As I mentioned before, I’m litigating a pro bono free speech / cyberspace law case before the Nebraska Supreme Court. My client, Darren Drahota, was convicted of two counts of breach of the peace for sending two rude messages to William Avery, who had earlier asked him to stop sending such messages. Avery was Drahota’s University of Nebraska professor and a candidate for the Nebraska Legislature. (Avery was elected and is now a state legislator.) We argued that such speech did not constitute breach of the peace, and was in any event constitutionally protected under the First Amendment; for more details, see here. The Nebraska Supreme Court granted our petition for further review, and agreed to hear the case; we filed the opening brief Oct. 20, and the state’s brief was due yesterday.
Today, we learned that the state has apparently elected not to file a brief. The local prosecutors had of course prosecuted the case, and the Nebraska Attorney General’s office had briefed the case before the Nebraska Court of Appeals. But at the Nebraska Supreme Court stage, no brief is apparently forthcoming. (The Nebraska Attorney General’s office does make such a decision every so often.)
Naturally, the state supreme court will still have to consider the case, since there is a Nebraska Court of Appeals opinion on the books, and the court needs to decide what to do with it. But the state’s decision not to defend the opinion, or the result it reached, strikes me as heartening.
SuperSkeptic says:
I wonder, did they make that decision before or after reading your brief?
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November 10, 2009, 12:48 pmChris says:
Shouldn’t they have to confess error? Seems quite odd that they don’t have to say anything.
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November 10, 2009, 2:17 pmDavid T. says:
While it is not in my college dictionary, “enheartening” can be found through google, often in fairly precious contexts. Why not “heartening”? [Good point, and I generally try to stick with the more idiomatic usage; updated the post accordingly. –EV]
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November 10, 2009, 3:33 pmTim says:
Don’t you think the government is ethically bound to defending its actions?
I’d rather see them write a three-word, “We were wrong” than not even have the decency to file a brief.
Can you explain more? Perhaps another post is in order to analyze the potential consequences of them refusing to file a brief.
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November 10, 2009, 5:22 pmEdward A. Hoffman says:
Missing the due date doesn’t necessarily mean the state has decided not to file a brief. I don’t know the rules in Nebraska, but in many jurisdictions the court can consider a brief that arrives late, especially if the party submitting it offers a legitimate explanation for the delay and properly seeks relief from any resulting default. I have now idea how plausible such a development is in your case, but it’s at least possible.
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November 10, 2009, 7:55 pmDave N says:
When I clerked for the Utah AG’s criminal appeals section 20 years ago, my supervisor told me that on rare occassion, in egregious cases, the AG would confess error in the appellate courts.
It was my understanding that for political reasons, the elected AG had to sign-off personally on any such confessions since the local prosecutor would be less than thrilled with the AG undoing his or her work. Perhaps that is what happened in this case.
Or perhaps, as Edward A. Hoffman suggests, the attorney responsible for filing the brief missed a deadline. As a government attorney, I have seen that happen, too.
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November 10, 2009, 8:36 pmEugene Volokh says:
We have been told that the state has deliberately decided not to file a brief.
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November 10, 2009, 9:13 pmDave N says:
Here are the Nebraska rules with respect to the default:
So it isn’t an automatic win for the appellant. But being allowed to proceed ex parte is the next best thing.
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November 10, 2009, 11:43 pmSoronel Haetir says:
Or maybe the AG knows the state supreme court well enough to know this case is in the bag and no further action is actually required to secure a win.
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November 11, 2009, 1:32 pmDan says:
I have picked up all the briefs from the Nebraska Supreme Court as I am currently writing an article about this case. It appears that the State is simply refiling the brief it originally submitted to the Nebraska Court of Appeals.
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November 20, 2009, 3:13 pm