Amicus Curiae Brief — Thanh Vong Hoai v. Thanh Van Vo

No. 91-1341

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

THANH VONG HOAI, JOHN D. HEMENWAY, DAVID

HEMENWAY

Petitioners,

THANH VAN VO, MILLARD F. OTTMAN, DAVID C.

ROSEMAN, JONES, DAY, REAVIS & POGUE, J.

GORDON FORESTER, JR., GEOFFREY WAGNER,

JOSEPH ZULLI, SUN REFINING & MARKETING

COMPANY, INC.

Respondents.

ON APPEAL FROM THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMICUS CURIAE

Vail W. Pischke

2043 Reynolds Street

Falls Church, VA

22043

(703) 241-2272

No. 91-1341

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

THANH VONG HOAI, JOHN D. HEMENWAY, and

AVID HEMENWAY,

Petitioners,

Vv.

TEANH VAN VO, MILLARD F. OTTMAN, UR.,

DAVID C. ROSEMAN, JONES, DAY, REAVIS ana

POGUE, J. GORDON FORESTER, JR., GEOFFREY

WAGNER, JOSEPH ZULLI, UN REFINING AND

FADOWVOT ST Ie

MARKETING COMPANY , INC. ,

Respondents.

~

or The Writ Of Certiorari To The

United States Court of Appeals For The

istrict Of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF THE VIETNAMESE COMMUNITY OF

WASHINGTON, D.C., MARYLAND AND VIRGINIA,

IN SUPPORT OF PETITIONERS

Pursuant to Rule 37.1, .2 and .4 of the

Rules of this Court, the Vietnamese Con-

munity of Washington, D.C., Maryland and

Virginia respectfully moves for leave to

file the annexed brief amicus curiae in

Support of appellants. Respondents have

refused consent for the filing of this

brief.

INTEREST OF THE AMICUS CURIAE

The Vietnamese Community of Washington,

D.C., Maryland and Virginia is the major

Vietnamese-American organization for the

Washington, D.C. Metropolitan area and the

th

ct

Surrounding states. It is a non-profi

organization dedicated to the preservation

and promotion cf the welfare of Vietnamese

citizens and residents of this great Coun-

try. Its members by and large kKnow first

hand what it is to have to deal with and

live under totalitarian domination and the

importance of constitutional safeguards

and the Rule of Law in preserving individ-

ual liberties in the face of officials

determined to ignore such rignts and im-

pose the rule of fiat. Its membership ex-

ceeds forty thousand Vietnamese and,

through a working alliance with similar

organizations in all the other States of

the Union it is representative of over

one-million Americans of Vietnamese origin

or ancestry.

Heretofore, the Vietnamese-Americans,

and Pacific and Asian-Americans generally,

have not been active in filing Amicus

Curiae briefs before the Court or in

making known their concern about the

tide of incidents in which dis-

lilies | .

LaASaihi

WW

Crimination against Asian-Americans, often

in connection with their operation of

small businesses, is coming to the atten-

tion of the larger American public. No

doubt that is part of the reason why the

te this present petition

OF

actions leadin

\Q

occurred. The Vietnamese Community hopes

that beginning now, with this case, this

indifference to the civil rights of the

Asian-Americans in this country, Americans

-III-

who are justly famed for their achieve-

ments in academia, in business and in many

other fields, ends. The Community looks

forward to filing many more briefs in sup-

port of such righteous causes as this un-

til unfortunate incidents such as those

that occurred here are exposed to the

great good will of the American people and

ended by observance of the rights of

Asian-Americans along with all other Amer-

icans in the courts, not only of the Na-

tion's Capital, but all over this land.

The Community is concerned with the in-

Stant petition because, unless it is heard

and the decisions below overruled there

will be a clear signal that in the nation-

al capital, of all places, the civil

rights of Asian-Americans specifically

granted as a shield against the misuse of

the power of the states for the purpose of

depriving individuals of their rights un-

der the Federal Constitution and laws will

-Iv-

be abridged and ignored with impunity in

the very courts themselves, courts that

are held out to all who come here as the

safeguards of our liberties and our sacred

right to own a piece of the American dream

through hard work and sacrifice.

The dream of Dr. Martin Luther King was

that of an America where all Americans,

regardless of their skin color or

heritage, could walk, work and prosper

side by side. His weapons were the non-

violent protest and the use of the courts

to enforce the civil rights laws that give

freedom and dignity to all Americans.

Sadly, for the Asian-American community,

and for the Vietnamese-American community

in particular, the course of this case of

Thanh Vong Hoai is a corruption of that

dream, a betrayal of its vision, a dis-

appointment to those who look to the

courts with hope that the laws will indeed

be elevated above status, above estab-

-V-

lished position and above the mundane

politics of Washington, D.C. What hap-

pened in this case is an elevation of the

rationalization of "managing" those who

are not perceived as important becausé of

their political and ethnic affiliation out

of sight and out of mind,? of treating

them as invisible so that their rights may

be ignored without discomfort to a system

that fools itself that it is observing

those rights.

Nhat is evident throughout this case is

that if Mr. Hoai had been allowed to have

his case heard and have the con-

stitutionality of Superior Court Rule 12-I

(b) as it stood in September of 1986 exam-

ined in conjunction with the misuse it

*cf. Ellison, Ralph, The Invisible Man.

It is indeed ironic that Asian Americans

should find so much to build upon in the

struggles of the African-Americans for

their civil rights, so many shoulders to

stand upon now that their plight in the

political arena echoes that of the

African-Americans of several generations

ago.

-VI-

enabled of the consent judgment procedures

of that court, that rule; (since repealed

in pertinent part) and the procedures as-

sociated with it would not withstand the

scrutiny. The same can be said of the ab-

solutely uncontrolled use of the canons of

ethics as adopted by the District of

Columbia Court of Appeals and in effect at

that time to disqualify one's opponent's

counsel on a purely tactical and harassing

basis. The same can be said for "bondinc"

procedures scarcely worthy of the name,

where the "protection" for the pre-

judgment seizure and destruction of one's

business property was for all practical

purposes non-existent -- what with the al-

lowance of "payment" of the bond by un-

certified, unverified check (in this case

drawn on the business that was seized il-

legally itself) with no precaution against

insufficiency of funds backing the check

and with nothing to stop the party guilty

“Vii-=

of illegally seizing the party from ob-

taining return of any bond posted before

the merits of the pre-judgment seizure can

be decided. All of these things make a

mockery of due process and throughout

these proceedings that was evident. Yet

so many American judges went out of their

way not to see -- to make of an Asian-

American man whose small business was

seized and destroyed as a result an in-

visible man. Justice should be blind, it

is true, but only in balancing rights,

blind as to favoritism for either side.

Justice should not be so blind as to not

see an entire race of overachieving Amer-

ican citizens. And yet that is the in-

escapable conclusion one must draw in

studying this case. For even one of the

most able of the Superior Court judges who

handled a hearing in the case of Hoai in

the Superior Court of the District of

-Viili-~

Columbia, 2 the Honorable George Goodrich

was quick to compare this situation to

that of the "tong wars", though he, at

least, did so totally without malice or

bias. But the questions here are not

those of internecine ethnic struggle; the

“At the time of these events the Supe-

rior Court of the District of Columbia had

an incredibly inefficient system under

which absent a "Calendar I Assignment" in

a case as complex as this Hoai litigation,

which has several branches in several

courts, every motion was considered by a

new and different one of over 50 judges,

and if heard, was heard by a judge who had

no previous familiarity with the facts of

the case. This system, by a change in the

rules of that court of which this Court,

like any other, may take notice, has now,

to the ¢redit of the Superior court's

chief judge and administrators, been mer-

cifully changed, effective January l,

1990. Even though the Hoai litigation in

that court was ultimately moved onto the

then Civil I calendar by Hoai's counsel

and placed before one judge, the first

judge to be assigned it after that status

was achieved, viciously attacked Mr.

Hoai's attorneys for daring to take ad-

vantage of that provision designed for

just such complex litigation as this and

suggested that they ought to be sanc-

tioned, a suggestion and quotation seized

upon by his opponents in this and all the

other branches of his litigation and in-

serted in the record at every available

opportunity.

