Reply Brief — Seventh-day Adventist Congregational Church v. General Conference Corp. of Seventh-day Adventists

)

~

SEVENTH-OAY ADVENTIST CCGNGREGATI ONAL

2 er coe

We eg nckD

, ||

\ FEB 13 1

No. 89-1061 1) JOSEPH F. SPANIOL, JR.

CLERK

IN THE SUPREME COURT

CF THE UNITED STATIS

OCTOBER TERM, 19£€9

CHVE TH

AND JOHN R. MARIK,

Petitioners,

y

GENERAL CONFERENCE COPPORATION

OF SEVENTH-DAY ADVENTISTS,

Respcondenc.

oo a ee ee ee

ON P&TITION FOR WAIT OF

TO THE UNITED ST?.°E3 TOURT OF arb tabs

FOR THE NINTH CIRCUIT

CERTICR#E!N I

os ~—=_-

REPLY TO BRIEF IN OPPOSITION TO PETITION

i WSIT OF CERTIORARI YO THE URiT#D STATES

COURT OF APPEALS FOR THE WINTH CIRCUIT

MAX A. CORBETT

5$32 Bermuda Dunes

Houston, Texas 77069

(713) 444 2840

Attorney for Petitioners

te |

>

w

cc

@

ES

ry]

oO

Oo

z

4

it |

=z

4

uw

wee OE Ts 0 9.5 6 000 6 eh 0660s ans eter i

SEO DE BUPMOELEIOB. oc ccc ccccccsccewecens ii

1. Supplemental Statement of the Case....2

So WUE BE BEOUGNE sos cee ee cceccaereen 6

Pe ee ee re ee ee ee 7

3.1 The Court of Appeals Has Rendered

4.

a Decision in Conflict With The

Decision of Another Federal Court

Or Which So Far Departed From The

Accepted And Ususal Course of

PEOGSCOGG INGE. occ oteccccescscowececr 7

3.2 The Case is Proper for

CORT LOERE Do otc cece ereccsececceere 9

3.3 The Court Should Review The

Contempt Order Because That Order

Was Properly Appealed, and Should

Have Been Addressed By The Court

OE BOGE R sc ccc ce cascenseceseenée 11

3.4 Judicial Motice of Facts Specified

By Petitioners is Proper........ 16

3.5 Certiorari Review Of The Court Of

Appeals' Refusal To Take Judicial

WOEICS 18 PEOMOE. wccccescvesievns 18

COMETOOEGR ccc cecaecebavsénecevteaeeea 19

Appendix A - Correspondence

Relative to District Court

Order of March 16, 1988. ...ceeee App. l

=fi-

TABLE OF AUTHORITIES

l. Cases

Adickes v. S.H. Kress & Co.,

396 UG. £46 GEO VOrs wcbed se ees Scr esas 13

Brotherhood of Locomotive Firemen and

Enginemen v. Bangor & Aroostook Railroad

Company,

38D U.S. S27 CAPO Decades cece vonenes 9

Brotherhood of Loc. Fire. & Eng. v. Bangor

& Aroostook R. Co.,

3660.97.26 STO CAPS hes ceke sews hae ee 10

Carbon Fuel Co. v. United Mine Workers

of Amer.,

S17 ¥.26 1366 6.8. Gy Bereree cess 15,16

Halderman v. Pennhurst State

School & Hospital,

673 F.26 G28 (6.8. Bo. Beales etewenses 14

Hamilton-Brown Shoe Co. v. Wolf

Bros. & Co.,

240 U.8. Z2Sh CABASG) coc cwawssewvsosees 13

In Re New York, New Haven and Hartford

Raildroad Co.,

304 F.Supp. 739 (D.C. Conn., 1969)...17

Massachusetts v. Westcott,

431 U.8. 222 CEPT is bk et ceaweseweeees 17

New York, NH&H Railroad Co. First

Mortgage 4% Bondholders Committee v.

