Opposition Brief — Sanger-Harris v. Richards

IN THE SUPREME COURT OF THE.

UNITED STATES OCTOBER TERM, 1986

SANGER HARRIS, A DIVISION OF FEDERATED

DEPARTMENT STORES, INC.,

PETITIONER

v.

ANN RICHARDS,

TREASURER OF THE STATE OF TEXAS,

RESPONDENT

On Petition for a Writ of Certiorari

To the United States Court of Appeals

for the Fifth Circuit

RIEF IN SITION

_ JIM MATTOX

Attorney General of Texas

OF COUNSEL: MARY F. KELLER

Executive Assistent

Attorney General for

ANN SCHWARTZ Litigation

Office of General Counsel

Texas Department of

Treasury J. PATRICK WISEMAN

Special Assistant

Attorney General

SUSAN ALBERS P.O. Box 12548

Staff Attorney Austin, Texas 78711

Texas Department of (512) 463-2120

ATTORNEYS FOR

RESPONDENT

i

TABLE OF CONTENTS

PAGE

BEM OF CORTE MEG sc ccc ccccccccaceccsccess i

TABLE OF AUTHORITIES.............0+.e0e0: ii

STATEMENT OF THE CASE..........cccccccees iii

REASONS FOR DENYING THE WRIT............ 3

I. NO NEW QUESTIONS PRESENTED.......... 3

II. NO DISCRETIONARY REVIEW APPROPRIATE 4

ii

TABLE OF AUTHORITIES

CASES : PAGE

Gravitt v. Southwestern Beli, 430 U.S.

723, 97 S.Ct. 1439, 52 L.Ed. 1 (1977)..... 3

In re Pennsylvania Co., 137 U.S. 451,

11 S.Ct., 141, 34 L.Ed.2d (1976).......... 3

Matthew v. Eldridge, 424 U.S. 319,

96 S.Ct., 893, 47 L.Ed.2d (1976).......... 5

Thermtron Products, Inc. v. Hernansdorfer,

423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542

(ROTO) oc ccccccccccgccancscccssceeseassenss 3, 4

Volvo of America Corporation v. Schwarzer,

429 U.S. 1331, 97 S.Ct. 284, 50 L.Ed.2d

-i/ ei . PPOPPPTTITTT TTT TT 3

STATUTES

28 U.S.C. Section 1447(c).......-ceeeeeeeees 4

28 U.S.C. Section 1447(d)........ceeeeeceees 3, 4

Tex. Prop. Code, Secs. 72.001 et seq

(Vernons, 1987)........-ceeeccccvsccccvees 1

- ee

NO. 87-

IN THE SUPREME COURT OF THE

UNITED STATES OCTOBER TERM, 1986

SANGER HARRIS, A DIVISION OF FEDERATED

DEPARTMENT STORES, INC.,

PETITIONER

V.

ANN RICHARDS,

TREASURER OF THE STATE OF TEXAS,

RESPONDENT

On Petition for a Writ of Certiorari

To the United States Court of Appeals

for the Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE SUPREME

COURT:

NOW COMES Ann Richards, Treasurer of the

State of Texas, Respondent, by and through her

attorney, the Attorney General of Texas, and files

this Brief in Opposition.

STATEMENT OF THE CASE

On July 15, 1986, Respondent filed suit in the

Texas State Court seeking to enforce her right to

audit Petitioner's books and records to assure

compliance with the Texas Unclaimed Property Laws,

Tex. Prop. Code Ann., Secs. 72.001 et seq

(Vernon's Supp. 1987). Respondent's state court

suit was limited to the issue of the state's right to

audit, and raised no federal claims. Petitioner

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judicially admits that it has failed and refused to

allow such an examination of records.

Four days later, on July 19, 1986, Petitioner

made its first attempt to move this simple and

straightforward state law matter to federal court

when it filed suit against the Treasurer and Texas

Attorney General Jim Mattox in the U.S. District

Court, Southern District of Texas, Houston

Division. This massive suit sought to enjoin the

defendants from enforcing the provisions of the

Unclaimed Property Law against Federated

Department Stores. The Houston District Court

dismissed the action, relying on the abstention

doctrine (as well as other grounds).

On August 21, 1986, Petitioner again tried to

move this controversy to federal court by filing a

removal of the state court action to the U.S.

District Court for the Western District of Texas,

Austin Division. In October, 1986, the Austin

District Court remanded this course back to the

state court "upon the ground that said cause was

removed improperly and without jurisdiction."

In December, 1986, Petitioner appealed District

Court's remand order to the Fifth Circuit Court of

Appeals. In a per curiam opinion dated March 11,

1987, the Fifth Circuit affirmed the District Court's

remand and held that the remand order was not

subject to challenge in the Court of Appeals. Then,

on April 30, 1987, the Fifth Circuit denied

Petitioners' Suggestion for Rehearing En Banc,

marking the fourth time that a Federal Court told

Petitioner that this matter should properly be

decided in state court.

On June 8, 1987, Respondent was served with

Petitioner's Petition for a Writ of Certiorari.

