Opposition Brief — Chuidian v. Superior Court

Ail

Supreme Court, U.S,

EILE

(

———

(> MAR 14 (DBT

No. 86-1292 JOSEPH F. SPANIOL, JR,

CLERK

In The

Supreme Court of the United States

October Term, 1986

ft).

Vv

VINCENTE B. CHUIDIAN,

Petitioner,

VS.

SUPERIOR COURT OF THE

STATE OF CALIFORNIA, IN AND FOR

THE COUNTY OF SANTA CLARA,

Respondent,

ra’

Vv

PHILIPPINE EXPORT AND FOREIGN LOAN

GUARANTEE CORPORATION, Real Party in Interest

ray

Vv

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ray

Vv

JoHn R. ReEse*

JAMES P. KLEINBERG

Betu H. Parker

Lesuiz G. Lanpau

Three Embarcadero Center

San Francisco, CA 94111

Telephone: (415) 393-2000

Attorneys for Respondent

*Counsel of Record

McCurcnHen, Dorie, Brown & ENERSEN

Of Counsel

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

<

QUESTIONS PRESENTED

1. Should the Court review purported act of state

issues where:

a. The lower courts in this case have not yet de-

cided the issues;

b. The issues turn on factual determinations that

have not and cannot be made because there is no factual

record; and

ce. The issues sought to be reviewed are settled.

2. Should the Court review the propriety of a state

appellate court’s request for advice from the State De-

partment on act of state issues when there is no evidence

that the State Department ever responded and the state

court ultimately declined to consider those issues?

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........... eee eee on i

STATEMENT OF THE CASE ........ Siiideoateansepconbinn 1

SUMMARY OF ARGUMENT 5

REASONS FOR DENYING THE WRIT ... 7

I. THERE IS NO JURISDICTION UNDER SEC-

TION 1257 BECAUSE THE CALIFORNIA

COURTS HAVE NOT YET RULED ON THE

ISSUES SOUGHT TO BE REVIEWED .. 7

Il. THE ACT OF STATE ISSUES THIS CASE

PRESENTS ARE NOT UNRESOLVED =

TIONS OF LAW ... 10

A. A COURT MAY REVIEW THE MOTIVA-

TIONS OF A FOREIGN SOVEREIGN TO

DETERMINE WHETHER THE DOC-

TRINE, APPR Este 25d eee en 11

B. THE ACT OF STATE DOCTRINE DOES

NOT APPLY WHERE THE SOVEREIGN

ACTS ULTRA Vite 2 ae 12

C. THE RECORD IS INADEQUATE TO DE-

CIDE ANY ACT OF STATE ISSUE 14

D. THE ACT OF STATE DOCTRINE AP-

PLIES ONLY WHERE ADJUDICATION

WILL HINDER U.S. FOREIGN RELA-

TIONS anes tabled - 15

1. There Can Be No Effect on U.S. Foreign

Policy Because Marcos Is No Longer

Preqidiet quo cece eee cee, 17

There Is No Reason to Invoke the Doc-

trine Where, As Here, the Foreign En-

tity Submits to Adjudication by a U.S.

fe peleubieneanite til ssa ciceicinssera tad cece eiecaeee aoa 18

bo

lil

TABLE OF CONTENTS—Continued

Page

3. Refusal to Apply the Doctrine Here Will

Not Undermine Twenty Years of Philip-

Oo SRE ae 19

Iil. THIS COURT SHOULD NOT RENDER AN

ADVISORY OPINION ON THE COURT OF

APPEAL’S REQUEST FOR THE VIEWS OF

THE STATE DEPARTMENT 21

A. THE COURT OF APPEAL’S ACTION

DOES NOT PRESENT A JUSTICIABLE

CONDO Mawes . Zl

B. THE REQUEST ITSELF DOES NOT VIO-

LATE THE ACT OF STATE DOCTRINE .. 23

5 ESE He ET a 26

iv

TABLE OF AUTHORITIES

Page

CASES

Abney v. United States, 431 U.S. 651 (1977) ow. 10

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) ..... 22

Alfred Dunhill of London, Inc. v. Republic of

Cubes, 45 US. Ge O96) 12, 13, 14, 20

Allied Bank International v. Banco Credito

Agricola de Cartago, 757 F.2d 516 (2d Cir. 1985) ..... 24

Arango v. Guzman Travel Advisors Corp., 621

ee Se is NE ech chine oein 13

Association of Data Processing Service Oras.,

Tac. v. Camp, 397 U.S. 150 (1979) 21

Banco Nacional de Cuba v. Chase Manhattan Bank,

Boge Es Ba Ei EER eri eae ee 24

Banco Nacional de Cuba v. Sabbatino, 376 U.S.

BL.” Se Ree hee eee ens 11, 16, 17, 25

Banco de Espana v. Federal Reserve Bank, 114

re EE: Ce I = BN 2k a tile et alae pt; ae

Bank of America v. Superior Court, 20 Cal. 2d 697

RSS EAD es ot AER ae EN LAGI ysca tt x Misael oat eran 9

Bernstein v. Van Heyghen Freres Societe Anonyme,

163 F.2d 246 (2d Cir.), cert. denied, 332 U.S.

cig | gS ER or op nc Ar eecoROPOB See eae ne me 18

Bob Jones University v. United States, 456 U.S.

922 (1982) .....

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) ...... 12

Cohen v. Beneficial Industrial Loan Corp., 377 U.S.

Oe RN glide reheat pee Si eae Manesco cmncslrsecince 10

Construction Laborers v. Curry, 371 U.S. 542 (1962). 10

Continental Ore Co. v. Union Carbide & Carbon

Cr, re Mee CD ci 11,13

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) .. 10

¥

TABLE OF AUTHORITIES—Continued

Page

DeRoburt v. Gannett Co., 733 F.2d 701 (9th Cir.

1984), cert. denied, 469 U.S. 1159 (1985) 19

Department of Banking v. Pink, 317 U.S. 264 (1942) ..... 8

Dominicus Americana Bohio v. Gulf & Western

Industries, Inc., 473 F. Supp. 680 (S.D.N.Y. 1979) ...... 13

First Nat’l City Bank v. Banco Nacional de Cuba,

ON Cees AN CE bcectnecectgaceasn sence 16, 23, 24

Flynt v. Ohio, 451 U.S. 619 (1981) ............... 8, 10

Iran v. Boeing, — U.S. —, 106 S. Ct. 2243 (1986) ........... 25

Iron Arrow Honor Society v. Heckler, 464 U.S.

