New Appellate Chair at Jones Day, First Woman

Credit: JonesDay.com

Beth Heifetz is the new chair of the Supreme Court and appellate group at Jones Day, known formally as “Issues & Appeals.” She succeeded Glen Nager as of 2014.

Heifetz is the first woman to lead Issues & Appeals, a group of more than seventy-five attorneys in twelve offices throughout the country.

Her career path to chairing a flagship group at a major law firm has been both traditional and non-traditional.

Heifetz is a longtime member of the Issues & Appeals group and a former Supreme Court clerk, working for Justice Harry Blackmun during the 1985 term.

“I learned law, and I learned baseball,” Heifetz said, in an interview Monday.

She and her co-clerks had breakfast with the justice every day during the week, and he would share details about players and statistics.

Blackmun and Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit, for whom she also clerked, served as mentors and role models as her career progressed.

The part that is unexpected (and encouraging) in Heifetz’s career trajectory is that she stepped away from practice for five years, while raising young children. She also later worked part-time.

Heifetz attributes her success in returning to practice and now leading a nationwide appellate group to support from both her family and Jones Day. “Everyone was committed to making it work,” she observed.

Recently, Heifetz made news as the partner in charge of judicial clerk recruiting. In the last two hiring cycles, under her leadership, twelve Supreme Court clerks joined the firm, a jaw-dropping total.

Heifetz is excited about the new hires, “great young attorneys,” as she put it, and the future of the Issues & Appeals group.

“We’ve got a good formula,” Heifetz explained.

Jones Day is always a presence at the Supreme Court. This term alone, the firm has four arguments by four different attorneys. The variety of advocates is a Jones Day trademark, term after term.

Heifetz is currently working on the high-profile Detroit bankruptcy at the Sixth Circuit and in related proceedings, with other Issues & Appeals attorneys. She and Detroit’s Emergency Manager Kevyn Orr, formerly of Jones Day, worked together at the firm on bankruptcy matters. Now, both find themselves with roles in the supersized Detroit bankruptcy.

Heifetz also intends to continue her community involvement. In 2013, President Obama appointed her to the governing body of the U.S. Holocaust Memorial Museum. She works with the museum on its collections: obtaining and preserving evidence of the Holocaust and ensuring that it is accessible to researchers.

Nager, who led Issues & Appeals for fifteen years, maintains an active appellate practice at Jones Day. Just last week, the Supreme Court granted a petition for certiorari that Nager filed in North Carolina Board of Dental Examiners v. FTC. He also recently completed two years as president of the U.S. Golf Association.

Kagan: 'Too Soon' for a Bobblehead

This article first appeared in the February 12, 2014, issue of the National Law Journal’s Supreme Court Brief.

*Photo credits below

Speaking to an audience in Washington, D.C., Justice Elena Kagan recently reflected on her future legacy—and a possible Kagan bobblehead.

The occasion was a February 5 luncheon where Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit was honored with the J. Reuben Clark Law Society’s Rex Lee Advocacy Award.

During a question and answer period, I asked Kagan how she would like to be remembered and, on a related, but more whimsical note, what she would like on her future bobblehead. The popular figures of Supreme Court justices, distributed by the Green Bag law journal, feature visual references to justices’ important opinions.

“I don’t have ambitions to lay down some marker in a particular field of law,” Kagan replied. There is no: “I want to be a great First Amendment person,” or “I want to have a legacy in Fourth Amendment” for her. “I am taking the cases one by one” and trying “to decide [them] as well and honestly as I can.”

Kagan wants her opinions to be clear, persuasive, and “not awful to read.”

And about her bobblehead?

“Too soon, too soon, too soon,” the justice indicated. “I hope that none of the things that I have written [so far] will make the cut” because there has not been “anything significant enough.”

Responding to another question, Kagan recalled a conversation with Srinivasan and former Solicitor General Paul Clement about different argument styles. The three were on a plane, traveling back from the Sixth Circuit.

