Federally Speaking by Barry J. Lipson (U.S. Supreme Court Compilation
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U.S. Supreme Court COMPILATION ISSUE

March 12, 2003

***The Western Pennsylvania Chapter of the Federal Bar Association
brings you*** Federally Speaking.

Prior columns are available on the website of the U.S. District Court
for the Western District of Pennsylvania
<http://www.pawd.uscourts.gov/Headings/federallyspeaking.htm>.

# [LIBERTY'S CORNER]{.underline}

# ["TRADING LIBERTY FOR SAFETY"]{.underline} *The Federal Lawyer* for January 2003, in its cover story "*Constitutional Issues After 9/11: Trading Liberty for Safety*," by Michael Linz and Sarah Meltzer, sums up many governmental actions that have previously been reported in *Federally Speaking's* "*Liberty's Corner,"* and which they refer to as having "needlessly placed in jeopardy fundamental liberties that are embodied in the Constitution," including the USA PATRIOT Act ("an acronym for 'Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism'"), Military Tribunals, Denial of Counsel, Secret Imprisonments without Charges, Governmental Spying, the Palmer-style Ashcroft Raids, the Creppy Directive, etc. They conclude that history "*shall judge*" whether those "who would dare question its \[the Administration's\] judgments ... 'only aid terrorists'" by, as Attorney General Ashcroft cautioned Congress, scaring "peace-loving people with phantoms of lost liberty;" or "if the government's actions ... like the Palmer Raids and the internment of America's Japanese citizens, \[constitute\] reprehensible conduct unbefitting our great nation." \[25\]

**[Military Tribunals*.*]{.underline}** **Military Tribunals**, when
last used during a declared war (World War II) to deal with a very
limited number of Nazi war criminals and saboteurs, ***and when
authorized by Congress***, have been upheld by the **U.S. Supreme
Court** in "emergency situations" (***Ex Parte Quirin,*** 317 U.S. 1
(1942))." However, even such **Congressionally** authorized
**Tribunals** are only sanctioned \"from \[war\'s\] declaration until
peace is declared\" (see ***In re Yamashita***, 327 U.S. 1, 11-12
(1946)). During this same declared war, our **Government** interned U.S.
citizens of Japanese extraction, which was subsequently held to be
**unconstitutional**, and for which reparations were paid by our
**Government**. As George Santayana has cautioned: \"Those who cannot
remember the past are condemned to repeat it.\" **\[11\]**

**[PALMER RAIDS.]{.underline}** U.S. Attorney General Alexander Mitchell
Palmer, after the June 2, 1919 bombings in Washington, DC (damaging his
residence) and in seven other American cities, conducted a series of
so-called "**Palmer Raids,"** with his new lieutenant J. Edgar Hoover,
rounding up without warrants roughly 16,000 radicals and leftists,
mainly foreigners. In light of Sacco and Vanzetti\'s Italian immigrant
and anarchist status, could they have received a fair trial in this era
of the \"Red Scare,\" bombings by radicals, \"**Palmer Raids**,\"
predictions of a domestic communist revolution, and the 1919 and 1920
expulsions of an elected Socialist from Congress (Pacifist Victor Berger
from Wisconsin, whose conviction for sedition was thrown out by the
**U.S. Supreme Court \[*Berger v. U.S***., 255 U.S. 22 (1921)\], after
sentencing Judge Kenesaw Mountain Landis had remarked that he regretted
the law did not allow him \"to have Berger lined up against a wall and
shot\")? On circumstantial evidence alone, Sacco and Vanzetti had been
found guilty of robbery and murder on July 14, 1921, and sentenced to
death. Following this \"ultimate sentence,\" Judge Webster Thayer, their
Boston-area trial judge, reportedly boasted: \"Did you see what I did
with those anarchist bastards the other day?\" Seven years later, after
many appeals and much public outcry, both \"anarchist bastards\" were
executed. Some commentators have noted similarities between post-6/2/19
America and post-9/11/01 America. **\[20\]**

**[THE CREPPY DIRECTIVE.]{.underline}** Rabih Haddad's
"Star-Chamberesque" **Immigration Deportation Hearings** for overstaying
his 1998 six-month tourist visa must be open to the press and the
public, as must all cases classified as \"special interest\" by the
office of Chief Immigration Judge Michael Creppy. So ruled U.S. District
Court Judge Nancy Edmunds of the Eastern District of Michigan. This
classification, which was adopted at the behest of the U.S. Justice
Department by Judge Creppy on September 21, 2001 in a document known as
the "**Creppy Directive**," has led to the closure of hundreds of
immigration hearings, and was applied to post-9/11 cases when the
Justice Department alleged that an open hearing could jeopardize
national security. \"It is important for the public, particularly
individuals who feel that they are being targeted by the government as a
result of the terrorist attacks of September 11," Judge Edmunds noted,
"to know that even during these sensitive times the government is
adhering to immigration procedures and respecting individuals\'
rights.\" See "***Judicial Supervision***, **A Really Creppy
Directive?**," ***infra***, for more of the story. **\[15\]**

**[SUPREME COURT STRUGGLES WITH BOUNDARIES.]{.underline}** In the
following weighty two "ton" cases of ***Drayton*** and ***Stratton***,
decided recently on the same day, June 17, 2002, the **U.S. Supreme
Court** expanded one **constitutional** boundary and narrowed another,
in both with eyes over their shoulders looking out for international
and/or domestic "terrorists:"

A)  **FIRST AMENDMENT - EXPANDED.** In ***Watchtower Bible and Tract
    Society Of New York, Inc., v. Village Of Stratton,*** 536 U. S. 150
    (2002), a Stratton ordinance made it a misdemeanor to engage in
    door-to-door solicitation without first registering with the mayor
    and receiving a permit. The 8-1 majority found the ordinance
    **unconstitutional** as violating the **First Amendment** **free
    speech rights** protecting: a) ***anonymous*** political speech; b)
    door-to-door religious proselytizing, espousal of unpopular causes
    and non-commercial solicitation; and c) the distribution of
    handbills. Chief Justice Rehnquist, the sole dissenter, in arguing
    against declaring this Stratton ordinance **unconstitutional,**
    recounted the following horror story: "Two teenagers murdered a
    married couple of Dartmouth College professors, Half and Susanne
    Zantop, in the Zantop's home. Investigators have concluded, based on
    the confession of one of the teenagers, that the teenagers went
    door-to-door intent on stealing access numbers to bank debit cards
    and then killing their owners.... Their ***modus* *operandi*** was
    to tell residents that they were conducting an environmental survey
    for school.... They were allowed into the Zantop home. After
    conducting the phony environmental survey, they stabbed the Zantops
    to death." The majority, however, found that the Village had failed
    to establish that the rights of unfettered public discourse and
    anonymous free speech were outweighed by the public policy concerns
    of preventing crime and protecting the villagers' privacy,
    especially as there was no evidence in the record of a special crime
    problem relating to door-to-door solicitation. **\[18\]**

B)  **FOURTH AMENDMENT - NARROWED[.]{.underline}** In the other case,
    ***United States V. Drayton***, 536 U. S. 194 (2002), a 6-3 majority
    found that the **Fourth Amendment** **prohibition against illegal
    searches and seizures,** does not require police officers to
    ***advise*** bus passengers of their right ***not*** to cooperate
    and their right to ***refuse*** consent to the search, as the
    "officers gave the passengers no reason to believe that they were
    required to answer questions." The majority grounded there opinion
    here on their earlier case of ***Florida v. Bostick**,* 501 U.S.
    429 (1991) which they advised held that the "**Fourth Amendment**
    permits police officers to approach bus passengers at random to ask
    questions and to request their consent to searches, ***provided a
    reasonable person would understand that he or she is free to
    refuse***" (emphasis added). The majority did acknowledge that the
    ***Bostick*** Court "identified two factors "particularly worth
    noting'," to wit: "First, although it was obvious that an officer
    was armed, he did not remove the gun from its pouch or use it in a
    threatening way. ***Second, the officer advised the passenger that
    he could refuse consent to the search***"(emphasis added). Here
    there were three officers strategically placed, one of whom advised
    Drayton that he was looking for weapons and drugs, and requested and
    received permission from Draytron to search him. He, however, had
    not advised Drayton that he could refuse to be searched. The officer
    arrested Drayton when the search revealed that drugs were strapped
    to his body. The three-Justice minority seemed to view the real-life
    circumstances differently than the majority. As reasoned by Justice
    Souter, who was in the majority in ***Bostick***, writing for the
    minority here: "Anyone who travels by air today submits to searches
    of the person and luggage as a condition of boarding the aircraft.
    It is universally accepted that such intrusions are necessary to
    hedge against risks that, nowadays, even small children understand.
    The commonplace precautions of air travel have not, thus far, been
    justified for ground transportation, however, and no such conditions
    have been placed on passengers getting on trains or buses. There is
    therefore an air of unreality about the Court's explanation that bus
    passengers consent to searches of their luggage to 'enhanc\[e\]
    their own safety and the safety of those around them'." Applying
    "***Bostick's*** totality of circumstances test, and to ask whether
    a passenger would reasonably have felt free to end his encounter
    with the three officers by saying no and ignoring them
    thereafter.... the answer is clear. The Court's contrary conclusion
    tells me that the majority cannot see what Justice Stewart saw" in
    ***United States v. Mendenhall**,* 446 U.S. 544*,* 554 (1980), the
    effect of the "threatening presence of several officers." It is
    interesting to note that the majority found the non-compliance
    advisory, as admittedly given in ***Bostick,*** to be unnecessary
    "here and now." \[**18\]**

