v line

President's Supreme Court Petition To Delay The Paula Jones Case

Search The Library


SOME MAIN ROOMS

LEGAL TOPIC AREAS

MISC BUSHWAH

PREMIUM ROOMS

Follow Us!



Our Most Popular Article:
Power of Attorney
Our Most Popular Page:
Free Legal Forms
Our Newest Article: Personal Finance Guide

line
line

IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA
October Term, 1995

WILLIAM JEFFERSON CLINTON,
Petitioner,

vs.

PAULA CORBIN JONES,
Respondent.

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner William Jefferson Clinton respectfully requests that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Eighth Circuit entered in this case on January 9, 1996.

TABLE OF CONTENTS

QUESTIONS PRESENTED
PARTIES TO THE PROCEEDING
TABLE OF CONTENTS
TABLE OF AUTHORITIES
OPINIONS BELOW
JURISDICTION
LEGAL PROVISIONS INVOLVED IN THIS CASE
STATEMENT OF THE CASE
REASONS FOR GRANTING THE PETITION8
A. The Decision Below Is Inconsistent With This Court's Decisions And Jeopardizes The Separation Of Powers
B. The Court Of Appeals Erred In Viewing The Relief Sought By The President As Extraordinary
C. The Panel Majority Erred In Asserting Jurisdiction Over, And Reversing, The District Court's Discretionary Decision To Stay The Trial Until After President Clinton Leaves Office
D. The Court Should Grant Review Now To Protect The Interests Of The Presidency
CONCLUSION

QUESTIONS PRESENTED

1. Whether the litigation of a private civil damages action against an incumbent President must in all but the most exceptional cases be deferred until the President leaves office.

2. Whether a district court, as a proper exercise of judicial discretion, may stay such litigation until the President leaves office.

PARTIES TO THE PROCEEDING

Petitioner, President William Jefferson Clinton, was a defendant in the district court and appellant in the court of appeals. Respondent Paula Corbin Jones was the plaintiff in the district court and cross-appellant in the court of appeals. Danny Ferguson was a defendant in the district court.

TABLE OF AUTHORITIES
Boushel v. Toro Co., 985 F.2d 406 (8th Cir. 1993)
Cheyney State College Faculty v. Hufstedler, 703 F.2d 732 (3d Cir.1983)
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)
DeVault v. Truman, 194 S.W.2d 29 (Mo. 1946)
Harlow v. Fitzgerald, 457 U.S. 800 (1982)
Kincade v. City of Blue Springs, Mo., 64 F.3d 389 (8th Cir. 1995), cert. denied, 1996 WL 26287 (Apr. 29, 1996)
Koester v. American Republic Invs., 11 F.3d 818 (8th Cir. 1993)
Landis v. NorthAm. Co., 299 U.S. 248 (1936)
Mitchell v. Forsyth, 472 U.S. 511 (1985)
Moses H. Cone Memorial Hosp. v. Mercury Constr.Corp, 460 U.S. 1 (1983)
New York ex ret Harley v. Roosevelt, 179 N.Y. 544 (1904)
Nixon v. Fitzgerald, 457 U.S. 731 (1982)
Ricci v. Chicago Mercantile Exch., 409 U.S. 289 (1973)
Swint v. Chambers County Comm'n, 115 S.Ct. 1203 (1995)
United States v. Burr, 25 F. Cas. 30 (C.C.D.Va. 1807) (No.14,692d)
United States v. Burr, 25 F. Cas. 187 (C.C.D.Va.1807) (No.14,694)
United States v. Fromme, 405 F. Supp. 578 (E.D.Cal. 1975)
United States v. McDougal, No. LR-CR-95-173 (E.D.Ark. Mar.20, 1996)
United States v. Mellon Bank, NA., 545 F.2d 869 (3d Cir. 1976)
United States v. North, 713 F. Supp. 1448 (D.D.C. 1989), 910 F.2d
843 (D.C.Cir. 1990), cert. denied, 500 U.S. 941 (1991)
United States v. Poindexter, 732 F. Supp. 142
Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084 (Sth Cir. 1979)

Constitutional Provisions, Rules and Statutes
U.S. CONST. art. II, Section 1, cl. 1 9
U.S. CONST. amend. VI 13
11 U.S.C. Section 105 (1994)15
11 U.S.C. Section 362 (1994)15
28 U.S.C. Section 651 (1994)16
28 U.S.C. Section 1254(1) (1994)2
28 U.S.C. Section 1291 (1994)5, 17
28 U.S.C. Sections 1331, 1332 and 1343 (1994)3
42 U.S.C. Section 1983 (1994)3
42 U.S.C. Section 1985 (1994)3
Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app.
Sections 501-25 (1988 & Supp. V 1993)
50 U.S.C. app. Section 510 (1988)
50 U.S.C. app. Section 521 (1988)
FED. R. CIV.P. 404

