Petition for Writ of Certiorari — Maricopa County, Arizona, et al., Petitioners v. Manuela Villa

No. ____

IN THE

Supreme Court of the United States

MARICOPA COUNTY, ET AL.

Petitioners,

v.

MANUELA VILLA,

Respondent.

On Petition for Writ of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

MICHAEL A. CARVIN

Counsel of Record

VIVEK SURI

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

macarvin@jonesday.com

Counsel for Petitioners

i

QUESTION PRESENTED

Title III of the Omnibus Crime Control and Safe

Streets Act of 1968 says that “the principal prosecuting attorney” of a state or locality may apply for an

order authorizing the interception of wire, oral, or

electronic communications. 18 U.S.C. § 2516(2). Does

Title III allow a principal prosecuting attorney to

delegate the task of applying for such an order to a

subordinate?

ii

PARTIES TO PROCEEDINGS BELOW

Maricopa County, the Maricopa County Board of

Supervisors, and William Gerard Montgomery in his

official capacity as Maricopa County Attorney (petitioners here) were defendants-appellees below.

Manuela Villa (respondent here) was plaintiffappellant below.

iii

TABLE OF CONTENTS

Page

Introduction ................................................................ 1

Opinions Below ........................................................... 2

Jurisdiction ................................................................. 2

Statutes Involved ....................................................... 2

Statement of the Case ................................................ 4

A. Legal Background.......................................... 4

B. Facts ............................................................... 5

C. Proceedings Below ......................................... 6

Reasons for Granting the Petition ............................. 8

I.

This case raises an important question that

has divided appellate courts ................................ 8

A. The Ninth Circuit and the Arizona Court

of Appeals have reached conflicting

decisions about the validity of Arizona’s

wiretap statute .............................................. 8

B. Federal and state appellate courts have

reached conflicting decisions about

whether § 2516(2) allows delegations ......... 10

C. This split involves a sufficiently

important issue to warrant this Court’s

review ........................................................... 13

II. The Ninth Circuit seriously erred ..................... 14

A. The decision below is wrong ........................ 14

B. The decision below warrants correction ..... 18

iv

TABLE OF CONTENTS

(continued)

Page

III. The Court should grant review despite the

Ninth Circuit’s ruling that petitioners are

immune from the claim for damages ................ 22

Conclusion ................................................................ 25

Appendix A — Court of appeals opinion ................. 1a

Appendix B — District court order ........................ 26a

Appendix C — Court of appeals order denying

rehearing..................................... 51a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Alden v. Maine,

527 U.S. 706 (1999) .............................................. 19

Alexander v. Harris,

595 F.2d 87 (CA2 1979) (per curiam) .................. 10

Arizona State Legislature v. Arizona

Independent Redistricting

Commission,

135 S. Ct. 2652 (2015) .......................................... 19

Bond v. United States,

564 U.S. 211 (2011) .............................................. 19

Camreta v. Greene,

563 U.S. 692 (2011) .................................. 22, 23, 24

Commonwealth v. Vitello,

327 N.E.2d 819 (Mass. 1975) ............................... 10

DirecTV, Inc. v. Imburgia,

136 S. Ct. 463 (2015) .............................................. 9

Fleming v. Mohawk Wrecking &

Lumber Co.,

331 U.S. 111 (1947) .............................................. 14

Garcia v. United States,

469 U.S. 70 (1984) ................................................ 16

Gregory v. Ashcroft,

501 U.S. 452 (1991) .............................................. 15

Hagen v. Utah,

510 U.S. 399 (1994) ................................................ 8

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Leavitt v. Jane L.,

518 U.S. 137 (1996) (per curiam)......................... 18

Maricopa County v. Lopez-Valenzuela,

135 S. Ct. 428 ....................................................... 18

Parish v. United States,

100 U.S. 500 (1879) .............................................. 14

State v. Bruce,

287 P.3d 919 (Kan. 2012) ..................................... 11

State v. Daniels,

389 So.2d 631 (Fla. 1980) .................................... 12

State v. Farha,

544 P.2d 341 (Kan. 1975) ..................................... 11

State v. Frink,

206 N.W.2d 664 (Minn. 1973) .............................. 11

State v. Marine,

464 A.2d 872 (Del. 1983) ................................ 10, 13

State v. Patterson,

218 P.3d 1031 (Ariz. App. 2009) ............................ 9

State v. Verdugo,

883 P.2d 417 (Ariz. App. 1993) .......................... 5, 9

United States v. Fury,

554 F.2d 522 (CA2 1977) ..................................... 10

United States v. Giordano,

416 U.S. 505 (1974) .................................. 13, 17, 18

United States v. Johnson,

256 F.3d 895 (CA9 2001) (en banc)...................... 23

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Pacheco,

489 F.2d 554 (CA5 1974) ..................................... 12

United States v. Smith,

726 F.2d 852 (CA1 1984) (en banc)...................... 11

Wilcox v. Jackson,

13 Pet. 498 (1839) ................................................ 14

Yee v. City of Escondido,

503 U.S. 5198 (1992) .............................................. 8

STATUTES

18 Pa. Cons. Stat. § 5708 .......................................... 13

18 U.S.C. § 2511 .................................................... 4, 25

18 U.S.C. § 2515 .......................................................... 4

18 U.S.C. § 2516 ................................................ passim

18 U.S.C. § 2518 .......................................................... 4

18 U.S.C. § 2520 .......................................................... 4

28 U.S.C. § 1254 .......................................................... 2

28 U.S.C. § 1331 .......................................................... 6

Alaska Stat. § 12.37.010 ........................................... 13

Ariz. Rev. Stat. § 13-3010 ............................. 3, 5, 8, 13

Cal. Penal Code § 629.50........................................... 13

Colo. Rev. Stat. § 16-15-102 ...................................... 13

Del. Code tit. 11, § 2405 ............................................ 13

Haw. Rev. Stat § 803-44 ............................................ 13

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Ind. Code § 35-33.5.2-1 .............................................. 13

