Opposition Brief — Michigan v. Thornburgh

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No. 88-402

IN THE UNITED STATES SUPREME CO

OCTOBER TERM, 1988

THE STATE OF MICHIGAN, Petitioner

Vv.

EDWIN MEESE, Attorney General

for the United States, Respondent

and

STEVE ASMAR and METRO INSTITUTIONAL

FOOD SERVICES, INC.

intervening Respondents.

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE SIXTH

CIRCUIT COURT OF APPEALS

LAW OFFICES OF LAWRENCE J.

STOCKLER & ASSOCIATES, P.C.

BY: LAWRENCE J. STOCKLER

Attorneys for Intervening Respondents

15565 Northland Drive, Suite 500 E

Southfield, MI 48075

(313) 569-7700

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STATEMENT OF QUESTIONS PRESENTED

im iz WW, V5.4. 45 BS. m-

APPLICABLE TO THE STATES

PURSUANT TO THE TENTH AMEND-

MENT, OR, IN THE ALTERNATIVE,

DOES CONGRESS HAVE THE AU-

THORITY TO BIND STATES UNDER

THE "WIRETAP LAW" PURSUANT TO

THE COMMERCE CLAUSE?

iS SECTION 2535 OF TITLE i OF

THE OMNIBUS CRIME CONTROL AND

SAFE STREETS ACT OF 1968 BIND-

ING UPON THE STATES PURSUANT

TO AMENDMENTS OTHER THAN THE

TENTH AMENDMENT TO THE UNIT-

ED STATES CONSTITUTION?

0199B

| °

TABLE OF CONTENTS ;

PAGE(S) =

Table of Authorities iii - vii =

Opinions below ix SS

Constitutional and statutory Ba

provisions involved ix - xiv

Statement of the Case | t= 4 =

Reasons for denying petition > - 35 =

Argument | >

Argument II 17 = 35 ~

Conclusion 36 =

0199B

TABLE OF AUTHORITIES

FEDERAL CASES

Berger v. New York

87 S.Ct. 1873, 388 U.S. 41,

18 L.Ed.2d 1040 (1967)

Clark v. U.S.

eatectin) 21t Fe. 916

Duncan v. United States

48 F.2d 128 (D.C. Ore. 1931)

Gelbard v. United States

408 U.S. 41, 48, 92 S.Ct. 2357

33 L.Ed.2d 179 (1972)

Hodel v. Virginia Surface Mining

and Reclamation Ass'n, Inc.,

452 U.S. 264, 101 S.Ct. 2352,

69 L.Ed.2d 1 (1981)

Hunter v. Underwood

R7t Usd. Zea, Od B.Ct. 1916,

85 L.Ed.2d 222 (1985)

Katz v. United States

389 U.S. 347, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967)

Olmstead v. United States

277 U.S. 438, 48 S.Ct. 564,

72 L.Ed. 944 (1928)

Payton v. New York

Riddick v. New York

445 U.S. 573, 100 S.Ct. 1371,

63 L.Ed.2d 639 (1980)

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PAGE(S)

24, 25, 26

27, 28

%, 8, 3

32, 33, 34

>, 6, 7

28, 30, 31

PAGE(S)

Pensacola T. Co. v. W.U. 8

96 U.S. 1, 24 L.Ed. 708

Scarborough v. United States 14, 15

431 U.S. 563, 97 S.Ct. 1963

52 L.Ed.2d 582 (1977)

United States v. Darby 9, 10

312 U.S. 100, 312 U.S. 657,

81 S.Ct. 451, 85 L.Ed. 609 (1941)

United States v. Von Stephens 2-33

774 F.2d 1411 (C.A. 9 1985)

United Transportation Union v. 13

Long Island Railroad Company

455 U.S. 678, 102 S.Ct. 1349,

71 L.Ed.2d 547 (1982)

Western Union Teleq. Co. v. Pendleton 8

t44 Uide Sal, 1 Detuks 1148,

30 L.Ed. 1187

MICHIGAN CASES

People v. Warner 16

401 Mich. 186, 258 N.W.2d 385 (1977)

FEDERAL CONSTITUTION

v.3. Const, Art. 1, §$ 8, Gi. 1 5. 13

iwe Get, Are. 1. 3 &,. Gec 2 5s. 6, 10

13,

.S. Const, Art. 1. $8, Gl. 7 8

First Amendment o. ae

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BEE ERERCESEEE

PAGE(S)

Fourth Amendment 1, 48, 20; 2

Fifth Amendment ts ae

Tenth Amendment Rig dec ae

a Pee y eee

Fourteenth Amendment 12, 28

FEDERAL STATUTES

18 U.S.C. §§ 1201-1203 14

18 U.S.C. § 2510 et seq. la By ee

18 U.S.C. § 2515 3S; Bates 2

MICHIGAN STATUTES

M.C.L. § 750.539(a) et seq. 23

OTHER AUTHORITIES CITED

114 Cong. Rec. 14773 (1968) 15

United States Code, Congressional

and Administrative News, 90th

Congress, Second Session, 1968,

Vol. 2, Legislative History “

United States Code, Congressional

and Administrative News, 90th

Congress, Second Session, 1968,

Vol. 2, Legislative History, p.2113 17

| 0199B

United States Code, Congressional

and Administrative News, 90th

Congress, Second Session, 1968,

Vol. 2, Legislative History,

p.2153-54

United States Code, Congressional

and Administrative News, 90th

Congress, Second Session, 1968,

Vol. 2, Legislative History,

p.2155

United States Code, Congressional

and Administrative News, 90th

Congress, Second Session, 1968,

Vol. 2, Legisiative History,

p.2157

United States Code, Congressional

and Administrative News, 90th

Congress, Second Session, 1968,

Vol. 2, Legislative History,

p.2159

United States Code, Congressional!

and Administrative News, 90th

Congress, Second Session, 1968,

Vol. 2, Legislative History,

p.2161

United States Code, Congressional

and Administrative News, 90th

Congress, Second Session, 1968,

Vol. 2, Legislative History,

p.2162

PAGE(S)

20,

=e eugcirgrteegaitngnd i

United States Code, Congressional

and Administrative News, 90th

Congress, Second Session, 1968,

Vol. 2, Legislative History,

po.2184-5

United States Code, Congressional!

and Administrative News, 90th

Congress, Second Session, 1968,

Vol. 2, Legislative History,

p.2189

01996

PAGE(S)

22, 23

23, 24

viii

No. 88-402

IN THE UNITED STATES SUPREME COURT

OCTOBER TERM, 1988

THE STATE OF MICHIGAN, Petitioner

Vv.

EDWIN MEESE, Attorney General

for the United States, Respondent

and

STEVE ASMAR and METRO INSTITUTIONAL

FOOD SERVICES, INC., Intervening Respondents.

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE SIXTH

CIRCUIT COURT OF APPEALS

The Intervening Respondents, STEVE

ASMAR and METRO INSTITUTIONAL FOOD

SERVICES, INC. respectfully request that this

Court deny Petitioner's Petition for Writ of

Certiorari to the Sixth Circuit Court of Ap-

peals.

OPINIONS BELOW

The Opinion of the District Court for the

Eastern District of Michigan is attached hereto

as Appendix A. The opinion of the Sixth

Circuit Court of Appeals is appended as Ap-

pendix 8B.

JURISDICTION

The judgment of the District Court for

the Eastern District of Michigan was entered

on August 10, 1987. The judgment of the Sixth

Circuit Court of Appeals was entered on July

6, 1988. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254,

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

a The First Amendment to the United

States Constitution provides in relevant part:

"The Congress shall have Power

+ * *

01996

To regulate commerce’ with foreign

nations, and among the several States,

and with the Indian tribes."

) Bi The Fourth Amendment to the United

States Constitution provides in relevant part:

"The right of the people to be secure in

their persons, houses, papers, and

effects, against unreasonable’ searches

and seizures shall not be violated, and no

Warrants shall issue, but upon probable

cause, supported by Oath or affirmation,

and particularly describing the place to

be searched, and the persons or things

to be seized."

ae The Fifth Amendment to the United

States Constitution provides in relevant part:

"No person shall be held to answer for a

capital, or otherwise infamous’ crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the Mili-

tia, when in actual service in time of War

or public danger; nor shall any person be

subject for the same offence to be twice

put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived

of life, liberty, or property, without due

process of law; nor shall private property

be taken for public use, without just

compensation."

4 , The Tenth Amendment to the United

States Constitution provides in relevant part:

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"The powers not delegated to the United

States by the Constitution, nor prohibited

by it to the States, are reserved to the

States respectively, or to the people."

5. The Fourteenth Amendment to the

United States Constitution provides in relevant

part:

"Section 1. All persons born or natu-

ralized in the United States and subject

to the jurisdiction thereof, are citizens of

the United States and of the State where-

in they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

* * *

Section 5. The Congress’ shall have

power to enforce, by appropriate legis-

lation, the provisions of this article."

6. Title 18, U.S.C. § 2510 provides in

relevant part:

"As used in this chapter [18 USCS §§

2510 et seq. ]--

* * *

(2) ‘oral communication’ means any oral

communication uttered by a person exhib-

iting an expectation that such

0199B

xii

communication is not subject to _ inter-

ception under’ circumstances justifying

such expectation;

(3) ‘State’ means any State of the United

States, the District of Columbia, the

Commonwealth of Puerto Rico, and any

territory or possession of the United

States;

(4) '‘intercept' means the aural acquisi-

tion of the contents of any wire or oral

communication through the use of any

electronic, mechanical, or other device.

