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Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we argue the Fifth Circuit’s approach allows a challenged judge to assess his own impartiality, with appellate courts deferring absent “abuse of discretion”—a standard that inverts the Founding-era principle that “no man is allowed to be a judge in his own cause.”
Filed with Unify.US, America First Policy Institute, Conservative Political Action Coalition, Faith & Freedom Coalition, 60 Plus Association, Christian Employers Alliance, Concerned Women For America, Oklahoma Council Of Public Affairs, National Legal And Policy Center, TAP Foundation, Tennessee Conservative Coalition, and Freedom and Family Action.
Brief in Support of Appellees
Court of Appeals of Ohio, Tenth Appellate District
In this amicus brief, we argue the Ohio Parole Board’s reliance on secret information violates parole-eligible Ohioans due process rights. Parole-eligible Ohioans currently have no notice of victim statements used in their parole hearings; this violates the due process guarantee “that a party has been heard and understood in a forum free from bias, dishonesty, or injustice.” Furthermore, this lack of fairness has a heavy human toll for the individuals in the parole system where an arbitrary and dishonest process denies them freedom.
Filed with Cincinnati Black United Front, Abolitionist Legal Center, and the Roderick & Solange MacArthur Justice Center.
The Court of Appeals of Ohio, Tenth Appellate District ruled the Parole Board’s policy violated constitutional due process rights. You can read the ruling from November 14, 2023 here.
Due Process Institute thanks Alphonse A. Gerhardstein of Freidman, Gilbert, + Gerhardstein for his amicus support on this issue.
Brief in Support of Respondent
Florida Supreme Court
In this amicus brief, we argue that compelling an individual to disclose the passcode to their cellphone, for the express purpose of obtaining incriminating evidence, violates the Fifth Amendment and Florida’s Constitution. By its very nature, passcodes intend to keep matters private and their link to testimonial evidence means individuals should be constitutionally protected from compulsory disclosure and self-incrimination. This brief also addresses the due process and privacy implications of password disclosure in a wide range of contexts within an ever-expanding technological world.
Filed with Independence Institute.
The Florida Supreme Court ruled the Fifth District Court did not have certiorari jurisdiction on this case on October 27, 2022. You can read the opinion here.
We thank Harvey Sepler of Alvarez, Gonzalez & Menezes for his pro bono work on this issue.
Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we challenged the SEC’s practice of imposing settlements with a lifetime gag on any speech challenging their allegations. Currently, the SEC can obtain a settlement without hauling a party in front of a neutral adjudicator and proving its own case. Instead, nongovernmental litigants face contracts of adhesion, drafted by the agency, containing provisions like a lifetime ban on speech that a court would never impose under Article III.
This type of agency-imposed settlement violates due process, lacks necessary procedural checks, and is rife with First Amendment concerns.
Petition for certiorari denied June 21, 2022.
Brief in Support of Plaintiffs
5th Circuit Court of Appeals
In this amicus brief, we argue predetermined, scheduled bail schemes infringe on the due process rights of pretrial detainees. These schemes do not account for the government’s interests in pretrial detention or an individual’s ability to pay, in violation of the Fifth, Eighth, and Fourteenth Amendment. Judges are also unable to take a defendant’s individual circumstances into account when setting bail if it is predetermined or scheduled. Furthermore, longstanding jurisprudence underscores the general right to pretrial liberty and is incompatible with the bail practices currently in use by Dallas County.
Filed with Americans For Prosperity Foundation, Cato Institute, Clause 40 Foundation, and Professor Shon Hopwood.
The Fifth Circuit concluded that the plaintiffs and their suit were allowed to proceed against most of the judges and Dallas County. You can read the decision here.
Brief in Support of Certiorari
U.S. Supreme Court
In this brief, we argue that SCOTUS should strike down requirements in the 10th Circuit and other appellate courts that place undue burdens on defendants to demonstrate that their due process rights have been violated by prosecutorial pre-indictment delay. Due process requires the court to focus on prejudice to the defendant rather than the subjective intent of the prosecution.
Petition for certiorari denied May 17, 2021.
We thank Michael Dreeben, Kendall Turner, and their team at O’Melveny & Myers for their pro bono work on this case.
Amicus Brief in support of Certiorari
U.S. Supreme Court
Filed Oct. 24, 2019
TOPICS: per se rule; presumptions that remove element of crime from jury’s consideration
We argue that the per se rule in antitrust law operates to relieve the government of its burden to prove an essential element of a criminal offense and thus violates a defendant’s 5th and 6th Amendment rights.
Due Process Institute thanks Erin E. Murphy (Kirkland & Ellis, DC) and Alyssa Kalisky (Kirkland & Ellis, Chicago) for their pro bono work in this case.
OUTCOME: Unfortunately, the petition for certiorari was denied Jan. 13, 2020.