~TX-

questions before this court concern why,

when an Asian-American does turn to the

courts of this country to right wrongs

which have damaged him and injured hin,

destroying his business and career, he

should be treated in a way so different

from what has been the custom dictated in

the lower courts by the decisions of this

Court for the past forty years. The ap-

Civil rights laws as protective of funda-

= 5 5 ? 5 é ~)

mental federal rights. The resulting de-

a4 : ~ - -~= ) —e . - Ke

cisions and the general practices of the

lower courts following those decision

"

* . — ~ > * . my

nave maqe customary in our courts certain

basic principles of due process and the

rn => ~ + Cc — +h -s + T+ o

1\e~arx ing OL cases on ws sO ad merits. - & AS

-— oe lanl 5 a ne ennnecKring - ha + v a+ has Aane

pat a ee oe en ee ee ae - SP ae a eo essa saa ao 4aQa>

ques employed below are precisely those of

justice delayed, deferred, and of merits

buried with procedural technicalities,

technicalities that are applied with a

prior purpose in mind that is not com-

patible with a blind and equal application

of the laws. That purpose is manifestly

to avoid the merits of the cause. Thus,

what is evident on this record is the tac-

tics not only by the opponents but by men-

bers of the judiciary also that were

storied in the South for many years. The

members of the Asian-American community

admire the laws of this great land. We

have, they say, many wonderful laws in

this country. But they wonder why we do

not apply them. Over the past forty years

this Court has done much to inspire all

who come here and all who wish to come

here in the future by the shining example

of our elevation of individual rights and

liberties above transient politics of the

-XI-

moment, above the petty corruptions of hu-

mankind. Yet here we see a manifest fail-

ure to apply those laws as set out by this

Court and, disturbingly, an assumption

that a Vietnamese-American, an Asian-

American, will be able to do nothing to

see that they are enforced. ‘he rules of

this Court specifically state that in in-

stances where a United States Court of Ap-

peals has either departed far from the ac-

cepted and usual course of proceedings, or

has sanctioned such a departure by a

United States District Court and done

in

O

so far as to call for the supervision

O

tt

this Court, then the writ will be granted.

Rule 10.1 (a). That is the case here.

Further, the decision below in this in-

stance not only departs so far from the

accepted and usual course as to call for

this Court's supervision, it also condones

in the court below and itself conflicts

with numerous applicable decisions of thi

Wn

-XII-

Court and for that reason, as noted, re-

quires the issuance of the writ in this

instance.

It is now too late too turn back the

clock on civil rights. The promise em-

bodied in the Declaration of Independence

of inalienable rights, the framework

designed to allow their development in the

Constitution and the specific guarantees

of that Great Instrument, all have been

fulfilled in the great Civil Rights strug-

gle of the last forty years. The American

South has largely been freed from the bur-

Gen of bigotry that lay heavy upon it.

But now is the time of great danger. For

yesterday's reformers, yesterday's op-

pressed, are now ensconced here in Wash-

ington, D.C. as the Nation's establish-

ment. Let not their success be an ending

and let not others who come after them in

the great tides of immigration and as-

Ssimilation be disappointed in their,

“Ailii=

equally worthy, quest. Let them see the

fulfillment and extension of that which

was admirable in the great Civil Rights

struggle. For those formerly denied par-

ticipation in the dream must move on with

its changes and the dream itself must al-

ways include, not exclude. This case is

about that dream, which must not be made

captive of any establishment, but must

ever remain available for all Americans.

PURPOSE OF THE BRIEF AMICUS CURIAE

The Vietnamese Community recognizes that

the petitioners have ably argued their own

personal interests in having the Court is-

sue the writ of certiorari as fully as

they could have done under the circum-

stances. Yet the very tactics of the

judges below in diverting attention from

the governing issues and avoiding focusing

upon them naturally prevented the

petitioners from engaging the absolute

core issues here in the depth that the

-XIV-

Court would normally require. This is

particularly true with regard to the

castigation of the appellants in the

opinion below for reliance upon Lugar v

Edmondson Oil Co. (1982) 457 US 922, which

the appellate court pejoratively and some-

what contemptously characterized as a

"Sole reliance". (A-17)} Does not the

analysis in that case embody all of the

important law in this vital area that went

before ? We think so, and we think that

the purpose of the appellate panel to thus

trivialize by contempt for a justifiable

reliance, coupled with its tactics of

diversion from the issues presented by

that case was exposed by its cursory dis-

missal in a footnote of the continuation

of this Court's analysis in this important

area of state action analysis in the judi-

cial arena in the providentially interven-

ing decision in Edmonson v Leesville Con-

crete Co. (1991) 500 US ____, 114 Led2d

-XV-

660. What is wrong with relying on a case

that is well written and dispositive of

the issue at the time ? We would hope

that this Court would give the signal that

in the future such transparent tactics,

reminiscent of the early days of the civil

rights struggle, will not be tolerated in

the Nation's Capital, of all venues.

Asian-Americans are not fooled by the tac-

tic of creating such an atmosphere of

hostility and attack, as if a litigant did

not count, that the litigant is hard-

pressed to present the issues of the case

for having to contest both the court below

and his opponents in the case. Admitted-

ly, the attorneys assisting the litigant

here ware not members of the civil rights

establishment. And the record reveals

that when they were compelled to file the

complaint in question here they were busy

in the companion case before the same

judge. In that PMPA case, pursuant to or-

-XVI-

der, Sunoco had just filed a summary judg-

ment motion and also an unordered motion

for leave to file an amended answer, both

of which had answers then almost immedi-

ately due. All of the established civil

rights organizations refused to give as-

sistance. Yet, as the accompanying brief

shows the resulting complaint dces not

have the defects ascribed to it by the ap-

pellate panel under an Edmonson-Lugar

analysis, despite the modesty of Mr.

Hoai's counsel concerning its quality, at

least with regard to the 42 U.S.C. 1983

allegations.

Through its annexed brief amicus curiae

the Vietnamese Community hopes to provide

this Court with convincing evidence that

the appeals panel was not only seriously

in conflict with the applicable decisions

of this Court in its manner of treating

the complaint under Conley v Gibson (1957)

355 US 41 as petitioners have ably pointed

“AVII=

out, and not only departed from the ac-

cepted and usual course of proceedings in

the federal courts in dealing with this

complaint by an Asian-American civil

rights litigant so far as to call for this

court *s supervision, but also that this is

true substantively under these recent

cases in the developing area of 42 U.S.C.

1983 urisprudence, particularly as it con-

cerns the area of state action by or

jointly with or under the authority of the

state judicial branches, and that, ftur=

ther, there is substantively an undecided

question here sufficiently important to

call for this Court issuing the writ of

certiorari, one that shows that far from

relying upon Lugar alone the appellants

were relying upon a major and developing

line of cases which this Court is even now

carrying forward to a logical conclusion

which will necessarily involve some of the

questions presented here.

-XVIII-

WHEREFORE, the Vietnamese Community

prays that this Court grant its motion,

and permit the filing of the annexed brief

amicus curiae.

Respectfully submitted.

THANH VONG HOAI, JOHN D.

HEMENWAY, DAVID HEMENWAY

By:

Vail W. Pischke

2043 Reynolds Place

Falls Church, Virginia 22043

(703) 241-2272

Counsel of Record for

AMICUS CURIAE

Vietnamese Community

CERTIFICATE OF SERVICE

I hereby certify that I have served by

United States mail, first class, postage

prepaid, true and accurate copies, 3 each,

of the foregoing motion this A@th day of

March, 1992, to each of the following

counsel of record below:

Francis X. Markey

1450 G Street, N.W.

Washington, D.C. 20005

J. Gordon Forester, Jr.

Ste. 900, 1620 L St., N.W.

Washington, D.C. 20036

Robert Pleshaw

“ALA=

1510 H Street, N.W.

Washington, D.C. 20005

Vail W. Pischke

TABLE OF CONTENTS

PAGE

MOTION FOR LEAVE TO FILE BRIEF

Bede CAMA socccseenecevicces I

Zemae CF CONGCGNCE 65 sc ce tecvewcews TOC=-1

wemee GF BRUCROTICIOS 6.6 ioe 8 600 00 Taut-i

INTEREST OF AMICUS CURIAE ....... 1

os ae ad ee ee ee ee 1

- Toc l-

TABLE OF AUTHORITIES

PAGE

CASES

Bloedorn v. Bloedorn (1935)

64 AppDC 199, 76 F2d 812,

cert den US 746, 79 Led 1691,

55 Sct 658

Conley v. Gibson (1957)

355 us 41

Connecticut v. Doehr

(1991) 501 US 115

Led2d 1

Crabtree v. Muchmore (CA10

1990) 904 F2d 1475, 1476

Dennis v. Sparks (1980)

449 US 24, 28 *

Edmonson v. Leesville

Concrete (1991) 500

US , 114 Led2d 660

Fuentes v. Shevin (1972)

407 US 67

Granny Goose Foods, Inc.

v. Brotherhood of Team-

sters & Auto Truck Drivers

Local No., 70 of Alameda

County (1974) 415 US 423

Hoai v. Sun Refining &

Marketing Co., Inc. (CA DC

1989) 866 F2d 1515 —

Hoai v. Vo (CA DC 1991)

935 F2d 308, 31l, n.1l

Jones v. Poindexter (CA 4

-Taut i-

38

1,4,40,43

33,35

33,34,35,44

25,38-9

28

1990) 903 F2d 1475,1476 33,36

Lugar v. Edmonston Oil Co.

