Utah Bar Journal

Privately, however, the mood was a bit more subdued. The United States Supreme Court? The big guys? Virtually every case handled by the office goes no further than the Utah Supreme Court. By one estimate, the State's last cert petition to the U.S. Supreme Court on an issue of criminal law was 17 years ago. And that one was denied. What chance do we have now? Shouldn't Jeff just let this one go?

"I never thought he'd get cert, but it couldn't hurt to try," said Assistant AG Joanne Slotnik. But "[w]hen Jeff aggressively garnered so many states as amici, I felt much more encouraged."

Ultimately, the U.S. Supreme Court not only granted cert, but also agreed with Jeff about as thoroughly as the court agrees on anything. By a 9-0 vote, the court adopted the State's position and, in doing so, clarified the scope of warrantless searches under the emergency aid and exigent circumstances doctrines.

Now, five months later, it's time to ask a pertinent question: What was he thinking?

In a sense, the saga began on February 18, 2005, the day the Utah Supreme Court weighed in on Brigham City v. Stuart. It is fair to say this was not a good day for anyone in the office, Jeff in particular. Jeff had received the customary phone call the day before informing him that the opinion was to be released the next day. Accordingly, Jeff arrived at work bleary-eyed from a fitful night of worrying about the case and a little apprehensive about the strong possibility that he was about to get skunked.

"I'm usually a sound sleeper, even when I have something important the next day. But it had taken more than eight months after oral argument for the Court to issue an opinion, and oral argument had not gone well. This was an important case we could not afford to lose. Officers deal with domestic violence on a daily basis. I felt a loss would severely hamper their ability to effectively deal with violence. I was already thinking cert."

In taking the case to the Utah Supreme Court, Jeff had hoped to undo at least some of the concerns raised by earlier rulings from the trial court and then from the Court of Appeals. In the State's view, the legal issues presented in Brigham City were very straightforward. Should police officers be required to wait until violence becomes life-threatening before entering a home in order to break up a fight? Brigham City police had responded to a loud party complaint at 3 a.m.2 When they arrived, they quickly determined that some kind of physical altercation was occurring inside. Their investigation led them into the back yard. After entering the back yard, the officers watched through windows and a screen door as four adults attempted to pin a juvenile against a refrigerator. When the juvenile freed his hand and socked one adult in the nose, the officers opened the screen door and yelled "Police!" When no one inside heard, the officers entered the home and stopped the fight. In addition to arresting the juvenile, the officers arrested the adults, who were charged with contributing to the delinquency of a minor, disorderly conduct and intoxication.

Defense counsel filed a motion to suppress all the evidence seized inside the home, claiming the search was illegal under the Fourth Amendment to the U.S. Constitution. Brigham City countered that the search was legal because the officers entered the home based on probable cause - an ongoing assault - and exigent circumstances. The trial court disagreed, holding that the officers should have knocked, even though the "loud, tumultuous thing going on" inside would probably have made it impossible for anyone to hear a knock.3 The trial court granted the motion to suppress and the Utah Court of Appeals affirmed.

It was at this point that Jeff became involved. Because the case concerned misdemeanors, the matter was not handled initially by the AGÕs Criminal Appeals Division, which generally handles appeals of felonies only. But in the wake of the Court of Appeals' Brigham City opinion, it became clear that the case was, from the Office's perspective, a precedent that needed to be overturned.

After receiving authorization from the Brigham City Attorney, Jeff petitioned for certiorari to the Utah Supreme Court, which was granted. This was taken as a positive sign. However, any initial optimism about the court's decision to accept cert was largely dissipated after oral argument.

The court's Brigham City opinion was disappointing, but not entirely surprising. By a 3-2 margin, the Utah court affirmed the Court of Appeals' decision, but with a new component. The court agreed that there were no exigent circumstances warranting the officers' entry into the home.4 The court also concluded that the entry was not justified under the so-called "emergency aid doctrine" Ð a theory the State had not briefed. According to the Court, "the circumstances known to the officers at the time of entry did not create a reasonable belief that emergency aid was required."5

As explained by Fred Voros, Criminal Appeals Division Chief, the court's discussion of the emergency aid doctrine was "a little unexpected. Although the dissenting opinion in the court of appeals had suggested that the officers' entry was justified by Utah's emergency aid doctrine, we had made a strategic decision not to argue it. In fact, the words 'emergency aid' did not appear in our brief."