“I forget whether it was Paul or Sri who said some people heat up a room, and some people cool down a room,” Kagan offered, noting that superb advocates fit in both categories.

Srinivasan is on the cool side, Kagan observed, “incredibly forceful and persuasive” in giving justices the unadorned “scoop.” Clement uses his own effective approach, she pointed out, bringing “electricity” to the podium.

It “is really important for young lawyers to remember when they start developing their own advocacy style, that you can be great in a lot of different ways,” Kagan explained.

Accepting the Rex Lee award, Srinivasan joked that he has gone from being “an appellate advocate wanna be” as a new law graduate to “already an appellate has been with my most recent appointment.”

Srinivasan joined the D.C. Circuit in May 2013, after a distinguished career as an appellate advocate. At the time of his confirmation, Srinivasan was the Principal Deputy Solicitor General, the number two position in the office, once held by Chief Justice John Roberts. The Senate confirmed Srinivasan to the D.C. Circuit by a remarkable 97-0 vote, and he is often mentioned as a potential Supreme Court nominee.

Srinivasan praised the thirteen prior Rex Lee award recipients, who include several past solicitors general and other appellate luminaries, as “the best of the best” and expressed gratitude that he had worked with eleven of them.

Judge Thomas Griffith, Srinivasan’s D.C. Circuit colleague, introduced Kagan at the luncheon. Srinivasan thanked Griffith for giving him a warm welcome to the court and for his example as a judge.

The annual Rex Lee award is named for the late solicitor general who served in the Reagan administration. His son, Senator Mike Lee (R-UT), was at the luncheon.

Solicitor General Donald Verrilli, Walter Dellinger, Maureen Mahoney, and other well-known appellate attorneys also attended.

James Rasband, dean of the J. Reuben Clark Law School at Brigham Young University, introduced Srinivasan and presented the award.

The J. Reuben Clark Law Society is associated with BYU’s law school and its sponsor, the Church of Jesus Christ of Latter-day Saints. Rex Lee served as president of BYU and as its founding law school dean.

*Photo credits: Nicholas Jepsen for the J. Reuben Clark Law Society
1-Justice Elena Kagan during Q&A
2-Judge Sri Srinivasan and Dean James Rasband, BYU Law School, with the Rex Lee Advocacy Award
Hyatt Regency Washington on Capitol Hill

Argument Audio: The Four Holdout Circuits

Most federal appellate decisions are final, and arguments are an important part of that process. See "Before Supreme Court TV, How About This?" More and more, courts are opening these public proceedings to the public, via the Internet.

On Wednesday, Appellate Daily was able to announce that the D.C. Circuit will post argument audio online, starting in September. The D.C. Circuit joins the U.S. Supreme Court and eight federal appellate courts that post audio online.

That leaves only four holdout circuits.

The Second, Sixth, and Eleventh Circuits offer audio CDs for purchase. The Tenth Circuit requires a motion to obtain audio; if granted, a copy is emailed. In a phone call this week, the Tenth Circuit clerk's office said those motions are routinely granted.

A few notes on the future:

*The Tenth Circuit seems close to posting online. It already offers free e-audio, just not on its website. It's like the moment when a child is deciding whether to approach or back away from an unfamiliar animal. The Tenth Circuit is curious, but wants to make sure this animal doesn't bite. I think the court will find it doesn't and make the change.

*Perhaps a year ago, I phoned the Second Circuit to inquire about the status of its audio policy. At the time, the clerk's office said that the idea of online access had been floated, but that the court was in the process of a renovation. Once that work was done, the clerk's office said, the court would be in a better position to take up the question. With the renovation now complete, will the Second Circuit increase access?

