Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases that will be covered are included below.
- In re Grand Jury (Jan. 9) - Professional Responsibility; whether a communication involving both legal and non-legal advice is protected by attorney client privilege when obtaining or providing legal advice was one of the purposes behind the communication.
- The Ohio Adjutant General’s Department v. Federal Labor Relations Authority (Jan. 9) - Labor Law; whether the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, empower it to regulate the labor practices of state militias.
- Glacier Northwest, Inc. v. International Brotherhood of Teamsters (Jan. 10) - Labor Law; Whether the National Labor Relations Act impliedly preempts a state tort claim against a union for intentionally destroying an employer's property in the course of a labor dispute.
- Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. (Jan. 11) - Federalism; whether the Puerto Rico Oversight, Management, and Economic Stability Act’s general grant of jurisdiction to the federal courts over claims against the Financial Oversight and Management Board for Puerto Rico and claims otherwise arising under PROMESA abrogate the Board’s sovereign immunity with respect to all federal and territorial claims.
- Santos-Zacaria v. Garland (Jan. 17) - Immigration; whether the court of appeals correctly determined that 8 U.S.C. 1252(d)(1) prevented the court from reviewing petitioner's claim that the Board of Immigration Appeals engaged in impermissible factfinding because petitioner had not exhausted that claim through a motion to reconsider.
- William Hodes, Professor Emeritus of Law, Indiana University; Co-Author, The Law of Lawyering
- Tessa E. Shurr, Litigation Associate, The Fairness Center
- Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
- Moderator: Anna St. John, President and General Counsel, Hamilton Lincoln Law Institute
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Nate Kaczmarek: Good afternoon, and Happy New Year. Today we kick off The Federalist Society’s 2023 Practice Group programming with another installment of our “A Seat at the Sitting” series. As you know by now, this webinar is designed to preview the January Supreme Court docket in 90 minutes or less. Once more, we are happy to have with us a panel of accomplished legal experts, and we are delighted to learn more about what will be in front of the Court very soon.
My name is Nate Kaczmarek. I’m Vice President and Director of the Practice Groups. As always, please note that The Federalist Society doesn’t take any positions, and all expressions of opinion belong to our guests.
We are certainly very happy today to have Anna St. John leading the discussion. Anna, welcome. How are you?
Anna St. John: I’m well. Thank you.
Nate Kaczmarek: Great. Well, very well. We are excited to have you, and excited to have today’s presentation. Anna is the President and General Counsel of the Hamilton Lincoln Law Institute. Since March 2015, she worked for the Center for Class Action Fairness, which has moved over to Hamilton Lincoln. She has argued in dozens of state and federal trial and appellate courts, returning over $100 million in settlement funds to class members. Previously, she clerked for the Judge Barksdale on the Fifth Circuit and was an attorney with Covington & Burling. Anna is a graduate of Columbia Law School, where she was a James Kent Scholar.
Full bios for Anna and all our guests are available on our website and the promotional emails you received for today’s program.
In a moment, I will hand it off to Anna. Once the group has reviewed the upcoming cases, we’ll go to audience Q&A, so audience, please prepare your questions. Questions can be submitted via the Zoom Q&A function, and we’ll do our best to address as many of the questions as we can and time allows.
With that, thanks for being with us this afternoon. Anna, the floor is yours.
Anna St. John: Thanks so much for that, Nate. And thank you to The Federalist Society for providing this forum and so many others for us to expand our knowledge of today’s most important legal issues. I’m thrilled to be here with all of you and with our esteemed panelists. As you know, our program is called “A Seat at the Sitting – January 2023.”
This month’s session has been called “quiet and low profile.” I’m curious to see if our panelists agree with that description, or perhaps, it’s simply a direct comparison to the handful of truly blockbuster cases heard earlier in the term. While I'm not certain of their opinions, I am certain we’ll have a lively and interesting discussion today. We have resolved to limit our discussion to 90 minutes. It is far too early in the new year to be breaking resolutions so we will be sticking firmly to that time limit.
In just a moment, I’ll introduce our wonderful panelists. Then, each one of them will give an overview of one of the cases. I’ll then give a very brief overview of two additional cases. And following that, we’ll have some cross discussion among the panelists, and we will save time for questions from you, the audience, at the end. So if you have a question that you’d like to ask any of our panelists, as Nate mentioned, please submit it through the Q&A feature at any time during the presentation, and we’ll look forward to seeing those toward the end of the program. So without any further ado, let’s get started.
Our first panelist is Tessa Shurr. She is a Litigation Associate at The Fairness Center, where she focuses on representing clients in state and federal courts and before administrative boards. Tessa graduated from Penn State Dickinson Law School, where she served as Managing Editor of the Dickinson Law Review. Prior to joining the Fairness Center, Tessa counseled high-level leadership at the Department of Justice’s Office of Legal Policy on legislative and regulatory matters. She assisted the Department of Defense with procurement, and she worked on both civil and criminal cases at the U.S. Attorney’s Office for the Middle District of Pennsylvania. She’s also authored in academic work, proposing a new regulatory scheme for digital assets and cryptocurrency. We’re excited to have you here today and hear your thoughts on The Ohio Adjutant General’s Department v. Federal Labor Relations Authority—that’s a mouthful.
Next, we have Professor Richard Epstein, who’s very well-known to many of you. He’s the Laurence A. Tisch Professor of Law at NYU, the Peter and Kirstin Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor Emeritus and Senior Lecturer at the University of Chicago. He has taught courses in administrative law, antitrust, constitutional law, contracts, and a whole host of other subjects. He is the founder of the Classical Liberal Institute at NYU Law School. He’s written and spoken extensively on a wide range of topics. I know many of us have had the pleasure of listening to him and reading his works. You know, truthfully, we could spend the whole panel on his biography, but I promised to keep our introductions short. So we look forward to hearing your perspective, Professor.
Last, but certainly not least, is William Hodes. Professor Hodes was a Professor of Law at the Indiana University School of Law from 1979-1999, where he taught professional responsibility, constitutional law, and civil procedure—a collection of subjects referred to as “the law of lawyering.” Professor Hodes took a sabbatical during October term 1996 at the age of 53 to serve as a law clerk to his law school professor, Justice Ruth Bader Ginsburg. Now, as a proud New Orleanian myself, I have to mention that Professor Hodes began his legal career in New Orleans at a small civil rights and personal injury firm after graduating with honors from Harvard College and earning his J.D. with highest honors from Rutgers Law School.
For over 35 years, he co-authored the treatise of Law of Lawyering, now in its Fourth Edition. And after retiring from law teaching in 1999, Professor Hodes began a solo legal practice, and he now provides representation, consultation, expert testimony, pretty much anything you need, to lawyers in the areas of the law of lawyering as well as constitutional, appellate, Supreme Court, and other complex litigation. We’re especially fortunate to have your insights today, Professor, on In re Grand Jury because you actually filed an amicus brief in that case on behalf of the Association of Professional Responsibility Lawyers. So we’re very happy to have you here today.
With that, I will turn the floor over to Tessa.
Tessa E. Shurr: Thank you, Anna, and good afternoon, everyone and Happy New Year. This is a great way to start off 2023. And thank you to those listening and joining our discussion today. Thank you to Anna for the introduction and to The Federalist Society for putting together this program and inviting me to speak.
