United States v. Supreme Court of New Mexico
839 F.3d 888
| 10th Cir. | 2016Background
- New Mexico adopted Rule 16-308(E) (modeled on ABA Model Rule 3.8(e)), which bars prosecutors from subpoenaing a lawyer to present evidence about a client unless (1) the information is not privileged, (2) the evidence is essential, and (3) there is no other feasible alternative.
- The United States sued the New Mexico Supreme Court, Disciplinary Board, and Disciplinary Counsel arguing that subsections (2) and (3) are preempted by federal law under the Supremacy Clause as applied to federal prosecutors licensed in New Mexico.
- The district court granted partial summary judgment: it held the Rule is preempted in the grand‑jury context (and enjoined disciplinary enforcement against federal prosecutors for grand‑jury subpoenas) but not preempted outside the grand‑jury context, relying on Tenth Circuit precedent (Colorado Supreme Court II).
- The Tenth Circuit affirmed: it found the United States has standing and the claim is ripe; it treated the U.S. challenge as a quasi‑facial/as‑applied preemption claim (facial standards applied to the subset of federal prosecutors licensed in New Mexico); and it held subsections (2) and (3) are preempted as applied to grand‑jury subpoenas but not preempted for other criminal proceedings.
- The court reasoned that the heightened "essentiality" and "no other feasible alternative" requirements conflict with the federal grand jury’s broad investigative role (as reflected in the Fifth Amendment and R. Enterprises) and thus stand as an obstacle to federal grand‑jury objectives, whereas Colorado Supreme Court II controls the non‑grand‑jury analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the U.S. has standing and the case is ripe | Rule chills federal prosecutors; injury is concrete (fewer subpoenas, impaired investigations) | Any injury is self‑inflicted or speculative; no actual enforcement | U.S. has standing; claim is ripe (credible threat of discipline; legal question fit for review) |
| Whether discovery was required before summary judgment | Not necessary because issue is purely legal (preemption/ethics vs. substantive rule) | Additional discovery about enforcement/delay required | Denial of Rule 56(d) request affirmed (legal question; discovery would not change legal analysis) |
| Whether Rule 16-308(E) is preempted as applied to federal prosecutors outside grand juries | Argued preempted generally | Relied on Colorado Supreme Court II: identical rule is an ethics rule under McDade and not preempted for trial/subpoena practice | Not preempted outside grand jury context (Colorado Supreme Court II controls) |
| Whether subsections (2) and (3) are preempted as applied to grand‑jury subpoenas | Conflict‑preemption: those requirements obstruct grand‑jury investigatory function and secrecy | Rule is an ethics rule covered by McDade; Congress authorized application to federal prosecutors; no constitutional conflict | Preempted in the grand‑jury context (requirements conflict with federal grand‑jury practice and Framer's design; injunction against disciplinary enforcement of (2) and (3) for grand‑jury subpoenas) |
Key Cases Cited
- United States v. R. Enterprises, Inc., 498 U.S. 292 (1991) (grand jury subpoenas need only a reasonable possibility of relevance; Nixon trial‑subpoena standards do not apply)
- United States v. Colorado Supreme Court (Colorado Supreme Court II), 189 F.3d 1281 (10th Cir. 1999) (identical attorney‑subpoena ethics rule is within McDade and not preempted in non‑grand‑jury contexts)
- Baylson v. Disciplinary Bd. of Supreme Court of Pa., 975 F.2d 102 (3d Cir. 1992) (judicial preapproval ethics requirement conflicted with federal subpoena practice)
- Reed v. John Doe No. 1, 561 U.S. 186 (2010) (facial/as‑applied duality; apply facial standards to the scope of relief sought)
- United States v. Salerno, 481 U.S. 739 (1987) (articulated the rigorous "no‑set‑of‑circumstances" formulation for facial challenges)
- United States v. Nixon, 418 U.S. 683 (1974) (trial subpoena standards discussed and distinguished from grand‑jury standards)
- Costello v. United States, 350 U.S. 359 (1956) (historical role and broad investigatory function of the grand jury)
- Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015) (Supreme Court held no private right of action under the Supremacy Clause; discussed by parties on enforcement/relief scope)