Reply Brief — Pacific Lighting Corp. v. MGW, Inc.

Biprema Court, UL

| FILED

No. 93-426

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1993

PACIFIC LIGHTING CORP., FREDRICKS DEVELOPMENT

Corp. and DUNN PROPERTIES CORP.,

Petitioners,

V.

MGW, INc.,

Respondent.

On Petition For

Writ Of Certiorari To The

California Court Of Appeal,

Fourth Appellate District

REPLY MEMORANDUM

*THEODORE B. OLSON

THEODORE J. BOUTROUS, JR.

JOHN K. BUSH

GIBSON, DUNN & CRUTCHER

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

Attorneys for Petitioners

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

Y BEST AVAILABLE COPY

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

REPLY MEMORANDUM

TABLE OF AUTHORITIES

Cases: Page(s)

Adams v. Murakami, 54 Cal. 8d 105 (1991) ......... 2

Cohen v. Cowles Media Co., 111 S. Ct. 2513

(ROE) <tectsivarercsiininrieinanaaaaan 2

Jenkins v. Georgia, 418 U.S. 153 (1974) ............... 2

Orr ¥. Grr, 400 U6. BAITS. ois oanians 2

Pacific Mutual Life Ins. Co. vy. Haslip, 111 S. Ct.

SOS LEGS) sinister ]

Raley v. Ohio, 360 U.S. 423 (1959) ................cc000 ;

TXO Production Corp. v. Alliance Resources Corp.,

EAS GB. GR. DERE TEBE tisecsecsccstascea passim

Constitution:

a COM. ame BIY, $2 vcacccsseeoeee passvm

——————— es

REPLY MEMORANDUM

Respondent MGW, Inc.’s 19-page brief in opposition

to certiorari cannot overcome a simple, unassailable

and exceedingly unfortunate fact: the highest court

in the Nation’s largest State was on the brink of

scrutinizing its punitive damage system for consti-

tutional defects when this Court decided TXO Pro-

duction Corp. v. Alliance Resources Corp., 113 S. Ct.

2711 (1993), but dismissed this case and three others

only days after TXO as ‘‘improvidently granted.” Pet.

App. la. A misconstruction of the meaning of TXO,

not any state law “procedural shortcomings,’’ Opp.

at 2, is the only conceivable explanation for these

actions. See Petition at 4, 6-7.

Indeed, all of the federal due process issues pre-

sented by this case were fully argued and expressly

decided by the California Court of Appeal. See Pet.

App. 16a-32a.! The Court of Appeal squarely and une-

quivocally rejected petitioners’ argument that Cali-

fornia’s standardless, wealth-based model jury

instruction violated the Due Process Clause as inter-

preted by this Court in Pacific Mutual Life Ins. Co.

v. Haslip, 111 S. Ct. 1032 (1991), holding that that

instruction included sufficiently ‘‘objective factors de-

signed to effect the policies behind such awards,”’ Pet.

App. 18a,-and that it was proper “for the jury to

consider the defendants’ wealth.’’ Pet. App. 2la. It

also upheld as constitutional California’s post-verdict

review procedures, including its ‘‘passion or preju-

‘The other three punitive damage cases that the California

Supreme Court dismissed as improvidently granted after TXO,

see Petition at 4 n.2, raised the identical and other closely related

due process issues that had been explicitly decided by the Cal-

ifornia Court of Appeal.

——— ee

ms

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dice’ standard of appellate review. See, e.g., Pet. App.

18a-19a.

Accordingly, it is frivolous for MGW to contend

throughout its brief that this Court should deny

certiorari ‘‘for failure to preserve issues.’’ Opp. at 2,

11, 17.2 As this Court has repeatedly held, ‘“‘[t]here

can be no question as to the proper presentation of

a federal] claim when the [court below] passes on it.’’

Raley v. Ohio, 360 U.S. 423, 4386 (1959); see also

Cohen v. Cowles Media Co., 111 S. Ct. 2513 (1991)

(same); Orr v. Orr, 440 U.S. 268, 274-75 (1979)

(same); Jenkins v. Georgia, 418 U.S. 153, 157 (1974)

(same). Moreover, MGW’s “waiver” arguments are

flatly inconsistent with California law as well. See,

e.g., Adams v. Murakami, 54 Cal. 3d 105, 115 n.5

(1991) (rejecting plaintiff's waiver arguments con-

cerning defendant’s challenge to proper procedures

for imposing punitive damages because ‘“‘the primary

interest that must be-protected is the public interest

in punitive damages awards in appropriate amounts.

We cannot allow the public interest to be thwarted

by a defendant’s oversight or trial tactics.’’) (emphasis

in original).

MGW also argues at length on the merits that the

California punitive damage system and the $2,000,000

award that it produced here comport with the Due

Process Clause as interpreted in TXO. See, e.g., Opp.

at 7-10, 12-16. This Court should grant certiorari,

vacate the judgment below and remand this case so

that the California courts may address that question

*MGW unsuccessfully advanced these exact arguments in op-

position to petitioners’ first certiorari petition in this case (No.

90-626), which the Court granted. See Pet. App. 34a.

in the first instance, and also to make clear that,

particularly after T-XO, e courts continue to bear

constitutional responsibilit, for ensuring that their re-

spective punitive damage regimes include fair pro-

cedures that protect against arbitrary and

unreasonable punishments.

October 20, 1993 Respectfully submitted,

“THEODORE B. OLSON

THEODORE J. BOUTROUS, JR.

JOHN K. BUSH =

GIBSON, DUNN & CRUTCHER

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

A ttorneys for Petitioners

*Counsel of Record

EE ET

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