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4 Access To Justice Cases To Watch In 2019

By RJ Vogt | January 6, 2019, 8:02 PM EST

The dust hasn't settled from a year that included major decisions on issues like pretrial bail practices and veterans' right to bring class actions over denied benefits, but 2019 already promises big moments for access to justice cases on civil forfeiture and legal aid funding.

Here, Law360 looks at those cases and others worth watching in the new year:

A Drug Dealer's Seized SUV Awaits Supreme Court Ruling

Civil forfeiture, the practice of seizing property believed to be part of a crime, burst into the legal spotlight in 2018 after a convicted drug dealer took a dispute with Indiana over his seized Land Rover to the U.S. Supreme Court.

Now, all eyes are on the court for its opinion in the case, which could have far-reaching consequences for states as well as the federal government, which took in about $1.6 billion in 2017 gross forfeiture revenue.

The petitioner Tyson Timbs pled guilty in 2015 to drug and theft-related charges after being arrested for selling $400 worth of heroin out of his car. The court sentenced him to one year of home detention plus five years of probation and also ordered him to pay more than $1,200 in costs and fees.

But because the Land Rover was used in the crime, the state of Indiana also sought to seize the $42,000 vehicle via civil forfeiture. Though a trial judge denied the bid on the grounds that it would be a violation of the Eighth Amendment’s ban on excessive fines, the Indiana Supreme Court reversed that decision, saying the U.S. Supreme Court had not expressly applied the excessive fines clause to the states.

Timbs turned to the high court, which agreed in June to hear the case. At oral arguments in November, Justice Neil Gorsuch interrupted the Indiana solicitor general’s opening argument to "get one thing off the table."

"We all agree that the excessive fines clause is incorporated against the states," he said, answering the official question presented in the case.

From there, the questions turned to how much is too much. Chief Justice John Roberts asked whether seizing a $42,000 Land Rover would be considered excessive if the vehicle's owner was a multimillionaire; Justice Stephen Breyer asked whether it mattered if the car was a Ferrari or a clunker.

Lisa Foster, co-founder of the Fines and Fees Justice Center, told Law360 after the hearing that she thought the high court would "no doubt" incorporate the excessive fines clause against the states. When contacted last week, she added that she isn't expecting an expansive opinion.

"At most, we may get some hints about which monetary sanctions may be encompassed within the clause and perhaps a suggestion of how some of the justices might assess what's excessive," she said. "What I can say with confidence is that over time, those issues will be resolved because there are advocates ready to bring excessive fines cases as soon as the Timbs decision is handed down."

9th Circ. to Decide Immigrant Children's Right to Counsel

Eleven Ninth Circuit judges looked at U.S. Department of Justice attorney Scott Stewart in December, listening as he explained how a 2-year-old — or even "a baby in a basket" — can have a fair immigration hearing without a lawyer.

In January 2018, a three-judge panel had ruled "it is not established law that alien minors are categorically entitled to government-funded, court-appointed counsel," but that opinion, penned by U.S. Circuit Judge Consuelo M. Callahan, was vacated in September after the Ninth Circuit decided the case should be reargued in an en banc hearing.

The rehearing offered an opening for immigrant rights' advocates who argue minors should be appointed counsel because they're too young to navigate the complexities of immigration law on their own. During arguments, Judge Callahan asked the government counsel directly, "When, if ever, would it be appropriate to appoint counsel for a minor in an immigration removal proceeding?"

"I couldn't commit to a particular case where it would be constitutionally required to appoint counsel," Stewart answered. After more prodding from the bench, he acknowledged "I am arguing never."

U.S. Circuit Judge Andrew Hurwitz pressed him, asking whether that meant a 2-year-old could have a fair hearing with no representation. Moments later, Judge Callahan extended the question further, asking "what about a baby in a basket that couldn't even talk?"

According to Ahilan Arulanantham, the American Civil Liberties Union attorney who represents the Honduran boy at the center of the case, Stewart's reluctance to concede that some young children may need lawyers was a tactical choice.

"Once you admit that a 3-year-old needs a lawyer, it's not a lot of steps to what we advocate, which is that those under 18 need a lawyer," Arulanantham told Law360.

