News

     In the lead article in Appellate Practice, an American Bar Association publication, CCL President Robert S. Peck discusses three key elements to obtaining U.S. Supreme Court review of a lower court decision. In "Framing the Issue," Peck discusses how to develop a compelling issue, place it within a consistent theme, and tie the issue to an ongoing interest of the justices. While doing so will not guarantee a grant of certiorari, Peck writes, the absence of these elements usually will foreshadow failure.

      The article is an abbreviated version of a chapter Peck wrote in a forthcoming book on appellate strategies to be published by the ABA this year and includes contributions from leading Supreme Court advocates. 

     The Oklahoma Supreme Court declared a $350,000 cap on noneconomic damages in personal injury cases unconstitutional today, in a CCL case. The Court held the $350,000 limit to have an "irremediable constitutional flaw," because the Oklahoma Constitution prohibits caps on damages in wrongful death cases, and this statute treated those who survive negligent injury less favorably. As a result, the Court found the statute to be a prohibited "special law."

     To explain the discrimination, the Court used the example of a collapsing brick wall. If one person is injured and eventually dies from those injuries, that person is entitled to the full verdict for noneconomic damages, as found by the jury. However, if a second person survives with catastrophic injuries, that person's recovery is limited, even though the person might live for decades with the consequences of the injury.

     In the underlying case, Beason v. I.C. Miller, Todd Beason was injured when the boom of a crane fell on him. His serious injuries included the need for two amputations of his arm.

     CCL served as co-counsel in the Oklahoma Supreme Court with the Abel Law Firm, which also tried the case.

     CCL President Robert S. Peck and California lawyer Bruce Brusavich argued that the Supreme Court's decision last week in Timbs v. Indiana renders application of the Seventh Amendment's right to trial by jury a foregone conclusion in a front-page opinion piece published today in the Los Angeles Daily Journal, the premier legal newspaper of Southern California. 

     In Timbs, the Supreme Court held, for the first time, that the Eighth Amendment's Excessive Fines Clause applies to the states. In that case, a person arrested on drug dealing charges challenged the seizure of a new $42,000 Land Rover he bought from money he inherited constituted an excessive fine, because the highest penalty he could be assessed was $10,000. The Indiana Supreme Court rejected the argument because the Excessive Fines Clause had never been "incorporated" through the Fourteenth Amendment to apply to the states. The U.S. Supreme Court unanimously reversed, finding the clause so fundamental that it had to be applied to the states.

     After Timbs, the only parts of the Bill of Rights that have not yet applied to the states are the Third Amendment's prohibition on quartering of troops, the Fifth Amendment's grand jury requirements, and the Seventh Amendment's right to a jury trial. Of these, Peck and Brusavich argue, the Seventh Amendment qualifies for incorporation under the criteria utilized by the Supreme Court. In fact, the article points out that the Seventh Amendment's credentials for incorporation outshine those of the Excessive Fines Clause or the previously incorporated Second Amendment. 

     The article points out the significance of incorporation, which would apply federal precedent on jury trials to the state, which the authors contend will invalidate damage caps in common-law based causes of action, such as medical malpractice. Since 1975, California has limited non-economic damages in medical malpractice cases to $250,000. Brusavich, a past president of the Consumer Attorneys of California, is counsel in Hernandez v. Cardin, a medical malpractice case that goes to trial April 8 in which the judge has authorized a hearing on the constitutionality of the cap if liability is assessed above the cap.

    A new ordinance, enacted unanimously, requires private contractors wishing to do business with the City of Los Angeles to disclose whether they do business with or offer discounts to the National Rifle Association (NRA). Yahoo Finance interviewed CCL President Robert S. Peck on the ordinance's constitutionality (https://finance.yahoo.com/news/new-los-angeles-says-contractors-must-disclose-nra-ties-224358900.html?ncid=twitter_yfsocialtw|1gbd0nolom).

