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Posted March 23, 2011

Inside the Supreme Court: Clinic Instructors Argue Two Cases on Same Day

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Members of the Supreme Court Litigation Clinic traveled to Washington, D.C., Monday for arguments in two clinic cases.

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Mary Wood

The U.S. Supreme Court heard two cases argued by instructors from the Law School’s Supreme Court Litigation Clinic on Monday, a first for the five-year-old clinic. Professor Dan Ortiz argued Borough of Duryea v. Guarnieri at 10 a.m. and clinic instructor Mark Stancil took on Fox v. Vice one hour later. The Supreme Court receives approximately 10,000 case petitions each year, and grants and hears about 75 to 80 cases. Including upcoming arguments, the clinic has landed eight cases before the Supreme Court since the course began in 2006.

Clinic student Wells Harrell offers this account of the day’s events.

The Supreme Court Litigation Clinic reached a milestone on Tuesday when, for the first time in its history, the clinic argued two cases back-to-back. That morning, nearly everyone involved in this year's clinic could be seen either at counsel table or in the gallery. Current clinic participants who attended Tuesday's oral arguments were Stewart Ackerly, Steph Cagniart, Chris Cariello, Will Carlson, Martha Kidd, Sterling LeBoeuf, Brinton Lucas, Adam Milasincic, Noah Mink, Tristan Morales and myself. Also attending the arguments was one of last year's clinic participants, Sarah Robertson, who had worked on Guarnieri at the certiorari stage and is currently clerking on the 11th Circuit, as well as clinic instructors John Elwood, David Goldberg and Toby Heytens. 

Some students stayed overnight in the D.C. area on Monday, but most of us made the familiar trek up U.S. 29 before dawn on Tuesday. Having tickets to observe the arguments allowed us to bypass the public line. We put our cell phones and valuables in lockers, and then checked in with the marshal. We were seated in the reserved section quickly. At 10 a.m. sharp, the marshal called the court to order, and the justices took their seats. After admitting new members to the Supreme Court Bar and announcing two opinions, the court heard arguments for the two clinic cases.

Representing the petitioner in Borough of Duryea v. Guarnieri, Dan Ortiz argued that the petition clause does not protect a public employee's petition about a matter of purely private concern. He quickly drew questions about whether the proper test for petition clause claims by public employees might focus on whether the petition addresses government as employer or as sovereign. In response, Dan argued that "in practice, that inquiry would not align much differently than the Connick inquiry," which asks whether a public employee's speech involves a matter of public concern.

Dan Ortiz

Dan Ortiz

"This is a case," Dan noted, "where the petition does concern purely employment matters" and is "directed at the government in its capacity as sovereign." When the questions turned to the clause's protection of lawsuits, Dan argued that extending Connick's public concern requirement to public employee petitions would be "consistent . . . with [the] court's twin constitutional framework principles," which involves reference to "disruption something is likely to pose to the workforce" as well as "how central it is to the particular constitutional provision involved." Dan concluded by listing the many problems with adopting the respondent's contrary rule, which "would allow for the easy circumvention of Connick," and "require the court to create a hierarchy between speech claims and petition claims." His rebuttal to respondent's argument succinctly underscored the danger of "constitutionaliz[ing] public employee grievance" and arbitration processes.

Following a short break, the court heard from the petitioner in Fox v. Vice, who argued that a defendant against a frivolous federal civil rights claim cannot receive attorney's fees if the plaintiff has asserted a factually interrelated, nonfrivolous state law claim. Mark Stancil argued for the respondent afterwards and immediately noted that "inclusion of even a frivolous section 1983 claim imposes significant additional burdens as part of the litigation." Noting that "[s]ection 1988," the fee-shifting statute at issue, "does not reference state law claims that may be factually overlapping," Mark stated that a party defending a frivolous section 1983 claim is eligible to receive at least some attorney's fees.

Mark Stancil

Mark Stancil

None of the justices appeared to challenge Mark on this proposition. He argued further that a district court contemplating an award for a fee-eligible defendant should ask "how much of the action or proceeding to enforce section 1983 was frivolous?" Urging the court to reject the petitioner's proposed test, which would award only those fees incurred "but for" the frivolous claims, Mark stressed the importance of a district court's discretion in calculating an award. "The abuse of discretion standard has worked fairly well for the better part of three decades," he said, and "[t]he district court has discretion to award fees fairly attribut[able] to the portion of the lawsuit that is declared frivolous." The justices asked many questions specific to the case's unusual facts and posture, but Mark quickly responded to each with a pointed answer and a cite to the record.

Dan and Mark performed spectacularly. Both spoke with confidence, clarity and conviction. They showed a command of the factual and legal issues that made their analysis credible and persuasive. Nowhere was this command more evident than in their responses to difficult questions; I cannot recall a single instance in which either of them dodged a question, or made a misstatement of fact or law. Watching these skillful lawyers, and seeing first-hand reflections of our assistance in crafting their briefs and presentations, made observing the arguments immensely satisfying.

After the court had adjourned, the attending clinic instructors and participants enjoyed lunch at a restaurant in nearby Union Station. Dan invited a special guest: Eric Schnapper, the opposing counsel who argued for the respondent in Guarnieri. In addition to reflecting on how the clinic's work affected his litigation strategy, Schnapper (and Dan) stressed the importance of credibility and camaraderie among lawyers. Seeing these two lawyers sitting side by side and amicably chatting just hours after arguing against one another really drove the point home, as did Chief Justice John Roberts’ reference to Mark's opposing counsel as "[y]our friend" during argument.

The Supreme Court will hear four cases from the clinic this term, a school record. Professor Jim Ryan argued Kevin Abbott v. United States in October and clinic instructor John Elwood will argue Nevada Comm. on Ethics v. Carrigan in April.