*The Eleventh Circuit has already made significant progress. Its previous policy was even worse than the D.C. Circuit's: no public access (even for parties and even for closed cases). In 2010, I wrote letters to several circuits, asking for online access to argument audio. Eleventh Circuit Chief Judge Joel Dubina kindly responded that the court would consider the idea, though it did not make immediate change. In 2012, the Eleventh Circuit began offering audio CDs for purchase. With the big leap to public audio already made, perhaps the court will be open to posting online, now just an incremental change? [fn1]

*Posting online would save court staff time in these four circuits. Staff in "CD" circuits would not have to produce CD copies and mail them. The Tenth Circuit could avoid reviewing motions and sending emails. All four circuits could field fewer calls and process fewer forms. Interested parties could just point and click online.

Stay tuned.
____
1) The Fourth Circuit also kindly responded to the 2010 letter and took action within months to put audio on the Internet. As with all courts, the Fourth Circuit undoubtedly had been thinking about changes, independent of outside voices. But it is heartening that the courts do consider citizen viewpoints.

Hypothesis About D.C. Circuit Vacancies

I have a hypothesis (not tested by research yet) that one of the reasons the D.C. Circuit vacancies have ballooned to four, and three of them have dragged on for years, is that D.C. does not have voting Senators.

Other circuits have Senators for the states within them. Voters and others can question those Senators about what they are doing to move the process along. The Federal Circuit is also Senator-less. But its nominees face less opposition, since it is a specialized court and not typically viewed as a farm team for the Supreme Court, as the D.C. Circuit is.

D.C. Circuit Will Post Audio to the Internet

Chief Judge Merrick B. Garland kindly responded today to my letter of yesterday.

The D.C. Circuit has voted unanimously to begin posting audio to its website. The court actually voted last week to make the change, so I can't take any credit. But I do get to announce it!

Here are some of the details:

     *The new policy goes into effect on September 9, the start of the D.C. Circuit's 2013-2014 Term.

     *Audio will be available by 3:00pm on the same day as the oral argument, on the D.C. Circuit website.

     *An archive going back to the 2007-2008 Term will also be available.

This is a great development for public access to one of the nation's most important courts.

Letter to D.C. Circuit Re: Audio Access Policy

This letter was sent today to Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

Dear Chief Judge Garland:

After reading the D.C. Circuit’s new media policy, which welcomes media coverage of cases to inform the public, I am writing to ask for your consideration of a related matter: access to argument audio.  My interest is as a lawyer, freelance journalist, and citizen.

The U.S. Supreme Court and eight federal appellate circuits make argument audio available in pending cases, via their websites, free of charge.  Five circuits, including the D.C. Circuit, do not.

Of those five circuits, the D.C. Circuit’s policy is the most restrictive, granting no public access until a case is closed.  The Second, Sixth, and Eleventh Circuits make audio available in pending cases, via CD purchase.  The Tenth Circuit requires a motion to obtain audio; if granted, a copy is emailed.  Per a call to the Tenth Circuit clerk’s office this morning, those motions are routinely granted.

The D.C. Circuit hears cases that affect citizens throughout the country; as a current example, the recess-appointments matter.  Members of the media who do not happen to be in D.C. are not able to listen to and report on D.C. Circuit arguments.  There are also interested members of the public and the legal community in other parts of the country who would like to listen to and inform themselves directly of these crucial, public proceedings, but are unable to do so.  The courtroom cannot always accommodate all interested persons in D.C., either.

This gap of public access is particularly notable since the Supreme Court, famously cautious on access, has been posting its audio to the web since 2010.  The nearby Federal and Fourth Circuits both post audio to the web.

It would be a meaningful step forward for public information, if the D.C. Circuit would review its current policy and join the Supreme Court and most of its sister circuits in offering free access to argument audio online.

Thank you for your consideration.

D.C. Circuit Presentation: Deleted Scenes

The only problem with covering a recent panel presentation by three judges from the U.S. Court of Appeals for the D.C. Circuit was narrowing down the material. The original report, which told what the judges had to say about the sequester and the recess appointments case, ran at Above the Law, linked here.

Below are some "deleted scenes" from the excellent presentation by Chief Judge Merrick Garland, Judge Thomas Griffith, and Senior Judge Laurence Silberman, as part of the J. Reuben Clark Law Society's annual conference held last week at Georgetown Law.