Or Cee eee ee 23

Jimenez v. Aristequieta, 311 F.2d 547 (Sth Cir.

1962), cert. denied sub nom., 373 U.S. 914 (1963) ..... 13

Kremens v. Bartley, 431 U.S. 119 (1977) oo... 23

Market Street R.R. Co. v. Railroad Comm’n., 324

Sy Ee Se RN wesc cetacean Gestion tee teamecuaes 8

Mills v. Alabama, 384 U.S. 214 (1966) cc ccccscccsssssseeee 10

National Socialist Party v. Skokie, 432 U.S. 43 (1977) 10

New York Land Co. v. Republic of Philippines,

634 F. Supp. 279 (S.D.N.Y.), aff’d sub nom.,

SOG Fe See Cane wikihisccceee eee 15

North Carolina v. Rice, 404 U.S. 244 (1971) ce 22

North Dakota Pharmacy Bd. v. Snyder’s Drug

Stores, Inc., 414 U.S. 156 (1973) 8

Occidental of UMM al Qaywayn, Inc. v. A Certain

Cargo of Petroleum, 577 F.2d 1196 (Sth Cir.

1978), cert. denied, 442 U.S. 928 (1979) css 24

Oetjen v. Central Leather Co., 246 U.S. 297 (1918) ........ 16

People v. Superior Court (Kizer), 155 Cal. App.

ee Dee SEOR? cine sae +

vi

TABLE OF AUTHORITIES—Continued

Page

Public Service Comm’n v. Wykoff, 344 U.S. 237 (1952) 21

Randone v. Appellate Department, 5 Cal. 3d 536 (1971) 9

Republic of Philippines v. Marcos, 806 F.2d 344

COE Coat I Knit cancentieeieiac nee 12, 14, 17, 18, 23, 24

Reynolds v. Superior Court, 64 Cal. 372 (1883) 0... 4

Sharon v. Time, Inc., 599 F. Supp. 538 (S.D.N.Y.

POET cnuamatiiiniaketees MA ea Rand oh 13

public of Nigeria, 647 F.2d 300 (2d Cir. 1981),

cert. denied, 454 U.S. 1148 (1982) _. R 16

Timberlane Lumber Co. v. Bank of America,

N.T. d S.A., 549 F.2d 597 (9th Cir. 1976) .............. 11

United States v. The Watchmakers of Switzer-

land Information Center, Inc., 1963 Trade Cas.

(CCH) {§ 70,600, at 77,456-57 (S.D.N.Y. 1962),

order modified, 1965 Trade Cas. (CCH) § 71,352

(TE Tics ha:: MIE. Acctemssicmaialionhimalsadiarmeamtaaaleande~ aa

Valley Forge Christian College v. Americans

United for Separation of Church and State, 454

U.S. 464 (1982) : 22

STATUTES AND CopEs

U.S. Const., Art. TT | 22

28 U.S.C. § 1257 5, 7,10

Cal. Civ. Proe. Code § 1086 9

Cal. Civ. Proce. Code § 1103 9

MISCELLANEOUS

MecManis, Questionable Corporate Payments

Abroad: An Antitrust Approach, 86 Yale L..J.

BD CRITE sncsnmsissieniapnishsneiiadiamnasiaaamateaiaa . 1

Restatement (Revised) of Foreign Relations Law

$469 (Tent. Draft No. 7, 1986) 11, 19, 24

a

No. 86-1292

In The

Supreme Court of the United States

October Term, 1986

ray

Vv

VINCENTE B. CHUIDIAN,

Petitioner,

Vs.

SUPERIOR COURT OF THE

STATE OF CALIFORNIA, IN AND FOR

THE COUNTY OF SANTA CLARA,

Respondent,

sy

mT

PHILIPPINE EXPORT AND FOREIGN LOAN

GUARANTEE CORPORATION, Real Party in Interest

ra

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

>.

Ww

STATEMENT OF THE CASE

Philippine Export and Foreign Loan Guarantee Cor-

poration (‘‘Philguarantee’’) moved to vacate a stipulated

judgment entered by the California Superior Court for

Santa Clara County on a settlement procured by fraud.

The ‘‘opinion’’ (Pet. at 2) of which petitioner Vincente B.

Chuidian seeks review is neither a decision on that motion,

nor an adjudication of Chuidian’s act of state defense; it

is only an order setting a hearing on Philguarantee’s mo-

tion to vacate. That hearing is currently scheduled for

April 7, 1987.

1

Philguarantee is a Philippine corporation, wholly-

owned by the Philippine government, which guarantees

loans for economic development in the Philippines. In late

1980, Chuidian and one of his companies, Asian Reliability

Co., Ine. (*‘ ARCI’’), applied for $25 million in loans, prom-

ising to use the loan proceeds for specific projects to de-

velop the Philippine semiconductor industry. Based on

that promise, Philguarantee guaranteed the loans. Chui-

dian did not use the money to develop the Philippine semi-

conductor industry. Instead, he purchased stock in several

Silicon Valley firms. ARCI and Chuidian defaulted on the

loans in 1984, and Philguarantee was forced to pay $25 mil-

lion plus interest on its guarantee.

In May 1985, Philguarantee filed suit against Chuidian

in California State Court to reeover the $25 million it paid

as guarantor on Chuidian’s fraudulently procured and il-

legally diverted loans. Soon after the lawsuit was filed,

however, then-President Ferdinand Marcos (through var-

ious emissaries) began conducting secret settlement nego-

tiations with Chuidian. Chuidian threatened to reveal evi-

dence damaging to Marcos and his family, and Marcos re-

sponded by pressuring Philguarantee to accede to Chui-

dian’s settlement demands.

The settlement agreement gave Chuidian an enormous

windfall. It required Philguarantee, the injured party, to

(1) guarantee a payment to Chuidian of $5.3 million; (2)

release its security interest in over two and a half million

shares of stock in the Silicon Valley companies Chuid‘an

had purchased; and (3) give up more than $25 million in

claims against Chuidian and the companies he controlled.

