Opposition Brief — Robert v. Philadelphia Park

} Supreme Court; U.S.

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APR 24 1996

No. 95-1661

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

DOMINIC ROBERT, a minor, by his mother and natural

guardian, MARY ANNE ROBERT,

Petitioners,

VS.

PHILADELPHIA PARK, and BENSALEM RACING

ASSOCIATION, INC. and KEYSTONE TURF CLUB, INC.

and GREENWOOD RACING, INC. and THOROUGHBRED

RACING PROTECTIVE BUREAU, INC.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

RESPONDENTS’ BRIEF IN OPPOSITION

CHARLES W. CRAVEN, ESQ.

Counsel of Record

AUDREY J. COPELAND, Esq.

MARSHALL, DENNEHEY, WARNER,

COLEMAN AND GOGGIN

Attorneys for Respondent

1845 Walnut Street

Philadelphia, Pennsylvania 19103

(215) 575-2626

COUNTERSTATEMENT OF THE QUESTION

PRESENTED

Whether this Honorable Court may or should

review the decision of the Pennsylvania Supreme Court to

dismiss, as having been improvidently granted, an appeal

from the order of the Pennsylvania Superior Court

quashing, as having been taken from a currently

unappealable order, an appeal from the interlocutory order

of the trial court, which regulated the parties’ discovery by

temporarily prohibiting the petitioners’ attorneys from

disclosing to their clients the name of the confidential

informant whose information led to the petitioners’ arrest.

LIST OF PARTIES

Petitioners in this action are Dominic Robert, a

minor, by his mother and natural guardian, Mary Anne

Robert. Respondents in this action are Philadelphia Park

and Bensalem Racing Association, Inc. and Keystone Turf

Club, Inc. and Greenwood Racing, Inc. and Thoroughbred

Racing Protective Bureau, Inc.

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TABLE OF CONTENTS

COUNTERSTATEMENT OF THE QUESTION

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STATEMENT OF JURISDICTION ........... -1-

CONSTITUTIONAL PROVISIONS ........... -2-

COUNTERSTATEMENT OF THE CASE ....... -2-

REASONS FOR DENYING THE WRIT ........ -5-

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THIS HONORABLE COURT DOES NOT HAVE

JURISDICTION TO REVIEW THIS CASE: THE

ORDER PRESENTED BY THE PETITIONERS IS

NOT A FINAL ORDER, BUT AN

INTERLOCUTORY DISCOVERY ORDER, AND

THE ORDERS OF THE STATE APPELLATE

COURTS, ALTHOUGH FINAL, DO NOT

PRESENT A RULING ON THE MERITS OF

THE TRIAL COURT’S ORDER OR A

CONSTITUTIONAL QUESTION ........ -5-

EVEN IF ITS MERITS ARE REVIEWED, THE

ORDER DOES NOT ENCROACH ON FREE

SPEECH AS A PRIOR RESTRAINT AND THE

REQUIREMENTS FOR CONSTITUTIONAL

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ENDORSEMENT ENUNCIATED UNDER

SEATTLE TIMES V. RHINEHART

COINUCEAMMMES ha 0 6G hy Stray eee es

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TABLE OF CITATIONS

Vv

Gannett v. Depasqualle,

S53 5, SOe. Pe ee ee

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369 Pa. 581, 87 A.2d 314 (1952) .....

467 U.S. 20, 104 S.Ct. 2119, 81 L. Ed. 2d. 17 (1984)

Steel v. Weisberg,

347 Pa. Super. 106, 500 A.2d 428 (1985)

Ts, e. -10-

No. 95-1661

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

DOMINIC ROBERT, a minor, by his mother and

natural guardian, MARY ANNE ROBERT,

Petitioners

v.

PHILADELPHIA PARK, and BENSALEM RACING

ASSOCIATION, INC. and KEYSTONE TURF CLUB,

INC. and GREENWOOD RACING, INC. and

THOROUGHBRED RACING PROTECTIVE BUREAU,

INC.,

Respondents

On Petition for Writ of Certiorari

to the Supreme Court of Pennsylvania

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF JURISDICTION

Petitioners have invoked the jurisdiction of this

Honorable Court pursuant to 28 U.S.C. 1257.

