Petition for Writ of Certiorari — Sheppard v. Beerman

upreme Ceurt, U.S.

\ FILED

~ 021798. Nn 9 2003

No.

IN THE

Supreme Court of the United States

BRIAN SHEPPARD,

Petitioner,

Vv.

LEON BEERMAN, ;

as an individual and in his official capacity as Justice of the

Supreme Court of the State of New York,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

BRIAN SHEPPARD

Counsel of Record

for Petitioner

516 N. 9th Street

Second Floor

New Hyde Park, NY 11040

(516) 358-7599

QUESTIONS PRESENTED

1. Whether a federal court properly may dismiss a law

clerk's complaint alleging that the judge for whom the clerk

worked violated the Fourth Amendment in searching the

clerk's office and seizing and searching the clerk's belongings

therein to find and confiscate the clerk's personal notes about

the judge's official misconduct, by holding that (a) law clerks

as a class have no legitimate expectation of privacy against

searches of their offices, desks, and filing cabinets, and (b)

the seizure and search of a public employee's belongings is

permissible if the public employer asserts that the seizure

and search were effected to locate documents belonging to

the employer.

2. Whether a public employer, consistent with the First

Amendment, may discharge an employee in retaliation for

the employee's private objections to the employer about the

employer's serious and ongoing official misconduct by

simply (a) having the employee confirm prior to the dis-

charge that the employee would make the misconduct public

if discharged or (b) denying the misconduct after the dis-

charge and citing the confidential nature of the employee's

position.

3. Whether a person is seized within the meaning of the

Fourth Amendment when government officers force the

person to accompany them out of a building.

4. Whether the First Amendment prohibits court officials

from ejecting a person from a courthouse, and barring that

person's reentry, in the absence of any legitimate govern-

mental interest.

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....----++ssseercrreere® i

TABLE OF AUTHORITIES ...-.--s-sseercrescere’ iv

OPINIONS BELOW 2... cece bw errras sees eases? 1

JURISDICTION oo... ;ececereereneeseneee ences 1

CONSTITUTIONAL PROVISIONS INVOLVED ....-- i

STATEMENT OF THE CASE....--- +s ssrcrrctrnt? 1

I. The 1991 Complaint ......---sssererr rece 1

IL The 1993 Dismissal and Sheppard! ...-------> 4

Ill. The 1995 Dismissal and Sheppard Il.....-----> 5

IV. The 2002 Grant of Summary Judgment

and Sheppard HIT ......+seeesrerrerseceees 6

REASONS FOR GRANTING THE WRIT ...--------: be

I. THE SECOND CIRCUIT'S DECISIONS

BELOW SERIOUSLY CONFLICT WITH

CASES FROM THIS COURT AND

OTHER CIRCUITS, AND CONSTITUTE |

HIGHLY UNDESIRABLE PUBLIC POLICY. ...---- 9

A. Office and Property Searches

ark Semmes www ec ce ee ee eee ere ee ee? 9

1. Searches of Offices, Desks,

and Filing Cabinets .....---+s+seerrrte 9

2. Seizures and Searches of

Personal Property ...----sssrsrrrret 12

3. The Advent of Office Computers .....--- 15

B. Forcible Movements of Persons ...-.---+-+-: 16

C. Exclusion of Citizens from Courthouses ..... 18

D. Discharge in Violation of Free Speech ....-- 19

ili

1. Motivation of Employer in

Prima Facie Case ...... 0. eee c eee 19

a. Illegal Motivations ........---+.++:: 19

b. Confirming Willingness to Go Public .. 20

2. The Balancing Defense ........------- 21

a. Private, Truthful Speech About

Employer's Misconduct ........-.--. 22

b. Confidential Nature of Relationship ... 23

c. Irrelevance of the Expletive.......... 25

Il. MANY ADDITIONAL CONSIDERATIONS

COALESCE TO MAKE THE GRANT OF

CERTIORARI CRITICALLY IMPORTANT ..... 26

A. _ This Is Most Likely the Court's

Only Chance to Address The

Issues Concerning the First and

Fourth Amendment Rights of Law Clerks ... 26

B. No One Else Will Deal With Clandestine,

Improper Attempts by Judges and

Prosecutors to Obtain Convictions ......... 26

C. There Is No Reason to Believe These

Problems Are Limited to New York ........ 27

D. Denial of Certiorari Will

Proliferate Misconduct .........-eeeeeeee8 28

E. The Misconduct at Issue Does Not

Harm Only Guilty Criminal Defendants .... 29

ee yw dkanee ede 30

iv

TABLE OF AUTHORITIES

Cases: Page(s)

Andresen v. Maryland, 427 U.S. 463 (1976) ......... 13

Arizona v. Hicks, 480 U.S. 321 (1987) ............. 13

Barker v. Del City, 215 F.3d 1134

(RT I hk hoe cea e cee k eeed iene 24

Board of County Commissioners v. Umbehr,

ek Sn rn en ie ee 20, 24

Bonds v. Milwaukee County, 207 F.3d 969

Pe a UE 5 645 dice Wenge es cause Gas chon 24

Brady v. Fort Bend County, 145 F.3d 691

SO BOO 6 id ewannbuveN ide cee cneec cl. : 24

Brecht v. Abrahamson, 507 US. 619 (1993) ......... 30

Brown v. Glines, 444 U.S. 348 (1980) .............. 11

California v. Hodari D., 499 US. 621 (1991) ......... 17

Connick v. Myers, 461 U.S. 138 (1983) ........ 20, 22, 25

Cuilifte v. Cochran, 117 F.3d 1353

fe EEE CT ee OT eee ates 24

Dunaway v. New York, 442 U.S. 200 (1979) ......... 17

Fazio v. City and County of San Francisco,

125 F.5d 1528 (tH Cir. 1997) 2... ccc eee cc cence 24

Fisher v. United States, 425 U.S. 391 (1976) ....... cee

Vv

Florida v. Bostwick, 501 U.S. 429 (1991) .........-5. a i

Flynn v. City of Boston, 140 F.3d 42

(Ist Cir. 1998) 2... cece cece cere rere rece cenaes 24

Forrester v. White, 484 U.S. 219 (1988) .......... 11, 26

Forrester v. White, 792 F.2d 647 (7th Cir.)

(Posner, J., dissenting),

rev'd, 484 US. 219 (1988) ......--- ee eee eee ee eeee 26

Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ...... 22

Givhan v. Western Line Consolidated

School District, 439 U.S. 410 (1979) ......... ee eee 21

Globe Newspaper Co. v. Superior Court,

457 US. FOG CGE) neice te cet ecenivesece’s 18

Hall v. Ford, 856 F.2d 255 (D.C. Cir. 1988) .......... 24

Horton v. Taylor, 767 F.2d 471 (8th Cir. 1985) ....... 24

Jones by Jones v. Webb, 45 F.3d 178

Ge 2) ee eee eee 17

Landmark Communications, Inc. v. Virginia,

435 US. $29 (1978) nn wee cece es ccvccsssesess 22

Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001) ..... 16

Liteky v. United States, 510 U.S. 540 (1994) .......-. 30

Mapp v. Ohio, 367 U.S. 643 (1961) ....-.---++-4-. 28-29

Marohnic v. Walker, 800 F.2d 613 :

(6th Cir. 1986) (per curiam) ........-- eee ee eee 22

vi

Marshall v. Porter County Plan Commission,

Te TO Smee (FO: BOUND ks bcd decane beaescaeeees 22

McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997) ....... 23

McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998) ..... 22, 24

Michigan v. Chesternut, 486 U.S. 567 (1988) ........ 17

Morgan v. Woessner, 997 F.2d 1244

(FER AO: TOWN o's 6 vas cba eno ee ee 18

Mt. Healthy City School District

Board of Education v. Doyle, 429 U.S. 274 (1977)... 21, 25

Muick v. Glena re Elecs., 280 F. od 741

(7th Ce, SUD : sain eee ee eee 15

New Jersey v. T.L.O, 469 U.S. 325 (1985) ........... 13

O'Connor v. Ortega, 480 U.S. 709 (1987) .......... 9-15

O'Connor v. Steeves, 994 F.2d 905

(tet Ce. FOR). . ss ae aie ee eee 22

O'Hare Truck Service, Inc. v. City of Northlake,

Jae WER FES CO 4s 406 23

Olmstead v. United States, 277 U.S. 438

(1928) (Brandeis, J., dissenting) .................. 28

Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994) ...... 18

Ortega v. O'Connor, 146 F.3d 1149 (9th Cir. 1998) .... 14

Perry v. Sindermann, 408 U.S. 503 (1972) ........... 21

Pickering v. Board of Education,

798 Ua. OF OP 8 55 6+ ce 19, 21-25

vii

Press-Enterprise Co. v. Superior Court,

Stk Gee ee 18

Press-Enterprise Co. v. Superior Court,

464 US. 501 (1984) 2... ccc cece cere even vnc. 18

Rankin v. McPherson, 483 U.S. 378 (1987) ........ 20-23

Republican Party of Minnesota v. White,

122 S. Ct. Z52B (2002) 0. ccc cence rccvevcens 29-30

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980) (plurality opinion) ............. 22