*Silberman sees the decline in law school applications as a "healthy shakeout." There are too many good people going into law, he said.

*Griffith's advice for life is to "be nice," because it is the right thing to do. If you do not care about doing the right thing and just want to get ahead, his advice is the same. You never know when your paths will cross with someone again.

*Garland fielded a question about work-life balance. He does not want to hold himself up as an example; he works very hard. But one thing he did do when his kids were growing up was drive them to school. They always had that half hour together at the beginning of the day. Sometimes it was just "a bunch of sarcasm" or listening to the radio. But other times, his kids would tell him what they were "thinking and worrying about," and he values those times.

*When Garland was giving the last comment, he explained, "I don't leave at five and come in at ten....It's not my way." Silberman, the senior judge on the panel, jumped in with, "It's my way."

*Garland likes to do his own writing. "Don't feel 'dissed' if I don't use your language," he tells his clerks, "in the current vernacular."

*Silberman seemed to commit a cardinal sin of the D.C. Circuit and fall into his own personal pet peeve. Acronyms are disfavored at the circuit, and court rules require an acronym glossary in briefs.

When Silberman mentioned FERC during the presentation, Garland spelled out "Federal Energy Regulatory Commission" and added, with a hint of tongue in cheek, "We don't like acronyms in our court." (In Silberman's defense, FERC is one of the acronyms approved in the D.C. Circuit's practice handbook.)

*Griffith quoted James McPherson, who wrote that Abraham Lincoln "was not a quick study but a thorough one." You do not need to be the most brilliant person, Griffith posited, if you are thorough.

*Silberman remarked that with administrative decisions, one person should make the calls. From his law firm days, he remembers an extended debate over which floor the library would be on.

Guest Post at Above the Law

I have a guest post at Above the Law today: New D.C. Circuit Chief Judge Dreading the Sequester. It is based on a great panel discussion I attended Saturday at Georgetown Law, as part of the J. Reuben Clark Law Society's annual conference.

Circuit Split Watch: Miranda at Booking

This article first appeared in the July 2, 2012, issue of the National Law Journal’s Supreme Court Insider.

Under an exception to the Miranda rule, police can ask routine booking questions, such as a suspect’s name and address, without giving a warning. But what about booking questions that have the potential to reveal more?

A pending petition for certiorari, filed by the University of Virginia School of Law’s Supreme Court Litigation Clinic, details a split in the federal appellate courts about the routine booking exception. The Supreme Court has already expressed interest in the case.

The key facts begin with Cecil Alford already under arrest and in the back seat of a police cruiser, incident to an earlier discussion and chase with police. One of the officers noticed that Alford was “kind of squirming” in the back seat. At their destination, police searched the vehicle and found a clear plastic bag with pills and a computer thumb drive under the back seat. The pills were later determined to contain ecstasy.

During the booking process and without a Miranda warning, police asked Alford if the thumb drive, found just under the bag of drugs, was his. Alford said yes, and the drive was stored with Alford’s personal property.

At trial, over Alford’s objection, prosecutors used his admission about the thumb drive to link him to the ecstasy. He was convicted of drug possession by a Texas jury and sentenced to five years in prison.

The Texas Court of Criminal Appeals, the state’s high court for criminal cases, rejected a Miranda challenge by Alford. The police inquiry about the thumb drive, the court held, was permissible as a booking question related to inmate property storage.

Alford filed a petition for certiorari with the Supreme Court, writing that the federal appellate courts “are deeply conflicted in their understanding and interpretation of the routine booking question exception to Miranda.”

The petition describes three approaches, with Texas in the minority.

Five federal appellate courts use a “should have known” standard, meaning that when an officer should have known that a booking question was likely to elicit incriminating information, he must give a Miranda warning.

Four federal appellate courts use an “intent” test; in other words, the officer must intend his questions to yield incriminating information to trigger a Miranda duty.