I’m happy to kick off our discussion this afternoon by introducing you to Ohio Adjutant General’s Department v. Federal Labor Relations Authority. This is a lawsuit between the Ohio Adjutant General’s Department and the FLRA, which is the independent administrative federal agency that regulates the collective bargaining process between federal agencies and unions.
Under the Federal Service Labor-Management Relations statute, which people just call “the federal Statute”, FLRA has authority to regulate collecting bargaining activity of only federal agencies. So in this case, the Supreme Court will have to decide whether the Ohio National Guard constitutes a federal agency.
Interestingly, for the past 45 years, the Ohio National Guard and its union have been organized under “the federal Statute.” And on its face, that seems right because it’s undisputed that the employees of the Ohio Adjutant General’s Department are federal employees. The Technician Act tells us as much. But the relevant question for deciding FLRA jurisdiction is not whether the employees are federal employees; it’s whether the employer is a federal agency.
Now, the Ohio National Guard asserts it is a state agency, not a federal agency. And if that’s true, then the FLRA does not have jurisdiction over the Ohio National Guard. This issue got to the Court because of the way the FLRA regulates federal agencies’ collective bargaining. Unfair labor practices were filed against FLRA -- excuse me -- unfair labor practice charges were filed with FLRA against the Ohio National Guard. FLRA chose to issue complaints on those unfair labor practice charges. And by adjudicating those issues, the FLRA claimed jurisdiction over the Ohio National Guard.
Now the Guard asserts that FLRA had no authority to adjudicate those issues because it doesn’t have jurisdiction over the Guard to begin with. Its position is that the Ohio National Guard is a state agency, not a federal agency. So, again, the Court will have to decide whether the FLRA has the ability to regulate state National Guards. And that is the heart of this case.
I would like to take some time to highlight interesting points that were brought up by the parties and amici, starting with arguments in favor of finding the Ohio National Guard to be a state agency rather than a federal agency. The first and foremost being that Ohio National Guard is commanded by the Ohio governor. It’s supervised by the Ohio adjutant general, who is the state employee. And in fact, he’s appointed by the Ohio governor, and his responsibilities, his qualification requirements, and even his pay are set by Ohio state statute as opposed to federal.
Further, state adjutant generals have even been found to be liable as state actors under Section 1983. So finding that state National Guards are federal agencies does not necessarily mesh with that Section 1983 jurisprudence.
But on the flip side, there are arguments that the Ohio National Guard is a federal agency specifically that the state National Guards are significantly funded by the U.S. Department of Defense, which it’s undisputed that that is a federal agency. In fact, Congress even designated the National Guards as a reserved component for the United States Army. And as we touched upon earlier, the Technician Act tells us that these employees, these technicians, have been granted federal employee status.
So with these arguments in mind, on appeal from FLRA, the Sixth Circuit held that the Ohio National Guard is, in fact, a federal agency, mainly because the court was bound by its own prior decision in which it held that FLRA had jurisdiction over the Michigan National Guard. And the court reasoned that while each state unit of the National Guard is a state agency, is under state authority, is under state control, they employ federal employees. So because these state National Guards employ federal employees, they are federal executive agencies. And the Sixth Circuit acknowledged that if it were to accept the Guard’s argument that the Ohio National Guard is a state agency, then it would have created a circuit split, acknowledging that a handful of circuits have decided this issue, namely the D.C. Circuit, the Second, Fifth, Seventh, Eighth, and the Ninth Circuits have all decided that state National Guards are federal agencies under this “federal Statute.”
I will note, though, that the Fifth Circuit’s opinion acknowledges that if you're searching the statutory text of “the federal Statute,” if you're looking for the text, something in the text that tells you that the state National Guard is a federal agency, you're going to come up short. So the Fifth Circuit has admitted that its opinion departs from the logical text of “the federal Statute.”
So I will wrap up with some comments about this issue in this case. The first being that I think we can expect the Supreme Court to overturn the Sixth Circuit and find that the Ohio National Guard is not a federal agency within the jurisdiction of FLRA. In past years, FLRA has continued to expand its administrative power without being checked by the Court or really even being accountable to anyone. And right now the Court appears to be prepared to prevent FLRA from continuing to expand its power and expand its jurisdiction. And the Court seems prepared to decide not to defer to agency’s interpretation of its own statute. And it’s important to point out that the scope of FLRA’s decision is broad. It’s not just pertaining to the Ohio National Guard, but it effects thousands of state National Guard employees across the country, not just in Ohio. Moreover, the reasoning -- FLRA’s reasoning cannot be limited to National Guards because recall, FLRA decided it had jurisdiction over the Ohio National Guard because it employs some federal employees.
Now that’s true of -- there are a handful of other examples of federal employees employed by employers who are not necessarily federal agencies. So this reasoning we could see expanding to other fields, other federal employees, other employers becoming federal agencies for the purposes of collective bargaining falling under FLRA’s jurisdiction.
And finally, allowing FLRA’s decision to stand would revive a collective bargaining agreement with provisions that substantially violate thousands of employee’s First Amendment rights. Specifically, their First Amendment right to choose whether to associate with and to financially support a labor union.
At this point, I am short on time, but I’m happy to take questions at the end of the program, and if you're interested in digging into these issues in more detail, I refer you to the amicus brief that my colleague and I filed on this case. Thank you very much.
Anna St. John: Thank you so much for that, Tessa, and thank you for your insights on what sounds like a very interesting case. Again, before we move on to the next panelist, if you have any questions, there will be an opportunity for those at the end. We look forward to those and appreciate those, especially you being able to hear what’s of interest to you. And so with that, I will now turn things over to Professor Epstein.
Prof. Richard Epstein: Thank you very much. I’m speaking about a case which I think has fairly broad significance in the endless battle to figure out what the relationship is between state law control over the activities of given unions on the one side and the National Labor Relations Board’s control over the issue on the other. The case itself involves -- is a suit against the [inaudible 17:41] by a company called Glacier. And what this company does it supplies all sorts of heavy stuff and goo that is shipped around in various kinds of trucks. And the only way in which this works is you have to keep this thing mobile and moving so the trucks go sloshing around one way or another until you deposit it.
And what happened in this particular case is that the union had reached an impasse with the company over the new terms, and on the day in which it turned out that the old contract had expired, many of the people in driving the trucks—50, 60, 70 of them—took them out on the road and then brought them back to the factory where they came out of the plant from which they came out. And they just turned them off and walked away. So all of the concrete stuff and goo in there froze up and hardened. Caused at least $100,000 worth of damage in one situation, probably a lot more in the other. And the question is do you treat this as an act of industrial sabotage, which is out from underneath the National Labor Relations Act, or do you treat it as part and parcel of some particular situation in which the exclusive jurisdiction over the matter falls to the National Labor Relations Act.
The case has a couple of very high-powered attorneys doing it. Representing Glacier is Noel Francisco. I’m happy to say he was one of my former best students. They are basically trying to overturn a decision of the Washington Supreme Court, which said that this thing was covered by the National Labor Relations Act and so no private tort action would be allowed. On the other side, the Stanford Group headed by Professor Pamela Carlin has taken up the cudgels on behalf of the particular union.
