# Reply Brief — HCA Health Health Services Services of Oklahoma, Inc. v. Shinn (No. 09-311) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0987%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2009 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0987%3A3. Public record. Not legal advice.