writ of Certiorari by Dillon. If

there is any inadequacy in the Peti-

tioner's Brief, there is no reason to

believe that the Attorney General's Brief

will not compensate for it.

5. Amicus Petitioners raise no new

issues, but merely restate and reargue the

questions presented by Petitioner. Repeti-

tion is not the office of Amicus Curiae.

For the above reasons, the Motion of

Virginia Brown, et al. should be denied.

q

Respectf Submitted,

By:

Robert H. J oft

Counsel for \Bespondent

Potomac Hospital

Corporation

\

Attorneys for Respondent:

Gerald R. Walsh

William L. Carey

MILES & STOCKBRIDGE

4069 Chain Bridge Road

Fairfax, Virginia 22030

(703) 273-2440

CERTIFICATE

I hereby certify that on the 21st day

of October, 1985, a true copy of the fore-

going Objection of Respondent to Motion for

Leave to File Brief Amicus Curiae by

Virginia Brown, et al. was mailed, postage

prepaid, to Frank J. Ceresi, Esquire, 2300

South 9th Street, Suite 112, Arlington,

Virginia 22204, Counsel for Petitioner; The

Honorable William S§. Broaddus, Acting

Attorney General, 101 N. 8th _ Street,

Richmond, Virginia 23219; and to Robert R.

Hatten, Esquire, Patten, Wornom & Watkins,

739 Thimble Shoals Boulevard, Suite 105,

Newport News, Virginia 23606, Counsel for

Virginia Brown, et at. é

Robert H. ss F ecataes

TABLE OF CONTENTS

QUESTIONS PRESENTED ..-++ «+ © >

SUMMARY OF ARGUMENT .. +++ «© =

I. THE RATIONAL BASIS TEST DOES

NOT APPLY AND DOES NOT REQUIRE

REVERSAL OF THE DEC’SION BELOW

II. A STATE SUPREME COURT IS NOT

REQUIRED TO GIVE EFFECT TO

UNCONSTITUTIONAL LEGISLATION .

CONCLU Ss I ON . . . . . . . . . . . .

ii

TABLE OF AUTHORITIES

CASE Page

(1975). . - 7 o + om a . . . . 7 e . eo 10

Bain v. soyein, 180 Va. 259, 23 S.E.2d

. oe 7 . * . — = . * a . 2 -

Brown v. Western State, 110 Va. 321,

S.E. 7 es a . . a oa . - . +

Carickhoff v. Badger-Northland, Inc.,

562 F. Supp. Teo (W.D. Va. T9853). a eee

Chevron Oil Co. v. Huson, 404 U.S. 97

(i971) oa + 7 a. . . . ° . - o . o > Da 11

Coombs v. Getz, 285 U.S. 434 (1932) .. 4

Eaton v. Davis, 176 Va. 330, 10 S.E.2d

~ 893 (1940)

is J * * . . e e . . 7 . = S

Ettor v. Tacoma, 228 U.S. 148

) . - s * e . * = a a s * a . - 4

Humble Oil v. oes: 213 Va. 449, 192

o e — e € e o +. s 7 e - ~

jae v. Patio SEES Inc., 226 Va.

’ e o © ~ e : e 10

Norfolk & Southern R. Co. v. Beskin,

a. r else ee © @ 7

iii

CASE Page

Pension Benefit Guaranty Corp. v.

- A. Gary Des U.S. :

we Se (1984) 7 J — = e se J 3

Potomac Hospital Corporation v.

Dillon, 555 Va. atc 329 S.E.2d 41

6 e e e om e e + * 6 s o e e 2 e 4

Shiflet v. Eller, 228 Va. 115, 319

S.E.2d 750 (1984) eo 2 2 @&@ @ 2 @ @ ee 16

Town of Danville v. Pace, $5 Va.

Gratt. a a a a oe

United States v. Locke, U.S.

+ te. 5) e e e a + 7 * 9

v. Turner Elkhorn Mining Corp.,

STATUTES

Section 8.01-35.1, Code of Virginia

(1984 Repl. Vol.) cm + 7 e a7 J se + passim

pacintinee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No. 85-388

JOSEPHINE A. DILLON, Committee of

HILDA NADINE AMIDON, a legally

incompetent person,

Petitioner,

Vv.