United States,

339 U.8. FOZ TEP vcuvuswensasenn 17,18

Rogers v. Lodge,

4S6 U.S. 613 (L9SZ) 2. cecsccsesesesese 12

-i1i-

Southern Railway Company v. Langham,

403 F.2d 119 (C.A. 5S, 1968)......

Union of Prof. Airmen v. Alaska

Aeronautical,

625 F.2d 881 (C.A. 9, 1980)......

United States v. Dolan,

544 F.24¢ 1219 (C.A. 4, 1976).....

United States v. Johnson,

801 F.2d 597 (C.A. 2, 1986)......

United States v. Pink,

315 U.S. 203 (1942)... cc eeeeveees

2. Statutes

me meme. OC GL. 1257, Chap. 23l.ccesce

3. Miscellaneous

3.1 Federal Rules

Federal Rules of Evidence,

eC en Oe eee ee een eee

EE a

3.2 Treatises and Dictionaries

Black's Law Dictionary......--seeeees

Civil and Criminal Contempt in

the Federal Courts, Wright,

17 F.R.D. 167 (1955)... cc ceeeees

Developments in the Law - Discovery,

oe oe. tes MOU. BEG cccccvcesvives

No. 89-1061

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

SEVENTH-DAY ADVENTIST CONGREGATIONAL CHURCH

AND JOHN R. MARIK,

Petitioners,

Vv.

GENERAL CONFERENCE CORPORATION

OF SEVENTH-DAY ADVENTISTS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY TO BRIEF IN OPPOSITION TO PETITION.

FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

Petitioners, Seventh-day Adventist Con-

gregational Church and John R. Marik, re-

spectfully affirm their request that a writ

of certiorari issue to review the judgment

of the United States Court of Appeals for

the Ninth Circuit in this case, and thus

present their reply to brief in opposition.

The Seventh-day Adventist Congregational

Church has no parent or subsidiary company.

1. SUPPLEMENTAL STATEMENT OF THE CASE

The following supplemental statement of

the case is offered in compliance with Rule

15 of the Court. The General Conference

Corporation of Seventh-day Adventists

("Conference Corporation") was not the

first legal user of the trade name, trade-

mark, and service mark "Seventh-day

Adventist." See page 3 of Respondent's

Brief in Opposition. The Conference

Corporation was not incorporated until

1904. The Conference Corporation is wholly

owned, directly and/or indirectly by the

General Conference of Seventh-day

Adventists ("SDA Conference"), a legal

entity which is non-incorporated. As

indicated in Petitioners' Petition, first

legal use of the name "Seventh-day

Adventist" was made prior to the 1860 date

set forth by Respondent.

At the hearing held before Judge Russell

Smith on February 22, 1988, mentioned by

Respondent (see page 4 of Brief in

Opposition) there were five motions

pending: (1) Petitioners' Motion to Set

Aside Judgment, to Dismiss or for a New

Trial, for a More Definitive Statement, and

To Strike, (2) Petitioners' Motion for

Suspension of Injunction and Order, (3)

Respondent's Motion for Sanctions, (4)

Petitioners' Motion for Sanctions, and (5)

Motion for Order to Show Cause Why

Defendants Should not Be Held in Contempt.

Judge Russell Smith on March 16, 1988, held

specifically: "The Motions are each and all

DENIED." Page B-3 of Brief in Opposition.

Note correspondence with Judge Fong set

forth in Appendix A. Accordingly, when an

Order to Show Cause Why Defendants Should

not be Held in Contempt was entered on

April 20, 1988, Defendants filed on May 9,

1988 a Motion to Vacate Order to Show Cause

~@-

Why Defendants Should Not be Held In

Contempt and a supporting brief. In such

motion it was clearly stated: "The matters

set in issue by the Show Cause Order have

been properly disposed of by this Court's

Order filed March 16, 1988, and thus it is

res judicata, and the Show Cause Order is

improper and should be vacated.” Res

Judicata is a matter of procedural due

process. Thus, the following statement of

Respondent regarding procedural due process

at page 6 of its Brief in Opposition is

incorrect: "This was the first time the

argument was made by Petitioners."

