Opposition Brief — William Alan Pesnell, et al., Petitioners v. Jill Sessions, et al.

No. 19-874

IN THE

Supreme Court of the United States

WILLIAM ALAN PESNELL AND CHRISTOPHER

HOLDER, THROUGH HIS CURATOR, GARY HOLDER,

Petitioners,

v.

JILL SESSIONS, CLERK OF COURT, JENNIFER

BOLDEN, CERTIFIED DIGITAL REPORTER, AND

THE JUDGES OF THE 26th JUDICIAL DISTRICT

COURT: MICHAEL O. CRAIG, JEFF R. THOMPSON,

JEFF COX, E. CHARLES JACOBS, MICHAEL

NERREN, AND PARKER O. SELF,

Respondents.

On Petition for a Writ of Certiorari to the Louisiana

Second Circuit Court of Appeal

BRIEF IN OPPOSITION OF

RESPONDENT JENNIFER BOLDEN

SCHUYLER MARVIN

Counsel of Record

204 Burt Blvd.

Benton, LA 71006

Email: smarvin@26thda.org

Telephone: (318) 965-2332

PATRICK R. JACKSON

Patrick R. Jackson, APLC

4442 Viking Drive

Suite 100

Bossier City, LA 71111

Email: PJackson@

bossierlawoffice.com

Telephone: (318) 752-3335

Attorneys for Respondent Jennifer Bolden,

Certified Digital Reporter

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

Table of Authorities .................................................. iii

I. Introduction .............................................................1

II. Petitioners Challenge La. R.S. 44:4(47)(a) ............4

III. The Three Questions ............................................5

A. This Court Should Not Take Up

the Issues Posed by Petitioners’

First Question .............................................5

i. Christopher Holder’s Desire

for Post-Conviction Relief

Does Not Permit this Court

to Reach a Constitutional

Question ..............................................6

ii. William Alan Pesnell’s Desire

for Christopher Holder to

Inherit Does Not Permit

this Court to Reach a

Constitutional Question ....................7

iii. Petitioners’ Status as Members

of the Public Does Not Permit

this Court to Reach a

Constitutional Question ...................8

iv. Petitioners Do Not Show that

they have been Harmed ...................9

B. This Court Should Not Take Up

The Issues Posed by Petitioners’

Second Question ..........................................9

i. Petitioners Do Not Show that the

Ordinary Tools of Discovery Do

Not Suffice to Protect the

Asserted Interests ..............................9

ii. Petitioners Do Not Show that

they have been Harmed ..................10

C. No Issue is Posed by the First Part

of Petitioners’ Third Question ..................10

D. Louisiana’s Second Circuit Court

of Appeal Correctly Decided the

Issue Posed by the Second Part

of Petitioners’ Third Question ...................13

IV. Conclusion ...........................................................14

ii

TABLE OF AUTHORITIES

Cases

Arizona v. California, 283 U.S. 423

(1931) .............................................................. 3 n.5

Ashwander v. Tennessee Valley

Auth., 297 U.S. 288 (1936) ............... 3 n.5, 3, 9, 10

Brady v. Maryland, 373 U.S. 83

(1963) ............................................................ 5 n.12

City of S. Miami v. Desantis. No. 19-cv22927-BLOOM/Louis, 2019 U.S. Dist.

LEXIS 214078 (S.D. Fla. Dec. 12,

2019) ............................................................... 3 n.5

Communist Party of United States v.

Subversive Activities Control Bd.,

367 U.S. 1 (1961) .........................................3, 8, 10

Concordia Fire Ins. Co. v. Illinois,

292 U.S. 535 (1933) ........................................ 3 n.6

Exxon Shipping Co. v. United States

Dep’t of Interior, 34 F.3d 774 (9th

Cir. 1994) ....................................................... 8 n.15

Heald v. District of Columbia, 259

U.S.114 (1922) ................................................ 3 n.6

Heller v. Doe, 509 U.S. 312 (1993) ............................14

iii

Hendrick v. Maryland, 235 U.S. 610

(1915) .............................................................. 3 n.6

Johnson v. Sikes, 730 F.2d 644 (11th

Cir. 1984) ........................................................ 3 n.5

Lehnhausen v. Lake Shore Auto

Parts Co., 410 U.S. 356 (1973) ................... 14 n.37

Liverpool, N.Y. & Phila. S.S. Co. v.

