Stephen Vladeck, a University of Texas law professor, urges U.S. Supreme Court justices to allow the parents of a Mexican teenager to sue the U.S. Border Patrol agent who shot and killed their son in a 2010 transnational shooting. (Art Lien)
Appeals covering copyright protections for state laws, prosecutorial misconduct, nonunanimous jury verdicts and transnational shootings could come to a head in the year ahead, helping to define what access to justice really means.
Those spearheading the appeals — from public access advocates and crime witnesses to Mexican teenagers near the border — each have a different story to tell, but their cases all test and shape our rights in court, whether an individual is pursuing a civil claim or fighting criminal charges.
Here, Law360 looks at four key cases to watch in 2020.
Georgia v. Public.Resource.Org Inc.
Carl Malamud has a reputation for making public documents freely available online and then getting sued by various government entities.
The rogue archivist’s latest adversary is the state of Georgia, which has urged the U.S. Supreme Court to overturn a circuit court’s finding that people should have “unfettered access” to the state’s legal code.
That code is already accessible online in a basic format for free. However, a more robust annotated version, featuring case citations, expert analysis and opinion from the state attorney general, is only electronically available to those who pay a monthly or annual fee to LexisNexis, the third-party company contracted by Georgia’s Legislature to create the annotations. A hard copy of that version, called the Official Code of Georgia Annotated, costs $404.
When Malamud posted a free version of the OCGA on Public.Resource in 2013, Georgia filed a copyright infringement lawsuit to make him take it down. A federal judge sided with the state, but on appeal, the Eleventh Circuit noted the Georgia Legislature’s oversight of the annotation process as proof that the annotations themselves were “intrinsically public domain material.”
Georgia’s bid to reverse that ruling has garnered support from the federal government and at least eight other states. Their amicus brief said the Eleventh Circuit opinion, if allowed to stand, could invalidate copyrights in the official annotated codes of 21 other states, erasing profit incentive companies like LexisNexis, which typically don’t charge the states for the work.
“Without copyright protections in the annotations, States would be forced to choose between paying these third parties to annotate their codes or giving up their annotated codes altogether,” the amicus brief states.
Georgia’s use of annotated codes is based on a 19th-century effort to make the law more accessible. For Malamud, the paywall around the OCGA frustrates that historical legacy, especially for those without traditional legal resources, like self-represented litigants and solo practitioners.
He told Law360 that the annotated code is the one lawyers are expected to use in court; it contains things like chapter numbers and titles that make the codes navigable.
“What Lexis is selling here is not the fact that they’ve got annotations,” Malamud said. “It’s that they’re selling the only official law of Georgia; they’re selling their monopoly over a key part of the law, and that’s just un-American.”
At Dec. 2 oral arguments, Justices Brett Kavanaugh and Stephen Breyer focused on the fact that the annotations are not binding law, while Justices Neil Gorsuch and Sonia Sotomayor honed in the fact that legislators ultimately sign off on them.
“The state is the one who’s requiring this to be done,” Justice Sotomayor said. “It reviews it. It approves it. It is setting it out there as a merged document with the actual laws.”
That line of questioning is important because Malamud has asked the court to rule that the government edicts doctrine, which blocks copyright protection for official state laws and judicial opinions, applies to all legal works published “under the authority” of the state — including the annotated laws as well as things like building codes.
Georgia, on the other hand, has urged the high court to hold that the doctrine only applies to texts with binding legal force. A decision is expected by June.
Disclaimer: Law360 is a LexisNexis company.
Ramos v. Louisiana
In 2018, Louisiana voters passed a constitutional amendment that ended the state’s practice of allowing convictions based on nonunanimous jury verdicts, but the change didn’t affect an estimated 32,000 who had already been convicted by votes of 11-1 and 10-2.
One of those defendants, Evangelisto Ramos, has argued that his nonunanimous conviction for a 2014 murder is unconstitutional, and in November, the U.S. Supreme Court heard arguments over the issue.
The decision, expected this spring, could overturn the 1972 Apodaca v. Oregon ruling, in which an unusually divided court held that the Sixth Amendment guarantees a right to a unanimous jury — but not in state trials.
Four justices would have extended the right to all defendants in both federal and state trials, while four other justices maintained that no right to unanimous juries exists; the deciding vote fell to Justice Lewis Powell, who split the difference.
At Nov. 4 oral arguments in the present case, Justice Samuel Alito emphasized the importance of stare decisis, a concept that things already decided should remain as is and a hot-button issue for a court expected to revisit past decisions on topics like abortion in the not-too-distant future.
Justice Elena Kagan, on the other hand, asked questions that highlighted Apodaca’s unusually divided nature.
“What are we to make of this 4-1-4 reasoning of Apodaca?” she asked the counsel for Ramos, Jeff Fisher. “What do you think the rule should be about stare decisis going forward? Do you need a majority? Do you just need a controlling rule?”
Justice Brett Kavanaugh, meanwhile, used his questioning to highlight the fact that the state’s nonunanimity rule was rooted in racist, Civil War-era efforts to diminish the power of black jurors.
According to Aliza Kaplan, a Lewis & Clark University law professor and expert on nonunanimous jury rulings, the court’s ruling will have an impact far beyond Louisiana.
Oregon also allows nonunanimous verdicts in nonmurder felony cases, and efforts to amend that state’s constitution have stalled while Ramos’ case is pending.