###### ETHICAL CONSIDERATIONS

###### A) UNPUBLISHED OPINIONS

**[THE PUBLICATION DILEMMA.]{.underline}** The **U.S. Court of Appeals
for the Sixth Circuit,** in discussing the necessity for openness in
court proceedings, recently cautioned: "Selective information is
misinformation;" and "Democracies die behind closed doors" (***Detroit
Free Press v. Ashcroft***, No. 02-1437, 6^th^ Cir, August 26, 2002; see
also ***Federally Speaking***, No. 20, "**Creppy Directive
Revisited**"). While this was directed towards the **Executive Branch**
and secret trials, some commentators have suggested that the **Judicial
Branch** should also be examining its own house. Why? At the 1964
**Judicial Conference of the United States,** apparently in light of the
proliferation of judicial opinions, it was resolved that "the judges of
the **courts of appeals** and the **district courts** authorize the
publication of only those opinions which are of general precedential
value and that opinions authorized to be published be succinct.\" This
resolution has apparently borne fruit as it has been reported that now
approximately three-fourths of these courts' opinions are not officially
published (Administrative Office of the United States Courts Report,
Judicial Business Table S-3 (1999)), and six out of the thirteen
circuits do not even allow citation to such unpublished opinions "except
to support a claim of res judicata, collateral estoppel or law of the
case\" (Strongman, "***Unpublished Opinions, Precedent, and the Fifth
Amendment: Why Denying Unpublished Opinions Precedential Value is
Unconstitutional*,"** 50 U. Kan. L. Rev. 195, 199 (2001)), even when
available on the Internet. \[The Third Circuit does not prohibit
citation.\] In 2000, a unanimous Eighth Circuit three-judge panel, in an
opinion written by Circuit Judge Richard S. Arnold (then a potential
Clinton **U.S. Supreme Court** nominee), held that its own **Rule
28A(i)** against recognizing unpublished opinions as precedent was
"**unconstitutional**," as it purported "to confer upon the courts a
power that went beyond the 'judicial,' within the meaning of **Article
III of the Constitution**." Fellow Circuit Judge Gerald W. Heaney went
so far as to write in a separate concurrence: "I agree fully with Judge
Arnold\'s opinion. He has done the public, the court, and the bar a
great service by writing so fully and cogently on the precedential
effect of unpublished opinions" (***Anastasoff v. U.S***., 223 F.3d 898
(8^th^ Cir. 2000)). Ironically (or politically), the **IRS**, who had
successfully urged the giving of precedential effect to the unpublished
per curiam tax refund opinion in ***Christie v. U.S.***, No. 91-2375MN
(8th Cir., March 20, 1992), abruptly abandoned its winning position and
the favorable holding of ***Christie,*** and paid Anastasoff her
complete, but allegedly "untimely" applied for, \$6,436.00 tax refund,
plus interest. The **Eighth Circuit** then, sitting ***en banc***, in an
opinion also attributed to Judge Arnold, unanimously declared
***Anastasoff*** to be moot and announced that the
"**constitutionality** of that portion of **Rule 28A(i)** which says
that unpublished opinions have no precedential effect remains an open
question in this **Circuit**\" (***Anastasoff v. U.S***., 235 F.3d 1054
(8^th^ Cir. 2000)). But was Arnold really right in the first place? In
the law review article, "***Stalking Secret Law*,**" Merritt and Brudney
paint a very scary picture (54 Vand. L. Rev. 71, 119 (2001)). They
report that in their survey of such opinions, not only did "the
unpublished opinions we studied included a surprising number of
reversals, dissents, and concurrences," but "we discovered that outcomes
among unpublished opinions showed significant associations with
political party affiliation, specific professional experiences, and
other characteristics of judges adjudicating the cases. Together, these
findings suggest that panels authoring unpublished opinions reach some
results with which other reasonable judges would disagree," which
"raises the very specter described by the **Eighth Circuit**" in
***Anastasoff***, that "like cases will be decided in unlike ways," and
that "judges\' decisions will be 'regulated only by their own
opinions'\" (see also 1 Blackstone Commentaries 258-59). This then is
the publication dilemma. **\[21\]**

**[UNPUBLISHED RULE 32.1.]{.underline}** It has been predicted that the
unpublished opinion dilemma (***The Publication Dilemma***, ***Federally
Speaking*,** No. 21) could be solved with the adoption by the **U.S.
Supreme Court** in April 2005 of the yet unfinalized and unpublished
Uniform Rule 32.1 (ABAJournal eReport, 12/13/02). **\[25\]**

#######  B) CRTICISM OF JUDGES AND JUDICIAL PROCEEDINGS

**[FOOTNOTE IN MOUTH DISEASE!]{.underline}** What if any action should
be taken against an **Officer of the Court** who maligns a Court or a
member of a Court in a filed or published document? For instance, what
about writing: 1) \"Seldom has an opinion of this court rested so
obviously upon nothing but the personal views of its members;\" or that
a justice's views are \"irrational\" and \"cannot be taken seriously?\"
2) That a study "discovered that outcomes among unpublished opinions
showed significant associations with political party affiliation,
specific professional experiences, and other characteristics of judges
adjudicating the cases?" 3) That an "opinion is so factually and legally
inaccurate that one is left to wonder whether the court of appeals was
determined to find for appellee" and "said whatever was necessary to
reach that conclusion (regardless of whether the facts or the law
supported its decision)?\" 4) Any of the many sharply barbed and gory
attacks by **Officers of the Court** and **Members of the Bar** on
various **U.S. Supreme Court** decisions, including ***Brown v. Board of
Education,*** 347 U.S. 483 (1954) and ***Bush v. Gore,*** 531 U.S. 98
(2000)? Are these instances of constitutionally protected **First
Amendment** free speech \"within the broad range of protected fair
commentary on a matter of public interest,\" and/or merely forms of
\"rhetorical hyperbole incapable of being proved true or false,\" as
dissenting Indiana Supreme Court Justices Frank Sullivan Jr. and
Theodore Boehm found in ***In Re Wilkins,* Case No. 49S00-0005-DI-341**
(October 29, 2002), with regard to one of these instances; or would
these be \"scurrilous and intemperate attack\[s\] on the integrity of
the court" (***Michigan Mutual Insurance Company v. Sports Inc***., 706
N.E.2d 555 (Ind. 1999)), mandating sanctions against the offending
individuals? For your information, the first are examples of the
comments of **U.S. Supreme Court** Justice Antonin Scalia in his
published opinions in ***Atkins v. Virginia,*** 536 U.S. 304 (death
penalty), and in ***Webster v. Reproductive Health Services,*** 492 U.S.
490 (1989) (referring to fellow Justice Sandra Day O'Connor),
respectively. The second is a report of a judicial survey appearing in
***Federally Speaking,*** No. 21. The third is the \"scurrilous and
intemperate" or, perhaps, **constitutionally** protected, footnote of
Michael Wilkins, Esq. from ***Michigan Mutual, supra***, sanctions for
which were affirmed 3-2 ***In Re Wilkins***, under the Indiana version
of ABA Model Rule of Professional Conduct 8.2. And the last is what
Justice Boehm found this offending footnote to be similar to in his
***Wilkins*** dissent. Then, too, should Justice Robert Rucker, a member
of both the majority in ***Wilkins*** and the lower court panel Wilkins
chastised, have also participated at the higher level? If the Indiana
Supreme Court does not reconsider, the **First Amendment** protected
speech issue may yet reach the **U.S. Supreme Court,** which has already
"made it clear that 'disciplinary rules governing the legal profession
cannot punish activity protected by the **First Amendment**.' ***Gentile
v. State Bar of Nev.***, 501 U.S. 1030, 1054 (1991)" (**Wilkins
dissents, *supra***). One wonders as to the affect of Justice Scalia's
utterances then, or who after the dust clears will have the "disease" of
one's foot (or "footnote") in one's mouth. **\[23\]**

> **C) judicial supervision**

**[Federal Judiciary key to sustaining liberty]{.underline}**! "The
rights that **Americans** enjoy as the core of their ***liberty*** would
be worthless, mere words on paper, unless an ***independent***
***judiciary*** existed with the authority and ***the will*** to enforce
them. ... \-\--the possibility that **Federal Judges** may actually
uphold fundamental rights, at whatever cost to the **Judges**
themselves, is what, together with many soldiers' blood, has made our
***liberty*** endure. Thus no explosive device can even touch the
edifice of ***Justice*** that upholds our ***liberty***. The only way
that ***Temple*** can become rubble is if **Judges** themselves allow
others to pull its column down" (**U.S. District Judge** Stewart Dalzell
of the **Eastern District of Pennsylvania**, January 18, 2002; emphasis
added.) We have also previously quoted in this column **United States
Supreme Court** Justice Sandra Day O'Connor, quoting Margaret Thatcher:
"Where law ends, tyranny begins" (see ***infra***). There is now one
more quote to add, a direct quote, from **United States Supreme Court**
Justice David H. Souter: "When you are dealing with people, be careful!"
At the post-9/11 **2001 Third Circuit Judicial Conference**, Justice
Souter thus cautioned, using an extensive discussion of the Japanese
internment litigation and the surrounding subsequently condemned
Governmental actions, as illustrative of what disregard for this
caution, and presumably the cautions quoted herein of Prime Minister
Thatcher, Statesman Franklin and Historian Santayana, could cause.
(Former Pennsylvania Governor, **Homeland Security Director**, and now
**Secretary of Homeland Security,** Tom Ridge, as he left for the
**Nation's Capital** stated, quoting Benjamin Franklin: "Those that can
give up essential **liberty** to purchase a little temporary safety
deserve neither **liberty** nor safety;" and George Santayana has
cautioned: \"Those who cannot remember the past are condemned to repeat
it.\") **\[13 & 11\]**

