CCL Argues Diocese Cannot Determine for Itself the Discoverability of Documents

March 31st, 2022

     In a reply brief filed in a New York lawsuit, CCL argued that the Brooklyn Diocese cannot redact a full 18 pages of potential discovery on the grounds that the documents inform the Vatican of a priest's misconduct and should be protected by an imaginary "bishop workplace privilege." Instead, of permitting the religious authority to be the judge of its own discovery determinations, CCL argued for in-camera review and selective redactment because the documents apparently contained factual information about sexual misconduct by the priest at the heart of the case, J.D. v. Roman Catholic Diocese of Brooklyn.

     In the case, CCL joined Janet, Janet & Suggs in representing the plaintiff on this discovery dispute. The Diocese argued that the First Amendment permits it to withhold documents that formed the basis for the Church's defrocking of a priest and internal religious governance. In the brief filed today, the Plaintiff disclaimed any interest in the church governance or the defrocking process, only relevant factual information about the priest's similar sexual misconduct over the years. The brief further argued that the First Amendment provides no shield against discovery of such information. 

     The court is expected to hold oral argument on the issue in May.

Peck Argues Rape Victims Suffer Life-Altering, Catastrophic Injuries and Capping their Damages Violates the Ohio Constitution

March 30th, 2022

     CCL President Robert S. Peck told justices of the Ohio Supreme Court that the cap on personal injury non-economic damages cannot constitutionally apply to a rape victim, arguing that the damage-cap statute is an unconstitutional violation of the state constitution's "inviolate" jury trial right and, alternatively, a violation of equal protection and due process as applied to this case.

     Plaintiff Amanda Brandt was sexually assaulted 34 times over a two-year period starting when she was 11, by the father of her best friend, who would spike her drinks to render her unconscious during sleepovers. When it was discovered that he had done so to her and others, he was prosecuted and is now serving a prison term.

     Now 26, after having withdrawn from being among crowds, losing her position as an honor student, becoming homeless, attempting suicide, and facing counseling for the rest of her life, Brandt sued her rapist winning a $20 million verdict for actions that took place while the cap was in effect, but seeing it reduced under the statute to $250,000.

      In arguing the case, Peck pointed out that the word "inviolate" is used three times in the Ohio Constitution. Twice it refers to private property rights, but then qualifies the right, allowing it to be "subservient to public welfare." The jury right is inviolate, however, without qualification, which he said means it is not subject to a balancing test against any state interest.

       Even if the Court were not prepared to overturn a precedent that it has recently filed but that the Attorney General conceded was irreconcilable with years of other precedents that were still good law, Peck told the justices that exceptions to the rule that treated as catastrophic a permanent scar, a lost finger, and other comparatively minor injuries, denied Brandt equal protection and due process for its irrationality. Moreover, the rationale for the cap -- assuring defendants predictability in verdicts and boosting the state economy -- had no bearing where the defendant is a rapist.

        The case is now under advisement with a decision expected later this year.

CCL Helps Write Reply Brief in Support of Adequate Judicial Funding

March 28th, 2022

      CCL helped a Washington state law firm write and file its reply brief in the state supreme court, arguing that a trial court's dismissal of the action without explaining its reasoning should be reversed.

      The case, filed by Stritmatter Kessler Koehler Moore, asserts that, despite warnings by a succession of state chief justices that judicial funding has hurt the delivery of justice in the state, the legislature has failed to respond, largely pawning off trial court funding on counties ill-equipped to meet the demand. The result is unseemly delays. The case was filed on behalf of a series of plaintiffs awaiting their day in court.

      The constitutional argument is premised on two provisions of the Washington Constitution: the right to justice "without unnecessary delay" and the "inviolate" right to trial by jury. The trial court rendered a final judgment consisting of a single word: "Dismissed." 

       The Attorney General's office, defending the case, claims that the two provisions do not establish a right to adequate funding, argues that only the judiciary has standing to bring such a lawsuit, and says that there is no caselaw supporting the Plaintiffs. In reply, the Plaintiffs argued that adequate funding was a remedy to "unnecessary delay," and is only one of several options the Court could choose, noting that in a school funding case, it declared the right and then asked the legislature to respond. The reply also demonstrated why the two Declaration of Rights provisions are individual rights upon which Plaintiffs may sue. Finally, it rebutted the claim that no caselaw supports Plaintiffs. Among other cases, Plaintiffs cited a Ninth Circuit decision that held a three-and-a-half month suspension of jury trials across the nation due to budget shortfalls violated the federal jury right.

      The next step is for the state supreme court to decide whether to keep the case or send it to the court of appeals.

