Reply Brief — HCA Health Health Services Services of Oklahoma, Inc. v. Shinn (No. 09-311)

No. 09-311

In the Supreme Court of the United States

HCA HEALTH SERVICES OF OKLAHOMA

OU MEDICAL CENTER d/b/a CHILDREN'S

ind OU MEDICAL CENTER

NATHAN SHINN, a minor, by and through his parent

BRITTANY SHINN and BRANDON SHINN, and

BRITTANY SHINN and BRANDON SHINN

Respondents

On Petition for a Writ of Certiorari to

The Oklahoma Court of Civil Appeals

REPLY BRIEF FOR PETITIONERS

CLYDE A MUCHMORE EVAN M TAGEF

Crowe & Dunlers Counsel of Record

20 N Broadway OAN HIMMELFARB

Oklahoma City, OK BRIAN D NETTE:

73102 Maver Brown LLP

(105) 235-7734 1999 K Street, NV

STEVEN J) RoOpDo! Washington, DC 20006

(202) 263-3000

LESLIE C WEEKS

Rodolf & Todd

JOVI S Boston Avenue

Tulsa, OK 74103

918) 295-2100

Counsel for FPetttioners

Vh/a

TABLE OF CONTENTS

TABLE OF AUTHORITIES

THE COURT SHOULD GVR F

FURTHER CONSIDERATION IN LIGH 1

OF CAPERTON

1 THE COURT SHOULD GRANT

CERTIORARI TO ADDRESS THE

SAFEGUARDS THAT MUST BE

AFFORDED PARTIES BEFORE THI

[IMPOSITION OF SEVERE SANCTIONS

ONCLUSION

TABLE OF AUTHORITIES

Page(s)

CASES

Cuperlonvy AT Massey Coal ©

1298S Ct 2252 (2009)

Direct Plumbing Supply Co vo Cty of Dayton

38 N E 2d 70 (Ohio 194])

Doulamis v Alpine Lake Property Owners

Ass'n, 399 S E 2d 689 (W Va 1990)

FDIC v Daily

973 F 2d 1525 (10th Cir 1992)

Jensen v Fed. Land Bank

$82 F 2d 340 (8th Cir 1989)

Kilpatrick v. Bullough Abatement, In

199 P 3d 957 (Utah 2008)

Lawrence v Chater

516U'S 163 (1996)

Maine v Superior Court

438 P 24 372 (Cal 1968)

Malonev U S. Postal Service

833 F 2d 128 (9th Cir 1987)

Afdller Dollarhide, PC vy Tal

174 P.3d 559 (Okla 2006)

Morrissey v Brewer

408 US 471 (1972)

Ohio Furntture Co v Mindala

188 N E 2d 881 (Ohio 1986)

Pac Union Conf of Seventh Day

Marshall, 434 US 1305 (1977

Patterson v Beall

> 3d 839 (Okla 2000

TABLE OF AUTHORITIES

continued

Page(s)

Cre ret

a

» 85 (1955)

luay Express, Ine

147 Ss 792, (1980

lele Trnide rrationale pr

industrielles et Comn

Rogers. 357 US 197

Mriey Thompsor

337 S 163 (1949

STATUTES AND RULES

REPLY BRIEF FOR PETITIONERS

The Constitution forbids use of » judicial

process to deprive a litigant of property, unless the

decisionmaker 18 impartia! and the litigant receives

fair notice and a full and fair opportunity to present

i defense. As we explained in the petition, HCA was

iemed these protections and instead was subjected

ry

to severe ganctions—ulti)mately re sulting im an $18

million judgment by a judge who was deeply beho

jen to the lawyer for HCA's opponents, wrth no mea

ningful notice and no opportunity to present evidence

in its defense

Respondents paint a very different picture of thi

facts underlying the sanctions dispute and the facts

giving rise to their injuries ! However. they do n

dispute the facts that are central to this petition

that Judge Swinton’s campaign was chaired by Mr

Durbin. that she tssued a sanction of default judg

ment within hours of receiving respondents motion

and that she did not consider a shred of evidence be-

fore terminating HCA’s right to defend on the merit:

Respondents’ differing mew of the propricty of thi

sanctions in substance underscores the importance “f

following appropriate procedures to resolve faectua!

lisputes and to determine whether and what kind of

janctions are justified

Hespondents suggestion that this ourt s | cept

tate courts charactenzation of the facts (Opp 2 n 1) mahes 1

sense un the context of a case in which the defendant challenges

1 sanction that required the jury (and the rev rt

accept the allegations of the complaint at fa

THE COURT SHOULD GVR FOR FURTHER

CONSIDERATION IN LIGHT OF CAPER

TON.