In “‘return,’’ in a secret side agreement never filed with

the state Court and signed only by Chuidian and Mareos’s

3

personal representative, Chuidian promised to execute an

affidavit denying the Marcos family’s secret financial in-

volvement in Chuidian’s companies and to suppress evi-

dence of it. At Chuidian’s insistence, the settlement agree-

ment (but not the secret side agreement) was presented to

the California Superior Court, which entered a stipulated

judgment on it.

After Marcos was deposed and forced to leave the Phil-

ippines in February 1986, Philguarantee moved to reopen

the case on the ground that the settlement agreements and

stipulated judgment had been procured through illegality,

duress and fraud. Chuidian opposed any inquiry into the

settlement, asserting among other things that the act of

state doctrine barred examination of Marcos’s motivation

in coercing the agreements. On May 16, 1986, the court set

a hearing date in June 1986 to address the motion.

It soon became clear that discovery delays —prineipally

due to the procedural difficulties of issuing letters rogatory

and securing deposition subpoenas for third party witnesses

in the Philippines—would make a June hearing impossible.

Accordingly, Philguarantee requested that the hearing be

taken off calendar to allow the necessary discovery.

On June 17, 1986, the parties attended a hearing on

Chuidian’s motion for writ of execution against Philguar-

untee based on the stipulated judgment. Philguarantee op-

posed the writ in part on the ground that the underlying

settlement agreements had been wrongfully procured, and

sought postponement of execution so that full discovery on

the issues could be taken. Chuidian opposed consideration

of this evidence on the basis of the act of state doctrine.

The court granted Chuidian’s motion for a writ of ex-

ecution against Philguarantee. The court stated that be-

4

cause Philguarantee’s motion to vacate the stipulated judg-

ment had been taken off calendar, there was no basis for

denying the writ. The court made no decision on the act of

state issue, noting that ‘‘at this point there is nothing be-

fore the Court that will permit the Court to enter into that

inquiry.’’ (App. A.4) It then rescheduled the hearing on

Philguarantee’s motion to vacate.’

Chuidian did not give the Superior Court an oppor-

tunity to address the merits of his act of state defense. On

August 6, 1986, he petitioned the State Court of Appeal for

various writs and requested an immediate stay of proceed-

ings in the Superior Court.2 The Court of Appeal granted

the stay before receiving Philguarantee’s papers. (App.

A-1, A-1.2) It then requested advice from the U.S. State

Department on the effect that adjudication of this case

would have on U.S. foreign policy. (App. B) The Court of

Appeal, however, acted on the petition without ever receiv-

ing a response from the State Department;’ after receiving

: The hearing has been postponed several times to allow the

time necessary for international discovery. The hearing cur-

rently is scheduled for April 7, 1987.

a His writ petition was untimely under the California rule

that writ petitions should be filed within the 60-day period that

would govern the filing of a notice of appeal if the issue were

appealable. See Reynolds v. Superior Court, 64 Cal. 372, 373

(1883); People v. Superior Court (Kizer), 155 Cal. App. 3d 932

(1984).

’ Counsel for Philguarantee has checked the files of the

Court of Appeal. The only communication from the U.S. govern-

ment is a letter from William Kanter of the Department of

Justice, who wrote that the Solicitor General’s office would

have to approve any statement and that no statement could be

sent within the time period requested by the court. Mr. Kanter

said he would let the court know if the U.S. government in-

tended to send a letter. No further communication is in the

Court's files.

5

Philguarantee’s papers, the court, without opinion, denied

the writ petitions and dissolved the stay. (App. A-2, A-3)

The California Supreme Court denied Chuidian’s peti-

tion for review on November 12, 1986, also without opinion.

Now Chuidian seeks review here.

SUMMARY OF ARGUMENT

1. Chuidian asks the Court to review whether the act

of state doctrine bars all inquiry into the validity of the

settlement agreement upon which the stipulated judgment

in this case is based. The Court should refuse to grant re-

view of this issue for two reasons:

a. ‘The Court does not have jurisdiction to review

this case now because there has been no ‘final judgment’’

(or indeed, any judgment) by the ‘‘highest court of [the]

state in which a decision could be had’’ on the act of state

issues. 28 U.S.C. § 1257. The ‘‘judgment”’ that Chuidian

seeks to have reviewed is, at most, a decision by a trial court

to set a hearing at which the act of state defense first will

be addressed. That hearing has not yet taken place and

neither the decision to set the hearing, nor the appellate

courts’ refusal to review that interlocutory decision by ex-

traordinary writ, satisfies the jurisdictional requirements

of 28 U.S.C, § 1257.

b. Because the California courts have not issued

a decision on the act of state issues, there is no conflict be-

tween a state court of last resort and decisions of this or

other federal courts. In fact, the legal issues he raises are

largely settled. The act of state doctrine was created to

6

preclude interference by the judiciary into U.S. foreign

affairs. It applies to bar adjudication only of public acts

committed by a sovereign while acting on behalf of the

government he is pledged to represent. Where, as here, the

sovereign involved no longer is in power and the present

acministration has consented to adjudication by the U.S.

courts, there is no reason to apply the doctrine. Moreover,

it is premature to decide the act of state issues because

there is no factual record by which a court could determine

whether the acts involved are actually acts of state.

2. Chnuidian asks the Court to review the propriety of

the California Court of Appeal’s request for a statement by

the U.S. State Department on the effect that ‘‘inquiry into

the circumstances surrounding the Chuidian-[ Philguaran-

tee] settlement and stipulated judgment may have on [the

government’s] foreign relations and ability to conduct its

foreign policy.’’ (App. B.1) The Court should not review

this issue for two reasons:

a. There is no justiciable controversy here. The

State Department never filed a statement with the Court

of Appeal, and the court denied Chuidian’s writ petition

without ever addressing the merits of the purported act of

state issues. Thus, there is nothing to review; Chuidian is

simply asking for an advisory opinion on a matter of no

consequence.

b. The Court of Appeal’s request does not violate

the policy concerns on which the act of state doctrine rests.

The court merely sought the State Department’s guidance

on whether the acts in question would undermine U.S.

foreign relations. Courts, including this one, often have re-

quested and considered such opinions, recognizing that the

7

views of the Executive Branch, while relevant, are not dis-

positive. Thus, the procedure employed would not have im-

paired judicial independence—even if it had been carried

out.

