Petition for Writ of Certiorari — Keene Corp. v. Lindsay

Supreme Court of the United States

OCTOBER TERM, 1992

KEENE CORPORATION,

THE HONORABLE TONY LINDSAY,

Petition for Writ of Certiorari to the

Supreme Court of the State of Texas

PETITION FOR WRIT OF CERTIORARI

Counsel of Rec:

STUART E. RICKERSON KRISTOPHER S. HESTON

Vice President HOLLEB & COFF

General Counsel 5) East Monroe Street

Keene Corporation Suite 4100

200 Park Avenue Chicago, Illinois 60603

New York, New York 10166 312) 807-4600

Of Counsel Attorneys

KEENE CORPORA

Midwest La

QUESTIONS PRESENTED

1. Whether a state court order preventing a litigant

In a civil case from publishing paid political speech in local

newspapers on issues of national concern during the pend-

ency of the trial, even though the speech in no way concerns

the specific facts of that case, is an unconstitutional prior

restraint in violation of the right of freedom of speech

protected by the First and Fourteenth Amendments.

2. Whether a state supreme court’s misapplication of

its own procedural requirements in refusing to adjudicate

a constitutional challenge under the First Amendment con-

stitutes an independent and adequate state ground, pre

] ] } 1} : +h; . -

luding review of that challenge in this Court.

PARTIES TO THE PROCEEDINGS

AND RULE 29.1 STATEMENT

All of the parties to the proceeding are listed in the

caption. Additional parties to the proceedings in the Texas

Court of Appeals are John Eddie Williams, the attorneys

of the law firm of Umphrey, Burrow, Williams, and Bailey,

and the attorneys of the law firm of Ness, Motley, Load

holt, Richardson, and Poole.

Petitioner Keene Corporation has one subsidiary: Rein

hold Industries. Keene Corporation has no parent cor

———— es ey

11)

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED .........

PARTIES TO THE PROCEEDINGS

AND RULE 29.1 STATEMENT . . il

sy oe He a lb yt) 4 yy | + re = \

OPINIONS BELOW ........... ee eer ]

PO) J: 1) ty ¢ 9), BP ee ee ve 2

CONSTITUTIONAL PROVISIONS

LS As | a aa ear Pte ee er aro 2

STATEMENT OF THE CASE ..... ae 2

REASONS FOR GRANTING

-) oo ey eo). rarer 6

I.

THE INJUNCTION PREVENTING PETI-

TIONER FROM EXERCISING ITS FREE

SPEECH RIGHTS SERIOUSLY UNDERMINES

SETTLED CONSTITUTIONAL PRINCIPLES

AND IGNORES DECISIONS OF THIS COURT

WHICH DEFINE THE PERMISSIBLE SCOPE

OF INJUNCTIONS AGAINST EXPRESSION

SUUTIREMED EP RURSM EEO ccccccescaccuencecne 6

IT.

THE LOWER COURT’S DECISION UPHOLD-

ING RESPONDENT’S INJUNCTION GIVES

RISE TO SUBSTANTIAL UNCERTAINTY

BECAUSE IT DIRECTLY CONTRADICTS A

RECENT DECISION OF THE MARYLAND

COURT OF SPECIAL APPEALS ........... 9

[1]

RESPONDENT’S INJUNCTION IS INCONSIS

TENT WITH NUMEROUS STATE AND FED

ERAL DECISIONS INVOLVING SIMILAR

F

ACT SITUATIONS ....... Ce ee ee 1]

IV

THIS COURT HAS JURISDICTION TO HEAR

THIS CASE .. itinieds taxa hs eee Ee 14

A. This Case Is Not Moot Because Under

Federal Law This Matter Is Capable Of

Repetition Yet Will Always Evade Re

ae «6s 4 s-8e's : . ‘ ; 14

B. The Decision By The Texas Supreme

Court That This Case Is Moot Is Not An

Independent And Adequate State Ground

Preventing Review In This Court... 1

- CONCLUSION at SRE Ny ee! 2]

+ -» + ~~ oe ern ree oe ee ae he ee |

TABLE OF AUTHORITIES

Cases PAGE

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60

(RR? Kawevkaeeeesaetyess eee rer ee ee ee 7

Bridge s v. California, 314 U.S. 252 (1941).... 7,8

Craig v. Harney, 331 U.S. 367 (1947) ...+..... 7

General Land Office v. Oxy U.S.A., Inc., 789 5.W.

20 GOD Cham, TH. akc kc case ee vawaseseees 20)

Henry v. Mississippr, 879 U.S. 448 (1965) ..... 17, 18

Honig v. Doe, 484 U.S. 305 (1983) .......----- 14, 16

Iranian Muslim Organization v. City of San An-

tonio, 615 S.W.2d 202 (Tex. 1981).......... 20, 21

Keene Corp. v. Abate, Md. App. ___ (July 1,

TN 5 eaten cece ee 7,10, 11, 13, App. 70-81

Kemner v. Monsanto Co., 112 Ill. 2d 223, 492 N.E.