It's fair to say that Jeff was miserable. Brigham City was a fairly constant topic of conversation and Jeff immediately wanted to take the case to the ultimate tribunal. But petitioning for certiorari to the U.S. Supreme Court is a daunting task. By some estimates, the Court receives more than 6,000 petitions a year. Yet, it grants only about 100. The cert petition is perhaps the single most important document to be filed with the Court. Telling the Court why the opinion was wrong is important, but insufficient. The petitioner must convince the Court that the case is of widespread importance. A former Chief Justice explained it this way: "What the Court is interested in is the actual, practical effect of the disputed decision - its consequences for other litigants and in other situations. A petition for certiorari should explain why it is vital that the question involved be decided finally by the Supreme Court. If it only succeeds in demonstrating that the decision below may be erroneous, it has not fulfilled its purpose."6

Given this task, the decision to file a cert petition was not immediate.

"At this point, Jeff proposed filing a cert petition in the United States Supreme Court," Voros recalled. "I told him I didn't see how we could interest the Court in such a fact-bound case. I didn't see a broad issue of national importance in it. I was convinced that our court had ruled incorrectly, but that's not enough to interest the Supreme Court in a cert petition. Jeff retreated to his office to think about it."

About a week later, Jeff suggested that the Supreme Court might be interested in addressing the emergency aid doctrine. Researching the issue for the first time, Jeff discovered a split in both the states and the federal circuits on the question of how the emergency aid doctrine works. "Nothing catches the Supreme Court's attention faster than a circuit split," Voros noted. "We had an issue. We were on our way."

After filing the cert petition, the next order of business was finding a state willing to file an amicus, or "friend of the court," brief on our behalf. The importance of amicus support at the certiorari stage cannot be overstated. One study has shown that the participation of an amicus at the certiorari stage increased the acceptance rate from 8.5 percent to 26.7 percent.7 The National Association of Attorneys General (NAAG) has found that the acceptance rate is even greater when a petitioning state receives amici support. Some states expressed passing interest, but there were no willing participants until Voros called his friend, Tim Baughman, an attorney with substantial Supreme Court experience from the Wayne County Attorney's Office in Michigan. Baughman agreed and, in about four hours, hammered out a proposed brief. In the ensuing week, two additional counties and attorney generals from sixteen states agreed to sign onto the brief. A couple of key states agreed to sign on after Mark Shurtleff made some personal telephone calls to his fellow attorneys general.

On Friday morning, January 6, 2006, the court responded. The petition was granted.8

"I think we all knew when the Supreme Court would conference on the case, and so I think we knew the day, or at least approximate day, when Jeff would hear if cert was granted," recalled Chris Ballard, an assistant attorney general in Criminal Appeals. "Both Joanne [Slotnik] and I were in our offices, adjacent to Jeff's, when the call came. I remember both of us listening very carefully when the call came. Jeff was calm and collected on the phone. I remember him saying something like, 'Yes. Okay. Thank you.' Then he hung up and I heard Jeff say, in an almost disbelieving tone, 'They granted. They granted it.'"

Jeff's take was a little different: "When our secretary, Lee Nakamura, informed me that a clerk from the U.S. Supreme Court was on the line, I could hardly contain myself. However calm I may have seemed on the telephone, I was bursting with excitement inside. This was so important for law enforcement and, for me, it was a personal dream come true."

Even though Jeff had argued the case in the Utah Supreme Court as well as preparing and filing the petition for certiorari, it was not a given that he would be the one to argue the case in the U.S. Supreme Court. In many states, the attorney general him - or herself argues cases in the high court as a matter of course. Utah Attorney General Mark Shurtleff considered making the argument, but ultimately deferred to Jeff.

"To be honest, my elation at the cert grant was tempered when Attorney General Mark Shurtleff told me in an email that I would have to 'arm wrestle' him for the opportunity to argue the case. I had vigorously pursued the case since learning of the Court of Appeals opinion, I was passionate about the law, and arguing before the Supreme Court was a dream I never imagined would be within my grasp. Yet, I knew who had the 'might' to win an arm-wrestle. Mark was, after all, my boss and the official publicly elected to represent the State. He would be well within his rights to argue the case."

The following Tuesday, Shurtleff met with Jeff and Fred Voros to announce his decision: Jeff would argue the case.