(5) ‘electronic, mechanical, or other

device’ means any device or apparatus

which can be used to intercept a wire or

oral communication other than --

(a) any telephone or telegraph instru-

ment, equipment or facility, or any

component thereof, (i) furnished to

the subscriber or user by a commu-

nications common carrier’ in the

ordinary course of its business and

being used by the subscriber or

user in the ordinary course of its

business; or (ii) being used by a

communications common carrier in the

ordinary course of its business, or

by an investigative or law enforce-

ment officer in the ordinary course

of his duties;

(b) a hearing aid or similar device being

used to correct subnormal hearing to

not better than normal;

(6) '‘person' means any employee, or

agent of the United states or any State or

political subdivision thereof, and any

0199B

xiii

individual, partnership, association, joint

stock company, trust, or corporation;

* * *

(8) ‘contents,’ when used with respect

to any wire or oral communication, in-

cludes any information concerning the

identity of the parties to such communica-

tion or the existence, substance, pur-

port, or meaning of that communication;

(9) "Judge of competent jurisdiction'

means --

(a) a judge of the a United States

district court or a United States

court of appeals; and

(b) a judge of any court of general

criminal jurisdiction of a State who is

authorized by a statute of that State

to enter orders authorizing inter-

ceptions of wire or oral communica-

tions;

* * *

(11) ‘aggrieved person' means a _ person

who was a party to any intercepted wire

or oral communication or a person against

whom the interception was directed."

7. Title 18, U.S.C. § 2515 provides in

relevant part:

"Whenever any wire or oral communication

has been intercepted, no part of the

contents of such communication and no

evidence derived therefrom may be re-

ceived in evidence in any trial, hearing,

or other proceeding in or before any

01998

XiVv

court, grand jury, department, officer

agency, regulatory body, legislative

committee, or other authority of the

United States, a State, or a_ political

subdivision thereof if the disclosure of

that information wouid be in violation of

this chapter [18 USCS §§ 2510 et seq.]."

0199B

Tee eee

STATEMENT OF THE CASE

The State of Michigan is contesting the

constitutionality of the Omnibus Crime Control

and Safe Streets Act of 1968 based upon the

Tenth Amendment. If the State of Michigan is

correct then, of course, the purpose for Title

18 U.S.C. § 2510 et seq. would be thwarted

and Congress' power to control commerce would

be thwarted and be meaningless. Further-

more, the State ignores the constitutionality of

Title 18, U.S.C. § 2510 et seq. as applicable

to the states under the First, Fourth and Fifth

Amendments of the United States Constitution

as made applicable to them by the Fourteenth

Amendment.

What transpired in this particular is that

there was an illegal wiretapping made of con-

versations involving three individuals, none of

whom had given authorization nor had known

about such electronic recording of their con-

versations on a tape. The perpetrator of the

0199B

improper act then mailed the tape to an attor-

ney. The attorney then proceeded to make

use of this tape and disseminate the contents

of the tape in an unauthorized manner includ-

ing giving a copy to the Wayne County Pros-

ecutor's office.

An attempt was made to have a grand

jury investigation based upon the tape. The

grand jury judge quashed the tape pursuant to

Title 18, U.S.C. § 2510 et seq. The State of

Michigan never appealed and attempted to come

to this Court directly by a Petition for Writ of

Certiorari for which the Petition was denied.

Thereafter the State of Michigan commenced

litigation in the United States District Court

for the Eastern District of Michigan. Summary

judgment was entered on the grounds that

Title 18, U.S.C. § 2510 et seq. did not violate

the Tenth Amendment of the U.S. Constitution

and that Congress did have the power under

the commerce clause to- regulate - illegal

wiretapping, including the prohibition of the

0199B

Fe ee eeeeekekeseetee «|

use of any evidence derived therefrom in,

among several areas, state courts (§ 2515).

An appeal was made to the United States Court

of Appeals, Sixth Circuit and that court

sustained the dismissal, but for other reasons,

including the fact that the State had not used

their own procedural steps in appealing the

dismissal through the state courts.

At this particular time what is at issue is

whether the State of Michigan is immune from

the provisions of Title 18, U.S.C. § 2515, that

no evidence shall be received in any hearing

in its courts when an electronic recording is

tainted.

The Complaint was filed in the within

matter by the State of Michigan on _ the

grounds that Title III] of the Omnibus Crime

Control and Safe Streets Act of 1968, and more

particularly § 2515 therein, is unconstitutional

pursuant to the Tenth Amendment of the

United States Constitution and therefore is not

applicable or binding upon the states.

0199B

Intervening Appellees aver that the State

of Michigan has failed to read the Senate

Report set forth in the United States Code,

Congressional and Administrative News, 90th

Congress, Second Session, 1968, Vol. 2,

Legislative History, which had clearly indicated

that the basis of Title III is to protect the

right of privacy and that it has nothing what-

soever to do with the Tenth Amendment.

Also, case law is cited in support of

Intervening Appellees' position.

REASONS FOR DENYING THE WRIT

TITLE 18, U.S.C. § 2515 IS INAPPLICABLE

TO THE STATES PURSUANT TO THE TENTH

AMENDMENT, OR, IN THE ALTERNATIVE,

CONGRESS DOES HAVE THE AUTHORITY TO

BIND STATES UNDER THE "WIRETAP LAW"

PURSUANT TO THE COMMERCE CLAUSE.

The commerce clause of the United States

Constitution, Art. |, § 8, Cl. 1 and 3 state as

follows:

"Tne Congress shall have Power

* * *

To regulate commerce’ with foreign

nations, and among the several States,

and with the Indian tribes."

In Hodel v. Virginia Surface Mining and Recla-

mation Ass'n, Inc., 452 U.S. 264, 101 S.Ct.

2352, 69 L.Ed.2d 1 (1981), this Court held

that the Surface Mining Control and Reclama-

tion Act was constitutional and did not violate

the commerce clause or the Tenth Amendment

of the United States Constitution. This Court

held that if there is any rational basis for

0199B

such finding it must defer to congressional

findinas that regulate activities which affect

interstate commerce. Further, the de-

nomination of an activity as "local" or "“intra-

state" activity does not resolve the question of

whether Congress may regulate it under the

commerce clause, but commerce power extends

to those activities intrastate which so affect

interstate commerce, or exertion of power of

Congress over it, as to make regulation of

them appropriate means for attainment of

legitimate end, the effective execution of the

granted power to regulate interstate commerce.

See United States Constitution, Art. I, § 8,

Ci. 3, supra. In Hodel, supra, this Court

held that in order for a state to succeed in its

claim that the congressional commerce power

legislation is invalid under the Tenth

Amendment, the _ state must satisfy three

requirements: (1) THERE MUST BE A

SHOWING THAT THE CHALLENGED STATUTE

REGULATES STATES AS STATES; (2) THAT

01996

THE FEDERAL REGULATION MUST ADDRESS

MATTERS THAT ARE INDISPUTABLY

ATTRIBUTES OF STATE SOVEREIGNTY; AND

(3) 1T MUST BE APPARENT THAT STATES'

COMPLIANCE WITH FEDERAL LAW WOULD

DIRECTLY IMPAIR THEIR’ ABILITY TO

STRUCTURE INTEGRAL OPERATIONS IN

AREAS OF TRADITIONAL FUNCTIONS.

This Court further held in Hodel, supra,

that the Tenth Amendment did not limit con-

gressional power to preempt or displace state

regulation of private activities affecting inter-

state commerce. Congress does not invade

areas reserved to the states by the Tenth

Amendment simply because it exercises its

authority under the commerce clause in a

manner that displaces the states' exercise of

their police powers.

In the case at bar, there is no question

that recording of phone conversations off of

the telephone involves interstate commerce.

See Duncan v. United States, 48 F.2d 128

01998

—————————

(D.C. Ore. 1931) where the court stated,

among other things, that the transmission of

ideas by telephone or telegraph is regulated

by Congress pursuant to the commerce clause,

citing Pensacola T. Co. v. W.U., 96 U.S. 1

24 L.Ed. 708 and Western Union Telea. Co. v.

Pendleton, 122 U.S. 347, 7 S.Ct. 1126, 30

L.Ed. 1187. In Duncan, supra, it was held

that in regulating interstate commerce Con-

gress may exercise police power which, in the

absence of such delegation to the federal

government, would be exclusively within the

police power of the state. The determinative

point is whether or not the Constitution does

delegate to the United States police power

which, in the absence of such delegation,

could only be exercised by the states. The

Duncan court further discussed the power of

Congress under the constitutional grant to

regulate commerce between the states pursuant

to U.S. Const., Art. |, § 8, cl. 7 such as the

Mann Act, violation of the child labor laws,

01996

_-* 8 Beeereeeseene @ |

and the violation of the mail fraud statute,

etc. The Duncan court further held that the

power of Congress to regulate’ interstate

commerce could only be accomplished by

prohibiting those aets which could only be

effectuated by the evil intended.

The Duncan court cited Clark v. U.S.,

(C.C.A.), 211 F. 916 wherein the Federal

Criminal Code of 1909 was sustained as a

constitutional exercise of the power of Con-

gress to regulate interstate commerce.

In United States v. Darby, 312 U.S. 100,

312 U.S. 657, 81 S.Ct. 451, 85 L.Ed. 609

(1941) it was held that Congress' power under

the interstate commerce clause was the power

to prescribe the rule by which commerce is to

be governed, and it extends to those regu-

lations which aid, foster and protect the

commerce, and further embraces those which

prohibit it. The power of Congress over

interstate commerce is complete in itse!f, may

be exercised to its utmost extent, and

0199B

acknowledges no limitations other than are pre-

scribed by the Constitution, and that power

can neither be enlarged nor diminished by the

exercise or nonexercise of state power, citing

Mio. Gonet., Art. |. § 8, d&. 3. I Darby,

supra, this Court he!ld that Congress, follow-

ing its own conception of public policy con-

cerning restrictions which may appropriately

be imposed on interstate commerce, is free to

exclude from the commerce articles whose use

in the states for which they are destined may

conceived to be injurious to the public health,

morals or welfare even though the state has

not sought to regulate their use, and such

regulation is not a forbidden invasion of state

power merely because either its motive or its

consequence is to restrict the use of the

articles of commerce within the states of desti-

nation and is not prohibited unless by other

constitutional provisions. It was further held

in Darby, supra, that there was no objection

to the assertion by Congress of the power to

0199B

_ = ee eeeeeeteaeeaeaaa a

regulate interstate commerce in that its

exercise is attended by the same_ incidents

which attend the exercise of the police power

of the states. The purpose of regulation of

interstate commerce are matters for’ the

legislative judgment upon the exercise of which

the Constitution places no restriction and over

which the courts are given no_ control.

