Supreme Thrill

For a lawyer, arguing a case before the highest court in the land brings supreme satisfaction

Published in 2006 Oregon Super Lawyers Magazine — November 2006

On Howard Feuerstein’s big day in court—the highest in the land—his wife had
dozed off in the spectator section just before his turn at the bench. The Portland
attorney could only hope his argument would be riveting enough to keep her—and
the nine justices—awake.
 
Of the thousands of attorneys practicing in Oregon, Feuerstein is one of a select
few who have argued cases before the U.S. Supreme Court. Despite its indisputable power, the high
court has an intimate feel, the three lawyers in this story agree.
 
“I expected it to be like me standing there looking up at Mount Sinai,” says Timothy Volpert.
Instead, he found himself “very close to the justices, almost on their level. It’s like a sophisticated inner
party in terms of the closeness.”
 
Notes Bill Gary, “There’s an excellent sound system. You can speak in a low voice and be heard.”
 
Attorneys painstakingly prepare cases for the Supreme Court, supported by teams of colleagues
toiling for months in advance. Still, they often get to present just the briefest portion of their prepared
statements. Most of their time goes toward answering the justices’ questions—which often serve as
arguments among the justices themselves. Justices inclined to disagree with a lawyer may ask questions
designed to tear down a line of reasoning. Those in agreement may ask questions meant to bolster the
case and short-circuit other questions that could detract from it.
 
Another point upon which the lawyers concurred: The 30 minutes allotted to argue a case fly by.
 
 
Facing Facts
On February 26, 1969, Earl Warren’s court, which set many important precedents in criminal matters, heard a case that began with a murder in Clackamas County, Ore. The trial raised important questions about a defendant’s right to face and question witnesses against him.
 
Martin Rene Frazier, the accused, had no criminal record. “He’d been raised by his mother, who’d been very ill throughout his youth,” says Howard Feuerstein. “She treated him rather poorly, but he still seemed quite close to her.
 
“He left and joined the Marines. Once, when she was particularly ill, he took absence without leave to go visit her. When he got back from being AWOL, they threw him in the brig. But then he got leave to go back home when she died, for her funeral. Back home, he stayed with a cousin.”
 
The night before the funeral, says Feuerstein, the pair went out drinking. “They picked up some other guy at the bar. There were allegations that that guy made homosexual advances and that they beat him up. He was found strangled.”
 
Frazier and his cousin were accused of the crime but tried separately. “The evidence indicated fairly clearly that the cousin had strangled the man. There were fingernail marks on the neck of the deceased,” says Feuerstein, adding, “My client bit his nails. He really had no nails. But the DA had gotten a statement from the cousin saying that my client had killed the man.”
 
Before the trial, the cousin stated that he wouldn’t testify if called to do so. On the morning of the trial, though, the district attorney got word from the cousin’s relatives that he would testify if summoned.
 
When the trial began, the district attorney paraphrased the cousin’s confession that indicated Frazier had committed the murder, then called the cousin to the stand. The cousin refused to testify. He couldn’t, therefore, be questioned.
 
Frazier was convicted, but a federal district court tossed out the conviction. The federal appeals court, however, sided with the lower court. Feuerstein and another attorney represented Frazier on a pro bono basis before the federal appeals court and also the U.S. Supreme Court.
 
“Our primary allegation in bringing this case before the Supreme Court was that Frazier had been denied the opportunity to confront the witness,” says Feuerstein. “We alleged that the case was about the right of confrontation. Evidence had been put before the jury that the defense could not refute.” Feuerstein and his colleagues hoped that this case might set an important new precedent regarding a person’s right to confront a witness.
 
At the time of the U.S. Supreme Court case, Feuerstein was only 29. He had been practicing law just long enough—five years—to appear before the nation’s highest court. He figures he was one of the youngest lawyers to argue a case in that rarefied air.
 
Feuerstein expected his opponent at the U.S. Supreme Court to be the county district attorney, but someone with more experience was brought in to argue the case. That someone turned out to be Arlen Specter (now a U.S. senator from Pennsylvania). Specter argued that a prosecutor needs flexibility in making opening statements and shouldn’t be required to let the defendant confront every person mentioned.
 
Feuerstein’s case was the third scheduled that morning. He knew that when his time was up, a little red light would come on—and also that the court took a noon lunch break. “About halfway into my argument the light came on for lunch. I was escorted into a private room where they served me lunch. I can’t say I ate much.”
 
Though Feuerstein was too excited to eat, his wife, sitting in the public areas, had nodded off before her husband pleaded his case. “You are not allowed to sleep in the galleries. They will kick you out,” he notes with a chuckle. Although arguments at the high court often turn highly contentious today, at the time a very civil atmosphere prevailed. After the arguments, Justice Warren warmly thanked Feuerstein, noting the young lawyer was working as a public service.
 
Although his side lost—“a real disappointment”—Feuerstein, who has worked for more than 40 years for Stoel Rives (and its predecessor, Davies, Biggs, Strayer, Stoel and Boley), remembers the day fondly. A couple of years later, he left trial work and switched to real estate law. He looks back on that experience as “a part of my career that I feel really good about.”
 
 
A Crack at the Court
During the years Bill Gary spent working for then-Oregon Attorney General David Frohnmayer, an unprecedented number of Oregon cases reached the U.S. Supreme Court.
 
Gary and Frohnmayer once attended a conference of Western attorneys general in Juneau, Alaska. “We went out with some other AGs to the Red Dog Saloon,” he recalls. “Over a beer, the attorney general of North Dakota asked Dave when he’d let me have a turn arguing a Supreme Court case. Dave said, ‘It’s time Bill had a crack at it, and I’m going to give him the next case.’
 