To set this thing into place, it’s necessary to go back to an earlier decision called Garmon against another one of these unions, in which what we had was a situation in which the National Labor Relations Board refused to take jurisdiction over a particular case. And the issue in that particular case had nothing to do with freezing trucks and so forth. But there was a union organization drive that had taken place, and the union, as is typical in these situations, insisted that the people who are members of the union were the ones who ought to be given first preference in any organization drive. And the employer refused saying that the ranks of potential members of the union in this organization drive should include non-union members. What happened is the National Labor Relations Board decided not to execute any jurisdiction over this. And so what the folks at the state court level did in California -- it’s a very different California Supreme Court than the one that we have today -- is they said, “We looked around. This thing seems to be a pretty unfair labor practice on the part of the union. What we’re going to do is we’re going to give an injunction on the one hand and damages of $1,000 on the other hand.”
This thing gets back up to the United States Supreme Court, and it becomes pretty clear that the injunction is going to be denied. And so then the question was if the Labor Board refuses to take jurisdiction over the case, is an award of damage sufficiently coercive that this is something that’s going to be preempted by the labor statute. And Justice Frankfurter said yes these things are substitute remedies, and so therefore, it turns out that even though the Board has not taken the case, it preempts the situation here; and so, the action should not go.
So the question is how does this case then apply to the one that we have? And the first thing I think to understand is there is no question that the decision as to who is or not part of a drive for organization is absolutely at the core of the function of the National Labor Relations Act. And that the entire remedial structure in that particular statute is designed to say that it can give relief or not give relief in these kinds of cases. And so, if the issue is, quote/unquote, whether this is arguably subject to regulation of the NLRB, the answer is perfectly clear: It is not only arguably subject to but, I think, unquestionably subject to if it decided to take it.
When we’re dealing with the other type of situation having to do with the local destruction of property, that presents very, very different kinds of issues. And one has to say, “Well, how does the NLRB deal with those issues.” And you must understand that the way to NLRB is organized is that it has all sorts of powers to order reinstatement back pay and stuff like that. But it has absolutely no power whatsoever to award damages for the willful destruction of property that has been engaged in these particular cases. And so if you now say, in this particular situation, that it is preempted by the National Labor Relations Act, you're saying that we have a wrong here for which there is going to be no form of redress whatsoever. And the question is how do you want to sustain that particular drug [inaudible 22:53].
And when you went back to the Washington Supreme Court, they went out of their way to try to make it appear as though the two things looked rather similar. And what they said is any activity that takes place which is incidental to, or parallel to, an organization drive is going to be necessarily swept up under the particular statute.
It turns out that the statute, the reading in Garmon however, is not, I think, particularly consistent with that point of view because what it does is Justice Frankfurter, in an effort to figure out what’s going on, does the following: He says, “There are certainly matters of local fueling”—that phrase seems to be rather nebulous, but the full phrases was “local fueling and responsibility,” which are rightly put within the state. And then there are 13 separate references in the opinion to the fact that various acts of violence are, in fact, the kinds of things that are necessarily left within the framework of the state.
And so, what you have to ask is whether or not sabotaging these particular trucks counts as form of intentional property damages—which I think it does—therefore, the violence level seems to be a perfectly appropriate way in which to start to think of it. At which point, the exception will start to overrule the rule.
What is interesting is that neither the brief on behalf of the union on the Supreme Court or the decision below spent a great deal of time talking about the actual dispute, which took place in Garmon because the moment you do that, the contrast between the two cases is going to be absolutely vivid that one of these cases, in fact, is quite much within traditional state tort law situations—the destruction of property—and the other one is not.
Interestingly enough, another way in which this case can be talked about and was discussed below is whether or not it turned out that the employees failed to take some steps in order to protect the property in question. And, you know, that is not an accurate description of what went on in this particular case. You can imagine a situation where there are workers and they're sitting on a truck and somebody from the outside comes in and tries to wreck the machinery and to take the concrete load and destroy it. And what happens is the workers sit by and do nothing. That would be a case of nonfeasance, and it’d be a trickier case as to whether or not you would get a tort remedy against the workers, given the fact that you have a tort remedy against somebody else.
But in this particular case, you are the guys who loaded the trucks; you took them out; you took them back in; you turned the engine off; you walked away. And so it’s a case of the willful destruction of the property by the workers, not the failure to prevent the destruction by somebody else. And the distinction actually matters because in the case in which somebody else does the tort damages, you have a remedy against that party. In this particular case, you have no remedy at all under these circumstances.
So I’m going to make some kind of a prediction about the way in which this case is going to come out. I think that it is very clear, if you sort of look at the general politics that take place now, both in state courts and certainly in the Biden administration, virtually everything that they do is something which is necessarily devised in order to create a very strong pro-union environment. President Joe Biden said he’s the most pro-union guy you could ever imagine. And if you look at the opinion of the Washington Supreme Court, it’s a pretty pro-union situation.
The Supreme Court, I don't think, has that particular disposition. So I think I’m going to make a prediction in two parts. The first part is I think that the conservative six—and you know who they are as well as I do—are likely to say that the preemption argument cannot apply because this is a standard form of responsibility for the state, and nobody could infer, as a matter of statutory construction, that the National Labor Law was meant to that the states will help us to deal with concerted acts of violence, which is what was at stake in this particular case.
The interesting case is what’s going to happen to the other three. My view about this is that this case is sufficiently unbalanced, that the decision actually should be unanimous pushing in the opposite direction. What happens is we give unto Caesar what belongs to Caesar, and that turns out to be anything which has to do with the definition of a bargaining unit, the exclusion of various kinds of workers from an election poll, and so forth. But we render unto the law—that is the state court—those things which are not pertaining to union activities as such but are involved in the deliberate destruction of property of which we don’t think anybody thought that you had only the preemption of the Board so that there’s no remedy that’s going to be allowed at all.
And so on that particular note, I think I will turn it back to the crowd. I think it’s an important case, not only for what it says about this particular dispute but I do think it’s going to be a harbinger of what is likely to happen in many of the cases that are surely coming down the pipe in which on a whole variety of issues the Biden administration has taken an extremely aggressive opinion about what is the scope of union rise in prerogatives under the National Labor Relations Act. Okay.
Anna St. John: Well, thank you so much for that, Professor Epstein. We appreciate your insights. It’s a fascinating discussion, so thank you for providing that to us today.
We now are going to take a break from the labor issues and hear next from Professor Hodes. The floor is yours.
Prof. William Hodes: Thanks a lot, Anna, and I first need to just give one caveat about my voice. I don’t have COVID. I don’t have a cold. I don’t have a sore throat. But this is lingering for many, many months -- or weeks at least, of the after effects of a cold that I did have. But I think I can manage all right.
The case that I’m talking about, In re Grand Jury, which will be argued on the 9th, I believe, presents an opportunity for the Supreme Court to fine tune the standard for applying the attorney-client privilege in situations where the communications at issue involve giving or seeking legal advice, plus giving or seeking business or other non-legal advice—however you define the distinction between legal and non-legal. And of course, that will turn out to be the rub in many situations.
