State Agencies Can’t Appeal Court Subpoenas

     CHICAGO (CN) – State agencies cannot appeal subpoenas ordered by a federal judge mid-trial, the 7th Circuit ruled, narrowing the doctrine of collateral-order appeals.



     The legal question addressed by the federal appeals court arose from the wrongful conviction of Chauntee Ott, who was incarcerated for the 1995 murder of Jessica Payne, a 16-year-old runaway. Ott’s conviction was based largely on the testimony of two witnesses who have since recanted their statements.
     DNA evidence exonerated Ott of the crime 13 years into his sentence. Payne’s murder was later tied to serial killer Walter E. Ellis, who was convicted of seven homicides across a twenty-one year-period.
     Ott sued the Milwaukee Police Department and several officers. Seeking documents associated with Ellis’s DNA testing, Ott served subpoenas on the Wisconsin Crime Laboratory and Wisconsin Department of Corrections.
     The agencies moved to quash the subpoenas, arguing that they were not “persons” subject to subpoena. U.S. District Judge Rudolph Randa denied the motion. The agencies then filed an interlocutory appeal.
     But the 7th Circuit ruled that it lacked jurisdiction to hear the appeal, citing the narrow circumstances under which a collateral-order appeal is appropriate.
     “Immediate finality exists only for orders ‘that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action,'” Judge Diane Wood wrote for the three-judge panel.
     The court cited the Supreme Court’s 2009 decision in Mohawk Industries, Inc. v. Carpenter, which held that a post-judgment appeal is sufficient to protect the interests associated with any order that may violate the attorney-client privilege.
     “The overriding lesson from Mohawk Industries is that ‘the class of collaterally appealable orders must remain narrow and selective in its membership.’… The adversely affected party is expected to put its money where its mouth is, so to speak, before an appeal will be heard,” Wood summarized.
     If the agencies wish to oppose the subpoenas, the court ruled, they may decline to produce the documents and risk contempt-of-court sanctions, which are appealable.
     “If perchance we have read Mohawk Industries too strictly and the Court meant to leave a wider door open for collateral-order appeals brought by nonparties, or if the state agencies meant to invoke sovereign immunity through their references to ‘persons,’ we would nonetheless reject their position on the merits,” Wood continued.
     The court cited the D.C. Circuit’s ruling that federal agencies lack an “established prerogative” necessary to be free from subpoenas.
     “Ott could have demanded the same documents by issuing a subpoena to the correct employee in each agency, as the agencies admit in their brief. No state sovereign immunity issues are triggered by this subpoena because no ultimate relief is being sought from them,” she concluded.
     Ott is represented by Chicago-based firm Loevy & Loevy, which specializes in civil rights claims.

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