Opposition Brief — Central Newspapers, Inc. v. Johnson

No. 99-42

In The

Supreme Court of the United States

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CENTRAL NEWSPAPERS, INC.,

Petitioner,

MICHAEL J. JOHNSON and McKINLEY KELLER,

Respondents.

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On Petition For A Writ Of Certiorari

To The Third Circuit Court Of Appeal

Of The State Of Louisiana

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AVOYELLES PUBLISHING COMPANY AND RANDY

DECUIR’S RESPONSE TO CENTRAL NEWSPAPERS,

INC.’S PETITION FOR A WRIT OF CERTIORARI

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JoHN S. Baker, Jr.

Counsel of Record

Room 414, LSU Law. Center

Baton Rouge, Louisiana 70803

(225) 388-8846

RopNey M. RaABALais

P.O. Box 211

Marksville, Louisiana 71351

(318) 253-4622

Won. BRADFORD REYNOLDS

CoLuER, SHANNON, Ritt & Scott, PLLC

Suite 400, 3050 K Street NW

Washington, D.C. 20007

(202) 342-8400

Attorneys for Respondents, Avoyelles Publishing Company

and Randy Decuir

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Senrane Court, Ug,

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RULE 29.6 DISCLOSURE STATEMENT

Avoyelles Publishing Company is owned by The

Moody Co. and Randy Decuir & Assoc., Inc., two pri-

vateiy held corporations.

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TABLE OF CONTENTS

Page

Rule 29.6 Disclosure Statement.................000- i

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I. CNI’s Article III Standing is an Issue........ 5

II. Jurisdiction under 28 U.S.C. § 1257 is an

PEPE E ET oe rR Gap Pore 8

A. “Law of the Case” in Louisiana......... 8

B. The State Court Ruling Presented for

Review and the “Final Judgment” Require-

ment of 26 U.S.C. & Bae ss is8sk bere 10

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TABLE OF AUTHORITIES

Page(s)

Cases:

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). . passim

Emmons v. Agricultural Insurance Co., 158 So.2d 594

Se OE wa UN ws VEC d Os 000 0 ee sel edsdeuneve ee tencee 6

England v. Louisiana State Bd. of Med. Examiners,

PE EE Uo 6 ea Vicdeacetdepeseviceresecnca 10

Griggs v. Riverland Med. Ctr., 722 So.2d 15 (La.

App. 3d Cir. 1998), reh’g denied (1/6/99), and

writ denied, 735 So.2d 622 (5/28/99) ............. 8, 9

Haas v. Haas, 159 So. 384 (La. 1935)................6. 6

Jefferson v. City of Tarrant, Ala., 522 U.S. 75 (1997)

DU CCeeRe bese enataedaehneeeetsg00seusedsees 11, 12, 16

pavener ©. Raay, G6 US. 72 (19G7).. ccccdvcccccsevvess 7

Katz v. United States, 389 U.S. 347 (1967)............. 3

Keller v. Aymond, 702 So.2d 1387 (La. 1997)........... 2

Keller v. Aymond, 717 So.2d 1171 (La. 1998)........... 2

Louisville & Nashville R.R. Co. v. Mottley, 211 U.S.

i Cn Soe ese i vvsn dd eed dba ruben 6o< se eneerce ses 4

Marino v. Ortiz, 484 U.S. 301 (1988) .................. 7

Mills v. Alabama, 384 U.S. 214 (1966) ................ 12

Moore v. Chesapeake & Ohio Ry. Co., 291 U.S. 205

EE AN Ore ee Cre et EEE TERE PETE ECT Oe 4

Patten v. Powell, 16 La. Ann. 128 (1861) .............. 6

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)............ 11

Poe v. Ullman, 367 U.S. 497 (1961)......cccccccccccess 4

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TABLE OF AUTHORITIES - Continued

Page(s)

U.S. ex rel. State of Louisiana v. Jack, 244 U.S. 397

GEPOED cide conseseueducevadeesds spasteupesaduselees 7

Vallo v. Gayle Oil Co., Inc., 646 So.2d 859 (La. 1994) ..... 9

Younger v. Harris, 401 U.S. 37 (1971)................. 12

CONSTITUTION AND STATUTES:

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MIscELLANEOUS:

R. Stetter, West's Louisiana Civil Appellate Procedure

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JURISDICTION

Whether this Court has jurisdiction under 28 U.S.C.