If the looming en banc opinion sides with Arulanantham's client, an appeal to the high court would likely follow.

Legal Aid Funding Source Could Be Slashed

According to the American Bar Association, about $15.5 million is funneled to legal services organizations every year via a little-known class action settlement practice known as cy pres, in which a portion of a settlement's funds is allocated to nonprofits when the parties and the judge have agreed the money can't be feasibly distributed to class members.

But in 2019, legal aid groups will find out if the cy pres revenue stream will be dammed by the Supreme Court's decision on Frank v. Gaos. In that case, heard on Oct. 31, petitioners Theodore Frank and Melissa Ann Holyoak are challenging an $8.5 million privacy settlement that has Google LLC paying millions to third parties and nothing to a potential 130 million class members, who would have otherwise won 4 cents each.

Typically, these funds are the leftover, unclaimed portions of a settlement, but the Google case is a rare "cy pres only" settlement. Cy pres opponents say the tool allows lawyers and even defendants to inappropriately funnel money to favored institutions. They also argue that cy pres has encouraged the plaintiffs bar to file expansive class actions that can rarely provide direct benefits to class members.

When the practice arose about 30 years ago, it came out of a desire to keep unclaimed funds from reverting to a defendant. Proponents say that it's better to put the money toward legal aid organizations like Washington state's Legal Foundation of Washington. In 2017, the group used $321,900 in cy pres awards to close a budget shortfall.

But Frank, who is also the director of the Center for Class Action Fairness at the Competitive Enterprise Institute, told Law360 in October that the fact legal aid organizations do good things doesn't justify the means in which they receive the money.

The National Legal Aid & Defender Association, together with the Association of Pro Bono Counsel and six other legal aid groups filed an amicus brief in the case, arguing that federal courts have developed appropriate limits to the use of cy pres awards. Their brief also made the case that awarding cy pres sums to legal aid groups is in keeping with the very practice of class actions.

"Class actions exist to provide access to the courts for those who could not otherwise afford to litigate a legitimate claim; legal aid organizations serve the same purpose, because legal aid organizations exist to help those who would otherwise not be able to obtain the protections of the justice system," the brief states.

Double Jeopardy Claim Has National Consequences

A case with ramifications for both the U.S. President and Native American women hit the U.S. Supreme Court late last year. At the center of it all is Terance Gamble, who was pulled over for a faulty headlight in Alabama a little over three years ago. Police searched his car and found a handgun that Gamble — a convicted felon — wasn't allowed to have.

The state sentenced him to a year in prison on gun possession charges, but after federal prosecutors convicted him for the same conduct under federal laws, his sentence ballooned; he is now set to be released in February 2020, nearly three years after he would have been released from state prison.

According to Gamble, dinging him twice for the same crime violated the U.S. Constitution's double jeopardy clause, which promises that no one shall "be twice put in jeopardy" for the same offense. But lower courts rejected his claim under the Supreme Court's separate sovereigns exception, a 170-year-old line of reasoning that holds state and federal governments are two different sovereign entities and can therefore prosecute someone for the same conduct.

Gamble appealed and in December made his case before the high court. Most news media focused on the ramifications the case could have for President Donald Trump, who can pardon his associates for federal crimes but is not able to pardon them for state crimes. If the Supreme Court overturns its separate sovereign doctrine, then the threat of state charges would be diminished and the power of a presidential pardon would expand.

But overturning the separate sovereigns doctrine would also have consequences for Native Americans who suffer from domestic violence; a 2016 report by the National Institute of Justice found that more than four out of five Native Americans experienced violence, and 56 percent of women reported being victims of sexual violence.

Tribes are generally limited to prosecuting only for misdemeanors, but the federal government can prosecute repeat domestic abusers for felonies; without the threat of federal prosecution, perpetrators could get off with a slap on the wrist.

According to oral arguments by Eric Feigin, assistant to the U.S. solicitor general, two-thirds of the successive prosecutions the federal government brings each year follow tribal prosecutions, many of them regarding domestic abuse.

The National Indigenous Women's Resource Center and National Congress of American Indians filed an amicus brief in the Gamble case, supporting the government.

--Additional reporting by Natalie Rodriguez, Nicole Narea and Diana Novak Jones. Editing by Katherine Rautenberg.

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