(1981) 457 US 922 15,35,40,43

ch _v. Meridian Hill

Studio Apartments (DCCA

1985) 491 A2d 515, 518-20 29

Mitchell v. W.T. Grant

Company (1974) 416 US 600 13,41

Nixon v. Condon 286 US 73 19

Nixon v. Herndon (1924)

273 us 536 18

Screws v. United States

(1945) 325 US $1, 65 Sct

1031 3

Shelley v. Kraemer (1948)

334 US 1, 15 39

Smith v. Allwright (1944)

321 US 654 5,19

Sniadach v. Family Fi-

nance Corporation (1969)

395 US 337 43,17

Terry v. Adams (1953)

345 US 461 §,17,45

Tunstall v. Office of Judi-

cial Support (CA3 1987) 820

F2d 631, 634 33,36

Universal C.I.T. Credit Corp.

Vv. Gogos (CA DC 1989) 866 F2a

1515 39

STATUTE

42 U.S.C. 1983 2,16,35,40

-Taut ii-

43

D.C. Code §11-946 32

D.C. Code §43-541 et seq. 42

D.C. Superior Court Civil

Rule 12-1 (b) 12,13,16,23

27,32,40,41

42

D.C. Superior Court Civil

Rule 64 21

D.C. Superior Court Civil

Rule 64-I 21,22

D.C. Superior Court Civil

Rule 64-II 22

D.C. Superior Court Civil

Rule 65 46,i7,21,22

23,24,26,28

29,30,31,32

37

Federal Rules of Civil

Procedure, Rule 65 16,23,24,26

28,29,30,31

32

CONSTITUTIONAL PROVISIONS

Article I 45

Due Process ad seriatim

5th Amendment 39,42

14th Amendment 39,40

15th Amendment 18,19,20

-Taut iii-

-Taut iv-

INTEREST OF THE AMICUS CURIAE

The interest of the Vietnamese Community

as amicus curiae appears in its motion for

leave to file this brief, ante.

ARGUMENT

This case is manifestly about whether,

in a continuation of the analysis which

this Court recently carried forward in its

opinions in Edmonson v Leesville Concrete,

infra and Connecticut v Doehr, infra an

appeals court may freely ignore and con-

flict with a host of decisions of this

Court and, in doing so, may so far depart

from the accepted and usual course of

judicial proceedings in the reading of

complaints in the face of dispositive mo-

tions and the treatment of civil rights

generally where an emerging minority group

is concerned as to escape the supervision

of this Court when such supervision is in

order. It raises an undecided question

which this Court should decide concerning

-lj-

the use of secondary procedures of a court

to bypass the preliminary injunction and

pre-judgment attachment procedures in or-

der to bypass and thereby obviate the con-

stitutional safeguards which this Court

has placed upon such primary procedures.

Petitioners have pointed out that here

the courts below did not face the question

of whether the rules and customs of the

Superior Court and the law of the District

as applied in that court which were used

to take Mr. Hoai's gas station franchise

from him in order that it might be bes-

towed upon Mr. Vo did present a violation

of 42 U.S.C. 1983. Instead the courts be-

low went out of their way to rationalize

not allowing the consideration of these

laws, rules and customs as they are.

An examination of the substance of this

D.C. law, rule and custom reveals that had

it been examined petitioners had a case.

A proper understanding of this underlying

-2-

er —(i—sS

case is important because the question of

whether it should have been examined,

while important, nonetheless cannot help

but be colored by the strength of the

merits of that case. By examining the

brutal nature of the deprivation of prop-

erty without due process in this instance,

we can see, just as the smooth procedural

talk of a former era covered over the

deprivation of life and liberty without

due process in cases such as Screws Vv

United States (1945) 325 US 91, 65 Sct

1031, just how much evasion was going on

below here. For the rationales advanced

by the court of appeals in this instance

have precisely the same sort of reasoning

as those struck down by this Court in

Screws. What made this error so obvious

and egregious here was the intervening de-

cision of this Court in Edmonson v. Lees~

ville Concrete Co. (1991) 500 US

, 114

Led2a 660, (decided June 3, 1991, between

-3-

oral argument and the decision below)

whose actual implications for this case

the appeals court declined to consider,

despite being petitioned to do so. Also

decided in that intervening time was Con-

necticut v Doehr (1991) 501 US __, 115

Led2d 1, which the court below did not ad-

dress but which we discuss here, since it

showed that the type of underlying claim

used here would not justify the type of

unconstitutional property seizure enabled

by the D.C. court procedures and law.

Moreover, as we shall show, there were al-

legations of the complaint denoting the

actual case which the petitioners did not

have room in their brief to cover and

which the Court should consider.

Petitioners, bound by space limitations,

were not able to focus upon the need to

apply the state action analysis of Ed-

monson. Yet they had petitioned the court

of appeais for a rehearing based on that

-4-

intervening decision so that the framework

articulated in that case might be applied

here. A-579 ff., A-582 ff. As this case

exhibits a situation much like that of

Terry v Adams, infra as it followed Smith

v_ Allwright, infra (as we discuss below, )

this case should be heard to impress upon

lower courts that ducking the issues in

this way, in conflict with applicable de-

cisions of this Court, and the condoning

of the use of secondary procedures and

laws to avoid constitutional safeguards

built into primary procedures as was done

here here will not be permitted. This

evasion of constitutional responsibilities

must be eliminated, precisely as such sub-

terfuge was struck down in Terry.

The Edmonson decision crystallizes a long

line of thoughtful cases contemplating

these problems and the refusal to treat it

seriously and in depth in a case in which

it so providently applies at the crucial

i

~~

juncture is a clear example of a court of

appeals both making a decision upon a fed-

eral question that conflicts with ap-

plicable decisions of this Court (here a

line of cases that was clarified even

while the opinion below was being written)

and failing to follow the usual course of

judicial proceedings so as to call for the

supervision of this Court. For, in fail-

ing to apply the Edmonson state action

analysis, the appeals court also ignored

standard rules for interpreting the plead-

ings in favor of the plaintiffs upon a mo-

tion to dismiss and the standard of Conley

v_ Gibson (1957) 355 US 41, in particular.

In order to stretch its decision so that

its conflict with the applicable decisions

of this Court might not be so apparent,

the appellate court distorted the factual

pattern in this case in a manner departing

from customary procedures in order to fit

its procrustean analysis. It created a

-6-

hhh—h————lZiTl"—_

need for the exercise of the supervisory

powers of this Court, particularly where

Asian-American civil rights litigants are

concerned. For they too pursue the dream

and are entitled to build on the precedent

that has gone before in seeking their

remedies, not be blocked with deviations

from that precedent.

Edmonson further defined the framework

for state action analysis set .forth in

Lugar in a manner that directly applies,

but which the appellate court refused to

adopt. In a footnote the intervening

analysis was cursorily dismissed with the

following comment:

At the same time, Edmonson reaffirms

the basic principle that private use

of state legal procedures does not

rise to the level of state action

absent "the overt, significant as-~

sistance of state officials." See

id., slip op. at 7 (citation

omitted). Because the peremptory

challenge system "simply could not

exist" without the direct and in-

dispensable participation of the

state and, more particularly, of the

judge, the Court found the requisite

"significant assistance" in Ed-

monson. Id. at 7-9. In the instant

-J-

DP ————————x—— & & °”&~

case, by contrast, such meaningful

assistance is never alleged, and Ed-

monson is, therefore, inapplicable.

The footnote attempts, in the first

sentence above, to judge the merits while

purporting not to do so. It implies that

all that occurred here was routine private

use of the court system and that there was

no overt, significant assistance of state

officials. The first implication, as we

will show, is not accurate, and the second

is both inaccurate and not completely ap-

plicable. But immediately the footnote

itself fails to support these implications

because it then speaks, not of what could

have been shown had the petitioners been

allowed to support the general allegations

of the complaint which the appeals court

was avoiding, but rather of what the

petitioners ostensibly failed to allege.