Respondents respectfully suggest that the

jurisdiction provided to this Honorable Court under Article

III of the Constitution and 28 U.S.C. 1257 does not obtain

in this case. The trial court’s discovery-related order

which petitioners attempt to present to this Honorable

Court is not a final or appealable interlocutory order. The

orders of the Pennsylvania Superior Court and the

Pennsylvania Supreme Court, although final, do not

l

address the merits of the trial court’s order. Rather, the

Superior Court’s order simply holds that the trial court’s

order is not currently appealable, and the Supreme Court’s

order simply dismisses, as having been improvidently

granted, the appeal allowed from the Superior Court’s

decision to quash the petitioner’s premature appeal.

Petitioners originally filed a petition for certiorari

which was rejected by this Honorable Court as failing to

conform to the rules. Petitioners subsequently refiled what

they posit as a conforming Petition for Certiorari.

CONSTITUTIONAL PROVISIONS

Respondents deny that any constitutional question is

presented by this case.

COUNTERSTATEMENT OF THE CASE

This case arises out of an incident which occurred

at the Philadelphia Park racetrack on June 6, 1991.

Plaintiff-petitioner Maryanne Robert [hereinafter

collectively referred to with her son, plaintiff-petitioner

Dominic Robert, as "the Roberts"] maintains that on that

day Philadelphia Park security personnel conducted a

search of her person and her vehicle in such a manner to

cause her and her son to suffer emotional and physical

iniuries. The Roberts allege that the search was prompted

by information furnished to the security personnel by a

confidential informant.

The Roberts filed suit against defendants

Philadelphia Park and Bensalem Racing Association, Inc..,

and Keystone Turf Club, Inc. and Greenwood Racing, Inc.

and Thoroughbred Racing Protective Bureau, Inc.

hte tele,

[hereinafter known as "the Park"] in the Court of Common

Pleas of Bucks County.

The Roberts subsequently served interrogatories on

the Park on May 29, 1993. The Park responded by

serving objections to an interrogatory which sought the

identity of the confidential informant. The trial court

entered an order directing the Park to serve complete

answers, and the Park filed a motion for reconsideration

on August 27, 1993. In connection with this motion, the

trial judge arranged a hearing for October 19, 1993.

Counsel for both parties were heard on the issues of when

and under what circumstances the identity of the informant

could be released.

By order of November 3, 1993, the trial court

determined that the confidential informant would be

identified "in camera" and any testimony would be taken

in the presence of the court. The confidential informant

was ordered to appear before Judge Clark in chambers to

be deposed on November 23, 1993.

The Roberts subsequently subpoenaed an individual

they suspected was the informant on November 1, 1993 in

order to take his deposition on November 19, 1993. In

response, the Park filed a motion for a protective order

and a stay of proceedings, on November 18, 1993. In this

motion, the Park argued that the deposition testimony of

plaintiff Roberts’ husband, Robert Scetta, indicated that

plaintiffs suspected that the individual subpoenaed for

November 19 was the informant, and that the plaintiffs’

attempt to depose that individual was in derogation of the

court’s order calling for the informant’s deposition in

camera on November 23.

A conference was held on November 19 to

determine this motion. After counsel for the Park

identified the confidential informant at sidebar at the

request of the judge, the court issued the order which the

petitioners attempt to bring before this Honorable Court.

That order provided a schedule for discovery and

prohibited The Roberts’ counsel from disclosing the

identity of the confidential informant to anyone until

further order of the court. Contrary to the statement of

petitioners that the court ruled without evidence, the record

contained the discovery deposition testimony of Mary

Anne Robert’s boyfriend, Robert Scetta which

demonstrated a history of confrontation between the former

and the informant predating the incident; thus the Park

justifiably feared that The Roberts and Mr. Scetta would

attempt to intimidate, confront or otherwise threaten the

informant.

The confidential informant was deposed before the

trial court on April 19, 1994.

