- 208 -
Further, relying on cases such as Jones v. Aero/Chem Corp., 921
F.2d 875, 878-879 (9th Cir. 1990), Drobny v. Commissioner, 113
F.3d 670, 678 (7th Cir. 1997), and England v. Doyle, 281 F.2d
304, 309 (9th Cir. 1960), respondent maintains that the proper
standard of proof is clear and convincing evidence irrespective
of whether the theory of relief is structural defect, reversible
error, fraud on the Court, or attorney misconduct under rule
60(b)(3) of the Federal Rules of Civil Procedure.
Relying on virtually the same authorities, petitioners
counter that respondent should bear the burden of proof and that
the standard of proof is clear and convincing evidence.
Petitioners reason that respondent should bear the burden of
proof insofar as it was respondent who moved for an evidentiary
hearing before the appeal of the test cases and again after the
Court of Appeals remanded the test cases to the Court for an
evidentiary hearing on the significance of the misconduct of
respondent's attorneys.
We note that the decisions entered by the Court in the test
cases have not become final. Timely appeals were taken and the
test cases are before the Court pursuant to the mandate of the
Court of Appeals, which vacated the decisions for further
proceedings.
We disagree with petitioners' contention that respondent
should bear the burden of proof on the technical ground that
respondent is the moving party. Nonetheless, the unusual aspects
of these cases persuade us that it would be inappropriate to
Page: Previous 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 NextLast modified: May 25, 2011