Whatever Congress' motive and _ purpose,

regulations of commerce which do not infringe

some constitutional prohibition are within the

plenary power conferred on Congress by the

commerce clause. |

If the State of Michigan is correct, then,

of course, Congress would not have the power

to restrict illegal wiretapping of phone conver-

sations or air transmittal of many types of

communications, whether it be voice or whether

it be by electronic means. Such communica-

tions could be intercepted and used for any

purpose.

01998

A further clarification of the power of

Congress to regulate interstate commerce,

prohibit the use and dissemination of illegal

wiretaps and prohibit the use of evidence in

any hearing, etc. pursuant to Title 18,

U.S.C. § 2515 is set forth in Hunter v. Un-

derwood, 471 U.S. 222, 105 S.Ct. 1916, 85

L.Ed.2d 222 (1985). It was held in Hunter

that the Tenth Amendment cannot save legis-

lation prohibited by the subsequently enacted

Fourteenth Amendment. In the case at bar,

the State of Michigan has failed to recognize

that the First, Fourth and Fifth Aswunbiiiiics

are made applicable to the states by the Four-

teenth Amendment.

In United States v. Von Stephens, 774

F.2d 1411 (C.A. 9 1985) it was held that the

application of the federal theft statute to

defendant's unlawful receipt and cashing of

warrants did not violate the state's rights

under the Tenth Amendment. This was a valid

exercise of congressional power under the

0199B

2 ee BSeeeaHeReeeeektaa a

constitutional section allowing Congress’ to

provide for the general welfare, and does not

violate a state's rights under the Tenth

Amendment, citing U.S. Const., Art. I, § 8,

ae In Von Stephens, supra, the court

held that the Tenth Amendment provides that

the powers that are not delegated to the

United States by the Constitution are reserved

to the states. Art. I, § 8, cl. 1 allows Con-

gress to provide for the general welfare of the

United States which includes preventing of

illegal wiretaps, as well as Art. I, § 8, cl. 3

granting Congress plenary power to regulate

commerce among the states.

In United Transportation Union v. Long

Island Railroad Company, 455 U.S. 678, 102

S.Ct. 1349, 71 L.Ed.2d 547 (1982), it was held

that the Tenth Amendment did not prohibit

application of the Railway Labor Act to a

state-owned railroad engaged in_ interstate

commerce since operation of the railroad was

clearly not an integral part of traditional state

0199B

activities generally immune from federal regu-

lations.

Furthermore, in Scarborough v. United

States, 431 U.S. 563, 97 S.Ct. 1963, 52

L.Ed.2d 582 (1977) this Court discussed the

constitutionality of a particular provision which

was in violation of Title 7 of the Omnibus

Crime Control and Safe Streets Act of 1968,

being Title 18, U.S.C. §§ 1201-1203. One of

the petitioner's defense was that merely pos-

sessing a firearm was not a nexus "between

the states" so that the court’ lacked

jurisdiction over him and he should not have

been tried and convicted. The trial court held

that it was not necessary that the government

prove that the defendant purchased the gun in

some state other than that where he was found

with it or that he carried it across state line,

nor must the government prove who. did

purchase the gun. All that had to be

demonstrated was that the firearm possessed

by a convicted felon had previously traveled in

0199B

interstate commerce. The Scarborough court

then held that the theories raised by the

defendant could create serious loop holes in

the congressional plan to "make it unlawful for

a firearm . . . to be in the possession of a

convicted felon," citing 114 Cong. Rec. 14773

(1968).

Like Scarborough, in this’ particular

instance, if the State of Michigan is correct,

then illegal wiretapping can run_- rampant

because the federal government has no control

over interstate commerce of telephone lines,

telegraph lines and the like. Furthermore,

one the hidden dangers which the grand jury

judge in Wayne County recognized was that

this would encourage, rather than prevent or

deter, police to have illegal wiretappings made,

mail the tape anonymously to themselves, and

then use the same in court as evidence against

the participants in such phone conversations;

whereas, Title 18, U.S.C. § 2510 et seq. has

built-in safeguards for warrants being issued

019SB

for legal wiretaps. The State of Michigan's

proposition would allow state officers to run

amuck, among other things, and encourage

other violations by private citizens. See

People v. Warner, 401 Mich. 186, 258 N.W.2d

385 (1977) where the State of Michigan itself

recognized the constitutionality of Title 18,

U.S.C. § 2510 et seq.

The attorney general of Michigan has

failed to differentiate between the con-

stitutionality of Title III of the Omnibus Crime

Control and Safe Streets Act of 1968 as to the

states versus the interpretation and the appli-

cation of Title 18, U.S.C. § 2510 et seq. to

particular instances. It appears that what the

Michigan attorney general was attempting to do

was have the United States District Court act

as an appellate court to the State of Michigan,

Circuit Court for the County of Wayne, Grand

Jury Judge, as to that judge's interpretation

and applicability of the wiretap law in a par-

ticular instance that was heard before him.

0199B

aera es

SEE BE BRE RBS SESS SRE REZER

SECTION 2515 OF TITLE III OF THE

OMNIBUS CRIME CONTROL AND SAFE

STREETS ACT OF 1968 IS BINDING UPON

THE STATES PURSUANT TO AMENDMENTS

OTHER THAN THE TENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION.

In the United States Code, Congressiona

and Administrative News, 90th Congress

Second Session, 1968, Vol. 2, Legislative

History, p.2113, the purpose of the Omnibus

Crime Control and Safe Streets Act of 1968 has

been set forth as follows:

"Title II! prohibits all wiretapping and

electronic surveillance by persons * * * ,

This proposed legislation conforms to the

constitutional standards set out in Berger

v. New York [87 S.Ct. 1873, 388 U.S. 47

(1967)], and Katz v. United States [88

S.Ct. 507, 389 U.S. 347 (1967)]."

Furthermore, the Senate Report at pp. 2153-54

states:

"Title Ill is essentially a combination of

S. 675, the Federal Wire Interception Act,

introduced by Senator McClellan on Janu-

ary 25, 1967, and S. 2050, the Electronic

Surveillance Control Act of 1967, in-

troduced by Senator Hruska on June 29,

1967. Subsequent to the introduction of

S. 675, the U.S. Supreme Court, on June

12, 1967, handed down the decision in

01996

Berger v. New York, 87 S.Ct. 1873, 388

U.S. 41, which declared unconstitutional!

the New York State statute authorizing

electronic eavesdropping (bugging) by

law-enforcement officers in investigating

certain types of crimes. The Court held

that the New York statute, on its face,

failed to meet certain constitutional stan-

dards. In the course of the opinion, the

Court delineated the constitutional criteria

that electronic surveillance legislation

should contain. Title II] was drafted to

meet these standards and to conform with

Katz v. United States, 88 S.Ct. 507, 389

U.S. 3"7 (1967).

Title Ill has as its dual purpose (1)

protecting the privacy of wire and oral

communications, and (2) delineating on a

uniform basis the circumstances and

conditions under which the interception of

wire and oral communications may be

authorized. To assure the privacy of

oral and wire communications, title III

prohibits all wiretapping and -electronic

survetllance by persons other than duly

authorized law enforcement officers

engaged in the investigation or prevention

of specified types of serious crimes, and

only after authorization of a court order

obtained after a showing and finding of

probable cause. The only exceptions to

the above prohibition are: (1) the power

of the President to obtain information by

such means as he may deem necessary to

protect the National from attack or hostile

acts of a foreign power, to obtain intelli-

gence information essential to the Nation's

security, and to protect the _ internal

security of the United States from those

who advocate its overthrow by force or

other unlawful means; (2) employees of

the Federal Communications Commission

0199B

may, in the normal course of employment,

intercept and disclose wire communications

in the discharge of the monitoring re-

sponsibilities discharged by the Commis-

sion in the enforcement of chapter 5 of

title 47 of the United States Code; and

(3) employees of a communication common

carrier may intercept and disclose wire

communications in the normal course of

their employment while engaged in any

activity necessary to the rendition of

service, or protection of the rights or

property of the carrier of such commu-

nication."

The Senate Report further noted at p. 2154:

"The first case in which the Supreme

Court considered the status of

wiretapping was Olmstead v. United

States, decided in 1928, 48 S.Ct. 564,

277 U.S. 438. It held that the tapping of

telephone wires and the use of the inter-

cepted messages did not constitute an

unreasonable search and seizure under

the Fourth Amendment, there being no

trespass into constitutionally protected

areas and no seizure of anything tangi-

ble.

* * *

Soon after the enactment of the Federal

Communications Act, the Supreme Court

held in Nardone v. United States, 58

S.Ct. 275, 302 U.S. 379 (1937), that

evidence obtained by wiretapping in

violation of section 605 was inadmissible in

Federal courts. The decision was based

not on constitutional grounds, but rather

on the Court's supervisory powers over

Federal courts and officers."

oR RBPRPEREER ERE SEE ES

0199B

At p. 2155 the Senate Report states as follows:

"Thus the Supreme Court has effectively

prevented the use in both Federal and

State courts of intercepted communications

by wiretapping, as well as the fruits

thereof. State officers would be subject

to Federal prosecution and, therefore,

most State prosecutors do not use such

evidence, although it is authorized by

their State statutes."

At p. 2157 the Senate Report defined the

purpose of Title II! as follows:

"The major purpose of title III is to

combat organized crime."

At p. 2159 the Senate Report states as follows:

"The principal argument of those who

oppose wiretapping and electronic surveil-

lance by law enforcement officers on court

order is that it will destroy our right of

privacy."

In further discussing Title III, the Senate

Report states as follows at p.2161:

"Organized criminals must hold meetings

to play plans. Where the geographical

area over which they operate is large,

they must use telephones. Wiretapping

and electronic surveillance techniques can

intercept these wire and oral communica-

tions.

* 7 *

Debate over the _ constitutionality of

wiretapping and electronic surveillance

0199B

SESS SRSEREERESER ECE Ss

techniques has raged insistently since the

Court decided in 1928 in Olmstead v.

United States, 48 S.Ct. 564, 277 U.S. 438

(1928), that wiretapping accomplished

without a physical trespass into a consti-

tutionally protected area did not violate

any provision of the Constitution. That

debate has taken many forms. It has

posted many hypotheses. All of them

need not now be considered, for the

Court itself now has authoritatively set

down the constitutional standards in this

area on the use of these techniques in

Berger v. New York, 87 S.Ct. 1873, 388

U.S. 41! (1967), and Katz v. United

States, 88 S.Ct. 507, 389 U.S. 347

(1967).

