Follow-Up re Letter to Chief Judge Briscoe About Argument Audio

The Tenth Circuit announced today that it will bypass normal procedure and post audio online from the historic argument on Utah's same-sex marriage ban, to be held April 10 in Denver. Presumably, the same will be allowed for the April 17 argument on the Oklahoma ban.

As noted in my recent letter to Chief Judge Briscoe requesting that change, persons wanting to hear argument audio must, under court rules, file a motion (stating reasons).

Thank you to Chief Judge Briscoe and the entire Tenth Circuit for opening the proceedings to all interested persons, including the public, as well as national and international press.

My guess is that the Tenth Circuit cases have the best shot of getting Supreme Court review because they present the clearest "case or controversy." Unlike other states, Utah and Oklahoma are defending their laws with no mixed messages from high state officials.

Tenth Circuit Same-Sex Marriage Arguments: Letter Requesting Online Audio

This letter was sent to Chief Judge Mary Beck Briscoe of the U.S. Court of Appeals for the Tenth Circuit.

February 22, 2014

Dear Chief Judge Briscoe:

This letter is a request for the Tenth Circuit to consider posting argument audio online, as a routine matter, and for the same-sex marriage arguments in April, specifically. My interest is as a lawyer, freelance journalist, and citizen.

The U.S. Supreme Court and ten federal appellate circuits post argument audio to their websites. Only three circuits, including the Tenth Circuit, do not. The Tenth Circuit is the only one of the three that requires a motion to be filed to obtain audio.

The April arguments about the constitutionality of same-sex marriage bans will be part of American legal history, as the country and the courts weigh this important issue. There will be national and even international interest in the arguments. The Tenth Circuit courtroom cannot accommodate that level of interest, nor can any courtroom. Since the proceedings are public, this presents a meaningful gap in public access.

Posting audio of the arguments online would help fill this gap. It would also reduce the administrative burden on Tenth Circuit judges, staff, and persons requesting audio, as motions would not need to be filed or processed.

The Supreme Court, famously cautious on access, has been posting its audio to the Internet since 2010. The Ninth Circuit recently began live streaming audio of all arguments and video of en banc arguments.

It would be greatly appreciated if the Tenth Circuit would review its current policy and join the Supreme Court and most of its sister circuits in offering access to argument audio online, particularly for the April marriage arguments.

Thank you for your consideration.

Court Hearing Utah's Same-Sex Marriage Appeal Lags in Public Access

The U.S. Supreme Court today stayed the federal district court's ruling in Kitchen, "pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit." The district court ruling had allowed same-sex marriage in Utah.

An argument in the potentially landmark case is coming to the Denver federal appeals court in the next several months.

The Tenth Circuit is one of only three holdout circuits that do not post argument audio online. The others are the Second and Eleventh Circuits, which make audio available via CD purchase. To get Tenth Circuit audio, you need to file a motion stating reasons for seeking access. If granted (which I have been told happens routinely), the court emails an mp3.

Perhaps the Tenth Circuit will make an exception with Kitchen or, perhaps, see this as an opportunity to join most of its sister circuits and post audio online.

Today, the access-leading Ninth Circuit began live streaming audio of all arguments and recently began live streaming video of all en banc arguments.

Links to audio from the ten circuits that post online and the Supreme Court are here.

Appellate Daily has done a series of posts advocating for greater public access to oral argument audio, including Before Supreme Court TV, How About This?, back in 2010. Several circuits have increased access since that time.

Sixth Circuit Posts Argument Audio Online

I noticed some argument audio on the U.S. Court of Appeals for the Sixth Circuit's website and called the Clerk's Office this morning for details.

Per that call, the Sixth Circuit began posting audio at the end of July and plans to continue, going forward. The court is still deciding how long it will keep the audio up. There was no formal announcement, the Clerk's Office said. A link was simply added to the website.

That leaves only the Second, Tenth, and Eleventh Circuits that do not make argument audio available online. A friendly hint, hint, to those courts.