In this case, a law firm gave advice about the tax and other consequences of a client’s decision to expatriate. And then a couple of years later, more tax advice plus assistance in preparing his tax returns, including returns for some of the years when he’s in transition from the U.S. to his expatriation. The client, by the way, was an early promoter of bitcoin, not the most recent scandalous guys, far as we know, because most of the record is sealed in any event. But that’s the setting of the case.
The case arose when a federal grand jury subpoenaed documents from the client’s law firm. The law firm balked, and the government moved to compel answers to the subpoenas. The district court initially was actually fairly generous in upholding much of the law firm’s claim of attorney-client privilege. It ruled that, “Communications giving or seeking advice about what to claim on the tax returns constituted legal advice, and thus are privileged.” In addition -- so score one partial point or so, or more, for the law firm. In addition, even communications about the implications -- I guess the legal implications, of unsettled accounting questions are also communications about legal matters, and thus are also privileged. Score two for the law firm.
But when the communications had a dual purpose, in particular in this case where one of the purposes was the actual preparation of the tax returns, putting in the numbers but also what forms do you use, and how to file them, and maybe a little bit more than that, the district court ordered compliance. Said that is not legal advice. Separate it out. And the law firm was ordered to comply with the subpoena with respect to those communications but with an allowance for fairly generous redactions for the above types of legal advice. And so later we’ll get into “so what really did the law firm lose?” It was allowed to -- had to turn over some things, but it was allowed, nonetheless, to redact a significant amount where both the -- where at least the law firm and the court were in agreement that it was legal advice that could be redacted.
But when the law firm continued to refuse even to turn over redacted versions of the memos and communications, civil contempt followed. On appeal, the Ninth Circuit affirmed, first resolving something of an intra-circuit split by clarifying that in these dual-purpose communication cases, a dual-purpose communication is not privileged unless the primary purpose of the communication was to give or seek legal advice. This is also sometimes referred to as the predominant-purpose test. But the implication is clear in either event. There can be only one. If it’s the primary predominant purpose, it’s not privileged -- I’m sorry. If the -- unless the legal aspects are the primary or the predominate purpose, it’s not privileged. Period.
But that was not the end of the matter. The law firm argued for application of a competing standard from the D.C. Circuit, which is what created the inter-circuit split and brought us to the Supreme Court. When it applies the D.C. Circuit test, looks not to the single predominant purpose of a communication but to a predominate purpose or, as they also phrased it, one of the significant purposes of the communication when there’s more than one purpose. Now, according to the D.C. Circuit, it is precisely in what we are talking about dual purpose communications that it makes the least sense to try to figure out whether the purpose was a singular A or whether it was a singular B when, by hypothesis, it must have been A and B. Plus, in most realistic scenarios, trying to assign an all-or-nothing predominance to one or the other is too difficult and amorphous a task. And that is in addition to the difficulty of drawing a clean line between legal advice and the other advice in the first place, even before tackling which one, and only one of those predominated.
Now, the Ninth Circuit found some merit in this approach but refused to extend it from internal investigation of a client company, which is what was involved in the main Kellogg Brown & Root case in the D.C. Circuit to tax preparation advice, as was involved here. In large part, the Ninth Circuit refused to make that transition or make that extension because of the danger that companies might run everything through their lawyers, and thus manufacturer an accountants privilege in the tax arena at least, where the accountants were truly serving as accountants only and not as resources to information the lawyers’ legal work, where everyone agrees that the attorney-client privilege would attach just as when a translator, who is not a lawyer, is helping the client and the lawyer communicate and so on.
Now, in the Supreme Court, the parties and well over a dozen amici lined up in favor of either one or the other of these tests, either the primary, single purpose test or the “A” significant purpose test. And the legal press has largely assumed that the Supreme Court will pick one or the other of these, resolve the circuit split in a ruling with broad, national significance, more or less in the manner of the 1981 Upjohn case, which can turn the attorney-client privilege -- which concerned the attorney-client privilege as it applies to lawyers for corporate clients consulting with various corporate agents and other constituents. The controlling group test or not controlling group test and so on. But it’ll have that same kind of gradually seeping down and becoming a national standard gradually over time. But I have my doubts about that.
The contending positions, as I’ve already laid out, in my view they slice the bologna so thinly there is so much room for case-specific judgment that will remain even after the Court settles on the precise verbiage for stating the standard. And there are so many clues that this case itself is fact-driven and situation-specific that I predict a narrow ruling that’s, at a minimum, limited to the tax area only.
And in particular, there was a lot of hedging, both in the Ninth Circuit opinion and in the briefs, for starters, about what counts as legal verses tax advice, both generally and with respect to this law firm and this set of subpoenas. Thus, Supreme Court may be unwilling to commit to a single standard across the board, which is to say beyond the tax arena. And it might even contemplate, if it digs down further and further, it might even contemplate dismissing the writ of certiorari as improvidently granted.
Now, I want to say to The Federalist Society, save this tape in case I’m right on that one because that is fairly rare, but it happens maybe once a term or so.
But here are some of the clues that lead me to that conclusion. First, the Ninth Circuit found that this wasn’t a truly close case of dual-purpose communications anyway, where it’s hard to separate out the legal and the non-legal components and then to rank them: is it predominant or is it just one of several significant ones? It found that the district court’s finding that the non-legal advice was the one predominate purpose was not clearly erroneous. So it didn’t really have to reach any of the D.C. Circuit’s opinion. But that really means to me, and it might mean to the Supreme Court, that nothing really turns on which test is used because of the case specifics -- specific findings of the district court.
Second, even within the communications that the district court found were not privileged, it permitted, as I said, heavy redaction of the elements that were -- or that did constitute legal advice. And so you could say, and the Supreme Court could say, no harm, no foul. The law firm basically got almost everything that it wanted. And so once again, the stakes had been lowered.
And third, and finally, a seemingly innocent amendment to a couple of words in a footnote, which might catch the eagle eye of one of the clerks, could be the true case-specific merits rather than standards access, upon which this case actually turned. Footnote five, in the opinion that’s before the Court, deals with the danger that I mentioned before of creating an accountant’s privilege if the client is smart enough to hire a lawyer to do an accountant’s work. That footnote starts with this observation: “We are aware, for example, that normal tax return preparation assistance, even coming from lawyers, is generally not privileged.” Not much argument there. True privileges are in derogation of at least some pieces of the truth and must be narrowly construed. But in the original slip opinion, before it was amendment when petitions for rehearing were denied, that first sentence, instead of referring to tax return preparation assistance, simply referred to normal tax advice.
Now you can call me a nitpicker if you want, but it seems to me that an opinion discussing communications about tax advice and an opinion discussing communications about tax return preparation assistance are not interchangeable. They're only different, especially when you are asking the Supreme Court to set a single standard for determining the contours of the attorney-client privilege in the tax arena, let alone generally and nationally.9
Now, let me -- and I do have, I think, a couple of extra minutes to close with this. I want to say a word about yet another approach that gets at what I think are actually -- that are unlikely to be actually addressed by the Court, but I think are underlying it and that include this tension that I’ve already alluded to about what is it, what is true legal advice and what is other advice and how do we mediate between them and how do lawyer and clients approach them. And so, as a matter of full disclosure, as Anna mentioned, I was one of the co-authors of an amicus brief that was filed on behalf of the Association for Professional Responsibility Lawyers, known as APRL or “April.” Now as befits our organizational interest, we focused on the lawyer-client interaction at the time of the communications that later become the subject of an attorney-client privilege dispute. And we supported neither party, neither the government nor the law firm, by the way, because so much of the record was sealed that it was hard to figure out how applying any particular standard would play out, which also feeds into my view that, really, this is not truly about the standards.