Od TERT (IBD oi ca xs pec vaweneeten essen 12

Liner v. Jafco, Inc., 375 U.S. 301 (1964) ...... 18

Murphy v. Hunt, 455 U.S. 478 (1982) ....... 14

NAACP v. Alabama ex rel. Flowers, 377 U.S. 288

4) 7) QPPeeeee bere pers rer er 19, 20

Near v. Minnesota, 2838 U.S. 697 (1931) ....... 6

Nebraska Press Ass’n v. Stuart, 427 U.S. 539

CWOTED gk ccc cnnens 04608 een e eee 6, 7, 8, 16

New York Times Co. v. Sullivan, 376 U.S. 204

‘¢) | eres re 7

—————— etl en ee EIEN nn REEEEEREEnnnnnnnn nanan

o - . ) q

gprs we ee SPAS wey ENE et AQ SF MLPA ED ily aa WALL aed il WIPO

er tod

——

\’]

New York Times Co. v l/nited States, 403 U.S.

tee UE 8a ke a eee eee ae ne 6

NYPIRG v. Insurance Information Institute, 140

Misc. 2d 920, 531 N.Y.S.2d 1002 (Sup. Ct. 1988) 12

Organization For A Better Austin v. Keefe, 402

OR. Se 5's, 73 | eee ' ee Pe ee 6

Orsak v. Keene, Cause No. 85-44879. District Court

of Harris County, Texas (June 1, 1992)... 15

Quinn v. Aetna Life & Cas. Co., 482 F. Supp. 22

(E.D.N.Y. 1979) 11,12

QUINN 2 Aetna Life & Cas. Co.. 616 F.2d 88 (2d

& Se: Peete ers Li, i2

Roe v. Wade, 410 U.S. 118 (1973) ......... 16

Rogers v. Alabama, 192 U.S. 226 (1904)... 19

Ruggien i? Johns-Manville Prods Corp., 503 +t

Supp. 1036 (D.R.1. 1980) .. 12

Rutledge v. The Liability Ins. Industry, 487 F

Supp. 5 (W.D. La. 1979) ............ 12

State v. Cottman Transmission Systems, Inc.. 75

Md=App. 647, 542 A.2d 859 (Spec. App. 1988) . 12, 13

State v Lodge, 608 S.W.2d 910 (Tex. 1980) 20

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

tee eR hiveen een e ee 17

Ward v Love County, 203 US. 17 (1920) 19

BN LPI pe TPAD NYP SVS YLT PNEL DA DO i PUPPANRID BUY UPA iD BIR 74 Oh PvP NEN ANT LA AR CUAL, 30K

meee oma in nt e A ETEE TELITOTEE LLECET AOTEA ne,

Vil

Constitutional And Statutory Provisions

1.S. Constitution, Art. LIT, $2 ......2...00.. 14

U.S. Constitution, Amendment | .... 3 . passim

U.S. Constitution, Amendment VI ......... si

U.S. Constitution, Amendment VIII Ne)

U.S. Constitution, Amendment XIV .... 2,6

Oe CI, Beet sh eedeae esas eaween FRG 2

Ne condary A uthority

Blasi, Toward a Theory of Pror Restraint: The

AOL,

Central Linkage, 66 Minn. L. Rev. 11 (1981) 65

PADI AGA EN LF PL MDANGE LRG TR Ra AGMA + a AIR ay dg Se A? IPL RN TS

PNA SP i BIN AE SANS PR eI LY iggy RIN, WAH NS RR Raa

er

IN THE

Supreme Court of the United States

OcTOBER TERM, 1992

KEENE CORPORATION,

rT) ‘ 4

etitioner.

THE HONORABLE TONY LINDSAY,

Responde nt

Petition for Writ of Certiorari to the

Supreme Court of the State of Texas

PETITION FOR WRIT OF CERTIORARI

To The Chief Justice And Associate Justices

Of The Supreme Court Of The United States:

Petitioner Keene Corporation (hereinafter ‘‘Petitioner’”’

prays that a wnt of certiorari issue to the Supreme Court

of the State of Texas:

OPINIONS BELOW

The order, issued by Respondent against Petitioner,

is set forth in the Appendix at p. 11. The unpublished

opinion of the Fourteenth Court of Appeals of the State

of Texas, declining to vacate Respondent’s order and over-

ruling Petitioner’s motion for leave to file a petition for writ

. of mandamus, is set forth in the Appendix at

9" 19

pp. B4s” 30).

he order of the Texas Supreme Court, aismissing Pet

tioner’s petition for writ of mandamus, is set forth in the

Appendix al pp. 16-17. The order of the Texas oupreme

Court, denying Petitioner’s motion for rehearing, is set

forth in the Appendix at pp. 35¥9-40

JURISDICTION

The decision of the Court of Appeals of the Fourteenth

Supreme Judicial District of the State of Texas, declining

LO Vacate Respondent's order, was entered on March 27

1992, with an opinion filed on April 2, 1992. The order

of the Texas Supreme Court, dismissing Petitioner’s peti

tion for writ of mandamus, was entered on April 15, 1992

The order of the Texas Supreme Court, denying Peti

tioner’s motion for rehearing, was entered on May 20

1992. The jurisdiction of this Court is invoked under 28

U.S.C. §1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The relevant constitutional provisions are U.S. Constitu

tion, Amendment I and U.S. Constitution, Amendment XI\

Section 1, reproduced in the Appendix at p. 1

STATEMENT OF THE CASE

Petitioner is a Delaware corporation with its principal

place of business in New York.