Fhis Court has yumsdiction over the recusal issue

ind should GVR in light of Caperton, because the pe

tition satisfies the standard set forth in Lawrence \

Chater, 516 US 163, 167 (1996) (per curnam)

Respondents are mistaken in contending that

pretrial review via a petition for writ of mandamus

has a different effect on this Court's yurisdiction than

pretrial review via an interlocutory appeal (see Opy

15-17), that HCA failed to exhaust its federal claim

even though it followed the Oklahoma-law manda-

mus procedure (see Opp 18-19) and that Caperton

would net have influenced the judgment of the Okia-

. ‘ , Y )

homa Supreme Court (see Opp 20 23)

\ This Court's jurisdiction extends to “all of the

substantial federal questions determined in the ear

her stages of the litigation Reece v. Georgra, 350

LS 85, 87 (1955) sot makes no difference what a

state court names those stages or how the “[Jocal

rules of practice” are structured because otherwise

state courts would be able to ‘bar this Court's inde

pendent consideration’ by crafting iduosyncratic pro

cedural hurdles CUrie v Thompson, 337 US) 163

172 (1949)

()klahoma law provides that a party challenging

1 judges impartiality before trial must seek a writ of

mandamus from the Oklahoma Supreme Court

Fiercev Pierce 39 P 3d 791. 796 (Okla 2001) Pet ¢

14-15 Respondents contend that the mandamus

dure is a mere sideshow and that parties must

the same arguments on direct appea! they

tv preserve therm for reView by t | ( ‘¢

However, neither the Cklahoma Supreme irt me

th: ‘Ourt treats mandamus as a distinct ise d

vorced from the underlying disput

The Oklahoma Supreme Court views mandam

as a stage of the overal) Ltigation Chat is why de

nials of mandamus are governed by the doctrine of

law of the case rather than res judicata Miller D

larhide, PC v Tal. 174 P 3d 559, 563 n 11 (Okla

2006) It also is why, for the mandamus petition at

issue here, the Oklahoma Supreme Courts online

docket identifies the district court decision as the

pinion under review

Likewise, this Court has characterized mand

mus as a form of ‘interlocutory review Pac Untor

Conf, of Seventh-Day Adventists vy Marshali, 434

US 1305, 1307 (1977) That make sense, because

wveral states employ mandamus and other writs for

interlocutory error correction The California courts

for example, employ writs of mandate for interlocu

tory review in a wid inge of circumstance Se

Maine v Supertor Court, 438 P 2d 372, 378-379 (Ca

1968) Although such proceedings invariably carry a

different caption, they are stull part and parce! of

man Case

B HCA properly preserved its federal nutite

tional claim for this Court's remew. As we explained

in the petition (at 14-15), Oklahoma law provides tw

slternatives for a party seeking to disqualify a tria

udge After the agey ved party request ré if

ind ippeals to the chiet ) | th illeged error mat

4 K 392 Okla } 4 6)

ntl www Cho bet application al tt aseint na n As}

t n that court t t thu

I uly, respondent iggest that tl!

hom int pa } i ‘ (Cy |

istaken | be sure, the Klah ' t

recognized the uncontroversial principle it re

is required where ‘impartiality maght

yuestioned Pierce, 49 Yat 797 i pe

pecifically held that due process ated whe

person with a personal stake in a particular ca

i Significant and disproportionate influences

g the judge on the case by * * * recting

dge s ¢ ection campaign when the ise Was pr "

imminent’ 1298 t at 2263. 2264 What cu

umstance 18 murrored with precision | Mr Dus

bins participation in th mse while he t

Judge Swintons campaign Indeed. it is quite ¢

ble that reassembling the team that enygawed in t

ast minute fundraising’ for the judge's prior car

paignas what scared off any chal gers and a

her to be “deemed reelected \t the absolute 1

mum the para le] itis! Lawrences require {

that ere be a sonable pr ibility’ that f

ihoma r ‘ ld re sider th ivment

{ at 167

Il. THE COURT SHOULD GRANT CERTI

ORARI TO ADDRESS THE SAFEGUARDS

THAT MUST BE AFFORDED PARTIES BE

FORE THE IMPOSITION OF SEVERI

SANCTIONS

y the alternat plena |

t vic ceded ¢g 1 | t

pr cde t iNnposit 1 rt |

ti In ape Ving th i id !

