CCL Opposes Dismissal of First Amendment Action

September 30th, 2022

     CCL told a federal court in Florida that the State's motion to dismiss a challenge to a 2021 law that prohibits contractors to advertise that they provide insurers with everything they need when a homeowner needs a roofing repair or replacement lacks merit. The case, RAF v. Griffin, in the Northern District of Florida, seeks to invalidate a variety of provisions in the new law that the State claims is needed to prevent insurance fraud.

      The State argued that the complaint alleged insufficient information for a facial challenge and, in many respects, had misinterpreted what the law permits and forbids. However, in its response, CCL showed that the State's Consumer Insurance Advocate, who the State proffered as an expert, interpreted the law the same way in defending the statute. The case is deep into the discovery process, even as the State seeks its dismissal. 

       In alleging widespread insurance fraud, the State told the Legislature that approximately ten percent of insurance claims are fraudulent, though it cited no source for that estimate. Even if taken at face value, CCL's brief said that the State's claims provided no justification for restricting advertising that does not seek to induce fraud but to win over customers worried about whether the insurance claims they legitimately have will be paid on a timely basis. It is particularly ironic that Florida seeks to prevent insurance claiming by homeowners who pay some of the highest premiums in the nation at the same time that Florida was hit by Hurricane Ian and suffered widespread devastation. Florida is especially vulnerable to extreme weather due to being surrounded on three sides by water.

Peck Argues Plaintiffs Seeking Increased Funding for the Courts Deserve their Day in Court

September 27th, 2022

     CCL President Robert S. Peck urged the Washington Court of Appeals to reverse the dismissal of an action by plaintiffs whose cases were delayed due to systemic underfunding of the courts, arguing that the State's arguments in favor of dismissal lack support.

      In Ralston v. Washington, the plaintiffs argued that decades of pleas by state supreme court chief justices had fallen on deaf ears in the Legislature and has systematically starved the courts of resources. The trial court dismissed the action without an opinion explaining the decision. Peck argued the state's arguments miscontrued precedent. 

      The State relied heavily on an argument that only the judiciary itself could sue for increased funding, but Peck pointed out that the judiciary does not exist for its own benefit but to serve the people through the fair and timely administration of justice. He pointed to decisions where the judiciary was not the plaintiff but that the cases were decided against those seeking increased funding because of a failure of evidence, rather than a lack of standing. 

       Peck also pointed to the state constitution's guarantee of access to the courts "without unnecessary delay," as well as its guarantee of an inviolate right of trial by jury. He countered the State's claim that the former applied only to the judiciary and only guaranteed public trials with a decision that invalidated a legislative obstacle to filing a case in court, a decision he himself won in the Washington Supreme Court. He also pointed to a federal decision from the Ninth Circuit that found delays of jury trials because of budgetary constraints to violate the federal Constitution.

     The case is under advisement.

Peck Participates in CJRI Board Meeting

September 24th, 2022

     CCL President Robert S. Peck participated in the biennial meeting of the Civil Justice Research Institute's board of advisers on September 24. The CJRI is a program of the University of California-Berkeley School of Law. 

     During the course of the meeting, Peck presented an upcoming white paper he co-wrote with two Berkeley students on gun-violence litigation.

CCL President Writes Blog Post about SCOTUS

September 18th, 2022

     Writing in his biweekly blog post for the Appellate Advocacy Blog, CCL President Robert S. Peck critiqued the North Carolina legislature's use of misleading history to argue that it should have unfettered discretion to set the federal voting rules in the state.

     The case, Moore v. Harper, forces the Supreme Court to consider the "independent legislature theory" that the federal Constitution designates state legislatures to make federal election rules without scrutiny from the state courts or any limitations imposed by the state constitution.

     The post, History Rewritten to Serve Selfish Ends – and Serve an Argument, explains that North Carolina's reliance on a draft of portions of the Constitution by Charles Pinckney Jr. is misplaced. The so-called draft Pinckney Plan that the state claims demonstrates the Framers' intent that state legislative decisions be unreviewable in the states was debunked by historians and no lesser an authority than James Madison, rightfully called the Father of the Constitution. Instead, as the authors of an article on the issue in Politico explained, the Pinckney Plan was an after-the-fact attempt by Pinckney to claim greater credit than he deserved for participating in the Constitutional Convention. In fact, the "plan" contains language from the Constitution that was only developed late in the Convention and that was at odds with positions Pinckney took during the assemblage. 

     Peck argues that use of such fractured history can generate judicial errors that will perpetuate revisionism that ill serves constitutional government.