Here’s the Readers Digest version of our amicus brief. First, as the Supreme Court has said, an uncertain privilege is no better than no privilege at all. Second, a crucial piece of legal advice that lawyers typically need to give to clients is whether this very conversation or this very communication that we’re having will or will not be privileged if it’s later subpoenaed. Third, lawyers are encouraged by the Rules of Professional Ethics to counsel clients broadly rather than merely as law-spouting computers. Putting these together, we concluded that the focus of any test or standard should be on certainty most of all.
So we wanted to focus on certainty in the test, whatever it is most of all. So although we preferred the D.C. approach to the singular all-or-nothing Ninth Circuit approach, as did almost all of the amici, by the way, we suggested that trying to figure out what is a substantial purpose under the D.C. approach, on the fly, without a sense of what party or tribunal might later come knocking with a subpoena, introduces further and unnecessary uncertainty. And that uncertainty could chill the free-flowing communications that the attorney-client privilege is designed to promote, which benefits not just lawyers and clients but society as a whole.
Yes, substantial is a word that is often used in the law, and yes, there is some danger that the Ninth Circuit recognize of abuse of lawyers trying to be overinclusive what they put in their communications. But on balance, we argued, the best rule would be to say that the entire communication should be protected by the attorney-client privilege if any purpose of a duel-purpose communication is the seeking or giving of legal advice, and thus, don’t need to decide either a prominent purpose or even the nitty-gritty of what is a significant purpose.
So I will end with that and turn it back over to Anna, our moderator, and then back to the floor.
Anna St. John: Thank you so much for that good and thoughtful discussion. We especially appreciate you powering through and wish you a speedy recovery for your voice.
As promised, I’ll now touch briefly on two other cases scheduled to be heard this month. While, I’m doing that, please collect your thoughts, submit any questions through the Q&A function, again, and we’ll be happy to turn to those shortly.
So on January 11, the Court will hear argument in Financial Oversight Board v. Centro de Periodismo Investigativo, Inc. And apologies for making all the Spanish speakers in the audience cringe with that pronunciation. At issue is whether Puerto Rico’s Financial Oversight Board is immune from a lawsuit filed by a non-profit press group seeking documents from the Board.
So as background, the Puerto Rico Oversight Management and Economic Stability Act grants federal jurisdiction over claims against the Financial Oversight Board and claims arising under the Act. The First Circuit held that while the statutory language was not as precise as other statutes that have been down to abrogate sovereign immunity, certain provisions of the Act here led to that result.
The petitioner, the Board, argues that the Act says nothing about abrogating sovereign immunity, which the Board has by virtue of Puerto Rico’s sovereign immunity. And that a clear and unmistakable statement is required to that effect, to abrogate sovereign immunity. The Press Group, the respondent, obviously takes a different position. It argues that territories are subordinated to Congress’ plenary authority by the Territory Clause in the Constitution, and therefore lacks any inherent sovereign immunity. So in other words, their argument is that Congress’ Territory Clause power lets Congress subject territories to suit in any court for any claim. The group also argues that there’s no clear statement rule for territories; that just applies to the states. But regardless, the statute here does express Congress’ intent to subject the Board to suit.
So what’s interesting about this case, I think, is that it involves a clause of the Constitution and a power that we don’t see addressed very often—that’s the Territories Clause—as well as sovereign immunity, so it should be an interesting one.
The Court will also hear Santos-Zacaria v. Garland. It will hear argument on January 17 to address the question whether federal immigration law preclude the Federal Court of Appeals from reviewing an immigrant’s claim that the Board of Immigration Appeals had engaged in impermissible fact finding because the immigrant had not filed a motion to reconsider. The statutory provision at issue, 8 U.S.C. § 1252(d)(1) requires a non-citizen to exhaust all administrative remedies available to the alien as of right. The question is not only whether to exhaust all administrative remedies requires the filing the motion to reconsider with the Board of Immigration Appeals but also whether that exhaustion requirement is jurisdictional or whether it can be waived for forfeited.
The Fifth Circuit below dismissed Santos-Zacaria’s appeal for lack of jurisdiction, and it’s a question the circuits are split on, so we’ll have to wait and see which position the Court sides with.
So that rounds up our overview of the cases. There’s still time to submit questions, and while you may be gathering your thoughts, I’ll first turn the floor over to our panelists to see if anyone wants to comment or ask questions of any of the others.
Prof. Richard Epstein: I’m going to get started on this one, and it sort of goes to all the questions. One, with respect to the situation that Tessa did, what I would like her to comment on, or to explain, is the very -- how the very distinctive status of the National Guard plays into the jurisdictional dispute under the Federal Labor Relations Act. The National Guard is a dual-status organization. Every member of the Guard receives two commissions: One to serve in the state militia and one to serve in the United States Army. And so what happens is the control over the situation with respect to these various people is that when the Guard is called up into national service, they become exclusively under federal control, otherwise they remain under state control. Does this in effect influence the way in which one ought to think about this because I would say if you're talking about the employee, does the dual-status provisions apply to them, or does it not? I’m not sure how that would be answered, so that would be the first question I would want to know.
And the second kind of thing that I would want to know is if it turns out that the primary state is that you're under state control, and only occasionally you're called up into federal service, should that be decisive in saying that, in fact, these are not federal employees? Tessa?
Tessa E. Shurr: Thank you, Professor Epstein, for those two questions. They're great questions, and I’ll start with the first one.
The bargaining unit of employees, in this case, is made up of technicians, who, as you point out correctly, are dual-status–part federal/part state employees. But I think it’s important to remember that the relevant question is whether the Ohio National Guard, as an agency itself, is a federal agency, taking a step back from the employees themselves. So the way that FLRA has reached its conclusion as it appears is it takes the status, the dual status, of the federal employees and says because these are federal employees, their employer—this agency—must be a federal agency. And I think that that’s where FLRA went wrong.
Prof. Richard Epstein: Because, in fact, they're predominately state.
Tessa E. Shurr: Yes, because it is controlled by the state. It’s predominantly state.
Prof. Richard Epstein: Yeah, and people who are curious about the history of this, this developed after the National Guard got into a huge battle in Congress—and I was, by the way, quite heavily involved in this. I don't know if anybody knew this—over the question as to whether or not the Guard units could be called over to send overseas. Under the 1952 statute, they could only be sent overseas with the consent of the governor. And for political reasons, many of the governors did not want to do it. This led to an effort on the part of the regular Army Reserve to essentially end the Guard as a separate independent and autonomous agency. And in order to fight that, there was something known in this Montgomery Amendment, which I helped draft with a man named Ed [inaudible 58:44], which essentially got rid of the government consensus requirement and said you could only hold them back if you have cause in order to do so for a local emergency.
