State of Mich. v. Meese

• Decision Date: 11 August 1987
• Docket Number: Civ. No. 87-CV-70865-DT.
• Citation: 666 F. Supp. 974
• Parties: The STATE OF MICHIGAN, Plaintiff, v. Edwin MEESE, Attorney General for the United States, Defendant, and Steve Asmar and Metro Institutional Food Services, Inc., Intervening Defendants.
• Court: U.S. District Court — Western District of Michigan

666 F. Supp. 974

The STATE OF MICHIGAN, Plaintiff, v. Edwin MEESE, Attorney General for the United States, Defendant and Steve Asmar and Metro Institutional Food Services, Inc., Intervening Defendants.

Civ. No. 87-CV-70865-DT.

United States District Court, E.D. Michigan, S.D.

August 10, 1987.

As Amended August 11, 1987.

Timothy Baughman, Chief Crim. Div., Detroit, Mich., for plaintiff.

Lori Fields, Dept. of Justice, Civ. Div., Washington, D.C., for defendant Edwin Meese.

AMENDED OPINION AND ORDER^*

COHN, District Judge.

I.

This is an action for a declaratory judgment. 28 U.S.C. § 2201; Fed.R.Civ.P. 57. Plaintiff, the State of Michigan, seeks a declaration that Title III of the Omnibus Crime Control Act and Safe Streets Act of 1968 ("the Act"), 18 U.S.C. §§ 2510-2520,¹ violates the Tenth Amendment of the United States Constitution² as applied to the states. Section 2515 of Title 18 prohibits, inter alia, a state or political subdivision from introducing as evidence in any proceeding the contents, or fruits thereof, of a communication intercepted in violation of section 2511.

Plaintiff argues that the only conceivable justification for the Act is the Commerce Clause of the Constitution. Art. 1, § 8, cl. 3. Plaintiff recognizes that the United States Supreme Court has affirmed the wide scope of the Commerce Clause even as applied to the states, but relies on language in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), that can be construed as having left open the possibility that the Tenth Amendment might impose some "affirmative limits ... on federal action affecting the States under the Commerce Clause." Id. at 556, 105 S.Ct. at 1020-21. Plaintiff contends that the Act exceeds such affirmative limits.

The complaint mainly addresses legal questions, not facts. Its statement of the facts of the underlying "controversy" is limited to the following:

Plaintiff is in receipt of a recording of telephone conversations containing evidence of public corruption. The recording was delivered anonymously, and recorded by a person or persons unknown. 18 USC 2511 and 2515 are preventing investigation of these apparent acts of public corruption.

The "recording" is an audio cassette tape recording that has been the subject of considerable dispute in civil matters on the Court's docket. Jo-Dan, Ltd., Inc. v. Detroit Board of Education, No. 86-CV-72565-DT; A & M Corp. v. Landmark Shoppe, Inc., No. 86-CV-72738-DT; Asmar v. Detroit News, Inc., No. 86-CV-73390.

Plaintiff did not allege that a prosecution is advancing in which a state prosecutor will attempt to introduce as evidence the recording or evidence derived therefore. The complaint did allege that the United States Supreme Court had previously declined to assert original jurisdiction over the matter.³

Concerned that the case was not "ripe" for judicial consideration, the Court issued an Order to Show Cause on March 13, 1987, giving both parties an opportunity to comment on whether a "case or controvery" exists, as required by Art. III, § 2, cl. 1 of the Constitution. The Order noted that plaintiff appeared to be seeking "an advisory decree upon a hypothetical state of facts." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct. 466, 473, 80 L.Ed. 688 (1936), cited in Advisory Committee Notes to Rule 57, supra. The Order also noted that a federal court will not declare on the constitutionality of aspects of an investigation in progress. See Hastings v. Judicial Conference of the United States, 770 F.2d 1093, 1100-03 (D.C.Cir.1985). Finally, the Order stated that it does not appear that "all parties having an interest in the declaration sought or adversely affected have been made parties or been cited." Advisory Notes, supra.

Plaintiff's response to the Order to Show Cause revealed that the Wayne County Citizens Grand Jury issued subpoenas in an investigation related to matters disclosed on the tape recording of various telephone conversations, including officials of the Detroit Board of Education, intercepted in probable violation of 18 U.S.C. § 2515. Following a motion in Wayne County Circuit Court to quash the subpoenas based on the Act, a Wayne County circuit judge supervising the grand jury quashed the subpoenas on June 18, 1986, citing the Act as the basis for his decision. Plaintiff filed the state court order quashing the subpoenas and a transcript of the extensive hearing on the motion. Plaintiff argued that the state judge's action created a "case or controversy" because it deprived the State of the only means of investigating the matters discussed in the conversations on the tape.