Find links to the now ten federal appellate courts that post audio here.

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.
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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.

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.

Circuit Split Watch: Will the Court Bury Casket Cases?

This article first appeared in the April 23, 2013, issue of the National Law Journal’s Supreme Court Brief.

The Benedictine monks of St. Joseph Abbey in southern Louisiana make and sell wooden caskets to support their monastery. State regulators are not happy about it, though, because they say the monks need a license.

The U.S. Court of Appeals for the Fifth Circuit recently ruled for the monks, adding to a circuit split on licensing for casket sales. The U.S. Supreme Court could be asked to weigh in soon.

For more than a century, St. Joseph has been making caskets to bury its monks. In response to requests and a need for more income, the monks began offering wooden caskets for sale to the public in 2007, at below the national average cost. They come in two simple designs; one is no more than a nice wooden box with handles.

“My husband really wanted to have a simple burial. He lived life simply, and he wanted to have just a simple wooden coffin. And so, the monks were able to provide that service for us,” explains a customer in an Institute for Justice (IJ) video. IJ, a libertarian public interest law firm based in Arlington, Virginia, represents the monks.

The Louisiana State Board of Embalmers and Funeral Directors ordered St. Joseph not to sell the caskets. Under Louisiana law, only a licensed funeral home with a licensed funeral director can make such sales. Violators can be fined and even jailed.

To be licensed, funeral homes must have facilities for embalming and preparing bodies, while directors must be apprentices for a year, among other requirements.

The monks admit they are not licensed, but argue that they do not embalm or provide other funeral-related services. They just want to sell caskets.

The regulating Board has nine members, eight of whom are either funeral directors or embalmers. “The State is going after the monks because licensed funeral directors want the casket market to themselves,” Jeff Rowes, an attorney for the monks, contends in an IJ video.

St. Joseph sued the Board in federal court, alleging that the requirements for casket sales are unconstitutional.

On March 20, the monks won in the Fifth Circuit. St. Joseph Abbey v. Castille said that states can regulate business. The court “insist[s] only that Louisiana’s regulation not be irrational—the outer-most limits of due process and equal protection.” The Board “offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none.”

Granting funeral homes “an exclusive right of sale adds nothing to protect consumers and puts them at a greater risk of abuse including exploitative prices,” the Fifth Circuit held. The court also noted that Louisiana does not regulate the construction or design of caskets. In fact, a person can be buried with no casket.

IJ also represented casket sellers in challenges to similar laws in Tennessee and Oklahoma, winning in the Sixth Circuit in 2002 and losing in the Tenth Circuit in 2004. The sellers in those cases were not monks, but business people who, like the monks, wanted to sell caskets, but were not licensed.

In Powers v. Harris, the Tenth Circuit upheld Oklahoma’s casket-sale law, mainly out of deference to the legislature. The court was uncomfortable “substituting [its] view of the public good or the general welfare for that chosen by the states.” A bill to change the law had been introduced three times in the Oklahoma House, but not passed.

The Tenth Circuit found that sometimes states have legitimate reasons for preferring certain industries, for instance to attract business to the state. It is best to leave legislating to the legislators, the court concluded.

In March 2005, the Supreme Court declined to review the Tenth Circuit decision. Now, eight years later, with four new justices, it may have another chance with the monks’ Fifth Circuit win and a refreshed circuit split.

IJ attorneys assert in a recent op-ed that the issue goes beyond caskets to the broader question of how far states can go to favor certain businesses.

A petition for rehearing en banc in the Fifth Circuit was recently denied.

Circuit Split Watch: Variations on the Padilla Theme

This article first appeared in the January 10, 2012, issue of the National Law Journal’s Supreme Court Insider.

The U.S. Supreme Court will soon have the chance to revisit Padilla v. Kentucky, its 2010 decision holding—at the intersection of criminal and immigration laws—that the Sixth Amendment requires attorneys to inform their clients about the possible deportation consequences of a guilty plea.

