Microsoft asks high court's deferral

Software giant wants appeals court to act first, berates judge

Antitrust case

July 27, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - Microsoft Corp., arguing that the antitrust case against it is too complex for the Supreme Court to handle now, urged the justices yesterday to let an appeals court filter it first.

"Full and fair consideration" of all the issues in the case, it said, "would impose an extraordinary burden" on the Supreme Court. The appeals court, the company said, should be allowed to "clear out the procedural and factual underbrush first." If any issues were left then, the case could go back to the highest court, it suggested.

If the justices do step in at this stage, the software giant said, they should wipe out a federal judge's "radical and unwarranted" order to break up the company into two new, independent firms and erase his conclusion that Microsoft violated antitrust law.

The appeal also loosed a scalding attack on the judge, U.S. District Judge Thomas Penfield Jackson, suggesting that he should be removed from the case if it is ever sent back to him for further proceedings.

It complained about a series of press interviews the judge gave during the trial and after it was over. Jackson's "blunt comments to the press," Microsoft said, raise serious questions about whether he is impartial and show "a misguided belief" that the Justice Department and 19 states that brought the antitrust charges were entitled to any remedy they wanted, "no matter how extreme."

The department and the states have asked the high court to hear Microsoft's appeal promptly, thus bypassing the U.S. Circuit Court of Appeals in Washington. Microsoft, already successful with an earlier appeal to that court, prefers that the case go there first.

Jackson sent the case directly to the Supreme Court, under a law that permits that procedure in antitrust cases filed by the Justice Department. The court, however, has discretion to review the case itself, or shift it back to the appeals court.

Microsoft devoted nearly all of its appeal papers yesterday to its arguments against Supreme Court review now. It mentioned only in passing a list of eight legal issues its appeal said are raised by the case.

It complained bitterly about the way Jackson tried the case, saying "the proceedings went badly awry from the outset."

It accused the judge of short-circuiting Microsoft's legal right to defend itself, of allowing the Justice Department and the states to expand their case unduly, and of approving remedies for the antitrust violations that went far beyond anything covered by evidence in the case.

On June 7, Jackson ordered Microsoft carved into two competing firms, one with the company's Windows operating system, the other with its Internet Explorer browser and all other company products.

He also ordered a long list of tight restrictions on Microsoft's corporate behavior.

When the judge sent the case on to the Supreme Court, however, he delayed all parts of his order during the appeal.

Microsoft told the justices that, if they stepped into the case at this point, they would face "the onerous task of sifting through a large and complex record" and sorting out a host of legal issues.

Ticking off what it said were 19 legal errors Jackson made in the case, the company argued: "The sheer number of issues raised makes these cases unsuitable" for the highest court, which it said is accustomed to deciding a narrower range of legal questions in the cases it hears.

Denouncing the judge's remedy orders as severe, the company said the case could have "long-term effects on consumers and this nation's economy," and thus it would be preferable to take the time necessary for "comprehensive and careful review" of Jackson's rulings.

The Justice Department declined to comment on Microsoft's filing, but Connecticut Attorney General Richard Blumenthal said Jackson had narrowed the case to "a very small, manageable number of issues that are of exactly the national importance and urgency that dictate Supreme Court review."

The department and the states are to file their replies to Microsoft's appeal Aug. 15, and Microsoft will have a final chance to rebut the government's views by Aug. 22. The case could be ready for the justices' initial action on it by early September.

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