Recent graduate helps prepare First Amendment case for Supreme Court review

June 4, 2013

Rex Bossert

Image of Selwyn Chu
Selwyn Chu is currently an associate at employment law firm Klatte, Budensiek & Young-Agriesti, LLP, in Newport Beach.

Selwyn Chu graduated from UC Irvine School of Law only a year ago, but he is already working on a case going before the U.S. Supreme Court.

The case, a First Amendment issue involving a protester arrested at an Air Force base near Santa Barbara, was granted certiorari on June 3, 2013, and could be argued at the Supreme Court before the end of the year.

With Chu’s help, Dean Erwin Chemerinsky, Distinguished Professor and Raymond Pryke Professor of First Amendment Law, will file the briefs and argue the case, which grew out the law school’s clinical education program.

Lawyers must have at least three years of legal practice to argue before the Supreme Court. This will be the fifth case that Chemerinsky has argued there.

Chu, now an associate at the Newport Beach employment law firm Klatte, Budensiek & Young-Agriesti, LLP, said he wasn’t surprised to learn the Justices agreed to review the case.

“Dean Chemerinsky had braced us for the very real possibility that it would be taken up, which made sense: We had a petition from the U.S. Solicitor General, a case out of the 9th U.S. Circuit Court of Appeals, and issues involving the military and the First Amendment—it all pointed to the Supreme Court granting review.”

Chu said at first he was disappointed for his client that the case was not concluded with an appeals court victory last year. “But once I got past that and started to look ahead, I allowed myself to appreciate this for what it is: a once-in-a-career opportunity to litigate a case in the Supreme Court. I’m looking forward to it.”

Law School Clinic Case

While still third-year students at UCI Law, Chu and classmate Matthew Plunkett appeared last year before the 9th Circuit to argue that their client’s conviction for trespassing on the military base should be overturned. (Because of rules covering his current position in the Orange County District Attorney’s Office, Plunkett will not be allowed to work on the case further.)

The students’ participation in the April 13, 2012, oral arguments at the 9th Circuit Courthouse in Pasadena was part of their work with the Appellate Litigation Clinic, where students learn how to represent a real-life client before the appeals court.

With oversight from Chemerinsky, Chu and Plunkett 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.

“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 appellate panel, which peppered both sides with questions in 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, 2012, the court ruled in their favor.

Students like Chu and Plunkett who work on 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. Cases the clinic handles are more typically 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 takes all its cases pro bono.

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

‘Ably’ Argued

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

In the later debriefing, Apel told Chu and Plunkett he was “honored” to have them argue his case.

On Feb. 22, 2013, the government petitioned the Supreme Court to review the 9th Circuit decision, and the Court agreed to it less than four months later.

Chu said that as a member of the Supreme Court team representing Apel—which will also include clinic professors Kathryn Davis and Peter R. Afrasiabi—he hopes “to have a significant hand in planning our strategy, researching and drafting our merits brief, and doing whatever else might be required to help us win the case for our client.”