News

     CCL President Robert S. Peck participated in the Legal Affairs Committee meeting at the Summer Convention of the American Association for Justice on July 8, 2018 in Denver, Colorado. At the meeting, members discussed the latest legal developments affecting civil justice issues. Peck also reported on recent litigation undertaken by CCL to protect access to the courts.

     CCL President Robert S. Peck reminded judges attending the 2018 Pound Institute Forum for State Appellate Judges in Denver, Colorado, that state constitutions provide a double protection for individual rights that may go beyond the protections afforded by the U.S. Constitution and that state judges also have the authority to interpret the U.S. Constitution. He urged the judges, in appropriate cases, to use the incorporation doctrine to apply the Seventh Amendment's civil jury trial right to the states.

    The Pound forum focused on state constitutions this year. Professors Robert Williams of Rutgers Law School and Justin Long of Wayne State Law School presented papers on state constitutions. Peck was among the panelists commenting on the paper of Professor Williams. At lunch, the 140 judges from 36 states heard from Justice Goodwin Liu of the California Supreme Court, who reprised his Brennan Lecture of last year, delivered at New York University Law School. The lecture focused on the need to undertake an independent interpretation of state constitutional provisions and not to simply adopt the U.S. Supreme Court's views on similar federal rights.

     In Peck's remarks, judges heard about some of the reasons state constitutions, with their own unique text, support a stronger application. Still, he noted that sometimes federal provisions provide strong rights that should be applicable to the states. He gave the Seventh Amendment jury-trial right as an example of the rare Bill of Rights provision that had not been applied to states. He noted that little of the Bill of Rights had been made applicable until the 1960s. The Seventh Amendment's status was a function of jurisprudence that dates back to the late 19th century. Yet, Peck said, when the Second Amendment was made applicable to the states in 2010 in McDonald v. City of Chicago, the Supreme Court urged lower courts not to rely on outdated 19th century precedents. Using the criteria that the Supreme Court said justified incorporating the Second Amendment, Peck pointed out that the Seventh Amendment qualified as well, with an even stronger claim to incorporation.

     The Arkansas Democrat-Gazette had an extensive report on CCL's victory before the Eighth Circuit, which resulted in an order to the District Court to dismiss a state trial court judge's lawsuit against justices of the Arkansas Supreme Court over an order of recusal.

     The article quotes, CCL President Robert S. Peck, who represented the justices, as well as the Arkansas Supreme Court itself before it was dismissed from the case, as saying that the ruling confirms that the courts and due process protections in litigation exist for the parties in litigation, not for the judges, who cannot override the litigant's constitutional rights in the name of their own interests.

     Based on a writ of mandamus filed by CCL President Robert S. Peck, the U.S. Court of Appeals for the Eighth Circuit ordered a federal district court to dismiss all claims against justices of the Arkansas Supreme Court in a case filed by a state trial judge challenging an order of recusal.

     Judge Wendell Griffen sued the Arkansas Supreme Court and its justices, claiming that they violated his federal civil rights when they ordered him recused after he had participated in public protests concerning issues in the case and had written blog posts about the issues. Federal District Court Judge James Moody Jr. dismissed the Arkansas Supreme Court as a party on sovereign immunity grounds, but permitted the claims against each of the justices to go forward as at least plausible. 

    Today's ruling said that none of the claims met the plausibility standard because recusal does not exact any harm against a judge, accepting the argument Peck made along with counsel for the other justices. Peck represented Chief Justice John Dan Kemp and Justices Robin Wynne and Shawn Womack in the Eighth Circuit.

     Arguing against a motion to dismiss, CCL President Robert S. Peck, representing the City of Sacramento, argued that the city's complaint met the Fair Housing Act's proximate cause standard to maintain its lawsuit for damages relating to lost property taxes, remediation expenses, and neutralized fair housing expenditures against banking giant Wells Fargo.

      Peck pointed out that the Supreme Court has instructed courts to focus on a statute's legislative history to determine the contours of the proximate cause requirement. That legislative history demonstrates that Congress was specifically concerned about the impact of discriminatory housing practices on municipal finances. In 1988 amendments, Congress endorsed a 1972 Supreme Court case, Gladstone, Realtors v. Village of Bellwood, in which the court upheld the validity of a municipality's lawsuit for lost property taxes as a direct injury. Peck argued that this legislative history informs the proximate cause analysis and makes the city's injuries integral to the statutory cause of action.

     U.S. District Court Judge Kimberly Mueller took the case under advisement.

      CCL President Robert S. Peck told Washington Lawyer magazine that U.S. Supreme Court Justice Anthony Kennedy may have erased much of his legacy by announcing his retirement at the end of the most recent term, rather than wait just a bit longer, in an interview today.

     With a nomination likely to be made very quickly and a Senate majority pledging to confirm any  nominee before the 2018 midterm election, the expectation is that Justice Kennedy will be replaced with a far more doctrinaire conservative. That means that many of the issues upon with Justice Kennedy joined the Court's more liberal justices to form a 5-4 majority are in danger of being overturned. Other cases in which he wrote on behalf of the more conservative wing of the Court may turn in a more rigid direction without his moderating influence. When combined with Justice Kennedy's approach to questions presented in cases, where he focused on deciding the case but rarely defined doctrine or imposed a three-part test, Kennedy's nearly three decades on the Court where he was often the decisive swing vote, could become more of a footnote to the judicial revolution that could take place with a clear majority of committed conservative justices, Peck told Sarah Kellogg of the DC Bar's magazine.

