The U.S. Court of Appeals for the Third Circuit heard some high-profile arguments this year, touching on the "kids-for-cash" scandal, breast-cancer awareness bracelets and municipal-level immigration laws.

Also, at the start of the year, the court put a 14,000-word limit on briefs in order to stem the flow of lengthy court papers pouring into judges’ chambers. That limit matches other circuits and a federally mandated limit, according to the Third Circuit’s chief judge, Theodore McKee.

A panel of three judges, playfully dubbed the "X-Panel" after the action comic and movie heroes called the "X-Men," now votes on whether or not to accept a motion for an extended brief, McKee told the Philadelphia Bar Association in the spring. Officially, it is called the standing motions panel.

The only two types of cases that are exempt from the limits are large-scale, multidistrict litigation and death-penalty cases, McKee said, explaining of the latter that they are "like a black hole." A death case "distorts space-time and everything around it," he said, referring to the resources that go into those cases.


The U.S. Supreme Court may well have breathed new life into the city of Hazleton, Pa.’s ordinance barring employers and landlords from hiring or renting to illegal immigrants, McKee implied in questioning at a hearing this summer.

In 2006, the city was the first to pass a law of that kind, but it was promptly enjoined from taking effect by U.S. District Judge James Munley of the Middle District of Pennsylvania in a ruling that was upheld by the Third Circuit in 2010. However, in light of the Supreme Court’s opinions from its most recent term and the previous term regarding immigration-related state laws, the Third Circuit heard arguments on Hazleton’s ordinance on remand from the high court.

Although McKee wrote the opinion striking down the law in 2010, he told Omar Jadwat, of the American Civil Liberties Union Immigrants’ Rights Project, "You are paddling against such stiff currents" when Jadwat started his argument by announcing that he wanted to focus on the employment portion of the ordinance. McKee suggested that spending his time on that argument might not be worth his while.

In light of the Supreme Court’s 2011 holding in Chamber of Commerce v. Whiting, which held that states can revoke the licenses of businesses that intentionally hire illegal immigrants, Hazleton’s ordinance is likely on firm ground.

The Whiting decision narrowly applies to employment regulations, said Peter J. Spiro, a professor who teaches immigration law at Temple University, but it clearly covers the ones in Hazleton’s ordinance. The U.S. Supreme Court basically acknowledged that when it granted certification, vacated the Third Circuit’s opinion and remanded it, an order called GVR, Spiro said. That opinion gives state and local governments "carte blanche" to use licensing as a tool for enforcing immigration laws, he said.

Everything about the relationship between an employer and an employee in Hazleton’s ordinance, like in the Whiting case, "is pegged to federal law," McKee said.

"Hazleton is basically saying, ‘You’re not allowed to have shelter,’" McKee said, adding that earlier, Kris Kobach, the lawyer representing Hazleton’s city government, had suggested that illegal immigrants could buy a home, but McKee said, even if that were reasonable, the law could easily be amended to preclude it.

It is the limiting principle that McKee found most troubling analytically for the rental provision, he said, referring to the issue of federal pre-emption.

The court hasn’t yet issued an opinion in the case, which was argued in August. After the previous argument, in 2008, it waited nearly two years to issue an opinion.


The scandal that embroiled the Luzerne County courts reached the Third Circuit this year when Former Luzerne County Court of Common Pleas Judge Mark A. Ciavarella Jr. argued that his convictions related to the bribes he took to place youthful offenders in a privately owned juvenile detention center should be set aside because U.S. District Judge Edwin Kosik of the Middle District of Pennsylvania, who presided over his trial, had shown bias against him.

The Third Circuit was faced with an odd situation, Judge Marjorie O. Rendell noted as she sat on the panel, saying it’s "judges judging judges who are judging judges."

Ciavarella focused primarily on Kosik’s responses to letters from citizens expressing outrage at the charges, a newspaper article that attributed derisive quotes about Ciavarella’s alleged conduct to Kosik, and his rejection of Ciavarella’s initial plea deal. Kosik denied talking to the reporter, according to court papers.

"There’s no doubt that he should not have done what he did," Rendell said at the November argument regarding the responses Kosik sent to the letters. The question is whether his conduct rises to the level of objective bias, she said.

Breast-Cancer Bracelets

The Easton Area School District doesn’t want to demonize "boobies," its lawyer, John Freund, told the Third Circuit this spring in a closely watched free-speech case.

The court didn’t issue an opinion in the case, but five months after the arguments announced that it would re-hear the case en banc. The second round of arguments is scheduled for the beginning of 2013.

The case was brought by two middle-school students, backed by the American Civil Liberties Union, who were suspended for wearing breast-cancer awareness bracelets stamped with the phrase, "I [heart] boobies." Their case was successful in the U.S. District Court for the Eastern District of Pennsylvania.

The school district appealed the trial court’s decision.

It’s a slippery slope from "I [heart] boobies" to more vulgar phrases that advocate for testicular-cancer awareness, Freund said, holding half-a-dozen of the popular rubber bracelets used to advocate for various causes. One said, "Feel my balls," while another said, "I [heart] cock."

Everybody understands that the bracelets at issue, distributed by the Keep A Breast Foundation, are part of a discussion about breast cancer, said Mary Catherine Roper, the ACLU attorney who argued the case. Phrases that suggest genital contact are quite different from those encouraging girls to take care of their bodies, she said.

Judge Thomas M. Hardiman focused his questions to her sharply on the issue of the speaker’s intent versus the way in which the language is perceived.

One appellate lawyer described the Third Circuit’s move to re-hear the case as "somewhat unusual" and said it could be an indication the court as a whole sees the potential significance of the case.

As judges draft opinions, they circulate them around the court, explained Burt Rublin, an appellate lawyer at Ballard Spahr who wasn’t involved in the case. If a majority of the active judges vote to hear a case after seeing the draft opinions, then the case will be heard en banc, he said.

Here, Rublin said, the court realized this case raised thorny constitutional issues.

"It’s clear that the issues about the First Amendment and school discipline are fraught with disagreement," Rublin said.

Saranac Hale Spencer can be contacted at 215-557-2449 or Follow her on Twitter @SSpencerTLI.