Defendant filed a response to the Order to Show Cause on April 13, 1987. Defendant, who is joined in the case because he is "charged with the responsibility of enforcing the laws of the United States,"⁴ agreed with plaintiff that the matter is ripe for judicial consideration. Defendant asserted that purely legal questions are involved and unlikely to be clarified by further factual development. See Thomas v. Union Carbide Agricultural Productions Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 3333, 87 L.Ed.2d 409 (1985); Babbitt v. United Farm Workers National Union, 442 U.S. 289, 300-01, 99 S.Ct. 2301, 2309-10, 60 L.Ed.2d 895 (1979).

For the reasons stated on the record of the hearing on May 4, 1987, the Order to Show Cause was dismissed by Order of May 5. On May 22, the intervening defendants — one of whom admits involvement in the intercepted conversations— moved to intervene either as of right, Fed. R.Civ.P. 24(a)(2), or by permission, Fed.R. Civ.P. 24(b)(2). The motion was granted on June 2.

Now before the Court are cross-motions for summary judgment. Fed.R.Civ.P. 56. There are no disputes over facts, as the case presents a purely legal question. The parties have ably briefed the issue, and the Court has conducted its own analysis beyond the scope of the briefs.

For the reasons that follow, defendant's motion is GRANTED and the case is DISMISSED.

II.

A.

This case clearly poses a question about the limits of the principle of federalism and its embodiment in the Bill of Rights, the Tenth Amendment. Much has been said of late about federalism and the role of the judiciary. Compare, e.g., The Status of Federalism in America (Report of the Working Group on Federalism of the Domestic Policy Council, Nov., 1986) (bemoaning the failure of the Supreme Court to overrule more Congressional statutes), and Van Alstyne, The Second Death of Federalism, 83 Mich.L.Rev. 1709 (1985) (criticizing Garcia, supra), with J. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980) (proposing that the Supreme Court rule such federalism issues to be nonjusticiable questions that must be left to the political branches).

At least two state courts have noted that section 2515 involves questions of federalism when applied to state court proceedings that are traditionally of state concern. Compare In re Marriage of Lopp, 268 Ind. 690, 378 N.E.2d 414, 421 (1978) (refusing to apply section 2515 under circumstances of case), cert. denied, 439 U.S. 1116, 99 S.Ct. 1023, 59 L.Ed.2d 76 (1979), with Halpin v. Superior Court of San Bernardino County, 6 Cal.3d 885, 101 Cal.Rptr. 375, 495 P.2d 1295, 1305 (rejecting Tenth Amendment challenge to section 2515), cert. denied, 409 U.S. 982, 93 S.Ct. 318, 34 L.Ed.2d 246 (1972). One constitutional scholar has noted that, in general, the "expansion of federal criminal jurisdiction raises some of the most sensitive problems of potential congressional impingement upon the values of federalism." G. Gunther, Constitutional Law Cases and Materials 194 (9th ed. 1978).

B.

However divergent may be the political, academic, and state court views regarding federalism, the Court is bound to look for guidance in the decisions of the Supreme Court of the United States. The issue is not decided in a legal vacuum. The Supreme Court has considered the scope of the Tenth Amendment, even though its teachings on that subject may be in a state of flux. Briefly, however, this much can be said: there is not a single case that can be considered "good law" that purports to overrule a federal statute on the ground that it violates the Tenth Amendment.

In Usery v. National League of Cities, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the Supreme Court struck down a federal minimum wage statute for state employees as violative of the Tenth Amendment. After Usery, however, the Supreme Court declined to invalidate a single federal law applicable to the states on the ground that it interferes with their autonomy under the Tenth Amendment. Now, even Usery is no longer the law. With the Supreme Court's decision in Garcia, supra, which overruled Usery, the Tenth Amendment has become a dead letter in constitutional law.

Subsequent to Garcia, it is not clear what standard applies to issues like the one before the Court. Garcia seems to have discarded Usery's "balancing" test. See 469 U.S. at 564 n. 7, 105 S.Ct. at 1025 n. 7 (Powell, J., dissenting). But see id. at 579-80, 105 S.Ct. at 1032-33 (Rehnquist, J., dissenting) (disagreeing that Usery announced a "balancing" test). However, Garcia fails to "identify or define what affirmative limits the constitutional structure might impose on federal action affecting the States under the Commerce Clause." Id. at 556, 105 S.Ct. at 1020-21. Indeed, the State of Michigan admits that "it is difficult to conceive a method of analysis for the question here at issue." While the State has attempted to fill this void with some imaginative legal and political analysis, it does not lead to the declaration it seeks.

C.

The Supreme Court is unlikely to accept the State's argument here, since the Supreme Court has applied the exclusionary rule — a judicial supervisory rule not required by the Constitution, see ...