§ 1257 is an issue.

STATEMENT OF THE CASE

We agree with petitioner’s Statement of the Case

(Pet. at 2-5), with two additions. First, the district court’s

rulings on both CNI’s Peremptory Exception of No Cause

of Action and Avoyelles’ motion for summary judgment

rely on an earlier ruling by the same judge involving

reporters for CNI and Avoyelles. That ruling, designated

“In Re: A Matter Under Investigation,” is referenced and

quoted in the district court opinion granting CNI’s

Peremptory Exception of No Cause of Action. (Pet., App.

B at 28a — 29a)

Second, plaintiffs Keller and Johnson appealed cer-

tain rulings by the district court in this case directly to

the Louisiana Supreme Court on the ground that the

district court had declared the wiretap statute unconstitu-

tional. In both instances, the Louisiana Supreme Court

found that it lacked jurisdiction by way of appeal because

a constitutional issue was not properly presented. On the

first occasion, which involved another co-defendant

(Aymond), the court remanded the case to the district

court. (App. A) On the second occasion, involving

Avoyelles, the court remanded the case to the Third Cir-

cuit (App. B), which then issued the decision for which

review was sought in the state supreme court, and which

is now the subject of this writ. On both those occasions,

the orders of the Louisiana Supreme Court used the same

language in saying that the district court ruling “never

rendered the [statute/Act] unconstitutional.” Keller v.

Aymond, 97-CA-2203, 97-CA-2204 (La. 11/19/97), 702

So.2d 1387 and 98-CA-0552, 98-CA-0553 (La. 4/23/98),

717 So.2d 1171. (App. A and App. B)

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ARGUMENT

This Court has directed that Avoyelles Publishing

Company and Randy Decuir (hereinafter collectively

referred to as “Avoyelles”) respond to the petition for

certiorari filed by their co-defendant, Central News-

papers, Inc. (hereinafter referred to as “CNI”), publisher

of The Alexandria Daily Town Talk. CNI has asked this

Court to review the constitutionality of Louisiana’s wire-

tap statute as interpreted by a Louisiana state appellate

court to apply to a newspaper and its reporter when they

publish the contents of an illegal wiretap made and pub-

licly disclosed by a third party.

We agree completely with the petitioner on the

merits, Our position from the start has been that to apply

Louisiana’s wiretap statute (LSA — R.S. 15:1301 et seq.) to

the media on these facts offends the First Amendment.

We consider the constitutional issue extremely significant

not only for our clients but for all media throughout the

country, both the traditional newspaper, radio, and televi-

sion media and also the emerging electronic forms of

media, The blatantly wrong-headed ruling of Louisiana’s

Third Circuit Court of Appeals deserves a very prompt

repudiation. In good faith, however, we are compuiled to

advise the Court that there is an issue as to whether the

te ae ee ee ee

petitioner has the necessary Article III standing because,

although a party in the case, it was not a party to the

ruling for which it requests review. There is also an issue

as to whether the ruling below constitutes a “final judg-

ment” as required by 28 U.S.C. § 1257.

As indicated in the petitioner’s Statement of the Case

(Pet. at 2-5), neither Avoyelles nor CNI pressed the con-

Stitutional issue in the district court nor in the separate

appeals heard by different panels of the Third Circuit

Court of Appeals. Prior to the decision by the second

panel, which came on the Avoyelles ruling, both CNI and

Avoyelles had argued that the Louisiana courts should

construe the state’s wiretap statute narrowly so as to

avoid a clash with the First Amendment. We did not, and

could not, claim that the state wiretap statute was facially

unconstitutional, but only that - unless narrowly con-

strued — the statute would be unconstitutional as applied

on these facts. Indeed, the state wiretap statute, modeled

as it is on the federal wiretap statute, 18 U.S.C.