Commissioners of Emigration,

113 U.S. 33 (1885) .......................................3, 8, 10

Logan v. Township of W. Bloomfield,

No. 16-cv-10721, 2018 U.S. Dist.

LEXIS 127692 (E.D. Mich. July

31, 2018) 179 U.S. 405 (1900) .................... 11 n.25

United States v. Carolene Products

Co., 304 U.S. 144 (1938) ......................................14

United States v. Procter & Gamble

Co., 356 U.S. 677 (1958) ............................... 8 n.15

Washington v. Glucksberg, 521 U.S.

702 (1997) ................................................... 11 n.25

Constitutional Provisions

LA. CONST. art. I, § 2 ........................................ 13 n.36

LA. CONST. art. I, § 7 ........................................ 13 n.36

iv

LA. CONST. art. I, § 16 ...................................... 13 n.36

LA. CONST. art. I, § 19 ...................................... 13 n.36

U.S. CONST. amend. I .................................. 5, 13 n.36

U.S. CONST. amend. V ................................. 5, 13 n.36

U.S. CONST. amend. VI ............................ 5, 9, 13 n.36

U.S. CONST. amend. XIV ......................... 5, 9, 13 n.36

Rules

Unidentified Rule of the 26th

Judicial District Court in

and for Bossier Parish.................................... 1 n.2

Secondary Sources

James A. Rountree, ABA

Minimum Standards for

Criminal Justice – A

Student Symposium,

Louisiana and Criminal

Discovery, 33 LA. L. REV.

596 (1973) ..................................................... 5 n.12

Statutes

La. C.C.P. art. 1461.....................................................7

La. C.C.P. art. 1462.....................................................7

v

La. C.C.P. art. 1463.....................................................7

La. C.C.P. art. 1469.....................................................7

La. C.C.P. art. 2824.....................................................7

La. C.C.P., bk. II..........................................................7

La. C.C.P., bk. VI ........................................................7

La. C.Cr.P., art. 928 ....................................................6

La. C.Cr.P., art. 929 ....................................................6

La. C.Cr.P., art. 930 ................................................ 6-7

La. C.Cr.P., tit. XXXI-A ..............................................6

La. R.S. 13:4165 ................................................. 7 n.13

La. R.S. tit. 44, chapt. 1 ..............................................4

La. R.S. 44:1.1 .............................................................4

La. R.S. 44:4 ................................................................4

La. R.S. 44:4(47) ....................... 1 n.2, 5, 9, 10, 13 n.36

La. R.S. 44:4(47)(a).................................................. 4-5

vi

I. Introduction.

Petitioners urge that the transcript of a

criminal trial is (or may be) inaccurate. 1 They seek

audio recordings of the trial. Their chosen device for

securing these is a public-records request. But their

use of that device was thwarted by a statute making

the recordings not public records.

Petitioners respond by challenging the

constitutionality of the statute. 2 However, Petitioners

1 Petition for Writ of Certiorari (“Pet.”) 9 (§ C) (referring

to “affidavits of . . . witnesses who attested . . . that [an] objection

made in closing argument was not in the transcript”). See also

id. 14 (last para.) (referring to affidavits alleging “that the

transcript did not include a material objection, response and

ruling made during . . . closing arguments”, and appearing to tie

the objection to prejudicial comments) & 15 (para. 2) (objection

& comments). The criminal case is State v. Holder, No. 191,414

(La. 26 J.D.C., 2014).

2

Petitioners also purport to challenge the

constitutionality of a “local rule of the 26th Judicial District Court

in and for Bossier Parish”. Pet. i, at nos. 1 & 2 (identical

language). But Petitioners never identify the rule or its content.