“If the court decides that the practice is unconstitutional ... every case moving forward from the day of that opinion will require unanimity,” she said.
The decision could also have an outsized effect on old cases: Louisiana argued in its briefing that 32,000 convictions could be called into question if the court sided with Ramos. Fisher, however, told the justices “the retroactivity questions can be left for another day.”
Singleton v. Cannizzaro
Can a district attorney use fake court documents to force victims to meet with police — without being held accountable?
That is the question at the heart of Renata Singleton’s suit against Leon A. Cannizzaro, a district attorney in New Orleans. In 2017, independent news outlet The Lens reported that his office was summoning crime victims and witnesses to testify in court via “fake subpoenas” that threatened incarceration for noncompliance, despite having never been signed by a judge.
Cannizzaro’s office announced it would stop using the documents after the report came out, but that didn’t stop Singleton and six others, several of whom spent time behind bars for ignoring what turned out to be fake orders, from filing a federal civil rights lawsuit. In March, U.S. District Judge Jane Triche Milazzo rejected Cannizzaro’s bid to escape the suit, and his appeal is set for arguments at the Fifth Circuit within the first five weeks of 2020.
The American Civil Liberties Union represents Singleton in the case, with support from the libertarian think tank Cato Institute and a host of law professors and public defenders.
“There’s no serious question of whether the allegations are accurate or not — it was fake subpoenas,” Clark Neily, vice president for criminal justice at Cato, told Law360. “They were not acting as bonafide prosecutors.”
In her March ruling, Judge Milazzo dismissed many of the victims’ claims based on the doctrine of absolute immunity — a shield that protects prosecutors from lawsuits over anything “intimately associated with the judicial phase of the criminal process.”
But crucially, the judge refused to strike constitutional claims based on the creation of the subpoenas themselves, finding that they described “the usurpation of the power of another branch of government.”
“This court finds that granting the individual defendants absolute immunity for allegations of systematic fraud [would] grant prosecutors a license to bypass the most basic legal checks on their authority,” Judge Milazzo wrote.
On appeal, Cannizzarro argues that he should have absolute immunity from claims over the documents because they were issued in an effort to prosecute cases — part of his duty as a state official.
Cannizzaro’s communications director declined to comment on the ongoing litigation but shared a May 2018 statement from the DA’s office that called Singleton’s suit “a calculated attack on the criminal justice system.”
“It seeks to establish a right that does not currently exist under Louisiana or American law: That essential witnesses cannot be compelled to speak with police, prosecutors, judges or juries,” Cannizzaro’s office said. “Its goal is to impair prosecutors’ ability to bring in witnesses to a case who already have made important statements to police, and to undermine our ability to prepare them for trial.”
Hernandez v. Mesa
At Nov.12 Supreme Court arguments over a Mexican family’s right to sue the U.S. Border Patrol agent who shot and killed their son in 2010, one justice cut through the complex legal dispute with a simple question.
“At this very preliminary stage, we’re supposed to accept the complaint's allegations as true,” Justice Ruth Bader Ginsburg noted in a question to the agent’s lawyer, Randolph Ortega. “Here, we have a rogue officer ... using excessive force to kill a child at play. How does that call into question any foreign policy or national security policy?”
Her question cut to the core of the case known as Hernandez v. Mesa. It has already been to the Supreme Court once before, after an appeals court granted border agent Jesus Mesa Jr. qualified immunity from liability over his shooting of Sergio Adrian Hernandez Guereca.
That ruling was based on the fact that Hernandez had no significant voluntary connection to the U.S., but in June 2017, the high court remanded it on the grounds that Mesa couldn’t have known the extent of the youth’s ties when he shot him.
The boy’s family is pursuing damages under the 1971 Supreme Court ruling Bivens v. Six Unknown Named Agents , which allows people to collect money damages if their constitutional rights have been violated by a federal officer and no alternative legal remedy exists. On remand, the full Fifth Circuit refused to extend the remedy out of concern about interfering with “the political branches’ oversight of national security and foreign affairs.”
Ninth Circuit judges, however, have ruled in a similar case that a border agent was not immune to liability, creating a circuit split that the nation’s high court could resolve in the Hernandez case.
Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, signed onto an amicus brief in the case and told Law360 that a ruling for Hernandez would be the first step to ensuring “a meaningful check” on border agents.
“If, however, the court were to find that a Bivens remedy was unavailable, it would essentially provide constitutional immunity to the cross-border actions of Border Patrol, even when they kill a child,” Gelernt added.
A group of former CBP officials also supports Hernandez in the case. In their amicus brief, filed by Kelsi Brown Corkran, a partner at Orrick Herrington & Sutcliffe LLP, the officials argued that “those who use illegal force will not be held accountable unless suits like petitioners’ are allowed to proceed.”
“We typically think of justice as something the victim’s family can participate in,” Corkran said. “Having some sort of closed, internal government investigation is very different than having the right to go into court and have a jury hear the evidence and make an independent decision.”
But the Criminal Justice Legal Foundation, a conservative think tank, said in its pro-government amicus brief that the Department of Justice investigation should be considered sufficient — expanding Bivens, the group wrote, “would chill the enforcement of America’s border security.”
“The context in which this case arose is unlike any other that has come before it,” the CJLF brief states. “The fact that petitioners contend that this case does not present a new context, but rather falls ‘squarely within Bivens’ analytical and historical core’ is mind-boggling.”
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--Editing by Katherine Rautenberg.