Washington Public Utilities Group v. United States District Court for the Western District of Washington

843 F.2d 319, 1987 U.S. App. LEXIS 17800
Court of Appeals for the Ninth Circuit·Decided December 2, 1987·No. Nos. 87-7236, 87-7336 and 87-7355·Published·Cited by 29 cases

Opinion

OPINION*

ALARCON, Circuit Judge:

Petitioners in this consolidated petition for a writ of mandamus ask us to compel the district court to vacate its order changing the venue of this action from the United States District Court for the Western District of Washington to the District of Arizona (Tucson). We deny the requested relief because petitioners have failed to demonstrate (1) that the district court

clearly and indisputably abused its discretion in determining that a change of venue was required because of pervasive, prejudicial publicity and the financial interest of most potential jurors in the outcome of the litigation, and (2) that the district court’s interpretation of the applicable legal authority was clearly erroneous as a matter of law.

I

Procedural Posture

The Washington Public Power Supply System (WPPSS) undertook to construct five nuclear-powered electricity generating plants. Bonds were issued to provide the funds to construct these plants. WPPSS terminated construction of two of the five plants and defaulted on the bonds sold to finance their construction.

Because of the default, Chemical Bank, as bond fund trustee, filed an action in the Western District of Washington alleging violations of state and federal securities laws. Similar actions were filed by or on behalf of bond holders in the Western District of Washington and the Southern District of New York. The defendants include WPPSS, Northwest Utilities, the financial advisor to WPPSS, the consulting and construction engineers for the projects, the law firms who were bond and special counsel to WPPSS in connection with the bond issues, the underwriters of the bonds, two bond rating agencies and the Bonneville Power Administration, an agency of the United States. On August 5, 1983, the Judicial Panel on Multidistrict Litigation transferred all cases involving securities law violations to the Western District of Washington for coordinated or consolidated pretrial proceedings with the actions pending there. Because of the recusal of each of the district judges of the Western District of Washington, Judge Richard M. Bil-by of the District of Arizona was designated to preside over the trial of these matters.

[322] On May 11,1984 defendant Underwriters filed a motion for a change of venue pursuant to 28 U.S.C. § 1404(a) (1982). The Underwriters contended that it would not be possible to receive a fair jury trial in the State of Washington because of pervasive, prejudicial publicity. All of the plaintiffs and all defendants residing outside the Pacific Northwest supported the motion for a change of venue.

In support of their motion to change venue, the Underwriters presented numerous newspaper articles, editorial cartoons, and transcripts of television programs addressing the bond default by WPPSS. In addition, they presented an affidavit by Shandra Tietze, compiling and calculating statistical evidence of the number of ratepayers in the Western District of Washington and the cost of a judgment to those ratepayers, an affidavit by William C. Erx-leben, analyzing the public perceptions and the economic impact of WPPSS’s default, with a report on the subject attached, and two affidavits by Donald E. Vinson, containing a statistical survey designed to measure public opinion and attitudes towards parties and issues in the case, along with an analysis of the survey results, and analyzing and disagreeing with the results of a survey by Peter W. Sperlich.

Those opposed to the motion for a change of venue presented a survey by Peter W. Sperlich of 600 persons within the Western District of Washington who were asked questions designed to elicit information that would reflect their ability to be fair and impartial if called as jurors at the WPPSS trial. They also submitted several affidavits. Two were submitted by Sper-lich, analyzing the results of his survey and analyzing and disagreeing with the results of the Vinson survey. Another was submitted by William B. Beyers, analyzing and disagreeing with the Erxleben report.

The Underwriters requested that the matter be transferred to the Southern District of New York or the Northern District of Texas (Dallas Division). Many of the parties filed memoranda with the court suggesting other sites for the trial of this matter in the event that the court ordered a transfer.1

After hearing arguments on the merits of the motion, Judge Bilby ordered a change of venue.

In January 1985, Judge Bilby recused himself upon learning that his father owned bonds issued to finance other WPPSS projects. Judge William D. Browning of the District of Arizona was designated to replace Judge Bilby and to preside over the trial. On May 16, 1985, Judge Browning vacated all of Judge Bil-by’s orders and told the parties that he would make an independent review of the record concerning any motion they wished to resubmit. The motion to change venue was resubmitted.

On December 13, 1985, Judge Browning announced his intended ruling on the motion for a change of venue. Judge Browning orally advised counsel as follows:

With regard to the venue motion, Miss Vana has sent me the material that Judge Bilby had before him on that motion. I reviewed all the materials necessary to adopt his ruling as my own and to enter a conditional order to advise you I will enter an order changing the venue in this matter from the Pacific Northwest, subject to the right of any party who believes there are intervening fact questions affecting that decision, and any intervening, controlling or highly persuasive legal theory. I say highly persuasive because I think the question is virtually discretionary. This can be submitted by briefs to the court by proponents of reestablishing venue in the Northwest by January 31st, 1986, responses by February 15th and replies by February 28th.
If oral argument is requested by any party, and the court feels it’s necessary to reexamine that ruling and my conditional ruling today, we’ll set it for oral argument.

[323] On February 10, 1987, Judge Browning filed an order changing venue and designating Tucson, Arizona as the trial site. Judge Browning stated that he had reviewed all materials submitted to him regarding possible choices and had visited the various sites. He also considered the convenience of witnesses and parties, the availability of jurors within a reasonable proximity, the availability of adequate short term and long term housing, the availability of restaurants, service industries and air travel, the requirements of counsel for adequate office space, library resources, legal support services and computer services, and the needs and convenience of the court. Judge Browning also considered local attitudes towards nuclear power and utility rates and found that they did not militate against Tucson as a forum. Finally, Judge Browning stated that no site would be convenient to all parties but that Tucson would present the minimum of inconvenience and allow for a fair trial.

II

Issues Presented for Mandamus Review

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Washington Public Utilities Group v. United States District Court for the Western District of Washington, 843 F.2d 319, 1987 U.S. App. LEXIS 17800 (9th Cir. 1987).

843 F.2d 319 (Washington Public Utilities Group v. United States District Court for the Western District of Washington) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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