The Berger decision reversed by a vote

of 6 to 3 the conviction, secured through

a court-ordered eavesdrop, of a New

York public relations man for conspiracy

to bribe the chairman of the New York

State Liquor Authority. In declaring the

New York eavesdropping statute unconsti-

tutional, the Court held that (1) a con-

versation is within the fourth amendment's

right to privacy protections, and the use

of electronic devices to seize conver-

sations is a search within the meaning of

that amendment; (2) the language of the

New York statute was so broad that it

resulted in a trespassory intrusion into a

constitutionally protected area and _ is

violative of the fourth and i4th amend-

ments; and (3) evidence obtained by an

eavesdrop which violates the fourth

amendment must be excluded in State

courts."

The Senate Report further held on p.2162 as

fol!

W ¢ -

01996

"On certiorari the Supreme Court held

that the CGovernment's activities in elec-

tronically listening to and _ recording

petitioner's words constituted an unlawful

search and seizure within the fourth

amendment and reversed the conviction.

* * *

In concluding, the Court held that the

Government agents ignored the procedure

of antecedent justification that is central

to the fourth amendment, and a procedure

the Court held to be aé_ constitutional!

pre-condition of the kind of electronic

surveillance involved in this case.

Working from the hypothesis that any

wiretapping and _ electronic surveillance

legislation should include the above

constitutional standards, the subcommittee

has used the Berger and Katz decisions

as a guide in drafting title Ill. Each

section of title III is discussed in detail

in the analysis section of this title,

including those provisions which are

intended to conform to the Berger and

Katz decisions."

In discussing the importance of banning of the

use of improperly obtained information from

illegal wiretaps, the Senate Report held as

follows:

"Section 2515 of the new chapter imposes

an evidentiary sanction to compel compli-

ance with the other prohibitions of the

chapter. It provides that intercepted

wire or oral communications or evidence

derived therefrom may not be received in

01996

— a I

evidence in any proceeding before any

court, grand jury, department, officer,

agency, regulatory body, legislative

committee, or a political subdivision of a

State, where the disclosure of that infor-

mation would be in violation of this chap-

ter. The provision must, of course, be

read in light of section 2518(10)(a) dis-

cussed below, which defines the class

entitled to make a motion to suppress. It

largely reflects existing law. It applies

to suppress evidence directly. * * * AND

IT 1S NOT LIMITED TO CRIMINAL PRO-

CEEDINGS. SUCH A SUPPRESSION RULE

TS NECESSARY AND PROPER TO PRO-

TECT PRIVACY." (Emphasis Added)

(p. 2184-5).

IN MICHIGAN, WIRETAPPING OR ELECTRONIC

EAVESDROPPING IS BARRED AS TO ALL,

BOTH THE PUBLIC AUTHORITIES AS WELL AS

PRIVATE PERSONS. [See M.C.L. § 750.539(a)

et seq]

The Senate Report clearly indicates at p.

2189 the importance of Section 2518 of Title III

as follows:

"Section 2518 of the new chapter sets out

in detail the procedure to be followed in

the interception of wire or oral commu-

nications.

oa * 7

Subparagraph (a) requires the identity of

the person who makes, and the person

01998

who authorized the application to be set

out. This fixes responsibility.

* * *

Each of these requirements reflects the

constitutional command of particularization

[Berger v. New York, 87 S.Ct. 1873, 388

U.S. 41, 58-60 (1967): Katz v. United

states, 68 S.Ct: $07, 389 U.S. 347,

354-56 (1967)]."

In the case of Berger v. New York, 87 S.Ct.

1873, 388 U.S. 41, 18 L.Ed.2d 1040 (1967) the

Court held that a conversation is within the

Fourth Amendment's protections and use of

electronic devices to capture it is a "search"

within the meaning of the U.S.C.A. Const.

Amend. 4. The Court further held that the

Fourth Amendment's’ right of privacy’ is

enforceable against states through due process

clause of the Fourteenth Amendment.

In Berger, supra, Justice Clark delivered

the opinion on behalf of the Court in discuss-

ing the eavesdropping statute of New York as

follows:

"We have concluded that the language of

New York's statute is too broad in _ its

sweep resulting in a trespassory intrusion

0199B

—————7~

into a constitutionally protected area and

is, therefore, violative of the Fourth and

Fourteenth Amendments. This disposition

obviates the necessity for any discussion

of the other points raised."

In Berger, supra, the Supreme Court

discussed the development of bugging and

wiretapping and then discussed the ffirst

wiretap case of Olmstead v. United States, 277

U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928)

and the_ scientific development of electronic

devices used for bugging and wiretapping from

that day forward and also the exclusionary

rule of evidence along with the Fourth Amend-

ment's protections. The Berger Court further

held as follows:

"It is now well settled that 'the Fourth

Amendment's right of privacy has been

declared enforceable against the States

through the Due Process Clause of the

Fourteenth Amendment. Mapp v. Ohio,

367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6

L.Ed.2d 1081 (1961). 'The security of

one's privacy against arbitrary intrusion

by the police--which is at the core of the

Fourth Amendment--is basic to a _ free

society.' Wolf v. People of the State of

Colorade, 338 U.S. 23, 421, 89 Bsmt.

1359, 1361, 93 L.Ed. 1782 (1949). And

its ‘fundamental protections * * * are

guaranteed * * * against invasion by the

0199B

States.' Sanford v. State of Texas, 379

U.S. 876, Sat, 83 S.Ot. See, Ben, t2

L.Ed.2d 431 (1965). This right has most

recently received enunciation in Camara

v. Municipal Court, 387 U.S. 523, 87

S.Ct. 1727, 18 L.Ed.2d 930. 'The basic

purpose of this Amendment, as recognized

in countless decisions of this Court, is to

safeguard the privacy and security of

individuals against arbitrary invasions by

governmental officials.' At 528, 87 S.Ct.

at 1730. Likewise the Court has decided

that while the ‘standards of reasonable-

ness' required under the Fourth Amend-

ment are the same under the Fourteenth,

they ‘are not susceptible of Procrustean

application * * *,' Ker v. State of

California, 374 U.S. 23, 33, 83 S.Ct.

1623, 1630, 10 L.Ed.2d 726 (1963). We

said there that 'the reasonableness of a

search is * * * (to be determined) by the

trail court from the facts and circum-

stances of the case and in light of the

"fundamental criteria" laid down by the

Fourth Amendment and in opinions of this

Court applying that Amendment.' Ibid."

Furthermore, in Berger the Court held as

follows:

"In any event we cannot forgive the

requirements of the Fourth Amendment in

the name of law enforcement. This is no

formality that we require today but a

fundamental rule that has long’ been

recognized as basic to the privacy of

every home in America. While'[t]he

requirements of the Fourth Amendment

are not inflexible, or obtusely unyielding

to the legitimate needs of law enforce-

ment.' Lopez v. United States, supra, at

464, 83 S.Ct. at 1404 [dissenting opinion

0199B

of Brennan, J.), it is not asking too

much that officers be required to comply

with the basic command of the Fourth

Amendment before the innermost secrets

of one's home or office are invaded. Few

threats to liberty exist which are greater

than that posed by the use of

eavesdropping devices. Some may claim

that without the use of such devices

crime detection in certain areas may

suffer some delays since eavesdropping is

quicker, easier, and more certain. How-

ever, techniques and practices may well

be developed that will operate just as

speedily and certainly and--what is more

important--without attending illegality.

It is said that neither a warrant nor a

statute authorizing eavesdropping can be

drawn so as to meet the Fourth Amend-

ment's requirements. lf that be true

then the 'fruits' of eavesdropping devices

are barred under the Amendment. On

the other hand this Court has in the

past, under specific conditions and cir-

cumstances, sustained the use of eaves-

dropping devices. See Goldman v. United

States, 316 U.S. 129, 62 S.Ct. 993, 86

L.Ed. 1322: On Lee v. United States, 343

ee eer se eae, 867, 96 L.Ed. 1270;

Lopez v. United States, supra; and

Osborn v. United States, supra. In the

latter case the eavesdropping device was

permitted where the 'commission of a

specific offense' was charged, its use was

‘under the most precise and discriminate

circumstances' and the effective adminis-

tration of justice in a federal court was at

stake. The States are under no greater

restrictions. The Fourth Amendment does

not make the ‘precincts of the home or

the office * * * sanctuaries where the law

can never reach,' Douglas, J., dissenting

in’ Warden, Maryland Penitentiary v.

Hayden, 36/ U.S. £98, 3a, sf 58.Ct.

1642, 1657, 18 L.Ed.2d 782, but it does

prescribe a constitutional standard that

must be met before official invasion is

permissible. Our concern with the stat-

ute here is whether its language permits

a trespassory invasion of the home or

office, by general warrant, contrary to

the command of the Fourth Amendment.

As it is written, we believe that it does."

In Payton v. New York and Riddick v. New

York, 985 U.S. 573, 100 S.Ct. 1371, 63

L.Ed.2d 639 (1980), the Supreme Court held

that Fourth Amendment to the United States

Constitution is made applicable to states by the

Fourteenth Amendment.

In Katz v. United States, 389 U.S. 347,

88 S.Ct. 507, 19 L.Ed.2d 576 (1967), it was

held that the government's” activities in

electronically listening to and_- recording

defendant's words spoken into a_ telephone

receiver in a public telephone booth violated

the privacy upon which’ the defendant

justifiably relied while using the telephone

booth and thus constituted a "search and

seizure" within the Fourth Amendment, and the

0199B

fact that the electronic device employed to

achieve that end did not happen to penetrate

the wall of the booth could have no

constitutional significance. Furthermore, the

Fifth Amendment, to some extent, reflects the

Constitution's concern for the right of each

individual to a private enclave where he may

lead a_ private life. Under the Fourth

Amendment, the protection of a_ person's

general right to privacy, this is, his right to

be let alone by other people, is, like the

protection of his property and of his very life,

left largely to the law of the individual states.

The First Amendment imposes limitations upon

governmental abridgment of freedom to

associate and privacy in one's associations.