See id. 2-4 (listing “statutes ordinances and regulations involved

in the case” (capitalization & italic font suppressed) and nowhere

listing the rule), 7-8, at no. 3 (referring only to “a local court

rule”), 8, at no. 4 (referring only to “the local rule”), 8 (at no. 5)

(referring only to “the local rule”), 8 (first para. after the

numbered items) (referring only to “the local court rule”), 11, at

no. 11 (referring only to “the local court rule”), 11 (after the

numbered items) (referring only to “the local court rule”), 12

(para. 1) (referring only to “the local court rule”), 14, at no. 1

(reprising the language of i, at no. 1, which refers only to a “local

rule of the 26th Judicial District Court in and for Bossier

Parish”), 22-23, at no. 2 (reprising the language of i, at no. 2,

which refers only to a “local rule of the 26th Judicial District

Court in and for Bossier Parish”), & 27-28 (referring only to “the

26th Judicial District court’s local rule”, to “the rule”, and again

are not just members of the general public—they are

the convicted criminal defendant, and counsel for the

defendant in an ancillary proceeding. The convicted

defendant, Christopher Holder (“Holder”), seeks relief

on appeal or other post-conviction relief. 3 Counsel in

the ancillary proceeding, William Alan Pesnell

(“Pesnell”), seeks information bearing on Holder’s

right to inherit. 4 Petitioners have not shown that

to “the rule”). This Court cannot invalidate a rule that is not

before it. Moreover, Petitioners themselves say that the putative

rule played no role in their failure to secure the recordings: they

say that “[i]n denying the requests, the defendants cited and

relied solely on La. R.S. 44:4(47)”. Id. 18 (penult. para.)

(footnotes omitted).

Respondent Bolden, accordingly, takes the purported

challenge to a local rule to be idle. She will respond to the

constitutional challenge to the statute, but is unable to address

the purported challenge to an unidentified rule—except to note

that constitutional issues attaching to any rule need no more be

reached than constitutional issues attaching to the statute. She

respectfully reserves her right to supplement if this Court should

permit Petitioners to supplement by identifying the rule.

3 See Pet. i, at no. 2 (saying that “the convicted defendant

act[ed] to obtain evidence in his case for purposes of appeal

and/or post-conviction relief”). Cf. id. 15 (para. 2) (referring to

Holder’s rights under the Public Records Law “during his postconviction relief periods”), 23 (para. 2) (“Christopher Holder has

a right to obtain evidence pertinent to his case for post-conviction

relief purposes”), & 26 (identifying, as among the interests at

stake, “a criminal defendant’s interests against deprivations of

liberty”).

4 Id. 6 (last para.) (“William Alan Pesnell acted as a

successor counsel of record for Christopher Holder in Probate....

The ruling in that case was contrary to the interests of

Christopher Wayne Holder”) & 7 (“Accordingly, . . . William Alan

Pesnell sent a letter to the Clerk of Court requesting a copy of

the data file in . . . State of Louisiana v. Christopher Holder”). →

2

their status as defendant and counsel do not provide

them with tools capable of confirming or

disconfirming the accuracy of the trial transcript.

Accordingly, no court need now decide the

constitutional questions.

In this Court, “[n]o rule of practice . . . is better

settled than ‘never to anticipate a question of

constitutional law in advance of the necessity of

deciding it’”. 5 For this reason, Petitioners’ application

for a writ of certiorari should be denied.

Petitioners’ failure to show that they could not

otherwise confirm or disconfirm the accuracy of the

transcript also means that they have not shown that

they have sustained any harm. This Court “will not

pass upon the validity of a statute upon complaint of

one who fails to show that he is injured by its

operation”. 6 This is an independently sufficient

reason Petitioners’ application should be denied.

See also id. 15-16 (“William Alan Pesnell was the counsel for

Christopher Holder in the succession proceeding”).

5 Communist Party of United States v. Subversive

Activities Control Bd., 367 U.S. 1, 71-72 (1961) (Frankfurter, J.,

for the Court), quoting Liverpool, N.Y. & Phila. S.S. Co. v.

Commissioners of Emigration, 113 U.S. 33, 39 (1885), and citing

Arizona v. California, 283 U.S. 423 (1931) & Ashwander v.