Robinson v. Town of Colonie, 878 F. Supp. 387

(N.D.N.Y. 1995) .... cr ccccccsescenvecseneness 17

Rose v. Stephens, 291 F.3d 917 (6th Cir. 2002) ....... 24

Roth v. Veteran's Administration, 856 F.2d 1401

(Sth Cig. 19GB) 2. ccc cence ee ceeeevesncensvees 22

Schowengerdt v. General Dynamics Corp.,

823 F.2d 1328 (9th Cir. 1987) ......... cece eee eee 11

Sheppard v. Beerman, 18 F.3d 147

(2d Cir. 1994) (Sheppard } .... 1, 4-6, 10-11, 14-17, 19, 26

Sheppard v. Beerman, 94 F.3d 823

(2d Cir. 1996) (Sheppard Il)... 1... cece nee ee eee 1, 6

Sheppard v. Beerman, 317 F.3d 351

(2d Cir. 2003) (Sheppard Ill) ......... 1, 9, 19-23, 25-26

Sheppard v. Beerman, 513 U.S. 816 (1994)

(denial of certiorari from Sheppard ]) ........+.+++- 5

Sheppard v. Beerman, 822 F. Supp. 931

(E.D.N.Y. 1993) (Sheppard Ibelow) .........+++++: 1,4

Sheppard v. Beerman, 911 F. Supp. 606

(E.D.N.Y. 1995) (Sheppard ITbelow) .............. 1,5

Sheppard v. Beerman, 190 F. Supp. 2d 361

(E.D.N.Y. 2002) (Sheppard IlTbelow) ............... 1

Shields v. Burge, 874 F.2d 1201

Gee a SOND see oie e 00s oe os Cie e eA ees oka ee 11

Sibron v. New York, 392 US. 40 (1968) ............ 17

Solomon v. Royal Oak Township, 842 F.2d 862

Se a SE Wd ON dawckehheiavcd Haks) dae ede > 22

Stanford v. Texas, 379 U.S. 476 (1965) ............. 13

Stewart v. Evans, 275 F.3d 1126

lee | ee Udhs 6d one bends ce 13

United States v. Carver, 260 U.S. 482 (1923) ..... i austin 5

United States v. Chadwick, 433 U.S. 1 (1977) ........ 13

United States v. Chapman, 954 F.2d 1352

eNO MEE 650 kG be Nid ciewedades ne ecoukeers 11

United States v. Chavez, 281 F.3d 479 n

Se es EE o:5'0n'n s 5G ble ue noe eee hae ae 17

United States v. Craig, 32 M.J. 614

"Ps TE 66555 64 6a 05 RO ERETEST EAS DR CIOs 11

United States v. Drayton, 536 U.S. 194,

ee SP 46k wh eK eV NGA co sb ae cs 17

United States v. Fernandes, 272 F.3d 938

Pe SE “sh sk bck oa sane ek ee eee 13

ix

United States v. Gonzalez, 300 F.3d 1048

(eo » PPPrrrrererrera terete ee eee 14

United States v. Crant, 920 F.2d 376

te ®. PererrrrrrrriTerrer rere eee te 18

United States v. Johnson, 16 F.3d 69,

rehearing granted on other grounds,

18 F.3d 293 (Gth Cir, 1994) 2... cc ccc cre vevevees 15

United States v. Little, 60 F.3d 708

oie S| errr rere eeee eee re eek 18

United States v. Madrid, 30 F.3d 1269

oe | eer rr Tree eee eee eee 18

United States v. Mancini, 8 F.3d 104

7 48 2. Erne re rr ere ee eee eee 13

United States v. Mendenhall, 446 U.S. 544

(1980) (plurality opinion) ...........-.- ee eee eee 17

United States v. Minsky, 963 F.2d 870 (6th Cir. 1982) . 29

United States v. Neal, 41 M.J. 855

(A.F. Ct. Crim. App. 1994) .......ccceccccvineeees 11

United States v. Place, 462 U.S. 696 (1983) .......... 13

United States v. Sanchez, 89 F.3d 715

Cos | eer err te eee eee ee 18

United States v. Simons, 206 F.3d 392

fee error rr cere eee eee eee eee ee 15

United States v. Slanina, 283 F.3d 670 (5th Cir.),

vacated on other grounds, 123 S. Ct. 69 (2002)....... 15

Xx

United States v. Taketa, 923 F.2d 665

te ry ee eee ee ee ee ee ee 11

United States v. Weaver, 282 F.3d 302

(4th Cir.), cert. denied,

prog Beg fF Meroe rer re ce Teer Tee ee eee 18

Walker v. Darby, 911 F.3d 1573 (11th Cir. 1990) ..... 14

Waller v. Georgia, 467 U.S. 39 (1984)

co eae eee eee eee 18

Walter v. United States, 447 U.S. 649 (1980) ......... 13

Waters v. Churchill, 511 U.S. 661 (1994) .... 20-21, 24-25

Williams v. Board of Regents, 629 F.2d 993

ot S| eee Tree or err er aeT rare 11

Wulf v. City of Wichita, 883 F.2d 842

Sa SE 840) Ae hades REAR ER ES Ree 22

Yohn v. Love, 76 F.3d 508 (3d Cir. 1996) ........... 29

Zurcher v. Stanford Daily, 436 U.S. 547 (1978) ....... 13

kkeKeE*

Constitutions, Statutes, and Rules

is ee SS eer eee 1-2, 5, 18-19, 26

U.S. Const. amend. IV ..... 1-2, 4-5, 12-13, 15, 17, 26, 29

ath oh dl: ere rerree. eee a eT eee ee 1

go Se Pry eee ek ee ee ee ee 2

. § ae 8 wr rr re eS Serer ees eee 4

xi

N.Y. Comp. Codes R. & Regs. tit. 22,

Boot ge eee rere reer ee reer ee 25

N.Y. Comp. Codes R. & Regs. tit. 22,

SnD SE 85 hoe Pe oes eee ee ee eR 25

N.Y. Comp. Codes R. & Regs. tit. 22, a

kg) See ee ee Crete Tere Tee ee eer ee 25

KEKE a

Other Authorities:

Christine C. Biederman, In Center of

Judicial Storm Is a Federal Judge in Texas,

Pa. es RO Cs Sy Ry © he GE BE 6 6 6 ee be oe en oe 28

Mervin Block, Judges and the Press:

The Power to Suppress, 16 Loy. U. Chi.

ee Se errors eee ee ere ere ee 28

Alan M. Dershowitz, The Best Defense (1982) ......... 7

Marvin E. Frankel, A Matter of Opinions,

N.Y. Sees, May 1D, 1996, § 4, AFIS oo ieee wees 12

Monroe H. Freedman, Professional Discipline

of Prosecutors: A Response to Professor

Zacharias, 30 Hofstra L. Rev. 121 (2001) ........... 28

Monroe H. Freedman, Zhe Threat to

Judicial Independence by Criticism

of Judges--A Proposed Solution to

the Real Problem, 25 Hofstra

ee oe: Se ee a Set anne 27

David Heilbroner, Rough Justice:

~ Days and Nights of a Young D.A. (1990) ............ 7

xli

James S. Liebman, The Overproduction of Death,

100 Colum. L. Rev. 2030 (2000) .....---eeeeeeeees

Mario Merola, Big City D.A. (1988) ...-- +. e+e eres:

Joyce Purnick, Judge Wins This Round by Losing,

N.Y. Times, Apr. 24, 1996, at ee rere re

Robert Stern et al., Supreme Court Practice

(8th ed. 2002)... 6. cece cere eee ener eee eerees

Anthony R. Valukas, The Lesson of Greylord:

Many Lawyers and Judges Tolerate Brethren

Who Cheat and Lie, 14 B. Leader 13

(May-June 1986) .....--- eee eee reece eerie

}

ah sa ate 2

Petitioner Brian Sheppard respectfully prays that a writ of

certiorari issue to review the judgment and opinions of the

United States Court of Appeals for the Second Circuit in this

case.

OPINIONS BELOW

The opinions of the Court of Appeals (App. 1a-10a, 11a-

21a, and 22a-30a)' are reported at 18 F.3d 147, 94 F.3d 823,

and 317 F.3d 351, respectively.

The opinions of the United States District Court for the

Eastern District of New York (Glasser, D.J.) (App. 31a-53a,

54a-76a, and 77a-117a) are reported at 822 F. Supp. 931, 911

F. Supp. 606, and 190 F. Supp. 2d 361, respectively.

JURISDICTION

The judgment of the Court of Appeals was entered on

January 28, 2003. A timely petition for rehearing was denied

on March 11, 2003. (App. 148a-149a.) This Court's juris-

diction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the Constitution, as made

applicable to the States through the Due Process Clause of

the Fourteenth Amendment, provides in relevant part that

governments "shall make no law . . . abridging the freedom

of speech, or of the press; or the right of the people peace-

ably to assemble, and to petition the Government for a

redress of grievances."

The Fourth Amendment to the United States Constitution,

similarly made applicable to the States, 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... ."

‘All of the appendix material for this Petition appears in one separately

bound volume. Pagination in the Appendix includes the suffix "a."

2

STATEMENT OF THE CASE

Petitioner is an attorney who graduated from Stanford

Law School in 1979. Between 1986 and 1990, he served as

the sole law clerk to Respondent, then a New York State

Supreme Court justice presiding over criminal cases. During

that period, Petitioner was exposed to serious, ongoing,

widespread misconduct on the part of Respondent, other

judges, and prosecutors. When, in December of 1990,

Petitioner raised strong objections to Respondent about the

misconduct and acknowledged that he might publicize his

notes about the misconduct, Respondent discharged him, had

him forcibly ejected from the courthouse, searched his office

and belongings therein, and seized his belongings.