    Peck explained that disclosure generally does not raise constitutional concerns except where it is likely to cause retribution against the disclosing party or its members. While private contractors have certain First Amendment rights that would prevent a city from discriminating against them because they refuse to support the incumbent political figures, there is a substantial open question about whether a city crosses a constitutional line when it insists on doing business companies that align with a city's public policy priorities, such as those that only use recycled products, Peck told the news source.

      WIthout an opinion, the EIghth Circuit denied a petition for rehearing or rehearing en banc filed by Arkaansas Judge Wendell Griffen, who sought review of a July ruling that ordered a federal district court to dismiss all claims he had made against the Arkansas Supreme Court and its justices. CCL represented the court, its chief justice and two of the associate justices in the litigation. The chief judge of the Eighth Circuit did not particpate in the decision, and one judge would have granted the petition.

      Griffen's lawsuit alleged a violation of his constitutional rights when the state supreme court ordered him recused from death penalty cases after he issued an order in one immediately after particpating in an anti-death penalty rally.  Griffen's lawsuit contended that he had a free-speech right to speak out against the death penalty and was religiously compelled to do so, but CCL argued that the due process rights of the litigants took precedence over the judge's rights so that his exercise of those rights did not require that he be allowed to preside over cases in which he had demonstrated potential bias.  The Eighth Circuit agreed and ordered the case dismissed. 

     Counsel for Judge Griffen has indeicated he will seek review of the decision in the U.S. Supreme Court.

     CCL, along with co-counsel, filed a response to supplemental authority filed by the defendant in a Colorado case that challenges that state's medical malpractice cap, which was argued last October. In Smith v. Surgery Center, a patient went into the medical facility for a steriod injection, but left paralyzed from the waist down and transforming her husband into a round-the-clock caregiver. After a trial, the jury awarded the couple nearly $15 million in damages. While the defendant facility has challenged their liability, they have also invoked the Colorado damage cap, which limits medical malpractice damages to $1 million, no more than $300,000 of which may be for noneconomic compensation.

      In defense of capped damages, the Surgery Center notified the Court of a recent decision by the Wisconsin Supreme Court, which upheld that state's limits on medical malpractice non-economic damages and overturned a 2005 decision of the same court that invalidated a prior similar damage cap. In the response drafted by CCL, Plaintiffs pointed out that their only citations to the prior Wisconsin case was for unassailable factual propositions that were unaffected by the new case. They further pointed out that the dissenter in the 2005 case wrote the new decision, making the same points that did not command a majority of the court in 2005.

      As a result, CCL argued, the new case merely reflects a change in membership on the court and not the development of new reasoning. As Justice Thurgood Marshall once wrote: "It takes little detective work to discern just what has changed since this Court decided [the prior case]; this Court's own personnel." That is an illegitimate basis for overturning a previous decision, because, as Justice Potter Stewart wrote, it "invites the misconception that this institution is little different from the two political branches of the Government."

     A New Mexico District Court declared the state's 1976 limits on medical malpractice damages unconstitutional in a decision where CCL President Robert S. Peck testified as an expert witness. The cap would have reduced a $2.6 million jury verdict to $600,000 plus medical expenses had the cap not been invalidated.

    The court held that the cap violated the inviolate right to trial by jury in the New Mexico Constitution. Because the statutory cause of action created in 1976 to create the cap was duplicative of the preeexisting common-law cause of action for medical malpractice, the court ruled that the jury's authority in the case was set by the Constitution, which requires that the right to a jury trial exists "inviolate" from how it was "heretofore" practiced. The constitutional authority of the jury includes both the determination of the facts presented at trial and the damages incurred.

    The case, Siebert v. Okun, is likely to be appealed by the defendant-physician.

