Odd Request for Supreme Court First-Timer

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By Kimberly Robinson

March 8 — Stanley B. Eisenhammer had a somewhat unusual request for the U.S. Supreme Court: He asked the court to appoint him to represent his own client in Manuel v. City of Joliet, 84 U.S.L.W. 3405, U.S., 14-9496, review granted, 1/15/16.

The Court did so on March 7.

Despite offers from Supreme Court veterans to step in, Eisenhammer, of Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP, Arlington Heights, Ill., will make his Supreme Court debut next term in this prisoner's civil rights lawsuit.

It's what's best for the client, Eisenhammer told Bloomberg BNA.

“I don't just have a passion for arguing at the Supreme Court,” he said. “I have a passion for representing this client and this issue,” Eisenhammer said.

Circuit Split

Eisenhammer has been on the case since May 2013, when the U.S. District Court for the Northern District of Illinois appointed him to represent Elijah Manuel. He continues to represent Manuel pro bono.

Manuel sued an Illinois city under 42 U.S.C. §1983 after police officers allegedly falsified drug tests and arrested him for possession with intent to distribute ecstasy.

Manuel alleged that officers found a bottle of pills during a traffic stop on March 18, 2011, according to the U.S. Court of Appeals for the Seventh Circuit's opinion in the case.

“The pills were then tested by officers who had arrived at the scene, and these officers falsified the results to show that the pills were ecstasy,” the Seventh Circuit said, describing Manuel's allegations.

“Based on these results, Manuel was arrested” and detained, the court said. “In grand jury proceedings on March 31, the police continued to lie about the test results.”

“But according to a lab report of April 1, 2011, that Manuel submitted with his complaint, the pills were not ecstasy,” the Seventh Circuit said.

“Yet Manuel was arraigned on April 8, 2011, and not for more than a month—until May 4, 2011—did the Assistant State's Attorney seek dismissal of the charges. Manuel was released the next day,” it said.

“Because of his incarceration, Manuel missed work and his college classes, forcing him to drop courses he already paid for,” the Seventh Circuit said.

The district court ultimately dismissed Manuel's malicious prosecution claim, finding that such a claim can't arise under the Fourth Amendment. The Seventh Circuit affirmed.

“The Seventh Circuit stands alone among circuits in not allowing a federal malicious prosecution claim grounded on the Fourth Amendment,” Manuel argues in his Supreme Court petition.

Ten other circuits—the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh and D.C. circuits—have all gone the other way, the petition said.

Super Bowl

Eisenhammer said he was a little surprised that the district court appointed him to represent Manuel in the first place.

He often litigates Section 1983 claims, he said. But he's usually on the defense side, representing school districts, for example.

But Eisenhammer won't go it alone at the Supreme Court. He's teamed up with Jeffrey Fisher of Stanford Law School, Stanford, Calif., who has argued 28 cases before the high court.

Fisher was one of several Supreme Court veterans that contacted him after he filed the petition for review and it was granted, Eisenhammer said.

After a lot of thought, Eisenhammer said he has decided to argue the case himself, believing it's what's best for the client.

He said he knows the law, the case and the client.

Eisenhammer—who has argued in other appellate courts—likened arguing at the U.S. Supreme Court to playing in the Super Bowl.

The Super Bowl is higher profile than a regular season game, but ultimately you're playing on a field that is still 100 yards long, he said. “On the other hand, you're not always facing a Super Bowl type quarterback like Peyton Manning in a regular season game.”

Costs and Compensation

Still, Eisenhammer admits that there is a lot he doesn't know about practicing at the Supreme Court.

In that regard, the court itself has been extremely helpful, he said.

The Merits Cases Clerk, Denise McNerney, provided him with a booklet on arguing at the court and even suggested that he might want to file a motion to be appointed counsel.

He did, and the court granted that motion March 7.

“The motion of petitioner for appointment of counsel is granted and Stanley B. Eisenhammer, Esquire, of Arlington Heights, Illinois, is appointed to serve as counsel for the petitioner in this case,” the court's order said.

The appointment means that the court will pay for Eisenhammer to travel to Washington for the argument.

Eisenhammer noted that the court already granted Manuel's request to proceed in forma pauperis, meaning that certain fees and printing costs are waived or paid for by the court.

When private attorneys are appointed in criminal cases under the Criminal Justice Act, 18 U.S.C. §3006A, the court will pay additional compensation, Virginia Villa of St. Croix Falls, Wis., told Bloomberg BNA in an e-mail.

Like Eisenhammer, Villa was appointed by the Supreme Court to represent her client in Voisine v. United States, U.S., No. 14-10154, argued, 2/29/16 .

But the Supreme Court “limits CJA compensation to $5,000, no exceptions,” Villa said.

On a Roll

Eisenhammer's case likely won't be argued until the October 2016 term, as the court has already set its calendar for this one.

But so far this Supreme Court first-timer has done pretty well at the high court, going 4–0 with his requests.

The high court granted his IFP motion, agreed to hear the case, appointed Eisenhammer as counsel and granted extended briefing.

Check in next term to see if Eisenhammer's winning streak holds when it's most important.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com