§§ 2510-2520, is constitutionally required under the

Fourth Amendment for legitimate use of court-ordered

wiretapping by law enforcement. See Katz v. United States,

389 U.S. 347 (1967).

In this conflict between the First and Fourth Amend-

ments, Avoyelles has been navigating the narrow straits

between the Scylla of the “case and controversy” limita-

tions under Article III and the Charybdis of res judicata

under state law. The defendants could not remove the

case to federal district court under 28 U.S.C. § 1441

because the plaintiffs’ claims, although rooted in privacy

issues of the Fourth Amendment, did not “arise under”

federal statutory or constitutional law. See Moore v. Chesa-

peake & Ohio Ry. Co., 291 U.S. 205 (1934). Nor could a First

Amendment defense confer federal question jurisdiction.

See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149

(1908). It was, nevertheless, necessary to bring the First

Amendment issue to the attention of the state courts, as

was done in the defendants’ answers, in order to preserve

for the defendants the option of eventually filing an

action under 42 U.S.C. § 1983 in federal district court. See

England v. Louisiana State Bd. of Med. Examiners, 375 U.S.

411 (1964).

Prior to the ruling at issue here by the second panel,

however, the First Amendment issue was not “ripe” in an

Article III sense, see Poe v. Ullman, 367 U.S. 497 (1961),

because the Louisiana Attorney General's Office had

taken the position that the statute would not be applied

to the reporters or newspapers involved. See the reference

to “In Re: A Matter under Investigation” in the district

court’s ruling granting CNI’s Peremptory Exception of

No Cause of Action. (Pet., App. B at 28a) The rulings by

the state district court had agreed with our position that

the state wiretap statute should be narrowly construed

not to apply, on these facts, to our clients. Given that

neither defendant argued the constitutional issue to

either the district or appellate courts, the gratuitous state-

ment by the second panel of the Third Circuit Court of

Appeals declaring the statute, as so construed, to be

constitutional, while rendering the matter ripe for adjudi-

cation in the federal district court or remand, did not

constitute a final judgment.

The same lack of finality under res judicata principles

which allows the defendants to bring an action in federal

DOO URED Sa aie tie ee cten teat sen rrtencmcnm rns,

district court raises the issue as to whether this Court has

jurisdiction, at this time, under 28 U.S.C. § 1257. While

the ruling of the state court below is not a “final judg-

ment” under Louisiana law, it seems to fall within a

certain category of rulings which are nevertheless suffi-

cient to confer jurisdiction under 28 U.S.C. § 1257.

I. CNI’S ARTICLE III STANDING IS AN ISSUE

As laid out in the section on “Proceedings Below” of

the Petition (Pet. at 3-5), co-defendants CNI and

Avoyelles filed motions at different points in time in

these consolidated cases before the district judge.

Although procedurally distinct (CNI filed a Peremptory

Exception of No Cause of Action; Avoyelles filed a

Motion for Partial Summary Judgment), the motions were

substantively similar in arguing that the wiretap statute

did not apply to the actions of the newspapers which are

defendants in this case. Both defendants preserved the

constitutional defenses in answers to the pleadings, but

neither raised the constitutional issue as the basis for its

motion. In each instance, the moving defendant argued

that Louisiana’s wiretap statute should be carefully con-

strued to avoid offending the First Amendment by inter-

preting the language of the statute not to apply to

reporters and newspapers who merely report what

another party illegally discloses at a press conference. In

ruling on CNI’s motion, however, the district judge went

further than requested and declared the wiretap statute

unconstitutional under the First Amendmert as applied

to the facts. When the judge later ruled on Avoyelles’

motion, he relied on his ruling on CNI’s motion.

Although the two similar district court rulings were

reversed on appeal, two separate panels of the Third

Circuit gave very different reasons for reversal. In the

appeal of the ruling in favor of CNI, which raised only

state law defenses, the first panel of the Third Circuit

Court of Appeals ruled that the trial court should not

have reached the constitutional issue. A different panel of

the Third Circuit, which reversed the ruling in favor of

Avoyelles, gave the statute a very expansive interpreta-

tion which imposed absolute liability on reporters and

newspapers. (Pet., App. A at 1la-12a) Like CNI,

Avoyelles raised only state law defenses. Nevertheless,

sua sponte, the second panel declared the statute did not

violate the First Amendment.

Following the panel decision on the Avoyelles ruling,

both Avoyelles and CNI petitioned the Louisiana

Supreme Court for writs of certiorari. CNI was permitted

by Louisiana law to seek review of the Avoyelles ruling

even though CNI had not participated in the appellate

court proceeding that produced that ruling. Louisiana

law has been liberal in allowing even non-parties to

appeal as long as the person is aggrieved by the ruling.

LSA - C.C.P. Art. 2086; Emmons v. Agricultural Insurance

Co., 158 So.2d 594 (La. 1963); Haas v. Haas, 159 So. 384 (La.

1935); Patten v. Powell, 16 La. Ann. 128 (1861). CNI, which

was certainly aggrieved by the ruling, sought review in

the Louisiana Supreme Court, not by appeal, but by a

petition for certiorari. The Louisiana Supreme Court's

general supervisory jurisdiction, under the state constitu-

tion, “is plenary, unfettered by jurisdictional require-

ments.” R. Stetter, West's Louisiana Civil Appellate

Procedure § 1:9 (1999). As long as the ruling of the appel-

late court was not a final judgment, which it was not,

nothing bars the state supreme court from reconsidering

an issue. Id. at § 1:38. Within the Louisiana court system,

therefore, there was no doubt that CNI had standing to

ask the state supreme court to review the appellate

court’s ruling as to Avoyelles even though CNI had not

participated in that ruling.

The fact that a person has standing to raise an issue

in state court does not necessarily confer Article III stand-

ing before this Court. In U.S. ex rel. State of Louisiana v.

Jack, 244 U.S. 397 (1917), this Court considered the Louisi-

ana law which allows a non-party to appeal and said it

can have no effect on the procedure in federal courts. Id.

at 403. See also Karcher v. May, 484 U.S. 72, 77 (1987) and

Marino v. Ortiz, 484 U.S. 301, 304 (1988), citing Jack. As

stated in Karcher, this Court has “consistently applied the

general rule that one who is not a party or has not been

treated as a party to a judgment has no right to appeal

therefrom.” 484 U.S. at 77 (emphasis added). Although

CNI is a party in the case, it may lack Article III standing

because it was not a party to the ruling, the ruling was

not a “judgment,” and the ruling is not conclusive of the

constitutional issue.

On the other hand, if this Court treats the ruling

below as a “final judgment” for purposes of federal juris-

diction under U.S.C. § 1257, then the petitioner may have

an “interest” sufficient to qualify as an “injury” establish-

ing Article III standing. Cf. Marino, 484 U.S. at 304. (“The

Court of Appeals suggested that there may be exceptions

to this general rule [regarding appeal], primarily ‘when

the nonparty has an interest that is affected by the trial

court's judgment.’ We think the better practice is for such a

nonparty to seek intervention for purposes of appeal”)

(emphasis added; citation omitted).

II. JURISDICTION UNDER 28 U.S.C. § 1257 IS AN

ISSUE

Both the standing and jurisdictional issues involve

the petitioner’s claim that the ruling constituted a “final

adjudication of the federal constitutional issues, in

advance of trial, that are conclusive of the federal consti-

tutional defenses of both CNI and Avoyelles.” (Pet. at 4-5)

The ruling is not a final adjudication in the state courts on

the constitutional issue. Nevertheless, the ruling seems to

fit within one or two of the exceptions to the normal rules

regarding the “final judgment” requirement of 28 U.S.C.

§ 1257 which were recognized in Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469 (1975).

A. “LAW OF THE CASE” IN LOUISIANA

The ruling of Louisiana’s Third Circuit constitutes, at

most, the “law of the case.” We seriously doubt, however,

that the sua sponte ruling on constitutionality by the sec-

ond panel can properly be regarded as law of the case.

“The ‘law of the case’ doctrine applies to prior rulings of

the appellate court and/or supreme court in the same

case.” Griggs v. Riverland Med. Ctr., 722 So.2d 15, 19 (La.

App. 3d Cir. 1998). In this instance, the second panel’s

ruling conflicts with prior orders in this same case from

the Louisiana Supreme Court. In both those rulings, the

Louisiana Supreme Court dismissed in orders stating

“the trial court’s judgement never rendered the [statute /

Act] unconstitutional.” (App. A and App. B) In the first

ruling as to another co-defendant (Aymond) the order

also stated “although the trial court’s judgment makes

certain references to the constitutionality of La. R.S.

13:1301 [sic] et seq., it is clear these statements are dicta,

since the court has not yet reached the merits of the case

before it.” (App. A) In dismissing the appeal as to

Avoyelles, the Court remanded to the Third Circuit Court

of Appeals. It should have been very clear to the second

panel of the Third Circuit that the issue of constitu-

tionality was not presented.

The law of the case doctrine “applies to parties who

were involved in the litigation at the time of the prior

ruling and had their day in court.” Griggs, 722 So.2d at 19

(emphasis added). CNI did not participate in the

Avoyelles appeal before the second panel, so that panel's

ruling cannot be applied to it as law of the case. More-

over, just as the state supreme court regarded reference to

the constitutionality of the Louisiana statute as dicta, so

too are the similar references by the second appellate

panel merely dicta. The references cannot therefore con-

stitute “law of the case.” Id. (“The ‘law of the case’ is

discretionary, being inapplicable to cases in which the

prior decision was palpably erroneous or its application

would result in manifest injustice”).

The Louisiana Supreme Court has laid out the pro-

cedural requirements necessary for properly presenting a

constitutional challenge to a state statute, including a

“hearing . . . held at which the constitutionality of the

statute was contested.” Vallo v. Gayle Oil Co., Inc., 646

So.2d 859, 865 (La. 1994). No such contest over constitu-

tionality has occurred in this case. As a result, Avoyelles

ne

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and CNI have the option, on remand, of moving the state

district court to exclude the issue of constitutionality

from any judgment. LSA - R.S. 13:4232, “Exceptions to

the general rule of res judicata” (“A judgment does not

bar another action by the plaintiff . . . (3) When the

judgment reserved the right of the plaintiff to bring

another action”).! By electing to do so, the parties can

preserve their option to file suit in federal district court

challenging the constitutionality of the state wiretap stat-

ute as applied. See England v. Louisiana State Bd. of Med.

Examiners, 375 U.S. 411 (1964). If they elect not to exclude

the constitutional issue, they certainly can raise the issue

of constitutionality before the district court, the appellate

court and the Louisiana Supreme Court, and argue it

fully through the state courts.

B. THE STATE COURT RULING PRESENTED

FOR REVIEW AND THE “FINAL JUDGMENT”

REQUIREMENT OF 28 U.S.C. § 1257

Although CNI and Avoyelles do have these options

under Louisiana law, as just discussed, the jurisdictional

question remains this: should CNI and Avoyelles have to

undergo a trial for damages under a state statute which

clearly violates the First Amendment, when the state

supreme court declined the opportunity to enforce the

First Amendment? In terms of Louisiana law, the ruling is

not a “final judgment.” This Court’s interpretation of the

' Although framed in terms of “the plaintiff,” the provision

would apply also te the defendant because plaintiff and

defendant are equally bound by a final judgment. See LSA - R.S.

13:4231, “Res judicata.”

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term “final judgment” in 28 U.S.C. § 1257, however, has

recognized certain exceptions to the rule which can bring

a claim within this Court’s jurisdiction. In this case, the

Court’s jurisdiction depends on a reading of Cox Broad-

casting Corp. v. Cohn, 420 U.S. 469 (1975), and Jefferson v.

City of Tarrant, Ala., 522 U.S. 75 (1997). According to Cox,

there are “at least four categories of such cases in which

the Court has treated the decision on the federal issue as

a final judgment for the purposes of 28 U.S.C. § 1257 and

has taken jurisdiction without awaiting the completion of

the additional proceedings anticipated in the lower state

courts.” 420 U.S. at 477. Of the four, the first and the

fourth arguably apply to this case. Neither the second nor

the third categories of exceptions mentioned in Cox apply

to the present case, primarily because they involve situa-

tions in which the federal issue had been finally decided

in a state court system. As explained in the “Law of the

Case” section above, no such final decision in the Louisi-

ana court system has yet occurred.

Some tension exists between Cox and Jefferson. While

citing Cox approvingly, Jefferson seems to recognize only

two categories of exceptions, those corresponding to the

second and third of the four Cox categories. 522 U‘S. at

82-4. Whereas Cox says that there are “at least four catego-

ries of such cases” 420 U.S. at 477 (emphasis added),

Jefferson disapproves of expansion beyond Cox, as

reflected by its disapproval of Pennsylvania v. Ritchie, 480

U.S. 39 (1987). 522 U.S. at 83-4. (“We now clarify that

Ritchie does not augur expansion of the exceptions stated

in Cox Broadcasting Corp.”).

Jefferson fails to mention exceptions corresponding to

the first and fourth categories discussed in Cox, the very

12

ones which are pertinent to the ruling below. Neverthe-

less, the language just quoted from Jefferson does confirm

“the exceptions stated in Cox Broadcasting Corp.” Id. at

83-4. In the first category of exceptions recognized by

Cox, the state court ruling may not actually be final, but

this Court in appropriate circumstances has “deemed”

the decision of the federal issue to be final. By way of

example, Cox cites Mills v. Alabama, 384 U.S. 214 (1966) in

which this Court took jurisdiction of a criminal case after

a state supreme court ruling had upheld the constitu-

tionality of a criminal statute and remanded the case for

trial. In that case, as well as this one, the state court

ruling, although not a final judgment, forces a trial on a

clearly unconstitutional statute. The present case differs

from Mills in not being a criminal case. But that fact only

makes the argument for jurisdiction stronger in this case

because the situation does not involve interference with

an ongoing state criminal prosecution. See Younger v.

Harris, 401 U.S. 37 (1971).

The present case also involves the fourth category of

exceptions, the one on which jurisdiction rested in Cox.

The Court’s description of the fourth Cox exception is as

follows:

Lastly, there are those situations where the fed-

eral issue has been finally decided in the state

courts with further proceedings pending in

which the party seeking review here might pre-

vail on the merits on nonfederal grounds, thus

rendering unnecessary review of the federal

issue by this Court, and where reversal of the

state court on the federal issue would be preclu-

sive of any further litigation on the relevant

cause of action rather than merely controlling

ERieiccaeeaeee eee ee ememaeeemmmeeeein

13

the nature and character of, or determining the

admissibility of evidence in, the state proceed-

ings still to come. In these circumstances, if a

refusal immediately to review the state court decision

might seriously erode federal policy, the Court has

entertained and decided the federal issue, which

itself has been finally determined by the state

courts for purposes of the state litigation.

420 U.S. at 482-3 (emphasis added).

Cox does involve a decision by the state’s highest court

that is “final” as to the constitutional issue. Here, the

state’s highest court has not ruled; it declined the oppor-

tunity to do so. The reasons given for jurisdiction in the

fourth category of exceptions, however, do apply to the

present case. Just as Cox guides our view that the con-

struction of Louisiana’s wiretap statute in the ruling

below clearly violates the First Amendment, so too that

case provides the rationale for claiming jurisdiction in

this case.

The Georgia Supreme Court’s judgment is

plainly final on the federal issue and is not

subject to further review in the state courts.

Appellants will be liable for damages if the ele-

ments of the state cause of action are proved.

They may prevail at trial on nonfederal

grounds, it is true, but if the Georgia court erro-

neously upheld the statute, there should be no

trial at all. Moreover, even if appellants pre-

vailed at trial and made unnecessary further

consideration of the constitutional question,

there would remain in effect the unreviewed decision

of the State Supreme Court that a civil action for

publishing the name of a rape victim disclosed in a

public judicial proceeding may go forward despite

14

the First and Fourteenth Amendments. Delaying

final decision of the First Amendment claim until

after trial will ‘leave unanswered . . . an important

question of freedom of the press under the First

Amendment,’ ‘an uneasy and unsettled constitu-

tional posture (that) could only further harm the

operation of a free press.’ On the other hand, if we

now hold that the First and Fourteenth Amend-

ments bar civil liability for broadcasting the vic-

tim’s name, this litigation ends. Given these

factors — that the litigation could be terminated by

our decision on the merits and that a failure to decide

the question now will leave the press in Georgia

operating in the shadow of the civil and criminal

sanctions of a rule of law and a statute the constitu-

tionality of which is in serious doubt — we find that

reaching the merits is consistent with the pragmatic

approach that we have followed in the past in deter-

mining finality.

420 U.S. at 485-6 (emphasis added; citation

and footnote omitted).

As in Cox, “there should be no trial at all” in this case.

Both the first and the fourth exceptions involve situa-

tions in which this Court has thought that state court

rulings were forcing the petitioner to undergo a trial in a

situation which was clearly barred by the Constitution,

most notably the First Amendment, as in Cox. In consid-

ering as a factor that “the litigation could be terminated

by [a] decision on the merits” 420 U.S. at 486, Cox

acknowledges that “this factor involves consideration of

the merits in determining jurisdiction.” Id. at 487, n.13. In

this case as well, the jurisdictional issue is intertwined

with the First Amendment issue. At this point, the news-

papers face a trial on the merits in district court unless

a

15

the trial court is willing to ignore the ruling of the Third

Circuit. Any trial will be a mere formality under the

standard adopted by the Louisiana Third Circuit Court of

Appeals, which says:

[W]e find that the trial court erred in holding

that criminal willfulness must exist on the part

of the defendant newspaper before the plaintiffs

can claim a civil remedy under La.R.S. 15:1312.

Hence, the newspaper can be held civilly liable

for publishing the contents of the taped conver-

sation, even if it was not charged in a criminal

proceeding or even if the elements of criminal will-

fulness are lacking.

Pet., App. A at 1la-12a (emphasis added).

If a trial is allowed to go forward, the newspapers will be

found liable under this standard because there is no

question that they published the material. Under this

standard, not even the good faith belief of the news-

papers that the materials were legally obtained prevents

liability.

CNI and Avoyelles face the dilemma of choosing

between requesting the state courts to reconsider the First

Amendment issue or filing suit in a federal district court.

If CNI and Avoyelles do press the constitutional issue in

state court, they may jeopardize their option of filing suit

in federal district court. Moreover, the option of filing in

federal district court is not without its own “case and

controversy” issues. Although such problems can occur

in state cases which involve other kinds of constitutional

defenses, when a First Amendment defense has been

suppressed, simply allowing a state court trial to proceed

can “seriously erode federal policy.” 420 U.S. at 483.

iii i i

16

The Court certainly could, and should, consider

whether either or both the first and fourth categories of

exceptions identified in Cox justify jurisdiction even in

the absence of what ordinarily does not constitute a “final

judgment.” As in Cox, the jurisdictional issue is as signifi-

cant as the substantive constitutional issue under the

First Amendment. If otherwise disposed to grant the writ,

this Court can decide to carry the jurisdictional issue with

the case. A ruling on the jurisdictional issue favorable to

the petitioner may well also resolve the standing issue in

its favor. If that does not establish a sufficient interest to

constitute an “injury” for purposes of standing, or if the

Court has doubts, it certainly has the option of requesting

to hear argument also from Avoyelles.

Avoyelles agrees completely with the petitioner on

the merits and on the importance of the First Amendment

issue. Counsel have pointed out jurisdictional and justi-

ciability issues in this case as part of our duty of candor

to this Court. Counsel is well aware that the Court itself

will eventually discover the Article III issues in the case.

Rather than possibly waste the time of this Court, and

have the writ dismissed at a later time, as occurred in

Jefferson v. City of Tarrant, supra, we think it necessary to

bring to the Court's attention the issues of Article III

standing and the Court's jurisdiction. Nevertheless, both

the substantive First Amendment issue on the constitu-

tionality of the lower court's interpretation of Louisiana’s

wiretap statute, as well as the jurisdictional issue, merit

review by this Court.

17

CONCLUSION

We therefore urge the Court to grant the petitioner’s

writ of certiorari and carry the jurisdiction and standing

issues with the case.

September 24, 1999

Respectfully submitted,

JOHN S. Baker, Jr.

Counsel of Record

Room 414, LSU Law Center

Baton Rouge, Louisiana 70803

(225) 388-8846

Ropney M. Rasa tals

P.O. Box 211

Marksville, Louisiana 71351

(318) 253-4622

Wo. BraprorD REYNOLDS

CoLuteR, SHANNON, Rit &

Scott, PLLC

Suite 400, 3050 K Street NW

Washington, D.C. 20007

(202) 342-8400

la

APPENDIX A - ORDER OF THE LOUISIANA

SUPREME COURT RE: TRIAL COURT RULING

IN FAVOR OF AYMOND

McKinley KELLER

v.

Carol AYMOND, Jr., et al.

Michael J. JOHNSON

v.

Carol AYMOND, Jr., et al.

Nos. 97-CA-2203, 97-CA-2204.

Supreme Court of Louisiana.

Nov. 19, 1997.

ORDER

Plaintiffs invoke the appellate jurisdiction of this court

pursuant to La. Const. Art. V, § 5(D), on ground that the

district court declared La.R.S. 13:1301 [sic] et seq. uncon-

stitutional.

Our independent review of the record reveals that the

trial court’s judgment never rendered the statute uncon-

stitutional. While the trial court’s judgment indicates it

“conditionally” found the statutes unconstitutional, the

judgment goes on to state that this finding is dependent

“on the specific facts of this case, which will be revealed

at trial.” The judgment further states “the merits of the

case and/or evidence presented at trial will decide the

issue of constitutionality of La.R.S. 15:1301, et seq.”

Therefore, although the trial court’s judgment makes cer-

tain references to the constitutionality of La.R.S. 13:1301

2a

[sic] et seq., it is clear these statements are dicta, since the

court has not yet reached the merits of the case before it.

Accordingly, the appeals from this judgment filed in this

court are dismissed, and the case is remanded to the trial

court for further proceedings.

KNOLL, J., not on panel; recused.

FOR THE COURT:

/s/ Bernette J. Johnson

Justice, Supreme Court of Lowisiana

a

:

3a

APPENDIX B - ORDER OF THE

LOUISIANA SUPREME COURT

RE: TRIAL COURT RULING

IN FAVOR OF AVOYELLES

McKinley KELLER

v.

Carol AYMOND, Jr., et al.

Michael J. JOHNSON

v.

Carol AYMOND, Jr., et al.

Nos. 98-CA-0552, 98-CA-0553.

Supreme Court of Louisiana.

April 23, 1998.

ORDER

Plaintiffs invoke the appellate jurisdiction of this court

pursuant to La. Const. Art. V, § 5(D), on ground that the

district court declared the Electronic Surveillance Act,

La.R.S. 15:1301 et seq., unconstitutional.

Our independent review of the record reveals that the

trial court’s judgment never rendered the Act unconstitu-

tional. Having concluded that we have no appellate juris-

diction, this appeal is ordered transferred to the Court of

Appeal, Third Circuit.

KNOLL, J., not on panel (recused). Rule IV, Part 2, § 3.

FOR THE COURT:

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisiana