Prologue — Sutter v. Lasar

Supreme Cou

Pr cau US,

05°95 sy 18 2095

No. OFFICE Ac am tr =. =

IN THE

' Supreme Court of the United States

LAWRENCE SUTTER,

ponents Petitioner,

Vv.

STEVEN MARK LASAR,

ees . Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

THEODORE J. BOUTROUS, JR. -

Counsel of Record

THOMAS H. DUPREE, JR.

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue NW

Washington, DC 20036-5306

(202) 955-8500

Counsel for Petitioner

QUESTIONS PRESENTED

The Ninth Circuit upheld a contempt Citation and other

severe sanctions imposed against Lawrence Sutter, an attor-

ney for Ford Motor Company, based on comments he made _

during his opening statement and an alleged omission in his

pro hac vice application. The Ninth Circuit acknowledged

that in imposing the sanctions under its “inherent power,” the

district court had denied Mr. Sutter the procedural protec-

tions afforded in a criminal contempt proceeding as well as

the protections provided by the court’s Local Rules, but held

that the contempt was civil in nature and that the district

court could rely on its inherent power even when the Local

Rules were fully adequate to address the conduct in question.

The following questions are presented:

1. Whether a district court may rely on its inherent

power to sanction where the conduct may be fully and ade-

quately addressed under a sanctioning provision in a statute

or rule.

2. Whether a contempt sanction is criminal, rather than

civil, when it is based on completed conduct and intended to

punish, stigmatize and reprimand the contemnor.

ii

PARTIES TO THE PROCEEDINGS

The parties to the proceedings below included Steven

Mark Lasar, Ford Motor Company, and Lawrence Sutter.

ili

TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEBIOINGS 6c. iciicesvesscncseosentectsacs ii

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TABLE OF AUTHORITIES ............. fda wise tocsastkaeeccae cuando .v

OPINIONS AND ORDERS BELOW.........0.00.........cceeeeeeeeees 1

FPR II IY snag sachs chases eobss As cosesneiga ion seah dnevansiaden ]

RELEVANT STATUTES AND RULES..................0.0:::ccceu ]

DEAT EGMINT OP TEI CI ooo stasis esis rtaciscinssscceeatariacns ]