**["WHERE LAW ENDS, TYRANNY BEGINS!"]{.underline}** "Where law ends,
tyranny begins," so said United States Supreme Court Justice Sandra Day
O'Connor, quoting Margaret Thatcher, on the occasion of Justice O'Connor
being awarded the first "Carol Los Mansmann Award for Distinguished
Public Service" by the Western Pennsylvania Chapter of the Federal Bar
Association, before a packed house of 1000 well-wishers in the Duquesne
University Student Union Ballroom. She was driving home the point that
in light of the recent terrorist attacks the rule of law must be
maintained. "The need for lawyers does not diminish in times of crisis,"
she stressed, "it only increases." Your columnist had the honor of
presenting her with this award and "pinning" the "Honorable" Honorary
FBA Member O'Connor with an FBA recognition pin. The Carol Los Mansmann
Award for Distinguished Public Service will be awarded annually by the
West Penn Chapter, in conjunction with the Duquesne University School of
Law, to "a public figure who has made unique and outstanding
contributions to the legal profession through diligence, dedication to
principle, and commitment to the profession's highest standards,"
attributes exemplified by U.S. Court of Appeals Third Circuit Judge
Carol Los Mansmann, who passed away shortly thereafter. **\[9 & 14\]**

**[THIRD CIRCUIT AND WDPA JUDGES SPEAK OUT:]{.underline}** "Good judges
... try and get it right." With these words the newest member of the
**U.S. Circuit Court of Appeals for the Third Circuit**, **D. Brooks
Smith**, left behind the exhilaration of the Chief Judgeship of the U.S.
District Court for the Western District of Pennsylvania, and the
acrimony of the U.S. Senate confirmation process, and confirmed to all
that he places "real people" and their very real particular "cases"
above all. After being sworn in and donning his appellate robe, he
stressed that "good judges must always keep in mind the sacred trust
they hold;" good judges must "decide cases," not broad issues; good
judges "must remember real people are affected by our decisions;" good
judges must "recognize their own fallibility ... and at the end of the
day, try and get it right." He then pledged, "I will try my utmost to be
a good judge." Then too, with regard to "trial by jury," **Senior U.S.
District Judge Donald J. Lee** stresses: "Trial by jury is a fundamental
concept in our American system of justice, and it has been instrumental
in the preservation of individual rights while at the same time serving
the interests of society in general;" and **U.S. District Judge Robert
J. Cindrich** cautions: "Too many people take for granted the great
blessings our democracy has bestowed upon us and our children. It is
clear to me that you are aware that a democracy is not self-effectuating
and that it demands the ongoing, active participation of the citizenry
if it is to endure." **\[21 & 24\]**

**[THE MAGIC LANTERN OF JUDICIAL SUPERVISION.]{.underline}** When we
think of a "Magic Lantern" we envision a primitive "moving" picture
device or, perhaps, Aladdin rubbing his Genie generator. No longer. In
the 21^st^ Century "Magic Lantern" will now refer to a "Trojan Horse"
type computer program. According to **PC World**, Magic Lantern is being
developed by the **FBI** to be planted by an agent "in a specific
computer by using a virus-like program." Once planted, this keystroke
logger "will render encryption useless on a suspect\'s computer" by
capturing "words and numbers as a subject types them (before encryption
kicks in), and will transmit them back to the agent." According to
**FBI** spokesperson Paul Bresson: \"It\'s no secret that criminals and
terrorists are exploiting technology to further crime. The **FBI** is
not asking for any more than to continue to have the ability to conduct
lawful intercepts of criminals and terrorists.\" Jim Dempsey, Deputy
Director of the **Center for Democracy and Technology**, is concerned
about the lack of prior notice of such "searches and seizures" as
required by the **Fourth Amendment** to the **U.S. Constitution**: \"In
order for the government to seize your diary or read your letters,"
Dempsey advises, "they have to knock on your door with a search
warrant,\" but Magic Lantern "would allow them to seize these without
notice. ... The program would not only capture messages you sent, it
would capture messages that you wrote but never sent." The main concern
here appears not to be the use of new technologies, but the apparent
lack of appropriate **judicial supervision**. Previously, **Federally
Speaking** has reported on the use by agencies such as the **FBI** of
"Carnivore\'\' devices, which scan "through tens of millions of e-mails
and other communications from innocent Internet users as well as the
targeted suspect" (***Federally Speaking***, No. 8), and how the
**Patriot Act** tries to regulate their use "by excluding general access
to the 'content' of the messages and by requiring Carnivore Reports to
**Congress**" (***Federally Speaking***, No. 10). Perhaps what is truly
needed is the light of the "Magic Lantern" of **judicial supervision**
to keep out the darkness of the Trojan Horses of the overzealous?
**\[13\]**

**[FISA: "comeS close" to minimum Fourth Amendment
standards.]{.underline}** Curt Anderson of Associated Press reported
that in ***In Re: Sealed Case No. 02-001*** (FISCR 2002), "a trio of ...
semi-retired judge\[s\] on the **U.S. Court of Appeals** ... appointed
by President Reagan" and "named by **U.S. Supreme Court** Chief Justice
William Rehnquist" to the "**U.S. Foreign Intelligence Surveillance
Court of Review**," overturned the unanimous decision of seven (7) other
Federal Judges (later joined by an eighth) forbidding "law enforcement
officials" from "directing or controlling ... the use of the **FISA**
procedures to enhance \[non-espionage\] criminal prosecution" (see
***Federally Speaking**,* No. 20). Thus, the **FISA** wall (50 U.S.C.
1801, et seq), erected to curb alleged **Federal Agencies\'** abuses of
the rights of American citizens, seems to have been torpedoed. Even
though these apparently "hand picked" judges acknowledged that the
**U.S. Supreme Court** in ***City of Indianapolis v. Edmond***, 531 U.S.
32 (2000) "cautioned that the threat to society is not dispositive in
determining whether a search or seizure is reasonable," they allegedly
so ruled because they had "learned" that "effective counterintelligence
... requires the wholehearted cooperation of all the government's
personnel who can be brought to the task,\" and that a \"standard which
punishes such cooperation could well be thought dangerous to national
security.\" They also promulgated the novel "come close" rule that as
"the procedures and government showings required under **FISA** ... come
close" to meeting "the minimum **Fourth Amendment** warrant standards
... **FISA** as amended is **constitutional** because the surveillances
it authorizes are reasonable." Thus, if we "come close" to obeying the
law we're okay, right? According to Anderson, while the "government has
sole right of appeal ... attorneys were exploring other ways of getting
the case to the High Court." **\[24\]**