REASONS FOR DENYING THE WRIT

I. THERE IS NO JURISDICTION UNDER SEC-

TION 1257 BECAUSE THE CALIFORNIA

COURTS HAVE NOT YET RULED ON THE

ISSUES SOUGHT TO BE REVIEWED.

Chuidian invokes the Court’s jurisdiction under 28

U.S.C. § 1257(3). That section provides:

Final judgments or decrees rendered by the highest

court of a state in which a decision could be had, may

be reviewed by the Supreme Court as follows:

. (8) By writ of certiorari, where the validity of

a treaty or statute of the United States is drawn in

question or where the validity of a state statute is

drawn in question on the ground of its being repug-

nant to the Constitution, treaties or laws of the United

States, or where any title, right, privilege or immunity

is specially set up or claimed under the Constitution,

treaties or statutes of. or commission held or authority

exercised under, the United States.

28 U.S.C. § 1257(3). The ‘‘opinion’’ (Pet. at 2) Chuidian

wants reviewed is not a ‘‘final judgment or decree.’’ The

Court therefore has no jurisdiction to consider this case,

and Chuidian’s Petition should be denied.

To determine whether there is a ‘‘final judgment?’

under Section 1257, ‘‘the test is . . . whether the record

shows that the order of the appellate court has in fact

fully adjudicated rights and that the adjudication is not

subject to further review by a state court.’’ Department

of Banking v. Pink, 317 U.S. 264, 268 (1942); see also

Market Street R.R. Co. v. Railroad Comm’n., 324 US.

548, 551 (1945) (state court judgment ‘‘must be subject

to no further review or correction in any other state tri-

bunal; it must also be final as an effective determination

of the litigation and not of merely interlocutory or inter-

mediate steps therein. It must be the final word of the

final ecourt’’). The finality rule is designed to avoid the

‘‘mischief of economic waste and delayed justice,’’ North

Dakota Pharmacy Bd. v. Snyder’s Drug Stores, Inc., 414

U.S. 156, 159 (1973), that results from ‘‘piecemeal re-

view.’’? Flynt v. Ohio, 451 U.S. 619, 621 (1981). Moreover,

‘‘[t]his prerequisite to review derives added force when

the jurisdiction of this Court is invoked to upset the de-

cision of a state court.’’ North Dakota Pharmacy, above,

414 U.S. at 159.

There has been no ‘‘final word of the final court’’ on

Chuidian’s act of state defense. Market Street R.R.

Comm’n above, 324 U.S. at 551. Indeed, there has been no

word of any kind from any court on that issue. The June

17 hearing that Chuidian cites as the source of the Su-

perior Court’s ‘‘opinion’’ (Pet. at 2) concerned Chuidian’s

request for a writ of execution. The court granted that

writ because there was no basis for denying it. (App. A.5)

The court expressly declined to rule on the merits of

Philguarantee’s motion to vacate or on Chuidian’s act

of state defense, for they were not before the Court.

[A]t this point there is nothing before the Court that

will permit the Court to enter into [the act of state]

inquiry because [Philguarantee has] withdrawn [its]

request for relief in connection with the motion to

set aside the judgment based upon the fraudulent stip-

ulation.

(App. A. 4) The court then set a date for a hearing on

the motion and the act of state defense. (App. A.6-A.7)

An order scheduling a hearing to consider an issue

is not a decision or judgment on that issue, final or other-

wise, but that is all the court did and all there is for this

Court to review. Nor do Chuidian’s unsuccessful and pre-

mature writ petitions change the preliminary character of

the lower court’s action. If that were the law, the ‘‘final

judgment’’ requirement would be written out of Section

1257.

Extraordinary writs are easily filed but rarely granted

and the denial of such a writ may reflect only a concern

for orderly appellate review rather than any position on

the merits. Thus, under California law, review by extra-

ordinary writ is available only when the issues have been

decided below and cannot adequately be addressed on ap-

peal at the end of the case. See, e.g., Cal. Civ. Proc. Code

§$§ 1086, 1103 (writs of mandate and prohibition will only

issue ‘‘where there is not a plain, speedy, and adequate

remedy in the ordinary course of law’’); Randone v. Ap-

pellate Department, 5 Cal. 3d 536, 543 (1971) (mandamus

proper where interlocutory decision otherwise unreview-

able); Bank of America v. Superior Court, 20 Cal. 2d 697,

703 (1942) (‘‘eertiorari will not lie if the effect of the

order sought to be annulled can be reviewed and nullified

on an appeal from the final judgment’’). The more pre-

mature the petition or the more effective the appellate

option, the less likely it is that a writ will issue. The

state appellate courts here did not decide any issue on the

10

merits. They rendered simple orders declining review by

extraordinary writ. Surely that does not convert an order

that does nothing but set a hearing date into a ‘‘final

judgment.”’

Chuidian seeks premature and piecemeal review. There

has not yet been a ruling, nor even any hearing, on his

act of state defense.* The Court therefore has no jurisdic-

tion to review the case.

II. THE ACT OF STATE ISSUES THIS CASE PRE-

SENTS ARE NOT UNRESOLVED QUESTIONS

OF LAW.

On procedural grounds alone, this Court should deny

review. Even if the Superior Court’s dicta were construed

as a ruling, however, this Court still should not review this

ease. The issues Chuidian raises are largely settled issues

of law and turn on facts that have not yet been developed.

. This case is not within the narrow class of cases in which

the finality requirement of Section 1257 may be satisfied before

the termination of the action. Chuidian’s act of state defense

is central to the ongoing proceedings below; it is not a col-

lateral federal question that has been finally adjudicated. Na-

tional Socialist Party v. Skokie, 432 U.S. 43 (1977); Construction

Laborers v. Curry, 371 U.S. 542, 549 (1963); see also Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Chuidian

will have a hearing on his defense and a right to appeal from

any adverse decision, so denial of review now will not deprive

him of a meaningful review later. Curry, 371 U.S. at 550. Nor

will it effectively dispose of any protected right in the meantime.

Mills v. Alabama, 384 U.S. 214, 217 (1966); Abney v. United

States, 431 U.S. 651, 657 (1977). Finally, the scheduling of a

hearing to address act of state issues does not threaten to under-

mine the federa! policy embodied by that doctrine. Flynt v.