i

Petitioner is a defendant in literally tens of thousands

of asbestos products liability cases around the country

In Texas, Petitioner is a named defendant in more than

four thousand of such cases, mostly in the Houston and

Dallas areas. This litigation stems from Petitioner’s pur

chase for just $8 million, in 1968, of Baldwin, Ehret-Hill

BEH]. a small manufacturer of ventilation systems, acous

tical and thermal insulation products, some of which con

tained asbestos. Since that time, Petitioner has spent more

han fifty times the purchase price of BEH, defending

lawsuits based on asbestos related claims. To date, an

estimated $9 billion has been spent by all defendants in

this litigation, with nearly two-thirds, or $6 billion, on

transaction costs,”’ mostly lawyers’ fees. In reaction to

these costs, Petitioner has taken a public position against

ie high cost of legal fees, punitive damages 1n asbestos

ane > = . . —_ ican

ases, the filing of non-meritorious Cases, and the legal

. + ? - acy | } ] Tas f + Qt? +] ++ . - }

system’s general handling of the nationwide asbestos prob

lem. It has also urged widespread political reform of that

Petitioner has undertaken a nationwide campaign of

publication in an effort to influence the manner in which

this country deals with the asbestos problem. In so do

ing, it has utilized various methods of communication, 1n

luding letters to the editor, speeches, and opinion articles

newspapers. Examples are reproduced in the Appen

dix at pp. 54-69. A vital part of Petitioner’s campaign has

been the publication of advocacy advertisements in various

papers around the country as a means of communicating

ts message to the American public. In these advertise-

ments, Petitioner has urged wide-ranging legislative and

executive reform of the method for dealing with the asbes-

tos litigation crisis, on both the state and federal levels.

At no point have Petitioner’s advocacy advertisements

commented on the facts, ——— or specific issues in a

particular litigation to which Petitioner was a party. Ex

amples of previously — lished advertisements appear In

the Appendix at pp. 41-4

The underlying case giving rise to this petition Is a

consolidated action involving twenty-two lawsuits alleg

ing persona! injury as a result of exposure to insulation

products containing asbestos. Petitioner was one of the

named defendants in these actions. These consolidated

cases were tmed in Harms County, Texas, beginning on

March 16, 1992.

During pretrial hearings on March 12, 1992, counsel for

the plaintiffs in these cases made an oral motion request

ing that the trial judge, The Honorable Tony Lindsay of

the 280th Judicial District Court of Harris County, Texas

(hereinafter ‘‘Respondent’’), enter an order prohibiting

Petitioner from publishing any advertisements concern

ing asbestos in any newspaper published in Harris County

Texas. Apparently, plaintiff's counsel was responding to

an advertisement which had appeared in the Houston

Chronicle on March 5, 1992, that spoke out against the

wastefulness of asbestos related litigation. A copy of that

advertisement appears in the Appendix at pp. 43-44.

On March 16, 1992, Respondent entered an order, repro

duced at page 2 in the Appendix, enjoining Petitioner

f plac{ing] advertisements regarding asbestos litiga-

from

tion in any newspaper published in Harris County, Texas

until the verdict of the jury .. . is received by this

Court.” Respondent acted without hearing any testimony

on the possible effect the order would have on Petitioner’s

constitutional mghts or any discussion of a measure less

invasive of Petitioner’s free speech right than imposition

of a prior restraint on Petitioner’s speech

On March 20, 1992, Petitioner filed a motion to recon

sider, arguing that Respondent had available means of as-

suring a fair trial far less invasive of free speech rights

than imposition of a prior restraint, such as admonishing

the jury not to read or see anything concerning asbestos

litigation or sequestering the jury. On March 24, 1992,

following a hearing, Respondent withdrew her original

order and issued a second order enjoining Petitioner “from

advertising regarding punitive damages and attorney’s

fees in reference to asbestos litigation in any newspaper

published in Harris County, Texas until the verdict of the

jury ... is received by this Court.” By its terms, this

order was not confined in its restrictions to commentary

by Petitioner concerning the specific facts, litigants or

issues involved in the underlying litigation. The March 2

order appears in the Appendix at p. 11.

4

a

On March 26, 1992, Petitioner filed a motion for leave

to file a petition for writ of mandamus and a petition for

writ of prohibition in the Court of Appeals for the First

Supreme Judicial District, Houston. Both motions were

overruled by the Court of Appeals of the Fourteenth Su

preme Judicial District on March 27 with opinions filed

on April 2, 1992. These opinions are set forth in the Ap

pendix at pp. 12-13 and 14-15.

Petitioner then filed a petition for writ of mandamus

in the Texas Supreme Court. On April 15, 1992, the Texas

Supreme Court dismissed the petition as moot, apparently

because the underlying order of Respondent had expired

at the end of trial. Petitioner moved for a rehearing, on

the grounds that the case fell within state law's well es

tablished exception to mootness for cases that are capable

of repetition yet will evade review. A copy of Petitioner’s

motion for rehearing appears in the Appendix at p. 18

Petitioner’s motion for rehearing was denied on May 20,

1992. A copy of that denial appears in the Appendix at

pp. 39-40.

Petitioner now petitions this Court for a writ of cer

tiorari as the court of last resort to vindicate its constitu

tional right to speak on issues which are of great public

concern and are the subject of widespread proposals for

legislative reform.

REASONS FOR GRANTING THE PETITION

I.

THE INJUNCTION PREVENTING PETITIONER FROM

EXER TISING ITS FREE SPEECH RIGHTS SERIOUSLY

UNDERMINES SETTLED CONSTITUTIONAL PRINCI-

PLES AND IGNORES DECISIONS OF THIS COURT

WHICH DEFINE THE PERMISSIBLE SCOPE OF IN-

JUNCTIONS AGAINST EXPRESSION DURING LITIGA-

TION

The injunction issued by Respondent against Petitioner

represents the most invidious form of free speech regu-

lation prohibited by the First and Fourteenth Amend-

ments to the United States Constitution: a prior restraint

of expression. This Court has long made clear that such

inhibitions on speech are especially disfavored, because

they stifle communication before anyone is able to measure

either its wisdom or its danger. Near v. Minnesota, 283

U.S. 697 (1931). See generally Blasi, Toward a Theory of

Prior Restraint: The Central Linkage, 66 Minn. L. Rev.