La. Rev. Stat. Ann. § 15:1308 ................................... 13

Mass. Gen. Law. ch. 272, § 99................................... 13

N.C. Gen. Stat. § 15A-291 ......................................... 13

N.D. Cent. Code § 29-29.2-02 .................................... 13

N.H. Rev. Stat. § 570-A:7 .......................................... 13

N.J. Stat. § 2A:156A-8 ............................................... 13

N.Y. CPL § 700.05 ..................................................... 13

Ohio Rev. Code § 2933.53.......................................... 13

Okla. Stat. tit. 13, § 176.9 ......................................... 13

Or. Rev. Stat. § 133.724 ............................................ 13

R.I. Gen. Laws § 12-5.1-2 .......................................... 13

S.C. Code § 17-30-70.................................................. 13

S.D. Codified Laws § 23A-35A-3 ............................... 13

Utah Code § 77-23a-8 ................................................ 13

Va. Code § 19.2-66 ..................................................... 13

W. Va. Code § 62-1D-8 .............................................. 13

OTHER AUTHORITIES

Fed. R. App. P. 39 ...................................................... 24

S. Rep. No. 1097, 90th Cong.

2d Sess. 98 (1968)................................................. 16

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Michael Goldsmith & Kathryn

Ogden Balmforth,

The Electronic Surveillance of

Privileged Communications,

64 S. Cal. L. Rev. 903 (1991) ............................... 21

Kyle G. Grimm,

The Expanded Use of Wiretap

Evidence in White-Collar Criminal

Prosecutions,

33 Pace L. Rev. 1146 (2013)................................. 21

Kevin Sali,

“Challenging State Wiretaps,”

The Champion 42 (March 2015) .................... 12, 13

U.S. Courts,

Wiretap Report 2014, Table 2 .............................. 20

1

INTRODUCTION

Federal law says that “the principal prosecuting

attorney” of a state or locality may apply for a wiretap order. 18 U.S.C. § 2516(2). In the decision below,

the Ninth Circuit read this law to prohibit a principal prosecuting attorney from delegating the task of

applying for wiretap orders to his subordinates. It

accordingly invalidated an Arizona statute that allowed such delegations.

There are two compelling reasons to grant review. First, the Court should take the case to resolve

a split over the question presented. Federal courts of

appeals and state courts of last resort have divided

over whether § 2516(2) allows delegations. Indeed,

while the Ninth Circuit has ruled that the statute

prohibits delegations, the Arizona Court of Appeals

ruled that the statute allows them—leaving Arizona

prosecutors subject to irreconcilable holdings on who

may apply for wiretap orders.

Second, the Court should take the case to correct

the Ninth Circuit’s glaring error. This Court has long

recognized a background presumption that executive

officials may delegate their powers to their subordinates unless the statute granting the powers affirmatively says otherwise. The statute here does not affirmatively say otherwise. The Ninth Circuit’s disregard of these principles upsets the federal-state balance by denying the states the ability to determine

for themselves how to allocate authority among their

executive officials. Making matters worse, the decision below imposes serious and unwarranted practical burdens on state and local prosecutors. The Court

should grant the petition.

2

OPINIONS BELOW

The court of appeals’ opinion is reported at 865

F.3d 1224. The district court’s opinion is unreported,

but is available at 2015 WL 11118113.

JURISDICTION

The court of appeals entered judgment on August

2, 2017. 1a. It denied a petition for panel rehearing

and rehearing en banc on September 14, 2017. 51a–

52a. This Court has certiorari jurisdiction under 28

U.S.C. § 1254(1).

STATUTES INVOLVED

Section 2516(2) of Title 18 of the United States

Code provides:

The principal prosecuting attorney of any

State, or the principal prosecuting attorney

of any political subdivision thereof, if such

attorney is authorized by a statute of that

State to make application to a State court

judge of competent jurisdiction for an order

authorizing or approving the interception of

wire, oral, or electronic communications, may

apply to such judge for, and such judge may

grant in conformity with section 2518 of this

chapter and with the applicable State statute

an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement

officers having responsibility for the investigation of the offense as to which the application is made, when such interception may

provide or has provided evidence of the commission of the offense of murder, kidnapping

3

human trafficking, child sexual exploitation,

child pornography production,, gambling,

robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous

drugs, or other crime dangerous to life, limb,

or property, and punishable by imprisonment

for more than one year, designated in any

applicable State statute authorizing such interception, or any conspiracy to commit any

of the foregoing offenses.

Section 13-3010(A) of the Arizona Revised Statutes provides in relevant part:

On application of a county attorney, the attorney general or a prosecuting attorney

whom a county attorney or the attorney general designates in writing, any justice of the

supreme court, judge of the court of appeals

or superior court judge may issue an ex parte

order for the interception of wire, electronic

or oral communications * * * .