The Best Qualified Nominee

March 20th, 2022

     Critics of the nomination of Judge Ketanji Brown Jackson have leveled several poorly taken criticisms to score political points against her confirmation. One of the many arguments made is that she may not be the "best qualified" person to serve on the Court, despite her sterling credentials. In a post for the Appellate Advocacy Blog of the Law Professors Blog Network, CCL President Robert S. Peck explains why the critique is without any force.

      His post shows that no objective criteria exists to determine the most qualified potential nominee. In addition, he demonstrates that some of the most celebrated of Supreme Court justices were not considered the most qualified candidate for a seat, yet history has vindicated their selection. In addition, he notes one justice who was widely considered the most qualified turned out to be a dud.

      The post can be found here.

CCL President Writes Louisiana Legislature About Constitutional Problems with Proposed Advertising Law

March 16th, 2022

     CCL President Robert S. Peck wrote to members of the Louisiana Legislature that a proposed advertising law had not corrected problems with a statute approved last year but vetoed by the governor. 

     Last year, legislators attempted to prohibit certain statements and logos in lawyer advertising about drug and medical device cases, while adding a variety of disclaimers. Peck testified before the Senate Commerce Committee that the proposal ran afoul of the First Amendment as a near-clone of a West Virginia law that a federal court had enjoined and subsequently declared unconstitutional. The bill also intruded on regulatory authority that the Louisiana Constitution assigend to the state supreme court, which was the basis for the veto by Gov. John Bel Edwards.

     Recently, a similar bill was introduced that attempts to regulate all advertising of that type, rather than be specifically aimed at lawyers, in an apparent attempt to avoid the basis for last year's gubernatorial veto. However, because First Amendment law requires a state to identify a real problem an demonstrate that the regulatory approach it adopts is both narrowly tailored and likely to be effective, the focus on lawyers remains its apparent, even if unspoken, objective. Yet, the problems that sponsors claim exist have nothing to do with the offer of legal services, making it impossible to justify the proposal.

     Another change was to weaken the prior bill's prohibition on truthful speech about a drug or medical device's recall, yet Peck's letter makes clear that the change does not solve the bill's constitutional problems.

CCL Calls Attention to Another Good Decision in PREP Act Case

March 15th, 2022

     CCL filed supplemental authority in support of its completed briefing in the Seventh Circuit, letting the court know of a new decision from the Fifth Circuit that agrees with CCL's arguments. 

      In Martin v. Petersen Health Operations, CCL is defending its victory in winning remand to state court in a federal district court in Illinois, where it argued that there was no federal jurisdiction over this nursing home death case because the facility was not acting as a federal agent and the federal PREP Act did not apply, either as a form of complete preemption or as a federal basis for adjudicating the case. In a decision last week, the Fifth Circuit, based in New Orleans, joined the Third Circuit (Philadelphia) and Ninth Circuit (San Francisco), in agreeing with CCL's argument. In addition, more than 100 federal district courts have now also agreed. 

      The defendant's reply brief is due March 21. Nonetheless, CCL suggested that the Seventh Circuit dispense with oral argument in view of the overwhelming consensus in the courts that the federal courts lack jurisdiction over a state law cause of action.

Peck Argues First Amendment Matter in Fourth Circuit

March 10th, 2022

    Asking the Fourth Circuit to affirm a district court's decision holding a lawyer advertising law enacted by West Virginia unconstitutional, CCL President Robert S. Peck told the judges that the categorical prohibition of the use of the word "recall" by lawyers advertising for drug and medical device injury cases could not be justified because the word is used in his client's advertisements in a factual and verifiable form and that the State of West Virginia had failed to meet its burden to proffer any evidence in support of their claimed need to bar the word.

     One member of the panel, Judge J. Harvey Wilkinson III, pushed back on this argument, asserting that use of the word "recall" would mislead some listeners into thinking that the government had ordered the recall, even though federal law defines recalls as voluntary withdrawals of drugs or medical devices from the market by the manufacturer and that the Food and Drug Administration (FDA) does not issue recalls. The judge also asserted that the court could simply defer to the legislature's judgment on the need for the prohibition, but Peck responded that that would utilize a "rational-relationship" test, rather than the intermediate scrutiny test that applies to commercial speech under the First Amendment. 

     In response to the evidence that the law also required disclaimers that take up 30-seconds of a 30-second television advertisement, Judge Wilkinson asked why it was not unconstitutional for drug manufacturers to have to reveal all the adverse effects of their drugs in their advertising. Peck provided two reasons: first, the adverse effects information was a condition of the companies' receiving a license to market the drug in the first place, which cannot occur without FDA approval. Second, he stated that the information was tied to the product being offered, a prescription drug. In contrast, the West Virginia law required an attorney offering legal services to provide information about drugs, even though the attorney was not attempting to sell drugs or medical services.