"I am not typically an emotional person," Jeff recalled, "but I was overwhelmed. I will ever be grateful that Mark allowed me to pursue the case to its end. I know it was a difficult decision for him. He, too, coveted the opportunity to argue before the High Court and, he had the power to do so. Yet, he deferred to me."

With cert granted, the work began. Save for a case or two, Voros cleared Jeff's calendar for the next four months. Others within the division absorbed Jeff's normal caseload. The case was set on a tight briefing schedule. Brigham City was among the six cases granted that day which would complete the oral argument calendar for the 2005-2006 term. There would be no room for continuances. Jeff's brief was due February 21, the respondents' brief March 28, and Jeff's reply April 17 - one week before oral argument.

Jeff's petition for cert had merely identified the circuit split without analyzing the issue; it had not discussed the merits of emergency entries by police officers. Jeff was eager to do so in his brief. "I had never believed that the emergency aid doctrine comported with Fourth Amendment jurisprudence. It was too narrow and overly rigid. I always believed that emergency aid entries should be judged against the standard used for other safety exigencies. I did not argue emergency aid in the Utah Supreme Court because I knew that the circumstances in Brigham City would not satisfy Utah's narrow exception. The cert grant provided me the opportunity to challenge the doctrine."

At Fred's suggestion, Jeff created a rough timetable to follow, setting target dates for filing the joint appendix, completing brief drafts, editing, and moot courts. After Jeff finished drafting the brief, he submitted it for editing to Voros and Dan Schweitzer, head of the Supreme Court Project for the National Association of Attorneys General (NAAG). The completed brief was sent off to a Midwest publisher that specializes in Supreme Court briefs and the brief was filed with the Court.

The State received additional amicus support at this stage of the proceedings. In all, five amicus briefs were filed at the merits stage supporting Brigham City's position. Tim Baughman filed a second amicus brief on behalf of numerous states and counties. Briefs were also filed by the U.S. Solicitor General, the National League of Cities, the Fraternal Order of Police, and Americans for Effective Law Enforcement.

After filing his brief, Jeff immediately began preparing for oral argument. Very few get the opportunity to argue before the Supreme Court. Those who do had better be prepared. Of oral argument, Justice William Brennan said, "[O]ral argument is the absolutely indispensable ingredient of appellate advocacy. ...[O]ften my whole notion of what a case is about crystallizes at oral argument. This happens even though I read the briefs before oral argument; indeed, that is the practice now of all the members of the Supreme Court. ...Often my idea of how a case shapes up is changed by oral argument. ...Oral argument with us is a Socratic dialogue between Justices and counsel."9

In preparing for oral argument, Jeff participated in nine moot courts. The first few were brainstorm sessions with colleagues from the Division. Thereafter, the moot court sessions attempted to simulate a formal appellate argument, but without the time limits - Jeff wanted to field as many questions as possible. Judges for these sessions were drawn primarily from the Attorney General's Office. Before leaving for Washington, D.C., however, two moot courts were held that included judges from outside of the office. The first included retired Chief Justice Michael Zimmerman and Michael Lee, then serving as general counsel to Governor Jon Huntsman, Jr. (Lee is now serving as a law clerk to Supreme Court Justice Samuel Alito). The second was set up by the Division's law clerk, John Nielsen, who is attending law school at BYU. It included Dean Kevin Worthen and Professors Margueritte Driessen and John Fee. By this time, the respondents had filed their brief and Jeff had submitted his reply to the publisher for printing and filing.

Jeff and Fred flew to Washington, D.C. the following week Ð six days before the day of oral argument. On Wednesday, they visited the Supreme Court and listened to two oral arguments. This gave them a feel for the justices and the general tenor of the proceedings. On Thursday, Jeff participated in a moot court sponsored by NAAG, comprised primarily of former law clerks to U.S Supreme Court justices. The next day, he participated in a moot court session at Georgetown Law Center. Patricia Millet, who wrote the amicus brief on behalf of the Solicitor General's Office, participated as a judge in both moot courts. She was among the State's staunchest allies, but proved to be the most aggressive moot judge. Her contributions were invaluable.

After the moot courts, Fred and Jeff hunkered down trying to fine tune the argument. But by Sunday, Jeff's will to continue his preparation was gone. Jeff spent the day with friends and family enjoying some of the sights in Washington, D.C.