The D.C. Circuit and the Texas high court follow the “legitimate administrative function” test, which is that if the booking inquiry “is reasonably related to the police’s administrative concerns,” a Miranda warning is not required.

The petition also points to the same three-way split among many state high courts.

Texas waived its right to respond to Alford’s petition. However, the Supreme Court requested a response, due July 12. While a response request does not guarantee that the Court will hear the case, it does show that the petition has the Court’s attention.

Five faculty members from the University of Virginia’s clinic, all former Supreme Court clerks, are on Alford’s petition, including professors Daniel Ortiz and James Ryan.

The counsel of record is David Goldberg, an adjunct faculty member who works at Donahue & Goldberg, a two-man appellate boutique firm. Adjunct faculty John Elwood of Vinson & Elkins and Mark Stancil of Robbins, Russell, Englert, Orseck, Untereiner & Sauber are also on the petition, along with Don Davidson, a solo practitioner who was Alford’s counsel below.

UVA Clinic students take the lead in finding cases, collectively reviewing all federal appellate and state high court decisions. Professor Ortiz confirmed that a student identified Alford from reading Texas cases.

Circuit Split Watch: Graphic Tobacco Warnings

This article first appeared in the April 2, 2012, issue of the National Law Journal’s Supreme Court Insider.

The Family Smoking Prevention and Tobacco Control Act requires that color images, along with written warnings, cover the top half of all cigarette packs, front and back, and 20 percent of advertising. Among the images are diseased lungs, a cadaver with a stapled chest, and a smoker breathing through a hole in his throat.

Tobacco companies have challenged these graphic warnings in federal court, yielding, in recent weeks, split results that could lead to U.S. Supreme Court review.

Although the images are grim, the reality is grim, too, supporters argue.

The Act reports that use of tobacco “is the foremost preventable cause of premature death in America. It causes over 400,000 deaths in the United States each year, and approximately 8,600,000 Americans have chronic illnesses related to smoking.”

In a video posted on YouTube, “New Cigarette Health Warnings: Protecting Public Health,” Health and Human Services Secretary Kathleen Sebelius declares that the graphic images “tell the truth” about the negative health effects of smoking more effectively than words alone. Put another way, a picture is worth a thousand words.

But, do these graphic pictures go too far? Judge Richard Leon of the U.S. District Court for the District of Columbia thinks so. Granting summary judgment to the tobacco companies on February 29 in R.J. Reynolds Tobacco Co. v. FDA, Judge Leon said that the images violate the companies’ First Amendment rights by forcing them to be “the Government’s mouthpiece.” To salvage the warnings, which it views as constitutional, the FDA appealed. Oral argument is set for April 10 at the U.S. Court of Appeals for the D.C. Circuit.

On March 19, the U.S. Court of Appeals for the Sixth Circuit came to a different conclusion, by a 2-1 vote in Discount Tobacco City & Lottery, Inc. v. United States. Judge Jane Stranch, writing for herself and Judge Michael Barrett of the Southern District of Ohio, sitting by designation, upheld the graphic warnings. Judge Eric Clay dissented.

The format of the Sixth Circuit decision is unusual in that there are two majority opinions, each covering various issues. The Stranch opinion contains the majority ruling on the graphic warnings. The majority looked to the words of the Act requiring color images, analyzing the case as a facial challenge, while the dissent also took the actual images, which were chosen later, into account.

Judge Stranch noted that the current textual warnings are not effectively reaching many people, such as the key youth population.

“A warning that is not noticed, read, or understood by consumers does not serve its function. The new warnings rationally address these problems by being larger and including graphics,” Stranch explained.

Judge Clay disagreed, referencing the D.C. district court decision. Clay found that the government had not demonstrated that the graphic warnings are “reasonably tailored.” Instead, they play on fear and “attempt to flagrantly manipulate the emotions of consumers.”