Ohio, 451 U.S. 619 (1981); Cox Broadcasting Corp. v. Cohn, 420

U.S. 469 (1975). See § II1.A, below. In sum, to grant review here

would be to create an exception to the finality rule that would

“swallow the rule.” Flynt v. Ohio, 451 U.S. at 622.

11

Sup. Ct. Rule 17.1(c). Nor does the Superior Court’s pur-

ported ‘‘opinion’’ (Pet. at 2) conflict with any federal

law. Sup. Ct. Rule 17.1(b).

A. A COURT MAY REVIEW THE MOTIVATIONS

OF A FOREIGN SOVEREIGN TO DETERMINE

WHETHER THE ACT OF STATE DOCTRINE

APPLIES.

Chuidian first claims that to determine whether the

act of state doctrine applies here, a court must examine

the motivations of a foreign sovereign and that this exami-

nation itself is precluded by the doctrine. (Pet. at 12) He

then maintains that the California courts have ruled con-

_ trary to his version of the federal law. (/d.) Neither of

these arguments is correct.

The California courts have not yet ruled on this issue

at all, let alone ruled contrary to federal authority. (Pp.

7-10, above.) And the law is settled that the courts may

scrutinize the motivations of the foreign sovereign to see

if the challenged acts are actually acts of state. Restate-

ment (Revised) of Foreign Relations Law § 469 at 59

(Tent. Draft No. 7, 1986). In Banco National de Cuba v.

Sabbatino, 376 U.S. 398, 423 (1964) (‘‘Sabbatino’’), this

Court held that the act of state doctrine ‘‘does not irre-

vocably remove from the judiciary the capacity to review

the validity of foreign acts of state.’? See also Timber-

lane Lumber Co. v. Bank of America, N.T. & S.A. 549

F.2d 597, 606 (9th Cir. 1976), citing Continental Ore Co.

v. Union Carbide & Carbon Corp., 370 U.S. 690 (1962)

(‘the doctrine does not bestow a blank-check immunity

upon all conduct blessed with some imprimatur of a

foreign government’’).

12

Indeed, the law is clear that a court must examine

the facts of the foreign sovereign’s acts and motives to

determine whether denial of the defense would thwart its

underlying policy concerns. Thus, the party invoking the

defense must prove that the challenged acts were in fact

publie acts and ratified by the foreign sovereign. Re-

public of Philippines v. Marcos, 806 F.2d 344, 359 (2d Cir.

1986). If the facts suggest they were not, the act of state

doctrine does not apply. Alfred Dunhill of London v. Re-

public of Cuba, 425 U.S. 682, 694-95 (1976). Even if the

acts are public, a court may decline to apply the doctrine

if the foreign government involved is no longer in power

or if the foreign state has come into the U.S. courts to

seek adjudication of its controversies. Republic of Philip-

pines, 806 F.2d at 359. In short, Chuidian’s version of

how a court may apply the doctrine is dead wrong.

B. THE ACT OF STATE DOCTRINE DOES NOT

APPLY WHERE THE SOVEREIGN ACTS UL-

TRA VIRES.

Chuidian next urges this Court to grant certiorari to

resolve the allegedly undecided question of ‘‘when, if at

all, the private interest of third parties or personal interest

of foreign government officials may render the actions of

officials not official acts of state. ...’’ (Pet. at 15)

This is not an undecided question. To the contrary, it is

well settled that where the sovereign acts ultra vires

the act of state doctrine does not apply. Only when an

official acts in an official capacity will judicial review be

barred. Filartiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir.

1980) (‘‘{WJe doubt whether action by a state official in

violation of the Constitution and laws of the Republic of

Paraguay, and wholly unratified by that nation’s govern-

IBubinddterse ne

13

ment, could properly be characterized as an act of state’’) ;

Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371,

1380 & n.11 (5th Cir. 1980); Jimenez, above, 311 F.2d at

597-58 (doctrine rejected where chief of state, accused of

embezzlement, fraud, and breach of trust, found to have

committed crimes in violation of his position, not in pur-

suance of it); Sharon v. Time, Inc., 599 F. Supp. 538, 544-

45 (S.D.N.Y. 1984) (‘‘The actions of an official acting

outside the scope of his authority as an agent of the state

are simply not acts of state. In no sense are such acts

designed to give effect to a State’s public interests’’) ;

Dominicus Amerwana Lohio, above, 473 F. Supp. at 690

(‘‘{E]ven an unrepudiated act of state may be scrutinized

by the courts if it resulted from the corruption of govern-

ment officials’’).

The doctrine bars adjudication only of formal acts of

the foreign government, such as legislative acts, regula-

tory decrees, or official pronouncements. Dunhill, above,

425 U.S. at 706; Jimenez v. Aristeguieta, 311 F.2d 547,

557-58 (Sth Cir. 1962). cert. denied sub nom., 373 U.S. 914

(1963); Dominicus Americana Bohio v. Gulf & Western

Industries, Inc., 473 F. Supp. 680, 689 (S.D.N.Y. 1979). In

such instances, the official acts with the knowledge and

approval of the state he or she is pledged to represent.

Another relevant factor is whether the foreign government

has ratified or tried to undo the challenged act. See, e.g.,

Continental Ore, above, 370 U.S. at 706-07 (doctrine in-

applicable where corporation acted through agent of

foreign government but without government’s official ap-

proval); MeManis, Questionable Corporate Payments

Abroad: An Antitrust Approach, 86 Yale L.J. 215, 236-37

(1976). Moreover, a private act does not become official

14

simply because the governmental actor covers his or her

tracks with sham documentation. See, e.g., United States

v. The Watchmakers of Switzerland Information Center,

Inc., 1963 Trade Cas. (CCH) {70,600 at 77,456-57 (S.D.

N.Y. 1962, order modified, 1965 Trade Cas. (CCH)

771,352 (S.D.N.Y. 1965).

The Second Circuit recently reaffirmed these settled

principles in a case virtually identical to this one, a case

Chuidian conspicuously fails to cite. In Republic of Philip-

pines, above, the Second Circuit upheld the district court’s

refusal to apply the doctrine to preclude judicial review

of illegal acts Marcos committed while President of the

Philippines. In so doing, it reiterated that for the doc-

trine to apply, the acts must be public acts of the sovereign.

806 F.2d at 358.

In sum, contrary to Chuidian’s claim (Pet. at 15), the

legal issues are resolved. Courts may examine the motiva-

tions of a sovereign official to determine whether the act

of state doctrine should apply. Drawing the distinction

between public and private acts may be difficult, but courts

have repeatedly done it. Dunhill, above, 425 U.S. at 695

(‘‘Distinguishing between the public and governmental

acts of sovereign states of the one hand and their private

and commercial acts on the other is not a novel approach’’).

And the guidelines for doing it are clear.

C. THE RECORD IS INADEQUATE TO DECIDE

ANY ACT OF STATE ISSUE.

There is no undecided issue of law here. But even if

there were, this is not the right case to review it. To

determine whether the act of state doctrine applies, a court

must decide whether the acts at issue are in fact acts of

15

state. This requires a developed factual record, which does

not exist here. At the time of the Superior Court’s alleged

‘‘opinion’’ (Pet. at 2), no discovery had yet taken place.

Indeed, Philguarantee had taken its motion to vacate off

calendar because there was not enough time to develop the

record before the hearing. Absent a complete factual

record, it is impossible to determine whether the fraudu-

lently obtained settlement agreement which Philguarantee

seeks to vacate was a public act of the predecessor Philip-

pine regime or effected by Marcos for his personal gain.

Because the Court cannot decide Chuidian’s motivation

issue in a vacuum, it should decline review. See New York

Land Co. v. Republic of Phitippines, 634 F. Supp. 279,

289 (S.D.N.Y.), aff’d sub nom., 806 F.2d 344 (1986) (recog-

nizing that development of further factual evidence was

necessary before it could decide whether the act of state

doctrine applied).

D. THE ACT OF STATE DOCTRINE APPLIES

ONLY WHERE ADJUDICATION WILL HIN-

DER U.S. FOREIGN RELATIONS.

Chuidian conjures up a parade of horribles to persuade

the Court to review this case. He claims that the Superior

Court’s setting of a hearing will lead to wholesale repudia-

tions by foreign nations of their commercial obligations.

(Pet. at 26) And he asks for a ruling ‘‘that the act of

state doctrine prevents repudiation of foreign debt on

political grounds by successor regimes.’’ (Pet. at 29)

Chuidian misses the point. Under this Court’s rulings, the

act of state doctrine only applies when adjudication will

hinder U.S. foreign relations or will cause disrespect for

foreign states. Chuidian’s convoluted analvsis misconstrues

£ .

_ 16

this policy, ignores well-established case law, and exag-

gerates the importance of this case.

The act of state doctrine was created to avoid judicial

interference with U.S. foreign affairs. First Nat’l City

Bank v. Lanco Nacional de Cuba, 406 U.S. 759, 765-66

(1972); Sabbatino, above, 376 U.S. at 425. It also was

intended to avoid disrespect for foreign governments with

the attendant risks of imperiling amicable relations and

vexing the peace of nations. Sabbatino, above, at 431-52;

Oetjen v. Central Leather Co., 246 U.S. 297, 394 (1918). In

accordance with this policy, to determine whether the

doctrine applies, a court must consider the impact of the

adjudication on foreign affairs.

Act of state analysis depends upon a careful case-

by-case analysis of the extent to which the separation

of powers concerns on which the doctrine is based

are implicated by the action before the court.

Texas Trading & Milling Corp. v. Federal Republic of Nv-

geria, 647 F.2d 300, 316 n.38 (2d Cir. 1981), cert. denied,

454 U.S. 1148 (1982). Where the issue is unlikely to affect

our foreign relations, the justification for applying the doe-

trine is considerably weakened. Sabbatino, above, 376 U.S.

at 428.

Consistent with these principles, the lower courts have

articulated factors that mitigate the need for act of state

treatment of even some official acts. There is no dispute

about the validity of this analysis, and thus no need for

this Court’s review.

——

17

1. There Can Be No Effect on U.S. Foreign Policy

Because Marcos Is No Longer President.

In Sabbatino, this Court stated that ‘‘in its traditional

formuiction’’ the act of state doctrine ‘‘ precludes the courts

of the United States from inquiring into the validity of the

public acts a recognized foreign sovereign committed within

its own territory.’’ 376 U.S. at 401 (emphasis added). The

Court further indicated that a change of regime may make

the act of state doctrine inapplicable:

The balance of relevant considerations may .. . be

shifted if the government which perpetrated the chal-

lenged act of state is no longer in existence ... for the

political interest of this country may, as a result, be

measurably altered.

Id. at 428.

There has been such a change of government in this

case. Marcos is no longer the President of the Philippines.

and the U.S. no longer has diplomatic relations with him.

Moreover, no act of the current Philippine government is at

issue. In fact, the present government supports the position

of Philguarantee challenging the former President. Thus,

the political interest of the United States has been ‘‘meas-

urably altered,’’ Sabbatimo, 376 U.S. at 428, and inquiry

into Marcos’s actions will not affeet U.S. relations with the

Philippines. The Second Cireuit came to this very con-

clusion only months ago. See Republic of Philippines,

above, 806 F.2d at 359 (‘| T]he danger of ixterference with

the Executive’s conduct of foreign policy is surely much

less than the typical case where the act of state is that of

the current foreign government.’’)

Chuidian ignores this case and the settled principles on

which it is based. He relies instead on two dated Second

Circuit opinions, Banco de Espana v. Federal Reserve

18

Bank, 114 F.2d 438 (2d Cir. 1940) and Bernstein v. Van

Heyghen Freres Societe Anonyme, 163 F.2d 246, 249 (2d

Cir.), cert. denied, 332 U.S. 772 (1947), which that Circuit

in considering this issue expressly disapproved. Republic

of Philippines, above, 806 F.2d at 359. Thus, the law is set-

tled that where, as here, the sovereign whose acts are

challenged no longer presides, the act of state doctrine

should not apply. There is therefore no issue that war-

rants this Court’s attention.

2. There Is No Reason to Invoke the Doctrine

Where, As Here, the Foreign Entity Submits

to Adjudication by a U.S. Court.

There is also no reason to apply the act of state doc-

trine where, as here, the foreign state asks the U.S. courts

to scrutinize its actions. Where the government consents to

the adjudication, the doctrine should not apply. See, e.g.,

Republic of Philippines, above, 806 F.2d at 359; McManis,

86 Yale L.J. at 235 (‘‘Of course, if the foreign government

itself brings the action, the act of state doctrine is an un-

tenable defense, for the government in effect is calling for

judicial inquiry’’).

Here, both Philguarantee and the present Philippine

government sought adjudication of their disputes with

Chuidian. In so doing, they acknowledged that their actions

would be subject to external examination. Philguarantee

filed its complaint against Chuidian in May 1985 seeking

damages for Chuidian’s wrongful conversion of $25 million

in loans, and in 1986 filed its motion to vacate the se tle-

ment agreements. The Presidential Commission on Good

Government, the arm of the current Philippine administra-

tion charged with investigating Marcos’s corruption, also

19

has approved judicial review. It requested the Superior

Court to extend the time before hearing so that the results

of its own investigations into the settlement could be in-

corporated into the evidence before the court.

Chuidian has cited no controlling contrary authority.

In neither DeRoburt v. Gannett Co., 733 F.2d 701 (9th Cir.

1984), cert. dented, 469 U.S. 1159 (1985), nor Banco de

Espana v. Federal Reserve Bank, 114 F.2d 438 (2d Cir.

1940), did the existing government initiate the action.

Thus, even if the trial court’s passing reference to the act

of state doctrine is treated as a ruling, it is not contrary to

any federal law. Moreover, Chuidian’s truncated citation

of the Restatement (Pet. at 19) seriously misleads the

Court. In a portion omitted by Chuidian, the Restatement

says:

When a state has expressly subjected certain kinds of

obligations to adjudication in the courts or arbitral

tribunals of another state, it may be said to have

acknowledged that its actions with respect to those ob-

ligations take place in the international arena and are

subject to international scrutiny, and in such cases the

justification for applying the act of state doctrine is

significantly weaker.

Restatement (Revised) of Foreign Relations Law § 469 at

56 (Tent. Draft No. 7, 1986) (emphasis added). There is

no need for this Court to articulate a different rationale.

3. Refusal to Apply the Doctrine Here Will Not

Undermine Twenty Years of Philippine Obli-

gations.

Finally, Chuidian argues that ‘‘[t]he publie policy in-

terest in the security of international debt, requires articu-

lation in act of state analysis by this Court.’’ (Pet. at 27)

20

He attempts to aggrandize this case, claiming that if the

act of state doctrine is found not to apply, it will invite

‘‘wholesale repudiation of foreign debt undertaken by the

Marcos government.’’ (Pet. at 24) He even implies that

unless the Court intervenes in the Superior Court’s decision

to set a hearing, other governments owing substantial sums

to U.S. interests will ignore their financial obligations.

(Pet. at 26)

These contentions are ludicrous. There is no threat to

undercut every ‘‘debt obligation undertaken by the Marcos

government during the more than twenty years of Marcos

rule.’’ (Pet. at 25) The present Philippine government has

not repudiated any commercial debt here. Rather, this case

involves Marcos’s relations with one individual, which re-

sulted in a secret, illegal, and fraudulently induced settle-

ment agreement. Thus, there is no reason to believe resolu-

tion of this action will affect any commercial obligations be-

tween the former Marcos government and U.S. entities.

Even if it did, a plurality of this Court already has indi-

cated that the act of state doctrine does not apply to com-

mercial debts. Dunhill, above, 425 U.S. at 695, 705.°

° Nor does this case call for an extension of the act of state

doctrine to preclude review of a successor government's efforts

to void a financial obligation of a prior administration. (Pet. at

29) Courts can walidate such actions under the rule of state

succession, a substantive principle of international law. That

rule should not be extended to bar adjudication at the outset

of the issues presented here. Courts should continue to decide

these issues by applying the substantive rule, if appropriate,

rather than abstaining from reviewing the question altogether

under an expanded interpretation of acts of state.

21

III. THIS COURT SHOULD NOT RENDER AN AD-

VISORY OPINION ON THE COURT OF AP.-

PEAL’S REQUEST FOR THE VIEWS OF THE

STATE DEPARTMENT.

A. THE COURT OF APPEAL’S ACTION DOES

NOT PRESENT A JUSTICIABLE CONTROVER.

SY.

Chuidian says that the Court of Appeal acted improp-

erly in requesting the views of the State Department on the

effect that adjudication of this case would have on U.S.

foreign relations. The court’s action was proper. But even

if it weren’t, nothing ever came of the court’s request.

Thus, in this Court’s words, ‘‘One naturally asks, ‘So

what?’ ’’ Public Service Comm’n v. Wykoff, 344 U.S. 237,

244 (1952). Despite Chuidian’s suggestions to the contrary

(Pet. at 30), the Court of Appeal acted before receiving a

response from the State Department, and as far as we

know, no response ever came. A non-existent response

could not have influenced the Court’s decision to deny

Chuidian’s request for extraordinary relief. In short, there

is nothing to review.®

Because there is no evidence that there ever was a

State Department response, Chuidian cannot claim that

‘“‘the challenged action [here, the Court of Appeal’s re-

quest for a State Department letter] has caused him injury

in fact.’’ Association of Data Processing Service Orgs.,

6 Chuidian challenges “the procedure employed by the

Californa Court of Appeals,” which he says was ‘validated by

the order of the California Supreme Court.’”” (Pet. at 31) This

misstates the facts. The so-called “procedure” consisted of a

request for advice that never came. Far from “validating” the

nonexistent “procedure,” the Supreme Court simply denied re-

view without comment.

22

Inc. v. Camp, 397 U.S. 150, 152 (1970). Nor can he say

that a favorable decision on this issue will provide him with

any meaningful redress. He therefore has no standing to

challenge the Court of Appeal’s action and review should

be denied. Valley Forge Christian College v. Americans

United for Separation of Chueh and State, 454 U.S. 464,

472 (1982) (‘tat an irreducible minimum, Article III re-

quires the party who invokes the court’s authority to

‘show that he personally has suffered some actual or

threatened injury as a result of the putatively illegal con-

duct of the defendant,’ and that the injury ‘fairly can be

traced to the challenged action,’ and ‘is likely to be re-

dressed by a favorable decision’’’) (citations omitted).

