Reply Brief — United States Catholic Conference v. Abortion Rights Mobilization, Inc.

SUPTEMS Wout, Viws

EILED

No. 87-416 ! OCT 30 KET

F. SPANIOL, JR,

pr. ones

IN THE CLER

Siyirenw Court of the United States

OCTOBER TERM, 1Sa/

UNITED STATES CATHOLIC CONFERENCE

and

NATIONAL CONFERENCE OF CATHOLIC BISHOPS,

Petitioners,

Vv.

ABORTION RIGHTS MOBILIZATION, INC.. ef «/..

Responde nts.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITIONERS’ REPLY BRIEF

EDWARD BENNETT WILLIAMS

CHARLES H. WILSON *

RICHARD S. HOFFMAN

KEVIN J. HASSON

839 Seventeenth Street, N.W.

Washington, D.C. 20006

(202) 331-5000

MARK E. CHOPKO

General Counsel

PHILLIP H. HARRIS

Solicitor

UNITED STATES CATHOLIC

CONFERENCE

Of Counsel: 1312 Mass. Ave., N.W.

WILLIAMS & CONNOLLY Washington, D.C. 20005

&39 Seventeenth Street, NW. (202) 659-6690

Washington, D.C. 20006 Counsel for Petitioners

(202) 331-5000

* Counsel of Record

SE Sa ESAS IE ISS NTIS USENECD

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF AUTHORITIES

Allen v. Wright, 468 U.S. 737 (1984) -----------

Bender Vv. Williamsport Area School District, 106

RN a re

Blair v. United States, 250 U.S. 273 (1919) —_----

DiGirlomo v. United States, 520 F.2d 372 (8th

Cir.), cert. denied, 423 U.S. 1033 (1975) .------

In re Perlin, 589 F.2d 260 (7th Cir. 1978) ~------

In re Sealed Case, 827 F.2d 776 (D.C. Cir. 1987) ~~

In re Sequoia Auto Brokers, Ltd., 827 F.2d 1281

EE SR

In re Subpoena of Persico, 522 F.2d 41 (2d Cir.

Se sccneanecan Rh ES

United States v. Morton Salt Co., 338 U.S. 632

eps St eT aR A

United States v. Ryan, 402 U.S. 530 (1971) —--_--

United States vy. United Mine Workers, 330 U.S.

258 (1947)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-416

UNITED STATES CATHOLIC CONFERENCE

and

NATIONAL CONFERENCE OF CATHOLIC BISHOPS,

7 Petitioners,

ABORTION RIGHTS MOBILIZATION, INC., ef a/.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of appeals

for the Second circuit

PETITIONERS’ REPLY BRIEF

The main thrust of the Respondents’ Brief in Opposi-

tion is that the Petition for a Writ of Certiorari should

be denied because it seeks to create a broad exception to

the general rule against interlocutory appeals. That ar-

gument reflects a total misconception of the issue in this

case. This case does not involve an interlocutory order,

and the issue has nothing to do with interlocutory ap-

peals. The order under review is a final judgment of

civil contempt, which was immediately appealable under

well-established principles of appellate jurisdiction. See

United States v. Ryan, 402 U.S. 530 (1971).

2

The issue in this case is not one of appellate jurisdic-

tion. It is rather one of the district court’s power under

Article III of the Constitution—its power to adjudicate

a challenge by private parties to the tax exempt status

of the Catholic Church, its power to subpoena Church

documents at the request of those parties, and its power

to enforce such a subpoena through civil contempt.

1. Petitioners, the United States Catholic Conference

and National Conference of Catholic Bishops (“USCC/

NCCB”), have invoked the principle that a judicial sub-

poena may be issued, and civil contempt ordered, only to

further the resolution of a case or controversy over which

the court has power under Article III of the Constitution.

It is true that in resisting the subpoenas and contempt

motion on this ground, USCC NCCB presented the same

Article III standing argument that the federal defendants

had asserted in arguing that the case should be dismissed.

But that fact does not render the order of contempt “‘in-

terlocutory.” A civil contempt order is final, and it may

be attacked on appeal on the same grounds upon which

it may be resisted in the district court—including the

ground that the district court lacked Article III] power

to act.

2. Respondents assert that the Article III standing

issue “is addressed solely to [the court’s underlying] sub-

ject matter jurisdiction” and “has nothing whatever to

do with the contempt order.” Brief in Opposition

(“Opp.”) 32. That assertion simply ignores the central

question posed by this petition: whether the limitations

imposed by Article III apply to a court’s power to issue

subpoenas and enforce them through civil contempt.