It is Respondent, not Petitioners, who

have complicated the matter and delayed

proceedings below. To illustrate: (1) It

was the one to present a Motion for

Judgment on the Pleadings, which resulted

in an appeal to the Court of Appeals, and

then a reversing and remanding, (2) It was

the one to contend that Petitioners' Motion

to Set Aside and for other matters was

untimely filed, and the District Court

agreed with them, until Petitioners

presented their Motion to Reconsider with

numerous supporting cases, whereon Judge

Russell Smith manfully admitted: "Initially

I thought that the motions were untimely.

I was wrong in that, and now address the

merits of defendants' motions." See page B-

2 of Respondent's Brief in Oppostion. (3)

It was the one who presented matters. both

in the District Court and in the Court of

Appeals, which resulted in motions in both

Courts that sanctions be imposed against

them.

Though John R. Marik was released from

custody on December 20, 1989, as mentioned

by Respondent at page 6 of their brief,

that has not ended the matter, for he is

still subject to summons. Further, it was

only when friends of his posted a $25,000

bond on his behalf, that such release was

made possible. He, himself, did not have

such funds. Further, he is presently

restricted to a specified area within the

state of California until summoned. That,

in itself, is a great restriction on his

freedom of movement.

2. SUMMARY OF ARGUMENT

The manner in which the Court of Appeals

decision conflicts with and/or departs from

federal law has been given in detail. A

review of the federal cases cited in

Petitioners' Table of Authorities in their

Petition for Writ of Certiorari, and a

notation of the argument of Petitioners

with regard to these cases, refutes any

statement to the contrary by Respondent.

The cases cited by Petitioner glaringly

stand in a manner adverse to the ruling of

the Court of Appeals.

A remand of a case does not preclude it

being proper for certiorari review. The

contempt order was properly before the

Court of Appeals, contrary to assertions by

Respondent.

Judicial notice is proper at any stage of

the proceedings, including appeal.

Certainly attention has not been called to

"extrinsic and irrelevant facts" as

contended by Respondent. They are of the

essence. When it is considered that this

case has come up on-a Motion for Judgment

on the Pleadings, it can not properly be

contended, as does Respondent, that the

Court is being requested “to determine

facts de novo." See page 7 of Respondent's

Brief.

3. ARGUMENT

Je8 The Court of Appeals Has

Rendered a Decision In Conflict With The

Decision of Another Federal Court Or Which

So Far Departed From The Accepted And Usual

Course of Judicial Proceedings.

The Court of Appeals specifically held:

"Remaining points urged by defendants are

without merit." See page 3, and page App.

-8- of Petitioners’ Petition. Thus, the

Court ruled against them on the following

points: (1) that judicial notice of certain

matters was appropriate, (2) that the name

"Seventh-day Adventist" was generic, (3)

that the case involved Freedom of Religion

and Speech, (4) that the matter of

establishment of a religion was involved,

(S) that Respondent was the owner of the

trademark “Seventh-day Adventist,” (6) that

indispensable parties had not been joined

to the action, (7) that sanctions should

have been imposed against Respondent, (8)

that the Contempt Order was properly before

the Court of Appeals for decision, (9) that

excessive fines and cruel and unusual

punishment had been inflicted, and (10)

that there had been a deprivation of

property without due process of law.

Contrary to assertions by Respondent, the

Court of Appeals decision, when viewed

overall, could not by any stretch of the

imagination “be construed as favorable to

Petitioners." See page 9 of Respondent's

Brief. When the Court of Appeals held:

"Remaining points urged by defendants are

without merit.", it did make a

determination as to the merits of the

authorities cited in the Petition. It did

in fact create law contrary to the

authorities cited by Petitioners, contrary

to assertion by Respondent. Thus, most

assuredly this is a case where a court of

appeals has rendered a decision in conflict

with the decision of another federal court

or so far departed from the usual course of

judicial proceedings.