The conclusion is that Edmonson is in-

applicable, not because it does not apply

on the merits of the case as might be

-8-

= rrr SSS

proven on behalf of Mr. Hoai and his col-

leagues, but rather because something

called "meaningful assistance’ is "never

alleged". The footnote shows indifference

to whether a case can be proven in support

of the allegations of the complaint or

not. As petitioners point out in their

brief, having ignored those allegations of

the complaint which do assert that the

wrongs complained of were committed under

color and authority of the laws and which

could be supported by the actual facts,

the appeals court then used its selective

reading of the complaint to imply a lack

of merit to the case which it then at-

tempts to justify by pointing to its se-

lective reading of the complaint as if it

had actually read the complaint as re-~

quired by the long standing practices of

the federal courts. This is clearly not

to read the complaint in favor of the

plaintiffs but rather to depart from ac~

-9-

————————

cepted precedent in order not to do so.

The appeals court both rendered a decision

Substantively in conflict with applicable

Precedent of this Court, (particularly

that just then being decided, ) and, in the

manner in which it read the complaint,

varied sufficiently far from the accepted

and usual course of judicial proceedings

as to call for the Supervision of this

Court. There is also such a departure

with regard to the way complaints are read

and decided upon in the face of a dismiss-

al motion using extensive material outside

the record which the judge then relies

upon. This is with regard to a minority

group -- Asian-Americans -- which is just

emerging as a participant in the struggle

to preserve its people's civil rights in

the courts and whose members are entitled

to more than the "invisible man" treatment

accorded here.

-10-

A meaningful analysis, in accord with

the numerous decisions of this Court upon

a procedure which allows attachment or

seizure of property prior to judgment or

its equivalent must begin with the frame-

work of rules, law and Superior Court

customs which are claimed to have provided

the color and authority of District law

used to deprive the complainants of their

federal rights by such a seizure or at-

tachment. In this case the petitioners,

as plaintiffs below, alleged that they

were deprived of their federal rights and

privileges by a certain procedure of the

Superior Court, namely, that of the entry

of a "consent order." A=-392-95, complaint

-ll-

below, paras. 38-44.1 It igs pointed out

in paras. 16-17 (A-378-79) that respon-

dents Zulli ana Wagner "participated ac-

tively in the decision to use the color

and authority of state law to deprive

Plaintiffs of rights, privileges, inm-

munities and property under color of D.c.

law..." In para. 18 it is alleged further

that respondent Forester did likewise. A-

379-80. Para. 34 of the complaint alleged

that Hoai was deprived of John D. Hemenway

as his counsel of choice at the crucial

“As the petitioners have pointed out in

their brief, they did allege that what was

done was done under the color and

authority of the rules, regulations, law

and customs of the Superior Court. Some

of the allegations were detailed, as these

concerning the use of the consent order

procedures, others were general and

petitioners did not specifically name the

enabling Rule, 12-I(b), of the Superior

Court as it then stood. we will not

reiterate here what petitioners pointed

out about the selective nature of the

"seeing" engaged in by both courts below

but will rather give an accurate analysis

of the framework of laws, customs and

rules actually involved, all of which, we

hasten to add, are matters of which any

federal court may take notice.

-12=+

juncture "under color and authority of the

laws, regulations or rules, and customs of

the District of Columbia." The use of

consent orders, as in any court, in the

Superior Court is a law and custom. It is

fully alleged in the above paragraphs how

it was entered and, though a private

agreement, became a full judgment as any

other of that court, signed by a judge.

This, of course, had to involve procedures

and rules of that court as well as the

full participation of one of its judges

who, indeed, is alleged to have signed the

private agreement between the respondents

and thereby made it a judgment like any

other judgment, surely a use of the color

and authority of the Superior Court. Here

the entry of the consent judgment was

empowered by a particular rule, the Judge-

in-Chambers rule, Rule 12-I(b) of the

Rules of Civil Procedure of the Superior

Court as it then stood. C-ll

-l]13-

EEO

It is precisely alleged (para. 43, A-

394-95) that hy this "device" the respon-

dents thereby obtained "the color and

authority of the laws, regulations and

customs of the District of Columbia in or-

der to deprive plaintiffs of their proper-

ty, rights, privileges and immunites as

complained of herein." Here it is alleged

(para. 43, A-397) that these things vio-

lated the due process clause and the

petitioners' right to petition for redress

under the Constitution and, further,

(para. 44, A-397) that this was done by

the "very color of law and apparent

authority of the Superior Court to deprive

the plaintiff Hoai of those important

rights, privileges and immunities and of

his property the gas station franchise."

It would seem to be far too late in the

day to hold that because the particular

Rule was not actually cited by name and

number the petitioners are out of court.

-14-

This would seem to be a throwback to a

"single misstep is fatal" type of plead-

ing, relying overmuch on technicalities to

eliminate just complaints, that has long

since ceased to be the practice in the

federal courts.

Though some of this ground was covered

by the petitioners in their brief, they

had not room to point out the emphasis on

the use of the consent order procedure of

the Superior Court, something which was

thoroughly alleged and just as thoroughly

ignored (though clearly understood) by the

courts below. The point of this case is

not that the respondents made use of a

pre-judgment attachment or seizure provi-

sion as such of the type at issue in

Sniadach v Family Finance Corporation

(1969) 395 US 337, or in Fuentes v Shevin

(1972) 407 US 67 or in Lugar v_ Edmonston

Oil Co. (1981) 457 US 922, all of which

this Court found to violate due process

-15-

rights and therefore present a 42 U.S.C.

1983 cause of action, or even that they

made use of an arguably violative attach-

ment procedure such as was at issue in

Mitchell v W.T. Grant Company (1974) 416

US 600, which was upheld. For it was the

use of this procedure in tandem with Supe-

rior Court Rule 12 -I(b) as it then ex-

isted, (C-1l) which created the un-

constitutional procedure complained of.

This procedure allowed respondents to

bypass the requirements of Rule 65 of the

Superior Court (which was Federal Rule of

Civil Procedure 65 with slight modifica-

tions) with its safeguards against im-

proper injunctive seizure of property

prior to trial and the local rule on pre-

-16-

— tt—S

judgment attachments as well.?

Thus the question in this case, unlike

that in those cited above, is not whether

the procedures for prejudgment attachment

or garnishment or replevin are constitu-

tionally defective, but whether the proce-

dures of the Superior Court which the

respondents successfully used to avoid

those procedures and the procedures at-

tending Rule 65 were constitutionally

defective and whether their use by the

respondents provided a cause of action

against them. In this the present case is

remarkably similar to the subject of this

Court's opinion in the Jaybird Party case,

Terry v_ Adams (1953) 345 US 461. In that

“The rules of the District of Columbia

Superior Court regarding attachment before

judgment and replevin and the correspond-

ing D.C. Statutes, are reproduced in the

back of this volume. The Court can see

that they are carefully structured to com-

ply with the Court's holdings in Sniadach

and Fuentes, supra and indeed the official

comment refers the reader of these rules

to that authority. So it is clear what

the respondents were avoiding here. :

“i=

a

case this Court dealt with the problem

presented by the fact that it had struck

down the practice of barring African-

Americans from primaries then practiced by

the European-Americans of Texas in a

series of decisions; yet the Euro-

Americans of one Texas county, through

what they claimed was purely private ac-

tivity, achieved the same result -- a

segregated primary that rendered the

African-American vote completely ineffec-

tive. Originally, in Nixon v Herndon

(1924) 273 US 536, this Court struck down

as violating the 15th Amendment a Texas

statute that a Negro could not vote in a

Democratic Party primary election in the

state. The Texas legislature then

reenacted the statute ina slightly dif-

ferent form to give the State Executive

Committee of the Democratic Party the

power to prescribe the qualifications of

its members for voting or other participa-

-18-

tion. The State Executive Committee of

the Democratic Party then adopted a

resolution that no one but white Democrats

might participate in the party's

primaries. This Court struck down this

obvious subterfuge in Nixon v Condon 286

US 73, finding that, albeit delegated,

this was still state action and hence

still violative of the 15th Amendment.

Next the Texas Supreme Court found that

political parties were voluntary associa-

tions, private voluntary associations and

the Democratic Party in a convention

adopted a resolution that declared that

its membership was open to whites. This

too was struck down by this Court in Smith

v Allwright (1944) 321 US 654 where it

found that the Democratic Party, for pur-

poses of the primary, was an agency of the

state of Texas. Finally, in Terry this

Court found that the reach of the 15th

Amendment could not be evaded by the

-1|19-

————

Jaybirds of Fort Bend County, Texas, who

created their own primary, held just be-

fore the legitimately authorized one of

the State, and made sure that the winner

of their "private" primary always won the

official, statutorily authorized primary a

few weeks later. This Court found that

this subterfuge did not succeed in remov-

ing the Democratic Party and its members

who made up the overlapping and controll-

ing Jaybird Party from the reach of the

15th Amendment. Following intervening

precedent from the 4th Circuit that a

State cannot nullify the constitutional

rights of Negroes to vote in primaries by

casting their electoral process in a form

which permits a private organization to

practice racial discrimination in the pri-

mary election, the Court found that a

State which, by circumvention, allows that

which is the equivalent of a segregated

primary still violates the 15th Amendment.