So we did try to cut back a little bit on the state authority. But the truth about the matter is 95 percent of the time, most of the Guard units are, in fact, state employees. And if you did a kind of preponderance test, then I think that you would probably come out right under this situation. This can’t be the case that if they're called up, now they're federal employees and when they're sent back home, they're not. You have to pick one or the other. And there’s sort of a dominant or a primary test applied across the board to come to your conclusions. So that’s why I asked the question.
I had a question to --
Prof. William Hodes: Let me, let me -- I have a follow-up question to Tessa on this case, and then we’ll -- if you had something else, Richard.
And that is I wondered, Tessa, in the Ohio National Guard case, if anybody either in the briefs or in the opinions either wondered about or worried about whether if you decide that the National Guard, as an agency, is a state agency, that there might be lurking there a commandeering issue, that if it is a true state -- if it’s a state agency but we all know that the feds have a tremendous amount of control, operational control, might there be, harking back to the sovereign immunity issue that was in the last case that Anna mentioned, was there any, even an inkling, that there’s a commandeering issue lurking here?
Tessa E. Shurr: Yes, that was -- great point. That was a very significant point of contention prior to the Supreme Court granting cert on the limited question of FLRA’s jurisdiction. So the Supreme Court this time around will not be addressing that question of federalism and the commandeering question. But that is all throughout the briefing in the Sixth Circuit.
Prof. William Hodes: Okay, so you're saying it was raised, but it just didn’t make it to the Supreme Court? Oh, interesting.
Tessa E. Shurr: That’s correct.
Prof. William Hodes: So my instinct was right.
Prof. Richard Epstein: Look, the commandeering issue in this particular case is very different from the one that you’ve seen where you're trying to get sheriffs to do this, that, or the other thing in prints and so forth. Because what happened is the crisis actually began in 1917. And what happened was the United States was now at war, and Woodrow Wilson had to raise federal troops. And the question was whether or not they could nationalize the state militia and put them into the Army. And the correct argument is that you cannot possibly do this. If the Militia Clause is going to create an independent body, which is designed to check the federal government that can only be called up for defensive purposes, not for offensive purposes, you can’t do it. But Justice Pitney, who wrote the case, said, “Look. This is a political question. We don’t want to get involved with it. So off they go.” And then after the war, people started to look around and said, “Oh my god. If these guys are all federal people, we’re not going to be able to have the state guard do the traditional state [inaudible 01:02:17].”
So in 1931 or ‘2, what they did is they passed a dual-status statute which said that you get two commissions when you graduate: One in the state militia and one in the federal government. And what we do is we organize the federal budget—because it’s a large one—for the state militias through the Militias Cause, and we put them in the Army for the other cause. So this is not a case of trying to upset some sort of balance. The actual Militia Clause of the Constitution is a dual-authority clause to begin with. So the way in which it is written is it says the states are in charge of the militias until called into the active service of the United States, which cannot be done by the president unilaterally. It has to be done pursuant to a congressional statute. But in the interim, they are supposed to train their soldiers under a discipline which is supplied by the federal government, so when these people are called up, they can become interoperable.
And so you have this kind of a mutual dependency back and forth. It’s pretty hard to say that you're dealing with somebody who is a local sheriff, totally autonomous to begin with, right? And then you're dragging him into federal service, and so forth. What you say is these guys from the very beginning in the constitutional framework have this divided sovereignty. And there are places in the Constitution which do that, and they create complete messes because they're very, very hard to please.
And the other illustration of that is right now when we’re dealing with Moore v. Harper. If you start looking at the Clause, it says, well, the United States said these things, but time, place, and manner regulations are left to the state. And you have, again, the overlapping authority, and it’s not quite clear how you flip it over. But I don't think the commandeering objection is going to have anything like the power it does in the cases in which it was originally done, whether it was with the nuclear waste stuff or with the gun control statutes.
I have a question for you, my friend Bill. Look, my view about all of this stuff is that the distinction that they're making it too refined. So can I put it to you in a slightly different fashion? It seems to me that the clear distinction that you make is that if somebody is preparing an accountant’s return and just doing it the way my accountant does my return -- he’s an accountant; he gets no particular privilege. And if turns out he’s got a law degree and he practices law from time to time, what we ask is which hat he’s wearing at the particular moment. But I think, in fact, that he’s wearing his lawyer’s hat to try and figure out how you redact every document in every case is just crazy.
And so I think that the better thing to do is to grant the privilege of this, sort of, predominantly standard legal work. And the question I wanted to ask you: I assume in most of these cases that you can’t get these private papers, there’s still other documents that you get if you're the government that try to figure out -- when there’s no claim or privilege whatsoever, that could help you establish whether or not there’s a tax offense. And so I would’ve thought the existence of these alternatives would be an argument which would work in favor of your position. Is that right?
Prof. William Hodes: Well, I think so, but I want to first start out with we’re in basic agreement when my view both from the point of view of the brief writer for APRL but also just my own personal view, I use the view you used. The gradations are too fine. I said it’s slicing the bologna too thinly.
Prof. Richard Epstein: And I agree.
Prof. William Hodes: Same deal. We agree with that. We agree on that. And I think that one of the reasons why I felt that this sort of unease about really looking carefully at the language of the opinions is precisely that they tiptoe around these things. They say “dual purpose” this, “dual purpose” that, but the very difficulty of deciding which is which just simply turns it in on itself.
I will say, though, that pretty much all of the opinions and all of the briefs do make a distinction, which I do think is valid, and I mentioned it briefly in passing, that if there is a situation in which the accountant, even if it’s a lawyer, is just simply following along well-established principles, that doesn’t count as legal work. And that’s fine. But I do agree with you that in the end, the reason that APRL took the view that the less complexing the better is that it just clears the board. Do your thing if you hand in most cases, even in these cases, the government is going to be able to get -- first of all, they’ve got all of the documents that were actually filed. They’ve got a lot of other documents, and in this case, if you adopted our more radical position of saying, “As long as part of it is legal advice, you get nothing,” what is the government really losing? Not very much because the district court allowed all of those redactions anyway. Here, you’d get -- you’d redact everything and you wouldn’t have to spend thousands and thousands of court magistrate hours arguing over it anyway.
So yeah, I agree with you that that’s the implication. And I think one of the -- one final thought, the sort of even more underlying principle that’s not at issue in this case is really this whole long, on-going debate about what is the practice of law, and what should we wall off for lawyers only, and therefore reward with the prize of attorney-client privilege, what is the practice of law but not the unauthorized practice of law. All of those issues I think are not presented here but they're really, I think, lurking and underlying a lot of this.
Prof. Richard Epstein: All right. Anna, can I ask you a question? About the Puerto Rican case with Periodismo, which has been a long and complicated situation, territories and everything else. But the one issue that you didn’t stress, I'm just curious how it plays out is in that particular case, what they were asking for was not to impose various kinds of liability on somebody but they were asking to get certain kinds of documents, which would allow them to deal with the way in which this thing worked. And my view is that sovereign immunity, when it comes to doctrine, you know, getting documents to figure out whether the government is illegal or legal, it would be a terrible abuse to use that thing because then it means that they cannot be subject to any kind of sanction of any sort, political or otherwise. And so, is that something you think should weigh in the balance to deny the claim of sovereign immunity, in this particular case, which would be my inclination. Or am I missing something?