3.2 The Case is Proper for Certiorai

The case of Brotherhood of Locomotive

Firemen and Enginemen v. Bangor & Aroostook

Railroad Company, 389 U.S. 327, 19 L.Ed2d

$60, 88 S.Ct 437 (1967) cited by Respondent

actually supports the fact that this case

-10-

is proper for certiorari. In that case it

should be particularly noted that’ the

reason it was held "not yet ripe for review

by this Court," was because the Court of

Appeals “remanded to the District Court to

consider whether there had in fact been a

contempt," among other things. Ibid., page

328. As noted by the Court of Appeals in

that case, "The union's response was a

‘denial in full that we have committed any

contempt whatever, in any way, of any order

of this court, and secondly, that’ the

outstanding order of this court is

invalid.'" Brotherhood of Loc. Fire & Eng.

v. Bangor & Aroostook R. Co., 380 F.2d 570,

574 (1967). In this case, as Respondent

admits, and contends, Petitioners "(1)

continued use of the General Conference's

registered mark 'SEVENTH-DAY ADVENTIST' in

connection with Defendant's church services

and activities associated therewith; and

(2) continued possession of a sign,

=—Te

literature, and other SDACC produced

materials bearing the name '‘'SEVENTH-DAY

ADVENTIST' in violation of the. Judgment and

Permanent Injunction entered on December 8,

1987." See page S of Repondent's Brief.

The instant case is most definitely a

proper one for certiorari.

It is not the prerogative of Respondent

to dictate to Petitioners~- the course of

action they should pursue to best protect

their interests. As previously indicated,

to follow the course of action they suggest

would be to complicate matters and unduly

burden the Courts.

3.3 The Court Should Review The

Contempt Order Because That order Was

Properly Appealed, and Should Have Been

Addressed By The Court of Appeals

Contrary to assertions by Respondent at

pages 10 and 11 of its Brief, the Contempt

Order was properly before the Court of

Appeals. In addition to matters set forth

in Section 6.4 of the Petition, and as

previously noted herein, Defendants filed

on May 9, 1988, a Motion to Vacate Order to

Show Cause Why Defendants Should Not be

Held In Contempt and a supporting brief.

In such motion it was clearly stated: "The

matters set in issue by the Show Cause

Order have been properly disposed of by

this Court's Order filed March 16, 1988,

and thus it is res judicata, and the Show

Cause Order is improper and should be

vacated." Res Judicata, being a matter of

procedural due process, applicable to the

main case, the matter was clearly before

the Court of Appeals.

The footnote cited by Respondent in the

case of Rogers v. Lodge, 458 U.S. 613,

628 n. 10, 73 L.Ed2d 1012, 102 S.Ct 3272 is

set forth verbatim as follows: "Appellants

contend that District Court should not have

divided Burke County into five districts

but should have allowed appellants to

devise a plan for subdividing the county

and to submit their plan for preclearance

under Sec. 5 of the Voting Rights Act, 79

Stat 439, as amended, 42 USC Sec. 1973c [42

USCS Sec. 1973c]. This contention was not

properly raised in the Court of Appeals and

was not addressed in that court. We

therefore do not address it. See Adickes

v. S.H. Kress & Co., 398 US 144,147,n 2, 26

L Ed 2d 142, 90 S Ct 1598 (1970)." Thus,

such case stands for the propostion only

that in that case under its facts, the

Court would not address an issue not raised

previously. In this regard, the comment of

the Court in Hamilton-Brown Shoe Co. v.

Wolf Bros. & Co., 240 U.S. 251, 257-258, 60

L.ed 629, 36 S.Ct 269 (1916) should be

noted: "It is contended that this question

is settled otherwise, at least as between

these parties, by the decision of the

circuit court of appeals on the first

appeal, and our refusal to review that

decision upon complaint's patition for writ

of certiorari, and that the only questions

open for review at this time are those that

were before the court of appeals upon the

second appeal. This, however, is based

upon an erroneous view of the nature of our

jurisdiction to review the judgments and

decrees of the circuit court of appeals by

certiorari under Sec. 240, Judicial Code

{36 Stat. at L. 1157, chap. 231], derived

from Sec. 6 of the Evarts act of March 3,

1891, 26 Stat. at L. 828, chap. 517, Comp.