"Emotionally, I was exhausted from preparation. I had prepared for oral argument for four months. If I didn't have a handle on it by now, I never would. One of my "must stops" before oral argument was the National Archives. I wanted the opportunity to see the hallowed documents that form the cornerstone of our nation. I read the Fourth Amendment, word for word, from the original Bill of Rights. At about 5 p.m., we met up with some friends at the Arlington Cemetery. It then hit me: 'What am I doing gallivanting about in Washington, D.C. when I have perhaps the most important argument of my life the following morning?' I promptly left my family and friends and returned to my hotel room, where I hunkered down for some final preparation."

When the day finally arrived, Jeff was joined at the courthouse by several colleagues who had decided to foot the bill for travel and accommodations just to see the court - and Jeff - in action. Even the division's lead secretary, Lee Nakamura, felt compelled to attend and, by arriving at 6 a.m., managed to be the first person in the pre-dawn line for members of the public to observe the argument. (Attorneys who are members of the Supreme Court bar have their own section and, mercifully, need not show up quite so early.)

Not surprisingly, there are deep-rooted formalities at the Supreme Court. Jeff and all of his supporting colleagues were advised to wear dark suits and avoid button-down shirts, which, for unknown reasons, are regarded as too flamboyant. No talking. No squirming. And sit up straight. When Jeff and Fred attended an argument the week earlier, a bailiff had actually admonished a spectator, quietly but in open court, not to sit with her elbows on her knees.

"I truly did not anticipate the awe I felt sitting in that courtroom," said Slotnik. "It surprised me completely. To have a colleague argue a case I knew so well gave the whole experience an added dimension. I would have hated missing that argument."

At precisely 10 a.m., the nine justices quickly appeared from amid the rustle of dark curtains and took seats designated to indicate seniority - the newest justices on each end. At 10:03 a.m., Chief Justice John Roberts called the case and Jeff rose to give the formal opening: "Mr. Chief Justice, and may it please the Court..."

Despite these formalities, the actual argument was surprisingly informal. "It was the argument you might have expected from a group of brilliant laypersons armed with the facts of the case and one rule: the police must act reasonably," said Voros. "They were friendly, showed some humor, and asked a lot of difficult questions. Except for the number of justices, it was not unlike an argument before the Utah Supreme Court."

Jeff spoke for about one minute before the questions began to fly. Justice Ruth Bader Ginsburg wanted to know why the police had not attempted to obtain a telephonic warrant.

"The reason is where there's a violent situation, things can change in seconds," Jeff replied. "I mean, it can turn deadly in seconds. They don't have time. Even though a telephonic warrant would certainly be a more speedy process of getting a warrant, it's not speedy enough where punches are being thrown."

Justice Antonin Scalia wondered whether actual violence was always necessary. "[Y]ou don't really mean that if they saw somebody inside with a gun and they heard him saying, I'm going to shoot you in 2 minutes, since they could have gotten a telephone warrant, they would have to had to get a telephone warrant?"

Jeff replied that actual violence or the threat of imminent violence was probably necessary for a warrantless entry. Interestingly, as the argument continued, it became clear that some members of the court seemed to favor an even more lenient standard that would allow police to enter simply because of the noise.

Chief Justice Roberts pursued this theme: "If the noise is the cause of their being there and if the noise is so loud at 3:00 in the morning that it's still continuing and nobody can hear the knock on the door - they knock on the door several times and shout - would they not have the right to go in then to quell the noise?"

"Absolutely," Jeff responded. "All that I am maintaining is that they would not be justified under a safety exigency to go in. Certainly to Ð as far as disturbing the peace, then yes, but not where the proffered justification is safety."

Justice John Paul Stevens wondered just how serious injuries or the threat of injuries needed to be before police could enter under such a safety rationale. "What if a father was spanking his child, for example?"

"No," Jeff responded. "Spanking of a child would not. There's no indication under most circumstances of an intent to injure or abuse. Now, of course, if there are circumstances that would suggest abuse, then officers could go in."

Amazingly, virtually all of the questions Jeff fielded from the court had been anticipated in one form or another during the extensive moot court process. Stevens' "spanking" question, for example, had been addressed. Voros had even anticipated Justice Scalia's obscure hypothetical in which officers witness an ongoing crime of counterfeiting: "[Y]ou see a guy turning out counterfeit dollar bills, $100 bills, and can you go in right away if you see him doing that?"

"Well, it's a crime ongoing, in progress," Jeff responded. "So there certainly could be made an argument. Now, whether or not there's an exigency, I think that's doubtful because police could secure the scene and secure a warrant and then execute that warrant."