Tennessee Valley Auth., 297 U.S. 288[, 346-47] (1936) (Brandeis,

J., concurring). See also the cases cited at Ashwander 347. For a

recent case, see City of S. Miami v. Desantis. No. 19-cv-22927BLOOM/Louis, 2019 U.S. Dist. LEXIS 214078, at *57 (S.D. Fla.

Dec. 12, 2019) (referring to “the well-established rule that a court

is never to ‘anticipate a question of constitutional law in advance

of the necessity of deciding it’”, quoting Johnson v. Sikes, 730

F.2d 644, 649 (11th Cir. 1984)).

6 Ashwander, supra note 5, at 347 (Brandeis, J.,

concurring), citing New York ex rel. Hatch v. Reardon, 204 U.S.

152 (1907), Heald v. District of Columbia, 259 U.S. 114, 123

3

II. Petitioners Challenge La. R.S. 44:4(47)(a).

La. R.S. tit. 44, chapt. 1 is the Louisiana Public

Records Law. 7 Section 44:4 lists records to which

“[t]his Chapter shall not apply”. Section 44:4(47)(a)

includes in the list

the physical medium or contents of

any electronic storage device . . . in

the custody or under the control of a

judge, clerk of court, official court

reporter, deputy official court

reporter, or certified electronic

reporter and which are produced,

made, or used by an official court

reporter, deputy official court

reporter, free lance reporter, or

certified electronic reporter in any

court of record of the state during

any proceedings before that court to

report the proceedings or for the

purpose of

transcribing

into

typewriting those portions of the

proceeding required by law or the

court to be transcribed. 8

(1922), Sprout v. South Bend, 277 U.S. 163, 167 (1928),

Concordia Fire Ins. Co. v. Illinois, 292 U.S. 535, 547 (1933), Tyler

v. Judges of the Court of Registration, 179 U.S. 405 (1900), &

Hendrick v. Maryland, 235 U.S. 610, 621 (1915).

7 La. R.S. 44:1.1.

8 Cf. Pet. 17-18.

4

Accordingly, if it is constitutional, section 44:4(47)(a)

makes the recordings sought by Petitioners not public

records. 9

Petitioners present three questions—two challenging the constitutionality of La. R.S. 44:4(47)(a)

and one pertaining to burdens of proof. 10

III. The Three Questions.

A. This Court Should Not Take Up the Issues

Posed by Petitioners’ First Question.

Petitioners first ask whether, in barring

“public access to the digital recording of a public

murder trial”, La. R.S. 44:4(47) is “consistent with the

First, Fifth, Sixth and Fourteenth Amendments of the

United States Constitution”. 11

But Petitioners are not just members of the

public. They are the convicted defendant in the

“public murder trial” and counsel to the convicted

defendant in an ancillary proceeding. They therefore

had the normal tools of discovery in criminal and civil

actions available to them. 12

9 It is undisputed that transcription was required by law

or the court.

10 Pet. i.

11 Id., at no. 1 (emphasis added).

12 It is sometimes said that there is no criminal

discovery. See generally James A. Rountree, ABA Minimum

Standards for Criminal Justice – A Student Symposium,

Louisiana and Criminal Discovery, 33 LA. L. REV. 596 (1973).

Rountree notes, however, that Brady v. Maryland, 373 U.S. 83

(1963) requires “prosecutorial ‘disclosure’” and comments that

“[i]t is difficult . . . to conceive of a duty to disclose without a

corresponding right to discover”. Rountree 607. He also notes

5

i. Christopher Holder’s Desire for

Post-Conviction Relief Does Not Permit

this Court to Reach a Constitutional

Question.

In particular, La. C.Cr.P., tit. XXXI-A (arts.

924-930.9) governs post-conviction relief. Article 930

provides that “[a]n evidentiary hearing for the taking

of testimony or other evidence shall be ordered

whenever there are questions of fact which cannot

properly be resolved pursuant to Articles 928

[providing for dismissal upon the pleadings] and 929

[providing for summary disposition]”. Article 930 is

the natural vehicle through which, for purposes of

post-conviction relief, a convicted defendant might

challenge the accuracy of a trial transcript—but it is

absent from Petitioners’ petition.