Responding to an email inquiry about whether the tobacco companies intend to seek rehearing en banc from the Sixth Circuit or appeal directly to the U.S. Supreme Court, one of the companies’ attorneys, Floyd Abrams of Cahill Gordon & Reindel in New York City, stated that all options are under consideration.

Even if the case is reheard en banc at the circuit level, the Supreme Court is almost certain to have the final say. Because a federal statute with nationwide economic and health implications is at stake, it is likely that the issue would garner the Court’s attention.

The graphic warnings were to have taken effect in September 2012, but that date is now uncertain due to the ongoing litigation, according to an FDA statement on its website.

Circuit Split Watch: Foreign Surveillance Goes Domestic

This article first appeared in the November 28, 2011, issue of the National Law Journal’s Supreme Court Insider.

A dispute over standing to challenge amendments to the Foreign Intelligence Surveillance Act could soon make its way to the U.S. Supreme Court.

Earlier this year, the U.S. Court of Appeals for the 2nd Circuit held that Amnesty International, attorneys, and other plaintiffs, who communicate with foreign contacts they believe are likely surveillance targets, have standing to challenge the amendments.

The 2nd Circuit denied rehearing en banc in September by a 6-6 vote, dividing mostly along party lines and prompting four dissenting opinions. Judge Reena Raggi, in the principal dissent, lamented that the decision had created an “unnecessary circuit split” in the federal appellate courts and she asked the Supreme Court to step in.

Amnesty International USA v. Clapper is a facial challenge to a 2008 Act amending the FISA, brought by the ACLU on behalf of various plaintiffs.

The amendments, which loosened oversight of foreign surveillance, arose in part due to 9/11, and the fact that U.S. intelligence was not able to prevent the attacks. Americans cannot be surveillance targets under the amendments, but their electronic communication with foreign targets can be intercepted more easily now.

The ACLU maintains that the amendments go too far, permitting “dragnet surveillance of Americans’ international telephone calls and e-mails en masse, without a warrant, without suspicion of any kind, and with only very limited judicial oversight.”

A federal district judge in New York dismissed the challenge for lack of standing, but a three-judge 2nd Circuit panel revived the suit, finding that the plaintiffs had alleged concrete injuries and other elements required for standing.

Six judges (four nominated by President Obama and two by President Clinton) voted to deny rehearing en banc. Another six judges (all nominees of Republican presidents, except Jose Cabranes) dissented from the denial. Because of the tie, the original panel opinion stood.

Gerard Lynch, the only judge to explain his vote to deny rehearing in an opinion, also wrote the original panel opinion, joined by two senior judges who were ineligible to vote on whether to grant rehearing.

Judge Reena Raggi, writing for all but one of the dissenters, noted that other circuits have denied standing to plaintiffs in comparable surveillance cases, including the 6th and 9th Circuits in 2007, as well as the D.C. Circuit in 1984.

The D.C. Circuit opinion, authored by then-Judge Antonin Scalia, held that even if the plaintiffs in that case were “at greater risk than the public at large” of being monitored “that would still fall far short of the ‘genuine threat’ required” for standing. Risk of surveillance is “hypothetical, conjectural, or speculative,” and “not sufficient” for standing, in the 6th and 9th Circuits, respectively.

Judge Lynch agreed with Judge Raggi that there is “some tension” in the circuits. However, the sister circuit cases are distinguishable, he said, because they deal with different programs. Also, the 2nd Circuit plaintiffs’ risk of being monitored is not hypothetical. Their foreign contacts, including Guantanamo detainees and their families, are likely surveillance targets. In addition, the 2nd Circuit plaintiffs have alleged concrete financial injuries, Judge Lynch found, including travel costs incurred to communicate with foreign contacts in person.

As to the last point, Judge Raggi dismissed such costs as “self-inflicted.” If recognized, “every mobster’s girlfriend who pays for a cab to meet with him in person rather than converse by telephone would . . . have standing,” she stated.

Whether asserted costs of Amnesty International, attorneys, and the other plaintiffs will hold sway at the Supreme Court remains to be seen.

