Here in the land of appellate law, there’s nothing more we like than diving into an area of dusty, obscure legal procedure.  The land of ancient writs is one of those areas, and last week the First Circuit issued one of the more obscure of those ancient writs – an “advisory mandamus.”  In re Grand Jury Subpoena, No. 18-1464 (1st Cir. Nov. 21, 2018).

A federal grand jury subpoenaed records from the Rhode Island Department of Education and Training.  The Department moved to quash to the extent it sought to compel the production of documents containing confidential communications between its staff and legal counsel.  The district court (Smith, C.J.) denied the motion and ordered the Department to hand over the communications, holding that, as a categorical matter, the attorney-client privilege doesn’t shield communications between government lawyers and their clients from a federal grand jury.  The court declined to certify the issue for appeal under 28 U.S.C. § 1292(b), so normally the only way to get appellate review would be for the Department to refuse to comply, be held in contempt, and then appeal that contempt order.  It didn’t want to do that, so instead, it petitioned for this writ – “of advisory mandamus.”  And got it.

The panel was CJ Howard and Judges Kayatta and Barron, with Judge Kayatta writing the opinion.  Judge Kayatta noted that the more common type of writ of mandamus is the supervisory mandamus, available when the issuance or non-issuance of a district court order presents a question about the limits of judicial power, poses some special risk of irreparable harm to the party seeking the writ, and is “palpably erroneous.”  The writ of advisory mandamus is available only in “rare cases; the usual requisites are that the issue be an unsettled one of substantial public importance, that it be likely to recur, and that deferral of review would potentially impair the opportunity for effective review or relief later on.”  (citing United States v. Pleau, 680 F.3d 1, 4 (1st Cir. 2012) (en banc).)

This matter fit the bill, with the Court of Appeals noting that courts were split on the issue of law and finding it significant that the petitioner was asking for an opinion on a rule of law, and not the manner in which the trial court exercised its discretion.  While the Department could have gritted its administrative teeth and suffered the contempt ruling, the Department argued that it had a heightened duty to follow and be viewed as following the law.  The Court of Appeals was dubious, citing precedent, and said the real difference was that with supervisory mandamus, the petitioner needs to show the trial court is palpably wrong, in which case the contemnor is likely be vindicated after suffering a contempt ruling, while with an advisory mandamus, the question presented is unsettled, and thus there is a higher risk of no eventual vindication.   Finding the Department “barely” met the standard, the Court then proceeded to the merits.

On that front, four circuits have weighed in on this issue, with three finding that the privilege didn’t apply (CTA 7, DC, and 8) and the Second Circuit going the other way.  Judge Kayatta noted that in the three appellate decisions finding no privilege, it was in the context of the federal grand jury investigating state hanky panky, but that in matter before them, the US made no attempt to persuade the district court that the grand jury’s subpoena was targeted at wrongdoing by the government officials themselves.  The RI AG also said it wouldn’t assert the privilege if the investigation were targeted at state misconduct.  In this context, the Court of Appeals said it rejected a categorical denial of privilege and quashed the subpoena.

Kudos to the Rhode Island assistant attorney general who found this novel path to immediate appellate review.  (The opinion lists Neil F.X. Kelly, with Special Assistant Attorney General Sean Lyness.)