Unlike last week, tomorrow will not be a quiet Thursday. The Supreme Court will file three opinions: Facebook, Inc. v. Superior Court (Touchstone), People v. Silveria and Travis, and People v. Suarez. (Briefs here and here; oral argument videos here, here, and here.)
Facebook and Silvera and Travis were both argued on the late-May calendar. Suarez was argued in June.
In Facebook, the court asked the parties to address these issues: (1) If, on remand and in conjunction with continuing pretrial proceedings, the prosecution lists the victim as a witness who will testify at trial (see Pen. Code, §§ 1054.1, subd. (a); 1054.7) and if the materiality of the sought communications is shown, does the trial court have authority, pursuant to statutory and/or inherent power to control litigation before it and to insure fair proceedings, to order the victim witness (or any other listed witness), on pain of sanctions, to either (a) comply with a subpoena served on him or her, seeking disclosure of the sought communications subject to in camera review and any appropriate protective or limiting conditions, or (b) consent to disclosure by provider Facebook subject to in camera review and any appropriate protective or limiting conditions? (2) Would a court order under either (1)(a) or (1)(b) be valid under the Stored Communications Act, 18 U.S.C., section 2702(b)(3)? (3) Assuming orders described in (1) cannot properly be issued and enforced in conjunction with continuing pretrial proceedings, does the trial court have authority, on an appropriate showing during trial, to issue and enforce such orders? (4) Would a court order contemplated under (3) be proper under the Stored Communications Act, 18 U.S.C., section 2702(b)(3)? With regard to questions (1)-(4), see, e.g., O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423; Juror Number One v. Superior Court (2012) 206 Cal.App.4th 854; Negro v. Superior Court (2014) 230 Cal.App.4th 879; and the Court of Appeal decision below, Facebook, Inc., v. Superior Court (Touchstone) (2017) 15 Cal.App.5th 729, 745-748. (5) As an alternative to options (1) or (3) set forth above, may the trial court, acting pursuant to statutory and/or inherent authority to control the litigation before it and to insure fair proceedings, and consistently with 18 U.S.C. section 2702(b)(3), order the prosecution to issue a search warrant under 18 U.S.C. section 2703 regarding the sought communications? (Cf. State v. Bray (Or.App. 2016) 383 P.3d 883, pets. for rev. accepted June 15, 2017, 397 P.3d 30 [S064843, the state’s pet.]; 397 P.3d 37 [S064846, the defendant’s pet.].) In this regard, what is the effect, if any, of California Constitution, article I, sections 15 and 24? The court granted review in January 2018. It later asked the parties to brief the effect, if any, of its opinion in a similar Facebook case (see here). [Disclosure: Horvitz & Levy has filed amicus curiae briefs in the case (here and here).]
Silvera and Travis is an automatic direct appeal from June 1997 judgments of death. The court’s website does not list issues for such cases. Counsel was appointed in December 2000 and January 2001. Initial briefing was completed in February 2013.
Suarez is an automatic direct appeal from a November 2001 judgment of death. The court’s website does not list issues for such cases. Counsel was first appointed in April 2007. Initial briefing was completed in July 2016.
The opinions can be viewed tomorrow starting at 10:00 a.m.