-20-

ee

Mr. Justice Frankfurter, in particular,

found that "the State authority has come

into play." The State of Texas, he found,

had entered into a comprehensive scheme of

regulation of primaries and, as a result

of the earlier cases, Texas officially by

statute banned segregation from its offi-

cial primaries. Because the same offi-

cials participated in the Jaybird primary

as ran and participated in the official

primary, the Jaybird operators could not

divest themselves of State authority.

With some variations, which we will dis-

cuss below, that is what happened here.

The District of Columbia has a comprehen-

sive scheme for assuring that there are

not pre-judgment attachments or seizures

of property without all the safeguards of

due process. Indeed the preliminary in-

junction rule, Rule 65 of the Superior

Court, which is the same as the federal

rule with only a few exceptions, and Rule

-2 1-

64, 64-I regarding attachments before

judgment, and Rule 64-II governing

replevin, are all placed together in the

Superior Court rules with Rule 65 to make

a comprehensive scheme governing all tak-

ing of what is arguably the property of

another before judgment. Yet, just as

Texas had a comprehensive scheme, as a

result of this Court's earlier decisions,

which statutorily purported to bar the ex-

clusion of blacks from primaries and yet

enabled the Jaybird Party to do just that

through its officials in charge of the

primaries, so there were rules, law, and

customs of the Superior Court here that

allowed parties to bypass the safeguards

of Rule 65 and Rules 64-I and II and the

statutes and law behind those rules.

Just as the Jaybird Party claimed to be

a private association carrying out private

acts, so the respondents here claim they

were private individuals carrying out pri-

-22-

~~

vate acts, making routine use of the pro-

cesses of the Superior Court. And, in-

deed, a large part of the appellate

opinion rests upon this premise.? How-

ever, (and this is what the appellate

court so resolutely ignored) what was in-

volved here was the use by the respondents

of procedures provided by the court rules

and laws of the District of Columbia to

evade and get around the strictures at-

tendant upon a normal progression under

Rule 65, with all of the safeguards built

in to that rule. And this is the course

which the respondents were embarked upon

when they decided to use the "back door"

provided by Rule 12-I(b) as it then stood

“Thus belying the appellate opinion's

claim that it rests only upon the allega-

tions of the complaint. It is apparent

that the appellate opinion only uses this

claim -- that it rests solely upon the al-

legations of the complaint, without going

to the merits -- to harm the respondents’

cause and that, by contrast, the underly-

ing merits are referred to in order to

justify the decision to bury respondents'

case so that its merits will not be heard.

-23-

a ©

and the consent order procedures of the

Superior Court. In his sworn affidavit

which was before the district court judge,

attorney Wagner of Sunoco admitted that

the purpose of the procedures used was to

avoid the preliminary injunction hearing

required by Rule 65, saying:

Mr. Roseman inquired whether Sun

would be willing to consent to an

extension of that provision of the

temporary restraining order which

required Sun to continue to supply

petroleum products until further or-

der of the court in lieu of proceed-

ing with a preliminary injunction

hearing. A-472-73,

This affidavit was before Judge Oberdorfer

in the related Petroleum Marketing Prac-

tices Act ("PMPA") case of Hoai against

Sun, in which he granted summary judgment

on liability to Hoai after Hoai's motion

had been pending over a year and a half.

On the same day he issued the order dis-

missing this case and demanded a show

cause as to why Hoai's attorneys should

not be sanctioned, ignoring the outstand-

-24-

ia

ing motions to stay matters in this case

until the impact of the pending PMPA deci-

sion could be absorbed into it, motions he

has never decided. Hoai v Sun Refining &

Marketing Co., Inc. U.S.D.C. D.C. CA 87-

2456. The PMPA outcome was compelled by

the intermediate reversal of Judge Ober-

dorfer's sua sponte abstention in that

case as reported in Hoai v Sun Refining &

Marketing Co., Inc. (CA DC 1989) 866 F2a

1515. Subsequently, in the PMPA case on

remand, Mr. Roseman himself was deposed

and his version of this evasion is now a

matter of record in that case, viz:

During the course of my conversa-

tions with Mr. Wagner, we discussed

the possibility of settling the dis-

pute immediately before, immediately

before the court involving the

temporary restraining order and

avoiding the necessity to go to a

preliminary injunction hearing fol-

lowing the entry of the temporary

restraining order. Deposition

testimony of David C. Roseman in CA

87-2456, June 25, 1991, p. 12 as

filed in that case.

-2 5-

A few pages later, p. 15, this purpose to

evade the constitutional strictures of

Rule 65 was confirmed, viz:

Q You mentioned that there came a

time in your conversation with Mr.

Wagner when you discussed the pos-

sibility of avoiding a follow-on

preliminary injunction hearing. Did

I understand that correctly ?

A That's correct.

Q When did that occur, in this

Same conversation or a later con-

versation ?

A That would have been in the

first conversation. Well, let me

take that back. I can't say for

certain that it was the first con-

versation. It may have been in an-

other conversation shortly after

that initial telephone call but it

was quite early on following the TRO

hearing.

So that it can readily be seen that within

a few days after the TRO hearing on August

29, 1986 the parties respondent were be-

ginning to work together to bypass the

procedures of Rule 65 with its built in

Constitutional safeguards. This is quite

similar to the way that the Jaybirds of

Fort Bend County, Texas, set themselves up

-26-

to bypass the constitutional requirements

which they correctly foresaw would require

them to admit negroes to vote in the pri-

mary if they used the official statutes

set up to govern the primaries overtly.

This bypass itself, however, involved two

laws and regulations of the court, the

consent judgment procedure and the jJudge-

in-chambers Procedure of then Rule 12-

I(b), and particularly the latter's sanc-

tion and mandate for ex parte decisions on

whatever the sitting judge-in-chambers

found appropriate, completely without gov-

erning standards or control. C-11.

Thus, the attorneys Roseman and Wagner

were setting up almost immediately after

the TRO hearing to work together to bypass

the constitutionally required follow-on

preliminary injunction hearing under Rule

65 and eliminate any notice to or partici-

pation by the petitioners on what would

happen to Mr. Hoai's franchise. When,

-27-

shortly thereafter, they agreed between

themselves to terminate Mr. Hoai's fran-

chise and give it to Mr. Vo., they, there-

fore, did so specifically to avoid the re-

quirements of Rule 65.% Thus, this is

manifestly not a case, such as those cited

by the appellate panel (A-16, 17) where

the respondents were taking "mere recourse

*TIt is now a matter of res judicata

that Sun terminated Hoai's franchise by

the activities of September 8, 1986 cul-

minating in the entry of the consent order

(A-465) which, by its terms, was cast as

an extension of the TRO (A-461). This was

taken notice of in this case in the ap-

peals court, Hoai_ v Vo (CA DC 1991) 935

F2d 308, 311, n.1, in noting that summary

judgment as to illegal termination by Sun

had been granted. Thus, it is also now

res judicata, since Hoai was the fran-

chisee until terminated by Sun, that Vo

never had any legitimate claim to be in

control of the franchise and was a mere

scrambler in the station. Since the TRO,

by its terms, is based on the tort of

wrongful eviction, a tort only available

to a tenant against a landlord, the find-

ings of the TRO judge, which were purely

procedural in that they would have re-

quired Sun, then Hoai's co-defendant, to

evict Vo through the summary procedures of

the Landlord and Tenant branch of the Su-

perior Court, were clearly erroneous and

the TRO was groundless in the first in-

stance.

-28-

to state or local procedures" as posited

by the appellate panel in passing on the

merits of the claim while purporting not

to do so. Rather this is plainly a case

where the wrongdoers, resorting "merely"

to the court procedures used still other

court procedures to bypass the procedures

which the respondent Vo and his counsels

Roseman and Ottman had originally "merely"

resorted to, once they saw that they might

not succeed with the procedures originally

chosen. The complaint here is that, hav-

ing resorted to Rule 65, respondents then

used other procedures of the Superior

Court, local to it, to bypass the con-

stitutional safeguards built into the pro-

cedures of Rule 65 and allied rules.

It is the law of the District that every

attorney, as an officer of the court, is

charged with a knowledge of its rules.