11 (1981). As this Court stated in New York Times Co.

United States, 403 U.S. 713, 714 (1971) (per curiam):

‘‘Any system of prior restraints of expression comes

to this Court bearing a heavy presumption against

its constitutional validity.” The Government “thus

carries a heavy burden of showing justification for

the imposition of such a restraint.”’

See also Bantam Books, Inc. v. Sullivan, 372 U.S. 58,

70 (1963); Organization for a Better Austin v. Keefe, 402

U.S. 415, 419 (1971). “The damage can be particularly

great,” this Court has stated, when—as in this case—‘‘the

prior restraint falls upon the communication of news and

commentary on current events.” Nebraska Press Ass’n

v. Stuart, 427 U.S. 5389, 559 (1976). Thus, ‘‘the barriers

to prior restraint remain high unless we are to abandon

what the [Supreme] Court has said for nearly a quarter

of our national existence and implied through all of it.”

Id. at 561. Hence it is only in the most extreme situa-

tions, involving the gravest danger, that such a stifling

form of regulation may be upheld.

Because gag orders such as the one issued by Respon-

dent are classic prior restraints, this Court has long held

that such orders are unconstitutional unless the expres:

sion that has been restrained is found to present a serious

and imminent danger of disruption of the judicial process.’

As this Court held in Craig v. Harney, 331 U.S. 367, 376

(1947), before expression may be prohibited “(t]he fires

which [the expression] kindles must constitute an imml-

nent, not merely a likely, threat to the administration of

justice. The danger must not be remote or even probable;

it must immediately imperil.” See also Bridges v. Cali-

fornia, 314 U.S. 252, 263 (1941), holding that regulation

It should be emphasized that the mere fact that Petitioner's

political expression would have come in the form of an advertise

ment does not render Petitioner’s expression less protected ‘‘com-

mercial speech.” This Court has made clear that to qualify as

“commercial speech” expression must propose a commercial trans-

action, which Petitioner’s previous advertisements have not done.

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983). In fact,

much classic political expression has come in the form of advertise-

ments. See New York Times Co. v. Sullivan, 376 U.S. 254, 266

(1964), where this Court held: ‘““That [a newspaper is] paid for pub-

lishing [a political] advertisement is as immaterial in this connec-

tion as is the fact that newspapers and books are sold.” Cf. Keene

Corp. v. Abate, _____ Md. App. ____ (1992) (Appendix, pp. 75-76): “The

paid advertisements placed by Keene .. . , like the paid advertise-

ment in New York Times v. Sullivan, addressed a matter of public

concern. .. . Although the message that asbestos litigation should

be controlled clearly promotes Keene’s economic interests, the ad-

vertisements in no way ‘propose[d] a commercial transaction.’ .. .

In short. the advertisements simply cannot be viewed as commer

cial speech.

of out-of-court publications are to be governed by the

clear-and-present-danger standard, described as ‘‘a work-

ing principle that the substantive evil must be extreme-

ly serious and the degree of imminence extremely high

before utterances can be punished.”’

This Court has held that judicially imposed gag orders,

even in criminal trials and even when confined to state-

ments about the specific parties to or facts of the case,

are only rarely permissible. Nebraska Press Ass’n 1

Stuart, 427 U.S. 539 (1976). This is because there will in

variably exist alternative means to avoid prejudicing the

jury that are considerably less invasive of the First Amend

ment interests of both the parties to the case in com-

municating and the public at large in receiving informa-

tion concerning matters of social or political importance.

These include “the use of emphatic and clear instructions

on the sworn duty of each juror to decide the issues only

on evidence presented in open court.” Jd. at 564.

This case presents a considerably weaker justification

for the restriction of expression than did the fact situation

in Nebraska Press Ass’n, where this Court in any event

found the restraint unconstitutional. First, unlike Nebraska

Press Ass’n, the present case is a civil adjudication, ren

dering the special constitutional protections available only

to criminal defendants irrelevant. See, e.g., U.S. Constitu-

tion, Amends. VI, VIII. Second, again unlike Nebraska

Press Ass’n, the restraint in this case goes well beyond

commentary concerning the specific facts or parties to the

litigation. Instead, it unconstitutionally sweeps within its

reach any comment that Petitioner might wish to make

through its advocacy advertising concerning many of the

controversial general issues that arise out of the asbestos

litigation debate. The injunction thus effectively precludes

=i =

Petitioner from contributing to the debate on matters that

are of enormous political concern to the electorate.’

Also of great importance is the fact that Respondent

imposed the restraint without making a finding of fact

that Petitioner’s advertising presented the ‘‘serious and

‘mminent threat” that the First Amendment requires be

shown before restraint may be imposed. Indeed, Respon-

dent failed even to make a factual inquiry into this ques-

tion prior to issuing the injunction. Absent such an in-

quiry, Respondent had absolutely no basis on which to

assume that admonitions given to the jurors not to read

or see anything about asbestos would be ignored. Thus,

we have a situation in which a prior restraint was im-

posed on political expression, without even the slightest

inquiry whether that expression presented a truly immi-

nent threat of serious harm. It is difficult to imagine a

more glaring violation of fundamental constitutional rights

that inhere in the American political process.

Il.