     Though plainly conservative, Kennedy had a tendency when deciding rights-based cases to employ an almost mystical phraseology, based on concepts of dignity and liberty that lacked the type of rigor he brought to issues of constitutional structure. Had the justice waited until after the midterm election, Peck speculated, the politics of the confirmation process would have changed and forced the president to consider a more moderate nominee, one more in the mold of Justice Kennedy, than he is likely to choose at this time.

     On June 22, 2018, CCL filed the decision in City of Oakland v. Wells Fargo Bank, NA, as supplemental authority in the U.S. Court of Appeals for the Eleventh Circuit, which is considering the remanded issue of proximate cause from last year's decision in Bank of America Corp. v. City of Miami. CCL's Robert S. Peck argued the case in the Supreme Court and the proximate cause issue in the Oakland case.

     In last year's decision, the Supreme Court held that Miami had standing to bring claims under the Fair Housing Act for lost property taxes, remediation expenses, and fair housing expenditures, but left open the issue of whether the complaint met the FHA's proximate cause requirement. It asked lower courts to decide, in the first instance, the contours of that requirement. Since then, Peck has argued the issue in cases brought against Wells Fargo in Philadelphia and Oakland. Both federal district courts denied the bank's motion to dismiss on proximate cause grounds. In the Philadelphia case, Wells Fargo sought permission to bring an interlocutory appeal, which Peck opposed. The district court denied permission.

      On June 29th, another federal district court will hear the same issue in a case brought by the City of Sacramento against Wells Fargo. Once again, Peck will argue the issue.

     In City of Oakland v. Wells Fargo & Co., federal district court judge Edward Chen denied Wells Fargo's motion to dismiss the City of Oakland's fair housing complaint against the banking giant for a pattern of discrimination in mortgage loans given to minority home buyers. CCL President Robert S. Peck represented Oakland in the argument last December and wrote the principle section of the brief.

     Oakland raised similar allegations against Wells Fargo as did Miami, also represented by Peck in the U.S. Supreme Court last term. In Bank of America v. City of Miami, the Supreme Court held, 5-3, that cities have standing to bring fair housing actions for lost property taxes, remediation expenses, and depletion of its fair housing resources, but asked the lower courts to determine, in the first instance, the contours of the Fair Housing Act's proximate cause requirement at the pleading stage. The Miami case was returned to the Eleventh Circuit for that determination and received simultaneous briefing from the parties (Miami, Bank of America and Wells Fargo) on April 30.

     In the Oakland case, Judge Chen held that the city had sufficiently pleaded a direct connection between its lost property taxes and the Bank's allegedly discriminatory practices. He also found the city's claim for injunctive relieve satisfied the relevant proximate cause standard. Its claim for damages for its monetary expenditures was dismissed without prejudice so that it could be re-pleaded to specify the expenditures attributable to Wells Fargo. The court also dismissed without prejudice for re-filing the city's claim for harm to its goal and programs advancing fair housing. 

    When the Supreme Court handed down its decision last term, both sides claimed victory. To date, CCL has prevailed on the proximate cause issue in each of the cases in which it represents a city bringing a fair housing case.

      Congressional staff heard differing views about the Supreme Court's likely approach to cy pres next term in Frank v. Gaos. CCL President Robert S. Peck suggested that the Supreme Court is likely to take a very narrow view of the issue, based on the facts in the case. Peck presented, along with Adam Schulman, a lawyer with the group headed by Petition Ted Frank, who brought the challenge. The event was sponsored by the Congressional Civil Justice Academy, a part of the Law and Economics Center at the Antonin Scalia Law School at George Mason University.

      In Frank, the Ninth Circuit upheld a class action settlement that grew out of the information that Google acquired, used and distributed when Internet surfers use that search engine. Though the damage suffered by uninformed surfers was difficult to monetize and the case itself was three times challenged with motions to dismiss, a mediator suggested the settlement that both sides accepted. As part of the settlement, Google agreed to provide a permanent disclosure of what information it collects and how it uses it. In addition, Google agreed to pay compensatory damages of $8.5 million. After attorney fees, costs, and incentive compensation for the named class representatives, the court was left with $5.3 million to be distributed to 129 million class members, an average of 4.1 cents apiece. The court determined that distribution was infeasible given that a process for proof of claim and the process of sending checks would cost substantially more than the four cents each claimant was owed. Instead, the court entertained proposals for non-profit organizations that work in the area of Internet privacy as alternate recipients. 

     The organizations suggested provided the court with proposals about how the money would be spent to advance Internet privacy. After a seven-month process of examination, the court approved each of the organizations as highly qualified, even though it lamented that the groups were the "usual suspects" on this subject. Objector Frank proposed an alternative approach that would compensate only some members of the class at a $5 or $10 rate given the low claiming rate that might be accepted. While the Ninth Circuit held that that approach would have been acceptable, it found nothing wrong with the use of cy pres to send the money to the organizations, utilizing the deferential abuse of discretion standard of reviewing the trial court. 

      The Supreme Court will consider whether the approach approved by the Ninth Circuit comported with Rule 23's requirement that class action settlements be fair, reasonable and adequate.

      As part of a team of plaintiffs' lawyers, CCL participated in the writing and filing of briefs representing a proposed class of minority residents who were stopped-and-frisked by Chicago police without probable cause. The City of Chicago challenged class certification of the class, as well as the expert evidence in support of certification. Two briefs responded to Chicago's objections.