Some of the justices drew peels of laughter with their comments. Stevens' comment about intoxication being a serious offense in Utah drew thunderous laughter from onlookers, even though the basis for the charge against the Brigham City defendants had nothing to do with liquor laws peculiar to Utah.

"Normally... we think of it a - as public intoxication, and - and that's where it's usually prosecuted and where we find it,' Jeff said in reply to Stevens' quip. "But intoxication [in the home] can become an offense where it disturbs others outside of the home, and that's what happened here."

Scalia consistently drew chuckles with his dry and pointed wit. For example, he marveled at what he viewed as the trial court's "obsession" with the requirement that the officers knock, even though the ruckus from inside the house would have made it impossible to hear. The Brigham City police officer, Scalia noted, "stood at the door. He opened the screen door and said, police...,which he thought would be more effective than knocking on - on the - you know, the - the edge of a screen door, which doesn't make a very good knock."

Paul J. McNulty, Deputy Attorney General of the United States, who filed an amicus curia brief supporting Utah, addressed the court next. Then came the attorney for the respondents, Michael P. Studebaker.

Finally, Jeff gave his rebuttal remarks.

"The Utah court created two different tests. And under the one test, it examined whether or not the officers were primarily motivated by a desire to arrest or search for evidence. Now, the court, the Utah Supreme Court, concluded that they did - that... their motives were primarily law enforcement motives because they did not render aid. And this Court has repeatedly held that an officer's subjective motives play no part in the objective reasonableness test, and it should not do so here.

"Justice Ginsburg, you indicated that there was no suggestion of domestic violence. The Utah Supreme Court actually acknowledged that where violence is seen in a home between adults and, for example, a younger person, that there would be reason to believe that domestic violence is possibly present. ...[N]ow, the court refused to look at that because there was no finding that the inhabitants or those involved were actually cohabitants. Of course, this Court has never required that officers have a certainty of the situation, only a reasonable belief, and they clearly have that.

"And in any event, whether or not it's domestic violence or some other type of violence, it's something that I believe this Court in Mincey [v. Arizona]10 recognized, that officers can, and probably should...intervene in the face of violence, and that's what the officers did here."

Although it is difficult to predict the result from oral argument, those from the AG's office who attended were optimistic.

"It was clear from the argument that we had won," said Assistant AG Ken Bronston. "In that respect, the USSC is not much different than our appellate courts. That is, generally the court reveals its basic view from the bench, especially when the questioning is intensive. Here, the Court was all over respondent on the basic untenability [of the view] that the police could not react in these circumstances."

The opinion, released less than a month after argument, was gratifying for the entire Division, but especially, of course, for Jeff.

"Arguing before the Supreme Court is clearly the pinnacle of my career thus far. I was awestruck as I entered the courtroom, watched the justices file in, and fielded their questions. These nine justices were very intelligent and sober men and women. They asked practical questions and expected practical answers in return. It was obvious that they took their job seriously, cognizant of the effect their decision would have on many. I felt, in a very small sense, that I was now part of the history of this great country. I had been given the opportunity to make a difference. The effort, however, was clearly not mine alone. I owe a debt of gratitude to my colleagues at the Attorney General's Office. They suffered through my rantings, challenged my ideas, and sharpened my thinking on the case. This was a victory we all earned. But most important, it is a victory for officers who put their lives on the line each day for us and, it is a victory for all victims of violence."

1. This is an attempt to provide a somewhat intimate account of the case, which means certain biases will be evident. This is not an excuse for unfairness, however, and the authors have attempted to present a fair and balanced account.

2. Brigham City v. Stuart, 2005 UT 13, ¦¦ 2-4, 122 P.3d 506.

3. Id. at ¦ 4.

4. Brigham City, 2005 UT 13 at ¦ 37.

5. Id. at ¦ 27.

6. Robert L. Stern, Eugene Gressman, Stephen M. Shapiro, & Kenneth S. Geller, Supreme Court Practice, at 433 (8th ed.) (quoting Chief Justice Vinson in a speech before the American Bar Association at St. Louis, September 7, 1949, 69 S.Ct. v. (1949)).

7. Supreme Court Practice, at 465.

8. Brigham City, Utah v. Stuart, 126 S.Ct. 979 (2006).

9. Supreme Court Practice, at 671 (quoting from Harvard Law School Occasional Pamphlet No. 9, 22-23 (1967)).

10. 437 U.S. 385 (1978).