Following on the heels of an historic verdict in a case declaring New York City’s stop-and-frisk policies unconstitutional, the ACLU published a report in March that laid bare Chicago’s widespread, discriminatory stop-and-frisk practices. CCL joined co-counsel Antonio M. Romanucci, Martin D. Gould & Angela Kurtz with the Chicago firm Romanucci & Blandin, LLC, and Rod Gregory of the Gregory Law Firm in Jacksonville, Florida, in representing more than two dozen African-American and Hispanic male Chicago residents who filed a putative class action against the City, the Superintendent of Police, and the officers for violations of their Fourth and Fourteenth amendment rights.

The City and the Police Superintendent each separately moved to dismiss an amended complaint, attempting to litigate the merits of the plaintiffs’ claims before the defendants filed their Answer or provided the discovery the plaintiffs need to prove their claims.

CCL President Robert S. Peck and Senior Litigation Counsel Valerie M. Nannery worked with co-counsel to counter the City’s arguments that the plaintiffs do not have standing to seek equitable relief, and that the plaintiffs didn’t allege sufficient facts in the 713-paragraph Amended Complaint to show that their constitutional rights had been violated by the City’s practices and policies. In response, CCL pointed to the allegations that the incredibly widespread practice caused numerous plaintiffs to be stopped and frisked multiple times each, sometimes on the same day, without reasonable suspicion and based on their race or national origin, all while going about their daily lives, including instances where they were standing in front of their own homes. CCL argued that the allegations demonstrate a strong likelihood that the plaintiffs will again be subject to the challenged widespread policy because they cannot avoid being stopped and frisked simply by obeying the law.

The defendants’ motions will be heard in the U.S. District Court for the Northern District of Illinois on December 22^nd.

U.S. District Court Judge James D. Peterson denied CCL’s motion for a temporary restraining order on behalf of Wisconsin Chief Justice Shirley Abrahamson as unnecessary because the results of the April 7, 2015 vote on a state constitutional amendment changing the selection process for chief justice will not be certified until April 29, so that no one could act on it before then. The ruling, he wrote, was not a decision on the merits. He also set a April 21^st status conference to finalize a briefing schedule and promised to resolve the issue quickly.

The lawsuit, filed the day after the election, has attracted coverage in the New York Times, the Milwaukee Wisconsin Journal Sentinel, Dom's Domain, Green Bay Press Gazette and a Wall Street Journal editorial.

CCL’s Robert S. Peck and Kathryn Minton represent Chief Justice Abrahamson and five voters who supported her reelection in 2009 for a term that ends in 2019.

Representing Chief Justice Shirley Abrahamson and five voters, CCL filed a federal lawsuit Wednesday seeking a declaration that the constitutional amendment approved by voters April 7, which changed the method by which the chief justice was selected, cannot be implemented until a naturally occurring vacancy occurs in that post. Abrahamson, a member of the court since 1976, has served as chief justice since 1996. Prior to Tuesday’s vote, the Wisconsin Constitution conferred the office of chief justice on the most senior continuously serving justice.  In 2009, Abrahamson was elected to another 10-year term, which ends on July 31, 2019.

The newly approved constitutional amendment changes the seniority rule to an election of the justices for a two-year term. The court’s majority is generally regarded as conservative, while Abrahamson is known as a liberal. News reports have speculated that the upshot of the amendment is that Abrahamson would be replaced with a member of the conservative wing of the court.

The complaint and memorandum, seeking immediate injunctive relief, argues that a constitutional amendment must explicitly and unmistakably indicate that it is to have retroactive effect; otherwise, the amendment must be construed as prospective in nature. Any other approach, the lawsuit contends, would violate the due process and equal protection rights of Abrahamson in her position, as well as the dilute and debase the voters who supported her in the 2009 election.

The lawsuit names the six other Wisconsin Supreme Court justices as defendants, as well as certain state officials responsible for administration and payroll. Wisconsin Attorney General Brad Schimel was served with the complaint as well, as his office has authority to defend the action. The plaintiffs in this action are represented by CCL’s Robert S. Peck and Kathryn Minton.