Article II] standing, it bears emphasis, is not merely

a facet of “subject matter jurisdiction,” but a “require-

ment ... derived directly from the Constitution.” Allen

Vv. Wright, 468 U.S. 737, 751 (1984). It thus marks the

3

outer boundary of a federal court’s power. In United

States v. Morton Salt Co., 338 U.S. 632, 641-42 (1950),

this Court stated unequivocally that the judicial power to

issue and enforce subpoenas is dependent upon the ex-

istence of an Article II] case or controversy. And in

United States v. United Mine Workers, 330 U.S. 258

(1947), the Court stated that a civil contempt order can-

not be sustained if the issuing court was without subject

matter jurisdiction. It is the inconsistency between those

pronouncements by this Court and the decision below

that makes this case one of exceptional importance. Yet

the respondents make no attempt to reconcile their posi-

tion with Morton Sali and United Mine Workers. They

note simply that those cases do not authorize interlocu-

tory appeals, Opp. 28—a point which, although accurate,

is irrelevant.

3. Respondents apparently take the position that al-

though Article III power is necessary to decide a case,

it is not necessary to preside over a case in its discovery

stage, to issue subpoenas, or to impose penalties of civil

contempt for noncompliance. There is nothing to support

that position. Article III] extends the “judicial Power”

to eases and controversies, and the “judicial Power” in-

cludes not only the power to decide a case on the merits,

but also the power to subpoena witnesses and hold them

in contempt. There is simply no basis for removing the

subpoena power and contempt power from the strictures

of Article III. There are, in fact, compelling reasons to

insist that the burdens of discovery and contempt not be

imposed if the Constitution deprives the court of power

to resolve the underlying dispute. The burdens and costs

of discovery are often more significant from a practical

standpoint than the actual outcome of a case. And in

some cases—perhaps this is one—the desire to pursue

discovery may be the principal reason for bringing a

lawsuit in the first place. The burdens of contempt, as

the $100,000 daily fine in this case illustrates, can be

d

even greater. The sensible and just rule—and the rule

suggested by Morton Salt—is that a court without Article

III power to decide a matter is also without power to

issue and enforce subpoenas that can only be justified by

the need to prepare the matter for decision.

4, Like the panel majority, the respondents rely upon

Blair v. United States, 250 U.S. 273 (1919). But Blair

simply held that a grand jury witness may not challenge

a subpoena on the ground that a statute that may have

been violated was unconstitutional. In the 68 years since

Blair was decided, it has never been cited for the proposi-

tion that a witness subpoenaed in a civil case is precluded

from challenging the Article III power of the court to act.

And, indeed, the rationale of B’air is wholly inapplicable

to a case like this one.

First, as noted in the Petition, at 17, and the dissent

below, A. 34a-36a, the judicial power, unlike the power

of a grand jury, is limited by Article III. Second, judi-

cial proceedings are conducted in an entirely different

fashion. As the Court explained in Blair, “examination

of witnesses by a grand jury need not be preceded by a

formal charge.” 250 U.S. at 282. The “question whether

the facts show a case within [the grand jury’s] jurisdic-

tion” and, if so, the “precise nature of the offense .. .

normally are developed at the conclusion of the grand

jury’s labors, not at the beginning.” Jd. at 282-83 (cita-

tion omitted). It is premature and speculative for a wit-

ness to anticipate these matters by raising a constitu-

tional challenge to a statute that may or may not be

invoked by the grand jury.

In contrast to a grand jury proceeding, a civil case is

initiated by a formal complaint. The precise nature of

the claim is stated at the beginning of the case, not at

its conclusion. And in the ordinary case, it can be deter-

mined at the outset “whether the facts show a case

within [the court’s] jurisdiction.” Jd. at 283. Of course,

5

if the court’s jurisdiction cannot be determined at the

outset, the court has power to order discovery to deter-

mine its jurisdiction. See Petition at 1t. But when, as

in this case, it can be determined at the outset whether

the court has Article III power, there is nothing in Blair

that bars the witness from raising the issue, or that

disables the court from deciding it.

A recent decision of the United States Court of Ap-

peals for the District of Columbia Circuit underscores

the limited scope of Blair, even in the grand jury con-

text. Zn re Sealed Case, 827 F.2d 776 (D.C. Cir. 1987)

(per curiam). Distinguishing the “speculati[ve]” chal-

lenge asserted in Blair, the court held that a grand jury

witness can defend against a grand jury subpoena and

subsequent contempt charge by challenging the authority

of the prosecutor to act. /d. at 779. Citing United States

v. Ryan, 402 U.S. at 532, the court held that a witness

has “just cause” to resist a subpoena as “unduly burden-

some or otherwise unlawful” if its issuance was without

lawful authority. 827 F.2d at 778. As the court noted,

other courts have consistently permitted grand jury wit-

nesses to resist subpoenas, and defend against contempt

charges, by “mounting [a] challenge to the authority under

which the subpoenas issued.” Jd. See, e.g., In re Perlin,

589 F.2d 260 (7th Cir. 1978); In re Subpoena of Persico,

522 F.2d 41 (2d Cir. 1975); DiGirlomo v. United States,

520 F.2d 372 (8th Cir.), cert. denied, 423 U.S. 1033

(1975). To the extent the panel majority in this case

held that a subpoenaed party may not challenge the

power of the issuing authority to act, that decision con-

flicts with Jn re Sealed Case and the other decisions upon

which it relied.