4

STATEMENT OF THE CASE

A. Legal Background

1. Title III of the Omnibus Crime Control and

Safe Streets Act of 1968 regulates interception of

wire, oral, and electronic communications. It provides that “the principal prosecuting attorney of any

State, or the principal prosecuting attorney of any

political subdivision thereof,” may apply for a judicial

order authorizing the interception of such communications, if authorized by state law to do so. 18 U.S.C.

§ 2516(2).

Title III requires wiretap applications to satisfy

specified substantive and procedural requirements.

For example, state and local officials may use wiretaps only when investigating particular offenses

(such as murder, kidnapping, child sex crimes, robbery, and drug dealing). Id. They may resort to wiretaps only when “normal investigative procedures”

have failed or are too dangerous to try. § 2518(3). And

wiretap applications must contain, among other details, a “statement of the facts and circumstances”

upon which the applicant relies “to justify his belief

that an order should be issued.” § 2518(1).

Federal law severely punishes people who violate

these requirements. In some circumstances, a violation is a federal felony. § 2511(1). In addition, a victim of a violation may seek damages and equitable

relief. § 2520(b). Finally, fruits of violations are inadmissible in court. § 2515. But “good faith reliance”

on “a court warrant or order, a grand jury subpoena,

a legislative authorization, or a statutory authorization” is “a complete defense against any civil or criminal action” under the statute. § 2520(d).

5

2. Arizona has adopted its own statute governing wiretap orders. Under this law, “a county attorney, the attorney general, or a prosecuting attorney

whom a county attorney or the attorney general designates in writing,” may apply for a wiretap order.

Ariz. Rev. Stat. § 13-3010(A) (emphasis added). Arizona’s courts have explained that this statute authorizes the County Attorney (the “principal prosecuting attorney” of the county) to “delegate” the task

of applying for wiretap orders to his subordinates.

State v. Verdugo, 883 P.2d 417, 420 (Ariz. App. 1993).

B. Facts

Maricopa County is the fourth-most populous

county in the United States. The county contains 4

million people—almost two-thirds of the population

of the State of Arizona. The Maricopa County Attorney’s Office is one of the largest and busiest prosecutorial offices in the nation.

In November 2011, the Maricopa County Attorney, petitioner William Montgomery, gave his Deputy

County Attorneys written authorization to apply for

wiretap orders (and amendments and extensions to

those orders) as part of criminal investigation CWT412. 4a. A Deputy County Attorney accordingly submitted applications for, and a state court granted,

orders to wiretap thirty-two target telephone lines.

5a–6a. On eight occasions in December 2011 and

January 2012, Maricopa County officers, acting in

accordance with these judicial orders, intercepted

and recorded conversations between Manuela Villa

(respondent here) and her daughter. 6a.

6

C. Proceedings Below

1. Respondent sued Maricopa County, the Maricopa County Board of Supervisors, and the Maricopa

County Attorney (petitioners here) in federal district

court, asserting jurisdiction under 28 U.S.C. § 1331.

As relevant here, she argued that the interception of

her telephone communications violated Title III because it was the County Attorney’s delegate, rather

than the County Attorney himself, who signed the

application for the wiretap order.

The district court granted petitioners’ motion to

dismiss. The court held that Title III permits a principal prosecuting attorney to delegate to a subordinate the task of making a wiretap application, at

least where he does so “on a case by case basis” and

after “personally review[ing]” the application. 38a.

The district court ruled that the County Attorney

had fulfilled these requirements. The County Attorney thus had “sufficient involvement” in the applications to comply with federal law. 40a.

2. Respondent appealed. The Ninth Circuit (in

an opinion by Judge Fletcher) rejected the district

court’s analysis, but ultimately granted petitioners

immunity because they acted in good faith.

The Ninth Circuit began with the premise that

§ 2516(2) embodies an “anti-delegation” or “centralization” requirement. 15a. In the court’s view, “the

purpose of § 2516(2) is to ensure that a publicly responsible official subject to the political process personally approves a wiretap application.” 15a. “The

intent of § 2516(2)” “is to provide for the centralization” of wiretap policy “in the chief prosecuting officer.” 15a. Delegations would defeat this policy.

7

The court then explained how its “antidelegation” rule would work in practice. It ruled that

the principal prosecuting attorney must at a minimum “indicate, as part of the application process,”

that he is “personally familiar” with the relevant

facts and that he has made a “personal judgment”

that an order should be issued. 19a. It would not be

enough for the principal prosecuting attorney simply

“to state that he or she is generally aware of the

criminal investigation” and then to authorize a deputy to make the application. 19a.

The Ninth Circuit concluded that the Maricopa

County officials had fallen short of these requirements, and that the Arizona state wiretap statute “is

preempted.” 25a. Even though the district court had

ruled that the County Attorney had in fact reviewed

the wiretap application personally, the Ninth Circuit

faulted him for failing to “indicate” in his application

that he had done so. 19a.

Still, the Ninth Circuit continued, Title III protects any defendant from a claim for damages if he

acts in “good faith reliance” on “a court order” or “a

statutory authorization.” 24a (quoting § 2620(d)).

Here, petitioners relied on a state court’s “orders” authorizing the challenged wiretaps and on “the statutory authorization” contained in the state wiretap

statute. 24a.

The Ninth Circuit therefore affirmed the district

court’s judgment, but awarded costs to respondent.

25a. Petitioners sought panel rehearing and rehearing en banc, but the Ninth Circuit denied their request. 52a. They then filed this petition for writ of

certiorari.

8

REASONS FOR GRANTING THE PETITION

I.

This Case Raises An Important Question

That Has Divided Appellate Courts

The question presented has divided the Arizona

Court of Appeals (which has upheld delegation) from

the Ninth Circuit (which has struck it down). The

question presented has also divided federal and state

appellate courts more broadly. This Court’s review is

needed to resolve this split concerning important

criminal-law and federalism issues.

A. The Ninth Circuit and the Arizona

Court

of

Appeals

have

reached

conflicting decisions about the validity

of Arizona’s wiretap statute

This Court has explained that direct conflict between federal and state appellate courts in the same

state is a particularly urgent reason to grant review.

Yee v. City of Escondido, 503 U.S. 519, 537–38 (1992);

Hagen v. Utah, 510 U.S. 399, 409 (1994). This case

features just such a conflict about the validity of the

provision of Arizona law that says that “a prosecuting attorney whom a county attorney or the attorney

general designates in writing” may apply for a wiretap order. Ariz. Rev. Stat. § 13-3010(A).

On the one hand, the Ninth Circuit has invalidated this provision. It has held that § 2516(2) embodies an “anti-delegation” or “centralization” rule.

15a. It has insisted that a principal prosecuting attorney complies with this provision only if he personally reviews the facts and forms a judgment about

whether a wiretap order is justified. 19a. And it has

accordingly concluded that Arizona’s delegation provision “is preempted by” federal law. 25a.

9

On the other hand, the Arizona Court of Appeals

has upheld the very same provision. It has expressly

“disagree[d]” with the argument “that the Arizona

statute cannot lawfully permit the principal prosecuting attorneys … to delegate their authority to

others.” Verdugo, 883 P.2d at 420. It has concluded

that, so far as § 2516(2) is concerned, “delegation of

authority” is a matter “of state law.” Id.

This means that state and federal courts in Arizona now disagree over the lawfulness of the very

same searches. From now on, every time a Deputy

County Attorney exercises delegated authority to apply for a wiretap order, he could introduce the fruits

of the wiretap in state court, but he could not turn

those fruits over to federal agents to introduce in

federal court. Similarly, the defendant’s motion to

suppress the evidence would fail in state court, but

(for wiretaps authorized after the Ninth Circuit’s

opinion below) his civil lawsuit over the interception

would succeed in federal court.

To be sure, the Arizona Supreme Court has not

addressed the question presented; only the Arizona

Court of Appeals has. Even so, the conflict warrants

this Court’s attention. Decisions of the Arizona Court

of Appeals have “statewide application,” binding “all

trial courts in the state.” State v. Patterson, 218 P.3d

1031, 1036 (Ariz. App. 2009). A conflict with the Arizona Court of Appeals is thus just as serious, and

just as worthy of this Court’s review, as one with the

Arizona Supreme Court. See, e.g., DirecTV, Inc. v.

Imburgia, 136 S. Ct. 463, 467–68 (2015) (granting

review where “the Ninth Circuit” and “the California

Court of Appeal” had reached “opposite conclusion[s]”

on “precisely the same interpretive question”).

10

B. Federal and state appellate courts have

reached conflicting decisions about

whether § 2516(2) allows delegations

More broadly, the question presented has divided

federal courts of appeals and state courts of last resort across the country. Leaving aside the Ninth Circuit and Arizona, one circuit and two states allow

delegations, two states forbid delegations, and two

circuits and one state lie somewhere in between.

1. The Second Circuit, Delaware, and Massachusetts generally allow delegations.

Second Circuit. The Second Circuit has upheld a

New York statute that “permits delegation of the authority to seek” wiretap orders. United States v. Fury,

554 F.2d 522, 527 n.4 (CA2 1977) (citing N.Y. CPL

§ 700.05). It has also (in a cross-jurisdictional case)

upheld a “New Jersey county prosecutor’s delegation

of authority” to apply for a wiretap order. Alexander

v. Harris, 595 F.2d 87, 88 (CA2 1979) (per curiam). It

has explained that “the issue of delegation” is “a

question of state law.” Fury, 554 F.2d at 527 n.4.

Delaware. The Delaware Supreme Court has upheld a statute that “permits delegation of the wiretap

authorization.” State v. Marine, 464 A.2d 872, 877

(Del. 1983). The court agreed that § 2516 “leaves the

matter of delegation up to state law.” Id. at 877.

Massachusetts. The Massachusetts Supreme Judicial Court has upheld a statute that permits “delegation of authority” to apply for wiretaps. Commonwealth v. Vitello, 327 N.E.2d 819, 837 (Mass. 1975).

It, too, reasoned that § 2516(2) leaves “the issue of

delegation” to “state law.” Id. at 838.

11

2. Meanwhile, Kansas and Minnesota generally

forbid delegations.

Kansas. The Kansas Supreme Court has ruled

that § 2516(2) “allows no … delegation of wiretap order applications by ‘the principal prosecuting attorney,’” and that the federal statute “preempt[s]” any

contrary reading of the state wiretap law. State v.

Bruce, 287 P.3d 919, 924 (Kan. 2012). Or, as it put

the point in an earlier case: “We do not think delegation of state authority to apply for wiretaps … comports with congressional intent.” State v. Farha, 544

P.2d 341, 404 (Kan. 1975).

Minnesota. The Minnesota Supreme Court has

ruled that “the responsibilities vested in the persons

designated in [§ 2516(2)] could not be delegated to

anyone,” and that accordingly no one “other than the

‘principal prosecuting attorney’” may exercise “the

power to initiate an electronic surveillance.” State v.

Frink, 206 N.W.2d 664, 674 (Minn. 1973).

3. Finally, the First Circuit, Fifth Circuit, and

Florida have taken intermediate positions—in fact,

three different intermediate positions.

First Circuit. The First Circuit has upheld Massachusetts’ wiretap statute, which allows delegation.

United States v. Smith, 726 F.2d 852, 858 (CA1 1984)

(en banc). In doing so, however, it stressed that the

state statute (as interpreted by the state supreme

court) allowed only “case by case” delegations made

after “full examination by the [principal prosecuting]

attorney of the application.” Id. at 857–58. The court

suggested in dicta that a challenge to the statute

“would have formidable force” in the absence of these

safeguards. Id. at 857.

12

Fifth Circuit. The Fifth Circuit has upheld a

Florida law that allows the Governor to apply for

wiretaps. United States v. Pacheco, 489 F.2d 554, 562

(CA5 1974). It held that a principal prosecuting attorney may delegate powers upwards to a “superior,”

but did not address whether he could also delegate

powers downwards to a subordinate. Id. at 562 n.14.

Florida. The Florida Supreme Court has stated

in dicta that § 2516(2) does not allow “unlimited”

delegation, but does allow “narrowly confined” delegations “when the [principal prosecuting] attorney is

absent for an extended period of time.” State v. Daniels, 389 So.2d 631, 636 (Fla. 1980).

*

*

*

Commentators have recognized this split. One of

them has written that “courts have varied in their

answers” to the delegation question; some “hold that

a state court wiretap order issued on the application

of a subordinate prosecutor is invalid,” some “have

concluded that state wiretap statutes can validly allow … subordinate prosecutors to apply for wiretap

orders,” and some “have taken intermediate approaches.” Kevin Sali, “Challenging State Wiretaps,”

The

Champion

42,

43–44

(March

2015)

www.salilaw.com/images/March2015Champion.pdf.

This conflict, which has festered since the 1970s

and which continues to crop up today, has shown no

signs of clearing itself up. Indeed, in this very case,

the Ninth Circuit denied Maricopa County’s petition

for en banc rehearing, thus turning down the opportunity to alleviate the split. This conflict will not go

away on its own; only this Court’s intervention can

resolve it.

13

C. This split involves a sufficiently

important issue to warrant this Court’s

review

The question presented is important. Four decades ago, this Court granted certiorari to decide

whether § 2516(1)—the companion provision that

governs federal investigations—allows the Attorney

General to delegate wiretap matters to his subordinates. United States v. Giordano, 416 U.S. 505

(1974). If the issue of delegation at the federal level

is important enough issue to justify certiorari, so is

the issue of delegation at the state and local levels.

Indeed, at least 23 states have enacted laws that

expressly allow (or have been interpreted to allow)

subordinate prosecutors to apply for wiretap orders. *

If delegations were impermissible, all of these state

laws would be invalid, and a “significant number of

wiretap orders” would be “vulnerable to attack.” Sali

42. The question presented thus has sufficiently

widespread consequences to warrant this Court’s review.

* Alaska Stat. § 12.37.010; Ariz. Rev. Stat. § 13-3010; Cal.

Penal Code § 629.50; Colo. Rev. Stat. § 16-15-102; Del. Code tit.

11, § 2405 (as interpreted in State v. Marine, 464 A.2d 872,

876–78 (Del. 1983)); Haw. Rev. Stat § 803-44; La. Rev. Stat.

Ann. § 15:1308(A); Ind. Code § 35-33.5.2-1; Mass. Gen. Law. ch.

272, § 99(F); N.H. Rev. Stat. § 570-A:7; N.Y. CPL § 700.05; N.C.

Gen. Stat. § 15A-291; N.J. Stat. § 2A:156A-8; N.D. Cent. Code

§ 29-29.2-02; Ohio Rev. Code § 2933.53; Okla. Stat. tit. 13,

§ 176.9(G); Or. Rev. Stat. § 133.724; 18 Pa. Cons. Stat. § 5708;

R.I. Gen. Laws § 12-5.1-2; S.C. Code § 17-30-70; S.D. Codified

Laws § 23A-35A-3; Utah Code § 77-23a-8; Va. Code § 19.2-66; W.

Va. Code § 62-1D-8.

14

II. The Ninth Circuit Seriously Erred

Even putting aside the split on the question presented, this Court should grant review so that it can

correct the Ninth Circuit’s plain error. Nothing in

§ 2516(2) precludes a state prosecutor from delegating to a subordinate the task of applying for a wiretap. The Ninth Circuit’s contrary decision warrants

correction because it wrongly invalidates a state law,

improperly encroaches on state sovereignty, and

places severe practical burdens on law enforcement.

A. The decision below is wrong

The Ninth Circuit’s decision is plainly wrong.