In 1991, Petitioner filed this action for damages and

equitable relief in the United States District Court of the

Eastern District of New York, primarily under 42 U.S.C. §

1983. The Complaint (App. 150a-159a) alleged, inter alia,

violations of Petitioner's First Amendment rights to free

speech and access to criminal proceedings, and his Fourth

Amendment right to be free from unreasonable searches and

seizures. (App. 157a ¥ 38.) In 1994, the United States Court

of Appeals for the Second Circuit affirmed the District

Court's dismissal of all of the claims other than the free

speech claim, but vacated the District Court's dismissal of

that claim. In 1996, the Second Circuit vacated the District

Court's second dismissal of the free speech claim. In 2003,

the Second Circuit affirmed the District Court's grant of

summary judgment to Respondent on that claim.

I. The 1991 Complaint

The Complaint provided examples of the misconduct that

occurred in two cases that were before Respondent at the

time of the parties' December 1990 argument. Respondent

_ had had one of those cases--a vehicular homicide--assigned

to him so that he could exact revenge against the defendant

for having been rearrested, told Petitioner that he would do

all he could to obtain a conviction, and followed through on

3

that promise. (App. 151a-152a {J 8-9, 12.)

In the other case--a murder prosecution--Respondent had

had improper ex parte communications with the prosecution.

On December 6, 1990, Respondent ordered Petitioner to draft

a decision in that case denying the defendant's speedy trial

motion without a hearing, regardless of the merits, so that

the defendant would stand trial, and at a time desired by the

prosecution. (App. 151la-152a 9{ 8, 10.)

At the outset of the following day, Petitioner refused to

follow the order. Respondent then told him to look for

another job. Petitioner declined, saying Ae was not the one

who had acted improperly. Respondent denied any impro-

priety until Petitioner reminded him of his misconduct in the

vehicular manslaughter case and other cases, and indicated

that Petitioner had taken notes of courthouse events. (App.

152a {J 11-12.)

Respondent expressed concern as to whether and when

Petitioner would make his notes public. He responded that

he was not certain, but that he would no longer have a duty

of loyalty to Respondent if Respondent continued to pressure

him into taking part in misconduct. (App. 152a { 13.)

During the argument, voices were raised, and Respondent

called Petitioner "disturbed" and "disloyal," while Petitioner

said that Respondent was "corrupt" and a "son-of-a-bitch."

Petitioner immediately apologized for the expletive, after

which Respondent said nothing about it. But Respondent's

adamant protestations, that his intermittent wrongdoing did

not render him "corrupt," failed to persuade Petitioner. (App.

152a-153a | 14-15.)

The argument ended with no resolution. Petitioner

worked the remainder of the day without incident. After the

intervening weekend and his illness on December 10, he

returned to work on the 11th. In that intervening period,

Respondent fruitlessly searched Petitioner's office for the

notes, but did find something that caused Respondent to fear

that Petitioner intended to report on judicial misconduct on

December 12. (App. 153a-154a 7 16, 18-19.)

On December 11, after Petitioner had been working in

chambers for two hours and Respondent had not yet shown

4

up, armed, uniformed court officers entered chambers,

advised Petitioner that he had been discharged, and escorted

him out of the courthouse, telling him that he had to leave

the courthouse with them right then, without his belongings.

Respondent then searched Petitioner's office again, including

the desk drawers and filing cabinets, and removed Petitior-

er's personal file cards into Respondent's office and examined

them. (App. 154a-155a {J 20-25.)

When Petitioner returned to his office on December 13 in

the company of court officers so that he could recover his

belongings, he was prevented from taking his personal files

with him. After Respondent examined those files, they were

given to Petitioner on December 17. (App. 155a {{ 26-27.)

The various seizures and searches were supported by

neither the policies nor customs of Respondent or other New

York judges. (App. 155a { 29.)

II. The 1993 Dismissal and Sheppard I

Respondent's first motion for judgment on the pleadings,

see Fed. R. Civ. P. 12(c), was argued and deemed submitted

in April of 1992. After Petitioner in April of 1993 effectively

obtained a writ of mandamus from the Second Circuit

forcing the District Court to decide the motion within 30

days, the District Court granted the motion and dismissed

the case. 822 F. Supp. 931. (App. 31a-53a.) The Second

Circuit vacated the dismissal of the free speech claim, and

otherwise affirmed. Sheppard v. Beerman, 18 F.3d 147 (2d

Cir. 1994) [hereinafter Sheppard J] (App. 1a-10a).

Sheppard I (App. 7a-8a) dismissed the Fourth Amend-

ment claim as to the searches of Petitioner's office, desk, and

‘filing cabinets, expressly. adopting the ground sua sponte

raised by the District Court (App. 44a-45a) that, unlike all

other government employees, law clerks as a class have no

reasonable expectation of privacy in such places. While the

Complaint alleged that Respondent seized and searched

Petitioner's belongings, including his personal file cards and

files, for the purpose of confiscating his notes on Respon-

dent's misconduct (App. 153a-155a JJ 18(a), 24-27), Sheppard

5

I (App. 8a-9a) dismissed the Fourth Amendment claim as to

those seizures and searches on the ground that a short delay

in searching the belongings of a discharged e:nployee is

reasonable to prevent the employee from destroying or

confiscating government property.

Although Petitioner argued to both courts below that he

was seized in violation of the Fourth Amendment when he

accompanied armed court officers from Respondent's

chambers to outside the courthouse pursuant to their order

to him (eg., Pet. C.A. Sheppard I Br. 30-34), Sheppard I

App. 9a) explicitly agreed with the District Court's sua

sponte holding (App. 45a n.3) that Petitioner was not seized

because he was free to go anywhere outside the courthouse

after he was forced to leave the building. While Petitioner

argued to both courts that his First Amendment right to be

in the courthouse was violated by his forcible removal

therefrom for no legitimate governmental purpose (e.g., Pet.

C.A. Sheppard I Br. 35-38), both courts dismissed this claim

without addressing it (App. 6a-7a, 9a, 42a-43a).

Finally, Sheppard I (App. 5a-6a) vacated the District

Court's dismissal of the free speech claim (App. 34a-42a) for

ignoring the allegations in the Complaint (e.g., App. 150a,

153a-154a | 1, 18, 21) as to Respondent's motivation in

discharging Petitioner.’

III. The 1995 Dismissal and Sheppard II

Before the taking of depositions began, Respondent again

moved for judgment on the pleadings as to the free speech

claim, renewing his earlier arguments. In 1995, the District

Court granted the motion and dismissed the case again. 911

F. Supp. 606. (App. 54a-76a.) In dismissing the request for

damages, the court sua sponte held that the issue of an

This Court denied Petitioner's application for certiorari from some of

the rulings in Sheppard J adverse to him. Sheppard v. Beerman, 513 US.

816 (1994). Of course, that earlier denial does not preclude or affect the

instant application. United States v. Carver, 260 U.S. 482, 490 (1923); Robert

Stern et al., Supreme Court Practice § 4.18, at 260-61 (8th ed. 2002).

6

employer's intent in a free speech retaliation case is irrelevant

in the context of qualified immunity. (App. 67a-71a.)’ The

court also sua sponte dismissed the request for declaratory

and injunctive relief. (App. 7la-75a.) In Sheppard v.

Beerman, 94 F.2d 823 (2d Cir. 1996) [hereinafter Sheppard II],

the Second Circuit vacated every aspect of this second

dismissal as being contrary to the law and the facts alleged

in the Complaint. (App. 11a-21a.)

IV. The 2002 Grant of Summary Judgment and Sheppard

It

In 2000, after substantial discovery, Respondent moved for

summary judgment on the remaining, free speech claim. The

evidence Petitioner provided in opposition to the motion

closely conformed to the allegations in the Complaint--largely

on the basis of Petitioner's own deposition testimony--but

with the following particularly noteworthy additions.

Petitioner's testimony expanded on the types and scope of

the misconduct he observed during his tenure with Respon-

dent. This included improper ex parte communications

involving Respondent and other judges, on the one hand,

and prosecutors--including some at the highest levels--on the

other hand, and Respondent's physically altering his jury

standard jury charge forms for the expressed purpose of

increasing the likelihood of conviction against certain

defendants. (C.A. Sheppard III App. 497-500, 508-09, 522-23,

9954, 557-58, 576-77, 598-99, 602-04, 622, 630.)

To support his testimony about this latter form of miscon-

duct, Petitioner formally requested from Respondent the jury

charge documents he used in all of his criminal cases during

Petitioner's tenure with him. Respondent admitted at his

deposition that after receiving and reading the document

request, he intentionally destroyed all of those documents

*In its first dismissal decision, the District Court did not address

Respondent's qualified immunity argument. While Petitioner asked the

Sheppard I court to reach that issue, Respondent did not join in that

request, and Sheppard J did not address the issue either.

7

instead of complying with the request. (App. 160a-168a.)