**[A REALLY CREPPY DIRECTIVE?]{.underline}** The **Third Circuit**
two-judge majority in ***North Jersey Media Group v. Ashcroft*** (3rd
Cir 2002; No. 02-2524), in reversing the lower court's ruling that a
blanket directive for closed "undercover" deportation hearings was
**unconstitutional,** cautioned that they "are keenly aware of the
dangers presented by deference to the executive branch when
**constitutional liberties** are at stake, especially in times of
national crisis, when those liberties are likely in greatest jeopardy."
As of this writing seven (7) **Article 3** U.S. Federal Judges have
found the **Creppy Directive's** blanket closure of all special interest
deportation hearings to be **unconstitutional**, and only the above two
have found it **constitutional.** Those finding it **unconstitutional**
are U.S. Circuit Judges Daughtrey, Keith and Scirica, and U.S. District
Judges Bissell, Carr, Edmunds and Kessler. Moreover, according to the
**Third Circuit** majority opinion in ***North Jersey Media Group v.
Ashcroft*** (3rd Cir 2002; No. 02-2524), such **"unconstitutional"**
findings were done with such "eloquent language" as \"Democracies die
behind closed doors, . . . When government begins closing doors, it
selectively controls information rightfully belonging to the people.
Selective information is misinformation;\" to which Judge Kessler added,
"secret arrests are a concept odious to a democratic society" (see
***Federally Speaking,*** Nos. 15, 17 and 20). These **Article 3**
Judges believe that **constitutionally** deportation hearings may only
be closed, on a case-by-case basis, by the Immigration Judge hearing the
matter, not by a general "directive" (see ***Detroit Free Press v.
Ashcroft,*** 2002 U.S. App. LEXIS 17646 (6th Cir. 2002)). Interestingly,
the **Third Circuit** decision upholding the Creppy Directive was handed
down only after the rulings by the **U.S. District Court for the
District of New Jersey** and the **Third Circuit,** itself, denying the
Government's motion for a stay pending appellate review of the
**District Court's** finding of **unconstitutionality**, were overturned
by the **U.S. Supreme Court** granting this stay ("The application for
stay presented to Justice Souter and by him referred to the Court is
granted, and it is ordered that the preliminary injunction entered by
the **United States District Court for the District of New Jersey** on
May 28, 2002, is stayed pending the final disposition of the
government's appeal of that injunction to the **United States Court of
Appeals for the Third Circuit;**" ***Ashcroft v. North Jersey Media
Group***, 536 U.S.\_\_\_, **No.** 01A991, June 28, 2002). The two-judge
Third Circuit majority apparently based this reversal on a finding that
"openness" does not "plays a positive role" in immigration proceedings
because they believed "the Government presented substantial evidence
that open deportation hearings would threaten national security." They
also apparently found some solace in their belief that even without an
open hearing "these aliens are given a heavy measure of **due process**
\-- the right to appeal the decision of the Immigration Judge (following
the closed hearing) to the **Board of Immigration Appeals (BIA)** and
the right to petition for review of the **BIA** decision to the
**Regional Court of Appeals**. See also ***INS v. St. Cyr***, 533 U.S.
289, 300 (2001) (noting that because the Constitution 'provides the
**Writ of Habeas Corpus** shall not be suspended, . . . some judicial
intervention in deportation cases is unquestionably required by the
**Constitution'**)." However, Judge Scirica strongly dissented, finding
that for "these" people, and for "all of the people," "the requirements
of the test \[in ***Richmond Newspapers, Inc. v. Virginia***, 448 U.S.
555 (1980)\] are met. ... Deportation hearings have a consistent history
of openness" and the "**Supreme Court** ... in both ***South Carolina
Port Authority*** \[***FMC v. South Carolina State Ports Authority***,
122 S. Ct. 1864 (2002)\] and ***Butz*** \[***Butz v. Economou***, 438
U.S. 478, 513 (1978)\] concluded that **constitutional** principles
applicable to civil cases were relevant to the administrative
proceedings at issue. ... Accordingly, the demands of national security
under the logic prong of **Richmond Newspapers** do not provide
sufficient justification for rejecting a qualified right of access to
deportation hearings in general. ... There must be **'a substantial
probability'** that openness will interfere with these interests ...
\[and\] deference is not a basis for abdicating our responsibilities
under the **First Amendment**. ... ***United States v. Robel***, 389
U.S. 258, 264 (1967) (... 'Implicit in the term national defense is the
notion of defending those values and ideals which set this Nation
apart.'). ... But a case-by-case approach would permit an Immigration
Judge to independently assess the balance of these fundamental values.
Because this is a reasonable alternative, the **Creppy Directive's**
blanket closure rule is **constitutionally infirm**. As the **Supreme
Court** reasoned in ***Globe Newspaper*** ... 'a mandatory rule
requiring no particularized determinations in individual cases, is
**unconstitutional**.'" (***Globe Newspaper Co. v. Superior Court,***
457 U.S. 596 (1982). One wonders whether the granting of the stay by the
**U.S.** **Supreme Court** influenced or even re-directed the outcome in
the **Third Circuit**. In any event, if not modified by the **Third
Circuit** sitting **en banc**, with such a "conflict between the
circuits," this question is certainly ripe for the granting of
**certiorari** by the **U.S.** **Supreme Court**. **\[22 & 24\]**

**[EARL OF ASH ALLEGEDLY USURPS HIGH COURT AUTHORITY.]{.underline}** In
two back-to-back official **Administrative Branch** actions, it has been
alleged that the Earl of Ash is "croftily" trying to seize the reins of
power from the **Judicial Branch**, usurping the **High Court's**
authority:

A)  **DENIES ATTORNEY/CLIENT PRIVILEGE.** It has been asserted that the
    Earl of Ash "croftily" reversed the **U.S. Supreme Court's** holding
    in ***Hunt v. Blackburn***, 128 U.S. 464, 470 (1888), that
    communications between a client and his attorney must be \"safely
    and readily availed of\" and \"free from consequences of
    apprehension of disclosure,\" in the name of anti-terrorism, by
    authorizing the eavesdropping on **Attorney/client** telephone
    conversations, and the monitoring of attorney/client mail, when he,
    Ashcroft, concludes that there is a \"reasonable suspicion\" that
    such communications related to future terrorist acts (which
    authorization became effective even before it was published in the
    **Federal Register** on October 31, 2001). In defense of this
    action, Earl Ash left his "Croftdom" to appear before King Larry and
    plead his case to the Court of Public Opinion. "We\'re talking" only
    "about 13 prisoners nationally in the United States of America whom
    we have reason to believe would be seeking to continue with criminal
    activity while they are in jail,\" though apparently acknowledging
    later, that of "the 13" only "some are terrorists\" (Larry King
    Live, November 2, 2001). However, all the Earl needs to do here is
    to utilize a long-standing exception to the **attorney-client
    privilege**, which allows a judge to permit such actions if he/she
    finds that such communication is aimed at furthering criminal
    activity. Not only would this preserve our **liberty**, but also it
    would allow the **Judiciary** to fulfill its role of protecting our
    **Constitutional** due process rights**. \[11\]**

B)  **"Ashcroft Directive" OVERTURNS STATE LAW.** Also, in apparent
    disregard of the **Judicial Branch's** and the **High Court's**
    ultimate exclusive authority to declare **State** statutes
    **unconstitutional** and to delineate the **Constitutional**
    boundaries between **State** and **Federal** sovereignty, **Attorney
    General** Ashcroft nullified the Oregon "Right to Die" statute by
    publishing "the so-called '**Ashcroft Directive**'" in the **Federal
    Register,** declaring that medical doctors who prescribe **federally
    controlled substances** in conformity and compliance with this
    **State** law would violate and lose their **Federal Licensure**.
    Under the Oregon law, if two doctors agree on euthanasia and the
    patient has less than six months to live, a doctor may prescribe,
    but not administer, a lethal dose to such a terminally ill adult
    Oregon State residents, provided that the one to die is both able to
    make health care decisions for oneself and has voluntarily chosen to
    die. Subsequently, **U.S. District Court** Judge Robert E. Jones for
    the **District of Oregon** permanently enjoined Earl Ash "from
    enforcing, applying, or otherwise giving any legal effect to the
    **Ashcroft Directive**" (emphasis added). **\[11 & 16\]**

> D\) DEATH PENALTY

**[DEATH BY SANITY.]{.underline}** The **U.S. Supreme Court** has
forbidden the execution of the criminally insane (***Ford v.
Wainwright***, 477 U.S. 399 (1986)). A recent episode of ***The
Practice*** portrayed a Death Row inmate who had regained her sanity and
become a "valuable member of society" through the post-conviction use of
anti-psychotic drugs. To save her life, her attorney had her taken off
this medication so she would revert to her psychotic "insane" state, to
be immune from execution. Bizarre? Apparently not! Just turn the channel
to "real life," to Steve Barnes' article in ***The NW Arkansas Morning
News***, **"*Death Case 'Weird and Complicated'." ***There you will read
about Charles Singleton who in 1979 at 19, while robbing a grocery
store, stabbed and killed Mary Lou York. Since being on Death Row he has
suffered "at least one, and possibly two or more, disabling mental
illnesses for which he has been administered anti-psychotic drugs,
sometimes against his will.... Jeff Rosenzweig, Singleton's attorney,
... contends that the state of Arkansas, through its Department of
Correction, is medicating an inarguably insane man into something
approximating sanity solely for the purpose of putting him to death."
Now, according to Kelly P. Kissel of the ***Associated Press***, a
"sharply divided **Eighth US Circuit Court of Appeals**" sitting ***in
banc***, and reversing its panel's earlier ruling "that Singleton be
sentenced to life in prison without the possibility of parole," has
ruled that Singleton "a paranoid schizophrenic inmate who is sane only
when forced to take medication is eligible for Death Row" as "his
medically induced sanity makes him eligible for execution." Of the
eleven **Circuit Judges**, six believe that as this inmate "prefers to
be medicated, and because Arkansas has an interest in having sane
inmates, the side effect of sanity should not affect his fate," four
feel that "it would be wrong to execute Singleton, who becomes paranoid
and delusional when not medicated, and sometimes is still psychotic
while medicated," and one abstains. Was there a "single" act of forcing
or "tons"? Is Singleton still actually forced or isn't he, or is the
forcing just intermittent? Should it matter? Will the **U.S. Supreme
Court** accept this case?????? Stay tuned for future episodes.
**\[26\]**