Art. 930 requires that the court “shall” order a

hearing whenever there are unresolved questions of

fact—and clearly the court is to aim at a resolution of

those questions. There are many ways in which a

court discharging that mandate might, for litigants,

that decisions bearing on criminal discovery have turned on the

Public Records Law, but comments that this is strange:

“Strangely, the decision as to whether the defendant is entitled

to evidence before trial has turned on a consideration of the

Public Records Act.” Id. 602 (footnote omitted).

Petitioners say that the refusals of the lower courts to

make the recordings a public record “create a ‘star chamber’

where the proceedings can be manipulated without public

review, and without recourse to a substantially affected

defendant”. Pet. 13-14. An irony of their approach is that it

increases the risk they deplore—or at least a similar risk. If

criminal discovery turns on the Public Records Law, most

evidence will be unavailable to criminal defendants.

6

confirm or disconfirm the accuracy of a transcript—

for example, by listening to recordings in camera, or

by securing consent for a special master to do so. 13

These ways do not require that the recordings be

made generally available. They are avenues that must

be tried before a constitutional question about general

availability can be reached.

ii. William Alan Pesnell’s Desire for Christopher

Holder to Inherit Does Not Permit this Court

to Reach a Constitutional Question.

Similarly, La. C.C.P., bk. VI (arts. 2811-3500)

governs probate procedure. Article 2824 provides

that, in contradictory proceedings, “issues of fact shall

be determined on the trial thereof only by evidence

introduced as in ordinary cases”.

La. C.C.P., bk. II (arts. 851-2080) governs

ordinary cases. Article 1461 provides for the

production of “documents or electronically stored

information”. Article 1462 sets out the procedure for

requests for production of documents. Article 1469

provides for motions to compel discovery. And article

1463 provides that “[a]rticles 1461 and 1462 do not

preclude an independent action against a person not

a party for production of documents and things . . .”

These articles are the natural vehicles through

which a convicted defendant might secure evidence

for use in determining whether he possesses a right

to inherit—but they are absent from Petitioners’

petition. The use of these articles does not require

13 See La. R.S. 13:4165 (providing for special masters).

On information and belief, the respondent judges in this case

have proposed a special master but Petitioners will not consent.

7

that the evidence be made generally available. They

are avenues that must be tried before a constitutional

question about general availability can be reached.

iii. Petitioners’ Status as Members of the Public

Does Not Permit this Court to Reach a

Constitutional Question.

Petitioners argue that they are not only a

convicted defendant and counsel in an ancillary

proceeding—they argue that they (or at least Pesnell)

are members of the public who are asserting a public

interest in the recordings being sought. “William Alan

Pesnell is a member of the public in good standing ...

Moreover, he has a heightened interest in the fairness

and proper operation of the judicial system . . .” 14

However, Holder and Pesnell qua members of

the public are in the same position as Holder and

Pesnell qua litigants protecting private interests. If

the ordinary tools of discovery suffice to protect the

private interests they will also suffice to protect the

public interests. 15 Accordingly, it remains true that

there is no necessity of deciding the constitutional

questions. 16

14 Pet. 16 (para. 1).

15 Compare suits in which the government is a party. The

government is then in the same position as a private litigant,

and the rules of discovery apply. See, e.g., Exxon Shipping Co. v.

United States Dep’t of Interior, 34 F.3d 774, 776 n.4 (9th Cir.

1994), citing United States v. Procter & Gamble Co., 356 U.S.

677, 681 (1958) & Mosseller v. United States, 158 F.2d 380 (2d

Cir. 1946).

16 See supra note 5 & accompanying text.

8

iv. Petitioners Do Not Show that they have been

Harmed.

Petitioners—whether criminal defendant qua

defendant, lawyer qua lawyer, or defendant or lawyer

qua member of the public—have not shown that the

ordinary tools of discovery do not suffice to protect the

interests they assert. For this reason, they have also

not shown that they have been harmed. 17

B. This Court Should Not Take Up the Issues

Posed by Petitioners’ Second Question.

i. Petitioners Do Not Show that the Ordinary

Tools of Discovery Do Not Suffice to Protect

the Asserted Interests.