Lynch v Meridian Hill Studio Apartments

(DCCA 1985) 491 A2d 515, 518-20. Though

-29-

that would almost seeem to go without

saying. It is similarly the law of feder-

al practice, known to all who practice un-

der the federal rules, that Rule 65 pro-

vides for a TRO on a temporary, emergency

basis in unusual circumstances only be-

cause a TRO is indeed temporary and cannot

last unless the party obtaining it can, at

a follow-on preliminary injunction hearing

prove his or her entitlement to a

preliminary injunction. Indeed, the TRO

judge below promised Mr. Hoai on the

record during the TRO proceedings that he

would have a follow-on preliminary injunc-

tion hearing at which the merits of his

-30-

contentions would be heard.> Certainly,

this Court has long since made it known

that the rights of due process, requiring

notice and an opportunity to be heard, are

inherent in the scheme of Rule 65 and must

be adhered to, thus putting all on notice

that a failure to comply with these re-

quirements in any proceeding for injunc-

tive relief under Rule 65 violates basic

constitutional rights of the affected

parties who do not receive notice and are

not afforded an opportunity to partici-

pate. Granny Goose Foods, Inc. v Brother-

hood of Teamsters & Auto Truck Drivers Lo-

STHE COURT: ... and this is just the

first hearing and no matter what occurs

here, whether it is granted or denied, you

will have another day in court. 10 days

from now or depending on what the outcome

is, certainly within the next two weeks,

this will not be the only hearing, you

will have this hearing and -- before the

emergency, then you will have another

hearing and that will certainly give you

the time that you need. Hon. Annice Wag-

ner addressing petitioner Hoai, transcript

of the TRO hearing, Vo v. Sun, District of

Columbia Superior Court CA No. 7075-86,

pp. 28-29.

-3l-

cal No. 70 of Alameda County (1974) 415 US

423. There can be no doubt that respon-

dents were using one set of laws and rules

of the Superior Court to bypass the con-

stitutional safeguards built into Rule

65.6 By contrast to Rule 65 there is no

equivalent in the Federal Rules of Civil

Procedure to Superior Court Rule 12-I(b).

Thus the judgment of the appellate panel

here that the respondents were engaged in

"mere recourse to state or local court

procedures" which attempts to dispose of

petitioners' case fully on its merits

without purporting to do so (A-16-17) is

not supported by what actually occurred

“It should be noted here that D.C. Code

§11-946 (1981) provides: "The Superior

Court shall conduct its business according

to the Federal Rules of Civil Procedure

--» unless it prescribes or adopts rules

which modify those Rules." The official

note to Superior Court Rule 65 states:

"COMMENT: Identical to Federal Rule of

Civil Procedure 65 except for ..." and

then there follows some modifications not

pertinent here. In the opinions of the

D.C. Court of Appeals federal case law on

the federal rules is relied upon and cited

in interpreting D.C. Rules.

=32<

i

2

here, a truth which both courts below

seemed quite anxious to avoid. And, as

one would expect, the authority cited in

Support of this mischaracterization does

not embody fact situations similar to the

present one. This authority consists of

this Court's opinion in Dennis v Sparks

(1980) 449 US 24, 28; Crabtree v Muchmore

(CA1l10 1990) 904 F2d 1475, 1476; Jones v

Poindexter (CA 4 1990) 903 F2d 1006, 1010-

11; and Tunstall v Office of Judicial Sup-

port (CA3 1987) 820 F2d 631, 634. An ex-

amination of these cases, however, reveals

that none of them involve a situation

where parties and counsel, having in-

itiated a court procedure with constitu-

tional safeguards, then elected to bypass

the constitutional safeguards of that pro-

cedure through the device of other proce-

dures of the same court that eliminated

those constitutional safeguards and in so

doing did violate the rights, including

-33-

due process, of other parties.

The opinion in Dennis v Sparks involves

the questions presented when individuals

conspire together to bribe, and do bribe,

a judge. It is true that in that case

this Court did indeed state that "merely

resorting to the courts and being on the

winning side of a law suit does not make a

party a co-conspirator or a joint actor

with the judge." 449 US at 27-8. But

then it went on to state:

~ But here the allegations were that

an official act of the defendant

judge was the product of a corrupt

conspiracy involving bribery of the

judge. Under these allegations, the

private parties conspiring with the

judge were acting under color of

state law; and it is of no con-

sequence in this respect that the

judge himself is immune from damages

liability. Immunity does not change

the character of the judge's action

or that of his co-conspirators.

The plaintiffs here, recognizing the

judge's common law immunity even were he

culpable (and it appears he was merely

negligent) sued only the parties who used

-34-

the procedures, just as in Lugar. But

here the procedures themselves are under

attack, which was not the case in Dennis.

What Dennis v Sparks did establish was

liability under 42 U.S.C. 1983 for the

misuse of court procedures or authority

when there is joint participation. It did

not deal with the question of the misuse

of defective court procedures that are

themselves creatures of the law of the

state. In Crabtree, the court did not fa-

vor us with sufficient facts to find out

what the basis of the complaint really

was. It appears to have been one of

joint action between the private party

defendants and the judge and not in any

way to have involved either a): avoiding a

procedure of the court so as to nullify

constitutional safeguards or b): to have

involved a substituted set of procedures

used to get around procedures that would

have protected against the alleged viola-

-35-

tions. Similarly, the citation of the

Jones v Poindexter case turns out to be

more of the selective reading of the com-

plaint addressed by petitioners in their

brief. In Jones that branch of a Lugar

analysis which addresses the illegal use

of otherwise sustainable state procedures

is addressed, not the other branch of the

Lugar analysis that produced a victory for

Mr. Lugar in that case, namely his attack

on state procedures that was sustained.

Certainly in Jones there was absolutely no

question of using one set of the court's

procedures to evade the constitutional

safeguards of another set of procedures

that had been chosen by the party com-

plained about. In the Tunstall case it

was specifically held that the case did

not involve any seizure of property with

the aid of state procedures or any claim

of a preexisting debt such as Vo was

making here in his Superior Court suit.

-36-

We turn then from this inapplicable

authority and the rule which was bypassed

with its attendant Constitutional

safeguards to the laws and procedures of

the Superior Court which were used to do

the bypassing and thus place Mr. Hoai,

with regard to his due process rights, in

the same position in which Mr. Terry was

placed with regard to his right to have a

meaningful vote in the primary elections

of the Democratic Party of Texas.

The petitioners have pointed out in

their brief the extraordinary diversion

from the issues that went on in the panel

hearing in this case. They also have

pointed out the selective reading of the

complaint in both courts below in which

the allegations of the violations of local

rules, law and practices (i.e., Rule 65)

were emphasized as if they were the only

allegations and the allegations that the

very violations themselves, both of state

-37-

and federal law, were done under other

color and authority of the laws and

customs of the Superior Court, were ig-

nored. We have painted out how the al-

legations concerning the use of the con-

sent judgment procedures of the Superior

Court were ignored by the appellate panel.

In the District consent decrees are both

a contract and a judgment when rendered in

a competent court by consent of the

parties. Bloedorn v_ Bloedorn (1935) 64

AppDC 199, 76 F2d 812, cert den 295 US

746, 79 Led 1691, 55 SCt 658. Although

here it was recognized prior to the dis-

missal of this civil rights suit, in the

related PMPA suit by the court of appeals,

that the consent decree here represented

no “independent judgment" of the Superior

Court, those words were very carefully

chosen by the appellate judge to indicate

that it was not an independent judgment,

not that it was not a judgment. Hoai v

-38-

Sun Refining & Marketing Co., Inc. (CA DC

1989) 866 F2d 1515, 1519. Nonetheless,

though a consent order is not an exercise

of independent judgment it is still, once

it is signed by a judge, a judgment, and,

as such, is just as binding on the parties

entering into it and their privies, as

here Hoai was a privy with Sunoco. This

is as true in the District as elsewhere.

Universal C.I.T. Credit Corp. v Goqos (MCA

1962) 184 A2d 197, 198. This Court has

long recognized "that Judicial action is

to be regarded as action of the State for

purposes of the Fourteenth Amendment."

Shelley v Kraemer (1948) 334 US 1, 15 and

numerous cases cited therein on this

point. In the District, of course, it is

the 5th Amendment rather than the 14th

that furnishes the due process require-

ment. But the state action analysis would

be the same. Lugar, of course, makes

Clear that the state action analysis of

-39-

the 14th Amendment for the purposes here

is the same as it is for the "color and

authority of state law" analysis under 42

U.S.C. 1983. Hence, a judicial procedure

which enables attachment before judgment

in the manner analyzed in Edmonson, Doehr

and the cases leading up to them raises

questions of misuse of color and authority

of state law under 42 U.S.C. 1983.

Here the procedure was a combination of

consent judgment with Rule 12-I(b), which,

as petitioners have shown, contained lan-

guage allowing the judge-in-chambers to do

ex parte whatever he felt was “appropriate

for such disposition", and to issue TRO's

without any check on that procedure,

which, in this case was taken to include

"extending" one contradictorily to the

promises of the judge that had issued it

and without any concern for Mr. Hoai as

the party most affected. It was a rule

without controlling standards and no

-40-

qualifications to ensure due process or

any other federal privilege, immunity or

right. In Mitchell, supra this Court

recognized the necessity for procedures

enabling private, ex parte attachment or

seizure, in that case the Louisiana writ

of Sequestration, to be "narrowly con-

fined" (Id. at 617) if they are to pass

constitutional muster. Former Rule 12-

I(b) of the Superior Court of the District

of Columbia was so broad and loose that it

was modified effective January 1, 1991 to

eliminate completely the authority to is-

Sue Temporary Restraining Orders and the

broad, loose, completely uncontrolled

delegation of authority in the language:

“orders involving executions upon attach-

ments, and any other matters appropriate

for such disposition." In place of this

broad, uncontrolled authority, the judge-

in-chambers is now authorized to Carry out

the following, narrow functions:

-4)]-

Approval of accounts, warrants and

return of warrants, approval of sub-

poenas for administrative proceed-

ings, applications for appointment

of special process servers in small

claims cases, applications for name

change, petitions to release mechan-

ic's liens, applications for entry

of administrative agencies' final

orders as judgments, petitions to

take depositions pursuant to Rule 27

(a), master-meter proceedings under

D.C. Code §43-541 et seq. (1981);

and requests for issuance of sub-

poenas under Rule 28-I(b).

It's a long way from TRO's and “other mat-

ters appropriate" to "master-meter read-

ings", the distance between lack of con-

stitutionality and that which complies

with this Court's mandates of due process.

Regardless of what its intent may have

been, Rule 12-I(b) as it. was in September,

1986 created a procedure which, when

coupled with the consent judgment proce-

dure of the Superior Court, created a com-

pletely unchecked avenue for evading the

Constitutional restraints controlling

preliminary injunction proceedings and the

pre-judgment attachment procedures of the

-42-

court. But it took a willingness to -

deliberately choose these procedures to

eliminate the safeguards of due process in

order to embrace the procedure for such

purposes to achieve what occurred here.

This is precisely then, in relation to

this Court's line of cases embracing for-

mal pre-judgment attachment, seizure and

sequestration statutes and procedures,

what the Jaybird Party operation of the

pre-primary primary was to the laws of

Texas regulating primaries -- a bypass.

Was this bypass clothed with the color

and authority of the state for 5th Amend-

ment and 42 U.S.C. 1983 purposes ? That

is the undecided question of vital import

which this Court should take up and de-

cide. It is to that question which the

state action analysis of Edmonson, build-

ing upon Lugar (as made clear by Doehr in

this instance) should be applied. If the

! respondents had simply bribed the TRO

-43-

—————

judge to extend the TRO the way that they

did here, their action would be actionable

under Dennis v Sparks. If they had used a

formal attachment procedure as loose as

the procedures they did employ here they

would have been liable under Sniadach,

Lugar and the other decisions in that

line. Judgments are the exclusive

preserve of the courts, without which they

would have no purpose and meaning. The

consent judgment procedure is the only

procedure by which private parties may

take over the essence of the judge's func-

tion and then gain his official imprimatur

as the imprimatur of the court upon their

private actions. This is delegation to

private parties of a power "traditionally

exclusively preserved to the State." Here

unconstitutional deprivation was permitted

to occur "within the courthouse itself".

It was an action here that could not have

existed, and the procedures enabling it

-44-

could not have existed, "without the

overt, significant participation of the

government." There was authorization by

rule of the court enacted pursuant to

statute and by established law of the Dis-

trict. An Edmonson analysis is in order:

(1) because of the conflict with decisions

of this court inherent in what happened

here; (2) because to rationalize it the

usual course of judicial proceedings were

far departed from; and (3) because it

presents an undecided question in the same

manner that Terry v Adams did, one that is

important and should be decided. Finally,

it is important that this Court show that

Asian-Americans have civil rights also and

it will not permit any minority to be

treated like Ralph Ellison's "Invisible

Man" in the Article I courts of the Na-

tion's Capital.

Respectfully submitted.

THE VIETNAMESE COMMUNITY OF

WASHINGTON, D.C., MARYLAND

-45-

AND VIRGINIA

By:

Vail W. Pischke

2043 Reynolds Street

Falls Church, Va. 22043

(703) 241-2272

CERTIFICATE OF SERVICE

I hereby certify that I have served by

United States mail, first class, postage

prepaid, true and accurate copies, 3 each,

of the foregoing petition this 19th day of

March, 1992, to each of the following

counsel of record below:

Francis X. Markey

1450 G Street, N.W.

Washington, D.C. 20005

J. Gordon Forester, Jr.

Ste. 900, 1620 L St., N.W.

Washington, D.C. 20036

Robert Pleshaw

1510 H Street, N.W.

Washington, D.C. 20005

Laurence A. Elgin

8929 Sleaford Place

Annandale, Virginia 22003

Vail W. Pischke

-46-

eee

Supplemental Appendix of Rules and Statute

referred to in Amicus Curiae brief

Superior Court Civil Rule 64-I

as in effect September Ws Be seweiek me |

Superior Court Civil Rule 64-II

as in effect September ee er 4

Superior Court Rule 12-I(b) as

it was changed and put into

effect January l, of a ee ea ae 10

DoCe COGS ELE"HO). oo ec ieicencvcccncce ~12

SUPERIOR COURT OF D.c. - CIVIL RULES

RULE 64-I

ATTACHMENT BEFORE JUDGMENT

(a) APPLICATION AND NOTICE TO DEFENDANT.

An application for a writ of attachment

before judgment, shall set forth, by af-

fidavit, specific facts meeting the re-

quirements of D.C. Code §§ 16-501l(c) and

(d) (1981). The application shall be ac-

companied by a prepared Notice to

Defendant on CA Form 105 Supplied by the

Clerk. The Clerk shall send such notice

to the defendant by first class mail at

the address shown on the notice, or in

case of a foreign corporation to its reg-

istered agent, if any, and shall note on

the docket the date of such mailing, if

defendant's address is listed on the

notice as unknown, the Plaintiff shall

file with the notice an affidavit setting

forth the plaintiff's reasonable efforts

-Stat l=

to ascertain defendant's current mailing

address.

(b) ISSUANCE. An application for a

writ of attachment before judgment shall

be submitted to the Civil Calendar Control

Judge who may approve or deny issuance or

may direct such further hearings before

issuance as deemed appropriate.

(c) ANSWER OF GARNISHEE. A garnishee

shall file with the Clerk the answer to

the interrogatories accompanying the writ

of attachment within 10 days after service

of the writ upon the garnishee, and shall

serve a copy of the answer upon the

defendant and upon the party at whose in-

stance the garnishment was issued. If

within 10 days after service of the answer

to the interrogatories or such later time

as the Court may allow, the party at whose

instance the garnishment was issued shall

not contest the answer to the inter-

rogatories pursuant to D.C. Code §16-522

“Stat 2 -

OO aaeeereeeSS._aQr

(1981), the garnishee's Obligations under

the attachment shall be limited by the

garnishee's answer.

(d) HEARING. If a hearing is held as a

result of a filing of a traversing af-

fidavit by the defendant or the garnishee

pursuant to D.C. Code § 16-506 (1981), the

Plaintiff shall be required to establish

the validity or Probable validity of the

underlying claim and the existence of the

ground for issuing the attachment.

(€) PRIORITY OF LIENS. For purposes of

determining priority of successive liens,

a writ of attachment issued under section

(b) of this rule ghal] be effective from

the date of its delivery to the marshal.

(f) EXPEDITION OF MOTIONS TO QUASH.

All motions to quash attachments shall be

heard by the Court on an expedited basis.

Upon at least three (3) days notice to all

parties, the Court may in appropriate

cases order that the action in which the

“Stat 3 -

motion was filed be tried on the merits at

the same time the motion is heard.

(Revised 1/1/82)

(g) DISCOVERY. For good cause shown,

the court may in its discretion permit

discovery in attachment before judgment

proceedings in the manner provided in Rule

69-I.

NT: ... In connection wit ule

64-I, see Sniadach v. Family Finance

Corp., 395 U.S. 337 (1969) and Fuentes

v. Shevin, 407 U.S. 67 (1972).

RULE 64<-II

REPLEVIN ACTIONS

(a) Upon filing any action in replevin

and before process therefor is placed in

the hands of the U.S. Marshal or other

process server, the plaintiff, personally

or by the plaintiff's attorney, will bring

the action to the attention of the Civil

Calendar Control Judge.

(b) At that time the plaintiff may re-

quest that the Calendar Control Judge set

a date for a hearing at which plaintiff

“Stat 4 =

will be required to establish the probable

validity of the Plaintiff's claim ana

defendant will ke given an opportunity to

appear and be heard with respect to

whether a writ of replevin should issue.

If, upon such application, the Calendar

Control Judge determines that the

Plaintiff has filed a verified complaint

alleging that defendant is wrongfully

detaining certain specified property which

Plaintiff is entitled to possess, the

Calendar Control Judge may issue an order

directing the defendant to preserve the

property which is the subject of the ac-

tion in the defendant's possession or un-

der the defendant's contro} SO as to keep

it amenable to the process of the Court

pending further order of the Court. The

order will also indicate the date on which

Plaintiff's application for a writ of

replevin will brought on for hearing and

will inform the defendant that the

“Stat 5 -

defendant may be heard at that time, with

or without witnesses, on whether the writ

should issue.

(c) The order shall direct plaintiff to

cause a copy of the summons, complaint,

and order to be served upon the defendant

at least 5 Court days prior to the date

set for the hearing. If they are not

served by that time, the plaintiff shall

apply to the Calendar Control Judge to set

a later hearing date which will provide

the defendant with sufficient time to make

adequate preparation therefor. In any or-

der entered under this Rule, the Calendar

Control Judge may include such require-

ments with respect to the method of ser-

vice as to accomplish prompt and ex-

peditious notice to the defendant.

(d) At the conclusion of the hearing,

the Calendar Control Judge may authorize

the issuance and execution of a writ of

replevin or may, if it appears just,

-Stat 6 -

permit all or part of the property to

remain in the possession of the defendant

pending further order of the Court. In

the latter event, the Calendar Control

Judge may require the defendant to post an

appropriate Surety bond or other undertak-

ing or may otherwise Provide for the pro-

tection of the property pursuant to D.c.

Code §16-3708.

(e) The Civil Clerk's Office will not

process any writ of replevin until its is-

Suance has been approved by the Civil

Calendar Control Judge. Plaintiff shall

not be obliged to submit the requisite

Surety bond until such Processing takes

place.

(f) In making initial application to the

Calender Control Judge, plaintiff may app-

ly for issuance of the writ without prior

adversary hearing on the ground that there

is an immediate danger that the defendant

will destroy or conceal the property in

“Stat 7 -

dispute or on any other ground set forth

in D.C. Code §16-501(d)(2), (3), (4), or

(5) (1981) as a basis for attachment before

judgment. Upon such application, sup-

ported by affidavit or sworn testimony

reciting specific facts which tend to es-

tablish the grounds therefor, the Calender

Control Judge may, if deemed appropriate,

authorize the immediate issuance of the

writ prior to the hearing. If the

Calender Control Judge authorizes such is-

Suance, the Calender Control Judge shall

enter in the record findings of fact and

conclusions of law which state the basis

of the need for such immediate issuance.

The defendant against whom a writ of has

been issued in this manner may, on not

less than 24 hours notice to the

plaintiff, apply to the Court to have the

writ vacated. If such writ issues, a

hearing shall take place on the 5th Court

day after execution of the writ. It shall

-Stat 8 -

be the duty of Plaintiff's counse) to no-

tify the civil Assignment Office promptly

of the execution of the writ.

(9) Trial of al} actions in replevin,

whether on the jury or nonjury calendar,

shall be expedited. (Added 3/30/73)

(h) By consent of all parties, the judge

conducting a hearing on the issuance vel

non of a writ of replevin may try the

entire Proceeding on the merits in liex of

merely determining whether or not the writ

Should issue. (Added 3/30/73)

COMMENT: See Fuentes yv. Shevin, 407

U.S. 67 (1972). (Added 3/30/73)

“Stat 9 -

Superior Court Rule 12-I(b) as it was

amended effective January 1, 1991,

eliminating the unconstitutional provi-

sions.

RULE 12-1

MOTIONS PRACTICE

ze*e*ee

(b) JUDGE IN CHAMBERS

(i) The following matters may at any

time be presented for disposition to a

Judge in Chambers designated by the

Chief Judge, either ex parte or with

opposing counsel, as appropriate: Ap-

proval of accounts, warrants and

return of warrants, approval of sub-

poenas for administrative proceedings,

applications for appointment of spe-

cial process servers in small claims

cases, applications for name change,

petitions to release mechanic's liens,

applications for entry of administra-

tive agencies' final orders as judg-

“Stat 10 -

ments, petitions to take depositions

Pursuant to Rule 27(a), master-meter

Proceedings under D.C. Code §43-54)

ete seg. (1981); ana requests for is-

Suance of subpoenas under Rule 28-

I(b).

(ii) The following matters, if presented

On the day the complaint is filed,

must be presented to the Judge in

Chambers; thereafter, Such matters

must be presented to the judge as-

Signed to the Case: appointment of a

Special process server, motions with

respect to publication Of notice re-

quirements, judicial approval of

settlements involving minors, motions

regarding Security for costs, writs of

ne exeat, applications to set bonds,

and applications for temporary

restraining orders.

“Stat ll -

D.C. CODE SECTION:

§16-501. Attachment before judgment; af-

fidavit and bond

(a) This section applies to any civil ac-

tion in the United States District Court

of the District of Columbia or the Supe-

rior Court of the District of Columbia,

for the recovery of:

(1) specific personal property;

(2) a debt; or

(3) damages for the breach of a contract,

express or implied.

(b) In an action specified by subsection

(a) of this section, the plaintiff, his

agent, or attorney, may file an affidavit

as provided by subsections (c) and (d) of

this section either at the commencement of

the action or pending the action.

(c) The affidavit shall comply with the

following requirements:

(1) show the grounds of the plaintiffs'

claim;

“Stat i2 =

ee

(2) set forth that plaintiff has a just

right to reccver what is Claimed in his

complaint;

(3) where the action is to recover

Specific personal Property, state the na-

ture and, according to affiant's belief,

the value of the Property and the prob-

able amount of damages to which Plaintiff

is entitled for the detention thereof;

(4) where the action is to recover a

debt, state the amount thereof; and

Specifically ang in detail, the breach

Complained of and the actual damage

resulting therefrom.

(d) The affidavit shal] also state one of

the following facts with respect to

defendant:

(1) defendant is a foreign Corporation or

is not a resident of the District, or has

“Stat 13 «

been absent therefrom for at least six

months;

(2) he evades the service of ordinary

process by concealing himself or

temporarily withdrawing himself from the

District;

(3) he has removed or is about to remove

some or all of his property from the Dis-

trict, so as to defeat just demands

against him;

(4) he has assigned, conveyed, disposed

of, or secreted, or is about to assign,

convey, dispose of, or secrete his prop-

‘erty with intent to hinder, delay, or

defraud his creditors; or

(5) he fraudulently contracted the debt

or incurred the obligation respecting

which the action is brought.

(e) Before a writ of attachment and gar-

nishment is issued, the plaintiff shall

first file in the clerk's office a bond,

executed by himself orc his agent, with

-Stat 14 -

a

Security to be approved by the Clerk, in

twice the amount of his Clain, Conditioned

Such bond in an amount twice the value of

the Property being attached, and, notwith-

Standing the Provisions of Subsection (f)

Of this Section, Only the Property go

Specified shal] be levied upon; Provided,

That the Uniteg States marsha] may, in his

discretion, when levying upon such proper-

ty, have the same appraised by an indepen-

dent appraiser retained by the marshal at

the expense of the plaintifs. Any such

appraisal shall be made at the time the

marshal levies upon the Property, ana the

“Stat 15 -«

appraiser shall accompany him for such

purpose. If such appraisal has been made,

then only such property as may have a

value not exceeding one-half of the amount

of the bond shall be attached. In the

event the appraised value of the property

shall be more than one-half the amount of

the bond, the marshal may refuse to ex-

ecute the writ unless and until the amount

of the bond is increased so as to be at

least twice the value of the property to

be attached.

(f) If the plaintiff files an affidavit

and bond as provided by this section, the

clerk shall issue a writ of attachment and

garnishment, to be levied upon as much of

the lands, tenements, goods, chattels, and

credits of the defendant as may be neces-

sary to satisfy the claim of the

plaintiff.

-Stat 16 -