**[DEATH KNELL SOUNDING FOR DEATH PENALTY?]{.underline}** Is the
guillotine falling on the black-hooded Axman? Has the death knell begun
to sound for the death penalty? In ***Federally Speaking,*** Nos. 17 and
18, we reported on the 7-2 ruling of the **U.S. Supreme Court** that
under the **right to trial by jury, as protected by the Sixth
Amendment** to the **U.S. Constitution**, only a jury (and not a judge)
can impose a death sentence (***Ring v. Arizona***, 536 U.S. 584
(2002)); and the ruling of the **U.S. District Court for the Southern
District of New York** that under the **right to due process**, as
protected by the **Fifth Amendment,** the death penalty itself is
**unconstitutional *(U.S. v. Quinones*** (2002 U.S. Dist. Lexis 7320
(SDNY, 2002)), "on the grounds that," according to U.S. District Judge
Jed S. Rakoff**,** "innocent people are being sentenced to death 'with a
frequency far greater than previously supposed ... as DNA testing
illustrates'." Indeed, in his concurring opinion in ***Ring,*** Justice
Stephen Breyer pointedly observed "the continued difficulty of
justifying capital punishment in terms of its ability to deter crime, to
incapacitate offenders, or to rehabilitate criminals" (***Ring***, 122
S. Ct. at 2446). Now, building on ***Ring*** and ***Quinones,*** U.S.
District Judge William K. Sessions III of the **U.S. District Court for
the District of Vermont,** has declared the **Federal Death Penalty Act
of 1994 (FDPA)** unconstitutional "on the ground that the **FDPA's**
**§3593(c)'s** direction to ignore the rules of evidence when
considering information relevant to death penalty eligibility is a
violation of the **Due Process Clause** of the **Fifth Amendment** and
**the rights of confrontation and cross-examination** guaranteed by the
**Sixth Amendment**" (***U.S. v. Fell***, No. 2:01-CR-12-01, September
24, 2002). As Judge Sessions cautioned: "If the death penalty is to be
part of our system of justice, due process of law and the fair-trial
guarantees of the **Sixth Amendment** require that standards and
safeguards governing the kinds of evidence juries may consider must be
rigorous, and **constitutional** rights and liberties scrupulously
protected. To relax those standards invites abuse, and significantly
undermines the reliability of decisions to impose the death penalty." As
reported in ***Federally Speaking,*** No. 19, post-conviction DNA
testing has already spared at least 110-convicted murders from the
"Axman's" wrath (or pro-longed incarceration). In related matters, all
handed down in June 2002, the **U.S. Supreme** Court in a 6-3 ruling,
involving a defendant with an IQ of 59, has held that the execution of
the mentally retarded is "**cruel and unusual punishment'** under the
**Eighth Amendment to the U.S. Constitution**, based on evolving
currently prevailing standards of decency (***Atkins* v. *Virginia***,
536 U.S. 304 (2002)); and as noted above in a 7-2 ruling has held that
under the **Sixth Amendment right to trial by jury**, only a jury (and
not a judge) can impose a death sentence (***Ring v. Arizona***,
***supra)***; though at the same time a sharply divided Court (5-4)
ruled that a judge could stiffen a "non-stiff" (non-capital) sentence
(***Harris v. United States*,** 536 U.S. 545 (2002)). The debate
continues. **\[21 & 18\]**

**[WHEN LIFE MEANS LIFE]{.underline}.** Nowadays most jurors would
expect that one sentenced to life imprisonment could be paroled someday,
and, therefore, where the jury found aggravating circumstance, might
sentence such a killer to death rather than life imprisonment, if they
believed there was any chance he/she might get out on the streets again.
In ***Shafer v. South Carolina,*** (532 U.S. 36 (2001)), the **U.S.
Supreme Court** found that the failure to instruct the jury that parole
was NOT available if the defendant was sentenced to life imprisonment,
constituted a denial of due process. Since the jury\'s only sentencing
options were death or life imprisonment, the **U.S.** **Supreme Court**
ruled that such instruction was required to rectify the jury\'s apparent
confusion, especially in view of the jury\'s clear lack of understanding
concerning what a life sentence meant. The trial court\'s instruction
that "life imprisonment meant until the death of petitioner," and
counsel\'s statement that "petitioner would die in prison," were found
to be insufficient to inform the jury concerning the unavailability of
parole. **\[4\]**

###### NUTS & BOLTS

**[USA PATRIOT ACT-INSPIRED RULES CHANGES.]{.underline}** In an
unprecedented action, at least in the last decade, the **U.S. Supreme
Court** by a 7-2 vote refused to adopt a proposed **Federal Judiciary
Rule** change submitted to it by the **U.S. Judicial Conference**. This
proposal was among those drafted by the **Judicial Conference** in
conformity with the 9/11 terrorism-inspired **USA Patriot Act**. The
proposal was to permit the "video-conferencing" of witness testimony to
allow greater access to international witnesses at criminal trials,
especially at anti-terrorism trials. Speaking for the majority, Justice
Antonin Scalia advised of concerns over violation of the **Sixth
Amendment's** right to confrontation. \"Virtual confrontation might be
sufficient to protect virtual **constitutional** rights," he explained,
but \"I doubt whether it is sufficient to protect real ones.\" Proposals
that were accepted by the **U.S. Supreme Court** and forwarded to
**Congress** for objection, included the permitting of: a)
video-conferencing of arraignments and first appearances (so long as
defendants consent); b) the disclosure by lawyers of grand jury
information to federal law enforcement agents and national security
officials upon the filing of disclosure petition **(Rule 6(e) 3C**,
which is pursuant to **Section** **203 of the Patriot Act**); and c)
magistrates issuing search-and-seizure warrants outside their normal
areas of jurisdiction (**Rule 41(a),** which is pursuant to **Section
219 of the Patriot Act**). If there are no **Congressional** objections,
the new Rules become effective December 1, 2002. **\[17\]**

**[FED COURT EX'ED FEDEX!]{.underline}** I remember an opposing counsel
(let's call him "Clever Cleaver") who was personally fined thousands of
dollars by a Chief U.S. District Court Judge for not producing his
client's second set of books pursuant to a discovery request. The short
and dirty is that we had good reason to believe there was a "double" set
of books and vigorously pursued this request. Finally plaintiff's
counsel, in an apparent attempt to show "good faith," sent his seemingly
displeased "gal Friday" to his client's offices to look for additional
records. She returned with one page that was obviously from the second
set! When called forward from the back of the Courtroom by the Judge and
asked how she obtained that one page, she cleverly cleaved Cleaver with
just two words: "I asked." However, Clever Cleaver's story did not end
there. Being incensed over the injustice of it all, Cleaver appealed to
the **U.S. Court of Appeal**. Affirmed ***per curium***. He then fumed
for thirty nights and twenty-nine days, and on the thirtieth day tooketh
up his fine honed power pen and hastily slashed out an unstoppable
***Writ of Certiorari*** to the **Highest Fed Court Of the Land**. He
then lashed it to his mighty private steed **FedEx d'Pegasus**, who flew
it speedily overnight to DC, faster than any first class U.S. postal
product could. It arrived bright and early the next day at the portals
of the **U.S. Supreme Court** itself, where it was swiftly kicked
***"per clerkium"*** out the door. You see, Clever Cleaver, Esq., had
not reckoned with **Part VII of the U.S. Supreme Court Rules of Practice
and Procedure**, where **Rule 29** clearly provides that a document is
only "timely filed if it is forwarded through a private delivery or
courier service and is actually received by the Clerk within the time
permitted for filing." Clever, in his haste for speed and/or expediency,
again figuratively cleaved himself, this time by employing **Federal
Express**, and not the government's **Constitutionally**-blessed molding
monopoly, the **U.S. Postal Service**, which had the latter taken the
better part of a fortnight, yet still would it have been timely. For as
you see, **Rule 29** further states that a "document is timely filed if
it is sent to the Clerk through the **United States Postal Service** by
first-class mail (including express or priority mail), postage prepaid,
and bears a postmark showing that the document was mailed on or before
the last day for filing." Daresay, other **Federal Courts** and
**Agencies** have similar rules. Poor Clever Cleaver, is he beset with
injustices or just ineptnesses? **\[26\]**

[Judicial Erosion]{.underline} -- A well-paid Judiciary is a happy
Judiciary, and happy Judges make happier Lawyers. Works for me!
Presumably, that's why the national Federal Bar Association and the
American Bar Association collaborated in preparing a "White Paper" on
\"Federal Judicial Pay Erosion: A Report on the Need for Reform,\" which
was recently presented by national FBA President Robert McNew and ABA
President Martha Barnett, to **U. S. Supreme Court** Chief Justice
William Rehnquist. A copy of the report is available to all happy Judges
and Lawyers on the FBA web site at
[www.fedbar.org/wp-judpay.htm](http://www.fedbar.org/wp-judpay.htm).
**\[2\]**

**[DID YOU KNOW?]{.underline}** Did you know that when admitted to the
**U.S. Supreme Court Bar** you can obtain a Certificate with or without
the words "in the year of our Lord, ...". To obtain the "without"
version you must "opt out." **\[21\]**