Petitioners’ second question rests on a presupposition: that La. R.S. 44:4(47) “bar[s] access to the

digital recording of a public murder trial [not to the

public generally but] to the convicted defendant”. 18

Petitioners then ask whether this purported bar is

“consistent with the Sixth[] and Fourteenth

Amendments to the United States Constitution,

where the convicted defendant acts to obtain evidence

in his case for purposes of appeal and/or postconviction relief”. 19

But we have already seen that the convicted

defendant has the ordinary tools of criminal

17 See supra note 6 & accompanying text.

18 Pet. i, at no. 2 (emphasis added).

19 Id.

9

procedure at his disposal. 20 These are the natural

ways of securing evidence for appeal or other postconviction relief. The presupposition is therefore

false: in making the recordings not public records,

section 44:4(47) does not bar access to the convicted

defendant.

Further, as we have also already seen,

Petitioners must avail themselves of ordinary

criminal procedure before they can raise

constitutional questions about the status of the

recordings as not public records. 21 But ordinary

criminal procedures are absent from Petitioners’

petition. Accordingly, there is no necessity of deciding

the constitutional questions.

ii. Petitioners Do Not Show that they have been

Harmed.

Because Petitioners do not show that ordinary

criminal procedures do not suffice to protect the

asserted interests, Petitioners do not show that they

have been harmed. 22

C. No Issue is Posed by the First Part of

Petitioners’ Third Question.

Petitioners’ third question divides into two.

The first part asks whether “a state can alter the

burdens of the parties for determinations of the

validity of statutes impairing fundamental rights”. 23

20 Supra 6-7 (§ i).

21 See supra note 5 & accompanying text.

22 See supra note 6 & accompanying text.

23 Pet. i, at no. 3.

10

We have seen that there is no necessity of deciding

constitutional questions. Accordingly, if the rights at

issue are constitutional rights, the question of who

has the burden does not arise. This remains true if the

rights are extra-constitutional—since Petitioners

have failed to allege that they have been harmed.

However, it is also true that Petitioners make

no argument that La. R.S. 44:4(47) does impair a

fundamental right. 24

The list of fundamental rights and

liberty interests—which includes

the rights to marry, to have

children, to direct the education and

upbringing of one’s children, to

marital

privacy,

to

use

contraception, to bodily integrity, to

terminate one’s pregnancy, and

possibly the right to refuse

unwanted

lifesaving

medical

treatment, . . . is short and the

Supreme Court has expressed very

little interest in expanding it. 25

The more usual word, rather than “impair”, is

“burden”. Respondent uses “impair”, here and below, only to

conform to Petitioners’ usage and to avoid confusion between the

burdening of a right and the burden of proof. No distinction

between impairment and burdening is intended.

25 Seal v. Morgan, 229 F.3d 567, 574-75 (6th Cir. 2000),

citing Washington v. Glucksberg, 521 U.S. 702, 720, 721 (1997).

No further item appears in the Seal list. See also Logan v.

Township of W. Bloomfield, No. 16-cv-10721, 2018 U.S. Dist.

LEXIS 127692, at *21-*22 (E.D. Mich. July 31, 2018) (quoting

Seal).

24

11

Petitioners make no argument that any of these

rights is impaired by a statute whose only import is

that trial recordings are not public records. 26 If any is

impaired, the impairment is only incidental—and

Petitioners similarly make no argument that a merely

incidental impairment of a fundamental right shifts

the burden of proof to the State. 27 They do assert that

the burden shifted because they had made a “prima

facie case”. 28 But, in the absence of any identification

of the right, any characterization of the nature of the

impairment (whether direct or incidental), and any

exploration of the effect of that sort of impairment on

that identified right, this assertion is empty.

Indeed, so confused is Petitioners’ treatment of

burden-shifting that they seem to believe the burden

shifted because their prima facie case established

standing. They say that “the prima facie case of the

petitioners in the trial court was established”, and

immediately thereafter say, of themselves: “They had

standing”. 29 They then just refer to “the statute at

issue”, reprise their bald assertion that the statute

impairs “fundamental rights”, and conclude that, if

the burden was ever on them, it shifted. 30

Thereafter, Petitioners’ brief on their third

question retreats from even purporting to discuss

fundamental rights and burden-shifting. It instead

points out that the case implicates, not fundamental

26 See Pet. 25-28 (briefing Petitioners’ third question but

nowhere mentioning any of these rights).