Pleadings From Other Cases Bailey v. Kennedy, No. 757200 (Los Angeles County Superior Court filed Oct. 27, 1960) Hills v. Kennedy, No. 757201 (Los Angeles County Superior Court filed Oct. 27, 1960)

Other Authorities
2 Collier On Bankruptcy 1t 105.02 (Lawrence P. King ed., 15th ed. 1994) 15
10 The Works Of Thomas Jefferson 404 n. (Paul L. Ford ed., 1905)
Journal Of William Maclay 167 (E. McClay, ed., 1890)
3 Joseph Story, Commentaries On The Constitution Of The United States
Section 1563, pp. 418-19 (1st ed. 1833)
3 Lectures on Legal Topics, Assn. of the Bar of the City of New York 105 (1926)

OPINIONS BELOW

The opinion of the court of appeals (Pet.App. 1) is reported at 72 F.3d 1354. The court of appeals' order denying the petition for rehearing (Pet.App. 32) is reported at 81 F.3d 78. The principal opinion of the district court (Pet.App. 54) is reported at 869 F.Supp. 690. Other published opinions of the district court (Pet.App. at 40 & 74) appear at 858 F.Supp. 902 and 879 F. Supp. 86.

JURISDICTION

The judgment of the United States Court of Appeals for the Eighth Circuit was entered on January 9, 1996. A petition for rehearing was filed on January 23, 1996, and denied on March 28, 1996. This Court's jurisdiction is invoked pursuant to 28 U.S.C. Section 1254(1) (1994).

LEGAL PROVISIONS INVOLVED IN THIS CASE

U.S. Const. art. II, Section 1, cl. 1 U.S. Const. art. II, Sections 2-4 U.S. Const. amend. XXV 42 U.S.C. Section 1983 (1994) 42 U.S.C. Section 1985 (1994) 50 U.S.C. app. Section 510 (1988) 50 U.S.C. app. Section 521 (1988) 50 U.S.C. App. Section 525 (Supp. V 1993) Fed.R.Civ.P. 40. These provisions are set forth at pgs App.79-85 of the Petitioner's Appendix.

STATEMENT OF THE CASE

Petitioner William Jefferson Clinton is President of the United States. On May 6, 1994, respondent Paula Corbin Jones filed this civil damages action against the President in the United States District Court for the Eastern District of Arkansas. The complaint was premised in substantial part on conduct alleged to have occurred three years earlier, before the President took office. The complaint included two claims arising under the federal civil rights statutes and two arising under common law, and sought $175,000 in actual and punitive damages for each of the four counts./1 Jurisdiction was asserted under 28 U.S.C. Sections 1331, 1332 and 1343 (1994).

The President moved to stay the litigation or to dismiss it without prejudice to its reinstatement when he left office, asserting that such a course was required by the singular nature of the President's Article II duties and by principles of separation of powers. The district court stayed trial until the President's service in office expired, but held that discovery could proceed immediately "as to all persons including the President himself." Pet.App. 71.

The district court reasoned that "the case most applicable to this one is Nixon v. Fitzgerald, [457 U.S. 731 (1982)]," (Pet.App. 67) which held that a President is absolutely immune from any civil litigation challenging his official acts as President. While the holding of Fitzgerald did not apply to this case because President Clinton was sued primarily for actions taken before he became President, the court stated that "[t]he language of the majority opinion" in Fitzgerald is sweeping and quite firm in the view that to disturb the President with defending civil litigation that does not demand immediate attention . . . would be to interfere with the conduct of the duties of the office. Pet.App. 68-69. The district court further found that these concerns "are not lessened by the fact that [the conduct alleged] preceded his Presidency." Id. Invoking Federal Rule of Civil Procedure 40 and the court's equitable power to manage its own docket, the district judge stayed the trial "[t]o protect the Office of President . . . from unfettered civil litigation, and to give effect to the policy of separation of powers." Pet.App. 72./2

The trial court, observing that the plaintiff had filed suit three years after the alleged events, further concluded that the plaintiff would not be significantly inconvenienced by delay of trial. Pet.App. 70. However, it found "no reason why the discovery and deposition process could not proceed," and said that this would avoid the possible loss of evidence with the passage of time. Pet.App. 71.