In recent months, three federal appellate courts split 2-1 on whether Padilla applies retroactively, teeing the cases up for possible review by the Supreme Court. All three were denied rehearing en banc.

Chaidez v. United States, from the U.S. Court of Appeals for the 7th Circuit, is already the subject of a petition for certiorari.

In 2003, Roselva Chaidez, a lawful permanent resident of the United States since 1977, pled guilty to fraud related to a staged accident insurance scheme and, in 2004, was sentenced to probation. Five years later, after Chaidez tried to apply for citizenship, the federal government initiated removal proceedings against her. Because the admitted fraud caused the victims to lose more than $10,000, it qualified as an aggravated felony, and Chaidez was eligible for deportation.

Chaidez took the matter to federal district court, filing a coram nobis motion, which is a collateral attack similar to habeas, except the defendant is not in custody. Chaidez argued that her attorney did not tell her that a guilty plea could get her deported. Had she known, she would not have pled guilty. Chaidez alleged ineffective assistance of counsel and asked that her conviction be overturned.

Looking to Padilla, which the Supreme Court decided while Chaidez’s motion was pending, the district court vacated her conviction.

The 7th Circuit reversed, over Judge Ann Claire Williams’ dissent.

Judge Joel Flaum, writing for himself and Senior Judge William Bauer, explained that Padilla is not retroactive, meaning that it only applies to cases on direct review, not to a coram nobis motion or other collateral attack. The direct line of Chaidez’s criminal case had been final for years, when she pled guilty and did not appeal.

In Judge Flaum’s view, Padilla announced a groundbreaking new rule that lower courts had not anticipated. In fact, Flaum noted, federal courts before Padilla had unanimously held that plea counsel is not constitutionally required to warn clients of immigration consequences.

Judge Williams disagreed, finding that Padilla applies retroactively to collateral review. Risk of deportation is important information to know before entering a plea. Williams urged that “prevailing professional norms at the time of Chaidez’s plea required a lawyer to advise her client of the immigration consequences of a guilty plea.” Under Supreme Court precedent cited by Williams, such norms have long been relevant to whether counsel’s representation was reasonable.

The 7th Circuit panel knew that its decision would create a circuit split. Less than two months earlier, the 3rd Circuit in United States v. Orocio determined, like Judge Williams, that Padilla applied retroactively. Following 7th Circuit Rule 40(e), the panel distributed the majority and dissent to all ten active 7th Circuit judges. The majority voted not to rehear the case en banc. However, as reported in the panel opinion, four judges voted for rehearing.

The 7th Circuit also denied a later rehearing en banc petition, this time without a vote requested, presumably because the court had previously taken and announced its vote.

Joining the 7th Circuit and making the split 2-1, the 10th Circuit in United States v. Chang Hong ruled that Padilla is not retroactive. Although not precedent, a footnote in United States v. Hernandez-Monreal, a 4th Circuit unpublished opinion from 2010, stated, without analysis, that “nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review.”

A petition for certiorari has already been filed in the 7th Circuit case, and petitions from the 3rd and 10th Circuit cases could soon follow.

Something in the Water: SCOTUS Loss, First Circuit Gain?

The Boston Globe is reporting that two candidates remain for an opening on the U.S. Court of Appeals for the First Circuit (sitting in Maine): William Kayatta, Jr., a partner in the Portland, Maine office of Pierce Atwood, and Jon Levy, a justice on Maine's Supreme Judicial Court. Members of Maine's congressional delegation forwarded the names to President Obama, who will send one to the Senate.

By appointment of the U.S. Supreme Court in April, Mr. Kayatta is serving as a Special Master in a water rights dispute between Kansas and Nebraska. (Colorado is also a named party, but the current round of this long-running dispute is between the other two states.) Such disputes fall under the Court's original jurisdiction and are referred initially to a Special Master, who then makes recommendations to the Court.

If you'll forgive the pun, something may be in the water, because Steve Six, who represented Kansas earlier in the dispute when serving as state attorney general, is now a Tenth Circuit nominee. His Senate Judiciary hearing was held this week.

