Petition for Rehearing — Minichello v. Camp

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SUPREME COURT. Go. &

: ; In The 4 .

Supreme Court of the United States

For the Third Circuit

October Term, 1968

No. 381

‘

-- rates re ~..

ALBERT J. MINICHELLO and NICHOLAS

MAURIELLO on a Derivative Action on Behalf of

Themselves and on Behalf of Other Stockholders

of the First’ National Bank of Exeter Similarly

Situated,

Petitioners

vs.

WILLIAM B. CAMP, Comptroller of Currency for

‘ the United States of America, FIRST NATIONAL

BANK OF EXETER, WYOMING NATIONAL

BANK OF WILKES-BARRE, AUGUST J.

' LIPPI, ETTORE LIPPI, JOHN LIPPI, JOHN —

B. CAMPBELL, GEORGE MAFFEI and

| HAROLD REICH,

3 . Respondents

PETITION FOR REHEARING OF ORDER OF

OCTOBER ‘14, 1968, ON PETITION FOR WRIT

OF CERTIORARI

Artuur D. Dauessanpro,

away Attorney for Appellants

550 Miners National Bank Bldg,

Wilkes-Barre, Penna. 18701

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INDEX -

>

Petition for Rehearing of Order of October

_ 14, 1968, on Petition for Writ of Certi-

orari et ee Sey Fiscesan e

TABLE OF CASES

Bouie vy. City of Columbia, S.C. (1964), 84 8.

Ct, 1697, 878 U.S, 947, 12 L. Ed. 2d 894

City of New Rochelle v.. Friedman, 78 N jaa

‘2d 681, 190 Mise, 654 EA SAE TE

Giaccio v. State of Pennsylvania, 86 S. on

$18, 382 ‘U.S. 399, 15 Kd 2d 447 .

PacE

Holderness v. Hamilton Fire Ins. of New

York, 54 F. Supp. 145, D.C. Fla. 1944 ...

John McChain v. District of. rage a8.

Fed. 2d 882, 92 U.S. App. D.C. 358 .

Mallatt v. Ostrander Ry. & Timber Oe. D.C.

Ore. 1942, 46 F. Supp. 250 ........:... 7

Minski v. U. S., 131 Fed. 2d 614, 63 S. Ct. 1241,

319 U.S. 463, 87 L. Hd. 1519°............

Persona} Finance Co. of Braddock v. United

States, 86 Fed. Supp. 779 (D.C. Del.

od EEE OTE Re. Ea

_ Sagastivelza v. Puerto Rico Housing Author. |

ity, 195 Fed. 2d 289 ............0..0.

Spreet v. Morgenthau, 116 Fed. aa 301, 73

DOU. TAR PR cnce dat catinn veveseecees

i.

’ Stancil v. United States,’ 200 Fed. ‘Supp. 36 -

AA WO BOUND so sdvcbivesevussseses °

_ Standard Oil of La. v. Porterie D.C. La.°1935,

12 Fed Supp. 100 ....0........0.0005, te

Ward v. Auctioneers Assn. ‘of ‘Southern Cal-:

188 153 P. 2d 765, 67 Cal. App. 2d

BO Adige ta ds ben's \ eae heads ban LbRed tes

&

Petition for Rehearing

IN THE.SUPREME COURT OF THE

- UNITED STATES

Ne

October Term, 1968 ‘ =

ee lan ae

4 —_ 3 ed

‘Albert J, Minchello*“and’ ‘Nicholas Mauriello,: on .a

Derivative Actigh™ on Behalf of Themselves and on

Behalf of Other Stockholders.of The First National

“- - Bank of Exeter, Similarly Situated, - \

ca | ee _ Petitioners

aw oe Bie A ve. :

‘William. B; ‘Camp, ae ie of Currency for the

United States of -America, First National Bank of |

Exeter, Wyoming National Bank’ of Wilkes-Barre, ~

August J. Lippi, Ettore Lippi, John Lippi, J ohn B..:::

ore —— Maffei and Harold Reich, ~~

‘ : Respondents.

nan ° *

PETITION FOR REHEARING OF ORDER OF

- OCTOBER 14, 1968, ON PETITION FOR WRIT

OF CERTIORARI . 3

Petitioners, etal ehniy ittctwnys, respectfully ae

mit to the Honorable Justice William J. Brennan this

Petition for Rehearing of the — of your Honorable

&

Petition for Rehearing -—

Court of October 14, 1968, denying a. Writ of nl

in the above captioned. matter and set forth in support. —

hereof the following substantial grounds available to peti- |

tioners, which were not previously presented.