)

2 Respondents cite various cases in which court

have disavowed the need to issue a “warning” befor«

nduct becomes sanctionable Opp 26-27 & nls

Hut a warning 1s not the same as particularized no

tice The former precedes a violation and advises the

warned party to alterits behavior The latter follows

an alleged violation and allows the accused party to

prepare its defense The cases cited by respondents

icmonstrate that courts treat particularized notice

and warnings as different things For exampie, in

Malonev US Postal Service, 833 F 2d 128, 133 (8th

Cir 1987). although the Ninth Cireu:t found “a

warning to be unnecessary,’ 40 days passed between

notice of the alleged violation and the subsequent

ganction Likewise, in FDIC v Daily, 973 F 2d 1525

10th Cir 1992), 34 days elapsed between the motion

for sanctions and imposition of the penalty Thus

these cases do not support respondents suggestion

that the Ninth and Tenth Circuits would counten

ince affording a party only minutes of advance notice

efore imposition of sanctions

In sum, the courts are diviced on whether a par

ty facing sanctions must be afforded advance notice

‘the specific allegations with sufficient time to pre

pare a defense Because this issue anses with fre-

quency and can--as happened here—result in gse-

vere, unjustified sanctions, this Court's review Is

B Lower courts also are dimded on whether a

party facing sanctions 1s constitutionally entitled te

submit evidence in its defense through written brief

i oranevidentiary hearing Pet 21-24

a

Respondents again attempt to narrow the scope

of the division to the context of discovery sanctions

(Opp 28). as before, that limitation ts artificial > As

this Court has recognized, “[t}he due process con

cerns posed by an outright dismissal are plain!y

greater than those presented by assessing counse!|

fees against lawyers” Roadway Express, Inc v Pi

per, 447 US 752, 767 n 14 (1980) Decisions requir-

ing greater process for lesser sanctions most certainly

reflect a schism between the lower courts

Moreover, although respondents identify no au

thorities adopting their proposed distinction between

discovery sanctions and other sanctions. this Court

has suggested that the same rules apply In drawing

a comparison between “outright dismissal” and

‘counsel fees” in Roadway Express, this Court ap-

phed a case involving discovery sanctions to Rule 11

447 US. at 767 n 14 (citing Societe Internationale

pour Participations Industrielies et Commerciales,

SA v Rogers 357 US 197. 208.212 (1958) Thus

respondents suggestion that discovery sanctions and

other sanctions should be treated differently 1s mis

taken

Courts have adopted a variety of positions in

analyzing the due process requirements for litigation

sanctions, Some courts have required that the party

threatened with such sanctions be afforded a full-on

,

evidentiary hearing, others have mandated at least

And as before respondents charactcrize a constitutional deci

310n as one of state law In Douliamis vy Alpine Lake Proper?

Quners Assn. 399 S E 2d 6839, 693 (W Va 1990). the court re

juired an evidentiary heanng because at corrects recognized

that the applicable rules were subject te institutional limita

tions

¢

€ opportunity to provide a written response,” and

rtain courts (like the courts below) have essentially

viscerated the opportunity to re spond This Court's

review 15 warranted to determine which approach 1s

constitutionally correct

CONCLUSION

for a writ of cert:oram shoul

Respondents deny that courts have required that a party

sanctions be given 1e opportunity to make a

27-28 To be sure. the

fficient % satisfy due

(nrealeneac wi

written response Opp ases cited in the

ion deem a written response su!

process rather than necessary But that 1s only because they

rgruze that greater procedures could obviate the need for a

rt

ertainly stand for the propos:

written response These

on that the nmgnt to respond must

cases

meaningful which f

mambige u ly Bas not

Respectfully submitted

CLlyDE A MUCHMORE

Crowe & Dunlewy

20 N. Broadway

Oklahoma City, OK

73102

(405) 235-7734

STEVEN J RODOLF

LESLIE C WEEKS

Rodolf & Todd

4101S Boston Avenue

Tulsa, OK 74103

(918) 295-2100

EVAN M TAGER

Counsel of Record

DAN HIMMELFARB

BRIAN D NETTER

Mayer Broun LLP

1999 K Street, NW

Washington, DC 2000¢

(202) 263 3000

Counsel for Petitioners

OCTOBER 2009