THE 8TH U.S. CIRCUIT Court of Appeals is in many ways a wonderfully diverse circuit, stretching from the Canadian border states of Minnesota and North Dakota on south to Arkansas. Like most other circuits, it handles a wide array of cases in the course of a year. This article will provide a sampling of recent significant cases from four topical areas, including constitutional law, Federal Sentencing Guidelines, child custody and international law and attorney discipline.
In ACLU Nebraska Foundation v. City of Plattsmouth, 358 F.3d 1020 (8th Cir. 2004), the 8th Circuit staked out its initial position on the ongoing controversy over whether displays of the text of the Ten Commandments in government-owned public spaces violate the establishment clause of the First Amendment.
Over the years there have been several such cases in other circuits. Many of them have involved “monuments” inscribed with a “nondenominational” version of the text of the commandments (an “amalgam of those used in the Protestant, Catholic and Jewish religions”), 358 F.3d at 1026, donated by the Fraternal Order of Eagles. These donations were part of a project undertaken by that organization (with support from Hollywood producer Cecil B. DeMille), primarily in the 1950s.
The Plattsmouth, Neb., monument was donated in 1965 and erected in a corner of a 45-acre city park in 1966. Its constitutionality was challenged in 2001 by a Plattsmouth resident selfdescribed as an atheist who “does not share the religious beliefs expressed on the monument” and who “feel[s] like a second class citizen” because of it, 358 F.3d 1026, and by the local chapter of the American Civil Liberties Union. The U.S. District Court for the District of Nebraska found that the monument violated the establishment clause, primarily on the ground that it failed the second prong of the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971). That prong requires that the “primary effects” of a challenged government action must neither advance nor inhibit religion.
In an opinion by Judge Kermit Bye, the 8th Circuit affirmed, finding not only that the city’s display of the monument in a city-owned park had the “primary effect” of “steer[ing] its citizens in the direction of mainstream Judeo-Christian religion,” 358 F.3d at 1042, but also that the city “ha[d] a solely religious purpose for installing or maintaining the monument,” id. at 1039, thus violating the “secular purpose” prong of the Lemon test as well.
In a partial dissent, Judge Pasco M. Bowman II challenged the panel majority for finding a solely religious purpose when the district court had only been able to say that the evidence of the city’s purpose in accepting and displaying the monument was inconclusive. The dissent argued that the majority had paid too much heed to the mere nature of the monument’s text and not enough to the context of the display (e.g., a gift from a private entity displayed in a corner of a large park rather than at City Hall).
As the majority itself acknowledged, at the time of its decision “[f]our courts of appeal and one state supreme court have considered whether public ownership and display of an Eagles Ten Commandments monument passes the Lemon test,” 358 F.3d at 1034, with the 5th and 10th circuits and the Colorado Supreme Court upholding the constitutionality of the displays before them, but with the 6th and 7th circuits finding theirs constitutionally infirm. The 8th Circuit opinion temporarily evened the Fraternal Order of Eagles score at 3-to-3. But on April 6, the full 8th Circuit granted a petition for rehearing en banc, vacating the panel decision and setting the matter for reargument. So, stay tuned.
Examining Criminal Conduct
Like most of the federal courts of appeals, nearly half of the cases (47% in 2002) handled by the 8th Circuit in a given year are either criminal appeals or prisoner-initiated matters. Several of these involve issues that arise under the federal sentencing guidelines, and a recent one of particular note was United States v. Stolba, 357 F.3d 850 (8th Cir. 2004).
In Stolba, an investment advisor had embezzled client funds and given out fraudulent account statements. When a client became suspicious and threatened to complain to the authorities if the advisor did not come up with the appropriate documentation, the advisor called his office manager at home on a Saturday, said he was in “big trouble” and asked her to delete certain statements from the computer system at his business when she got to work the next Monday, which she did.
On that same Monday, the client sent a letter to the authorities, who opened an investigation three weeks later. The authorities were able to retrieve the records from the computer despite the attempted deletion; the advisor eventually pleaded guilty to mail fraud; and the U.S. District Court for the District of Minnesota imposed a two-level upward adjustment in his sentence for obstruction of justice. In making the upward departure, the district court relied on § 3C1.1 of the Federal Sentencing Guidelines, which requires such an adjustment if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation.” U.S.S.G. § 3C1.1(A).
On appeal, the 8th Circuit reversed and remanded for resentencing. The court held that, under the guidelines, the obstruction of justice had to take place “during the course of the investigation” and not before it had begun, as had happened here. The court acknowledged that the U.S. Sentencing Commission’s commentary to the guideline in question states, in one example, that it would apply if a defendant engaged in such obstructive conduct “upon learning that an official investigation has commenced or is about to commence,” but it felt constrained to hold as it did because of the plain language of the guideline itself, along with other commentary that also emphasized that the conduct in question “must occur during the investigation.” 357 F.3d at 852.
As the court noted, this ruling places the 8th Circuit in conflict with the 10th and D.C. circuits, which have previously ruled that the adjustment may apply “even when the relevant obstructive conduct takes place before the beginning of an investigation.” 357 F.3d at 853. It also overrides dicta in a recent 8th Circuit case, United States v. Orchard, 332 F.3d 1133 (8th Cir. 2003), in which the court had previously noted the guideline’s use of the term “during” but had nonetheless opined that the adjustment requirement also applied to conduct occurring before the official investigation had commenced.332 F.3d at 1138, n. 3.