[Fed-pourri™]{.underline}

**[INSUBORDINATE OR TERMINALLY BLACK?]{.underline}** Did Amtrak back
Abner Morgan's caboose permanently into the terminal for not following
management\'s orders, or for being terminally black? At trial, Mr.
Morgan painted the blacker picture of his termination. He claimed that
before he was fired he had suffered racial discrimination for nearly the
entire five years he was with Amtrak, testifying that while he had been
hired as an electrician, he was referred to as an "electrician's
helper;" that his managers used the "N" word; and that he had been
reprimanded for not coming to work when his daughter was ill; among
other things. Justice Clarence Thomas, the former chief of the **Equal
Employment Opportunity Commission** under two Republican presidents,
wrote the majority opinion for an otherwise equally divided **(5-4) U.S.
Supreme Court**. Abandoning the conservative wing of the **Court**,
Justice Thomas give Abner Morgan his day in court by holding that the
normal 180-day or 300-day window for commencing litigation under the
**Civil Rights Act of 1964** does not close where the employee claims a
pattern of unfair treatment. He explained that given "the incidents
comprising a hostile work environment are part of one unlawful
employment practice, the employer may be liable for all acts that are
part of this single claim,\" which may occur "over a series of days or
perhaps years and, in direct contrast to discrete acts, a single act of
harassment may not be actionable on its own\" for such "claims are based
on the cumulative effect of individual acts.\" ***National Railroad
Passenger Corp. v. Morgan,*** 536 U.S. 101 (2002). This term Justice
Thomas also departed company from Chief Justice Rehnquist, the sole
dissenter, in ***Watchtower Bible and Tract Society Of New York, Inc.,
v. Village Of Stratton,*** 536 U.S. 536 (2002), where an ordinance
making it a misdemeanor to engage in door-to-door solicitation without
first registering with the mayor and receiving a permit, was stroke down
by an 8-1 majority as being a violation of **free speech** under the
**First Amendment** (see **Federally Speaking,** No. 18). What **other**
issues will bring out the "Earl Warren" in Justice Thomas? **\[19\]**

**[CIRCUITS SPLIT ON RACE AND LAW School admissionS.]{.underline}** A
prime reason the **U.S. Court of Appeals for the Sixth Circuit**, heard
***Grutter v. Bollinger** (*Case No. 01-1447 and No. 01-1516 (6^th^ Cir.
2002)) ***en banc*** was because of "the 'inevitable conflict' with
another federal circuit's opinion in view of the already conflicting
decisions of the Fifth Circuit in ***Hopwood v. Texas,*** 78 F.3d 932
(5th Cir. 1996), and 236 F.3d 256 (5th Cir. 2000), and the Ninth Circuit
in ***Smith v. University of Washington Law Sch.**,* 233 F.3d 1188 (9th
Cir. 2000)." By a 5-4 vote, the Sixth Circuit has upheld the
**constitutionality** of Michigan Law School using race as a factor in
admissions. Chief Judge Boyce Martin, writing for a majority of the
Court, asserted that the Law School\'s admission process was in
accordance with the 1978 **U.S. Supreme Court** divided decision in
***Regents of the University of California v. Bakke***, 438 U.S. 265
(1978), where the **High Court** determined that, while quotas to obtain
racial diversity were forbidden, race could be used as a factor in
admissions. Thus, Justice Louis Powell, in the only concurring majority
opinion, did recognize diversity as a "compelling interest" that
promotes \"speculation, experiment and creation.\" Judge Martin,
therefore, concluded that: \"Because Justice Powell\'s opinion is
binding on this court under Marks v. United States, and because
***Bakke*** remains the law until the **Supreme Court** instructs
otherwise, we reject the **District Court\'s** conclusion \[of no
compelling state interest\] and find that the Law School has a
compelling interest in achieving a diverse student body.\" However,
Judge Danny Boggs, in his dissenting opinion asserts that the **Equal
Protection Clause** of the **Fourteenth Amendment** governs and by its
inclusion \"the framers of the **Fourteenth Amendment** decided that our
**Government** should abstain from social engineering through explicit
racial classifications ...The Law School\'s admissions scheme simply
cannot withstand the scrutiny that the **Constitution** demands.\" As
two other **Circuits**, the **Fifth** and the **Eleventh**, also
question the current validity of ***Bakke***, while at least one, the
**Ninth**, does not, the **U.S.** **Supreme Court** is in the process of
resolving this dispute between **Circuits. \[17\]**

**[Doppelganger Protection Act.]{.underline}** Webster defines a
doppelganger as "a ghostly copy of a living person." We define it here
as a "non-material or 'ghostly' electronic copy of a living (still under
**Copyright**) paper article." Justice Ginsburg, writing for the 7-2
majority of the **U.S. Supreme Court**, has rejected the notion that
such a "Doppelganger," also know less colorfully as an "electronic
database copy," remains covered by the **Copyright** on the print
edition of the newspaper or magazine, as being still part of a
statutorily permitted revision of that original print edition. She based
her finding primarily on the fact that the typical database user, such
as LEXIS/NEXIS users, did not retrieve an entire newspaper or magazine,
but merely the individual article that was sought. Materializing from
the Nether Realm the nebulous "**Doppelganger Protection Act**," the
**High Court** therefore held that, without the author's permission, a
newspaper or magazine publisher is barred by the **Copyright Act** from
distributing such Doppelgangers of its freelance print articles through
electronic databases. ***New York Times v. Tasini***, 533 U.S. 483
(2001). **\[7\]**

**[INTERNET CENSORSHIP -- PAGE Three.]{.underline}** Page Three,
**Congress'** third attempt to censor the Internet has now unanimously
failed before a Three-Judge **U.S. District Court Panel** in
Philadelphia, in an opinion written by Chief Judge Edward R. Becker of
the **U.S. Court of Appeals for the Third Circuit**, and joined by
**U.S. District Court** Judges Harvey Bartle, III and John P. Fullam. An
appeal from this panel goes directly to the **U.S. Supreme Court.** As
originally reported in **Federally Speaking**, No. 15, the **Children\'s
Internet Protection Act of 2000 (CIPA)** required "libraries to install
Internet filtering software in order to receive **Federal** technology
funding to provide library users with Internet access." The
**Three-Judge Panel**, in issuing a **permanent injunction**, found
that: "As our extensive findings of fact reflect, the plaintiffs
demonstrated that thousands of Web pages containing protected speech are
wrongly blocked by the four leading filtering programs, and these pages
represent only a fraction of Web pages wrongly blocked by the
programs.... In view of the limitations inherent in the filtering
technology mandated by **CIPA**, any public library that adheres to
**CIPA\'s** conditions will necessarily restrict patrons\' access to a
substantial amount of protected speech, in violation of the **First
Amendment**" (see the consolidated cases of ***Multnomah County Library
vs. U.S.,*** No. 01-CV-1322, and ***American Library Association vs.
U.S.,*** No. 01-CV-1303 (EDPA, 2002)). Page One was the **Communications
Decency Act of 1996**, **Congress's** first attempt to control
pornography on the Internet, which was thrown out by the **U.S. Supreme
Court** as being an **unconstitutional** infringement of **free
speech**. The enforcement of Page Two, **Congress's** second attempt,
the **Child Online Protection Act of 1998**, has been enjoined pending
the decision of **U.S. Supreme** Court. **\[17\]**

**[SEC OUT OF THE WOODS!]{.underline}** It all started with the Woods in
Maryland. The elderly William Wood and his intellectually challenged
daughter, Diane Wood Okstulski, had apparently given the persuasive
Maryland broker Charles Zandford, permission to open a joint investment
account for them in the amount of \$419,255, the discretion to manage
the account, and a general power of attorney to engage in securities
transactions without their prior approval. By the time Mr. Wood passed
away a few short years later, the cupboard was bare. The "zandy" Charlie
was found with his hand in the cookie jar and convicted of **federal
wire fraud**, for selling **securities** in the Woods' account and
making personal use of the proceeds. He was ordered to serve 52 months
in **federal prison** and pay \$10,800 in restitution by the **U.S.
District Court for the District of Maryland** (***U.S. v. Zandford***,
Criminal Action No.WN-94-0165 (DMD 1995)). The **Securities and Exchange
Commission (SEC)**, to recover the remainder of the stolen funds, then
filed a civil suit, alleging violations of **§10 of the Securities
Exchange Act of 1934 (Act)** and **SEC Rule 10b-5**, for engaging in a
scheme to defraud the Woods and misappropriating their securities
without their knowledge or consent. Based on the criminal conviction,
the **U.S. District Court** granted the **SEC's** motion for summary
judgment in the civil case. But was Charlie's scheme to steal the Woods'
assets generally, or was it a scheme to manipulate a particular
security? The **U.S. Court of Appeals for the Fourth Circuit** thought
this was critical, and so was most critical of the **District Court**.
Instead of affirming the **District Court**, this appellate court,
finding the former to be true, dismissed the civil complaint, holding
that the **federal securities law** does not apply in general fraud
cases, which, the **Court** said, have no relationship to market
integrity or investor understanding, but only applies to the
manipulation of a particular security. Therefore, there was no
**§10(b)** violation as neither the criminal conviction, nor the
allegations in the civil complaint, established that there was fraud "in
connection with the purchase or sale of any security." End of story? Not
quite! \"I have not yet begun to fight,\" was the echo from the past of
"Justice John Paul Jones" (oops! Stevens). Loading his mighty quill,
Justice Stevens wrote for a unanimous **U.S. Supreme Court,** that
assuming the **SEC** allegations true, Zanderford's conduct was "in
connection with the purchase or sale of any security," for among
"**Congress** objectives in passing the **Act** was to ensure honest
securities markets and thereby promote investor confidence after the
market crash of 1929," by substituting "a philosophy of full disclosure
for the philosophy of ***caveat emptor*** and thus to achieve a high
standard of business ethics in the securities industry." Here, he then
scribed, "the **SEC** complaint describes a fraudulent scheme in which
the securities transactions and breaches of fiduciary duty coincide.
Those breaches were therefore in connection with the securities sales
within the meaning of **§10(b).** Accordingly, the judgment of the Court
of Appeals is reversed." ***Securities and Exchange Commission v.
Zandford,*** 535 U.S. 813 (2002). An obviously reinvigorated **SEC**
"zandily" remarked through its subsequently "devigorated" Chairman
Harvey Pitt: \"We are gratified that the **Supreme Court** \... endorsed
the **SEC's** long-standing position and enabled the **SEC** to continue
aggressive enforcement action against brokers who abuse their clients'
trust in securities transactions.\" Yes, the **SEC** now certainly
appears to be on its way out of the woods! **\[17\]**