Searches conducted outside the judicial process

without prior approval by a judge or a

magistrate, are per se unreasonable under the

Fourth Amendment, subject only to a_e few

specifically established and well delineated

exceptions. What a person seeks to preserve

0199B

as private, even in an area accessible to the

public, may be constitutionally protected under

the Fourth Amendment. Footnote 5 holds:

"The First Amendment, for example,

imposes’ limitations upon governmental

abridgment of ‘freedom to associate and

privacy in one's associations.'"

Further under Footnote 5, it is held:

"To some extent, the Fifth Amendment too

"reflects the Constitution's concern for *

x * 'k * * the right of each individual 'to

a private enclave where he may lead a

private life.'" Tehan v United States ex

rel. Shott, 382 U.S. 406, 416, 86 S.Ct.

459, 465, 15 L.Gd.20 853. Virtually

every governmental action interferes with

personal privacy to some degree. The

question in’ each case is whether that

interference violates a command of the

United States Constitution."

The Court further held:

"x * * For the Fourth Amendment protects

people, not places. What a person know-

ingly exposes to the public, even in his

own home or office, is not a subject of

Fourth Amendment protection. See Lewis

v. United States, 385 U.S. 206, 210, 87

S.Ct. 424, 427, 17 L.Ed.2d 312; United

States v. Lee, 274 U.S. 559, 563, 47

S.Ct. 746, 748, 71 L.Ed. 1202. But what

he seeks to preserve as private, even in

an area accessible to the public, may be

constitutionally protected. See Rios v.

United States, 364 U.S. 253, 80 S.Ct.

1431, 4 L.Ed.2d 1688; Ex parte Jackson,

96 U.S. 727, 733, 28 .80. @F7.”

0199B

The Court continued:

"He did not shed his right to do so

simply because he made his calls from a

place where he might be seen. No less

than an individual in a business office,

in a, friend's apartment, or in a taxi-

cab, a person in a telephone booth may

rely upon the protection of the Fourth

Amendment. One who occupies it, shuts

the door behind him, and pays the toll

that permits him to place a call is surely

entitled to assume that the words he

utters into the mouthpiece will not be

broadcast to the world. To read the

Constitution more narrowly is to ignore

the vital role that the public telephone

has come to play in private communica-

tion." (Footnotes omitted).

The Court further stated:

"Thus, although a closely divided Court

supposed in Olmstead that surveillance

without any trespass and without the

seizure of any material object fell outside

the ambit of the Constitution, we have

since departed from the narrow view on

which that decision rested. Indeed, we

have expressly held that the Fourth

Amendment governs not only the seizure

of tangible items, but extends as well to

the recording of oral statements over-

heard without any ‘technical trespass

under * * * focal property = law.'

Silverman v. United States, 365 U.S. 505,

ott, =1.mGt. See, Ses, & 86.20: 734.

Once this much is acknowledged, and

once it is recognized that the Fourth

Amendment protects people--and not

simply 'areas'--against unreasonable

searches and seizures it becomes clear

that the reach of that Amendment cannot

0199B

turn upon the presence or absence of a

physical intrusion into any given enclo-

sure.

We conclude that the underpinnings of

Olmstead and Goldman have been = so

eroded by our subsequent decisions that

the '‘'trespass' doctrine there enunciated

can no longer be regarded as controlling.

The Government's activities in electron-

ically listening to and _ recording the

petitioner's words violated the privacy

upon which he justifiably relied while

using the telephone booth and_ thus

constituted a ‘search and seizure’ within

the meaning of the Fourth Amendment.

The fact that the electronic device em-

ployed to achieve that end did not happen

to penetrate the wall of the booth can

have no constitutional significance."

In Gelbard v. United States, 408 U.S. 41, 48,

92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), at page

46 the Court heid as follows:

"In Title Ill, Congress enacted a compre-

hensive scheme for the regulation of

wiretapping and electronic surveillance.

See United States v. United States Dis-

trict Court, 407 U.S. 297, 301-306. Title

Ill authorizes the interception of private

wire and oral communications, but only

when law enforcement officials are inves-

tigating specified serious crimes and re-

ceive prior judicial approval, an approval

that may not be given except upon com-

pliance with stronger’ conditions. 18

U.S.C. §§2516, 2518(1)-(8). If a wire or

oral communication is intercepted in

accordance with the provisions of Title

l1!, the contents of the communication

01998

may be disclosed and used under certain

circumstances. 18 U.S.C. §2517. Except

as expressly authorized in Title Ill,

however, all interceptions of wire and

oral communications are flatly prohibited.

Unauthorized interceptions and the disclo-

sure or use of information obtained

through unauthorized interceptions are

crimes, 18 U.S.C. §2511(1), and _ the

victim of such interception, disclosure, or

use is entitled to recover civil damages,

18 U.S.C. §2520. Title III also bars the

use as evidence before official bodies of

the contents and fruits of illegal inter-

ceptions, 18 U.S.C. §2515, and provides

procedures for moving to suppress such

evidence in various proceedings, 18

U.S.C. §2518(9)-(10)."

Furthermore, the Court in Gelbard, supra,

held as follows:

Fe)

"The unequivocal language of §2515

expresses the fundamental policy adopted

by Congress on the subject of wire-

tapping and electronic surveillance. As

the congressional findings for Title III

make plain, that poiicy is strictly to limit

the employment of those techniques of

acquiring information:

'To safeguard the privacy of inno-

cent persons, the interception of

wire or oral communications where

none of the parties to the commu-

nication has consented to the inter-

ception should be allowed only when

authorized by a court of competent

jurisdiction and should remain under

the control and supervision of the

authorizing court. Interception of

wire and ora! communications should

further be limited to certain major

types of offenses and specific cat-

egories of crime with assurances that

the interception is justified and that

the information obtained thereby will

not be misused.' §801(d), 82 Stat.

211,!

The Senate committee report that accom-

panied Title III underscores the congres-

sional policy:

* * *

Hence, although Title III authorizes

invasions of individual privacy under

certain circumstances, the protection of

privacy was an overriding congressional

concern. Indeed, the congressional

findings articulate clearly the intent to

utilize the evidentiary prohibition of §2515

to enforce the limitations imposed by Title

II! upon wiretapping and electronic sur-

vetllance:

* * *

And the Senate report, like the congres-

sional findings, specifically addressed

itself to the enforcement, by means of

§2515, of the iimitations upon invasions of

individual privacy:

* + om

Section 2515 is thus central to the legisla-

tive scheme. Its importance as a pro-

tection for ‘the victim of an unlawful

invasign of privacy' could not be more

clear. The purposes of §2515 and Title

lil as a whole would be subverted were

the plain command of §2515 ignored when

the victim of an illegal interception is

01996

EERE RS RSSERSESESERSSSBBES

called as a witness before a grand jury

and asked questions based upon that

interception. Moreover, §2515 serves not

only to protect the privacy of commu-

nications, but aiso to ensure that the

courts do not become partners to iilleaal

conduct: the evidentiary prohibition was

enacted also ‘to protect the intearity of

court and administrative proceedinas.'

Consequently, to order a grand jury

witness, on pain of imprisonment, to

disclose evidence that §2515 bars’ in

unequivocal terms is both to thwart the

congressional objective of protecting

individual privacy by excluding such

evidence and to entangle the courts in

the illegal acts of Government agents."

(Emphasis Added) (pp. 47-51)

0199R

199!

RELIEF REQUESTED

WHEREFORE, Intervening Appellees move

that the Appellants' request for relief be

denied.

Respectfully submitted,

LAWRENCE J. STOCKLER 6& ASSOCIATES,

PeG.

— MP gt

= > , f

/ ; (Aw 2 nm » «l

BY (Ki i! y 4 L¢ NLL /? pa ‘ea 7 .

LAWRENCE J. STOCKLER (P 21042)

Attorneys for Intervening Appellees

15565 Northland Drive

Suite 500 Northland Towers East

Southfield, MI 48075

(313) 569-7700

Dated: November 7, 1988

2 2eASEeaegsgegegagii a

-la-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THE STATE OF MICHIGAN,

Plaintiff,

vs. Civ. No. 87-CV-70865-DT

EDWIN MEESE, ATTORNEY GENERAL

FOR THE UNITED STATES,

Defendant,

and

STEVE ASMAR and METRO INSTITUTIONAL

FOOD SERVICES, INC.,

Intervening Defendants.

AMENDED OPINION AND ORDER

This is an action for a declaratory judg-

ment. 28 U.S.C. § 2201; Fed. R. Civ. P.

57. Plaintiff, the State of Michigan, seeks a

declaration that Title III of the Omnibus Crime

Control Act and Safe Streets Act of 1968 ("the

0199B

te SE Prt a as tt a Oe

-2a-

Act"), 18 U.S.C. §§ 2510-2520,! violates the

'tThe case focuses on section 2515, which

provides in full:

Whenever any wire or oral communication

has been intercepted, no part of the

contents of such communication and no

evidence derived therefrom may _ be

received in evidence in any _ trial,

hearing, or other proceeding in or before

any court, grand jury .. . of the United

States, a State, or a political subdivision

thereof if the disclosure of _ that

information would be in violation of this

chapter.

Section 2511 provides in pertinent part:

(1) Except as otherwise _— specifically

provided in this chapter any person

who -

(a) willfully intercepts, endeavors to

intercept, or procures any other

person to intercept or endeavoer to

intercept, any wire or oral

communication;

* * *

to disclose, to any other person the

contents of any wire or_ oral

communication, Knowing or having

reason to know that the information

was obtained through the

interception of a wire or_ oral

communication in violation of this

subsection; or

(Footnote Continued)

0199B

Tenth Amendment of the United States Consti-

tution” as applied to the states. Section 2515

of Title 18 prohibits, inter alia, a state or

political subdivision from introducing as evi-

dence in any proceeding the contents, or

fruits thereof, of a communication intercepted

in violation of section 2511.

(Footnote Continued)

(d) willfully uses, or endeavors to

use, the contents of any wire or oral

communication, Knowing or having

reason to know that the information

was obtained through the

interception of a wire or_ oral

communication in violation of this

subsection;

shall be fined not more than $10,000 or

imprisoned not more than five years, or both.