27 See id.

28 Id. 25 (para. 3, sent. 1).

29 Id. 25 (para. 3, sents. 1 & 2).

30 Id. 25 (para. 3, sents. 3-5).

12

rights, but important interests. 31 And it argues, not

that the burden shifted, but that, if it shifted, the

State did not meet the burden. 32

D. Louisiana’s Second Circuit Court of Appeal

Correctly Decided the Issue Posed by the

Second Part of Petitioners’ Third Question.

The second part of Petitioners’ third question

asks whether “the State of Louisiana applied the

proper burden in the case at bar”. 33 The trial court

imposed the burden of proof on the constitutional

questions on Petitioners: it “sustained the exceptions

of no cause of action based on Plaintiffs’ failure to

prove that La. R.S. 44:4(47) is unconstitutional”. 34

The Second Circuit Court of Appeal did not reverse

the trial court. 35

Because there is no necessity of deciding the

constitutional questions, the question of who has the

burden does not arise. 36 The Second Circuit was

31 Id. 26 (para. 2) (comparing various public and private

interests).

32 Id. 27-28 (claiming, e.g., at 27 (para. 1, last sent.), that

“neither the defendants below nor the State have proposed

anything that would support the statute at issue”).

33 Pet. i, at no. 3.

34 Pet. 19a (para. 2) (emphasis added) (Opinion by the

Second Circuit Court of Appeal).

35 Id.

36 As the Second Circuit recognized. It felt that “[a]ny

opinion from this court regarding the constitutionality of La.

R.S. 44:4(47) would constitute an advisory opinion”. Id. The

court treated the issues alleged under the Louisiana

Constitution and those alleged under the U.S. Constitution

together. See id. 17a (last para.) (referring to “the overlap of

13

therefore correct in leaving the ruling of the trial

court undisturbed.

However, it is also true that, if the issue arose,

the Second Circuit would have been correct in

sustaining the trial court. Statutes come with a

presumption of constitutionality, which it is a

challenger’s burden to rebut. 37 The burden may shift

when the challenger makes a prima facie showing of

constitutional infirmity. But we have seen that

Petitioners merely assert, and do not argue, that they

made such a showing. 38 There would therefore be no

argument, even if the issue arose, that the Second

Circuit erred in leaving the burden where the trial

court placed it—on Plaintiffs.

Carolene Products is an analogous and classic

Fifth Amendment case. This Court noted that, since

no plausible Fifth Amendment violation was suggested, “we might rest decision wholly on the presumption

of constitutionality”. 39

IV. Conclusion.

For the foregoing reasons, Petitioners’ petition

for a writ of certiorari should be denied.

constitutional considerations under U.S. Const. Amend. I, V, VI

and XIV and La. Const. art. I § § 2, 7, 16 and 19”).

37 Heller v. Doe, 509 U.S. 312, 320 (1993) (“A statute is

presumed constitutional, and ‘the burden is on the one attacking

the legislative arrangement to negate every conceivable basis

which might support it’” (internal cross-reference omitted),

quoting (with internal quotation marks omitted) Lehnhausen v.

Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).

38 Supra 10-13 (§ C).

39 United States v. Carolene Products Co., 304 U.S. 144,

148 (1938).

14

Respectfully submitted,

By: /s/Schuyler Marvin

Schuyler Marvin

Counsel of Record

204 Burt Blvd.

Benton, Louisiana 71006

Email: smarvin@26thda.org

Telephone: (318) 965-2332

Patrick R. Jackson

Patrick R. Jackson, APLC

4442 Viking Drive, Suite 100

Bossier City, Louisiana 71111

Email: PJackson@bossierlawoffice.com

Telephone: (318) 752-3335

Attorneys for

Respondent

Jennifer Bolden,

Certified Digital Reporter

15