POTOMAC HOSPITAL CORPORATION,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION TO BRIEF

AMICUS CURIAE OF VIRGINIA BROWN, ET AL. IN

SUPPORT OF PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Respondent, Potomac Hospital

Corporation, respectfully requests that the

Petition for a Writ of Certiorari to the

Supreme Court of Virginia be denied by this

Court.

QUESTIONS PRESENTED

1. Whether the rational basis test

applies to state legislation

retroactively abrogating accrued

causes of action and defenses,

and requires reversal?

ae Whether unconstitutional retro-

active state legislation must be

enforced by a state court?

SUMMARY OF ARGUMENT

The rational basis test does not apply

to local, non-economic legislation which

retroactively abrogates accrued causes of

action and defenses.

Equitable rules of restraint developed

by this Court to limit its own decisions do

not prevent a state court from interdicting

unconstitutional state legislation.

ARGUMENT

I. |THE RATIONAL BASIS TEST DOES NOT APPLY

AND DOES NOT REQUIRE REVERSAL OF THE

DECISION BELOW.

Amicus Petitioners complain of the

asserted failure of the Virginia Supreme

Court to uphold Section 8.01-35.1(D) in the

light of a "rational basis” inquiry, citing

Usery v. Turner Elkhorn Mining Corp., 428

U.S. 1 (1976); Pension Benefit Guaranty

Corp. v. R. A. Gary & Co., U.S. :

104 S. Ct. 2709 (1984), and United States

v. Locke, U.S. 165 8. Ge. 1S

(1985).

These cases support the application of

the rational basis test to retrospective

legislation where national economic legis-

lation is at issue. These cases are not

authority for the application of the

rational basis test to state legislation

retroactively abrogating substantive,

accrued common law causes of action and

defenses.

The proper standard for review of

legislation which retroactively abrogates

accrued causes of action and defenses was

settled by this Court in Ettor v. Tacoma,

228 U.S. 148 (1913) and Coombs v. Getz, 285

U.S. 434 (1932), and confirms the result

below.

Application of the rational basis test

to § 8.01-35.1(D) would not produce a

different result. No reason has been prof-

fered to support the subsequent retroactive

amendment of § £§8.01-35.1. Amicus

Petitioners merely cite the reason for the

enactment of § 8.01-35.1, and cite no rea-

son supporting the retroactive amendment

embraced in § 8.01-35.1(D).

Amicus Petitioners assume, without

addressing, that the Dillon decision was

made under federal, rather than Virginia,

constitutional grounds. As the Brief in

Opposition to the Petition for a Writ of

Certiorari filed herein by Respondent

demonstrates, Dillon was decided on state

law grounds. The authorities cited by

Amicus Petitioners fail to establish any

error in the interpretation of the Virginia

Constitution, and doe not require a state

court to apply the rational basis test to

state legislation.

Il. A STATE SUPREME COURT IS NOT REQUIRED

TO GIVE EFFECT T N T

= 0 060—

Amicus Petitioners argue that Chevron

Oil Co. v. Huson, 404 U.S. 97 (1971), man-

dates that even though Respondent's rights

have been unconstitutionally abrogated by

the Virginia legislature, the Virginia

Supreme Court is powerless to protect

Respondent's rights if the decision

involves a new principle of law. Chevron

is not authority for such a proposition.

Chevron set forth equitable principles

which this Court will apply in determining

whether to give retrospective effect to a

new principle of law announced by this

Court. Chevron does not purport to take

away the judicial power to interdict uncon-

stitutional retroactive legislation such as

is at issue in this case.

Chevron does not bind state courts in

interpreting state constitutions. Amicus

Petitioners do not present any authority

that a state court's failure to follow

Chevron in interpreting federal law pre-

sents’ a federal question within this

Court's jurisdiction.

Moreover, Chevron does not apply to

the Dillon decision, as Dillon did not

apply a new principle of law, and did not

overrule prior precedent, as has_ been

demonstrated in the Brief in Opposition to

the Petition for a Writ of Certiorari. As

the Court in Dillon stated, its decision

was controlled by its prior decision in

Shiflet v. Eller, 228 Va. 115, 319 S.E.2d

750, (1984) where it held that retroactive

application of § 8.01-35.1 would violate

due process. Dillon, 229 Va. at, 329

S.E.2d at 44-45.

Even if Dillon can be said to have

presented an issue of first impression, its

resolution was clearly foreshadowed.