Along with the circuit split, another factor weighing in favor of Supreme Court review of the 2nd Circuit decision is that the plaintiffs are seeking to invalidate a federal statute. Also, the case has important national security and constitutional implications.

The government is deciding whether to file a petition for certiorari, currently due December 20, according to a recent district court filing.

D.C. Circuit: Belated Observation about the Health Care Argument

Writing about the Eleventh Circuit and oral argument audio earlier today reminded me of an observation I had related to the D.C. Circuit's health care oral argument back in September.

The D.C. Circuit allows public access to audio only after a case is closed, meaning after all appeals, remands, etc., are completed. Only the Eleventh Circuit's to-be-changed policy, discussed earlier today, is more restrictive (no public access). The D.C. Circuit has shown interest in improving its electronic offerings, including possible audio access, but so far, the strict audio policy remains.

Unlike the Eleventh Circuit, the D.C. Circuit did not make an exception to allow public access to audio from its health care argument. The fact that only those in the courtroom could hear the argument may be one reason why it was "under-reported" or got "very little press attention," as prominent blogs wrote at the time.

Circuit Split Watch: The Legislative Privilege

This article first appeared in the August 17, 2011, issue of the National Law Journal's Supreme Court Insider.

The U.S. Constitution protects members of Congress from interference in their work by the other branches of government. The scope of this privilege, which aims to ensure legislative independence without enabling misconduct, has recently split two federal appellate circuits and will likely reach the Supreme Court soon as a petition for certiorari.

Under Article I, Section 6 of the Constitution, legislators cannot be questioned about their “Speech or Debate in either House.” The Supreme Court has held that this privilege, which comes from English law predating the Constitution, also covers legislative business more generally. However, the legislative privilege is not unlimited.

On August 1, the U.S. Court of Appeals for the 9th Circuit denied a petition for rehearing en banc in United States v. Renzi. The original panel rejected a legislative privilege claim by former U.S. Rep. Richard Renzi (R-AZ), accused of promising favorable legislation in exchange for a land purchase benefiting him. Prior to bringing charges, federal investigators interviewed Renzi’s aides and reviewed documents from them. Investigators also searched the office of an insurance company Renzi owned, pursuant to a warrant.

In ruling against Renzi, the 9th Circuit expressly disagreed with a 2007 D.C. Circuit decision, United States v. Rayburn House Office Building. Rayburn, which the Supreme Court declined to review at the time, upheld the legislative privilege of then-sitting U.S. Rep. William Jefferson (D-LA).

As part of a criminal investigation, the FBI obtained a warrant and searched Jefferson’s congressional office. For 18 hours, more than a dozen agents reviewed every paper in the office and seized records, as well. Finding the legislative privilege violated, the D.C. Circuit ordered the government to return privileged materials taken in the search, with the district court making privilege determinations. The D.C. Circuit noted that it was the first time in history that the Executive branch had searched the office of a sitting member of Congress. A search of Jefferson’s home, not at issue in Rayburn, turned up a much publicized stash of cash in the freezer.

Despite Jefferson’s evidentiary win, he was tried and convicted for bribery and other crimes in federal court in Virginia. His case is on appeal in the 4th Circuit and tentatively scheduled for oral argument in October.

By ordering privileged materials returned to Jefferson, the D.C. Circuit in Rayburn went too far, the 9th Circuit found. The panel said it could not join the D.C. Circuit in sanctioning a “grandiose, yet apparently shy, privilege of non-disclosure” not recognized by the Supreme Court. Instead of forbidding investigators from reviewing documents that have some legislative references, any privileged portions could simply be redacted before use at trial, the 9th Circuit explained, citing Supreme Court case law.

This circuit split on an issue of nationwide importance, namely the integrity and independence of Congress, has Supreme Court watchers’ attention. Professor Jonathan Adler of Case Western Reserve University School of Law told Roll Call: “We have a circuit split—which is the most common reason for the Supreme Court to take a case—and it’s clear cut.”

