Peck Rebuts Criticism of Unenumerated Constitutional Rights

May 15th, 2022

     Responding to critiques about unenumerated constitutional rights, CCL President Robert S. Peck devoted his post to the Appellate Advocacy Blog to the subject, explaining both textual and originalist justifications and for proper application of common-law interpretative methodologies. 

     In Denying Unenumerated Rights, Peck explains that all sections of the political spectrum have their favorite implied rights that they insist is embodied in the Constitution. The disagreement, then, is not about the existence of such rights, but how they are read into the Constitution.

CCL Seeks Rehearing En Banc in First Amendment Case

May 10th, 2022

     Arguing that a Fourth Circuit panel ruled inconsistently with both Supreme Court and its own precedents, CCL President Robert S. Peck filed a petition asking that the case be reheard en banc. The panel's decision two weeks earlier overturned a district court ruling that a West Virginia statute restricting attorney advertising violated the First Amendment.

      In upholding the statute, the Fourth Circuit decision found not constitutional issue with a law that prohibited attorney's from truthfully stating that a drug or medical device had been recalled. To the panel, the word "recall" was inherently misleading and could cause "medically unsophisticated" consumers to think that it was recalled by the government, even though recalls are voluntary actions of a manufacturer under federal law. As the petition pointed out, only attorneys advertising about drug and medical device cases are prohibited from using the word "recall." The FDA and manufacturers are still permitted in the challenged statute to use them in press releases and on web sites to tell the public a product has been recalled. Precedent forbids government from reserving the truthful use of a word to only certain speakers.

      An additional flaw the brief pointed out to the Fourth Circuit is that the panel utterly ignored the unrebutted evidence that West Virginia required attorneys to add a long list of disclaimers to the advertisement, so long that it took up 30 seconds of a 30-second television advertisement. That type of burden violates the First Amendment under Supreme Court precedent.

      A petition for rehearing en banc is discretionary with the court. No response is required from the State of West Virginia until requested by the court.

CCL to Seek Further Review of Adverse Fourth Circuit First Amendment Decision

April 27th, 2022

     In Recht v. Morissey, the Fourth Circuit held today that West Virginia could ban lawyer advertising about drug and medical devices from truthful use of the word "recall," calling it a "loaded," "troublesome," and "misleading," as well as other provisions previously invalidated in a CCL case by a federal district court. CCL president Robert S. Peck pledged to seek rehearing en banc, describing the decision as inconsistent with Fourth Circuit and U.S. Supreme Court precedent. 

     The decision accorded significant discretion to the state legislature, even though First Amendment precedent required the state to demonstrate that the problems it addressed were real, would be materially advanced by the chosen methods, and that no less extensive approach would suffice. The decision also upheld disclosure requirements that took up 30 seconds in a 30-second advertisement without providing any rationale for doing so. It also treated a requirement that lawyers tell viewers to consult their physician before discontinuing use of any medication, even when the advertising had nothing to do with medication. Such a requirement has no justification in such a case. It further treated that disclaimer as factual and uncontroversial, even though the district court termed it "medical advice."

     The petition for rehearing en banc is due May 11.

CCL President Participates in AAJ Legal Affairs Committee Meeting

April 22nd, 2022

     CCL President Robert S. Peck participated in the Spring 2022 meeting of the Legal Affairs Committee of the American Association for Justice, where he spoke about his recent argument in the Ohio Supreme Court in Brandt v. Pompa, a constitutional challenge to the damage cap applicable to personal-injury lawsuits.

      In Brandt, under a state statute, the trial court reduced a $20 million jury verdict to $250,000 where the plaintiff had been the victim, as an eleven- and twelve-year-old, of more than 30 sexual assaults by a friend's father, who had drugged her during sleepovers. Peck argued that the statute violated the state constitutional right to trial by jury, but also was unconstitutional as applied to Brandt because the legislature had no justification for treating her differently from those suffering permanent physical injuries, whose damages are not capped.

      The case, argued in late March, is currently under advisement, with a decision expected before the end of the year.

CCL Argues Illinois Governor's COVID-Related Grant of Immunity Violates Constitution

April 6th, 2022

     In two separate cases, CCL replied today to state briefs defending the Illinois governor's authority to grant immunity to nursing homes that allegedly did nothing different than they normally do for "rendering assistance" to the state in the pandemic, pointing out that nothing in state law provides that type of extraordinary authority to the executive.

     The dispute arises in two cases in which nursing home residents died after the homes failed to take any relevant precautions to protect the residents from COVID-19. In seeking dismissal of negligence allegations against them, the homes' invoked a temporary executive order from Illinois Governor JB Pritzker that asked health-care providers to render assistance to the state's efforts to combat the pandemic and granted immunity from negligence liability in return.

      CCL argued that the Illinois Emergency Management Agency Act does not provide the authority claimed by the governor and does not allow him to unilaterally suspend the Illinois Nursing Home Reform Act, particularly where no assistance was rendered to the State. As a result, the grant of immunity violated separation of powers, equal protection, and due process. Moreover, it constitutes a form of special legislation by providing improper economic favoritism without justification.


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.

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.