Petitioner sought to depose various witnesses to further

corroborate his testimony about misconduct. However, the

magistrate judge delayed the case for a total of more than a

year by sua sponte raising the issue whether any such

depositions would be proper, and ultimately ruled that

Petitioner could not depose any current or former judges

(aside from Respondent) or /aw clerks about the existence of

any misconduct, and further severely restricted Petitioner's

ability to depose current and former prosecutors on the

subject. (App. 132a-147a.) Nevertheless, various prosecutorial

supervisors testified to the accepted practice in their office of

engaging in improper ex parte communications with judges

and their law clerks. (App. 169a-200a.)*

Respondent testified that one of the reasons for the

discharge was that Petitioner's allegations of misconduct

were false. (C.A. Sheppard III App. 406-07.) Respondent also

testified that one of the reasons was Petitioner's use of an

expletive. However, Respondent testified that Petitioner did

not apologize for the expletive, and that he could not say

whether he would have discharged Petitioner had Petitioner

apologized. (/d. at 403, 437.) Respondent himself would use

expletives in chambers in Petitioner's presence, including

referring to prosecutors as "miserable bastards." (/d. at 526.)

Prior to the Detember 1990 argument, Respondent grudging-

ly had accepted Petitioner's rough way of objecting to some

of Respondent's misconduct, and had altered his behavior to

some extent in response to those objections. (/d. at 497-98,

507-09, 578, 600, 605, 610-11.)

Respondent testified that, minutes or hours before the

discharge, he visited the administrative judge, who not only

opined that Petitioner should be discharged, but insisted that

Petitioner be removed from the courthouse. (/d.. at 409-10.)

The administrative judge and his administrative assistant, on

‘Such improper communications are hardly limited to the county in

which Respondent sat. Alan M. Dershowitz, The Best Defense 102 (1982);

David Heilbroner, Rough Justice: Days and Nights of a Young D.A. 238

(1990); Mario Merola, Big City D.A. 32, 50 (1988).

8

the other hand, testified that Respondent merely had phoned

the administrative judge, indicating that Petitioner had been

discharged but refused to leave chambers, and that the

administrative judge merely ordered that Petitioner be

removed from chambers, as he had a right to remain in the

courthouse. (/d. at 685-92.) The three court officers involved

in the removal of Petitioner from the courthouse could not

explain what the reason or purpose for the removal was, as

Petitioner was behaving calmly during their interaction with

him and he had a right to remain in the courthouse. (Jd. at

816-20, 822, 827, 832, 858-60, 865-66, 869-70.) Those officers

and other witnesses testified to the unprecedented nature of

Petitioner's removal from the courthouse, and of the removal

of a discharged law clerk from chambers without the clerk's

first having the opportunity to gather his belongings. (/d. at

666, 670, 679-80, 684-85, 692-93, 701-02, 711-12, 718-19, 726,

814-15, 820-21, 823-24, 826, 828-30, 856-64, 866-67.)

Respondent testified that he knew nothing about any

searches of Petitioner's office, or about Petitioner's being

prevented from taking his belongings with him when he was

removed from the courthouse. Respondent also denied

knowing that Petitioner was prevented from taking his

personal files with him when he returned to chambers to

retrieve his belongings. While admitting that he removed

Petitioner's personal file cards into his own office, he denied

examining them.

Petitioner testified that during the argument--which took

place in Respondent's office with no one else present--Res-

pondent asked how he remembered Respondent's miscon-

duct so well, and he replied that he had taken notes of

courthouse events; when Respondent asked when he intend-

ed to go public, he responded that he did not know, but that

he would go public if left with no options but to take part in

misconduct, resign, or be fired. (/d. at 509-10, 518, 520-21,

525, 528, 559-60, 574, 629-30, 722-23, 1304 J 9, 1309 J {| 35-37.)

Petitioner also testified that his notes--which he produced

during discovery--focussed on the misconduct of others, not

Respondent. Respondent testified that during the argument,

there was no mention of any notes or going public.

9

A year after Respondent's summary judgment motion was

deemed submitted, the District Court granted the motion.

(App. 77a-117a.) In Sheppard v. Beerman, 317 F.3d 351 (2d

Cir. 2003) [hereinafter Sheppard III|, the Second Circuit

affirmed that dismissal. (App. 22a-30a.)

Although Petitioner had contended throughout the

litigation that Respondent discharged him for a numb =r of

improper reasons, including to punish him for his speech

about misconduct, Sheppard III simply examined the

question whether Respondent discharged Petitioner to deter

Petitioner from making the misconduct public, and held that

as a matter of law a public employer does not discharge an

employee for that purpose where, as here, the employee

confirms that he will publicize the misconduct if discharged.

(App. 28a-30a.) Also, without addressing the issues of the

truth of Petitioner's claims about misconduct, the seriousness

of that misconduct, or the private nature of Petitioner's

speech, and without allowing a jury to determine Respon-

dent's motivations for the discharge, Sheppard IIT held that

the discharge was proper because Petitioner uttered an

expletive. (App. 27a-28a.) On March 11, 2003, the Second

Circuit denied Petitioner's petition for rehearing and rehear-

ing en banc. (App. 148a-149a.)

REASONS FOR GRANTING THE PETITION

I. THE SECOND CIRCUIT'S DECISIONS BELOW SERIOUS-

LY CONFLICT WITH CASES FROM THIS COURT AND

OTHER CIRCUITS, AND CONSTITUTE HIGHLY UNDE-

SIRABLE PUBLIC POLICY.

A. Office and Property Searches and Seizures

1. Searches of Offices, Desks, and Filing Cabinets

In O'Connor v. Ortega, 480 U.S. 709 (1987), all nine

Justices agreed that, at a minimum, a public employee has a

reasonable expectation of privacy from searches of his or her

office, desk, and file cabinets, unless, under the circumstances

10

of the employee's particular case, that expectation has been

"reduced by virtue of actual office practices and procedures,

or by legitimate regulation.” Here, the Complaint alleged,

It is neither the policy nor custom of defendant or other

New York judges to search their law clerk's office or seize

any objects therefrom, except to the extent that materials

belonging to the court or the judge, located in plain view

or in file cabinets, might be briefly sought and removed

as needed for legitimate court purposes ....

(App. 155a § 29(a).) Despite Ortega and the Complaint,

Sheppard [held that judicial law clerks have "'no reasonable

expectation of privacy in chambers' appurtenances, embrac-

ing desks, filing cabinets or other work areas."" (App. 8a

(quoting App. 45a).) The court based its conclusion on its

belief that "[t]he working relationship between a judge and

her law clerk .. . is unique" (App. 8a), and that no judge's

chambers could function properly unless the judge has

complete access to everything to which the clerk has access

(id). - :

Obviously, Sheppard I ignores the minimum rule of

Ortega that the employee's expectation of privacy must be

addressed on a case-by-case basis, and can be reduced only

because of actual office practices and procedures or legiti-

mate regulation, Indeed, in scouring the cases cited in

Ortega and ail cases, federal or state, which have cited it over

these 16 years, the undersigned has been unable to locate any

‘The four-judge plurality opinion stated that "the question whether an

employee has a reasonable expectation of privacy must be addressed on

a case-by-case basis," 480 U.S. at 718, examining whether the employee's

expectation of privacy has been "reduced by virtue of actual office

practices and procedures, or by legitimate regulation."/d. at 717. Judge

Scalia, concurring in the judgment, took the position thata// government

employees have a reasonable expectation of privacy in their offices, desks,

and filing cabinets unless their offices are subject to unrestricted public

access. Id. at 730-32. The four-justice dissent also found the plurality

opinion to be too restrictive of public employees' rights to privacy in their

offices, desks, and filing cabinets. /d. at 737-41.

re

11

case other than Sheppard J in which it even was argued,

much less held, that a certain class of government employees

has no reasonable expectation of privacy in their offices,

desks, or file cabinets regardless of the policies or customs in

their particular workplaces. This is true even as to law

enforcement or military employees,’ even though they

traditionally have received less Fourth (and First) Amend-

ment protection than over government employees.*

In light of both Ortega and common sense, it is simply

untenable that no judicial chambers could function unless the

judge has free reign to go through the law clerk's office,

desk, and filing cabinets without restraint. Indeed, the

District Court below, unlike the Second Circuit, apparently

believed that only judges in "large metropolitan areas" need

such free reign. (App. 44a-45a.) Nor is it reasonable to take

the position that if, because of the particular duties, needs,

beliefs, relationships, policies, or practices of the judge, law

clerk; or judicial system in question, certain judges in fact are

able to manage without having such intrusive access into

their law clerk's work areas, then such law clerks should not

then have the benefit of the Fourth Amendment's protection.

Moreover, Sheppard I singled out judicial chambers for

unique treatment because of the flow of written and oral

confidential information constantly exchanged between

judges and their law clerks. (App. 8a.) But how is this

different from the flow of such information in many execu-

tive or legislative offices? Indeed, in Forrester v. White, 484

U.S. 219 (1988), this Court not only rejected the notion that

‘Indeed, the position was not even initially argued by Respondent, but

was raised and decided sua sponte by the District Court. (App. 44a-45a.)

’ United States v. Taketa, 923 F.2d 665, 672-73 (9th Cir. 1991);Shields v.

Burge, 874 F.2d 1201, 1202-05 (7th Cir. 1989); Schowengerdt v. General

Dynamics Corp., 823 F.2d 1328, 1333-35 (9th Cir. 1987); United States v.

