News

    CCL President Robert S. Peck attended the 2018 Annual Meeting of the American Law Institute in Washington, DC on May 21-22. At the meeting, members debated and approved new Restatements of the Law on Liability Insurance and Intentional Torts to Persons. In addition, the ALI made further progress on the Restatement on tort liability for economic harm. THE ALI publishes the final restatements, which are very influential in the states in how the law might be modernized. ALI members are experienced lawyers, judges, and academics.

     In addition to the work of the ALI, Justice Ruth Bader Ginsburg was awarded the Henry J. Friendly Medal for her contributions to the law. Chief Justice John G. Roberts, Jr., a former law clerk to Judge Friendly, presented the medal to Justice Ginsburg. At an evening session, attendees were treated to a conversation between Justice Elena Kagan and former Solicitor General Paul Clement about the workings of the Solicitor General's office, moderated by Duke law dean David Levi.

     CCL's Robert S. Peck attended the Annual Leaders Forum Retreat held by the American Association for Justice in Einskerry, County Wicklow, Ireland. The retreat, at which Peck has served as a speaker in the past, featured prominent Irish legal figures speaking about their civil justice system. 

     Within a couple of hours of the filing of opposing counsel's brief, U.S. District Court Judge James Moody, Jr. issued an order staying discovery in Griffen v. The Supreme Court of Arkansas, pending a decision by the Eighth Circuit on CCL's petition for a writ of mandamus.

     Arkansas trial judge Wendell Griffen challenged his permanent recusal in death penalty cases after blogging and participating in two public protests on the issue and during part of which a case was pending before him. Upon an emergency petition filed by the state attorney general, the Arkansas Supreme Court issued the recusal order. The pending case was reassigned and the succeeding judge issued an order similar to the one Judge Griffen originally signed prior to his recusal.

    Judge Griffen filed a federal challenge to his recusal, naming the state supreme court and each of its justices as defendants. CCL represents the court, its chief justice, and two of the other justices. In response to motions to dismiss, federal judge Moody dismissed the Arkansas Supreme Court from the action, but permitted the case to continue against the individual justices. On behalf of all justices, CCL filed a petition for a writ of mandamus in the U.S. Court of Appeals for the Eighth Circuit. The Eighth Circuit ordered a response from Judge Griffen, and CCL filed a reply brief earlier this week.

     CCL also moved for a stay of discovery during the pendency of the mandamus petition. It was that motion Judge Moody granted Wednesday.

      Today, CCL filed a reply brief on behalf of all justices of the Arkansas Supreme Court in support of their petition for a writ of mandamus in Griffen v. The Supreme Court of Arkansas. The case asserts that a trial judge's civil rights were violated by an order of recusal issued by the Supreme Court. CCL represents the Court and three of its justices.

      The U.S. District Court dismissed the Arkansas Supreme Court from the action on CCL's motion, but maintained the lawsuit against the justices in their official capacity. A petition for a writ of mandamus was filed in the U.S. Court of Appeals for the Eighth Circuit, arguing that the case should not be permitted to go forward. In reply, the state trial judge argued that the recusal order amounted to an administrative personnel action against him, but today's brief demonstrated that the Supreme Court order had all the earmarkings of a judicial decision, immune from collateral attack in federal court and that recusal does not diminish or otherwise adversely affect a judge's office.

     One day after the Eighth Circuit indicated interest in the Petition for a Writ of Mandamus on behalf of justices of the Arkansas Supreme Court, CCL, on behalf of the seven justice of that court, filed a motion to stay discovery pending resolution of the justices' petition. 

     The federal judge presiding in the case had previously granted a temporary stay while the justices' motion to dismiss was pending. The current motion seeks the same treatment.

     A week after CCL filed a Petition for a Writ of Mandamus, the U.S. Court of Appeals for the Eighth Circuit ordered opposing counsel to file a response in the ongoing litigation between a state trial judge and members of the Arkansas Supreme Court. 

     The judge had sued the state's highest court and its justices, challenging a recusal order issued by the Supreme Court after the judge had participated in two public protests and commented in a personal blog on matters that came before him. The Arkansas Attorney General moved for the judge's recusal, and the Court granted it, making the reassignment from the cases a permanent one. The judge then sued in federal court, arguing that his rights were violated by the recusal order.