1. The Gettin of ‘the lower courts ond especially

the decisions of the Third Cireuit Court of Appeals con-

stitute a violation of the constitutional rights of .peti-

tioners in that they are equivalent to an ex post facto.

law in violation of the Fifth and Fourteenth Amendments

of the United States Constitution. Sinca the Legislature

is barred by the ex post facto clause ‘of the Constitution,

a court is barred by the due process clause of the Con-

stitution from achieving precisely the same results by

judicial construction. Since the rights of petitioners were,

at the time of the occurrences involved in this case, clearly

and positively established by the then existing Supreme

Court decisions, the:failure of the Circuit Court to abide

by the Supreme Court decisions is, in effect, creating

new law after the petitioners’ rights have been vested

by prior existing law. The Circuit Court failed to abide °

by the standards of decisional consistency applicable to.

the facts of this case and the failure of the Circuit Court ©

to abide by prior decisions of the Supreme Court was

so unforeseeable as to deprive the petitioners of their

rights established by the Constitution. Bowie vs. City of

Columbia, 8S. C. (1964), 84 8S. Ct. 1697; 378 U.S. 347; 12

L. Ed. 2nd 894. Constitution, Article I, Section 9, Clause

8, “‘No bill of attainder or ex post facto law shall be

passed’’.

Spreet vs. Morganthau, 116 Fed. 2nd 301, 73 App.

D.C. 70; .

“eo... ae

Petition for Rehearing

Sagastivelza vs. Puerto Rico Housing Aiuthority,

195 Fed. 2nd 289 ;

Petsonal Finance Company of ‘hesihed v8.

United States, 86 Fed. Supp. 779 (D.C.«Del-

aware 1949) ;.

Stancil vs. United States, 200 - Fed. Supp. 36

' (D.C. Virginia 1961).

. The statute under which the Conservator was ap-

. pointed (12 U.S.C.A. 203) and the statute which required

court approyal of the sale of a national bank in conserv-

atorship (12 U.S.C.A. 192) provided due process of law

remedies for the protection of property as guaranteed

by the Constitution ; however, in this case the Comptroller

of Currency by completely ignoring the statute- and fail-

ing to get court approval of the sale in effect repealed

the above mentioned statute and thereby exercised - leg-

Jélative function. If the safeguard of due process (where-

- by a court order is required before a national bank in

conservatorship can be sold) can be so easily lost by the

acts of an administrative official, the statute’is then

meaningless and the due process of law is then nonex-

istent. What good is a protective statute requiring a

court order if an administrative official can simply refuse

to obtain a court order and have his conduct approved

by a district and a circuit court? The case before the

court is. the same as a statute giving a citizen the right

to vote but preventing him from casting his ballot by

refusing to let him use the voting machine. Stated dif-

- ferently it is the same as a statute guaranteeing a black

person equal employment opportunities and then when

the black person applies for a job telling him that even

Petition for Rehearing —

though that statute is on the books he cannot have a

. job because he is black. The circuit court’s sanctioning

of the Comptroller’s conduct in this case clearly con-

stitutes denial of due process of law to the potiionere

through their.great financial loss.

2. The decisions of the lower courts constitute a —

denial of due process of law to the petitioners as guar-

anteed to them by the Fifth and Fourteenth Amendments

of the Constitution because the decisions constitute an

impairment of the obligation of contract rights of the

_ petitioners as set forth in Article 1, Section 10, Clause 1

of the Constitution.

The petition for Certiorari sets forth the opinion of

the District Court Judge dated July 23, 1963, indicating

that the offer of The First National Bank of Pittston

was accepted by the directors of the Exeter Bank. (See

pages 77-78 of Petition for Writ of Certiorari.) Despite

this, the District Court and the Circuit Court failed to

recognize that contract right in violation of petitioners’

constitutional rights which guaranteed petitioners that

no law would be passed impairing the obligation of con-

tracts. The decision of the lower courts is equivalent to

passing a law in violation of this constitutional right.

John McShain vs. District of Columbia, 505 Fed.

2nd 882, 92 U.S. App. D.C. 358; :

Holderness vs. Hamilton Fire Insurance of ,.New

York, 54 F. Supp. 145, D.C. Florida, 1944.

8. The Statute (12 U.S.C.A. 181) under whith the

Comptroller acted pertaining to the alleged emergency

and waiver of shareholder approval for voluntary liquida-

Petition for Rehearing

tion is unconstitutional in that it is ‘unreasonable, arbi-

trary and capricious and is vague and uncertain and is

_ therefore a denial of due process. !

The reference to ‘‘an emergency”’ in 12 U.S. C.A. 181

is so vague and uncertain that men of common intelli-

- gence must necessarily guess as to its meaning and differ

as to its application, and there is no fixed ascertainable

standard for its application, thereby causing the Statute

to fail to meet the requirements of due process of a.

under the Constitution.

Mallatt vs. Ostrander Ry. & Timber cl D.C.

Oregon 1942, 46 F’. Supp. 250;

Standard Oi of -La. vs. Porterie, D.C. La. 1935,

12 Fed. Supp. 100;

City of New Rochelle vs. Friedman, 78 N.Y:S8.

2nd 681, 190 Mise. 654; _“

Giaccio vs. State of Pennsylvania, 86 Supreme

“Court 518, 382 U.S. 399, 15 L. Ed. 2nd 447;

. Minski vs. U.S., 131 Fed. 2nd 614, 63 Supreme |

Court 1241, 319 US. 463, 87 L. Ed. 1519;

Ward vs. Auctioneers Association of Southern

California, 153 P. 2nd 765, 67 Cal. App. 2nd

183.

The Circuit Court’s decision stated, ‘‘The standard

to be applied is not whether an emergency in fact ex-

isted but whether a reasonable man on the basis of facts

of which he was aware or should have been aware could

have reasonably concluded that an emergency existed.’’

(p. 99 petition for Writ of Certiorari). This vague and

Petition for Rehearing

uncertain interpretation is proof that the term emergency

is vague and uncertain and is also proof that: there is

- no’ fixéd ascertainable standard for the application of

the term. The statute specifically stated ‘%.. . unless an.

émergency .evists . . .”? (12 U.S.C.A. 181). (Emphasis

Added) .and despite this language the Circuit Court said,

‘*The standard to be applied is not whether an emergency

in fact existed . ...”’ (Emphasis added.) Further the

statute did not as anytiding about the subjective intent .

of a reasonable man being the deciding factor. In ad-

dition the Circuit Court used the terni itself to define

the term, all of which is clear indication of the vagueness,

uncertainly and guesswork involved in the interpretation

of the term emergency.

4, The lower courts’ decisions abridge the privileges

of the petitioners who are citizens of the United States

_ in that their privilege of .using the District Court for:

passing on the legality and propriety of the sale has

been denied them, contrary to the constitutional rights of

the petitioners. Since by law it was mandatory that the

Comptroller get court approval before the sale, the failure

to do this is a plain abridgement of the privilege of the

petitioners to use the District Court whose approval was

necessary. | : .

5. The decisions of the lower courts have denied the

petitioners the equal protection of the laws as guaranteed

‘by the Constitution. Since it is mandatory that court

approval be obtained before the sale is made and since

prior casés have affirmed this rule, the courts in those

prior cases have protected the parties therein and yet

in this case the lower courts have failed to protect the

petitioners. ~ The net result is that the petitioners in. this

. Petition for Rehearing

~ ease are denied the protection of the law which has been

granted to parties in cases previous to this (which were

cited in the original Petition for Writ of Certiorari).

- Since the Comptroller has in effect interpreted the statute.

to mean that he is the one who will decide when court

approval is necessary and since the lower courts’ have.

approved the Comptroller’s conduct, it is obvious that

- not only the petitioners but any other party in the future.

would be denied the equal protection of the laws in that

it would never be known who would have the right to

use the courts and who would be refused the right to use

) the courts. The Constitution does not give the Comp-

RN eg the privilege or discretion to adversely affect the

ights of the petitioners. ;

Wherefore, Petitioners respectfully request your

Honorable Court to issue an Order granting the Writ of

Certiorari.

Respectfully submitted,

Arruur D. DaLessanpro, ‘|

. Josern J. Ustrynosxt, .

Antuony C. Fatve.1o,

“Attorneys for Petitioners.

”

; Certificate of Counsel |

CERTIFICATE OF COUNSEL

—————ooe

_ Arthur D. Dalessandro, certifies that he is one of the

attorneys for the Petitioners and that.the foregoing Peti-

- tion is presented in good faith and not for delay, and

_ he further certifies that the Petition is restricted to the

' grounds specified therein.

ARUTHR D. DALESSANDRO.

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