REASONS FOR GRANTING THE WRIT...................0....04.. 8

I. THE CIRCUITS ARE SPLIT OVER

WHETHER A COURT MAY SANCTION

UNDER ITS INHERENT POWER WHEN

THE CONDUCT CAN BE ADEQUATELY

SANCTIONED UNDER STATUTES OR

A. The Ninth And Sixth Circuits Permit

Use Of The Inherent Power Even When

Statutes Or Rules Are Directly

Applicable And Fully Adequate...................... 12

B. The Third and Fifth Circuits, In

Contrast, Hold That The Inherent Power

May Be Used Only When Statute- Or

Rule-Based Sanctions Are Inadequate............. 15

C.- This Court Should Hold That The

Inherent Power Can Be Invoked Only If

The Sanctioning Provisions In Rules

And Statutes Are Inadequate.......................0. 17

1V

II. REVIEW IS WARRANTED TO RESOLVE

‘THE QUESTION WHETHER A FREE-

STANDING CONTEMPT CITATION FOR

A PAST FAILURE TO COMPLY WITH A

COURT ORDER IS CIVIL OR

I ies gece cass toss sats Pn Silas Asccigicaheemhel 19

RMIT RIE oes So sass hao sa pacccks dons dastons pandacidcieeeonias 22

Vv

TABLE OF AUTHORITIES

3 Pages

“CASES

Bank of Nova Scotia v. United States,

es I I ian pks sacs osteo apes pchatiganonnsngococapnnece 18

“Barrow S.S. Co. v. Kane, 170 U.S. 100 (1898)............000...... 9

BMW v. Gore, 517 U.S. 559 (1996) ...............cccccseeceseceseeees 18

Carlisle v. United States, 517 U.S. 416 (1996)............. oe

Carroll v. Jaques Admiralty Law Firm,

RA tee BUF aa Since cksdicsacnisccecesgcncn 16, 17

Chambers v. NASCO, Inc., 501 U.S. 32 (1991)............ passim

Cobell v. Norton, 334 F.3d 1128

Sy Re Sa hin Alas: sr bud nfenininsseSinesscatoumccyedeubicy passim

Cyphers v. Fuji Heavy Industries Co.,

32 F. Supp. 2d 1199 (D. Mont. 1998)............0..00.0. 9

Degen v. United States, 517 U.S. 820 (1996) ................. 8,17

Ex parte Burr, 9 Wheat. 529 (1824) ..........ccccccecsescssessseesseeee 8

Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001) ........00..0000.2... 14

First Bank of Marietta v. Hartford Underwriters — -

Insurance Co., 307 F.3d 501 (6th Cir. 2002).....12, 14, 15

Gompers v. Bucks Stove & Range Co.,

ee EE BIER winancsh caso esd vaiscdnccdcnvicsiseaniaesans 19, 21

Hicks ex rel. Feiock v. Feiock, 485 U.S. 624

ERRRURET CSE ek SSE SIRS SS os eee ee aE ee ee 19

In re Thalheim, 853 F.2d 383 (Sth Cir. 1988).............000..... 17

Int’l Union,-UMW v. Bagwell, 512 U.S. 821

TERROR Ss 7a SARS ee ee Sea al oa 19, 21

Kaffeman v. Maclin (In re Disqualification of

Cleary), 723 N.E.2d 1106 (Ohio 2000)................... 4,5,7

Klein v. Stahl GMBH & Co., 185 F.3d 98

6 AD, SOON RA OREN oye Se SOE POURS SPR Rome 16

Mackler Productions, Inc. v. Cohen,

Dae RA MN sink cisscdd chong aiekancnssi ocascnkclansans 8

Montrose Medical Group Participating Savings

Plan v. Bulger, 243 F.3d 773 (3d Cir. 2001) ................ 16

Myers v. United States, 272 U.S. 52 (1926) ................0004. 18

Roadway Express, Inc. v. Piper, 447 U.S. 752

I irccsdecaa ced ian sce inctcssddiscpsipichdscpabie alias cgusiubseiicnd tases 17

United States v. Ries, 100 F.3d 1469

Dee: MI bic cacec stiches ‘geidssis aimininrouarigtudcenasenanncee 9

STATUTES

vo pth TSE Sr. 4 Rea eoned i aah ings Rapier NUcmieanr eR eater Fee |

ee ce aceite cin sts Settncncssin adipic ensiecse 14

RULES

Ws a a PP a i isan 18

Peek we COEF a ie nia ee soe 19

RE RE. ESAS me itat ay SPSS oreo Cae Meee passim

ER SF Rae etereeNE Nae C SEER passim

OTHER AUTHORITIES

Gregory P. Joseph, Sanctions: The Federal

Law of Litigation Abuse 428 (3d ed. 1999 &

he JO 12, 15

PETITION FOR A WRIT OF CERTIORARI

Lawrence Sutter respectfully petitions this Court for a

writ of certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case.

OPINIONS AND ORDERS BELOW

The Ninth Circuit’s opinion (Pet. App. 1a) is reported at

399 F.3d 1101. The opinion of the district court (Pet. App.

30a) is reported at 239 F. Supp. 2d 1032.

JURISDICTION

The Ninth Circuit filed its opinion on March 3, 2005,

and denied petitioner’s timely request for rehearing en banc

on April 19, 2005. Pet. App. 84a. This Court has jurisdic-

tion pursuant to 28 U.S.C. § 1254(1).

RELEVANT STATUTES AND RULES

The relevant provisions of the Local Rules for the Dis-

trict of Montana are reproduced in the Petitioner’s Appendix,

Pet. App. 86a-98a.