Anna St. John: Well, you're right that it’s not really addressed in the issue presented or in the briefs. And, you know, there may be other ways to get documents from the Board. But the way this has been presented is as an issue of sovereign immunity. It is interesting how that practical effect and practical issue may kind of seep in. And it is interesting that it’s not been really directly addressed in these cases, at least in the direct briefs.
Prof. Richard Epstein: But I think it’s sort of important. And the other speculation on the other case. I mean, I look at that statute, my attitude is if you have a statute that says you can only do this if you do that, how do we decide whether or not those things could be waived? It’s certainly not written as a jurisdictional statute, like you only get diversity jurisdiction if you have $75,000 in controversy and so forth. And so my inclination is to say that it’s not a jurisdictional provision. Is that correct do you think or not?
Anna St. John: You know, I think that’s probably right because you typically do see jurisdictional requirements set out so clearly. And here, that’s not really the case. It’s kind of a statutory provision. It’s not stated as clearly being jurisdictional. So, yeah, I think that that’s probably right. But we’ll see what the Court wants to do with it.
Prof. William Hodes: If I could just add one point to that though, Richard, it is true that in diversity and a lot of other statutory claims, the jurisdictional aspect is in there. But there’s a huge jurisprudence of justiciability, Constitution-based justiciability, that case-in-controversy justiciability that ultimately results in a finding of no jurisdiction -- no subject-matter jurisdiction in the federal courts. And so there can be cases—I don't know enough about this case—where you could read in. You could say, “But wait a second, if you allow jurisdiction here, then you have put the courts into a situation of deciding that something is not a case-in-controversy and so on, and therefore, there can’t be jurisdiction citing Marbury v. Madison, for example.
Anna St. John: Okay. Is there anything else before we take a couple of questions from the audience?
Tessa E. Shurr: I had a quick question for Professor Epstein.
Prof. Richard Epstein: Ahh. Yep.
Tessa E. Shurr: If the Court determines that the NLRB is preempted from deciding those property disputes, what do you think the remedy is for those people -- those plaintiffs?
Prof. Richard Epstein: Oh, I think the question is if they decide that there is preemption so that you can’t bring the state tort action? Well, the NLRB has no power whatsoever to give any kind of property damage for the willful destruction of property. And so that was the reason why it is if you look at all the earlier cases, Justice Frankfurter essentially said that “I’m going to give the preemption to stop,” which has to do with who’s a member of a union, who’s not a member of the union, who can vote in this election, who cannot. So what he is talking about in the initial paragraph of his decision is a case which is absolutely right at the core of what it is that is done. And I think it’s perfectly correct to say that if the Board doesn’t want to take up an organizational hearing, then it turns out that California state courts should not be allowed to decide, hey, this is an unfair labor practice, even if the Board doesn’t look at it, we do. And then give damages.
So Garmon was a case in which that’s exactly what they did. Nobody’s claiming that this has anything to do with that. This is a rather fiendish kind of skill -- thing, in which what they're doing is they're gaining enormous bargaining leisure by engaging in the willful destruction of property. Garmon has the violence exception in multiple places. And so does violence include the intentional destruction of property for a collateral motive, which is itself dubious? I think the answer to that question is yes.
I actually, when I looked at it at the beginning, I was kind of puzzled one way or another. Then I went and a reread Garmon, and it seems pretty clear to me that the National Labor Relations Board is designed quite consciously to try to figure out how it is that you organize the union situation, starting from organizational drives all the way through to unfair labor practices. And we don’t want state courts deciding what is an organizational drive, what is an unfair practice. But this is a tort case of a perfectly simple variety. And unless you really want to say that they haven’t done anything wrong by turning off the engine and letting this stuff freeze inside these trucks, causing enormous damages, then you have to say this is on the tort side of the particular line.
And I frankly think it will be 9-0 on this. Let me give you another version. The great weasel words of the English language is the word ‘incidental.’ You do all sorts of terrible things and when somebody suffers damages, we’ll say it’s only incidental. So the one that involves in labor cases—and this is not about this problem—is that you do have a strike. And what you do is you shut down the transportation, and children cannot go to school. And there’re all sorts of dislocations and parents have to quit work, and the rest of it. You know, in my mind, interference with advantageous relationships that create that kind of dislocation is a tort and has been one for a very long time.
The way one deals with this under these statutes is to say, “No, no, no. These are just incidental damages, and so they don’t take into account--” which is a view of remoteness and damage which is extraordinarily narrow. And what you're saying, in effect, it’s the parents’ problem, not their problem. And what is does is it underestimates the social costs associated with unionization.
But in this case, when they say it’s just ‘incidental damages,’ how can it be that when it’s the workers themselves that’re doing this to the very equipment in question. So the way I would put it is this: If you're going to authorize a system which has strikes and permits them to take place, and you shut down a thing and it’s in the transportation industry and you know that all of this stuff is going to happen, that’s necessarily contemplated by the statute as an inevitable consequence of the strike. And so if the statute is constitutional, then the incidental damage is absolutely necessary to do it.
But there’s nothing whatsoever which says when you're going to have a strike that on the day that the strike begins you can blow up property or destroy it in some fashion. So this is not the sort of incidental consequence of closing the business down. This is, essentially, wrecking the business at the same time that you're closing it down. And that distinction, I think, is maintainable. And there was not the slightest effort on the part of the Washington Supreme Court to get that particular issue right.
I think we should take some questions or what?
Anna St. John: Great. Well, let’s turn to the first question, and it’s about the FLRA case. So Tessa, I’m going to ask for your thoughts first. The question is, “Can you expand on the First Amendment implications of the FLRA case?”
Tessa E. Shurr: Oh, certainly. The collective bargaining agreement between the Ohio National Guard and its union representing the group of employees includes two provision in particular. And these types of provisions I will say are quite common in public sector collective bargaining, but it doesn’t make them right or lawful. And as a reminder, the public employees have the right to choose whether to associate with a labor union, and they have the right to choose whether to financially support a labor union.
The first provision that implicates these employees’ First Amendment rights would be the provision that forces a union member, someone who has chosen to be a member of the union, to remain a member of that union and remain financially supporting the union for one year. They're locked in. And usually, the way that works union members pay dues to the union, typically through automatic payroll deductions by their employer—in this case, the government. Just like any other payroll deduction, their dues money is being automatically deducted from their wages, and given from their employer to the union.
So in this case, a provision that takes away a federal employees -- or takes away a public employee’s choice to stop financially supporting a union takes away their choice to stop associating with a union—forces membership, forces payment—violates employees First Amendment rights.
And then, once you get past that first year of forced membership, the collective bargaining agreement provides for a small period of time, a small window period, during which employees may resign from the union, during which employees may stop their dues deductions coming out of their paychecks. But this brief window is only about a two-week window during the year. And if you happen to miss that window or if you happen to not know when that window is, or if there’s administrative confusion or disorganization and the union or the employee has lost track of when that window is, then that employee is trapped as a member of the union. They're unable to resign from the union and unable to choose to stop financially supporting the union.