“I, being a lawyer, saw an opportunity and immediately wrote out a contract on a napkin. I had Dave sign it with the AG of North Dakota as a witness.” When they got back to their office the following Monday, they learned that the Supreme Court had agreed to hear another one of their cases. “Dave said, ‘Hot dog! I am going back to the Supreme Court,’” Gary recalls. “I said, ‘Not so fast’ and pulled out my ‘contract.’ He had to admit that the argument was mine.”
 
Today Gary serves as president of Harrang Long Gary Rudnick, a firm with offices in Eugene, Portland and Salem. He joined the firm in 1989.
 
The case that took him to Washington, D.C., in the late 1980s became famous as the Peyote Case. Officially, it was Employment Division, Oregon Department of Human Resources v. Smith. Alfred C. Smith and his codefendant, Galen W. Black, were both American Indians. Their religion, which predates the U.S. Constitution by millennia, involved ritualistic ingestion of the hallucinogen peyote. Both men had worked at a drug-rehabilitation facility in Roseburg where counselors were required to abstain from alcohol and drugs.
 
“They informed their employer that they would be using peyote” and were fired, says Gary. “The question in the case was whether they were entitled to unemployment benefits after disregarding the rule of their employer. Nobody was prosecuting them for using peyote, although the question of whether it was legal for them to do so was an unresolved issue.”
 
In an earlier Supreme Court decision, the court had upheld the right of a Seventh Day Adventist to refuse to work on Saturday. “We argued that our case was different, because there is no law regarding the refusal to work on Saturday. But there is law that makes peyote use illegal,” he says.
 
Ultimately, the court ruled that there is no constitutional right to disregard a criminal law because of religious belief.
 
“It was a fairly important case and caused some uproar,” Gary notes. The Institute for First Amendment Studies, among others, decried the decision, saying it would have sweeping implications for other church-and-state cases. Specifically, critics noted that churches served wine, even to minors, without a license, and that Jews served wine to minors on the Sabbath and holidays. The court had not forbidden churches and temples to serve wine, even during Prohibition.
 
After the decision, Congress passed the Religious Freedom Restoration Act, signed into law in 1993 by President Bill Clinton. A later Supreme Court decision found the RFRA unconstitutional, but legislation patterned on that law has been reborn at the state level as the debate continues over church-and-state separation. “The Supreme Court doesn’t take easy cases,” notes Gary, “only the hardest cases, the most important ones, where you have conflicting values to be resolved. This really allows you to plumb the depths of legal analysis.”
 
 
Private Affairs
Timothy Volpert appeared before the Supreme Court on March 28, 1995, to argue a high-profile case involving the Fourth Amendment guarantees of privacy and protection against unreasonable searches.
 
Since then, Volpert has become active in a program to teach high-school students constitutional law. It’s called We the People: The Citizen and the Constitution. The Center for Civic Education sponsors it.
 
He describes one technique he sometimes uses with a group of students. “I’ll pick a kid in the front row and say, ‘Would you please come up and empty your backpack on the desk here?’ They just do it. Then I say, ‘Why in the world would you do that? Aren’t you entitled to any privacy?’”
 
“It’s a wonderful starting point for me to talk to young people about the need for individuals to have some protection against the government’s power. I explain why the work of the ACLU [American Civil Liberties Union] is so important.” Volpert practices litigation as a partner at Davis Wright Tremaine, where he has worked since 1983.
 
In Vernonia School District v. Acton, though, Volpert argued against the ACLU. The district, a very poor one with about 40 percent of students receiving subsidized lunches, faced a massive drug problem. School district administrators believed that athletes were the main culprits, recalls Volpert. The administrators learned about another district that had begun randomly drug testing athletes’ urine and decided to follow suit.
 
If an athlete’s urine tested positive, there were “no academic sanctions, nothing on his permanent school record and no criminal sanctions, but there were levels of disqualification from the sports program,” Volpert says. A seventh-grade football player named James Acton challenged it with support from the ACLU. In the Northwest, the 9th Circuit Court of Appeals found that the program violated the constitutions of both Oregon and the United States.
 
However, when a similar dispute arose in Indiana, the 7th Circuit Court of Appeals ruled the testing legal. With this split in the circuits, the Supreme Court agreed to hear the case. Such a regional disagreement, notes Volpert, “is one of the primary ways to get the Supreme Court to take a case.”
 
Having a case accepted for review by the Supreme Court represents a significant accomplishment in itself. “It is very rare. It’s a lightning bolt,” says Volpert. This case was novel, he says. “The question it raised was, ‘Can you have a search without any suspicion of drug use?’ It was especially novel because it involved a school.” The court had ruled in prior cases that public school students had constitutional rights, but fewer than the general public.
 
The minute the Supreme Court announced it would hear the case, says Volpert, he started hearing from journalists. At the same time, Washington, D.C., lawyers who specialized in arguing cases before the Supreme Court started calling, offering to handle it.
 
He considered hiring one, but only briefly. “When you realize your case has national significance, you step back and wonder. My colleagues were supportive of me doing it. So was my wife, who’s also a lawyer.”
 
Vernonia School District v. Acton came up as the first case of the day. “I got 12 seconds into my argument, and I was interrupted with a question from Justice Souter,” recalls Volpert. “The rest of my argument was answering questions. It was very fast-paced.”
 
Volpert’s argument carried the day. The Vernonia school district won the right to continue its drug-testing program. As the years have passed, though, routine drug testing has not been a major part of the efforts schools make to curb drug use. “Very few schools in Oregon and few nationwide” continue to use the tests, he says, noting the programs are costly and difficult to administer. Also, the scientific evidence that once seemed to show that the programs were effective has since grown more uncertain.
 
Regardless of the practical implications of his case, says Volpert, appearing before the Supreme Court proved to be “everything that people told me it would be—intense and completely, utterly exhilarating.”

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