First, background legal principles establish that

§ 2516(2) allows delegations. This Court has held

that, where a statute grants authority to an executive official, the official may presumptively “delegate

[that] function” to a subordinate unless the statute

affirmatively provides otherwise. Fleming v. Mohawk

Wrecking & Lumber Co., 331 U.S. 111, 121 (1947).

That is why (for example) the President and cabinet

secretaries need not personally perform all of the duties vested in their offices, but may instead delegate

these tasks to their inferiors. This presumption of

delegability reflects the norm that an executive principal “speaks and acts through” his subordinate

agents, and that the acts of the subordinates are “in

legal contemplation” the acts of their superior. Wilcox

v. Jackson, 13 Pet. 498, 513 (1839). The presumption

of delegability also reflects the practical reality that

“it is impossible for a single individual”—an “overburdened principal”—“to perform in person all the

duties imposed on him by his office.” Parish v. United

States, 100 U.S. 500, 504 (1879).

15

This Court has also held that a federal statute

presumptively does not interfere with a state’s power

to determine “the structure of its government” and

“the character of those who exercise government authority,” unless the statute contains a “clear statement” to the contrary. Gregory v. Ashcroft, 501 U.S.

452, 460–61 (1991). The power to decide who may

exercise government power is one of “the most fundamental” elements of sovereignty, and is “obviously

essential to the independence of the States.” Id. at

460. No court should presume that Congress has

taken the “extraordinary” step of interfering with

this core sovereign power unless Congress has made

its intention to do so “unmistakably clear in the language of the statute.” Id.

Section 2516(2) simply provides: “The principal

prosecuting attorney of any State, or the principal

prosecuting attorney of any political subdivision

thereof … may apply … for … an order authorizing

… the interception of wire, oral, or electronic communications.” The statute does not say that the principal prosecuting attorney must perform this function personally, or that he may not delegate the task

to his subordinates. Thus, the statute does not contain the affirmative language necessary to overcome

the presumption of delegability. Even more obviously,

the statute does not contain the unmistakably clear

language necessary to overcome the federalism clearstatement rule.

In sum, viewed against the backdrop of established principles of interpretation, § 2516(2) allows

state prosecutors to delegate wiretapping matters as

they see fit.

16

Second, the legislative history of § 2516(2) confirms that the statute allows delegations. The Senate

Report on the bill says explicitly: “[Section 2516(2)]

provides that the principal prosecuting attorney …

may authorize an application … The issue of delegation by that officer would be a question of State law.”

S. Rep. No. 1097, 90th Cong. 2d Sess. 98 (1968) (emphasis added).

For those who use legislative history to interpret

statutes, this committee report should carry great

weight. Committee reports represent “the considered

and collective understanding of those Congressmen

involved in drafting and studying proposed legislation.” Garcia v. United States, 469 U.S. 70, 76 (1984).

They are thus “more authoritative” than other forms

of legislative history. Id. Here, the Senate Report

shows that the legislators who drafted and studied

Title III intended exactly what background principles

of statutory interpretation tell us to presume that

they intended: Section 2516(2) allows states to decide

for themselves whether prosecutors may delegate to

their subordinates the task of applying for wiretaps.

Even for those who do not normally consult legislative history, the Senate Report remains relevant.

As just discussed, Congress may interfere with the

sovereignty of the states only if it makes its intention

unmistakably clear in the language of the statute.

But how can anyone claim that Congress has expressed an “unmistakably clear” intention to prohibit

delegations, when intelligent readers at the time of

the statute’s enactment (namely, the people who

wrote the Senate Report) read the law to allow delegations?

17

Third, Giordano reinforces this analysis. There,

this Court considered whether the provision of Title

III on federal wiretaps allows delegations. The Court

ruled that the federal provision forbids certain types

of delegations, but simultaneously made clear that

the state provision allows delegations.

The Court began with the “general” presumption

that statutes that confer executive powers also permit delegation of those powers. 416 U.S. at 514. It

continued that the federal provision overcomes this

presumption because it “expressly addresses” “the

matter of delegations.” Id. The federal provision says

that the Attorney General “or any Assistant Attorney

General … specially designated by the Attorney General” may authorize an application. § 2516(1). The

Court read the quoted language to permit delegations to an Assistant Attorney General, but not to

anybody else. 416 U.S. at 516.

The United States responded that, because the

state provision “leaves the matter of delegation up to

state law,” it would have been anomalous for the federal provision to “confine the authority so narrowly.”

Id. at 522–23. The Court accepted the premise of this

argument; indeed, it approvingly quoted the Senate

Report’s statement that “the issue of delegation …

would be a question of State law.” Id. at 522 n.11.

The Court simply rejected the notion that it would be

anomalous to create a dual system whereby delegations are allowed at the state level but forbidden at

the federal level. The Court explained that “Congress

desired to centralize and limit [wiretap] authority

where it was feasible to do so, a desire easily implemented in the federal establishment.” Id. at 523 (emphasis added).

18

Giordano’s reasoning matters here in two ways.

In the first place, Giordano endorsed the “general”

presumption of delegability, holding that this general

presumption applies to Title III’s wiretap provisions.

The federal-wiretap provision could overcome this

general presumption only because it “expressly addressed” “the matter of delegation.” Id. at 514. The

state-wiretap provision, however, does not expressly

address the matter of delegations. Under Giordano’s

reasoning, then, the general presumption of delegability must control.