The Roberts thereafter appealed the interlocutory

discovery order to the Superior Court of Pennsylvania,

which quashed the appeal as having been taken from an

order that was not currently appealable. The Roberts then

successfully petitioned the Pennsylvania Supreme Court for

Allowance of Appeal. However, after briefing and oral

argument, the Pennsylvania Supreme Court dismissed the

appeal as improvidently granted by order of November 22,

1995. The Roberts’ Petition for Certiorari followed.

The Park disagrees that any federal question was

ever preserved for review by this or any other Court.

REASONS FOR DENYING THE WRIT

I. THIS HONORABLE COURT DOES NOT

HAVE JURISDICTION TO REVIEW

THIS CASE: THE ORDER

PRESENTED BY THE PETITIONERS IS

NOT A FINAL ORDER, BUT AN

INTERLOCUTORY DISCOVERY

ORDER, AND THE ORDERS OF THE

STATE APPELLATE COURTS,

ALTHOUGH FINAL, DO NOT

PRESENT A RULING ON THE MERITS

OF THE TRIAL COURT’S ORDER OR

A CONSTITUTIONAL QUESTION

The power of this Honorable Court to review the

decisions rendered by state courts is limited.

The interlocutory discovery order which the

petitioners seek to present to this Honorable Court does

not fall within that limited jurisdiction, because that order

is not a "Final judgments or decrees rendered by the

highest court of a State” as required by 28 U.S.C. § 1257

(a). The grant or denial of a protective discovery order is

deemed interlocutory because it makes no final disposition

of the matter in controversy and is therefore not subject to

appeal. Mackowain v. Gulf Oil Corp., 369 Pa. 581, 87

A.2d 314 (1952). Orders which preclude the disclosure of

information on the grounds of privilege are not appealable

under the collateral order doctrine. Steel v. Weisberg, 347

Pa. Super. 106, 500 A.2d 428 (1985).

While the order of the Pennsylvania Supreme Court

qualifies under the first clause of Section 1257 (a), that

order is not reviewable by this Honorable Court, because

that order did not decide the merits of the trial court's

5

order and, consequently, presents no justiciable or

Constitutional issue for this Honorable Court to resolve.

Likewise, for all of these reasons, the order of the

Pennsylvania Superior Court, which quashed the

petitioners’ appeal from the discovery order, does not

qualify for this Honorable Court’s limited jurisdiction.

II. EVEN IF ITS MERITS ARE

REVIEWED, THE ORDER DOES NOT

ENCROACH ON FREE SPEECH AS A

PRIOR RESTRAINT AND THE

REQUIREMENTS FOR

CONSTITUTIONAL ENDORSEMENT

ENUNCIATED UNDER SEATTLE

TIMES V. RHINEHART

Additionally, this temporary, interlocutory gag

order issued in pre-trial discovery, which prohibits

disclosure of the identity of the confidential informant, and

which was obtained after a full hearing on the merits of the

request, was open-ended and designed to be temporary.

The order left open the opportunity for plaintiff to seek

relief during discovery. The Roberts never sought further

relief after the order was granted.

The temporary gag order was well within the lower

court’s jurisdiction and discretion as an order regulating

the discovery process. It can be likened to an order

sustaining an objection at a deposition, or an objection to

an interrogatory.

Even if the merits of the order are reviewed, the

order is in no way an encroachment on free speech as a

prior restraint. Neither does this order, which meets the

requirements for constitutional endorsement enunciated

6

under Seattle Times v. Rhinehart, 467 U.S. 20, 104 S.Ct.

2119, 81 L. Ed. 2d. 17 (1984), violate the state or federal

constitution.

No litigant has an unrestrained right to disseminate

information obtained through pre-trial discovery. Here,

the trial court’s temporary gag order was issued during

pre-trial discovery for the good cause of protecting the

informant from physical and verbal harassment and does

not violate the prohibition against orders which prevent

disclosure of information obtained outside of discovery.

The order meets every requisite set out by this Court in

Seattle Times for a constitutionally valid "gag" order.