Stat. 1913, sec. 1217."

The Respondent has a misconception of the

holding in the case of Halderman Vv.

Pennhurst State School & Hospital, 673 F.2d

628 (C.A. 3, 1982) for such Court states at

page 636: "For civil contempt orders’ the

settled rule is that, when directed against

parties, such orders are interlocutory and

unreviewable except incident to an appeal

from a judgment otherwise appealable.", and

~~, =

citing cases. (emphasis added). Black's

Law Dictionary, Fiféth Ed., defines

"incident" thusly: “when used as a noun,

it denotes anything which inseparably

belongs to, or is connected with, or

inherent in, another thing, called the

‘principal.'"

Other cases noted by Petitioners likewise

hold: "If the order is one for civil

contempt, a party may appeal the contempt

issue as part of any appeal from the final

judgment." Union of Prof. Airmen v. Alaska

Aeronautical, 625 F.2d 881, 883 (C.A. 9,

1980). “*{A) civil contempt proceeding is

in effect a continuation of the main action

and therefore a party to a suit may not

review upon appeal an order fining or

imprisioning him for civil contempt except

in connection with appeal from a final

judgment in the main action.' Wright, Civil

and Criminal Contempt in the Federal

Courts, 17 F.R.D. 167, 176 (1955)." Carbon

Fuel Co. v United Mine Workers of Amer.,

517 F.2d 1348,1349 (C.A. 4, 1975). "CA)

civil contempt order issued against a party

lacks the requisite finality because its

validity can be tested by an appeal from

the final judgment. Fox v: Capital Co.,

supra; Developments in the Law - Discovery,

74 Har.L.Rev. 940, 996 (1961)." Southern

Railway Company v. Lanham, 403 F.2d 119,

124 (C.A. 5S, 1968). "The merits of the

contempt order against a party can be

Challenged on appeal froma final judgment

to the extent the order affects the

Judgment or carries with it collateral

legal consequences." United States v.

Johnson, 801 F.2d 597,599 (C.A. 2, 1986).

The matters above noted declare most

eloquently that this Court should review

the Contempt Order.

3.4 Judicial Notice of Facts

Specified by Petitioners is Proper

The rule of judicial notice applies to

appellate courts, and they will generally

take judicial notice of any matter which

the court below could have judicially

noticed. United States v. Pink, 315 U.S.

203, 86 L.Ed 796, 69 S.Ct 552 (1942);

Massachusetts v. Westcott, 431 U.S. 322, 52

L.Ed 349, 97 §.Ct 1755 (1977); United

States v. Dolan, 544 F.2d 1219 (C.A.4,

-1976).

Under consideration in New York, NH&H

Railroad Co. First Mortgage 4% Bondholders

Committee v. United States, 399 U.S. 392,

435, 26 L.Ed2d 691, 90 S.Ct 2054 (1970)

cited by Respondent at page 13 of its Brief

was the “fair liquidation value" of the

railroad undergoing reorganization, which

was held by the reorganization court to be

"property's highest and best use." In Re

New York, New Haven and Hartford Railroad

Co., 304 F.Supp. 739,799 (D.C. Conn.,

1969). Such tindeed would tnvolve "myriad

factual and legal issues." New York, NH &

H Railroad Co. First Mortgage 4%

Bondholders Committee v. United States, 399

U.S. 392, 435 (1970). Such is not the case

here. The facts set forth for Judicial

Notice are, relatively speaking, extremely

limited.

The Court is requested in accordance with

the provisions of Rule 201(d) of the

Federal Rules of Evidence (hereafter "FRE")

to take judicial notice of the adjucicative

facts set forth in the Petition for Writ of

Certiorari, and particularly as they are

set forth in Dictionaries, Encyclopedias,

Bible, and other media referenced therein.

FRE 201(£) specifies: “Judicial notice may

be taken at any stage of the proceeding."

The review requested by Petitioners is

proper.

