Students represent real-life clients before federal appeals court


Rex Bossert

Students, Dean, Clinic directors at 9th circuit
From left: Matthew Plunkett, Selwyn Chu, Dean Erwin Chemerinsky, Kathryn Davis and Peter Afrasiabi at the 9th Circuit Courthouse in Pasadena.

Legal education doesn't get any more real than this.

Two UCI Law students appeared before the 9th U.S. Circuit Court of Appeals to argue that the conviction of their client for trespassing on a U.S. Air Force base should be overturned.

The student participation in the April 13 oral arguments at the historic 9th Circuit Courthouse in Pasadena grew out of their work with the law school’s new Appellate Litigation Clinic, where students learn how to represent a real-life client before the appeals court.

With oversight from Dean Erwin Chemerinsky, third-year students Matthew Plunkett and Selwyn Chu argued United States v. Apel on behalf of their client, John Dennis Apel, a protester convicted of three counts of trespassing on a roadside at Vandenberg Air Force Base in Santa Barbara County.

"The public still has the right to protest on that roadway easement," Plunkett told the three-judge panel during the half-hour oral arguments.

"Mr. Apel's conviction violated the First Amendment," Chu said during his turn before the judges.

Chu said Apel never set foot on the base but stayed in an area off Highway 1 that was specifically designated for public protests. "There is no real dispute in the record that this stretch of road is treated as a public forum," Chu said.

Assistant U.S. Attorney Mark Yohalem, who represented the Air Force, said base officials retained the discretion to exclude individuals from the area even though public access was granted to peaceful protesters in an area near the main gate.

The students argued further that a 9th Circuit ruling in United States v. Parker, which held that the government must prove it has exclusive possession of property for a federal trespassing conviction to stand, is clearly on point and requires the court to overturn Apel's conviction. The government, however, argued that Parker is bad law and should be overturned.

The appellate panel, which peppered both sides with questions in a business-like fashion, consisted of 9th Circuit Judges Johnnie B. Rawlinson and Barry G. Silverman, and U.S. District Judge John R. Tunheim from Minnesota, who was sitting by designation.

The panel apparently was swayed by the students' arguments. Within two weeks, on April 25, the court ruled in their favor, saying that the court was bound by the Parker decision.

Four other teams of clinic students also appeared before the 9th Circuit in mid-April to argue other cases. They were Colin McGrath and Erica Maloney; Jeffrey Wachs and Lori Speak; Jenny Tryck and Eric Zhou; and Adam Brauner and Xenia Tashlitsky. They were supervised by clinic directors Peter R. Afrasiabi and Kathryn Davis.

Since then, the 9th Circuit has also ruled for McGrath and Maloney, ordering the Board of Immigration Appeals to reconsider its denial of asylum to their client, who claims she was persecuted by the Armenian government because of her ethnic and religious background.

Students in the Appellate Litigation Clinic cases meet with the client and investigate the issues on appeal, review the trial record, develop a legal theory, write an opening brief and reply brief, and argue the cases before the appeals court.

The cases they handle are often immigration matters - including political asylum cases, cancellation of removal, ineffective assistance of counsel - although they can also be prisoner civil rights cases on behalf of inmates, or habeas corpus cases. The clinic handles all cases pro bono.

The Appellate Litigation Clinic is one of eight legal clinics available for second- and third-year students at the Law School, which has made practical, hands-on training and public service central to its mission.

After the arguments in Apel, Judge Silverman said the students did a "fine job" and argued the case "very ably."

In the debriefing after the arguments, Apel told Plunkett and Chu that he was "honored" to have them argue his case.

Either side could seek review by an 11-judge 9th Circuit panel or the U.S. Supreme Court.