STATEMENT OF THE CASE

This case dramatically illustrates the dangers of a district

court wielding an unchecked “inherent power’ to sanction.

Attorney Lawrence Sutter was accused of violating an order

in limine during his opening statement and of omitting in-

formation in his pro hac vice application. Although the

Montana Local Rules give extensive procedural protections

to attorneys accused of omissions in their application, includ-

ing the right to an independent investigation and prosecutor,

the district court bypassed its own Local Rules by relying on

its “inherent power” to sanction, stripping Mr. Sutter of his

admission pro hac vice, and permanently banning him from

ever again appearing in the Missoula Division of the federal

court. The court also issued a contempt citation against him

for the alleged violation of the order in limine, again relying

on its inherent power and denying Mr. Sutter the procedural

protections afforded a criminal contemnor. The court im-

posed these sanctions, as well as severe monetary sanctions,

im a lengthy, published order attacking Mr. Sutter’s character

and his fitness as a lawyer. See 239 F. Supp. 2d 1032, Pet.

App. 30a.

The Ninth Circuit vacated the permanent ban, but other-

wise upheld the district court’s order in full. 399 F.3d 1101,

Pet. App. la. It held that the district court was entitled to jet-

tison the procedural protections contained in its own Local

Rules when sanctioning under its inherent power, thereby

worsening an existing circuit split over whether a district

court may invoke its inherent power when the conduct in

question could be addressed by the sanctioning provisions in

statutes or rules. /d. at 20a-2la. The Ninth Circuit also held

that the contempt citation was civil in nature and thus did not

require the protections that attach in a criminal proceeding,

id. at 16a-18a, thus creating a conflict with the D.C. Circuit

over whether this type of freestanding contempt citation

based on a past failure to comply with a court order is civil or

' * * *

1. Petitioner Lawrence Sutter represented Ford Motor

Company in this product liability case tried before Judge

Donald Molloy in the United States District Court for the

District of Montana. Mr. Sutter is a nationally-known trial

lawyer who has tried over 50 cases and recently founded his

own 30-person firm based in Cleveland. Ninth Circuit Ex-

cerpts of Record (“ER”) 93-94. He was selected in 2002 by

the National Law Journal as one of the top 40 lawyers in the

country under the age of 40, and was featured by the same

publication in an article profiling ten of the country’s top liti-

gators. Jd. He is a member in good standing of the bars of

Ohio and Tennessee, and was admitted pro hac vice in this

case. Id. at 94-95.

Respondent Steven Lasar was driving home late at night

on a rural road in Montana when he lost control of his Ford

Ranger pickup and rolled it over. Pet. App. 3a. He sued

Ford, alleging that the Ranger’s door latch was defective in

that it allowed the pickup’s door to open during the rollover,

resulting in his being thrown from the vehicle. /d. Prior to

trial, respondent moved in limine to exclude evidence of his

alcohol use the day of the accident. He also moved to ex-

clude evidence that he was not wearing his seatbelt when the

accident occurred. The district court granted both motions.

Id.

During his opening statement, Mr. Sutter described how

respondent spent the day of the accident:

At about 5:00 that morning, Mr. Lasar got out

of bed and went hunting for the morning.

Some time in the afternoon, he met up with

some of his friends and spent the day playing

pool, visiting some local establishments.

Somewhere around 10:00 that night, he made

the decision to drive himself home. He got into

his car and he began his way back to his home-

stead.

Pet. App. 4a. Later in his opening statement, Mr. Sutter de-

scribed what was occurring within the vehicle during the

rollovers:

Now, inside the vehicle, something else was

going on; Lasar was what we call a free-

floating body. His body was banting about in-

side the car as it was rolling over. And because

of what happens during the rollover, something

all of us learned in high school and most of us

tried to forget, centrifugal force. All that is, is

something spinning around like a yo-yo on a

string; it wants to keep going outward.

Id.