Pub. L. 90-351, Title III, § 802, June 19,

1968, 82 Stat. 216. The Electronic

Communications Privacy Act of 1986, Pub. L.

99-508 (effective January 20, 1987),

comprehensively revised Title li] but

preserved section 2515 without amendment.

*uThe powers not delegated to the United

States by the Constitution, nor prohibited by

it to the States, are reserved to the States

respectively, or to the people."

0199B

-U3-

Plaintiff argues that the only conceivable

justification for the Act is the Commerce

Clause of the Constitution. Art. 1, § 8, cl.3.

Plaintiff recognizes that the United States

Supreme Court has affirmed the wide scope of

the Commerce Clause even as applied to the

states, but relies on language in Garcia v. San

Antonio Metropolitan Transit Authority, 469

U.S. 528 (1985), that can be construed as

having left open the possibility that the Tenth

Amendment might impose some "affirmative

limits . . . on federal action affecting the

States under the Commerce Clause." Id. at

556. Plaintiff contends that the Act exceeds

such affirmative limits.

The complaint mainly addresses legal

questions, not facts. Its statement of the

facts of the underlying "controversy" is limited

to the following:

Plaintiff is in receipt of a recording of

telephone conversations containing evi-

dence of public corruption. The record-

ing was delivered anonymously, and

recorded by a person or _ persons

0199B

-auaeg@GgaeweaegweweweeaHeteaeeH8 & & &

unknown. 18 USC 2511 and 2515 are pre-

venting investigation of these apparent

acts of public corruption.

The "recording" is an audio cassette tape

recording that has been the subject of consid-

erable dispute in civil matters on the Court's

docket. Jo-Dan, Ltd., Inc. v. Detroit Board

of Education, No. 86-CV-72565-DT; A & M

Corp. v. Landmark Shoppe, Loe No.

86-CV-72738-DT;: Asmar v. Detroit News, Inc.,

No. 86-CV-73390.

Plaintiff did not allege that a prosecution

is advancing in which a state prosecutor will

attempt to introduce as evidence the recording

or evidence peree therefore. The complaint

did allege that the United States Supreme

Court had previously declined to assert origi-

nal jurisdiction over the matter.°

3 plaintiff apparently sought to invoke the

Supreme Court's original, but not exclusive,

jurisdiction over controversies between the

United States and a State. See 28 U.S.C. §

(Footnote Continued)

0199B

-6a-

Concerned that the case was not "ripe"

for judicial consideration, the Court issued an

Order to Show Cause on March 13, 1987,

giving both parties an opportunity to comment

on whether a "case or controversy" exists, as

required by Art. III, § 2, cl. 1 of the Consti-

tution. The Order noted that plaintiff ap-

peared to be seeking "an advisory decree upon

a hypothetical state of facts." Ashwander v.

Tennessee Valley Authority, 297 U.S. 288,

325 (1936), cited in Advisory Committee Notes

to Rule 57, supra. The Order also noted that

a federal court will not declare on _ the

constitutionality of aspects of an investigation

(Footnote Continued)

1251(b)(2). The complaint states that the

Supreme Court declined leave to plaintiff to

file a bill of complaint in this matter and that

the Solicitor General opposed _ plaintiff's

application on the ground that the _ federal

district is a more appropriate original forum.

The Supreme Court's one sentence’ order

expressed no opinion as to the appropriate

forum in this matter. State of Michigan v.

Meese, 107 S.Ct. 1274 (1987).

0199B

-7a-

in progress. See Hastings v. Judicial

Conference of the United States, 779 F.2d

i en ee

1093, 1100-03 (D.C. Cir. 1985). Finally, the

Order stated that it does not appear that "all

parties having an interest [in the declaration

sought] or adversely affected [have been]

made parties or bef[en] cited." Advisory

Notes, supra.

Plaintiff's response to the Order to Show

Cause revealed that the Wayne County Citizens

Grand Jury issued subpoenas in ané inves-

tigation related to matters disclosed on the

tape recording of various telephone conver-

sations, including officials of the Detroit Board

of Education, intercepted in probable violation

of 18 U.S.C. § 2515. Following a motion in

Wayne County Circuit Court to quash the

subpoenas based on the Act, a Wayne County

circuit judge supervising the grand jury

quashed the subpoenas on June 18, 1986,

citing the Act as the basis for his decision.

Plaintiff filed the state court order quashing

0199B

the subpoenas and a transcript of the exten-

sive hearing on the motion. Plaintiff argued

that the state judge's action created a "case or

controversy" because it deprived the State of

the only means of investigating the matters

discussed in the conversations on the tape.

Defendant filed a response to the Order

to Show Cause on April 13, 1987. Defendant,

who is jcined in the case because he is

"charged with the responsibility of enforcing

the laws of the United states," agreed with

plaintiff that the matter is ripe for judicial

consideration. Defendant asserted that purely

legal questions are involved and unlikely to be

clarified by further factual development. See

Thomas v. Union Carbide Agricultural Produc-

tions Co., 473 U.S. 568, 581 (1985); Babbitt

“The Attorney Genera! is a proper party

to any action affecting the interests of the

United States. See 28 U.S.C. §§ 516, 517,

2403(a); see also Fed. R.Civ. P. 24(c).

01996

ac negewermteTtiegtF wees = w=

-99-

v. United Farm Workers National Union, 442

U.S. 289, 300-01 (1979).

For the reasons stated on the record of

the hearing on May 4, 1987, the Order to

Show Cause was dismissed by Order of May 5.

On May 22, the intervening defendants - one

of whom admits involvement in the intercepted

conversations - moved to intervene either as of

right, Fed. R. Civ. p. 24(a)(2), or by per-

mission, Fed. R. Civ. P. 24(b)(2). The

motion was granted on June.

Now before the Court are cross-motions

for summary judgment. Fed. R. Civ. P. 56.

There are no disputes over facts, as the case

presents a purely legal question. The parties

have ably briefed the issue, and the Court has

conducted its own analysis beyond the scope of

the briefs.

For the reasons that follow, defendant's

Motion is GRANTED and the case is DIS-

MISSED.

0199B

-10a-

This case clearly poses a question about

the limits of the principle of federalism and its

embodiment in the Bill of Rights, the Tenth

Amendment. Much has been said of late about

federalism and the role of the judiciary.

Compare, e.g., The Status of Federalism in

America (Reporting of the Working Group on

Federalism of the Domestic Policy Council,

Nov., 1986) (bemoaning the failure of the

Supreme Court to overrule more Congressional

statutes), and Van Alstyne, The Second Death

of Federalism, 83 Mich. L. Rev. 1709 (1985)

(criticizing Garcia, supra), with J. Choper,

Judicial Review and the National Political

Process: A Functional Reconsideration of the

Role of the Supreme Court (1980) (proposing

that the Supreme Court rule such federalism

issues to be nonjusticiable questions that must

be left to the political branches).

At least two state courts have noted that

section 2515 involves questions of federalism

01998

a nueegegrmigeeBvepevweeweg9r = = w=

-lla-

when applied to state court proceedings that

are traditionally of state concern. Compare In

re Marriace of Lopp, 378 N.E.2d 414, 421

(Ind. 1978) (refusing to apply section 2515

under circumstances of case), cert. denied,

439 U.S. 1116 (1979), with Halpin v. Superior

Court of San Bernardino County, 495 P.2d

1295, 1305 (Cal.) (rejecting Tenth Amendment

challenge to section 2515), cert. denied, 409

U.S. 982 (1972). One constitutional scholar has

noted that, in general, the "[e]xpansion of

federal criminal jurisdiction raises some of the

most sensitive problems of potential congres-

sional impingement upon the values of

federalism." G. Gunther, Constitutional Law

Cases and Materials 194 (9th ed. 1978).

However divergent may be the political,

academic, and state court views regarding

federalism, the Court is bound to look for

guidance in the decisions of the Supreme Court

of the United States. The issue is not decided

01996

od Ye

in a legal vacuum. The Supreme Court has

considered the scope of the Tenth Amendment,

even though its teachings on that subject may

be in a state of flux. Briefly, however, this

much can be said: there is not a single case

that can be considered “good law" that pur-

ports to overrule a federal statute on the

ground that it violates the Tenth Amendment.

In Usery v. National League of Cities,

326 U.S. 833 (1976), the Supreme Court

struck down a federal minimum wage statute

for state employees as violative of the Tenth

Amendment. After Usery, however, the

Supreme Court declined to invalidate a single

federal law applicable to the states on the

ground that it interferes with their autonomy

under the Tenth Amendment. Now, even

Usery is no longer the law. With the Supreme

Court's decision in Garcia, supra, which

overruled Usery, the Tenth Amendment has

become a dead letter in constitutional law.

-1l3a-

Subsequent to Garcia, it is not clear what

standard applies to issues like the one before

the Court. Garcia seems to have discarded

Usery's "balancing" test. See 469 U.S. at 564

n.7 (Powell, J., dissenting). But see id. at

579-80 (Rehnquist, J., dissenting) (disagree-

ing that Usery announced a "balancing" test).

However, Garcia fails to “identify or define

what affirmative limits the constitutional struc-

ture might impose on federal action affecting

the States under the Commerce Clause." Id.

at 556. Indeed, the State of Michigan admits

that "it is difficult to conceive a method of

analysis for the question here at issue." While

the State has attempted to fill this void with

some imaginative legal and political analysis, it

does not lead to the declaration it seeks.

Cc.

The Supreme Court is unlikely to accept

the State's argument here, since the Supreme

Court has applied the exclusionary rule - a

judicial supervisory rule not required by the

01996

-14a-

Constitution, see United States v. Leon, 468

U.S. 897, 905-06 (1984) - to the States, with

the same result as here of suppressing evi-

dence the State seeks to introduce in a prose-

cution. Under the exclusionary rule, states ar

bound to exclude evidence in some cases even

where governmental agents obtained the evi-

dence in subjective good faith (as, for exam-

ple, where an officer's seizure of the evidence

under a facially deficient warrant is not objec-

tively reasonable). Leon, 468 U. S. at

922-23. The Supreme Court has aiready noted

that, as the exclusionary rule was understood

at the time, section 2515 proscribes such

evidence not only to deter misconduct by

governmental agents but also to preserve the

integrity of court proceedings, i.e., "to

ensure that the courts do not become partners

to illegal conduct." Gelbard v. U.S., 408

U.S. 41, 49-51 & n.8 (1972) (quoting the

Congressional findings that precede Title Ill, §

801 (b), 82 Stat. 211). Thus, the State's

0199B

-15a-

argument here that its agents did nothing

reprehensible in obtaining the recording at

issue is not relevant.