The President and respondent both appealed./3 A divided panel of the court of appeals reversed the district court's order staying trial, and affirmed its decision allowing discovery to proceed. The panel issued three opinions. Judge Bowman found the reasoning in Fitzgerald "inapposite where only personal, private conduct by a President is at issue," (Pet.App. 11), and determined that "the Constitution does not confer upon an incumbent President any immunity from civil actions that arise from his unofficial acts." Pet.App. 16. He also wrote that

[t]he Court's struggle in Fitzgerald to establish presidential immunity for acts within the outer perimeter of official responsibility belies the notion ... that beyond this outer perimeter there is still more immunity waiting to be discovered. Pet.App. 9.

Judge Bowman further concluded that it would be an abuse of discretion to stay all proceedings against an incumbent President, asserting that the President"is entitled to immunity, if at all, only because the Constitution ordains it. Presidential immunity thus cannot be granted or denied by the courts as an exercise of discretion." Pet.App. 16. Ruling that the court of appeals had "pendent appellate jurisdiction" to entertain respondent's challenge to the stay of trial issued by the district court, (Pet.App. 5 n.4) (citing Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 394 (8th Cir. 1995), cert. denied, 1996 WL 26287 (Apr. 29, 1996)), Judge Bowman accordingly reversed that stay as an abuse of discretion. Pet.App. 13 n.9.

In reaching these conclusions, Judge Bowman put aside concerns that the separation of powers could be jeopardized by a trial court's exercising control over the President's time and priorities, through the supervision of discovery and trial. He stated that any separation of powers problems could be avoided by "judicial case management sensitive to the burdens of the presidency and the demands of the President's schedule." Pet.App. 13.

Judge Beam "concur[red] in the conclusions reached by Judge Bowman." Pet.App. 17. He stated that the issues presented "raise matters of substantial concern given the constitutional obligations of the office" of the Presidency. Pet.App. 17. He also acknowledged that "judicial branch interference with the functioning of the presidency should this suit be allowed to go forward" is a matter of "major concern." Pet.App. 21. He expressed his belief, however, that this litigation could be managed with a "minimum of impact on the President's schedule." Pet. App. 23. This could be accomplished, he suggested, by the President's choosing to forgo attending his own trial or becoming involved in discovery, or by limiting the number of pretrial encounters between the President and respondent's counsel. Pet.App. 2324. Judge Beam stated that he was concurring "[w]ith [the] understanding" that the trial judge would have substantial latitude to manage the litigation in a way that would accommodate the interests of the Presidency. Pet.App. 25.

Judge Ross dissented, saying the "language, logic and intent" of Fitzgerald "directs a conclusion that, unless exigent circumstances can be shown, private actions for damages against a sitting President of the United States, even though based on unofficial acts, must be stayed until the completion of the President's term. Pet.App. 25. Judge Ross observed that "[n]o other branch of government is entrusted to a single person," and determined that "[t]he burdens and demands of civil litigation can be expected ... to divert [the President's] energy and attention from the rigorous demands of his office to the task of protecting himself against personal liability. That result . . . would impair the integrity of the role assigned to the President by Article II of the Constitution." Pet.App. 26.

Ross also stated that private civil suits against sitting Presidents create opportunities for the judiciary to intrude upon the Executive's authority, set the stage for potential constitutional confrontations between courts and a President, and permit the civil justice system to be used for partisan political purposes. Pet.App. 28. At the same times he reasoned, postponing litigation "will rarely defeat a plaintiff's ability to ultimately obtain meaningful relief." Pet.App. 30. Judge Ross concluded that litigation should proceed against a sitting President only if a plaintiff can "demonstrate convincingly both that delay will seriously prejudice the plaintiff's interests and that ... [it] will not significantly impair the President's ability to attend to the duties of his office." Pet.App. 31.

The court of appeals denied the President's request for a rehearing en bang with three judges not participating and Judge McMillian dissenting. Judge McMillian said the majority's holding had "demean[ed] the Office of the President of the United States." Pet.App. 32. He wrote that the panel majority "would put all the problems of our nation on pilot control and treat as more urgent a private lawsuit that even the [respondent] delayed filing for at least three years," and would "allow judicial interference with, and control of, the President's time." Pet. App. 33.

REASONS FOR GRANTING THE PETITION

This case presents a question of extraordinary national importance, which was resolved erroneously by the court of appeals. For the first time in our history, a court has ordered a sitting President to submit, as a defendant, to a civil damages action directed at him personally. We believe that absent exceptional circumstances, an incumbent President should never be placed in this position. And surely a President should not be placed in this position for the first time in our history on the basis of a decision by a fragmented panel of a court of appeals, without this Court's review.