. Certiorari Review Of The Court

of Appeals' Refusal To Take Judicial Notice

Is Proper

As noted previously, judicial notice may

be taken by appelate courts. FRE 201(d)

was invoked in the Court of Appeals. A

review by this Court of the Court of

Appeals handling of judicial notice is

proper.

When the basis for the rule of judicial

notice is considered, that of eliminating

unnecessary legal procedings for the

presentation of evidence, it is salutary

that the Court consider the matters

pertaing to judicial notice in this case.

4. CONCLUSION

For the reasons stated above the writ

of certiorai should tissue to review the

decision of the Court of Appeals of the

Ninth Circult.

Respectfully submitted,

Dag Garb

Max A. Corbett

5902 Bermuda Dunes

Houston, Texas 77.9

(713) 444 2840

Attorney for Petitioners

App. -l-

APPENDIX A

ph — Caoas Scuurte Flamingo & Waicur =--+— ==

Sy eh ee Arroawars at Law oe

owe mes Fer y +> ~ ease

ae. me a+ aoe oe ooons —_—_— —_—. —

———_— so “* #0 -— Fee —

——_ i + eee ee reer —_- —

y -y,- Se +, --A eeerns sem tm ere —-: — oa:

i f- =- =o pa —- 1

Macch 22, 1968

HAND DELIVER

The Honorable Harold M. Fong

Chief Judge

United States District Court

for the District of Hawaii

300 Ala Moana Boulevacd

Honolulu, Hawaii 96850

Re: General Conference Corporation of Seventh-Day

Adventists v. Seventh-Day Adventist

Desc Judge Fong:

I am writing to request that the sbove-referenced

litigation be assigned to one of the local district court

judges. Two different visiting judges have heard motions ia

this case and we are experiencing great difficulty in the

administrative management of the case, i.e. having orders

entered in a timely manner and having to re-brief each

succeeding visiting judge on the case history and status. The

Honorable Roger D. Foley heard motions filed in mid-1987 and

= Honorable Russell Smith heard motions recently filed in

s case.

Because of the problems presented by Defendants’

ongoing contempt of the Court's Judgment and Permanent

Injunction, we anticipate further hearings and the need for

expeditious review and action by the Court. At present, we are

still awaiting the issuance of an order to show cause by the

Court so an appropriate contempt order may be entered and

sanctions imposed against Defendants and their counsel for

non-compliance with the judgment and permanent injunction.

To save judicial resources and time, I would like to

request that one of the local district court judges be assiqned

to this case. I would also like to take this opportunity to

Fequest that « settlement conference be scheduled with the

assigned judge pursuant to LR 240.

et Bette ee ee eee elt ieee Be ee he hn

ee ee OF A ER Ae HOE TLE ee VO bee re eee cee bee Soe

App. -2-

The Honorsble Harold M. Fong

Marcch 22, 1968

Page 2

Thank you for your consideration of this matter.

Very truly yours,

i

CADES SCHUTTE FLEMING & WRIGHT

cct Mex A. Corbett, Esq. (certified mail/return receipt requested)

Vincent L. Remik, Esq.

Richerd W. Johns, Esq.

bec: Thomas E. Wetmore, Esq.

RAV

App. -3-

MAX A. CORBETT

ATTORNEY AT LAW

*902 BERMUDA OUNES

HOUSTON, TEXAS 77069

1948 TELEPHONE

Marcn 25, (719) e0ee2808

The Honorable Harold M. Fong

Chief Judge

United States Oistrict Court

District of Hawaii

300 Ala Moana Boulevard

Honolulu, Hawail 96450

Re: Civil Action No. 87 0274, General Conference Corporation

of Seventh-day Adventists vs. Seventh-day Adventist

Congregational Church and Jonn R. Marik

Dear Judge Pong:

Tam in receipt of letter dated March 22, 1988,

addressed to you from attorneys for plaintiff in the

referenced cause of action, relating to the disposition of

matters in such case, copy attached.

. The real issue in this case is whether the Court had

jurisdiction in the first instance to enter the judgment that

it did. Basically, this is a trademark infringement action.