Neal, 41 M.J. 855, 860-61 (A.F. Ct. Crim. App. 1994);United States v. Craig,

32 MJ. 614, 615 (A.C.M.R. 1991).

* Ortega, 480 U.S. at 745 n.2 (Blackmun, J., dissenting); Brown v. Glines

444 U.S. 348, 353-58 (1980); United States v. Chapman, 954 F.2d 1352, 1366-

71 (7th Cir. 1992); Williams v. Bd. of Regents, 629 F.2d 993, 1003 (5th Cir.

1980).

Se i ys

12

judges, and only judges, should received absolute immunity

from damages for their decisions to hire and fire confidential

- employees, but rejected the position taken by the Seventh

Circuit in that case that a judge's need for confidence in his

or her employees distinguishes judges from other public

officials, id. at 229-30, and cautioned judges not to be overly

protective of their own situations in comparison to the

situations of other government employers about which they

know less, id. at 226, and who in fact_may deserve greater

protection than judges, id. at 230. Indeed, as a former federal

judge has written, not only have different justices of this very

Court relied on their law clerks to very different degrees, but

some justices of this Court have relied on their law clerks iess

than their counterparts in government have relied on tiwty

confidential employees. Marvin E. Frankel, A Matter of

Opinions, N.Y. Times, May 15, 1994, § 4, at 15.

2. Seizures and Searches of Personal Property

While this Court in Ortega generally left open the ques-

tion of the Fourth Amendment restrictions on a government

employer's seizure or search of an employee's property, 480

U.S. at 729 n.* (plurality opinion); see id. at 747-48 n.14

(Blackmun, J., dissenting), that case had three important

things to say on the subject. First, even the plurality, while

stating that employees have no reasonable expectation of

privacy in the exterior portions of belongings exposed to

open view in an office, desk, or filing cabinet where an

otherwise legitimate search is taking place, nevertheless

unquestionably retain a reasonable expectation that an

employer will not seize or search a handbag, briefcase, or

closed personal luggage without probable cause. Jd. at 716.

Second, while the plurality and Justice Scalia's concurrence

did not address the issue, the four-justice dissent took the

position that the seizure or search of personal property, and

particularly the inspection of private papers, during the

search of an office, desk, or filing cabinet requires greater

justification than the initial search. Jd. at 738 n.5, 747-48 n.14.

Third, the implication in all of the Ortega opinions is that

13

since the search of an office, desk, or filing cabinet can be

justified only if its purpose in fact was a legitimate, work-

related one--and thus, a search purportedly effected to

prevent the confiscation or destruction of the employer's

property by a discharged or suspended employee can be

justified only if a policy or practice permits such a search and

the search in fact was effected for that purpose’--then the

seizure or search of property which in fact was not effected

for such a purpose would be violative of the Fourth Amend-

_ ment. /d. at 723, 725-28 (plurality opinion); id. at 732 (Scalia,

J., concurring); id. at 732-48 (Blackmun, J., dissenting).

Thus, in general, this Court has recognized that: searches

or seizures of private property are reasonable only if effected

in fact for legitimate governmental purposes, New Jersey v.

I’L.O, 469 U.S. 325, 335 (1985); United States v. Place, 462

U.S. 696, 703-06 (1983); special justification is required for the

examination of private papers;’” and separate justification is

required to search or seize private property discovered as a

result of a proper initial search or seizure. Arizona v. Hicks,

480 U.S. 321, 324-29 (1987); United States v. Chadwick, 433

US. 1, 3-5, 11-16 (1977). Accordingly, in the wake of Ortega,

federal courts have held that a government employer's

seizure or search of an employee's personal documents is

covered by Ortega's general reasonable expectation analysis,”

and that, under Ortega, a search or seizure of a public

employee's written or oral statements is constitutional only

” Accord United States v. Fernandes, 272 F.3d 938, 942-43 (7th Cir. 2001).

“Zurcher v. Stanford Daily, 436 U.S. 547, 563-64 (1978); Andresen v.

Maryland, 427 U.S. 463, 482 n.11 (1976); Fisher v. United States, 425 US.

391, 401 n.7 (1976); Stanford v. Texas, 379 US. 476 (1965). This is

particularly so where, as here, "the basis for the seizure is disapproval of

the message contained therein." Walter v. United States, 447 U.S. 649, 655

(1980) (Stevens, J., announcing the judgment of the Court).

"Stewart v. Evans, 275 F.3d 1126, 1129-31 (D.C. Cir. 2002) (employee's

notes of employers' misconduct); United States v. Mancini, 8 F.3d 104, 108-

10 (1st Cir. 1993) (appointment calendar, containing personal and work-

related entries, maintained in office archives and accessible to secretary).

14

if effected in fact for a legitimate, work-related reason.”

But in Sheppard I, the Second Circuit acted contrary to_all

of these cases from this Court and elsewhere. The Complaint

alleges that: "[i]t is neither the policy nor custom of defen-

dant or other New York judges when firing a law clerk, to

physically remove him from the courthouse or deny him the

opportunity to gather his belongings before others intrude

upon his office and property therein" (App. 155a { 29(b));

nevertheless, upon being advised of his discharge, Petitioner

was also advised that he could not take his belongings with

him at that time (App. 154a § 22); Respondent removed

Petitioner's personal file cards and examined them (App.

154a-155a J 24-25); when Petitioner returned to chambers

two days later, he was not permitted to take his personal

files until Respondent had four additional days to examine

them (App. 155a § 26-27); and Respondent effected these

seizures and searches forthe purpose of finding and confis-

cating Petitioner's notes of Respondent's misconduct (App.

153a J 18(a)).”° :

Petitioner clearly argued to both courts below that on the

basis of Ortega and these allegations, the seizures and

searches of his property violated the Fourth Amendment.

(E.g., Pet. C.A. Sheppard I Br. 25-27.) Yet Sheppard I,

agreeing with the District Court (App. 43a-44a), held,

"Because a judicial employer has an overriding interest in

securing the confidentiality of chambers' work product and

in making sure that an angry clerk does not attempt to

confiscate or destroy important court property, the brief

alleged withholding of Sheppard's belongings while they

® United States v. Gonzalez, 300 F.3d 1048, 1055 (9th Cir. 2002) (employ-

ee's signing consent to search of backpack for theft does not entail consent

to read employee's papers in backpack);Ortega v. O'Connor, 146 F.3d 1149,

1152, 1159-64 (9th Cir. 1998); Walker v. Darby, 911 F.3d 1573, 1579 n.8 (11th

Cir. 1990) (employers bugged employee's office conversations in pursuit of

their personal vendetta against him).

“Respondent testified that there were no searches of Petitioner's

property, and that he was permitted to take his belongings with him at the

time of his discharge. See supra p. 8,

15

were searched was not unreasonable." (App. 9a.) This

language would even permit an automatic right to search,

and closely examine the contents of, a discharged employee's

handbag or briefcase.

Indeed, since Sheppard Is holding that law clerks have no

reasonable expectation of privacy in their offices, desk, and

file cabinets is based on the necessity that there be "an

absolutely free flow of information between the clerk and

judge" (App. 8a), it would follow that law clerks have no

reasonable expectation of privacy in their belongings--which

might contain or appear to be court files or "the clerk's notes

from discussions with the judge" (App. 8a)--even when they

are not discharged. This would include their handbags,

briefcases, and closed luggage, as law clerks sometimes take

work-related documents home or on vacation.

3. The Advent of Office Computers

The holdings in Sheppard I regarding the searches of

Petitioner's office, desk, and file cabinets, and the subsequent

seizure and search of his personal property, is particularly

troublesome in light of the extent to which public employees

are now furnished computers. Computers are largely the

modern version of the desk and filing cabinet. They contain

office-related files and information, but also personal files

and information. While some circuit courts, citing Ortega,

have held that a public employer may seize, search, or

monitor computers where the employee is given advance

notice of a policy so permitting, or where the seizure or

search in fact is effected for a legitimate work-related pur-

pose,’* the. logic of Sheppard I would allow judges unre-

strained access under the Fourth Amendment to everything

in the law clerk's computers and disks, not only in the

4 United States v. Slanina, 283 F.3d 670, 677-80 (5th Cir.), vacated on

other grounds, 123 S. Ct. 69 (2002); Muick v. Glenayre Elecs., 280 F.3d 741,

742-43 (7th Cir. 2002) (Posner, J.); United States v. Simons, 206 F.3d 392,

398-401 (4th Cir. 2000); United States v. Johnson, 16 F.3d 69, 71, 73-74,

rehearing granted on other grounds, 18 F.3d 293 (5th Cir. 1994).

16

absence of such an announced policy, but even in the

presence of policies and practices seemingly providing some

privacy protection for the law clerk. Indeed, in Leventhal v.