Respondent’s counsel did not object during Mr. Sutter’s

opening statement. Rather, counsel waited until Mr. Sutter

concluded, then requested a sidebar and later, at the end of

the day’s proceedings, argued to the court that these two re-

marks had violated the pretrial rulings. ER25-26. Respon-

dent’s counsel did not request a mistrial, but simply asked

“that the Court admonish counsel to stay within the letter and

spirit of the Court’s rulings and to avoid comments like that,

and perhaps we can deal with some sort of instruction later

on.” Jd. at 27.

Although respondent’s counsel had not requested it, the

court suggested sua sponte that it would grant a mistrial if

respondent wished and would order Ford to pay his costs.

ER27. The next morning, respondent accepted the court’s

invitation and the court immediately granted a mistrial. The

court stated that it would impose sanctions, under its inherent

power, to punish Mr. Sutter for attempting “to win this case

at all costs,” and directed all counsel to return to court two

days later for a sanctions and contempt hearing. ER61-63.

2. When the court reconvened, the parties began by ar-

guing over the proper amount of a monetary sanction. ER68-

91. The court then stated that it would consider “whether or

not Mr. Sutter should be held in contempt of the Court for the

willful violation of the orders in limine.”” Id. at 91.

Mr. Sutter was placed under oath and questioned by his co-

counsel.

In the course of that questioning, Mr. Sutter volunteered

that several years ago in a case called Kaffeman, a state trial

judge in Ohio had ordered that he be briefly confined (once

for 10 minutes and once for 20) for attempting to place ob-

jections on the record. ER94-95, 119. Mr. Sutter explained

that the Ohio Supreme Court reviewed the trial judge’s be-

havior and exonerated Mr. Sutter by agreeing that the trial

judge had acted unreasonably and disqualifying her from fur-

ther proceedings. /d. at 95. See Kaffeman v. Maclin (In re

Disqualification of Cleary), 723 N.E.2d 1106, 1108 (Ohio

2000). Mr. Sutter further noted that the Ohio Supreme Court

subsequently suspended the state judge from the practice of

law for misconduct while on the bench in an unrelated case.

ER9S.

Finally, he testified that he did not intend to violate ei-

ther of the orders in limine, and that he did not believe he had

violated either order at the time he made his opening state-

ment. ER98-100 (“I spent a great deal of time drafting this

language because I thought that this was within the bounds of

the Court’s ruling. .. . I was trying to stay safely within the

bounds of the ruling by the Court.”).

Although Kaffeman had never been mentioned before

Mr. Sutter raised it himself that morning, the district court

revealed that it had already obtained and read the opinion.

ER109.! The court agreed with Mr. Sutter that “[c]ertainly

there’s an implication from reading” the opinion “that the

[Ohio Supreme] Court felt [the trial judge] should not have

held you in contempt... . The inference is when she locked

you up, she shouldn’t have done it.” Jd. at 119, 123-24. But

the court stated that it nonetheless believed that Mr. Sutter

should have disclosed the Ohio proceedings in his pro hac

vice application to the Montana court pursuant to Local Rule

83.3(e)(3)(E), which provides that an applicant must dis-

close:

whether the attorney has ever been held in con-

tempt, otherwise disciplined by any court for

disobedience to its rules or orders, or sanc-

tioned under Federal Rules of Civil Procedure

11 or 37(b), (c), (d) or (g) or their state equiva-

lent.

Pet. App. 88a. The court acknowledged Mr. Sutter’s belief

that he had been vindicated by the Ohio Supreme Court, but

stated that “I don’t seem to read the case the way you do.”

ER118. The hearing ended and the court took the matter un-

der advisement. ;

3. Nearly three months later, the district court issued an

_order citing Mr. Sutter for contempt, stripping him of his pro

hac vice admission, and permanently banning him from ever

again appearing in the Missoula Division of the District of

1 The court also revealed that it had researched and uncovered back

issues Of the National Law Journal in which Mr. Sutter had been quoted

discussing his work in other cases involving seatbelt use. ER116-17.

\