**[SUPREMES STRENGTHEN PATENT MONOPOLY.]{.underline}** A unanimous
**U.S. Supreme Court** recently strengthened the **constitutionally**
granted **patent monopoly**. In ***Warner-Jenkinson Co.* v. *Hilton
Davis Chemical Co*.** 520 U.S. 17, 29 (1997), the **High Court** had
held that competitors could rely on a patent's "prosecution history" to
"estop" the patent holder from claiming subject matter under its patent
that it had surrendered through the "claims narrowing" amendment
process, as a condition of obtaining the consent of the **Patent and
Trademark Office (PTO)** to its proposed "pending" patent. Now, in
***Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co.,*** 535 U.S. 722
(2002), the **High Court** has backed off from this holding. Justice
Anthony Kennedy, writing for a unanimous **Court**, advised that the
**U.S. Supreme Court's** revised holding is that "**prosecution history
estoppel**" does not bar the asserting of infringement against
***every*** equivalent, and the patentee should have the opportunity to
rebut this presumption that "**prosecution history estoppel**" bars a
finding of equivalence, by demonstrating that at the time of the claim
narrowing one skilled in the art could ***not*** reasonably be expected
to have drafted a claim that would have literally encompassed the
alleged equivalent. Under the **Doctrine of Equivalents**, one cannot
simply take the patented engineering and design of another, change, for
example, a clamp to a screw, and call it new. Festo, a German industrial
equipment manufacturer, sued Shoketsu (SMC), a Japanese pneumatics
maker, for infringing two of its **patents** for "rodless cylinders."
When the patent examiner rejected Festo's patent applications because of
alleged defects in description (35 U.S. C. §112), Festo amended the
first application by adding a new limitation that the outer sleeve of
its "rodless cylinders" would contain "magnetizable" material, and
narrowed the claims of both applications by adding a pair of "one-way
sealing rings." SMC allegedly eliminated the second ring, by
substituting one "two-way sealing ring," eliminated the use of magnetic
material in the sleeve, and claimed it as its own. Festo sued, claiming
that under the **Doctrine of Equivalents**, SMC's device was so similar
as to infringe its patents. The **High Court** reversed the ***en
banc*** holding of the **U.S. Court of Appeals for the Federal Circuit**
(234 F.3d 558), that "prosecution history estoppel applied"
unconditionally, and remanded the case for the lower court to give Festo
the opportunity to rebut this presumption**. \[17\]**

**[NON-CLASS actors MAY APPEAL.]{.underline}** Justice Sandra Day
O'Connor, Honorary FBA West Penn Advisory Council Member, writing for
the 6-3 majority of the **U.S. Supreme Court,** determined that you need
not be acting as a named class member to appeal. In ***Devlin v.
Scardelletti***, 536 U.S.1 (2002), the **High Court** found that as
non-named "class members are parties to the \[**Class Action**\]
proceedings in the sense of being bound by the settlement," it is
required that such "class members be allowed to appeal the approval of a
settlement when they have objected at the fairness hearing. To hold
otherwise would deprive non-named class members of the power to preserve
their own interests in a settlement that will ultimately bind them,
despite their expressed objections before the trial court." Here
petitioner is a retiree who participates in a defined benefits pension
plan (the Plan) that was amended in 1991 to add a cost of living
increase (COLA). Because its trustees subsequently determined that the
Plan could not support the large benefits increases caused by the
COLA's, in 1997 its trustees eliminated the COLA and filed a class
action in the **U.S. District Court for the District of Maryland**,
seeking a **Declaratory Judgment** that the 1997 amendment was binding
on all Plan members or, in the alternative, that the 1991 COLA provision
was void. The **Sixth Circuit's** affirmance (265 F.3d 195) of the
District Court's denial of this right to appeal was reversed. Justice
O'Connor appears to have based her reasoning, in part, on "the fact that
petitioner had no ability to opt out of the settlement" as it was for a
**Declaratory Judgment** (see **Fed. Rule Civ. Proc. 23(b)(1)**). The
question, therefore, remains, would the same be true in Class Action
proceedings, say for monetary damages, where the non-named class member
could have opted out? **\[19\]**

**[POLITICS AT BAY]{.underline}**. According to Thomas Ferraro of
**Reuters**, the **U.S. Supreme Court's** ruling in ***Bush v. Gore,***
531 U.S. 98 (2000), which was by a divided **Court** allegedly splitting
along political and/or ideological lines, "effectively decided the 2000
presidential election in favor of Bush when it refused a request by
Democrat Al Gore for a recount of thousands of disputed Florida
ballots." No matter whether or not you look upon ***Bush v. Gore*** as a
political decision, at least the same cannot be said with regard to the
**Supreme Court's** immediate response to the recent New Jersey
senatorial ruckus. **Article I, Section IV, Clause 1, of the U. S.
Constitution** provides that: "The Times, Places, and Manner of holding
Elections for **Senators** and **Representatives**, shall be prescribed
in each State by the Legislature thereof." Pursuant to this
constitutional mandate, the New Jersey Legislature enacted such election
laws and, as it does with all New Jersey legislation, the New Jersey
Supreme Court interprets and rules upon them. With regard to the
withdrawal, in disgrace, of Senator Robert G. Torricelli as the
Democratic U.S. Senatorial candidate less than 35 days prior to the
election, the New Jersey Supreme Court ruled that the substitution of
former U.S. Senator Frank Lautenberg was permissible, "having concluded
that the equitable relief sought herein is not inconsistent with the
precedent of this Court and the terms of the statute," that "N.J.S.A.
19:13-20 does not preclude the possibility of a vacancy occurring within
fifty-one days of the general election," and that "the Court should
invoke its equitable powers in favor of a full and fair ballot choice
for the voters of New Jersey" (***The New Jersey Democratic Party, Inc.
V. Samson, N.J. Attorney General*** (NJ Sup Ct, A-24 Sept Term 2002, No.
53,618, Oct 2. 2002)). In response to the Republican's again baying to
the **U.S. Supreme Court** to hold the Democrats at bay, the **High
Court** issued the following "Order in Pending Case ... The application
for stay presented to Justice Souter and by him referred to the Court is
denied" (***Forrester v. New Jersey Democratic Party, Inc.,*** **No.**
02A289, 537 U.S.\_\_\_ (2002)). It waits to be seen if there will be
more such barking, baying and holding at bay; or if we can returning to
those idyllic imaginary days of living like a Bey in opulent bay robes,
with brimming bays, bountiful bay leaf buns, sunny bay windows, balmy
bay views, splashes of bay rum, and old Bay at bay at the bayberry bush.
Or better yet, viewing some bodaciously audacious re-runs of ***Bay
Watch*** (but, perchance, that's just what we're already doing!).
**\[22\]**

**[JEFFERSON ON THE CHURCH & STATE "WALL."]{.underline}** "I contemplate
with sovereign reverence that act of the whole American people which
declared that their legislature should '**make no law respecting an
establishment of religion, or prohibiting the free exercise thereof,**'
thus building a ***wall*** of separation between Church & State. ...
That society shall here know that the limit of its rightful power is the
enforcement of social conduct; while the right to question the religious
principles producing that conduct is beyond their cognizance." **Thomas
Jefferson's** letters to the Danbury and Delaware Baptist Associations
of January 1, 1802 and July 2, 1801, citing the **First Amendment to the
U.S. Constitution** (emphasis added). The strength of **Jefferson's
Wall** has wavered from time to time. In most recent times, the **U.S.
Supreme Court** has both sharply intensified its strength by banning all
public school sponsored prayer, and de-intensified it a bit by
permitting states to adopt school voucher programs where there is a
non-religious valid public purpose for so doing, even if most of the
funds may find their way to the coffers of religious schools. The former
was just two years ago in the 6-3 school sporting events decision in
***Santa Fe Independent School District v. Doe***, 530 U.S. 290 (2000):
"The policy is invalid on its face because it establishes an improper
majoritarian election on religion, and unquestionably has the purpose
and creates the perception of encouraging the delivery of prayer at a
series of important school events." The latter this year in the nearly
split 5-4 school voucher decision in ***Zelman V. Simmons-Harris**,* 536
U.S. 639 (2002). Now a new test of **Jefferson's Wall** has exploded on
the scene. A three-judge panel of the **U.S. Court of Appeals for the
Ninth Circuit**, by a 2-1 majority, has found the phrase \"under God\"
in public school recitations of the **Pledge of Allegiance** to be
**unconstitutional,** as taking the **Pledge** from the secular side of
**Jefferson's Wall** where it had resided for its first for 62 years.
The historical prospective is that there was no **Pledge of Allegiance**
until 1892, when socialist clergyman and editor Francis Bellamy wrote
for ***The Youth\'s Companion*** the original "Godless" generic **Pledge
of Allegiance**: \"I pledge allegiance to my flag and to the Republic
for which it stands: one nation, indivisible, with liberty and justice
for all.\" (The word Bellamy really wanted to add, but was dissuaded
from, was "equality" not "God.") Sixty-two years later, during the era
of the Cold War and McCarthyism, Congress inserted "under God" (but not
"equality") into the Pledge, primarily through the efforts of the
Knights of Columbus, a Catholic men's club, to distinguish the Pledge
from similar rhetoric used by the so-called \"godless communists.\"
According to the Panel's opinion, written by Circuit Judge Alfred T.
Goodwin, inserting "under God" is as **unconstitutional** as inserting
\"we are a nation \`under Jesus,\' a nation \`under Vishnu,\' a nation
\`under Zeus,\' or a nation \`under no god,\' because none of these
professions can be neutral with respect to religion,\" and, therefore,
would be a government endorsement of religion in violation of the
**First Amendment**. And according to Susan Jacoby in ***Newsday***, at
the 1787 Constitutional Convention our founding fathers extensively
debated using the word "God" in the **U.S. Constitution** "and the
secularists prevailed." But, by Zeus, we have yet to hear from the full
**Ninth Circuit** or the **U.S. Supreme Court**. \[18\]