THE LOWER COURT’S DECISION UPHOLDING RE-

SPONDENT’S INJUNCTION GIVES RISE TO SUBSTAN:

TIAL UNCERTAINTY BECAUSE IT DIRECTLY CONTRA-

DICTS A RECENT DECISION OF THE MARYLAND

COURT OF SPECIAL APPEALS

The lower court’s decision upholding Respondent's in-

junction stands in direct contrast to the recent decision

of the Maryland Court of Special Appeals in the case of

2 As Petitioner’s previously published advocacy advertisements

(set forth in the Appendix at pp. 41-53) make clear, if Petitioner had

been permitted to advertise during the trials before Respondent,

Petitioner’s comments would have been directed to the general

issues surrounding asbestos litigation, not to specific facts or ques-

tions directly involved in the pending trials.

LO

Keene Corp. v. Abate, Md. App. ____ (July 1, 1992).

In that decision, the appellate court vacated an injunc-

tion issued by a trial judge in Baltimore, Maryland, pro-

hibiting Petitioner from advertising about asbestos or

asbestos litigation during the pendency of a trial. That

injunction, which had been expressly modeled on Respon-

dent’s initial order, was similar to Respondent’s injunc-

tion in all meaningful respects. When the Maryland Court

of Special Appeals was presented with a First Amend.

ment challenge to the Baltimore trial court’s injunction

it immediately vacated the trial court’s order. Petitioner

is left, then, with decisions of the appellate courts of two

States reaching diametrically opposite conclusions as to the

constitutionality of similar injunctions issued against it for

the very same speech. In Maryland, this speech is consti.

tutionally protected. In Texas, under current standards,

it is not. Unless this Court grants certiorari, this signifi

cant uncertainty in the status of the First Amendment rights

of civil litigants will remain in existence indefinitely.®

> A copy of the opinion of the Maryland Court of Special Ap

peals in Keene Corp. v. Abate appears in the Appendix, at pp

70-81,

4 It is true that the order in Abate prohibited ‘‘advertising regard

ing asbestos and/or asbestos litigation” in general, while Respon

dent’s order below ultimately prohibited only advertising “regard

ing punitive damages and aitorneys’ fees in reference to asbestos

litigation.’’ However, the two are identical for purposes of First

Amendment analysis, since reform of the award of punitive dam

ages and the method for determining attorneys’ fees constitute

important elements of the current political debate about the need

for asbestos litigation reform.

5 The opinion of the Texas Court of Appeals below was summary

and unpublished. However, it is the very existence of Respondent’s

injunction that gives rise to uncertainty and unpredictability. If

that injunction is allowed to stand, counsel for asbestos plaintiffs

throughout the nation will undoubtedly seek to rely on it in other

Footnote continued on following page

-1]

iil.

RESPONDENT’S INJUNCTION IS INCONSISTENT WITH

NUMEROUS STATE AND FEDERAL DECISIONS IN-

VOLVING SIMILAR FACT SITUATIONS

Numerous state and federal decisions have found that

injunctions in a civil case preventing a litigant from com-

menting on the general political or social issues implicated

in the litigation unconstitutionally infringe free speech

rights. For example, in Quinn v. Aetna Life & Cas. Co.,

482 F. Supp. 22 (E.D.N.Y. 1979), affd per curiam, 616

F.2d 38 (2d Cir. 1980), plaintiffs in state court personal

injury- actions brought against Aetna sought to enjoin

Aetna’s further publication of two advocacy advertise-

ments. “The thrust of both advertisements [was] that the

current system for handling tort claims results in ex-

cessive jury awards which increase insurance rates.”’ 482

F. Supp. at 25. The injunction was sought on the grounds

that the advertisements allegedly were ‘“‘part of ‘a pro-

gram calculated to tamper with juries in their deliberative

process.’”’ Jd. In refusing to issue the injunction, the

District Court noted that “{iJn all reported cases plain-

tiffs have been unsuccessful in seeking an injunction

against advertisements such as those in the present case

_. 2” Id. at 27. The Court concluded ‘“‘that the advertise-

ments here sought to be enjoined are entitled to First

Amendment protection and could not be restrained even

5 continued

jurisdictions. Indeed, Respondent’s initial order served as the basis

for the injunction issued against Petitioner by the trial judge in

Baltimore, vacated by the Maryland Court of Special Appeals in

Abate. Moreover, the existence of Respondent's injunction was

heavily relied upon as precedent on appeal by counsel for plain-

tiffs in Abate. The Court of Special Appeals in Abate made particu-

lar reference to the existence of the Texas injunction. Appendix,

‘ 76)

at D.. 1m

if a valid cause of action exists. Because they are pro

tected, plaintiffs have no cause of action in equity and

the complaint must be dismissed.”’ Jd. at 29.

In affirming, the United States Court of Appeals for

the Second Circuit stated: ‘‘We affirm the resolution of

the First Amendment claim substantially for the reasons

set forth in [the District Court’s] thorough and considered

opinion... .”’ 616 F.2d at 40. To a similar effect, see Rut-

ledge v. The Liability Ins. Industry, 487 F. Supp. 5 (W.D.

La. 1979)

State courts considering similar questions have also

found such injunctions to violate the First Amendment.