The decision of the court below is erroneous in several respects. It is inconsistent with the reasoning of Nixon v. Fitzgerald and with established separation of powers principles. The panel majority's suggested cure for the separation of powers problems "judicial case management sensitive to . . . the demands of the President's schedule" (Pet.App. 13) -- is worse than the disease: it gives a trial court a general power to set priorities for the President's time and energies. The panel majority also grossly overstated the supposedly extraordinary character of the relief that the President seeks. The deferral of litigation for a specified, limited period is far from unknown in our judicial system, and it is routinely afforded in order to protect interests that are not comparable in importance to the interests the President advances here.

Now is the appropriate time for the Court to address these issues. If review is declined, the President would have to undergo discovery and trial while in office, which would eviscerate the very interests he seeks to vindicate. Moreover, if the decision below is allowed to stand, federal and state courts could be confronted with more private civil damage complaints against incumbent Presidents. Such complaints increasingly would enmesh Presidents in the judicial process, and the courts in the political arena, to the detriment of both.

A. The Decision Below Is Inconsistent With This Court's Decisions And Jeopardizes The Separation Of Powers.

1. The President "occupies a unique position in the constitutional scheme." Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). Unlike the power of the other two branches, the entire "executive Power" is vested in a single individual, "a President," who is indispensable to the execution of that authority. U.S. Const. art. II, Section 1. The President is never off duty, and any significant demand on his time necessarily imposes on his capacity to carry out his constitutional responsibilities.

Accordingly, "[c]ourts traditionally have recognized the President's constitutional responsibilities and status as factors counseling judicial deference and restraint." Fitzgerald, 457 U.S. 753. Indeed, "[t]his tradition can be traced far back into our constitutional history." Id. at 753 n.34. The form of "judicial deference and restraint" that the President seeks here^merely postponing the suit against him until he leaves office^is modest. It is far more limited, for example, than the absolute immunity that Fitzgerald accorded all Presidents for actions taken within the scope of their presidential duties.

The panel majority concluded that because the Fitzgerald holding was limited to civil damages claims challenging official acts, the President should receive no form of protection from any other civil suits. This conclusion is flatly inconsistent with the reasoning of Fitzgerald. The Court in Fitzgerald determined that the President was entitled to absolute immunity not only because the threat of liability for official acts might inhibit him in the exercise of his authority (id. at 752 & n.32), but also because, in the Court's words, "the singular importance of the President's duties" means that "diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government." Id. at 751.

The panel majority ignored this second basis for the holding of Fitzgerald. The first basis of Fitzgerald^that the threat of liability might chill official Presidential decision making^is, of course, largely not present here, and accordingly, the President does not seek immunity from liability. 4 But the second danger to the Presidency emphasized by Fitzgerald^the burdens inevitably attendant upon being a defendant in a lawsuit^dearly exists here. The court of appeals simply disregarded this "unique risky to the effective functioning of government."

2. As the Fitzgerald Court demonstrated, the principle that a sitting President may not be subjected to private civil lawsuits has deep roots in our traditions. See 457 U.S. at 751 n.31. Justice Story stated that "[t]he president cannot ... be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability." 3 Joseph Story, Commentaries On The Constitution Of The United States S 1563, pp. 418-19 (1st ed. 1833), quoted in Fitzgerald, at 749. Senator Oliver Ellsworth and then-Vice President John Adams, both delegates to the Constitutional Convention, also agreed that the President, personally, was not... subject to any process whatever.... For [that] would... put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government. Journal Of William Maclay 167 (E. Maclay ed., 1890), quoted in Fitzgerald, 457 U.S. at 751 n.31.

President Jefferson was even more emphatic:

"The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other.... But would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?" 10 The Works Of Thomas Jefferson 404 n. (Paul L. Ford ed., 1905), quoted in Fitzgerald, at 751 n.31.

As the Court said in Fitzgerald, "nothing in [the Framers'] debates suggests an expectation that the President would be subjected to the distraction of suits by disappointed private citizens." 457 U.S.751 n.31.

3. The panel majority minimized the separation of powers concerns that so troubled the Framers. It ruled that these problems can never be addressed by postponing litigation against the President until the end of his term. Pet.App. 16. Instead, the panel majority's solution was "judicial case management sensitive to the burdens of the presidency and the demands of the President's schedule." Pet.App. 13. Rather than solving the separation of powers problems raised by allowing a suit to go forward against a sitting President, the panel's approach only exacerbates them.