**[CHECKS AND BALANCES WERE AT WORK.]{.underline}** According to the
American Immigration Lawyers Association (AILA), the **Illegal
Immigration Reform and Immigrant Responsibility Act of 1996** (IIRIRA)
and the **Anti-Terrorism and Effective Death Penalty Act of 1996**
(AEDPA) "subject long-time lawful permanent residents to deportation for
minor offenses that may have occurred years in the past.... Under the
**1996 laws**, immigrants routinely are detained without bond, deported
without consideration for discretionary relief, restricted in their
access to counsel, and barred from appealing to the courts.... Low-level
immigration officials act as judge and jury, and the **Federal Courts**
lack the power to review most deportation decisions and **INS**
activities." But times may have been a changing. Shortly before 9/11 the
**U.S. Supreme Court** found **habeas corpus** proceedings still
available to such immigrants because **Congress** had not clearly stated
its intent to foreclose all **habeas** review, which would be necessary
in light of the serious constitutional questions that any such effort
would raise under the **Suspension Clause** (***INS v. St. Cyr,*** 533
U.S. 289 (2001)); rejected the government's assertion that the **INS**
can indefinitely detain aliens who have been found deportable but are
unlikely to be deported in the reasonably foreseeable future, either
because their foreign citizenship cannot be clearly established or
because their country of origin is unwilling to accept them (***Zadvydas
v. Davis***, 533 U.S. 678 (2001): "A statute permitting indefinite
detention of an alien would raise serious constitutional problems"); and
refused to apply a provision of the 1996 law retroactively, absent a
clear indication from **Congress** that it was meant to apply
retroactively. Then, too, legislative attacks are being mounted in
**Congress,** such as Representative Bob Filner's (D-CA) proposed "H.R.
87, the **Keeping Families Together Act of 2001**, which \[according to
the AILA\] would address many of the problems that have resulted from
the **1996 laws** \[the **IIRIRA** and the **AEDPA**\]." Indeed, in
compliance with the **High Court's** Ruling the **INS** had advised it
was releasing 359 such detainees, and even **President Bush** had
announced that he wanted up to 3 million illegal Mexican residents
granted legal status. **\[7\]**

**[PASS THE FIFTH!]{.underline}** The **U.S. Supreme Court** recently
summarily reversed a judgment of the Ohio Supreme Court that had held
that the **Fifth Amendment** privilege against self-incrimination did
not apply to witnesses who claim to be innocent. "To the contrary," the
**High Court's** unanimous ***per curium*** opinion stated, "one of the
**Fifth Amendment's** basic functions . . . is to protect ***innocent***
men . . . who otherwise might be ensnared by ambiguous circumstances"
(***Ohio v. Reiner***, 532 U.S. 532 (2001); emphasis ***in*** original).
\[7\]

**[HOW KNOW BROWN COW?]{.underline}** Recent **U.S. Supreme Court**
**Fourth Amendment** decisions, according to some commentators, have not
exhibited any discernable pattern. For example, the **High Court** has
ruled that police ***may stop*** drivers for burnt-out taillights or for
not wearing seat belts and then arrest them without a warrant, the
effect of which is to permit "a legal search incident to the arrest"
(***Atwater v. Lago Vista*,** 532 U. S. 318 (2001)). But, because of the
lack of a warrant, police ***may not just stop*** cars at roadblocks for
the purpose of searching them for drugs (***Indianapolis v. Edmond*,**
531 U. S. 32 (2000)). But, then again, according to dicta in the
pre-9/11 warrant-less stop case of ***Indianapolis v. Edmond, supra***,
the police my establish roadblocks because of emergency conditions not
generally present in narcotics checkpoints, such as to \"thwart an
imminent terrorist attack or to catch a dangerous criminal who is likely
to flee by way of a particular route." Simple, you may say, you need a
prerequisite offense, no matter how slight, or emergency conditions,
before there can be a warrant-less search. How about police ***being
permitted*** to detain an individual outside of his trailer home for two
hours while they obtain a search warrant based on the suspicion of drugs
being present within the home (***Illinois v. McArthur***, 531 U. S. 326
(2001)); while ***not permitting*** police, without a warrant, to aim a
heat-detecting devices at a home, from outside the home, to detect the
presence of heat readings in or about the home indicative of drug
related activities (***Kyllo v. United States***, 533 U. S. 27 (2001)),
or to test pregnant women for drugs in a public hospital, even for the
asserted special purpose of protecting fetal health (***Ferguson v.
Charleston***, 532 U. S. 67 (2001)). The bottom line appears to be that
the **High Court** is sending a signal to law enforcement that search
warrants are still necessary, laudable motives not withstanding (in the
detainee case a warrant was actually obtained), unless there has been a
lawful arrest, even if it only be a mere "custodial arrest" for a
fine-only offense, or an emergency. So then "again" again, "how now
brown cow?" **\[6\]**

[ARBITRATE OR RUINATE]{.underline} -- The **United States Supreme
Court** ruined the chances of a Circuit City employee having his
discrimination suit heard by a Court of Law, when it ruled that, under
the Federal **Arbitration Act** **of 1925** (9 U. S. C. §1), he was
bound by his written agreement in his employment contract to "settle any
and all previously unasserted claims, disputes or controversies arising
out of or relating to my application or candidacy for employment,
employment and/or cessation of employment with Circuit City,
***exclusively*** by final and binding ***arbitration*** before a
neutral Arbitrator \[emphasis in original\]. By way of example only,
such claims include claims under federal, state, and local statutory or
common law, such as the **Age Discrimination in Employment Act**,
**Title VII of the Civil Rights Act of 1964**, as amended, including the
amendments of the **Civil Rights Act of 1991**, the **Americans with
Disabilities Act**, the law of contract and the law of tort.\"
***Circuit City Stores, Inc v. Adams,*** 532 U.S. 105 (2001). **\[3\]**

**[COPYRIGHT UNLIMITED]{.underline}**. The **U.S. Supreme Court
decided** this term that "the author's life plus 70 years" is within the
"limited" **copyright** contemplated by the **U.S. Constitution**. Thus,
even under this extended term that can significantly exceed 120 years,
the **Constitution,** though not all its **Amendments,** has outlived
its copyright, if any, though not its usefulness. But what of the
**Bible's copyright,** if any? Unlimited many may say! ***Eldred v.
Ashcroft,*** No. 01--618, 537 U.S. \_\_\_ (2003). **\[24\]**

> \*\*\*

[POST SCRIPT:]{.underline} To some readers certain of our news items may
appear to be incredible or incredulous. However, Federally Speaking just
reports on the Federal legal scene. Will Rogers succinctly summed it up
when he quipped: \"I don\'t make jokes. I just watch the government and
report the facts.\" **\[17\]**

**[BACK ISSUES.]{.underline}** This column often carries stories
continuous in nature, and may "bring issues back" or even "back into
issues." To aid in getting the "whole story," the **U.S. District Court
for the Western District of Pennsylvania** has graciously made all back
issues of ***Federally Speaking*** available on their web site at
<http://www.pawd.uscourts.gov/Headings/federallyspeaking.htm>. The
column numbers and the bracketed \[ \] numbers refer to the column
numbers in the ***Federally Speaking*** ***Index*** on the WDPA website.
**\[24\]**

> \*\*\*

*This **Special Compilation Issue** of* *the editorial column* Federally
Speaking *brings together, with a modicum re-editing, most of the **U.S.
Supreme Court** related items covered in the first 26 issues. The
purpose of* Federally Speaking *is to keep you abreast of what is
happening on the Federal scene, with the threefold objective of being
educational, thought provoking, and entertaining. **The views expressed
are those of the persons they are attributed to and are not necessarily
the views of the FBA, this publication or the author.** Please send any
comments and suggestions you may have, and/or requests for information
on the **Federal Bar Association** to: Barry J. Lipson, Esq., FBA Third
Circuit Vice President, at the Law Firm of Weisman Goldman Bowen &
Gross, 420 Grant Building, Pittsburgh, Pennsylvania 15219-2266.
(412/566-2520; FAX: 412/566-1088; E-Mail: blipson@wgbglaw.com).*

Copyright© 2003 by the Federal Bar Association, Western Pennsylvania
Chapter.