     In response to a motion to dismiss filed by CCL, the federal court dismissed the Arkansas Supreme Court from the action, holding that it was ineligible to be sued due to sovereign immunity. The judge, however, allowed the case to continue with the justices as defendants, which prompted a joint petition for mandamus. Mandamus is considered an extraordinary remedy, and opposing counsel does not need to respond to it unless requested by the appeals court. Here, the court did just that, requiring a response as soon as was convenient. That order is considered a good sign that the Eighth Circuit could take up the request for mandamus.

  As a member of the committee, CCL President Robert S. Peck attended a rare meeting of the ABA Amicus Curiae Committee in Washington, DC, where the Committee discussed plans to streamline its process and continue to assure quality briefing. ABA President Hillary Bass attended the meeting and was joined at the committee dinner by ABA President-elect Robert Carlson.

     CCL argued that a but-for standard is the appropriate requirement for proximate cause under the Fair Housing Act (FHA) in a brief filed in the Eleventh Circuit in the consolidated cases of City of Miami v. Bank of America Corp. and City of Miami v. Wells Fargo & Co. CCL represents Miami in this remand from the U.S. Supreme Court in a case argued by CCL President Robert S. Peck and decided a year ago.

     The Supreme Court held, 5-3, that Miami had standing to bring a private enforcement action under the Fair Housing Act, affirming the Eleventh Circuit's unanimous decision. However, it held that the Eleventh Circuit had relied upon too lenient a standard -- foreseeability alone -- in deciding whether Miami's injuries were legally caused by the Banks' discriminatory lending practices. It sent that issue back to the lower courts for a determination of the "contours" of the proximate cause requirement and what side of the line the City's injuries fell.

      The Eleventh Circuit ordered simultaneous briefing by the parties. CCL's brief on behalf of Miami argued that an Eleventh Circuit decision, as well as decisions under other federal statutes, supported the but-for approach, which holds causation to exist as long as the violation is a substantial or significant contributor to the injuries. It further argued that Congress had ratified the types of injuries that Miami claimed in its 1988 amendments to the FHA by endorsing the "broad holdings" of two cases that claimed damages indistinguishable from Miami's.

      The Eleventh Circuit will now decide whether to entertain oral argument on the issue.

      Today, CCL filed a Petition for a Writ of Mandamus in the U.S. Court of Appeals for the Eighth Circuit, asking the court to throw out the remaining aspects of a state trial judge's challenge to the recusal order of the Arkansas Supreme Court. The federal appeals court has discretion about whether to take up the writ.

      The case began when Judge Wendell Griffen sued the Arkansas Supreme Court and each of its justices after that court ordered the judge permanently recused after he had participated in political protests and written blog posts related to a case before him. When a party to that action, the State of Arkansas, filed an emergency motion to vacate the temporary restraining order Judge Griffen ordered and sought his recusal, the Arkansas Supreme Court granted the motion.

      Judge Griffen filed a Section 1983 action, asserting a violation of his civil rights, in federal court, relying on freedom of speech, the free exercise of religion, due process, and equal protection. CCL represented the Arkansas Supreme Court, its chief justice, and two other justices. The remaining justices were represented by other counsel. All defendants moved to dismiss. The U.S. District Court dismissed claims against the Arkansas Supreme Court, but found claims against the justices in their official capacities sufficiently plausible that those claims were permitted to move forward. Immediately after the District Court's order, Judge Griffen sought discovery related to the justices' internal deliberations on the recusal motion.

     CCL, on behalf of all defendants, filed the Petition to review the partial denial of the motion to dismiss. It argues that mandamus is an appropriate remedy to prevent disruption of the Arkansas Supreme Court's functions through an intrusive set of discovery inquiries and depositions that are privileged. At the same time, because Judge Griffen has no right to preside over any particular case, his claims fail to state a cause of action.

      CCL President Robert S. Peck participated in the Spring meetings of the American Association for Justice (AAJ). As a member of the Legal Affairs Committee, Peck heard reports about AAJ's activities to support access to the courts and the right to trial by jury. He gave his own report on some of the litigation developments of particular interest to AAJ members. Among items in his report were recent victories about limiting the use of discovery to litigation and not lobbying purposes, a Minnesota Court of Appeals decision that reversed the dismissal of a complaint in a medical device case on preemption grounds, and a trial court ruling that New Mexico's medical malpractice cap violates jury-trial rights.

      Peck also attended the AAJ Board of Governors meeting as a guest.