The panel majority envisioned that, throughout the course of litigation against him, a President could "pursue motions for rescheduling, additional time, or continuances" if he could show that the proceedings "interfer[ed] with specific, particularized, clearly articulated presidential duties." Pet.App. 16. If the President disagreed with a decision of the trial court, he could "petition [the court of appeals] for a writ of mandamus or prohibition." Pet.App. 16. In other words, under the panel's approach, a trial court could insist, before considering a request by the President for adjustment in the litigation schedule, that the President provide a "specific, particularized" explanation of why he believed his official duties prevented him from devoting his attention to the litigation at that time. The court would then be in the position of repeatedly evaluating the President's official priorities^precisely what Jefferson so feared.

This approach is an obvious affront to the complex and delicate relationship between the Judiciary and the Presidency. Neither branch should be in a position where it must approach the other for approval to carry out its day-to-day responsibilities. Even if a trial court discharged this mission with the greatest judiciousness, it is difficult to think of anything more inconsistent with the separation of powers than to put a court in the position of continually passing judgment on whether the President is spending time in a way the court finds acceptable.

4. The panel majority similarly attempted to downplay the demands that defending private civil litigation would impose on the President's time and energies. Pet.App. 13-15. The concurring opinion in particular likened the defense of a personal damages suit to the few instances when Presidents have testified as witnesses in judicial or legislative proceedings. Pet.App. 22-23. This notion is implausible on its face; there is no comparison between being a defendant in a civil damages action and merely being a witness. Even so, Presidents have been called as witnesses only in cases of exigent need, and only under carefully controlled circumstances designed to minimize intrusions on the President's ability to carry out his duties.

A sitting President has never been compelled to testify in civil proceedings. Presidents occasionally have been called upon to testify in criminal proceedings, in order to preserve the public's interest in criminal law enforcement (Fitzgerald, 457 U.S. at 754) and the defendant's Constitutional right to compulsory process (U.S. Const. amend. VI; United States v. Burr, 25 F.Cas. 30, 33 (C.C.D.Va. 1807) (No. 14,692d)) --factors that are, of course, not present here. But even in those compelling cases, as Chief Justice Marshall recognized, courts are not "required to proceed against the president as against an ordinary individual." United States v. Burr, 25 F.Cas. 187, 192 (C.C.D. Va. 1807) (No.14,694). Instead, courts have required a heightened showing of need for the President's testimony, and have permitted it to be obtained only in a manner that limits the disruption of his official functions, such as by videotaped deposition./5

In any event, there is an enormous difference between being a third- party witness and being a defendant threatened with financially ruinous personal liability. This is true even for a person with only the normal business and personal responsibilities of everyday life^which are, of course, incalculably less demanding than those of the President. A President as a practical matter could never wholly ignore a suit such as the present one, which seeks to impugn the President's character and to obtain $700,000 in putative damages from the President personally. "The need to defend damages suits would have the serious effect of diverting the attention of a President from his executive duties since defending a lawsuit today^even a lawsuit ultimately found to be frivolous^often requires significant expenditures of time and money, as many former public officials have learned to their sorrow." Fitzgerald, 457 U.S. at 763 (Burger, C.J., concurring).

Judge Learned Hand once commented that as a litigant, he would "dread a lawsuit beyond anything else short of sickness and death."/6 In this regard the President is like any other litigant, except that a President's litigation, like a President's illness, becomes the nation's problem.

B. The Court Of Appeals Erred In Viewing The Relief Sought By The President As Extraordinary

The court below appears to have viewed the President's claim in this case as exceptional, both in the relief that it sought and in the burden it imposed on respondent./7 In fact, far from seeking a "degree of protection from suit for his private wrongs enjoyed by no other public official (much less ordinary citizens)" (Pet.App. 13), the relief that the President seeks^the temporary deferral of litigation^is far from unknown in our system, and the burdens it would impose on plaintiffs are not extraordinary.

There are numerous instances where civil plaintiffs are required to accept the temporary postponement of litigation so institutional or public interests can be protected. For example, the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app. Sections 501-25 (1988 & Supp. V 1993), provides that civil claims by or against military personnel are to tolled and stayed while they are on active duty./8 Such relief is deemed necessary to enable members of the Armed Forces "to devote their entire energy to the defense needs of the Nation." 50 U.S.C. app. Section 510 (1988). President Clinton here thus seeks relief similar to that to which he may be entitled as Commander-In-Chief of the Armed Forces, and which is routinely available to service members under his command.