In Kemner v. Monsanto Co., 112 Ill. 2d 223, 492 N.E.2d

327 (1986), the Illinois Supreme Court found that a lower

court’s gag order preventing a corporate defendant from

communicating with the media concerning the litigation

constituted a First Amendment violation. The Illinois Su

preme Court could “find no substantial evidence to justify

the circuit court’s conclusion that a ‘serious and imminent

threat to the fair administration of justice’ existed because

of Monsanto’s communication with the media regarding

the present case.”’ Jd. 112 Ill. 2d at 245, 492 N.E.2d at

1337. See also NYPIRG v. Insurance Information Insti

tute, 140 Misc. 2d 920, 5381 N.Y.S.2d 1002 (Sup. Ct. 1988).

Courts have been especially hesitant to regulate a liti

gant’s expression that does not concern the specific facts

of the trial. See Ruggien v. Johns-Manville Prods. Corp.,

003 F. Supp. 1036, 1040 (D.R.I. 1980) (emphasis added):

‘(T]he only comment that can be proscribed, when no

other protective alternative exists, is that which in some

meaningful way is targeted to the case to be tried and

which poses a ‘serious and imminent threat’ to that trial.”’

See also State v. Cottman Transmission Systems, Inc..,

ls

«)

75 Md. App. 647, 542 A.2d 859, 865 (Spec. App. 1988) (limit

ing gag order ‘‘so as to proscribe any comments relative

to the merits of the case.’’)

Standing apart from all these decisions is the injunc

tion issued by Respondent and upheld by the Texas appel

late court. As in those cases, the present case involves

an attempt to enjoin a litigant’s expression on general

issues of great political interest that happens to occur dur-

ing a pending civil litigation. Unlike all of the other deci

sions, the lower courts in the present case completely

ignored the severe threat to free speech interests and

authorized the stifling of Petitioner’s First Amendment

rights by means of a prior restraint. Hence, if the lower

courts’ decisions are allowed to stand, they will introduce

into the law a line of precedent, undermining the consti-

tutional right of free expression, that is diametrically

opposed to previously well-established state and federal

doctrine.

In sum, both Respondent’s injunction and the Texas ap

pellate court’s decision summarily upholding it stand in

stark contrast to decisions of this Court, as well as deci

sions of other state and federal courts, recognizing the

need to protect the constitutional rights of litigants to

comment on matters of public importance. Moreover, the

inconsistency between the lower court decision in the pres-

ent case and the contemporaneous decision of the Mary

land Court of Special Appeals in Keene Corp. v. Abate

can only give rise to chilling and debilitating uncertainty

and unpredictability in the protection given to the free

speech rights of litigants in civil trials.

For all of these reasons, Petitioner respectfully urges

this Court to grant Petitioner’s request for a writ of cer-

tiorari in the present case.

14

I\

THIS COURT HAS JURISDICTION TO HEAR THIS CASE

A. This Case Is Not Moot Because Under Federal Law This

Matter Is Capable Of Repetition Yet Will Always Evade

Review

It is doubtless true that this Court requires a case or

controversy in order to invoke its jurisdiction. U.S. Const.,

Art. III, §2. In this case, the underlying order issued by

Respondent terminated on its own terms at the end of

trial. This fact would normally prevent a judicial deter

mination by this Court. However, this exact situation

is very likely to recur the next time Petitioner has a

products liability trial. Petitioner’s speech rights will be

abridged again, without Petitioner ever being provided

the opportunity to vindicate its rights in this Court, due

to the inherently short-lived nature of the order

Under federal law, this case clearly falls within the

‘‘capable-of-repetition-yet-evading-review” exception to nor

mal principles of mootness. This Court has jurisdiction if

there is a “reasonable likelihood” or a ‘‘demonstrated

probability” that Petitioner will again suffer the depriva

tion of constitutional rights that gave rise to this suit,

and the challenged action in its duration will be too short

to be fully litigated prior to its cessation or expiration

Honig v. Doe, 484 U.S. 305, 318, 3238 (1988); Murphy v

Hunt, 455 U.S. 478, 482 (1982) (per curiam).

This case easily meets the requirements for the “capable

of-repetition-yet-evading-review” exception. First, Peti

tioner has been and continues to be involved in a nation-

wide publicity campaign in the mass media involving im-

portant political issues, including the excessive cost of our

legal system, and the propriety and efficacy of punitive

damages, particularly in the context of asbestos litigation.

1d

Moreover, Petitioner continues to be involved as a defen

dant in thousands of lawsuits in the Texas courts. There

is every reason to believe that this stream of cases wil]

continue for the foreseeable future. Therefore, there 1s

at the very least a “reasonable likelihood,” if not a vir

tual certainty, that Petitioner will again be placed in a

position where it will seek to publish a political advocacy

advertisement while it is a civil defendant in the Texas

courts.

Just as likely is the probability that Petitioner will be

enjoined by the Texas courts from advertising during the

nendency of those trials. Counsel for plaintiffs in the

vwnderlying litigation continues to represent thousands of

other asbestos plaintiffs in the Texas courts, and there

is every reason to believe that similar injunctions will be

sought in all future cases. To date, the state courts of

Texas have shown that when such injunctive relief is re

quested, it will be granted, as Respondent’s decision here

demonstrates. Indeed, another Texas trial judge recent

ly held Petitioner in contempt for publishing an advocacy

advertisement during a trial, even though no order had

been violated by such publication. Orsak v. Keene Corp.,

order of Hon. Sharolyn Wood, District Court of Harris

County, Texas, 127th Judicial District, June 1, 1992.

Any such future order will be effectively insulated from

review in this Court in exactly the same manner that this

order was. The normal trial of an asbestos products liabil

ity case takes from two to six weeks. There 1s no way

that Petitioner can appeal through the Texas court sys-

tem, let alone apply for and obtain a writ of certiorar!

from this Court, before the end of a trial in a Texas court.