Another persuasive example against the

State's position is the Supreme Court's re-

quirement that state courts exclude confessions

obtained in violation of the familiar Miranda

warning (or an adequate state equivalent).

Here, the Supreme Court has imposed on state

criminal proceedings a judicially-designed rule

of evidence not required by the Constitution.

See Michigan v. Tucker, 417 U.S. 433, 444

(1974). The result is to exclude in some cases

evidence voluntarily given and constitutionally

obtained. See Michigan v. Mosely, 423 U.S.

96, 100 (1975); Tucker, supra, 417 U.S. at

443,

By enacting section 2515, Congress

requires exclusion of illegally obtained elec-

tronic recordings, which is a form of obtaining

an incriminating statement without informed

consent or proper safeguards against intrusion

0199B

-1l6a-

of privacy. The State does not say why, if it

is legitimate for the Supreme Court to promote

the integrity of the courts through rules of

criminal procedure, Congress may not do the

same. In Olmstead v. United States, 277 U.S.

438 (1927), the Supreme Court endorsed the

power of Congress to make intercepted tele-

phone conversations inadmissible whereas the

courts might lack such power under the Fourth

Amendment (as understood at that time). Id.

at 465-66. Indeed, the legislative history of

section 2515 indicates that Congress largely

intended to reflect existing search and seizure

law. See S.Rep. No. 1097, 90th Cong. 2d

Sess. 66, 96, reprinted in 1968 U.S. Code

Cong. & Admin. News 2112, 2185.

The State concedes that Congress may

forbid private persons from intercepting con-

versations without authorization, but simply

argues that the State may subsequently use

evidence privately intercepted even if its own

agents could not have legally made the initial

0199B

SSE SSBB RSESB BCE REC ESE SS SS

-17a-

seizure. While the Supreme Court has accept-

ed this argument where Congress has not

spoken, see United States v. Jacobsen, 466

U.S. 109 (1984), the Supreme Court has

disallowed state use of such evidence where

Congress has spoken, as in section 605 of the

Communications Act of 1934, the predecessor of

section 2515. See Lee v. Florida, 392 U.S.

3789 (1968).> The State correctly points out

-that the Supreme Court in Lee did not address

the Tenth Amendment issue. Nonetheless, the

Supreme Court's subsequent pronouncements

on the Tenth Amendment and continued appli-

cation of the exclusionary rule to state courts

"The Court in Lee stated: "We conclude .

that nothing short of mandatory exclusion

of the illegal evidence will compe! respect for

the federal law 'in the only” effectively

available way - by removing the incentive to

disregard it.' Elkins v. United States, 364

Memaeee, ef Civeujs.” 392 U.S. at 386-87.

The Court of Appeals for the First Circuit

recently reached the same conclusion under the

current section 2515. United States v. Vest,

813 F.2d 477 (1st Cir. 1987).

01998

-18a-

suggest it would not overrule Lee or the

statutory basis for that decision.

In enacting section 2515, Congress noted,

"Only by striking at all aspects of the problem

can privacy be adequately protect." S. Rep.

No. 1097, supra, at 69 (quoted in Gelbard,

supra, 408 U.S. at 50), reprinted in 1968

U.S. Code Cong. & Admin. News 2156. In

making this statement, Congress indicated that

it considers judicial exclusion of improperly

obtained communications “necessary and prop-

er" to execute its other intentions in Title III.

See S. Rep. No. 1097, supra, at 96, reprinted

in 1968 U.S. Code Cong. & Admin. News 2185

(asserting power found at Art. 1, § 8, cl.

18). As noted above, these other intentions

include judicial integrity, which, as also noted

earlier, was dispositive in the Supreme Court's

decision in Lee to uphold the predecessor

statute to section 2515. In short, Congress

agrees with the Supreme Court that a bright-

line rule of exclusion is best suited to protect

0199B

-19a-

the federal the federal interests at stake.

Such bright-line rules are always best ad-

dressed in the political arena rather than in

the courts, since they evolve against the

background of law developed on an ad hoc

basis by the courts. See Professor Herbert

Wechs!er's seminal work on this subject, The

Political Safeguards of Federalism: The Role

of the States in the Composition and Selection

of the National Government, 54 Colum. L.

Reve. 543, 545 (1954).

Where, as here, the State concedes

Congress's power (absent consideration of the

Tenth Amendment) to enact such a law, the

Tenth Amendment does not impose an indepen-

dent limitation on Congress that permits a

court to reject Congress's view that a narrow

aspect of a_ statute is "necessary" to

-20a-

effectively implement its larger purposes. ° As

Sor fessor Van Alstyne has noted the

Supreme Court's general refusal to substitute

its view of what is "necessary" for that of

Congress when federalism concerns’ are

involved. "Usually, . . . even in close cases

when the federalism claims has failed (as most

often it has indeed failed), it has _ failed

because the Court has yielded to an assertion

of some overriding federal interest it deemed

adequate to rationalize the exceptional

intrusiveness of the challenged act." The

Second Death of Federalism, supra, 83 Mich.

L. Rev. at 1/22 & n.61. See Fry v. United

States, 421 U.S. 542, 548 (1975) (upholding

application of federal wage restraints as a

nationai emergency measure); Testa v. Katt,

330 U.S. 386 (1947) (upholding binding nature

of penal provisions of Emergency Price Control

Act on state courts under supremacy clause);

Case v. Bowles, 327 U.S. 92 (1946) (upholding

application of the Emergency Price Control Act

against Tenth Amendment challenge).

While not explicitly considering the Tenth

Amendment issue, the Courth as several times

struck state judicial procedural rules in order

to further a federal legislative goal or protect

a federal statutory right. See International

Lonashoreman's Ass'n, AFL-CIO v. Davis, 106

S.Ct. 1904 (1986) (striking state pleading rule

to protect preemption of National Labor

Relations Act); Dice v. Akron, Canton §&

Youngstown R.R., 342 U.S. 359° (17952)

(striking state procedural rule to protect right

of recovery under Federal Employes' Liability

Act); Brown v. Western Ry. of Alabama, 338

U.S. 294 (1949) (same); see also Chapman v.

(Footnote Continued)

0199B

BREERERREHRERBRHERRaR EF

-21a-

stated by Justice Story: "It is piain,

therefore, that it could not have been the

intention of the framers of this [Tenth]

amendment to give it effect, as an abridgement

of any of the powers granted under the

constitution, whether they are express or

implied, direct or incidental." 3 Commentaries

on the Constitution § 1901 (1833), in V The

Founders! Constitution, 406 (P. Kurland &€ R.

Lerner ed. 1987).

There is nothing peculiar about Con-

gress's intrusion under the Commerce Clause

into state criminal proceedings that compels a

different conclusion. Admittedly, there is

little discussion by the Founding Fathers of

the meaning of the Tenth Amendment as it

relates to criminal laws and their adminis-

tration. This is to be expected, since it was

(Footnote Continued)

California, 386 U.S. 18 (1967) (imposing

federal interpretation of "harmless error rule"

over that of state).

0199B

-22a-

presumed that all powers in such matters not

given to the United States would continue,

unenumerated, within the states as before.

However, there is a pertinent reference by

President James Monroe on this’ subject:

"[ T]he administration of justice, and the whoie

criminal code, except in cases of breaches of

the laws of the United States made under and

in conformity with the powers vested in Con-

gress .. . are regulated by State laws." The

Founders' Constitution, supra, at 405., re-

printing in part Views of the President of the

United States on the Subject of Internal Im-

provements (May 4, 1822) (emphasis added).

This statement evidences that one of the few

Founding Fathers’ who may have said anything

While some may disagree with’ the

characterization of Monroe as a "Founding

Father," he participated substantially in the

formation of the Republic, including the

debates about the principle of federalism, and

was familiar with the thinking of the greater

(Footnote Continued)

0199B

-23a-

on the subject did not consider the Tenth

Amendment to establish any special limitation

on Congress simply because it may choose to

exercise its vested power in the _ criminal

arena.

Currently, constitutional doctrine regard-

ing the Tenth Amendment has reverted to its

pre-Usery state, to wit, the Tenth Amendment

is no more than a truism; it tautologically

states that powers not given to the federal

government are reserved to the states. The

Court recognizes the avowed intent of Chief

Justice Rehnquist in his Garcia dissent to

resurrect Usery. 469 U.S. at 580. Perhaps a

majority of the Supreme Court will do so as its

(Footnote Continued)

men who overshadowed him during that era.

Monroe studied law under Thomas Jefferson

beginning in 1780. From 1783 to 1786 he

served in the Congress under the Articles of

Confederation. He was chosen a member of

the Virginia House of Delegates in 1787 and, in

1788, a member of the state convention at

which Virginia ratified the new federal

Constitution.

0199B

-24a-

composition changes and shifts in its politics

and philosophy of constitutional adjudication.

As noted by Professor Herbert Wechsler,

"Federalism would have few adherents were it

not, like other elements of government, a

means and not an end." The Political Safe-

guards of Federalism, supra, at 552. A

return to Usery would likely be considered to

"politicize" the Constitution, which the defen-

dant has cautioned against elsewhere. ° The

BSee Remarks of the Attorney General at

the American Studies Center Bicentennial

Program in Washington, D.C. (June 12, 1987).

The printed version of the Attorney General's

address states at 2: "Too often the

Constitution has been, in a word, politicized.

The modern-day politicization of our supreme

law has been encouraged primarily by political

and judicial liberals . . ." Commentators have

noted, however, that Usery was a conservative

politcal doctrine. A leading treatise on

constitutional law describes the rise of Usery

as follows: "There is little or no explanation

for the shift in the Court's position regarding

the judicially enforceable nature of the tenth

amendment other than the political background

and philosophy of the newly appointed

justices. The decisions of the 1970's,

(Footnote Continued)

0199B

-25a-

long-standing view, however, has been that

the Tenth Amendment will not support political

goals:

The attempts, then, which have been

made from time to time, to force upon this

language [the Tenth Amendment] an

abridging, or restrictive influence, are

utterly unfounded in any just rules of

interpreting the words, or the sense of

the instrument. Stripped of the inge-

nious disguises, in which they are

clothed, they are neither more nor less,

than attempts to foist into the test the

word "“expressly;" to qualify, what is

general, and obscure, what is clear, and

defined. They make the sense of the

passage bend to the wishes and preju-

dices of the interpreter; and employ

criticism to support a theory, and not to

guide it. . . . [Constitutions] are not to

(Footnote Continued)

attacking the established principle of judicial

deference to congressional decisions regarding

federalism issues were joined only’ by

Republican justices. Those justices were

Blackmun, Powell, Rehnquist, Stewart (who

was replaced by the even more states’ rights

oriented Justice O'Connor) and Chief Justice

Burger." J. Nowak, R. Rotunda & J. Young,

Constitutional Law 162 n.33 (ed ed. 1986).

Ultimately, the doctrinal "glue" holding

together the Usery approach proved so weak

that it could not hold even a majority of a

conservative Court, as reflected in the change

of mind by Justice Blackmun, who concurred

in Usery but wrote the opinion of the Court in

Garcia only nine years later.

01998

be frittered away to please the dema-

gogues of the day. They are not to be

violated to gratify the ambition of pclitical

leaders.

Story, Commentaries, supra, §1901

’

Founders' Constitution, supra, at 407.

tip

Even if the Garcia dictum on which the

State relies makes the Tenth Amendment fertile

soil for planting the seeds of a states' rights

movement, it would ill behoove a federal dis-

trict judge to say so by declaring unconstitu-

tional an act of Congress in so important an

area as here. Much has been said of late

regarding the evils of activist judges who

strain to overrule legislation enacted by the

elected representatives of the people. If those

elected to serve in Washington should desire to

constrain the actions of their governments

back home, far be it from this Court to tell

them that they cannot do so. See Garcia, 469

U.S. at 556. see generally The _ Political

Safeguards of Federalism, supra.

01996

-B8SSSe ee eecesLtes & |:

if the Constitution forbids the Act, it is

for someone e!se to say.

SO ORDERED.

AVERN COHN

United States District Judges

Dated: August 10, 1987

Detroit, Michigan

01996

PSOE BERR KER KREBS

APPENDIX B

Lee ee oe oe ee ee ee ee ee ee Oe ee Ue

NOT FOR PUBLICATION

No. 87-1719

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THE STATE OF MICHIGAN,

Plaintiff-Appellant,

Vv.

EDWIN MEESE, Attorney General for

the United States,

Defendant-Appellee,

and

STEVE ASMAR & METRO INSTITUTIONAL

FOOD SERVICES, INC.,

Intervening

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DIS-

TRICT OF MICHIGAN

BEFORE: JONES and RYAN, Circuit Jucges;

and GIBSON, District Judge.

The Honorable Benjamin F. Gibson,

United States District Judge for the Western

District of Michigan, sitting by designation.

01998

«3h

PER CURIAM. The State of Michigan,

brought this declaratory judgment action

asking the district court to find that 18

U.S.C. § 2515, which excludes from evidence

in all state criminal and civil trial, conver-

sations which were recorded in violation of the

federal wiretapping statutes, is beyond the

scope of Congress' Commerce Clause power and

therefore violative of the tenth amendment.

The district court dismissed plaintiff's action.

Ve affirm.

A Wayne County, Michigan grand jury

issued subpoenas based on privately tape

recorded@ telephone conversations anonymously

given to state prosecutors. A Michigan state

court quashed the subpoenas, holding that the

evidence was obtained in violation of Title 111

of the Omnibus Crime Control Act and Safe

Streets Act of 1968, 18 U.S.C. § 2515. The

state court's action ended the grand jury

investigation.

-3b-

On March 10, 1987, the State of Michigan

filed suit in federal district court against the

Attorney General of the United States, seeking

a declaratory judgment that 18 U.S.C. § 2515

was violative of the tenth amendment. Section

2515 states:

Whenever any wire or oral communication

has been intercepted, no part of the

contents of such communication and no

evidence derived therefrom may be re-

ceived in evidence in any trial, hearing,

or other proceeding in or before any

court, grand jury, department, officer,

agency, requlatory body, legislative

committee, or other authority of the

. United States, a State, or a_ political

subdivision thereof if the disclosure of

that information would be in violation of

this chapter.

18 0.3.0. § 2515.

The State of Michigan argued that § 2515

required the suppression of evidence where

the state was not a party because of § 2511

which states in pertinent part:

(1) Except as otherwise = specifically

provided in this chapter any person

who--

(a) intentionally intercepts, endeav-

ors to intercept, or procures any

01998

-Ub-

other person to intercept or endeav-

or to intercept, any wire, oral, or

electronic communication;

(b) intentionally uses, endeavors to

use, Or procures any other person

to use or endeavor to use any

electronic, mechanical, or other

device to intercept any oral commu-

nication when--

(i) such device is affixed

to, or otherwise transmits

a signal through, a wire,

cable, or other like con-

nection used in wire

communication; or

deavors to disclose, to any other

person the contents of any wire,

oral, or _ electronic communication,

knowing or having reason to know

that the information was obtained

through the interception of a wire,

oral, or electronic communication in

violation of this subsection; or

(d) intentionally uses, or endeavors

to use, the contents of any wire,

oral, or electronic communication,

knowing or having reason to know

that the information was _ obtained

through the interception of a wire,

oral, or electronic communication in

violation of this subsection;

shall be punished as provided in sub-

section (4) or shall be subject to suit as

provided in subsection (5).

@BSBRE KR BRR KEK EB 4B GS

-5b-

1s Vea. «6§ 25H. Plaintiff argued that

requiring suppression of the evidence was

beyond the Congress' Commerce Clause power,

under which the Crime Control Act was

passed.

The district court issued a shew cause

order as to ripeness. The parties agreed

there was a case or controversy within article

111 of the Constitution. Thereafter, on

cross-motions for summary judgment, the

district court found that the exclusionary rule

found in 18 U.S.C. § 2515 was constitutional

as an exercise of Congress' Commerce Clause

power.

Although both parties agreed below that

this case was ripe for adjudication, the United

States Attorney General now argues that there

is no "case or controversy" pursuant to article

111 of the Constitution and, therefore, this

court lacks subject matter jurisdiction. The

judicial power of the federal government is

limited to that provided for by article 111.

0199B

-6bD-

Article 111 of the Constitution limits the

"judicial power" of the United States to

the resolution of "cases" and "contro-

versies." The constitutional power of

federal courts cannot be defined, and

indeed has no substance, without refer-

ence to the necessity "to adjudge the

legal rights of litigants in actual contro-

versies." Liverpool S. S. Co. v. Commis-

sioners of Emigration, 113 U.S. 33, 39

(1885). Tne requirements of Art 111 are

not satisfied merely because a _ party

requests a court of the United States to

declare its legal rights, and has couched

that request for forms of relief historical-

ly associated with courts of law in terms

that have a familiar ring to those trained

in the legal process. The judicial power

of the United States defined by Art III is

not an unconditioned authority to deter-

mine the constitutionality of legislative or

executive acts. The power to declare the

rights of individuals and to measure the

authority of governments, this Court said

90 years ago, "is legitimate only in the

last resort, and as a necessity in the

determination of real, earnest and vital

controversy." Chicago §& Grand Trunk

R. Co. v. Wellman, 143 U.S. 339, 345

(1892).

Valley Forge Christian College v. Americans

United for Separation of Church and State 454

U.S. 464, 471 (1982). If there is no case or

controversy, this court lacks subject matter

jurisdiction to hear this appeal even though

the parties agreed below that the _ case

0199B

-7b-

was right for adjudication; agreement of the

parties cannot establish subject matter

jurisdiction. In re Rini, 782 F.2d 603, 609 .10

(6th Cir. 1986).

The Supreme Court, discussing the limits

of article Ill power, has stated:

[A]t an irreducible minimum, Art 111

requires the party who invokes’ the

court's authority to "show that he per-

sonally has suffered some actual or

threatened injury as ae result of the

putatively illegal conduct of the defen-

dant," Gladstone Realtors v. Village of

Bellwood, 441 U.S. 91, 99 (1979), and

that the injury "fairly can be traced to

the challenged action" and "is likely to be

redressed by a favorable decision," Simon

v. Eastern Kentucky Welfare Rights Org.,

426 U.S. 26, 38, 41 (1976).

Valley Forge Christian College, 454 U.S. at

472. Thus, the plaintiff, in the instant case,

must show that (1) it has suffered actual or

threatened injury, which it clearly has through

the quashing of the subpoenas, and (2) the

injury was the result of an act of the defen-

dant. "The court may not act to redress

injury ‘that results from the independent

action of some third party not before the

0199B

-Bb-

court.'" Toth v. United Auto. Aero. § Aar.

—

Implement Workers, 743 F.2d 398, 404 (6th

Cir. 1984) (quoting Simon v. Eastern Kentucky

Nelfare Rights Organization, 426 U.S. 26, 42

(1976)). It is the second element which the

plaintiff fails to satisfy.

Plaintiff's injury did not result from any

action taken by the defendant, the Attorney

General of the United States. Rather, it was

the state trial court judge who quashed th

subpoenas and enforced the federal statute, 18

U.S.C. § 2515. The Attorney General has not

threatened plaintif with any penalty for

attempting to use the taped conversations

which are the _ subject of this_ litigation.

Plaintiff's remedy is to appeal the state court's

decision through the state court system.

Because defendant herein has not caused

the injury suffered by the plaintiff, this court

is without subject matter jurisdiction to hear

this appeal. Although the district court

dismissed the instant action on the merits, this

01996

-Sb-

court may affirm the district court for reasons

other than those stated by the lower court.

Russ' Kwik Car Wash v. Marathon Petroleum

Co., 772 F.2d 214, 216 (6th Cir. 1985).

’

For the reasons stated above the decision

ISSUED AS MANDATE July 28, 1988

COSTS: NONE

01996

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.