The so-called automatic stay provision of the Bankruptcy Code similarly provides that litigation against a debtor is to be stayed as soon as a party files a bankruptcy petition. That stay affects all litigation that "was or could have been commenced" prior to the filing of that petition, 11 U.S.C. Section 362 (1994), and ordinarily will remain in effect until the bankruptcy proceeding is completed. Id./9 Thus, if respondent had sued a party who entered bankruptcy, respondent would automatically find herself in the same position she will be in if the President prevails before this Court^except that the bankruptcy stay is indefinite, while the stay in this case has a definite term, circumscribed by the constitutional limit on a President's tenure in office.

It is well established that courts, in appropriate circumstances, may put off civil litigation until the conclusion of a related criminal prosecution against the same defendant./10 That process may, of course, take several years, and affords the civil plaintiff no relief. The doctrine of primary jurisdiction, where it applies, compels plaintiffs to postpone the litigation of their civil claims while they pursue administrative proceedings, even though the administrative proceedings may not provide the relief they seek. This process too can take several years. See, e.g., Ricci v. Chicago Mercantile Exch., 409 U.S. 289, 306- 07 (1973). And public officials who unsuccessfully raise a qualified immunity defense in a trial court are entitled, in the usual case, to a stay of discovery while they pursue an interlocutory appeal. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Such appeals can routinely delay litigation for a substantial period.

We do not suggest that all of these doctrines operate in exactly the same way as the relief that the President seeks here. But these examples thoroughly dispel any suggestion that the President, in asking that this litigation be deferred, is somehow placing himself "above the law," or that holding this litigation in abeyance would impermissibly violate a plaintiff's entitlement to access to the courts. More specifically, these examples demonstrate that what the President is seeking^the temporary deferral of litigation^is relief that our judicial system routinely provides when significant institutional or public interests are at stake, as they manifestly are here.

C. The Panel Majority Erred In Asserting Jurisdiction Over, And Reversing, The District Court's Discretionary Decision To Stay The Trial Until After President Clinton Leaves Office.

1. Respondent cross-appealed to challenge the district court's order to stay trial. Ordinarily, a decision by a district court to stay proceedings is not a final decision for purposes of appeal. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n.11 (1983). Such orders may be reviewed on an interlocutory basis only by writ of mandamus. See 28 U.S.C. Sect 651 (1994)./11 In asserting that jurisdiction existed for her cross-appeal, the respondent did not seek such a writ or contend that the stay was appealable under 28 U.S.C. Section 1291 (1994) as a final order, or as a collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). Instead, respondent asserted, and the panel majority found, that the Court of Appeals had "pendent appellate jurisdiction" over respondent's cross-appeal. Pet.App. 5 n.4.

In Swint v. Chambers County Comm'n, 115 S.Ct. 1203 (1995), this Court ruled that the notion of "pendent appellate jurisdiction," if viable at all, is extremely narrow in scope (see id. at 1212), and is not to be used "to parlay Cohen-type collateral orders into multi-issue interlocutory appeal tickets." Id. at 1211. The panel majority sought to avoid Swint by declaring that respondent's cross-appeal was "inextricably intertwined" with the President's appeal. Pet.App. 5 n.4. This conclusion is incorrect.

The question of whether the President is entitled, as a matter of law, to defer this litigation is analytically distinct from the question of whether a district court may exercise its discretion to stay all or part of the litigation. The former question raises an issue of law, to be decided based on the President's constitutional role and the separation of powers principles we have discussed; the latter is a discretionary determination to be made on the basis of the particular facts of the case. Moreover, the legal question of whether a President is entitled to defer litigation is one on which the district court's determination is entitled to no special deference; a court's exercise of discretion to stay proceedings is a determination that can be overturned only for abuse of that discretion.

The district court, in deciding to postpone trial in this case, explicitly invoked its discretionary powers over scheduling (Pet.App. 71 (citing Fed.R.Civ.P. 40 and "the equity powers of the Court")), and based its decision not only on the defendant's status as President^certainly a relevant and valid factor^but also on a detailed discussion of the particular circumstances of this case:

This is not a case in which any necessity exists to rush to trial. It is not a situation, for example, in which someone has been terribly injured in an accident ... and desperately needs to recover ... damages.... It is not a divorce action, or a child custody or child support case, in which immediate personal needs of other parties are at stake. Neither is this a case that would likely be tried with few demands on Presidential time, such as an in rem foreclosure by a lending institution.