In the second place, Giordano took it for granted

that Title III freely allows delegation at the state

level. Indeed, it quoted the Senate Report’s statement that such delegation is permissible, and it took

pains to explain why things work differently at the

federal level. This Court’s understanding of the statute in Giordano further underscores the severity of

the Ninth Circuit’s error here.

B. The decision below warrants correction

This error warrants correction. First, the Ninth

Circuit has wrongly invalidated a state law. This

Court engages in error-correction even “in cases

involving only individual claims”; “much more is that

appropriate when what is at issue is the total

invalidation of a state-wide law.” Leavitt v. Jane L.,

518 U.S. 137, 144 (1996) (per curiam). Indeed, the

Court “often review[s] decision[s] striking down state

laws, even in the absence of disagreement among

lower courts.” Maricopa County v. Lopez-Valenzuela,

135 S. Ct. 428 (statement of THOMAS, J.). There is all

the more reason to do so here, where there is

disagreement among the lower courts.

19

Second, the Ninth Circuit’s decision intrudes into

the heartland of state sovereignty preserved by the

Tenth Amendment. This Court has emphasized that

“a State is entitled to order the processes of its own

governance.” Alden v. Maine, 527 U.S. 706, 752

(1999). “It is characteristic of our federal system that

States retain autonomy to establish their own

governmental processes.” Arizona State Legislature v.

Arizona Independent Redistricting Commission, 135

S. Ct. 2652, 2673 (2015).

Any effort to “displace a State’s allocation of

governmental power and responsibility” thus “strikes

at the heart” of the federal system that is “essential

to our liberty and our republican form of

government.” Alden, 527 U.S. at 751. Such

interference with core state authority may well

violate the Constitution. Id.

In this case, Arizona has decided to allocate the

power to apply for wiretaps both to County Attorneys

and to subordinates designated by those County

Attorneys. It would be bad enough for Congress to

interfere with this sovereign decision about the

proper allocation of state power. Here, however, it is

the Ninth Circuit that has taken the extraordinary

step of telling Arizona how to organize its

prosecutors’ offices. That decision encroaches upon

“the integrity, dignity, and residual sovereignty” of

Arizona (Bond v. United States, 564 U.S. 211, 221

(2011))—not to mention the States of Alaska,

California, Hawaii, and Oregon, all of whose statutes

likewise allow subordinate prosecutors to make

wiretap applications. The Court should take up this

case so that it can reverse this unwarranted

intrusion upon state sovereignty.

20

Third, the Ninth Circuit’s decision imposes

unwarranted burdens on law enforcement.

The Maricopa County Attorney is a busy man

with myriad responsibilities. He is elected to serve a

county of 4 million people—a larger population than

24 out of the 50 states. He oversees the county’s

criminal prosecutions—around 30,000 of them each

year. He oversees the county’s civil litigation. He

issues advisory opinions to county officers on their

official duties. He provides legal advice to the

county’s board of supervisors, sheriff, treasurer, and

superintendent of schools. He supervises an office

that comprises half a dozen separate divisions, more

than two dozen separate bureaus, and nearly 1,000

employees. See www.maricopacountyattorney.org.

It will often be impracticable for the Maricopa

County Attorney to review every single wiretap

application in person. For example, in 2014, judges

in Maricopa County issued 56 wiretap orders

(counting amendments and extensions). U.S. Courts,

Wiretap Report 2014, Table 2. In each such case, the

Ninth Circuit’s rule would require the County

Attorney to review and understand an affidavit that

may span 50 to 75 pages. It would then require him

to reach a personal judgment about whether the

application meets each of the statutory criteria—

probable cause to believe that a crime has been

committed, probable cause to believe that an

interception

would

reveal

communications

concerning the crime, inadequacy of normal

investigative procedures, and so on. This work may

seem manageable in isolation, but it can quickly

become unmanageable when piled atop everything

else that the County Attorney must do.

21

Moreover, the burden is particularly severe

because prosecutors must often act very quickly

when applying for a wiretap order, amendment, or

extension. Prosecutors may find out in the morning

that Smith has just dumped his old phone and picked

up a new one, leaving just a few hours to assemble

an application and to secure a judicial order. It will

often be impracticable for the Maricopa County

Attorney, a busy elected official, to drop all of his

other public duties and to attend to the wiretap

application with the necessary speed.

And these are just the problems that arise while

the County Attorney is present and available.

Sometimes, however, the County Attorney will not be

available—he may be sick, or on vacation, or

traveling overseas. Under the Ninth Circuit’s antidelegation rule, however, nobody may apply for a

wiretap in such circumstances.

These practical obstacles will compromise the

important work of law enforcement in Maricopa

County and the other jurisdictions covered by the

Ninth Circuit’s ruling. Wiretap evidence is “one of

the most persuasive pieces of evidence that can be

presented to a jury.” Kyle G. Grimm, The Expanded

Use of Wiretap Evidence in White-Collar Criminal

Prosecutions, 33 Pace L. Rev. 1146, 1147 (2013). It is

often “crucial to the investigation and prosecution of

large criminal conspiracies.” Michael Goldsmith &

Kathryn

Ogden

Balmforth,

The

Electronic

Surveillance of Privileged Communications, 64 S.

Cal. L. Rev. 903, 906 (1991). Interposing

unwarranted administrative obstacles in the way of

getting wiretap orders thus makes it needlessly hard

for law enforcement to perform an essential function.

