Appellate Litigation Clinic brief in drunk driving case has impact

October 30, 2009Duke Law News

Oct. 30, 2009 — According to Supreme Court correspondent Tony Mauro, Chief Justice John Roberts paid close attention to an amicus brief filed by Duke Law’s Appellate Litigation Clinic in a recent drunk driving case.

Writing in the National Law Journal Oct. 22, Mauro observed that Roberts’ public dissent from the Court’s denial of certiorari in Virginia v. Harris, cited studies and themes set out in the clinic’s brief, which was filed on behalf of Mothers Against Drunk Driving (MADD).

The brief supported Virginia’s challenge to a state supreme court ruling barring police from pulling over drivers solely on the basis of anonymous tips that they are impaired; the state court held that police must witness dangerous driving themselves. In addition to noting a circuit split on the issue of searches sparked by anonymous tips, Roberts argued that failing to act could “undermine” efforts to get drunk drivers off the road.

“The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road—by which time it may be too late,” wrote Roberts.

Virginia Solicitor General Stephen McCullough approached the clinic about submitting the brief on behalf of MADD, said clinic co-director James Coleman Jr., Duke’s John S. Bradway Professor of the Practice of Law.

“I personally wasn't sure the Virginia Supreme Court was wrong,” said Coleman. But his students were certain that the Supreme Court should address the issues raised by the case. Among other arguments, they contended in the brief that an officer’s observation that the driver was “braking in an unusual manner,” should have been sufficient corroboration of the tip to justify a roadside stop.

Matthew Levy ’09, who worked on the brief, read Chief Justice Roberts’ dissent after seeing Mauro’s story. He called it “gratifying” to see the clinic’s work reflected the dissent, which was joined by Justice Antonin Scalia. “There were parts of his dissent taken wholesale (perhaps not verbatim) from our amicus brief,” wrote Levy in an email. “Actually, it was really quite humbling to see all of our efforts on the brief (which we worked on in middle of bar-studying!) rewarded in a small way — of course, it would have been nicer of the Court had granted certiorari.

“Truthfully, working in the clinic was really an amazing opportunity for a law student, and I really wish the clinic was open to more Duke Law students,” added Levy.

Tony Mauro’s story, “Who inspired Roberts’ dissent in drunk driving case” is available to National Law Journal subscribers.