Therefore, any such order is inherently too short in its

duration to be fully litigated prior to its expiration.

here is, then, a strong likelihood that Petitioner wi

ce again be subjected to a Texas judge’s injunction pro

hibiting its protected speech activities, and that any futur:

attempt to litigate that order will, as here, be deemed

moot because of the expiration of the underlying order

This case is virtually identical on this point to this Court’s

decision in Nebraska Press Ass’n v. Stuart, 427 U.S. 539

1976). There, this Court granted review, even though thx

case was technically over, because the issue was one capable

‘epetition yet evading review. This Court reasoned that

if [the criminal defendant’s] conviction is reversed by)

the Nebraska Supreme Court and a new tnial or

dered, the District Court may enter another restric

tive order to prevent a resurgence of prejudicial!

publicity before [the criminal defendant’s} retrial. Sec

ond, the State of Nebraska is a party to this case;

the Nebraska Supreme Court’s decision authorizes

state prosecutors to seek restrictive orders in ap

propriate cases. The dispute between the State and

the petitioners . ls thus “‘capable of repetition.”

Yet, if we decline to address the issues in this case

on grounds of mootness, the dispute will evade r«

view, or at least considered plenary review in this

Court. since these orders are by nature short-lrver

127 U.S. at 546-47 (emphasis added)

Che likelihood of repetition of the challenged conduct

in this case is considerably stronger than in several deci

sions in which this Court invoked the capable-of-repetition

vet-evading-review exception. See, e.g., Honig v. Doe, 484

U.S. 305 (1988) (ikelihood that twenty-year-old emotionally

handicapped individual who was no longer resident of

schoo! district that had suspended him and who had no

plans to return to school in foreseeable future would

. . , Ja) ] ‘ | sii a y ’ ] ) . ? " y

return to school and be illegally disciplined); Roe Wade

110 U.S. 118 (1973) (likelihood that litigant would on

ic I ecome pregpnan»nt

an

There will be no better opportunity to protect Pett.

tioner’s constitutional rights in the future. Therefore, this

Court — apply the capab le-of-repetition-yet-evading-

review exception and hear Petitioner’s First Amendment

challenge

B. a Decision By The Texas Supreme Court That This

‘ase Is Moot Is Not An Independent And Adequate State

foamed Preventing Review In This Court

The Texas Supre me Court, without opinion, dismissed :

moot Petitioner’s appeal from the appellate court’s denial

of its writ of mandamus. On motion for rehearing, that ¢ ourt

continued to adhere to its position, though Petitioner had

demonstrated beyond question that Texas case law unam-

oe recognizes an exception to the mootness doc

rine for constitutional cases capable of repetition yet

evading review. The decisions of the Texas Supreme Court

should not be deemed to stand on an independent a1 nd

adequate state ground which would preclude review in

-_

this Court.

It is a familiar constitutional principle that this Court

will decline to review state court judgments which rest

on independent and adequate state grounds, even where

these judgments also decide federal questions. However,

the justification for this deference to state courts has

educed application where the state ground relied upon

is purely procedural. Henry v Mississippi, 379 U.S. 448,

146-47 (1965): Sullivan v. Little Hunting Park, Inc., 396

U.S. 229 (1969).

A state court’s refusal on the grounds of mootness to

consider a federal claim does not preclude this Court’s

independent determination of the question of mootness.

That issue is itself a question of federal law, w hich this

( ourt must ultimately decide. He mry v. Mississippi, 379

U.S. at 447: Liner v. Jafco, Inc., 375 U.S. 301 (1964).

In Liner, a Tennessee state trial judge had enjoined a

labor union’s picketing at a construction site. The union

argued that the state courts had no jurisdiction to issue

an injunction because, under federal law, the labor dispute

was within the exclusive domain of the National Labor

Relations Board. The trial court refused to dissolve the

Injunction, finding there was no ‘bona fide’ labor dispute

between the parties and therefore it had jurisdiction. 375

U.S. at 308. On appeal, the Court of Appeals of Tennessee

found that the construction on the site had been com

pleted, and therefore, “‘this case had become moot.” /d

at 303-304. Nevertheless it affirmed the trial! judge’s find

ing that a bona fide labor dispute did not exist. Jd. After

the Supreme Court of Tennessee denied certiorari, this

Court took the case.

In discussing respondent’s challenge to this Court’s juris

diction because of mootness, this Court stated:

The argument is that we are bound by the state ap

pellate court’s holding that this case was rendered

moot by the completion of construction. We think,

however, that in this case the question of mootness

is itself a question of federal law upon which we must

pronounce final judgment.

Liner v. Jafco, Inc., 375 U.S. at 304.

Similarly here, this Court is not bound by the Texas

Supreme Court’s pronouncement that the matter is moot.

Instead, this Court must perform its own independent

mootness analysis under federal law. As already demon

strated (See discussion supra at pp. 14-16), such an

analysis clearly reveals that the case falls within the es

tablished exception to mootness for issues that are capable

of repetition vet will evade review

I ‘

Even if one proceeds on the assumption that the Issue

of mootness at the state court level is purely a matter

this (Court

of state law, under well established decisions of

the Texas Supreme Court’s findings of mootness In thi

case cannot serve as an independent and adequate stat

ground, barring review. This Court has long held that a

state court’s application of its own procedural rules to bar

determination of a federal issue will not prevent review

in this Court, if the state court has misapplied its ow)

procedural law. As this Court held in Ward v. Love Cou

ty, 253 U.S. 17, 22 (1920), ‘“filt .. . is within our province

to inquire not only whether the [federal] mght was denied

in express terms, but also whether It was denied in sub

stance and effect, as by putting forward nonfederal ground

of decision that were without any fair or substantial su]

,

port.