Petitioner's agreement to release the

other tortfeasors in this case was made on

July 14, 1983. Four months prior to that

date the United States District Court for

the Western District of Virginia held

§ .8.01-35.1(D) to be an unconstitutional

abrogation of the vested right of contribu-

tion. Carickhoff v. Badger-Northland,

Inc., 562 F. Supp. 160 (W.D. Va. 1983).

Dillon is in accord with the prior

case law. Sixty years prior to Dillon, the

Supreme Court of Virginia held that the

rights of joint tortfeasors could not be

abrogated retroactively. In Norfolk &

Southern R. Co. v. Beskin, 140 Va. 744, 125

S.E. 678 (1924), the railroad company

sought contribution from Beskin under a

statute enacted subsequent to the acci-

dent which created a right of contribu-

tion. In holding that the railroad had no

right to contribution, the Court stated:

[W]hile the revisors of the Code .

- « have by statute abrogated the

doctrine [no contribution among

tortfeasors] existing in Virginia,

this statute did not become a law

until after the commission of the

joint tort, and ‘therefore cannot

affect the rights of the parties,

as they are to be determined by the

law as of the time of the acci-

dent.

Id, at 747, 125 S.E. at 679.

Amicus Petitioner's authorities do not

presage a different result, and are distin-

guishable from the Dillon decision. Town

of Danville v. Pace, 65 Va. (25 Gratt.) 269

(1874), held only that the defense of usury

was not a vested right, on the grounds that

no person can have a vested right in a

penalty and forfeiture law.

—ee ee

Humble Oil v. Copley, 213 Va. 449, 192

S.E.2d 735 (1972), involved no question of

vested rights, but rather the application

of the Uniform Commercial Code to events

happening after its effective date.

Brown v. Western State, 110 Va. 321,

66 S.E. 49 (1909), held that’ the

Commonwealth of Virginia loses a statutory

right of action against a private citizen

when the Virginia legislature repeals the

law creating the right of action, under the

opvious logic that the legislature is the

state, and can revoke its own rights.

Bain v. Boykin, 180 Va. 259, 23 S.E.2d

127 (1942), held that a litigant had no

vested right in a judgment of a trial court

such as to preclude reversal by = an

appellate court. Eaton v. Davis, 176 Va.

330, 10 S.E.2d 893 (1940), likewise held

that a person has no vested right in an

alimony decree.

Opinions of the Attorney General of

Virginia are not precedent, Albemarle

County v. Marshall, Clerk, 215 Va. 756,

762, 214 S.E.2d 146, 150 (i975), nor are

denials of Petitions for Writs of Error by

the Virginia Supreme Court, Shiflet v.

Eller, 228 Va. 115, 122 n.2, 319 S.E.2d

750, 755 n.2 (1984). Amicus Petitioner's

reliance on such opinions is misplaced.

Hayman v. Patio Products, Inc., 226

Va. 482, 311 S.E.2d 752 (1984), did not

involve any challenge to § 8.01-35.1(D) as

an unconstitutional abrogation of vested or

substantive rights.

Chevron Oil Co. v. Huson, 404 U.S. 97

(1971), does not apply to this case, and

does not require reversal.

FO ee ee ee

CONCLUSION

For the foregoing reasons, a Writ of

Certiorari should not issue.

Respectfully Submitted,

By: HI Ale

obert H. J./Loffas

Counsel for /Respéndent

Potomac Hospital

Corporation

Attorneys for Respondent:

Gerald R. Walsh

William L. Carey

MILES & STOCKBRIDGE

4069 Chain Bridge Road

Fairfax, Virginia 22030

(703) 273-2440

CERTIFICATE

I hereby certify that on the 21st day

of October, 1985, a true copy of the fore-

going Brief for Respondent in Opposition to

Brief Amicus Curiae of Virginia Brown, et

al. in Support of Petition for Writ of

Certiorari to the Supreme Court of Virginia

was mailed, postage prepaid, to Frank J.

Ceresi, Esquire, 2300 South 9th Street,

Suite 112, Arlington, Virginia 22204,

Counsel for Petitioner; The Honorable

William ‘sS. Broaddus, Acting Attorney

General, 101 N. 8th Street, Richmond,

Virginia 23219; and to Robert R. Hatten,

Esquire, Patten, Wornom & Watkins, 739

Thimble Shoals Boulevard, Suite 105,

Newport News, Virginia 23606, Counsel for

viepinta Boos, Cie "

Robert A Ldgtus

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