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REASONS FOR DENYING THE WRIT

I. NO NEW QUESTION PRESENTED

Beginning in 1980 with the case of In re

Pennsylvania Co., 137 U.S. 451, 11 S.Ct. 141, 34

L.Ed. 738 (1890) until the 1977 case of Gravitt v.

Southwestern Bell, 430 U.S. 723, 97 S.Ct. 1439, 52

L.Ed. 1 (1977), the Supreme Court has consistently

held that where a district court remands an action

to state court on statutory grounds, such as in the

instant case, that remand order is unreviewable by

appeal, mandamus, or otherwise.

In the intervening years, Thermtron Products

Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct.

584, 46 L.Ed.2d 542 (1976) clarified that where a

district court has remanded a case on the basis that

it was removed improperly and without jurisdiction,

an appellate court may not look behind that order

to determine its correctness.

Petitioner argues that Thermtron, supra does

not apply here because "28 U.S.C. 1447(d) and the

decision in Thermtron are extreme statements of

legislative and judicial policy...that are subject to

and circumscribed by the procedural due process

and hearing guaranty of the Fifth Amendment to the

Constitution of the United States." [Petition for a

Writ of Certiorari, at pg. 12]. Petitioner attempts

to bootstrap exceptions where none exist. The case

cited above anticipate no such exceptions. In fact,

the Supreme Court has twice stated that even

erroneous remand decisions are wunreviewable.

Thermtron, supra. and Volvo of America

Corporation v. Schwarzer, 429 U.S. 1331, 97 S.Ct.

284, 50 L.Ed.2d 273 (1976).

Volvo involved the district court's remand of a

state law antitrust action on the grounds that the

sinsieiiaiait anata

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district court lacked jurisdiction over the matter.

The remand order cited specifically to 28 U.S.C.

Section 1447(c). The Defendant sought appellate

review, arguing that the district court incorrectly

analyzed the jurisdictional question and, therefore,

the order remanding the action was not authorized

by 28 U.S.C. Sec. 1447(d). In holding that the

-remand order was not subject to review, the

Supreme Court stressed that review of an order of

remand where an action is "removed improvidently

and without jurisdiction" is presumptively barred by

Sec. 1447(d), whether or not the district court was

correct in its analysis:

"Applicant's position would mean that any

allegedly erroneous application of Sec.

1447(c) would be reviewable by writ of

mandamus, leaving the Sec. 1447(d) bar

extent only in the case of allegedly proper

applications of Sec. 1447(c), a reading too

Pickwickian to be accepted, and contrary

to the clear language of Thermtron." 97

S.Ct. at 285.

Additionally, as the Fifth Circuit correctly

wrote in this case: "The Thermtron Court does not

say that we cannot review orders purporting to

remand on this basis on certain grounds, or for

certain faults; for constitutional infirmities, but not

for statutory ones: it says we cannot review them

at all. There it ends."

II. NO DISCRETIONARY REVIEW APPROPRIATE

As provided in Supreme Court Rule 17, review

on writ of certiorari is not a matter of right, but of

judicial discretion, and will be granted only when

there are special and important reasons. In this

case such reasons do not exist.

-5§-

Petitioner submits that the Court should review

this matter because the remand other allegedly

jeopardized Petitioner's property interest by

denying it access to the Federal Courts. Petitioner's

property interest in this matter relates to the

underlying unclaimed property, not to the choice of

forum. Clearly, since Matthew v. Eldridge, 424

U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the

status of procedural due process has been that the

litigant is entitled to notice and a fair hearing.

This court has consistently held that the state

courts can provide adequate due process. Petitioner

will have its guaranteed notice and hearing before

the state district court.

Respondent would point out that Petitioner, in

order to delay any hearing on the merits in state

court, has attempted to bring this matter before

three federal courts in the last year. Petitioner has

been told in four separate opinions that this matter

belongs in state court. Thus if delay is what

Petitioner has sought, then Petitioner has already

achieved its goal. Respondent believes it is now

appropriate and necessary to obtain an order

seeking an audit of Respondent's books and

records. It is not time for Respondent to have her

day in court.

Petitioner's interest in delaying an adjudication

on the merits through procedural machinations is an

abuse of the judicial system and is simply not

important enough for the Supreme Court to overrule

a century of precedent. Accordingly, Respondent

respectfully urges that the petition for writ of

certiorari be denied.

<@-

CONCLUSION

WHEREFORE, for all these reasons, Respondent

pray that the petition for writ of certiorari be

denied.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

Executive Assistant

Attorney General for

Litigation

rik We

J. PATRICK WISEMAN

Special Assistant

Attorney General

P.O. Box 12548

Capitol Station

Austin, Texas 78711-2548

(512) 463-2120

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy

of Respondent's Brief in Opposition was sent U.S.

Mail, certified, return receipt requested to:

Charles J. Sullivan

Anthony J. Sadberry

Sullivan, King & Sabom

; P.O. Box 2482

Houston, Texas 77252 C }

on this the ML day of Lik ,

1987. 4 J

€

——— ie

J. PATRICK WIS

Special Assistant

Attorney General