This Court’s decision in Rogers v. Alabama, 192 U.S

996 (1904), is directly in point. There the defendant had

moved to quash a murder indictment on the grounds that

ry

African-Americans had been systemically excluded fro

the grand jury. However, the Alabama Supreme Court

refused to consider the motion on grounds that it was

“prolix.”” Justice Holmes, speaking for this Court, re

versed, noting that the motion consumed only two page:

in the printed record. While Justice Holmes did not deny

that prolixity might, in the abstract, serve as an indepe!

dent and adequate procedural state ground, he refused

to accept without question the state court's decision that

that procedural barrier was applicable. Also cor trolling

is NAACP v. Alabama ex rel. Flowers, 377 U.S. 28%

(1964). There, the Alabama Supreme Court had held that

failure to comply with a state procedural rule barred the

NAACP from raising its constitutional challenge

Court responded: “Paying full respect to the state court s

(=

-

opinion, it seems to us crystal clear that the rule invoked

by it cannot reasonably be deemed applicable to this

case.”’ 377 U.S. at 296.

Similarly, in this case it may be perfectly appropriate,

in the abstract, for the Texas Supreme Court to refuse

to adjudicate issues of federal law on mootness grounds.

However, the Texas Supreme Court may not misapply

that state law ground in order to bar review in this Court.

It is, then, both necessary and appropriate in this case

for this Court to inquire into whether the Texas Supreme

Court accurately applied its own procedural rules in refus

ing to adjudicate Petitioner’s federal constitutional chal

lenge. Such an examination reveals unambiguously that

that court failed properly to apply its own exception to

the mootness doctrine for cases that are capable of repeti-

tion yet will evade review, despite Petitioner’s argument

on its motion for rehearing, that this exception controlled

Under Texas law, it is well established that a case is

not considered moot if the situation is capable of repet

tion yet will evade review. This exception is applied where

the challenged act is of such short duration that the ay

pellant cannot obtain review before the issue becomse

moot. General Land Office v. Oxy U.S.A., Inc., 789

S.W.2d 569, 571 (Tex. 1990). Under Texas law, this ex-

ception is applied when—as in this case—a party seeks

to challenge allegedly unconstitutional acts performed by

the government. See State v. Lodge, 608 S.W.2d 910 (Tex.

1980) (challenging unconstitutional mental commitment by

state); Jranian Muslim Organization v. City of San Antonio,

615 S.W.2d 202 (Tex. 1981) (challenging prior restraints

on free speech by city).

Under prior Texas precedent this case presents the

perfect instance for application of the capable-of-repetition

vet-evading-review exception. As noted supra at pp. 14-16,

Petitioner has been engaging in a nationwide pattern

of advocacy and publication regarding the need for _re-

form of the legal system, including the excessive and

petitive award of punitive damages and excessive legal

fe es. Petitioner has every intention of continuing this pro-

gram, throughout the nation. Moreover, Petitioner is cur-

rently involved in thousands of law suits in Texas, with

additional suits being filed constantly, making it a virt al

certainty that in a different trial, a trial judge of the State

of Texas will enjoin Petitioner’s publication of advertise-

ments during the pendency of one of these numerous trials.

In addition, “{b]ecause temporary orders imposing prior

restraints upon free speech are by nature short-lived,”

this case falls within Texas’ application of the exception

for cases that are capable of repetition yet evading rev iew.

Iranian Muslim Organization v. City of San Anton, 615

SW.2d at 209 (Tex. 1981). The Texas Supreme Court

clearly has misapplied Texas mootness law by finding this

case to be moot. As a result, there is no jurisdictional

bar to this Court’s granting certiorar1.

CONCLUSION

This case presents an issue of federal constitutional policy

of tremendous importance: The impact of a prior restraint

on a litigant’s constitutional right to comment on political

issues during the pendency of the trial. Both Respondent’s

order and the Texas appellate court’s decision upholding

it clearly depart from decisions of this Court, as w ell as

of numerous state and federal courts, in unconstitutionally

stifling Petitioner’s free speech right. Moreover, unless

this Court agrees to review Respondent’s injunction, sig-

nificant unpredictability in First Amendment interpreta-

tion will result, because of the dramatic differences be-

tween the decisions of the Texas courts and the opinion

of the Maryland appellate court on the exact same issue.

» state supreme court is permitted to misapply the

state’s own exception for cases capable of repetition yet

evading review, it will be able effectively to insulate for

all time this significant constitutional violation from this

Court’s review. Both the constitutional rights of free ex-

pression and this Court’s primacy within the federal system

will be severely undermined as a result. For these rea

sons, this Court should find that no independent and ade-

quate state ground supports the Texas Supreme Court’s

refusal to consider Petitioner’s First Amendment chal

enge, and grant the petition for a writ of certioran

Respectfully submitted,

MARTIN H. REDISH

Counsel of Record

KRISTOPHER S. HESTON

HOLLEB & COFF

55 East Monroe Street

Suite 4100

Chicago, Illinois 60603

(312) 807-4600

Attorneys for Petitioner,

KEENE CORPORATION

STUART E. RICKERSON

Vice President-

General Counsel

Keene Corporation

200 Park Avenue

New York, New York 10166

Of Counsel