     The case, Recht v. Morrisey, is now under advisement in the Fourth Circuit.

CCL Argues Federal Tolling Provision Controls Over State Law

March 9th, 2022

     Before a state trial court in Chicago, CCL President Robert S. Peck argued that the Illinois two-filing rule had to yield to the federal supplemental jurisdiction statute because of the Constitution's Supremacy Clause. 

      In the underlying case, a husband and wife sued Best Buy when the store refused to provide satisfaction on a expensive plasma television set that could not be repaired or replaced under the Geek Squad Protection Plan (GSPP) they purchased as an extended warranty for the television set. Best Buy contends that the GSPP is merely a service plan that allows them to replace the television set for one of similar quality, even though its value is a fraction of the set they originally purchased. Best Buy sold the GSPP to them characterizing it as an extended warranty and advertises the plan as a warranty. The purchasers made their claims under the Magnuson-Moss Warranty Act, which prevents manufacturers and sellers from denying an implied warranty, even if not phrased that way. 

      The prime issue before the court was the statute of limitations. The family, the Wares, originally filed their action in federal court in Florida against Best Buy and Samsung. When the court found it lacked personal jurisdiction, the couple filed in federal court in Illinois, which held that the GSPP was not a warranty. On appeal, the Seventh Circuit independently raised a question of subject-matter jurisdiction after briefing and argument on the warranty issue. Because Magnuson-Moss requires 100 named plaintiffs for the case to be heard in federal court, but only one plaintiff to file the same action in state court, Peck asked the Seventh Circuit to vacate the district court decision and order the case dismissed without prejudice so it can be refiled in state court under the federal supplemental jurisdiction statute. The Seventh Circuit found that the suggestion was the correct one and followed Peck's suggestion.

     One refiled within 30 days in state court in compliance with 28 U.S.C. 1367, Best Buy, the only remaining defendant, moved to dismiss, arguing that the Wares needed to plead supplemental jurisdiction and that Illinois's one-re-file rule prevented the court from entertaining the case. Peck argued that precedent, including one from the Sixth Circuit, held that supplemental jurisdiction need not be pleaded. In addition, under Jinks v. Richland County, which Peck argued in the Supreme Court, state law cannot interpose a bar to the realization of Congress's determination that state law is tolled while a qualifying case is in federal court and for another 30 days afterwards when dismissed without prejudice. 

     Co-counsel Kyla Lemieux argued the other issues. The case was taken under advisement.

Peck Argues Sovereign Immunity Issue in Florida Appeals Court

March 8th, 2022

     CCL President Robert S. Peck urged a Florida appeals court to affirm a trial court's ruling that the University of Florida and its board do not receive sovereign immunity when it overcharged prospective students for their college applications and subsequent orientation.

      The case, a putative class action, relied on a Florida statute that set the maximum fees that state universities can charge for applications at five dollars and for orientation of accepted students at thirty dollars. Without seeking legislative permission to charge more, the University of Florida passed along a vendor's additional five-dollar fee to applicants, while charging seventy-five dollars for orientation. The plaintiffs sued on theories of conversion and negligent misrepresentation. A trial court denied the university's motion to dismiss based on sovereign immunity, and the defendants then appealed.

      During oral argument, one judge pressed the issue of whether the statutory waiver of immunity's reference to "loss of property" could include money collected by an illegal overcharge. That appeared to be the primary issue for the Court. Peck responded by explaining a wide variety of precedents where money was treated as property. The case is now under advisement, with a decision expected sometime in the next few months. 

CCL Defends Free-Speech Doctrine

March 6th, 2022

     Arguing that exempting "low-value" speech that causes emotional distress from constitutional protection will often provide a weapon in the hands of those in the majority against dissenters, CCL President Robert S. Peck took up a debate with a fellow blogger on the Appellate Advocacy Blog, a feature of the Law Professor Blogs Network. 

     A week earlier, Adam Lamparello, an associate professor at Indiana Tech Law School, provocatively advocated that brutalizing speech should be subject to regulation. Peck responded by describing instances where anti-racism demonstrations were the object of attempted censorship because of the discomfort it transmits to those in power who may not be combating it. Peck noted that today's controversies over critical race theory and LBGQT expressions arise because majorities believe that their communication constitutes an attack on traditional values.

     Peck also pointed out that free speech has a safety-valve function that allows the expression of disturbing thoughts so that it does not retreat to the underground, where it can fester unimpaired by counter-speech and emerge surprisingly and in more virulent form.