Update to Circuit Split Watch (Cert Grant)

Today, the U.S. Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (10-553), a Sixth Circuit case dealing with the ministerial exception and employment-related lawsuits against religious organizations.

Appellate Daily's earlier coverage of the circuit split preceding this cert grant is here. The articles mentioned and linked, including one by Cardozo Law professor Marci Hamilton, discuss Skrzypczak v. Roman Catholic Diocese of Tulsa, a Tenth Circuit case (cert petition still pending; 10-769), Hosanna-Tabor, and other cases.

Federal Circuit Tokyo Conference and Other Court Announcements

Recent announcements from the federal appellate court websites:

The Federal Circuit announced that its judges will travel to Japan for a joint conference with the judges of the Tokyo Intellectual Property High Court (May 12-13, 2011).  Also, the court announced a portrait presentation for Chief Judge Rader (Nov. 19, 2010), an award presentation to Judge Lourie by the Philadelphia Intellectual Property Law Association (Nov. 18, 2010), and a speech by Judge Plager at George Washington University Law School (Oct. 20, 2010).

The Second Circuit posted notice of a report by the Advisory Group to the New York State-Federal Judicial Council about electronic information: Harmonizing the Pre-Litigation Obligation to Preserve Electronically Stored Information in the New York State and Federal Courts.

The Tenth Circuit invited comments (due Nov. 17, 2010) on the reappointment of Terrence L. Michael, U.S. Bankruptcy Judge (N.D. Okla.).

Now: Justice Ginsburg and Nina Totenberg Live on C-SPAN

Justice Ruth Bader Ginsburg and Nina Totenberg are live on C-SPAN right now (part of the Tenth Circuit Bench and Bar Conference).  A few moments ago, Justice Ginsburg completed reading a talk that her late husband Martin had written for the conference.  Touching (and funny).  C-SPAN will no doubt post it soon in their video archives.

Update: Link to the speech is here (program starts at 5:00).

Update2: C-SPAN has revised the video link above, so the program starts at the beginning (not at 5:00).

Circuit Split Watch

Marci Hamilton, a Cardozo law professor, posted this opinion piece today on discrimination suits involving religious employers and the "ministerial exception."  (The Tenth Circuit issued a decision in such a case just last week, ruling in favor of the employer.)  Hamilton describes the ministerial exception as "an interpretation of the First Amendment's Religion Clauses that requires the courts to avoid interfering with religious organizations' employment decisions regarding clergy and other religious employees who are involved in religious doctrine."  She argues that circuits are split on the exception and calls on the Supreme Court to step in and clarify the law. 

This article about last week's Tenth Circuit decision also discusses the circuit split and quotes the attorney for the religious organization that won the case, speaking in favor of the ministerial exception.

Tenth Circuit: Phased Plan for Natural Gas Drilling Rejected

Late last week, in a National Environmental Policy Act case, the Tenth Circuit affirmed previous rejections, by the Bureau of Land Management and the district court, of a phased plan for natural gas drilling in Wyoming's Powder River Basin.  This plan, proposed by environmental and other groups as an alternative to another plan under BLM consideration, would have phased in development, delaying drilling for at least ten years and possibly decades.  The other, more accelerated plan proposed by federal lessees, called for drilling within a ten-year period.  Beyond this case, as noted below, the Tenth Circuit's decision presents a circuit split.

Judges Series: Chief Judge Mary Beck Briscoe

On May 1, 2010, Mary Beck Briscoe became the Chief Judge of the U.S. Court of Appeals for the Tenth Circuit, in anticipation of the impending retirement of former Chief Judge Robert H. Henry.  Per the Tenth Circuit website (Court News and Events), Chief Judge Briscoe, whose chambers are in Lawrence, Kansas, "has served on the court since 1995, and served on the Kansas Court of Appeals for the eleven preceding years, the last five as chief judge."  Her complete Tenth Circuit bio is here.  Other items of note: