# Opposition Brief — Central Newspapers, Inc. v. Johnson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 963

## Text

No. 99-42

In The
Supreme Court of the United States

+
CENTRAL NEWSPAPERS, INC.,

Petitioner,

MICHAEL J. JOHNSON and McKINLEY KELLER,

Respondents.

7

On Petition For A Writ Of Certiorari
To The Third Circuit Court Of Appeal
Of The State Of Louisiana
¢

AVOYELLES PUBLISHING COMPANY AND RANDY
DECUIR’S RESPONSE TO CENTRAL NEWSPAPERS,
INC.’S PETITION FOR A WRIT OF CERTIORARI
+

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.

7
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TABLE OF CONTENTS

Page
Rule 29.6 Disclosure Statement.................000- i
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PTOI 0. soc nccsnbadiies ei aunebeel een 2
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

iV

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)

+

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

10

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.”

11

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0527%3A5. Public record. Not legal advice.