# Petition for Rehearing — Minichello v. Camp > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0016%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Rehearing - **Published:** January 1, 1968 - **Citation:** 393 U.S. 849 ## Text / . ‘ . . 4 - ” > ” . . e - , -* > . ° . . > . . ‘ x4 ‘ . . - ) ‘ <- ° > : - ° a . . ’ o ° . ‘ . . % . o - _— . °. . e . . . - . ° ‘ - e ' . © . . « e . > . , “ .- . . . . . - . 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 ASLO SE SEERCAIS ESOT I ICE TEE NOTES NIIP EOE Murrelle Printing Company, Law Printers, 201-206 Lockhart Street, Seyre, Nee es egy: A ee ne Come toon, Wir bene Fs * a . . . - ° e ; ‘ . 4 . . trate + . e 5. - . Mees ze Md ~ . . anaes 4 . . ee 5 . “” . Ps \ . . ” , ’ . - . ° . . > . . - - . . P . . o . ‘ ‘ , - _ - $ . _ . a ‘ os , . — . - a P ’ a ee = > ° ° ‘ & e } eo « i . 2 ° . . . . - nd . > eo P - ® . ° ¢ < « : > y | , : ’ ' * . om - . > io . 2 . - ; * — - . . 4 : . , . “gi ' - . 24 \ iz . . i ee < : ; \ - : - \ = +2 2 . . e 4 - . ‘ . . . 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. . . ‘ . . ” : eee a ae ‘ 23 Ts 2 > sa . . : . . . . 4 . . . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0016%3A4. Public record. Not legal advice.