Knapek, 266 F.3d 64 (2d Cir. 2001), in finding that a govern-

ment employee had a reasonable expectation of privacy in

personal information stored in his office computer in the

absence of an announced policy to the contrary, the Second

Circuit contrasted Sheppard J in that there is a "'unique'

relationship between a judge and her clerk necessitating a

‘distinctive open access to documents." Jd. at 74 (quoting

App. 8a). |

In fact, in an open letter to federal judges dated Septem-

ber 4, 2001, federal circuit judge Alex Kozinski wrote that

proposed rules removing the privacy of federal judicial

employees, including judges and their law clerks, in all

information in their office computers--including personal e-

mails and prescriptions filled online--would give "employers

a near-Orwellian power to spy and snoop into the lives of

their employees" (quoting a fellow judge), causing "loyalty

and dedication [to] wilt." Thus, it is likely that the removal

of the privacy of a law clerk would hinder, not help, "an

absolute free flow of information between the clerk and the

judge" which Sheppard I found so vital. (App. i ae

Moreover, Sheppard I based its holding that a law clerk

has no reasonable expectation of privacy in his or her office,

desk, or filing cabinets on the need for that "an absolute free

flow of information" and for the judge's concomitant "access

to the files and papers kept by the clerk," including "the

clerk's notes from discussions with the judge" (App. 8a.)

Accordingly, it would seem that a judge also has no reason-

able expectation of privacy in his or her own office, desk, or

file cabinets—-or, for that matter, computer or personal

belongings in chambers-—in light of that absolute need for the

free flow of information between judge and clerk, and

because the law clerk, in drafting opinions and performing

other tasks, needs full access to all files and the judge's notes

from discussions with the clerk.

B. Forcible Movements of Persons

eer...

17

The clear rule from this Court is that an officer seizes an

individual for Fourth Amendment purposes if, based on the

officer's conduct and/or statements, a reasonable person

would not have felt free to ignore the officer, terminate the

encounter, and go about his or her business.’ Thus, if an

officer tells a person to move from one location to another

and a reasonable person would feel compelled to obey, then

the officer has seized the person.”®

Although Petitioner argued to both courts below that he

was seized when armed court officers forced him to accom-

pany them from Respondent's chambers to the outside of the

courthouse building, see supra p. 5, Sheppard I held that

Petitioner was not seized because he "was 'free to go any-

where else that he desired,' with the exception of Beerman's

chambers and the courthouse." (App. 9a (quoting App. 45a

n.3).) Obviously a person ordered by armed court officers to

accompany them out of a courthouse is not free to ignore

them and remain in the courthouse. Indeed, the logic of

Sheppard I would remove all Fourth Amendment restraints

on the ability of government officers to force persons to

move out of buildings,” into buildings,”* or generally from

one location to another,” regardless of the duration of the

" United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105, 2111-12 (2002);

California v. Hodari D., 499 U.S. 621, 628 (1991); Florida v. Bostwick, 501

U.S. 429, 434-37, 439 (1991); Michigan v. Chesternut, 486 U.S. 567, 569

(1988).

'* United States v. Mendenhall, 446 U.S. 544, 548, 557-58 (1980) (plurality

opinion); Dunaway v. New York, 442 U.S. 200, 207 (1979); Sibron v. New

York, 392 U.S. 40, 45, 63 (1968).

"Contra Sibron, 390 US. at 45, 63 (movement out of restaurant);/ones

by Jones v. Webb, 45 F.3d 178, 180-82 (7th Cir. 1995) (movement out of

house). In Robinson v. Town of Colonie, 878 F. Supp. 387, 392-93

(N.D.N.Y. 1995), the court held that Sheppard J"dictate[d]" its ruling that

as a matter of law, a customer is not seized when ordered by the police to

leave a store.

"Contra Dunaway, 442 US. at 207 (movement into police station).

” Contra Mendenhall, 446 U.S. at 548, 557-58 (no seizure because person

consented to move to another location 50 feet away in same building);

United States v. Chavez, 281 F.3d 479, 482, 484 (5th Cir. 2002) (no seizure

18

move” or the number of moves required,” as long as the ©

person is allowed, for some unspecified period of time, to go

about his or her business after the move.

C. Exclusion of Citizens from Courthouses

Unquestionably, members of the public have a First

Amendment right of access to criminal proceedings to ensure

that such proceedings are conducted fairly and properly, and

that right may be abridged only for legitimate, compelling

governmental purposes.” The Complaint clearly indicates

that Respondent had court officers forcibly remove Petitioner

from the courthouse and prevent his reentry, not for any

legitimate governmental purpose, but to enable Respondent

to search for and seize any notes of misconduct in criminal -

proceedings Petitioner may have brought with him to work

that day; to punish Petitioner for his speech about the

misconduct; and to lessen the likelihood that the public

would learn about or take action against the misconduct.

because person consented to move across parking lot);United States v.

Sanchez, 89 F.3d 715, 717-18 (10th Cir. 1996) (same);United States v. Little,

60 F.3d 708, 711, 714 (10th Cir. 1995) (movement from one area of airport

terminal to baggage claim area); Orhorhaghe v. INS, 38 F.3d 488, 491-96

(9th Cir. 1994) (movement from hallway into person's apartment); Morgan

v. Woessner, 997 F.2d 1244, 1252-54 (9th Cir. 1994) (movement of ten feet).

2 Contra United States v. Madrid, 30 F.3d 1269, 1270-77 (10th Cir. 1994)

(no seizure because person voluntarily consented to be driven into town).

21Contra United States v. Weaver, 282 F.3d 302, 307, 311-13 (4th Cir.)

(no seizure because person consented to be driven in-patrol car to two

different banks), cert. denied, 123 S. Ct. 186 (2002); United States v. Grant,

920 F.2d 376, 378-79, 384 (6th Cir. 1990) (seizure when police continued to

question person on plane despite his changing seats, and another seizure

when police forced him to leave plane).

2 Press-Enterprise Co. v. Superior Court, 478 US. 1,3, 7, 9, 13-14 (1986);

Waller v. Georgia, 467 U.S. 39, 44-48 (1984) (unanimous decision); Press-

Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 510-13 (1984); Globe

Newspaper Co. v. Superior Court, 457 USS. 596, 598, 603-11 (1982).

—<—_~o"" 9 ° |

19

(App. 150a, 153a-154a JJ 1, 18, 20-23.)” Petitioner argued to

both courts below that his First Amendment right to attend

criminal proceedings therefore was infringed. See supra p.

9. Yet both Sheppard I (App. 6a-7a, 9a) and the District

Court (App. 42a-43a) dismissed this argument without even

addressing it. (App. 6a-7a, 9a, 42a-43a.)

D. Discharge in Violation of Free Speech

1. Motivation of Employer in Prima Facie Case

Sheppard III recognized that if Respondent discharged

Petitioner out of a concern for the content of his speech about

misconduct, then Petitioner would have made out a prima

facie case of a discharge in violation of the First Amendment

and the Pickering balancing defense* would be unavailable.

(App. 26a-27a.) Sheppard III disposed of the problem in two

steps: first, by ignoring Petitioner's contentions that the

among the motivations for the discharge were a desire to

punish Petitioner; to prevent him from further learning of or

objecting to misconduct; to lessen the likelihood that others

would believe or assist him; and to deter others from

objecting to, or blowing the whistle on, misconduct in the

future; and second, by holding that as a matter of law, a

public employer who discharges an employee after obtaining

confirmation from the employee that the employee will go

public if discharged cannot have discharged the employee for

the purpose of deterring the employee from going public,

since a discharge invites publication. This solution is

contrary to this Court's decisions and even the decisions of

the courts below earlier in this case, and creates highly

undesirable public policy.

a. Illegal Motivations

“Neither Respondent nor anyone else involved with removal of

Petitioner from the courthouse could articulate at his or her deposition a

reason for that removal. See supra pp. 7-8.

Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

-

20

This Court has made clear that the forbidden motivations

for disciplining a public employee for his or her speech

include, not only the desire to deter the employee from going

public, but also punishing the employee and deterring others

from emulating the employee.” Not only did the Complaint

(eg. App. 150a, 153a JJ 1, 18) and Petitioner's various

submissions below (e.g., Pet. C.A. Sheppard III Br. 2, 31-34,

43) explicitly indicate that all of these forbidden motivations--

particularly the retaliation motivation--were involved in this

case, but the earlier decisions of the Second Circuit (App. 1a,

16a), the District Court (App. 57a, 60a, 145a), and the

Magistrate Judge (App. 119a, 134a, 141a) explicitly acknowl-

edged this. Yet Sheppard III wrongly stated, "At its core,

Sheppard's argument is that he was terminated because he

threatened to go forward and expose Beerman's corruption,"

and only addressed the question whether Respondent

discharged Petitioner to deter him from going public. (App.

29a-30a.)

b. Confirming Willingness to Go Public

Petitioner testified at his deposition that during the

argument, Respondent asked him how he remembered

Respondent's misconduct so well, aid he replied that he had

taken notes of courthouse events; when Respondent asked

him when he intended to go public, he responded that he

did not know, but that he would go public if left with no

options but to take part in misconduct, resign, or be fired.

See supra p. 8. Sheppard IITheld that Petitioner's contention

that Respondent discharged him to deter him from going

public "is disproved, rather than proved, by the act of

termination, since that act, as described by Sheppard, was

akin to an invitation to speak." (App. 29a (quoting App.

104a) (emphasis in District Court).)

* Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996); Waters

v. Churchill, 511 U.S. 661, 669 (1994) (plurality opinion);id. at 683 (Souter,

J., concurring); Rankin v. McPherson, 483 U.S. 378, 384 (1987); Connick v.

Myers, 461 U.S. 138, 144-45 (1983).