So the way this ties back to the case at hand is that if the Supreme Court decides that FLRA does indeed have jurisdiction over the Ohio National Guard, then the collective bargaining agreement between the Ohio National Guard and its union will be revived. And I should mention that this is a collective bargaining agreement that is expired. By a lot. So this old, dead, collective bargaining agreement will come back with these provisions that implicate thousands of employees’ First Amendment rights. And then that’s something that I think the Supreme Court may be interested in, and we may see some questions during oral argument this coming Monday, the 9th, about these First Amendment implications.
Prof. Richard Epstein: Just to add to what Tessa said, I think these so-called “Hotel California” rules, which you put all sorts of condition precedents on the ability to withdraw from the union. You have only two weeks to do it, you have to file certain kinds of papers, there has to be other kinds of approvals and so forth, I think, in effect, that one can say that they're illegal under the Janus case because --
Prof. William Hodes: That’s what I was going to say.
Prof. Richard Epstein: -- they're unduly burdensome within it. And I think the Supreme Court could come up and say with something like this is that we think, effect, that any work or any time upon giving one month’s notice that it wishes to withdraw from the union can do so at the end of 30 days, no matter what else is going on. There’s absolutely nothing whatsoever about those restriction rules which are designed to further the Janus policy. These are all efforts to try and make sure you choke it off. And they’ve been remarkably successful at it. And this is an illustration of something that often happens. You take the Washington court, for example, and the way in which it butchered the Garmon case. If it’s going to face the “Hotel California” rules, my guess is they would basically want to uphold it.
And so what we do is we have a series of very pro-union inferior courts in the states, the same in the federal system, and a federal Supreme Court, which doesn’t exercise constant oversight of what’s going on. So when the cat’s away, the mice start to play, and they have a great time of it.
This has also happened in the takings area where the Supreme Court said, “We want to have a tough look at temporary takings,” and then 35 years later, you can’t find a single case in which the procedural stuff has not brought the substantive challenge. So I think this is actually a recurring problem because the Court is considerably farther to the right than is most of the state courts. It’s going to come up here. We have those cases, 3-0-3 created where every law a court has always upheld the claim of the state to run its anti-discrimination law. And I think the Supreme Court’s going to overturn that. And then you're going to get again the same kind of back, regard action on the part of local commissions in courts and so forth, in an effort to undo what the Supreme Court has set. And I think they have to be really cognizant about that, and they have to be more aggressive in taking cases that are follow on if it turns out they see serious deviations from what the original principle was about.
Anna St. John: We’ll next take a question from an audience member with his hand raised. Samuel, please ask your question.
Prof. Richard Epstein: Hello.
Prof. William Hodes: We can hear you.
Prof. Richard Epstein: We can’t hear anything.
Prof. William Hodes: Oh, I thought I could hear it.
Prof. Richard Epstein: I can’t hear a thing. I can see Anna.
Anna St. John: Ok, well, let’s move on to another question then. And if Samuel’s microphone starts working, we can come back.
There’s a question to you, Professor Hodes. Didn’t Congress add some kind of accountant client privilege to the Internal Revenue Code? If so, what is the relevance of that?
Prof. William Hodes: Yeah, thanks. I saw that question in the chat, and I'm not familiar with the specifics of it. That was Herman Bouma’s question. I’d actually turn it back and get some of the specifics of it. But my hunch is that there was -- that that privilege, or quasi privilege, is limited to dealings between tax payers and accountants and the IRS. But in the case that’s before the Supreme Court, we’re dealing with the real evidentiary rule of evidence privilege in the court system, which most definitely does not include an accountant’s privilege. And then the opinions did talk about that. Lawyers’ privilege is one thing; accountant’s privilege doesn’t exist, and the question, then, as Richard suggested, is what happens if the same person is wearing two different hats.
So my guess is—and I'm just ducking a little bit—is that there is -- that sounds familiar that there is such a statute but that it probably does not apply in the court system generally.
Anna St. John: Okay, I think we have time for one more quick question, and it is in the Puerto Rico case, will the Insular Cases be at issue.
Just as quick background, the Insular Cases are just a set of opinions about the constitutional rights of the inhabitants of territories that the U.S. acquired, mostly in the Spanish-American War, but in other ways as well. And the parties did not address those cases in their briefs, and I think it’s because really what’s at issue is sovereign immunity. And you may be able to come up with some indirect argument about how citizen’s rights are somehow implicated, but it doesn’t really get to their constitutional rights so much as the rights of the Oversight Board in Puerto Rico and Congress’s power to provide immunity or takeaway immunity or subject the Board to federal court jurisdiction.
Prof. Richard Epstein: Yeah, look, on the Insular Cases, what you did is you had a wholesale absorption of another country or place. And the question then was this place had its own set of rules that dealt with various kinds of protections for individual rights and criminal proceedings and so forth. And what the Supreme Court said—I thought it was Chief Justice Taft—is so long as you're dealing with a viable legal system that has been absorbed into the United States, we do not have to give the protections that American citizens get in the American states to these people because there’s already a working system which has given them the kind of protection that they had beforehand.
Recently, Justice Gorsuch, I think, came forward and sort of announced that he was not entirely happy with this. And this is a much larger question, but to what extent do people who are aliens in the territories have rights that are less than American citizens? And in connection with people who are subject to detention, one of the things that happens if you detain them overseas, they're not going to be entitled, perhaps, to get habeas corpus. Whereas, if you detain them in the United States, they would be entitled to do so. My view about this is, actually, reasonably favorable to the claims of the foreigners who are suing the United States, the alien.
If you look at the structure of the Fourteenth Amendment, the only clause that applies to citizens alone is the Privilege and Immunities Clause. Both the Due Process and Equal Protection Clause, which are much more concerned with criminal kind of activities, apply to all persons. And the kind of persons that apply to, therefore, would be aliens. And so I think if there’s an alien who is brought into contact with the criminal system, it shouldn’t matter whether it was overseas or within the United States. The operative question is is the United States the sovereign that’s calling the shots? And if it is, then it seems to me that these constitutional protections should apply.
This is going to come up again because the recent literature on the Insular Cases uses the very evocative terms that this is a colonial system of one kind or another. And that’s always an open invitation to say that we have to re-examine what’s going to take place. But I agree with Anna. Sovereign immunity is just not the place in which you can argue that point. What sovereign immunity does is it suggests that when you're dealing with territories, there’re going to be other issues that are going to come up, and they may more implicate the Insular Cases than the current case does.
Anna St. John: Well, that excellent insight is the perfect place to conclude our program. Thank you so much for joining us today. Thank you to our panelists. Thank you to The Federalist Society. I hope you’ve enjoyed yourselves.
Prof. Richard Epstein: Bye, everybody.
Nate Kaczmarek: Let me just say before you jump off, that per usual, this was a great preview of the next sitting. Our thanks to Anna, Tessa, Richard, and Bill for their great insights today. I think someone said at the outset that this might be a sleepy sitting, but the analysis today was anything but. Always a pleasure to have the benefit of such great legal minds.
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