More fundamentally, there is no action to challenge

and therefore no ‘‘ease or controversy.’’ U.S. Const.,

Art. ITT.

A justiciable controversy is... distinguished from a

difference or dispute of a hypothetical or abstract

character; from one that is academic or moot...

It must be a real and substantial controversy ad-

mitting of specific relief through a decree of a con-

elusive character, as distinguished from an opinion

advising what the law would be on a hypothetical state

of facts.

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)

(citations omitted); see also North Carolina v. Rice, 404

U.S. 244, 246 (1971). Chuidian wants an opinion on

whether a Court may ask for the views of the federal

government, and the ‘‘weight’’ and ‘‘proper procedure to

be accorded expressions of opinion by the Executive” (Pet.

at 34) once they are received. Where there was no State

Department letter, let alone a decision based on it, the

23

issue is not ripe for adjudication, and the Court will not

give an advisory opinion. Even if the Court of Appeal’s

request for the letter initially presented a justiciable con-

troversy, its denial of the writ without opinion before

receiving a response made the issue moot. See Iron Arrow

Honor Society v. Heckler, 464 U.S. 67 (1983); Kremens v.

Bartley, 431 U.S. 119 (1977).

There never was a justiciable issue here. If there ever

were, it is now moot. There is nothing to review, and

Chuidian’s petition should be denied.

B. THE REQUEST ITSELF DOES NOT VIOLATE

THE ACT OF STATE DOCTRINE.

According to Chuidian, a court may never request the

views of the Executive Branch in reaching a decision that

concerns Executive Branch prerogatives. (Pet. at 30-35)

If Chuidian were correct, no court could ever seek briefs

of amici curiae to clarify act of state (or any other) issues.

Chuidian’s proposal is absurd on its face.

This Court has approved consideration of the Execu-

tive Branch’s views in resolving act of state issues. See,

e.g., First National City Bank v. Banco Nacional de Cuba,

406 U.S. 659, 768 (1972) (‘‘We conclude that where the

Executive Branch, charged as it is with primary respon-

sibility for the conduct of foreign affairs, expressly rep-

resents to the Court that application of the act of state

doctrine would not advance the interests of American for-

eign policy, that doctrine should not be applied by the

courts’’). The lower courts have followed suit. In Re-

public of Philippines, 806 F.2d at 356-57, 360, for instance,

the Second Circuit took into account the State Depart-

ment’s opinion that it would not fear embarrassment if the

24

U.S. courts adjudicated disputes between the Philippine

government and ex-President Marcos before scrutinizing

the acts in question. See also Allied Bank International

v. Banco Credito Agricola de Cartago, 757 F.2d 516 (2d

Cir. 1985) ; Occidental of UMM al Qaywayn, Inc. v. A Cer-

tain Cargo of Petroleum, 577 F.2d 1196, 1204 & n.14 (Sth

Cir. 1978), cert. denied, 442 U.S. 928 (1979) (‘‘it is none-

theless clear that whether the state department believes

that judicial action would interfere with its foreign rela-

tions is germane to whether a court may decide actions in-

volving foreign relations’’).

Considering the views of the Executive Branch does

no violence to the separation of powers policy on which

the act of state doctrine rests. The opinion of the Execu-

tive Branch is relevant to act of state issues, though not

dispositive. First National City Bank, above, 406 U.S. at

773 & n.4 (Douglas J., concurring in result); 7d. at 775-76

(Powell, J., concurring in judgment); see also Republic

of Philippines, above, 806 F.2d at 358; Banco Nacional

de Cuba v. Chase Manhattan Bank, 658 F.2d 875, 884 (2d

Cir. 1981). As the American Law Institute stated in the

Restatement (Revised) of Foreign Relations Law:

It seems that if the State Department issnes a letter

requesting that the courts not review the validity of

a particular act, such a letter will be highly persuasive

if not binding .... If the State Department issues a

letter stating that it has no objection on foreign rela-

tions grounds to adjudication of the validity of a given

act of a foreign state, U.S. courts will make their

own determination as to whether to apply the act of

state doctrine, taking the view of the Executive Branch

into account but not being bound by it.

Alin etme ha

Pe A ee

25

9 469 at 69. Thus, there is no threat that a request for

advice will hinder judicial independence in deciding these

issues.’

In requesting the views of the State Department, the

California Court of Appeal did not agree to be bound by

the Executive Branch’s position. It merely sought the

U.S. government’s views ‘‘[t]o aid its determination’’ on

issues which potentially could implicate U.S. foreign af-

fairs. (App. B-1) As it turned out, the court declined

review, so any advice was moot. Even if the advice were

relevant, however, the court’s action is no different from

requesting briefs of amici curiae, a practice recognized

and used by this Court. See, e.g., Iran v. Boeing, — U.S.

—, 106 S. Ct. 2243 (1986) (‘‘The Solicitor General is in-

vited to file a brief in this case expressing the views of

the United States’’); Bob Jones University v. United

States, 456 U.S. 922 (1982). In no way does the request

for advice require ‘‘an abandonment of judicial inde-

pendence.’’ (Pet. at 33) The court simply seeks guidance

from the Executive on the potential threat to foreign

relations the case may present.

L Nor, as Chuidian maintains (Pet. at 31), does this Court's

decision in Sabbatino suggest a different result. There, the

Court rejected the suggestion of amici curiae that when the

Executive Branch expressly stipulates that it does not wish a

court to adjudicate the issues presented, its views should be

dispositive. 376 U.S. at 436. It recognized, however, that the

opinion of the Executive may be a relevant factor to a court's

determination.

°

26

CONCLUSION

Chuidian wants to bypass the entire state court sys-

tem and try his act of state defense in this Court in the

first instance. This Court does not sit to try cases. Nor

does it sit to give advisory opinions. Here there is no

developed factual record, nor are there any reasoned de-

cisions by the California courts below. The Court should

deny Chuidian’s Petition.

Respectfully submitted,

JoHn R. Reese*

James P. KiLEINBERG

Betu H. Parker

Lesuiz G. Lanpau

Three Embarcadero Center

San Francisco, CA 94111

Telephone: (415) 393-2000

Attorneys for Respondent

*Counsel of Record

McCurtcHeEn, DoyLe, Brown & ENERSEN

Of Counsel

March 13, 1987

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