21

Every case from this Court involving a public employer's

adverse action against an employee allegedly in violation of

free speech has been a termination case.* Also, this Court

has expressed a preference that the employee at least initially

engage in private speech, as such speech is less likely to

disrupt the legitimate work of the office. Rankin v. McPhers-

on, 483 U.S. 378, 388 n.13 (1987); Pickering v. Bd. of Educ,

391 U.S. 563, 570 (1968). Other circuits repeatedly have

struck the Pickering balance in favor of whistleblowers and

potential whistleblowers. See infra pp. 22-23 note 28.

But Sheppard II undermines all of these cases, allowing

a public employer engaged in misconduct to discharge an

employee who has privately expressed concern about the

misconduct, simply by eliciting from the employee the

obvious response that the employee will go public if dis-

charged, with the employer safe in the knowledge that a

federal court ultimately will uphold the discharge by holding

as a matter of law that an employer would not discharge an

employee to silence the employee because a discharge only

invites publication.

2. The Balancing Defense

Because Petitioner adduced sufficient evidence for a jury

to find that a substantial or motivating factor in the discharge

was Respondent's desire to punish him for his speech about

Respondent's misconduct or inhibit future activity along

those lines, Respondent nevertheless was entitled to summa-

ry judgment if he established as a matter of law that the

value of that speech was outweighed by the foreseeable

disruption the speech would cause to the legitimate running

of the office. Waters v. Churchill, 511 U.S. 661, 673-81 (1994)

(plurality opinion); Rankin, 483 US. at 388; Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285, 287 (1977)

*Cases cited in preceding note; Givhan v. W. Line Consol. Sch. Dist,

439 U.S. 410 (1979); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

US. 274 (1977); Perry v. Sindermann, 408 U.S. 503 (1972); Pickering, 391

U.S. 563.

22

. (unanimous decision). In several important ways, Sheppard

III considered this balancing issue in a manner profoundly at

odds with decisions from this Court and other circuit courts.

a. Private, Truthful Speech About Misconduct

Petitioner spoke to Respondent in the privacy of Respond-

ent's office, see supra p. 8, providing an important factor in

Petitioner's favor. Rankin, 483 U.S. at 388 n.13 ("a purely

private statement on a matter of public concern will rarely,

if ever, justify discharge of a public employee"); Pickering,

391 US. at 570. The subject of Petitioner's speech--ongoing,

serious, widespread judicial and prosecutorial misconduct--is

a matter of utmost public concern” The stronger the public

interest in the employee's speech, the greater the justification

needed for the employer to prevail in the Pickering balanc-

ing. Connick v. Myers, 461 U.S. 138, 152 (1983). Another

important factor in the balancing is whether the employee's

speech is true, or at least not knowingly or recklessly false,

particularly where, as here, the employer cites the falsity of

- the speech as a ground for the discharge. 391 U.S. at 568-75,

578-82. Where, as here, the employee's speech concerns the

employer's misconduct, circuit courts routinely strike the

balance in the employee's favor--indeed, even where the

employee speaks publicly; for in such situations, the

employee's speech is clearly in the public interest, and it is

the employer's misconduct, and his or her attempt to punish

or suppress the employee's speech, which is contrary to the

public interest.“ Although Petitioner repeatedly brought

” Connick, 461 US. at 148-49; Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555, 575 (1980) (plurality opinion);Gannett Co. v. DePasquale, 443

U.S. 368, 383 (1979); Landmark Communications, Inc. v. Virginia, 435 U.S.

829, 839 (1978).

FE g., McVey v. Stacy, 157 F.3d 271, 274, 280, 282 (4th Cir. 1998);;

Marshall v. Porter County Plan Comm'n, 32 F.3d 1215, 1217-21 (7th Cir.

1994); O'Connor v. Steeves, 994 F.2d 905, 906-09, 915-17 (1st Cir. 1993);

Wulf v. City of Wichita, 883 F.2d 842, 846-55, 861-62 (10th Cir. 1989);Roth

v. Veteran's Admin., 856 F.2d 1401, 1407-08 (9th Cir. 1988);So/omon v.

Royal Oak Township, 842 F.2d 862, 863-66 (6th Cir. 1988); Marohnic v.

23

these facts and legal principles to the attention of the courts

below (e.g., Pet. C.A. Sheppard III Br. at 39-45), neither

Sheppard III (App. 27a-28a) nor any of the other opinions of

the Second Circuit or the District Court took cognizance of

them.

b. Confidential Nature of Relationship

Instead, Sheppard Ill held, "Where an employee, such as

Sheppard, ‘holds an extremely confidential or highly placed

advisory position, it would be unlikely [for] the Pickering

balance to be struck in his favor." (App. 28a (quoting

McEvoy v. Spencer, 124 F.3d 92, 103 (2d Cir. 1997)) (alter-

ation in Sheppard I/}.) But this Court has never even

suggested that the confidential or high-level nature of the

employee's position creates a presumption against the

employee's succeeding in the Pickering balancing. In

Pickering itself, this Court noted that the highly confidential

nature of the employment relationship "might" tip the

balance for the employer where, unlike here, the employee

engaged in "public," as opposed to private, speech. 391 U.S.

at 570 n.3. In Rankin, this Court stated one of the factors in

the balancing is whether the speech "has a detrimental

impact on close working relationships for which personal

loyalty and confidence are necessary," 483 U.S. at 377, and

that "[wJhere . . . an employee serves no confidential,

policymaking, or public contact role, the danger to an

agency's successful functioning from that employee's private

speech is minimal," id. at 390-91. But the Court did not

suggest that this factor alone created any presumption

against the employee; indeed, any presumption mentioned in

that case was in favor of the employee. /d. at 388 n.13 ("a

purely private statement cn a matter of public concern will

rarely, if ever, justify discharge of a public employee"). In

O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712,

716-19, 726 (1996), this Court recognized that the confiden-

tial/ policymaking exception to government employment

Walker, 800 F.2d 613, 614, 616 (6th Cir. 1986) (per curiam).

24

decisions based on political association is distinct from the

Pickering balancing test. And in Connick, while noting the

political association cases, 461 at 142, 149, this Court ana-

lyzed the Pickering claim of an assistant district attorney--a

highly confidential employee with great public contact whose

position often depends on political association--is: the

standard manner. /d. at 142-54.

Moreover, in Waters, 511 US. at 674, this Court stated,

"Government employees are often in the best position to

know what ails the agencies for which they work; public

debate may gain much from their informed opinions."

Accord Bd. of City Comm'rs Vv. Umbehr, 518 U.S. 668, 674

(1996). How much truer is this of the confidential or high-

level employee, who, as here, 1s in the best position--indeed,

the only position—to offer not only informed opinions, but

actual facts about the employer's misconduct? |

Some circuits have held that even where the employee's

position requires political association and the employee

speaks publicly, the general Pickering balancing is per-

formed. Brady v. Fort Bend County, 145 F.3d 691, 704-10 (Sth

Cir. 1998); Horton v. Taylor, 767 F.2d 471, 479-81 (8th Cir.

1985). Others have applied a presumption against the

government employee simply because his or her position

requires political association, Fazio v. City and County of San

Francisco, 125 F.3d 1328, 1331-32 (9th Cir. 1997), or because

the position requires political association and the speech

involved that association in some manner, as opposed to

being about the employer's misconduct.”

But none of the circuits other than the Second engage in

a presumption against the government employee simply

* Rose v. Stephens, 291 F.3d 917, 920-23 (6th Cir. 2002); Barker v. Del

City, 215 F.3d 1134, 1139 (10th Cir. 2000);Bonds v. Milwaukee County, 207

F.3d 969, 976-82 (7th Cir. 2000); McVey, 157 F.3d at 277-82; Flynn v. City

"7 Boston, 140 F.3d 42, 46-47 (Ist Cir. 1998); Cutliffe v. Cochran, 117 F-3d

1353, 1355, 1358 & n.5 (11th Cir. 1997);Hall v. Ford, 856 F.2d 255, 258-65

(D.C. Cir. 1988).

25

because, like Petitioner,’ he or she holds a confidential

position, particularly where, as here, the employee's speech

was in private and concerned the employer's misconduct. In

fact, other circuits strike the Pickering balance in favor of

confidential, policymaking, or high-level employees where

the speech concerns the employer's misconduct--indeed, even

where the employee speaks publicly. See, e.g., cases cited

supra pp. 22-23 note 28.

c. Irrele vance of the Expletive

Aside from the improper presumption, the only other

factor upon which Sheppard III relied to strike the balance

against Petitioner was his use of an expletive during the

heated argument. (App. 27a-28a.) But, as Petitioner argued

to both courts below, his position is that the protected speech

which was a substantial or motivating factor in the discharge

-was his speech about misconduct, not the expletive. (E.g.,

Pet. C.A. Sheppard III Br. 2, 28, 30-32, 40-42.) Thus, a jury

must decide whether his position is correct about the motiva-

tions for the discharge, and then the court would determine

whether Respondent has sustained his burden of proving

that the disruntion of the proper running of the office that

would likely flow from that speech outweighed the value of

the speech*'--a balancing clearly in Petitioner's favor in light

of the truth, value, and private nature of the speech.”