Custody, War Zones
It is not often that a federal court of appeals sits en banc to determine what amounts to a child custody dispute, let alone one in which it must decide whether the State of Israel is in a “zone of war.” In Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003), however, the 8th Circuit did just that. A family living in Minnesota sold its home and moved to Israel. The mother flew back to the United States with the children on a “summer trip,” but while there filed for divorce and custody in Minnesota. In Israel, the father began proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, and filed an action in federal district court in Minnesota under the International Child Abduction Remedies Act (ICARA), seeking return of the children to Israel under the convention.
An Israeli court ruled that Israel was the “habitual residence” of the children within the meaning of the convention, and that the mother’s failure to return them amounted to “wrongful retention” in violation of the convention. 338 F.3d at 891. Meanwhile, the Minnesota state court, although “on notice” of the pending Hague Convention proceedings, decided the custody issues in the mother’s favor, applying only Minnesota law in doing so. No appeal was taken from this state court judgment. The U.S. District Court for the District of Minnesota later also ruled in the mother’s favor, finding that Minnesota was the “habitual residence” of the children, and, alternatively, that even if it was not, there was “grave risk” in returning the children to Israel, and therefore an exception to the convention applied, because, in part, the violence in Israel made it a “zone of war.” 338 F.3d at 892-3.
A divided panel of the 8th Circuit affirmed the district court, but a petition for en banc rehearing was granted. The en banc court reversed on a 7-5 vote. The majority, in an opinion authored by Judge C. Arlen Beam, first held that there was no Rooker-Feldman problem (the doctrine that prevents the lower federal courts from reviewing and overturning state court judgments) because that doctrine did not apply to Hague Convention and ICARA matters, and because the Minnesota state court had applied only Minnesota law and had not made the determinations necessary under the convention. 338 F.3d at 893-6. It then ruled that the “habitual residence” determination was to be reviewed under a de novo standard, and held that, viewing the matter from the children’s viewpoint— as the convention required—Israel was their “habitual residence” within the convention’s meaning. Id. at 896-900.
The majority also held that the district court had erred in declaring Israel to be in a “zone of war” such that the “grave risk of harm” exception applied, in part because there was no evidence that the children were in any danger there specific to them, as it held the convention requires (as opposed to “general regional violence, such as suicide bombers, that threaten[s] everyone in Israel”), and because there was no showing that they were in any more danger there today than when their mother had voluntarily moved them there. 338 F.3d at 900-901.
The principal dissent, authored by Senior Judge Gerald W. Heaney, did not disagree with the Rooker- Feldman holding, but would not have overturned the district court’s determination of Minnesota as the “habitual residence” (because it would have applied a “clear error” standard to such a determination). It also would have at least remanded for determinations of whether the children were of sufficient maturity to have their views taken into account, and for a determination of whether any psychological harm would be caused by an order to return to Israel; these are determinations, the dissent pointed out, that the convention permits but the majority did not heed.
Attorney Discipline
The final case in this brief sample involved attorney discipline, with the 8th Circuit affirming the district court’s imposition of evidentiary sanctions. In Midwest Motor Sports v. Arctic Cat Sales Inc., 347 F.3d 693 (8th Cir. 2003), a franchisee sued its franchisor over what it alleged to be an unlawful franchise termination. One of the issues was damages, and, in addition to propounding formal discovery, the attorneys for the franchisor hired a former FBI agent as a private investigator to go to both the former franchisee and its replacement store undercover, wearing a hidden recording device, to “elicit specific admissions from... employees about sales” relevant to the damages claims. Both stores were represented by counsel in the matter.
Even though the law of the relevant state (South Dakota) did not prohibit electronic recording by one party to a conversation without the knowledge or consent of the other party, and even though the American Bar Association had recently changed its formal opinion concerning such recordings, saying in the new opinion that it was not necessarily a violation of its ethical rules for lawyers to make such recordings where not forbidden, the 8th Circuit still found the conduct here to be unethical and sanctionable.
The court noted that South Dakota had adopted the ABA Model Rules of Professional Conduct, and so was guided by those rules (thus making its decision of broader interest than merely the South Dakota bar). The court considered Model Rule 4.2, prohibiting lawyer communication with a person the lawyer knows to be represented by another lawyer in the matter; Model Rule 5.3, prohibiting lawyers from doing through an agent what they may not do directly; and Model Rule 8.4(c), prohibiting “conduct involving dishonesty, fraud, deceit or misrepresentation,” and found them all to have been violated.
In so holding, the court rejected the contention of the lawyer for the franchisor, who argued that they were only seeking damages information they should have been able to obtain through formal discovery methods, the use of which had been tried by the franchisor’s attorney but frustrated by opposing counsel. The court wrote that “[i]t is for this very reason that our system has in place formal procedures, such as a motion to compel, that counsel could have used instead of resorting to self-help remedies that violate the ethical rules.” 347 F.3d at 700.
The court did not grant the franchisee’s cross-appeal for monetary sanctions in addition to the evidentiary ones imposed by the U.S. District Court for the District of South Dakota (barring use of the recordings and all information gleaned from them). It stated, however, that it had refrained from imposing monetary sanctions only because the local law on use of investigators to obtain employee admissions, and the ABA’s views on use of hidden recordings, had been in flux at the time of the egregious conduct. Nonetheless, it admonished “all members of the
Bar that the obligations and duties of lawyers in our society demand conduct of the highest moral character.” 347 F.3d at 701.
This article is reprinted with permission from the May 3, 2004 issue of the National Law Journal. Copyright 2004 ALM Properties Inc. Further duplication without permission is prohibited. All rights reserved