In Seattle Times, this Court declared that there is

no unfettered right to publish information gathered in this

context and protective orders entered under the appropriate

circumstances do not offend the First Amendment. Id. at

31. It expressly distinguished orders prohibiting

dissemination of discovered information before trial as

"not the kind of classic prior restraint that requires

exacting First Amendment scrutiny." Id., at 33 (citing

Gannett v. Depasqualle, 433 U.S. 368, 399 (1970)(Powell,

J., concurring). To the contrary such limitations on a

party’s ability to disseminate information discovered in

advance of trial, implicates the First Amendment rights of

the restricted party to a far lesser extent than would

restraints in a different context. Id., at 34. This Court was

also cognizant of the possibility of exploitation under

circumstances which necessarily allow intrusion into the

private affairs of litigants and third parties. 467 U.S. at

34-35.

Conscious of these concerns, this Court proscribed

that a valid gag or protective order: (1) must be based

upon "a showing of good cause"; (2) be "limited to the

7

context of pre-trial civil discovery"; and, (3) that it "not

restrict dissemination of information if gained from other

sources." Id., 467 U.S. at 37.

The Park has repeatedly shown "good cause" for

the order throughout the course of this discovery dispute

by demonstrating that the disclosure of this information

would be chaotic to the Philadelphia Park racing

community and destructive of the informant’s safety, well-

being and livelihood, particularly given the nature of the

horse racing business and the sensitive nature of the

information. Testimony of record does support

defendant’s assertions: according to the plaintiff's own

deposition and the deposition of witness Robert Scetta,

there was a history of confrontation between Mr. Scetta

and [the confidential informant] predating the subject

incident. It was feared plaintiff and her boyfriend, Mr.

Scetta would attempt to intimidate, confront or otherwise

threaten the informant.

Secondly, Seattle Times requires that orders be

limited to the context of pre-trial civil discovery in order

to be constitutionally sound. The order, which was issued

in the pre-trial phase of this case, and which governed

information obtained through interrogatories, the noticing

of a deposition and other procedural devices, conclusively

met this requirement.

Also, the order merely states that the identity of the

confidential informant temporarily may not be disclosed by

the attorneys for either party in this case until "further

notice" of the court. By its plain terms, and by the

context in which it was issued, the order is conspicuously

limited to the context of pre-trial discovery and clearly

contemplates that further order of the court will review

and/or release it at an appropriate time. The Park never

8

requested, nor did the trial court actually order, an

absolute, permanent bar of disclosure of the identity of the

information and discovery information therefrom.

Moreover, The Roberts never inquired of the trial

court what the duration of the order, objected its perceived

duration, suggested a different time period for which the

order would be in effect, or have since attempted to have it

lifted.

The informant’s identity was released to the court

and The Roberts’ counsel. The deposition was held, and

the right to question the informant was in no way impeded.

The gag order simply, and temporarily, protected the

informant from the very real threat of physical and verbal

abuse that would be caused by the release of his name.

Finally, the order meets the third prong of the

Seattle Times test. First, the information about the

existence and identity of a confidential source was

obtained, or at least confirmed through pre-trial discovery.

Were The Roberts allowed to disseminate the informant’s

identity of the confidential informant, simply because they

may have previously suspected his identity, the gag order

would be toothless.

The Roberts, through their attorney, were given

access to the informant for deposition and have the

substance of the information that he provided to the track,

from the Park’ answers to interrogatories. In short, they

were given the ability to learn anything relevant about the

informant or the information that he provided that they

might need to prosecute their case. In fact they were

given the opportunity to learn this information from the

informant himself, in person, under oath and in the

presence of the trial court. Just as in Seattle Times the

9

protective order here still allows The Roberts to prepare

for and try their case without impingement. And, again,

even if it did not it is not prior restraint.

The lower court’s order amply satisfies the

requisites of Seattle Times for a constitutionally valid

protective order. Consequently, the lower court’s order

may be affirmed.

CONCLUSION

The Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

CHARLES W. CRAVEN, ESQ.

Counsel of Record

AUDREY J. COPELAND, ESQ.

MARSHALL, DENNEHEY,

WARNER, COLEMAN & GOGGIN

Attorneys for Respondents

1845 Walnut Street

Philadelphia, PA 19103

(215) 575-2600

10

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