The sole fact to show such infringement, is the usage by

defendants of a church sign announcing its place of worship

and inviting those so inclined, to join in worship services.

The church sign reads: “Seventh-day Adventist Congregational

Church.” Plaintiff has a trademark of the name "Seventh-day

Adventisc.*

Any suit for infringement under the Lanham Act which

relates to trademarks is dependent upon a showing of some

Commercial activity. Absolutely none has been shown. Also

to be considered in any such suit is whether one's rights

under the United States Constitution of freedom of religion

and freedom of speech gives him the right to the use cf a

sign with a name which is intricately interwoven with such

religion, as is the case here. Other substantive issues

telaing to jurisdiction are also present.

This ts a suit of tremendous import, for if the judgment

is not overturned on appeal, it will open the door for mass

persecution because of one's religion, be it what it may,

Christian, Buddhist, Moslem, Hinduism, etc.

App. -4-

Note Judge Smith's order denying Defendants‘ Motion to

Set Aside Judgment, to Dismiss or for New Trial, for a More

Definite Statement, and to Strike entered on March 16, 1988.

His comment in hearing of such motion on February 22, 1987,

is cogent: "The plaintiff here has won a victory in court.

But I am not sure that if you pursue this victory it isn't

going “o be a pyrrhic one.” (Transcript, p. 39, lines 17-

19.). "The plaintiff is a conference of a religious group

which nas certain beliefs which are reasonably unique. The

defendant is likewise a religious group which has very

similar, if not identical, beliefs. And we have here a

struggle between those two religious groups.” (Transcript,

p- 39, line 25, p. 40, lines 1-4). In such order of Judge

Russell £. Smith entered on March 16, 1988 it is specifically

stated: “The motion for sanctions is Denied, without

prejudice. The problem of sanctions can be considered after

the judgment has become final on appeal.” (Page 4 of Order).

There were three motions for sanctions pending before the

Court, .ome by defendants (see page 1 of Defendants’

Memorandum in Support of Defendants’ Motion to Set Aside

Judgment, to Dismiss or for New Trial, for a More Definite

Statement, and to Strike Under FRCP 59 and FRCP 12), and two

by plaintiff (See page 2 of Plaintiff's Memorandum in

Opposition to Defendants’ Motion for Suspension of Injunction

and Order Pending Hearing and Ruling on Motion to Set Aside

Judgment, to Dismiss or for New Trial, for a More Definite

Statement and to Strike Under FRCP 59 and FRCP 12, and also

Plaintiff's Motion for Order to Show Cause Why Defendants

Should Wot be Held in Contempt Because of Defendants’

Violation of Judgment and Permanent Injunction.). Thus,

Judge Smith has suspended the imposition of sanctions in all

areas until “after the judgment has become final on appeal.”

There has been final disposition by the District Court “of

all claims with respect to all parties” as must be noted

under Local Rule 13(b)(1)C. of the Ninth Circuit Court of

Appeals.

Accordingly, defendants disagree with the contention of

plaintiff's attorneys that a further order is required with

regard to the matter of contempt. There has been proper

Gisposition of this matter.

Instead of saving judicial resources and time, to follow

the recommendations of plaintiff's attorneys as set forth in

their letter to you dated March 22, 1988, will have just the

opposite effect.

Though defendants would have preferred that Judge

Russell £. Smith had granted their motion to set aside

judgment, to dismiss or for a new trial, they will agree that

it took the wisdom of Solomon to formulate the order he

rendered.

App. -5S-

Your consideration of this matter is deeply appreciated.

Thank you.

Very truly yours,

Wut, Ortbe tty

Max A. Corbett

cc: Roy A. Vitousek, [TI

CADES, SCHUTTE, FLEMING & WRIGHT

P.O. Box 939

Honolulu, Hawaii 96808

Vincent ©. Ramik

DILLER, RAMIK, & WIGHT, P.C.

Merrion Square, Suite 101

7345 Mc Whorter Place

Annandale, Virginia 22003