22

III. The Court Should Grant Review Despite

The Ninth Circuit’s Ruling That Petitioners

Are Immune From The Claim For Damages

Even though the Ninth Circuit ruled that delegations violate § 2516(2), the court went on to hold that

petitioners are immune from respondent’s claim for

damages because they acted in “good faith.” 24a. Respondent may argue that petitioners thus prevailed

in the Ninth Circuit, and accordingly have no right to

seek review in this Court. But any such argument

would be wrong.

1. In Camreta v. Greene, 563 U.S. 692 (2011),

this Court ruled that it may entertain a petition filed

by a state official who loses on the merits of a plaintiff ’s § 1983 claim but prevails on a defense of qualified immunity. So too here, the Court should entertain a petition filed by state entities who have lost on

the merits of a plaintiff ’s claim but who have prevailed on a defense of good-faith immunity.

In Camreta, the Court held that neither Article

III nor the federal certiorari statute prevents it from

hearing petitions brought by parties who lose on the

merits but win on immunity. A “prevailing” party can

still satisfy Article III so long as he “retains the necessary personal stake in the appeal,” and a state official retains such a stake where the appellate court’s

ruling tells him “either [to] change the way he performs his duties or risk a meritorious damages action.” Id. at 703. In addition, the certiorari statute

“confers unqualified power on this Court to grant

certiorari ‘upon the petition of any party’”—language

that “covers petitions brought by litigants who have

prevailed, as well as those who have lost, in the court

below.” Id. at 700 (quoting 28 U.S.C. § 1254(1)).

23

The critical question is instead simply whether,

“as a matter of practice and prudence,” the Court

should consider a case at the behest of a prevailing

party. Id. at 703. Camreta explained that the Court

should do so, where the “prevailing” party has prevailed only on an immunity defense but has lost on

the merits of the plaintiff ’s claim. The Court explained that a “ruling preparatory to a grant of immunity creates law that governs the official’s behavior.” Id. at 708. The ruling confronts the official with

two choices: “He must either acquiesce in a ruling he

had no opportunity to contest in this Court, or defy

the views of the lower court, adhere to practices that

have been declared illegal, and thus invite new suits

and potential punitive damages.” Id.

The same logic governs this case. The Ninth Circuit’s merits ruling “creates law that governs the official’s behavior.” (The Ninth Circuit has explained

that “where a panel confronts an issue germane to

the eventual resolution of the case, and resolves it

after reasoned consideration in a published opinion”—as the panel did here—“that ruling becomes

the law of the circuit.” United States v. Johnson, 256

F.3d 895, 914 (CA9 2001) (en banc).) The ruling confronts prosecutors in Maricopa County with two

choices. They “must either acquiesce in a ruling

[they] had no opportunity to contest in this Court, or

defy the views of the lower court, adhere to practices

that have been declared illegal, and thus invite new

suits and potential punitive damages.” In light of the

Ninth Circuit’s ruling in this case, they likely could

not claim good-faith immunity in those new cases.

Camreta says that no state official should be put to

such a choice.

24

2. Even putting Camreta aside, the Ninth Circuit’ decision to award costs to respondent rather

than to petitioners (see 25a) provides an independent

basis for this Court’s review.

Normally, a federal court must award costs to the

party that prevails on appeal. Fed. R. App. P. 39(a).

In this case, however, the Ninth Circuit awarded

costs to respondent Villa, even though it affirmed the

district court’s judgment in petitioners’ favor. This

cost award necessarily rested on the Ninth Circuit’s

ruling that petitioners had violated respondent’s

rights under the wiretap statute; in the absence of

that ruling, there would have been no justification

whatever for ordering petitioners to pay costs.

The Ninth Circuit’s costs award further underscores this Court’s authority to review this case. The

award confirms that the Ninth Circuit’s ruling about

the lawfulness of delegations was not a mere dictum

or a bare statement in an opinion; the ruling was,

instead, the basis for ordering petitioners to pay a

sum of money to the respondent. Even without

Camreta, this Court unquestionably may review such

a ruling.

3. The procedural wrinkles just discussed

should not deter the Court from granting review. If

they did, the Ninth Circuit’s gravely erroneous decision would in effect be insulated from this Court’s

review forever; the resulting intrusion upon state

sovereignty and encumbrance upon law enforcement

would stand indefinitely, without petitioners’ ever

having any opportunity to contest that ruling in this

Court.

25

To elaborate: Officials who violate Title III face

severe penalties—not just civil liability, but, in some

circumstances, criminal liability too. § 2511(1), (4).

As a practical matter, they will have no choice but to

follow the Ninth Circuit’s decision and to refrain

from making any delegations. Even though state

laws and state court decisions allow the officials to

delegate their authority to their subordinates, few if

any officials would be willing to risk ruinous civil liability (and, perhaps, even criminal prosecution) by

following state laws and decisions. In short, officials

will be forced to acquiesce in the Ninth Circuit’s decision, and will likely never again have an opportunity

to contest the ruling in this Court.

The Court should not tolerate such a result. It

should instead grant this petition and, ultimately,

reverse the Ninth Circuit’s decision.

CONCLUSION

The Court should grant the petition for writ of

certiorari.

Respectfully submitted.

MICHAEL A. CARVIN

Counsel of Record

VIVEK SURI

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

macarvin@jonesday.com

Counsel for Petitioners

DECEMBER 13, 2017