The situation here is that the Plaintiff filed this action two days before the three-year statute of limitations expired. Obviously, Plaintiff Jones was in no rush to get her case to court.... Consequently, the possibility that Ms. Jones may obtain a judgment and damages in this matter does not appear to be of urgent nature for her, and a delay in trial of the case will not harm her right to recover or cause her undue inconvenience. Pet.App. 70.

Review of the district court's discretionary decision to postpone the trial^unlike review of its decision to reject the President's position that the entire case should be deferred as a matter of law^must address these particular facts of this case. Thus the respondent's cross-appeal raised issues that, far from being "inextricably intertwined" with the President's submission, can be resolved separately from it. The panel majority's expansion of the court of appeals' jurisdiction over this interlocutory appeal was in error.

2. The decision to reverse the district court also was incorrect on the merits. As Justice Cardozo explained for this Court in Landis v. North Am. Co., 299 U.S. 248 (1936), a trial judge's decision to stay proceedings should not be lightly overturned:

[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket.... How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. Id. at 254-55. Indeed, the Court in Landis specifically stated that

[e]specially in cases of extraordinary public moment, the [plaintiff] may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted. Id. at 256.

The panel majority justified its reversal of the district court with a single sentence in a footnote: "Such an order, delaying the trial until Mr. Clinton is no longer President, is the functional equivalent of a grant of temporary immunity to which, as we hold today, Mr. Clinton is not constitutionally entitled." Pet.App. 13 n.9. It is unclear what the panel meant by labeling the district court's order the "functional equivalent" of "temporary immunity", inasmuch as the district court held that the litigation could go forward through all steps short of trial. But it is entirely clear that the panel majority, in its sweeping and conclusory ruling, did not begin to conduct the kind of careful weighing of the particular facts and circumstances that might warrant a conclusion that the trial court here abused its discretion.

D. The Court Should Grant Review Now To Protect The Interests Of The Presidency.

This is the only opportunity for the Court to review the President's claim and grant adequate relief. If review is declined at this point, the case will proceed in the trial court, and the interests the President seeks to preserve by having the litigation deferred^interests "rooted in the constitutional tradi-tion of the separation of powers"^will be irretrievably lost. Fitzgerald, 457 U.S. at 743, 749. Should the President prevail on the merits below, this Court will not even have the opportunity to provide guidance for future cases.

Now, a court for the first time in history has held that a sitting President is required to defend a private civil damages action. This holding breaches historical understandings that are as appropriate today as ever before./12 The court in Fitzgerald specifically anticipated the threat posed by suits of this kind. Because of "the sheer prominence of the President's office," the Court noted, the President "would be an easily identifiable target for suits for civil damages." 457 U.S. at 752-53. Chief Justice Burger added: "When litigation processes are not tightly controlled ... they can be and are used as mechanisms of extortion. Ultimate vindication on the merits does not repair the damage." Id. at 763 (concurring opinion). In these circumstances, the fact that there is "no historical record of numerous suits against the President" as there was no comparable record before Fitzgerald (id. at 753 n.33) provides no reassurance at all that this case will be an isolated one.

There is no question that the issues raised by this case will have profound consequences for both the Presidency and the Judiciary. The last word on issues of this importance should not be a decision by a splintered panel of a court of appeals a decision that is inconsistent with the precedents of this Court and with the constitutional tradition of separation of powers. The Court has recognized that a "special solicitude [is] due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers." Id. at 743. The Court should grant review now, to protect those prerogatives.

CONCLUSION

For the foregoing reasons, we respectfully request that the President's petition for writ of certiorari be granted.

Of Counsel:

David A. Strauss
Geoffrey R. Stone
1111 East 60th Street
Chicago, Illinois 60637
(312) 702-9601

Respectfully submitted,

Robert S. Bennett
Counsel of Record
Carl S. Rauh
Alan Kriegel
Amy R. Sabrin
Stephen P. Vaughn
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM
1440 New York Avenue, N.W.
Washington, D.C. 20005
(202) 371-7000

Attorneys for the Petitioner
President William Jefferson Clinton

May 15, 1996

FN1 The first two counts allege that in 1991, when the President was Governor of Arkansas and respondent a state employee, he subjected respondent to sexual harassment and thereby deprived her of her civil rights in violation of 42 U.S.C. 1983, 1985 (1994). A third claim alleges that the President thereby inflicted emotional distress upon respondent. Finally, the complaint alleges that in 1994, while he was President, petitioner defamed respondent through statements attributed to the White House Press Secretary and his lawyer, denying her much- publicized allegations against the President.