%In New York, judges "shall exercise the power of appointment

impartially and on the basis of merit," N.Y. Comp. Codes R. & Regs. tit. 22,

§ 100.3(C)(3) (2002); "shall not be swayed by partisan interests" in

discharging their adjudicative responsibilities, id. § 100.3(B)(1); and are

required to refrain from a large variety of political activities,id. § 100.5.

| Waters, 511 U.S. at 677, 679-82; Connick, 461 U.S. at 140-41, 148-50;

Mt. Healthy, 429 US. at 281-87.

2While the expletive might be relevant to the defense that Respondent

would have discharged Petitioner in any event,Mt. Healthy, 429 US. at

287, Respondent did not argue, and Sheppard III did not address, that

defense, which would have involved a jury issue had it properly been

raised.

26

Il. MANY ADDITIONAL CONSIDERATIONS COALESCE

TO MAKE THE GRANT OF CERTIORARI CRITICALLY

IMPORTANT

A. This Is Most Likely the Court's Only Chance to

Address The Issues Concerning the First and Fourth

Amendment Rights of Law Clerks

Lawsuits against judges based on their employment

decisions are uncommon. See Forrester v. White, 792 F.2d

647, 663 (7th Cir.) (Posner, J., dissenting), rev'd, 484 U.S. 219

(1988). The chances of a law clerk's suing a judicial employer

are even smaller in light of the harm such a lawsuit could do

to the clerk's career. Indeed, even with this Court's 1988

Forrester decision permitting damages actions against judges

for their employment decisions and Sheppard Is 1994 ruling

ostensibly permitting law clerks to sue judges under

Forrester, the undersigned has been unable to find any other

case, state or federal, before or after 1988 in which a law

clerk sued a judicial employer on any grounds. And now

that the lower courts through their various published

decisions in this case have reinforced the notion that a law

clerk's attempts to correct improprieties of the part of the

judiciary will only serve to hurt the law clerk's career (e.g.,

App. 36a, 45a n.3; Pet. Sheppard IITC.A. Br. 20-22, 27-28), it

is hard to imagine that there will ever again be litigation

before this Court which will enable it to review such ques-

tions as the right of privacy of law clerks and the right of

law clerks to object to judicial misconduct, much less to

correct the damage done by Sheppard I and Sheppard III.

B. No One Else Will Deal With Clandestine, Improper

Attempts by Judges and Prosecutors to Obtain Con-

victions

Nor is there any reason to believe that the problems

raised in Petitioner's speech will be addressed properly by

anyone other than this Court. The New York Commission

on Judicial Conduct has been described as a "quasi-indepen-

27

dent" body that bends to the winds blown by those at the

highest levels of power in New York. Joyce Purnick, Judge

Wins This Round by Losing, N.Y. Times, Apr. 24, 1996, at B1.

A prosecutorial supervisor testified at his deposition that

even his office does not complain to that commission or

appellate judges about trial judges who engage in misconduct

because judges "want to protect their own," and because a

complaint would only result in retribution. (App. 178a-181a.)

The New York State Bar Association recently rejected a

proposal that lawyers be required to report serious miscon-

duct on the part of judges, as the lawyers feared retribution

from judges on whom they might report. Monroe H. Freed-

man, The Threat to Judicial Independence by Criticism of

Judges--A Proposed Solution to the Real Problem, 25 Hofstra

L. Rev. 729, 729-30 (1997). Various judges and law clerks

testified at their depositions to their inability to recall situa-

tions in which: New York Supreme Court justices were

disciplined for improper conductin criminal cases; New York

judges reported prosecutors to attorney disciplinary commit-

tees; or New York prosecutors were disciplined by such

committees for actions taken as prosecutors.

Nor is there any reason to believe that the press will do

anything. As a fellow Stanford law graduate and then

primary New York Times legal columnist advised Petitioner

a year prior to Petitioner's discharge, the press is not interest-

ed in judges who violate their oaths against criminal defen-

dants. (/d. at 503-04.)

C. There Is No Reason to Believe These Problems Are

Limited to New York

Nor is there any reason to believe that the problems

raised in Petitioner's speech exist only in New York. In

recent times, judges in Chicago and Philadelphia on a mass

scale have committed crimes to help criminal defendants.

Why would it come as any surprise, then, that judges would

violate their oaths against criminal defendants, where the

Press is uninterested, the judges need commit no crimes, and

prosecutors are actually involved in the misconduct? Indeed,

28

mass judicial misconduct takes place because judges, lawyers,

and members of the press who know about it keep silent.

Mervin Block, Judges and the Press: The Power to Suppress,

16 Loy. U. Chi. LJ. 445, 445-49 (1985); Anthony R. Valukas,

The Lesson of Greylord: Many Lawyers and Judges Tolerate

Brethren Who Cheat and Lie, 14 B. Leader 13, 14 (May-June

1986). As Judge Posner has observed, "Judges tend to be

rather clubby. Even when there are severe ideological

disagreements, they tend to close ranks against the outside

world." Christine C. Biederman, Jn Center of Judicial Storm

Is a Federal Judge in Texas, N.Y. Times, Nov. 5, 1995, § 1, at

24. Nor do prosecutors have any cause to fear repercussions

from their misconduct against criminal defendants. Monroe

H. Freedman, Professional Discipline of Prosecutors: A Re-

sponse to Professor Zacharias, 30 Hofstra L. Rev. 121 &

articles cited therein (2001).

D. Denial of Certiorari Will Proliferate Misconduct

In Mapp v. Ohio, 367 U.S. 643, 659 (1961), this Court

approvingly quoted most of the following language from

Justice Brandeis's famous dissent in Olmstead v. United

States, 277 U.S. 438 (1928):

Our Government is the potent, the omnipresent teacher.

For good or for ill, it teaches the whole people by its

example. ... If the Government becomes a lawbreaker,

it breeds contempt for law; it invites every man to become

a law unto himself; it invites anarchy. To declare that in

the administration of the criminal law the end justifies the

means .. . would bring terrible retribution. Against this

pernicious doctrine this Court should resolutely set its

face.

Id. at 485. Violations of the Constitution and other laws on

the part of judges and prosecutors only breed or necessitate

still further violations and false denials thereof on the part of

themselves and their colleagues. Indeed, now that, through

this lawsuit, Petitioner has managed to air some of the issues

29

to some extent, if this Court does not grant certiorari to set

right what the lower federal courts have said and done in

this case, how much more likely will it be that judges and

prosecutors, including some who may not have indulged

before, will engage in misconduct of the sort concerned

herein, not only safe in the knowledge that the federal courts

will do nothing to intercede, but with those courts! implicit

approval of such misconduct?

E. The Misconduct at Issue Does Not Harm Only Guilty

Criminal Defendants

When this Court stated in Mapp that "[t]he ignoble short

cut to conviction left open to the States tends to destroy the

entire system of constitutional restraints on which the

liberties of the people rest," it was referring to Fourth

Amendment violations. 367 U.S. at 660. But the types of

constitutional violations involved here--judges taking various

surreptitious steps, including ex parte communications with

prosecutors, to enhance the likelihood of conviction®--create

the risk of convicting innocent persons. Indeed, not only is

this risk present where judges and prosecutors--who by

definition do not have all available information prior to trial--

decide to violate the law to increase the chances of convicting

a person they believe to be guilty,* but such improper

behavior is hardly limited to such situations. Here, for

example, in one of the two cases in which Respondent was

engaging in misconduct at the time of Petitioner's discharge,

Respondent had announced to Petitioner his intention to do

all he could to ensure the defendant's conviction as soon as

“Republican Party of Minnesota v. White, 122 S. Ct. 2528, 2535 (2002);

Yohn v. Love, 76 F.3d 508, 516-17 (3d Cir. 1996); United States v. Minsky,

963 F.2d 870, 874 (6th Cir. 1982).

“In the case which was the immediate impetus of the argument

between the parties, after the ex parte attempt by Respondent and the State

to have an immediate murder trial was thwarted by Petitioner's actions,

the State ultimately dismissed the charges against the defendant, who

would have received a life sentence if convicted.

30

Respondent learned of the defendant's rearrest, as Respon-

dent was angry about the rearrest. See supra pp. 2-3; Liteky

v. United States, 510 U.S. 540, 555 (1994).

The exoneration of wrongfully convicted defendants

normally is the product of pure luck. James S. Liebman, The

Overproduction of Death, 100 Colum. L. Rev. 2030, 2048-51

n.84 (2000). But the sorts of constitutional errors involved

herein will never surface in individual cases, much less en

masse, unless an insider like Petitioner blows the whistle.

The problem is exacerbated by the many procedural road-

blocks erected by this Court to habeas corpus petitions on the

assumption--rendered dubious by the instant case--that state

judges and prosecutors conscientiously attempt to follow

federal law, e.g., Brecht v. Abrahamson, 507 U.S. 619, 635-36

(1993), and by this Court's recent decision in Republican

Party of Minnesota v. White, 122 S. Ct. 2528 (2002), which

removes state-imposed barriers to judicial candidates’

campaign statements about the likelihood that criminal

defendants before them will be convicted. See id. at 2536 n.7,

2538-39; id. at 2542 (O'Connor, J., concurring); Liebman,

supra, 100 Colum. L. Rev. at 2069 & n.115, 2111-14.

CONCLUSION

The Petition for a writ of certiorari should be granted.

Respectfully submitted,

/BRIAN SHEPPARD, ESQ.

Counsel of Record for Petitioner

516 N. 9th Street--Second Floor

New Hyde Park, NY 11040

June, 2003 (516) 358-7599