Renzi’s case may present vehicle problems, though. Professor Craig Bradley of Indiana University’s Maurer School of Law stated in a telephone interview that Renzi’s alleged land-for-vote scheme was clearly not a “legislative act.” A former Rehnquist clerk, Bradley has written about the Speech or Debate Clause and seen it used in practice. In the 1970s, he worked as an attorney for DOJ’s Public Integrity Section during “Koreagate,” a bribery scandal involving South Korea and members of Congress. Bradley described Renzi’s legislative privilege claim as “weak.”

The 9th Circuit apparently agreed. Renzi lost unanimously and no circuit judge even requested a vote on rehearing. Although not essential, some pushback below can focus the issues and demonstrate to the Supreme Court the need for review.

Also potentially weighing against Renzi are the unprecedented D.C. Circuit facts: the first and only search of a congressional office by the Executive, covering literally every paper there. The Supreme Court could distinguish the 9th and D.C. Circuit cases on that basis and decline to step in.

D.C. Circuit: Increased Access to Oral Arguments?

As previously mentioned on this blog, the Supreme Court and seven federal appellate circuits post argument audio on the Internet, free of charge (links here; Appellate Daily sidebar). Six circuits, including the D.C. Circuit, do not.

Perhaps things are changing?

Today, the D.C. Circuit posted a listing on its website, requesting proposals from vendors "to redesign [the court's] entire web presence" (proposal deadline December 30, 2010).

Along with many other requirements, the chosen vendor needs to "support multiple file types for documents," as well as, wait for it, "audio, and video." The listing also states the D.C. Circuit's interest in "explor[ing] options to alert visitors using RSS feeds, [as well as] Twitter updates."

While this listing is preliminary and does not announce or commit to anything, it does show that the D.C. Circuit is looking to the future and putting itself in a position to offer more information to the public through available technologies.

Who knows? In the coming years, we might be listening to, or even watching, arguments from our computers about the detention of suspected terrorists, stem cell research, and climate change, just a few of the nationally and internationally significant issues the D.C. Circuit hears.

The Eleventh and Fourth Circuits have also indicated a willingness to consider increased access to oral arguments. Among other important issues, these two circuits almost certainly will be involved in the health care debate, deciding appeals from district court cases in Florida and Virginia.

Stay tuned.

Circuit Split Watch: GPS Surveillance

On Friday, a federal appellate court kept a circuit split alive.

As Appellate Daily previously reported, the D.C. Circuit held in August that GPS surveillance of a vehicle required a warrant, departing from the Seventh, Eighth, and Ninth Circuits. Friday's D.C. Circuit ruling denied en banc rehearing.

Dissenting from that denial, Chief Judge David Sentelle, joined by three other judges, wrote that "the panel’s decision is inconsistent not only with every other federal circuit which has considered the case, but more importantly, with controlling Supreme Court precedent set forth in United States v. Knotts, 460 U.S. 276 (1983)." Knotts upheld use of a radio transmitter placed in a vehicle without a warrant.

Earlier this year, on the other coast, the Ninth Circuit came to a different conclusion, upholding warrantless GPS surveillance and then denying en banc rehearing. Dissenting from that denial, Chief Judge Alex Kozinski, joined by four other judges, called the upheld surveillance "creepy and un-American" and a far cry from the bygone technology at issue in Knotts. 

The Ninth Circuit case is now at the Supreme Court, with a recently filed petition for certiorari. A D.C. Circuit petition is sure to follow. Given the growing Fourth Amendment implications associated with technology, coupled with the circuit split, not to mention close votes and spirited dissents within those circuits, the Supreme Court will no doubt give these petitions close attention.

It should be noted that the Supreme Court, in 2007, denied certiorari in the Seventh Circuit case (written by Judge Richard Posner). PACER records do not show a cert petition in the Eighth Circuit case.

Appellate Daily, Judges Series: Chief Judge David Sentelle and Chief Judge Alex Kozinski.