Arkansas State Trooper Danny Ferguson was named as co-defendant in two counts. Respondent alleges that Trooper Ferguson approached her on the President's behalf, thereby conspiring with the President to deprive the respondent of her civil rights in violation of 42 U.S.C. 1985. Respondent also alleges that Mr. Ferguson defamed her in statements about a woman identified only as "Paula," which were attributed to an anonymous trooper in an article about President Clinton's personal conduct published in The American Spectator magazine. Neither the publication nor the author was named as a defendant in the suit.

FN2 The stay of trial encompassed the claims against Trooper Ferguson as well, because the court found that there was "too much interdepen-dency of events and testimony to proceed piecemeal," and that "it would not be possible to try the Trooper adequately without testimony from the President." Pet.App. 71.

FN3 Jurisdiction for the President's appeal was founded on 28 U.S.C. 1291 (1994) and the collateral order doctrine, as articulated in Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) and Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982). In our view, however, the court of appeals lacked jurisdiction to entertain respondent Jones' cross-appeal. See infra pp. 16-19. The district court stayed the litigation as to both defendants pending appellate review. Pet.App. 74.

FN4 The President reserved the right below to assert at the appropriate time, along with certain common law immunities, the defense of absolute immunity to thc defamation claim that arose during his Presidency.

FN5 See, e.g., United States v. McDougal, No. LR-CR-95-173 (E.D.Ark. Mar.20, 1996) (videotaped deposition at the White House); United States v. Poindexter, 732 F. Supp. 142, 146-47 (D.D.C. 1990) (videotaped depo- sition); United States v. North, 713 F.Supp. 1448, 1449 (D.D.C. 1989) (quashing subpoena because defendant failed to show that President's testimony would support his defense), aged, 910 F.2d 843 (D.C.Cir. 1990), cert. denied, 500 U.S. 941 (1991); United States v. Fromme, 405 F. Supp. 578, 583 (E.D.Cal. 1975) (videotaped deposition).

FN6 3 Lecture on Legal Topics, Assn. of the Bar of the City of New York 105 (1926), quoted in Fitzgerald, 457 U.S. at 763 n.6 (Burger, C.J., concurring).

FN7 For example. the panel majority declared that Article II "did not create a monarchy" and that the President is "cloaked with none of the attributes of sovereign immunity." Pet.App. 6.

FN8 Specifically, a lawsuit against an activeduty service member is to be stayed unless it can be shown that the defendant's "ability . . . to conduct his defense is not materially affected by reason of his military service." 50 U.S.C. app. Section 521 (1988).

FN9 Indeed, a bankruptcy judge's discretion has been held sufficient to authorize a stay of thirdparty litigation in other courts that conceivably could have an effect on the bankruptcy estate, even if the debtor is not a party to the litigation and the automatic stay is not triggered. See 11 U.S.C. Section 105 (1994); 2 Collier On Bankruptcy at 105.02 (Lawrence P. King ed., 15th ed. 1994), and cases cited therein.

FN10 See, e.g., Koester v. American Republic Invs., 11 F.3d 818, 823 (8th Cir. 1993); Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084 (5th Cir. 1979); United States v. Mellon Bank N.A., 545 F.2d 869 (3d Cir. 1976).

FN11 Some courts recognize that exceptions may exist in cases in which a stay is "tantamount to a dismissal" because it "effectively ends the litigation." See, e.g., Boushel v. Toro Co., 985 F.2d 406, 408 (8th Cir. I993); Cheyney State College Faculty v. Hufstedler, 703 F.2d 732, 735 (3d Cir. 1983). Even assuming that this exception should be allowed, it is not applicable here, where the district court's order clearly contemplated further proceedings in federal court. See Boushel, 985 F.2d at 408-09.

FN12 Heretofore, there have been no private civil damages suits initiated or actively litigated while the defendant was serving as President. While there are recorded private civil suits against Theodore Roosevelt, Harry Truman and John F. Kennedy, all were underway before the defendant assumed office. The first two were dismissed by the time the defendant became President; after each took office, the dismissal was confirmed on appeal. See New York ex red Harley v. Roosevelt, 179 N.Y. 544 (1904); DeVault v. Truman, 194 S.W.2d 29 (Mo. 1946). The Kennedy case was filed while he was a candidate, and was settled after President Kennedy's inauguration, without any discovery against the Chief Executive. See, Bailey v. Kennedy, No. 757200, and Hills v. Kennedy, No. 757201 (Los Angeles County Superior Court, both filed Oct. 27, 1960).

-----
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.
http://www.lectlaw.com

Google+