Peck Presents on Civil Justice Issues in Upcoming Supreme Court Term

September 16th, 2022

      CCL President Robert S. Peck reviewed upcoming U.S. Supreme Court cases that involve civil justice issues at the annual preview hosted by the Law and Economics Center at George Mason University Antonin Scalia School of Law, along with John Beisner of the Skadden Arps law firm.

      The conversation started with Mallory v. Norfolk Southern Railway, a case involving personal jurisdiction under Pennsylvania's corporate registration statute, which has treated registration as consent to general jurisdiction for more than a century and was upheld by the Supreme Court in 1917. Modern caselaw and the Court's new heavy emphasis on originalism, the interpretative theory that treats the objective of those who framed and ratified the Constitution as determinative of its meaning, brings new questions into play on the state statute's validity. 

      Peck explained that, with Justice Gorsuch's recent concurrence suggesting a new look at fundamental concepts of personal jurisdiction, the case could provide a launching point for a new jurisprudence. He distinguished what was at issue in the Pennsylvania case, where the injury took place out of state, with a Georgia case also on the Supreme Court's docket, where there were more substantial connections to the state that justified the assertion of personal jurisdiction, indicating the Court could provide guidance.

      Other cases discussed included National Pork Production Council v. Ross (Dormant Commerce Clause), Axon Enterprise, Inc. v. FTC (whether a corporation under investigation by an independent federal agency could bypass the Administrative Procedures Act and challenge the agency's constitutionality in federal district court), and Health and Hospital Corporation v. Televsky (private right of action under statutes passed pursuant to the Spending Clause).

      Peck also highlighted two petitions from CCL's docket: Recht v. Morrisey (commercial speech) and Douglass v. NYK Line (personal jurisdiction).

CCL President Attends American Law Institute Meeting

September 15th, 2022

     CCL President Robert S. Peck attended and contributed to discussions of the American Law Institute's Concluding Provisions draft in Philadelphia as part of its decades-long effort to update its Restatement of Torts.

      During the meeting, discussants probed and suggested changes to sections on medical malpractice, vicarious liability, spoliation, and miscellaneous issues in tort law. The small-group effort will result in further revisions that will be the subject of future discussions.

CCL Files Amended Complaint Challenging Florida Law Regulating Marketing by Roofing Contractors

September 2nd, 2022

     CCL filed a Fourth Amended Complaint challenging a 2021 Florida law that restricted advertising and marketing by roofing contractors in order to discourage property insurance claims by homeowners. Among other things, the law prohibits advertisers from directly or indirectly encouraging or inducing an insurance claim. To avoid the prohibition under an amendment enacted in special session in 2022, the roofing contractor must add lengthy disclaimers that warn homeowners against filing fraudulent claims. According to the State, a small minority of claims, on the order of ten percent, are fraudulent, though, to date, the State has not explained how it arrived at that figure.

     The case is pending in the U.S. District Court for the Northern District of Florida. The plaintiffs are a large roofing contractor and a trade association whose members include roofing contractors. The defendants are the state officials who run the agencies charged with regulating and licensing contractors.

CCL Drafts Response Brief in Illinois Appellate Court Nursing Home Litigation

September 1st, 2022

     The Illinois Appellate Court will consider whether a gubernatorial executive order provides blanket immunity to a nursing home sued over five COVID-related deaths in late April-early May 2020. In an executive order issued at the beginning of April and reissued in May of that year, Illinois Governor J.B. Pritzker extended the State's own immunity from suit to health-care providers who rendered assistance to the State in its battle against the coronavirus.

       In the five wrongful-death cases filed during that period, the trial court denied the nursing home's motion to dismiss based on the executive order. However, it did not rule on the dispute between the parties on whether the nursing home actually rendered any assistance. As the brief for the plaintiffs filed today argued, discovery established that the nursing home did nothing that it did not normally do in response to COVID, other than to re-use procedural masks made for one-time use by staff who dealt with residents with COVID symptoms, but not with those who died and sued in these cases. As a result, the brief argued that the nursing home did not render assistance to the State that qualified for immunity, particularly since its meager effort was unrelated to its treatment of the decedents. Moreover, the brief argued any other reading of the executive order would render it unconstitutional as exceeding the Governor's authority.

      In addition, the brief urged the court to dismiss the appeal as improvidently granted because this type of interim appeal is not available where a factual dispute continues to exist but is instead reserved for pure legal questions likely to resolve the litigation. 

      The nursing home will now have an opportunity to file a reply brief in response.