The reliance of the panel majority and the respondents

upon Blair in this case is, petitioners -contend, entirely

misplaced. If there is uncertainty about Blair’s meaning,

however, then that in itself is an important reason for

this Court to grant the petition. This Court has never

6

addressed the possible applicability of Blair to a judicial

subpoena issued under the authority of Article III. At

the very least, the extension of Blair to such a case is in

tension with this Court’s subsequent pronouncements in

United Mine Workers and Morton Salt Co., and is de-

serving of the Court’s attention.

5. Respondents warn of “devastating consequences on

the ability of the district courts . . . to manage the flow

of litigation,” if witnesses can challenge the power of

the court to issue subpoenas. Opp. 32. Intolerable delays

will result, they argue, and witnesses will necessarily be

free to “assert[] any other defect that would warrant dis-

missal of the underlying action.” Opp. 34-35 n.20. Nei-

ther argument has merit. This Court has already held

in Ryan that when a witness is found in contempt for

failing to comply with a subpoena, his interest is suffi-

cient to permit an appeal of the contempt order notwith-

standing its effect on the underlying litigation.' And

allowing the petitioners’ challenge would not open the

floodgates to subpoena contests based upon the merits of

the underlying action. The petitioners do not now challenge

the merits of the complaint; they challenge the court’s

constitutional power to consider it. The courts always

have an obligation to consider their power to act, see,

e.g., Bender Vv. Williamsport Area School District, 106

S.Ct. 1326, 1331, 13834 (1986), and reaffirming that ob-

ligation at the subpoena and contempt stages poses no

threat whatsoever to the orderly administration of jus-

tice. Cf. In re Sequoia Auto Brokers, Ltd., 827 F.2d 1281

1 Respondents necessarily concede that witnesses may appea! con-

tempt citations based on a number of evidentiary privileges, the

burdensomeness or overbreadth of a discovery request, or the

harassing nature of the request. These issues may be far more time

consuming and difficult to address than attacks on the court’s power

to issue and enforce process, because they are fact-specific as to

each witness. Yet there is no suggestion that after Ryan federal

courts have been unable to cope with the effect of contempt appeals

on underlying litigation.

7

(9th Cir. 1987) (vacating contempt citation on the

ground that bankruptcy court lacked jurisdiction to order

civil contempt).

6. Respondents’ arguments on the “merits” of the

Article III standing issue merely highlight the importance

of that issue. If respondents are permitted to maintain

this suit, it would be the first case ever te grant stand-

ing to a plaintiff challenging the tax status of a third

party. The decision would undermine this Court’s deci-

sion in Allen v. Wright, 468 U.S. 737 (1984), and re-

open the courthouse door to suits that “are rarely if ever

appropriate for federal-court adjudication.” /d. at 760.

Religious organizations like the petitioners would find

themselves subject to intrusive examination by their de-

tractors. And the courts would find themselves in the

business of second-guessing the IRS’s judgments regard-

ing what alleged violations of the Code to investigate

and how to enforce the myriad restrictions imposed on

exempt organizations. The question whether the respond-

ents, whose tax status is not at issue, have the right

to insist on such a judicial undertaking is worthy of this

Court’s attention.

7. The petitioners and the respondents appear to agree

on one point—that the issues in this case are of funda-

mental importance. The reason is not, as the respondents

contend, that the USCC’NCCB position would create a

broad exception to the general rule against interlocutory

appeals. It is rather that the position of the respondent

and the court of appeals majority would create a broad

exception to a more basic rule of federal Constitutional

law—that the judicial power extends only to the resolu-

tion of cases and contrcversies.

BEST AVAILABLE COPY

8

ies i

CONCLUSION

For these reasons and the reasons stated in the Peti-

tion, the Petition for Writ of Certiorari should be

granted.

Of Counsel:

WILLIAMS & CONNOLLY

839 Seventeenth Street, N.W.

Washington, D.C. 20006

(202) 331-5000

* Counsel of Record

Respectfully submitted,

EDWARD BENNETT WILLIAMS

CHARLES H. WILSON *

RICHARD S. HOFFMAN

KEVIN J. HASSON

839 Seventeenth Street, N.W.

Washington, D.C. 20006

(202) 331-5000

MARK E. CHOPKO

General Counsel

PHILLIP H. HARRIS

Solicitor

UNITED STATES CATHOLIC

CONFERENCE

1212 Mass. Ave., N.W.

Washington, D.C. 20005

(202) 659-6690

Counsel for Petitioners