Some Significant Cases in the Appellate Court
Hicke
I have a list here of some of your most important cases. And I have the opinions.
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Just take a look and see what was most important about this one: Energy Conservation [Energy Conservation v. Heliodyne, 698 F. 2d 386, 1982].
Poole
This is a fairly technical case though. It has to do with what are the necessary allegations in order to state an antitrust
claim. I wouldn't regard that as being terribly significant.
Hicke
Okay. Was antitrust frequently an issue for you? I think it lost its prominence as an issue after a while.
Poole
That's right. The antitrust law has, in many particulars, been fairly well settled now. The Sherman [Antitrust] Act was 1890
[15
― 227 ―
U.S.C.A., Sec 1-7], so its general principles have been gone over. What happens is the new technology comes upon us and new
problems with that technology and, of course, the whole idea of keeping open the channels of commerce among the states is
obscured at times, because it doesn't flow like it used to flow in freight trains.
Hicke
Flows by modem.
Poole
Yes, that's right. That damn modem does more harm than anything you can think of. I think I remember this case pretty well,
the Noerr-Pennington Doctrine. The Noerr-Pennington Doctrine was a case that involved public officials being charged with
having communications with persons who were involved in what might be called anticompetitive activities. For example, three
or four prominent citizens who know the mayor of the city come down to talk to him, telling him how important it is that they
not build that subway in that area because it's going to obstruct a whole lot of other things, and really they've got interests
in property. So the question is, if it's a so-called conspiracy, and the mayor says, okay, I'll look at it again; I think
you've got a point there—if the obstruction to the conspiracy is because citizens come to the source of government to seek
redress for what they think will be some damage to their interests, is that cognizable as an antitrust violation? The Noerr-Pennington
Doctrine says if that's what you really have, no, it isn't.
That's what this case was. Now in this particular case, the court of appeals held that allegations that co-conspirators used
a lawsuit to generate adverse newspaper publicity in television coverage, thereby seeking to competitively harm the corporation,
could be sufficient to state a claim for abuse of the judicial process and therefore were sufficient to support a claim under
the sham exception to the Noerr-Pennington Doctrine. That's a technicality, but what they really mean is whether it's just
all a sham just to get a technical advantage.
I see that Charlie Merrill concurred. He said, "I concur in Judge Poole's opinion. I add this note to express the view that
whether the state court that is the subject of the complaint as sham will depend on the purpose of the plaintiffs in bringing
it rather than on the purpose of the Heliodyne in promoting it." This is a very technical thing.
Hicke
It's indicative of what you have to learn.
Poole
Oh, yes.
Hicke
Here's Dyer v. Greif [766 F.2d 398, 1985].
― 228 ―
Poole
Oh, Dyer v. Grief Brothers. Yes, I remember this case too.
Hicke
Yes, take as long as you want to look it over.
Poole
It was over in the Central District. The complainant brought suit alleging that he had been discriminated against on account
of race and national origin, asserting a violation of Title 7 and California statute and claiming wrongful termination and
breach of an employment contract under California law. The action was initiated in state court and removed to the district
court, which dismissed the action with prejudice. On appeal, the court of appeals, Poole, circuit judge, held that state court
lacked subject matter jurisdiction over Title 7 claim, when they didn't have it, and as a result removal of the action to
the federal court did not confer derivative subject matter jurisdiction.
Hicke
Was that the important thing, the fact that you decided the state court didn't have jurisdiction?
Poole
It was in those days. The legislation was new. It no longer is. See, our circuit recently held that jurisdiction over Title
7 actions lies exclusively in the federal courts. They've changed that now.
Hicke
Oh, now you can go into state court?
Poole
Almost all states have the identical legislation.
Hicke
Oh, I see. Let's see, U.S. v. Greene [783 F.2d 1364, 1986].
Poole
This was a probable cause case. It was one of those cases where you had to trace what levels of knowledge the police had and
at what stage in the proceedings they got this information. I would say that it's plainly a fact-based case, and it doesn't
have very much in it.
Hicke
Staatz v. Dupnik [789 F.2d 806, 1986]. Again, I'm not sure about the pronunciation.
Poole
This was a nothing case. Actually, when his lawyer took certain actions for him on his behalf, he claimed that he didn't authorize
it and "therefore for the courts now to hold that he is bound by that is unconstitutional."
Hicke
Well, I have one more. U.S. v. Most [789 F.2d 1411, 1986].
Poole
They were trying to track where this stuff went, so they put a beeper in the—
― 229 ―
Hicke
This was heroin?
Poole
Yes.
Hicke
They put a beeper in the heroin?
Poole
Yes. It was an importation of heroin case, and the court of appeals held that (1) installation of a beeper device in the package
mailed from Thailand did not violate the Fourth Amendment where a customs agent lawfully opened the package on the basis of
reasonable suspicion that the package contained contraband, and (2) the totality of circumstances reasonably supported finding
that defendant validly waived his Fifth Amendment right to have counsel present—that's another aspect of it. Let me take a
look at a couple of these over here. I have some bound books of opinions.
Hicke
It's a whole ten volumes of your opinions.
Poole
Some of them are worth looking at, and some of them are not. Most of them I don't remember much anymore. Let me see. A lot
of cases. Oh, here was an interesting case, the first one on this list here. Adamian. That was at the University of Arizona. Let's see, page 12, take a look at it. This is 1980, that's not so long ago. That's
fourteen years ago.
Hicke
Quite a while to remember a case.
Poole
Adamian was a kind of an interesting case. Adamian was a professor at the University of Arizona, I think it was at the Tempe campus.
They were having some demonstrations. There was some kind of a holiday, and the governor was going to appear riding in a limousine
over the campus, and there was a radical group that didn't want him to do it. One of them threw himself in front of the governor's
car, and Adamian was urging them on. So they fired him. This appeal here is whether his rights of free speech and so forth
were violated.
Hicke
Did he sue? He sued the university?
Poole
Yes, he sued. I wrote the opinion and then he was out.
Hicke
So you said that his rights were not violated?
Poole
Yes. I'm trying to figure how did Mittendorf get in here. I don't quite understand how they do these cases. By the time they get in here, I'm no longer interested in
reading them.
Hicke
Of course.
― 230 ―
Poole
You understand.
Hicke
It's old history by that time.
Poole
Yes. I remember that case [Admian]. It was kind of an interesting case. In its day, it was a not unimportant case, because that happened around 1981. And then
here's Aladdin Hotel. I'm not sure how West chooses these things. I never read them. By the time they come bound up and all that, they are of slight
interest to me.
Hicke
It looks like they could do with a good index or something.
Poole
Yes. They've got an index on the F.2d. You can take this index and go to this page number and pull the case. I've got them
up to date now, but the latest one here was, I guess, 1979. So I have a lot of them around here some place, but I never think
about them. The reason they're out is because when we moved, I had new clerks coming in, and I wanted to give them some reference
to see some of the things that I had written.