Arkansas Newspaper Reports on CCL 8th Circuit Victory

July 3rd, 2018

     The Arkansas Democrat-Gazette had an extensive report on CCL's victory before the Eighth Circuit, which resulted in an order to the District Court to dismiss a state trial court judge's lawsuit against justices of the Arkansas Supreme Court over an order of recusal.

     The article quotes, CCL President Robert S. Peck, who represented the justices, as well as the Arkansas Supreme Court itself before it was dismissed from the case, as saying that the ruling confirms that the courts and due process protections in litigation exist for the parties in litigation, not for the judges, who cannot override the litigant's constitutional rights in the name of their own interests.

Eighth Circuit Orders Case Against Arkansas Supreme Court Justices Dismissed

July 2nd, 2018

     Based on a writ of mandamus filed by CCL President Robert S. Peck, the U.S. Court of Appeals for the Eighth Circuit ordered a federal district court to dismiss all claims against justices of the Arkansas Supreme Court in a case filed by a state trial judge challenging an order of recusal.

     Judge Wendell Griffen sued the Arkansas Supreme Court and its justices, claiming that they violated his federal civil rights when they ordered him recused after he had participated in public protests concerning issues in the case and had written blog posts about the issues. Federal District Court Judge James Moody Jr. dismissed the Arkansas Supreme Court as a party on sovereign immunity grounds, but permitted the claims against each of the justices to go forward as at least plausible. 

    Today's ruling said that none of the claims met the plausibility standard because recusal does not exact any harm against a judge, accepting the argument Peck made along with counsel for the other justices. Peck represented Chief Justice John Dan Kemp and Justices Robin Wynne and Shawn Womack in the Eighth Circuit.

Peck Argues Sacramento Satisfies Proximate Cause in FHA Lawsuit Against Wells Fargo

June 29th, 2018

     Arguing against a motion to dismiss, CCL President Robert S. Peck, representing the City of Sacramento, argued that the city's complaint met the Fair Housing Act's proximate cause standard to maintain its lawsuit for damages relating to lost property taxes, remediation expenses, and neutralized fair housing expenditures against banking giant Wells Fargo.

      Peck pointed out that the Supreme Court has instructed courts to focus on a statute's legislative history to determine the contours of the proximate cause requirement. That legislative history demonstrates that Congress was specifically concerned about the impact of discriminatory housing practices on municipal finances. In 1988 amendments, Congress endorsed a 1972 Supreme Court case, Gladstone, Realtors v. Village of Bellwood, in which the court upheld the validity of a municipality's lawsuit for lost property taxes as a direct injury. Peck argued that this legislative history informs the proximate cause analysis and makes the city's injuries integral to the statutory cause of action.

     U.S. District Court Judge Kimberly Mueller took the case under advisement.

Supplemental Authority filed in Eleventh Circuit Remand of Bank of America v. City of Miami

June 22nd, 2018

     On June 22, 2018, CCL filed the decision in City of Oakland v. Wells Fargo Bank, NA, as supplemental authority in the U.S. Court of Appeals for the Eleventh Circuit, which is considering the remanded issue of proximate cause from last year's decision in Bank of America Corp. v. City of Miami. CCL's Robert S. Peck argued the case in the Supreme Court and the proximate cause issue in the Oakland case.

     In last year's decision, the Supreme Court held that Miami had standing to bring claims under the Fair Housing Act for lost property taxes, remediation expenses, and fair housing expenditures, but left open the issue of whether the complaint met the FHA's proximate cause requirement. It asked lower courts to decide, in the first instance, the contours of that requirement. Since then, Peck has argued the issue in cases brought against Wells Fargo in Philadelphia and Oakland. Both federal district courts denied the bank's motion to dismiss on proximate cause grounds. In the Philadelphia case, Wells Fargo sought permission to bring an interlocutory appeal, which Peck opposed. The district court denied permission.

      On June 29th, another federal district court will hear the same issue in a case brought by the City of Sacramento against Wells Fargo. Once again, Peck will argue the issue.

Federal Court Denies Wells Fargo Motion to Dismiss in Fair Housing Case

June 15th, 2018

     In City of Oakland v. Wells Fargo & Co., federal district court judge Edward Chen denied Wells Fargo's motion to dismiss the City of Oakland's fair housing complaint against the banking giant for a pattern of discrimination in mortgage loans given to minority home buyers. CCL President Robert S. Peck represented Oakland in the argument last December and wrote the principle section of the brief.

     Oakland raised similar allegations against Wells Fargo as did Miami, also represented by Peck in the U.S. Supreme Court last term. In Bank of America v. City of Miami, the Supreme Court held, 5-3, that cities have standing to bring fair housing actions for lost property taxes, remediation expenses, and depletion of its fair housing resources, but asked the lower courts to determine, in the first instance, the contours of the Fair Housing Act's proximate cause requirement at the pleading stage. The Miami case was returned to the Eleventh Circuit for that determination and received simultaneous briefing from the parties (Miami, Bank of America and Wells Fargo) on April 30.

     In the Oakland case, Judge Chen held that the city had sufficiently pleaded a direct connection between its lost property taxes and the Bank's allegedly discriminatory practices. He also found the city's claim for injunctive relieve satisfied the relevant proximate cause standard. Its claim for damages for its monetary expenditures was dismissed without prejudice so that it could be re-pleaded to specify the expenditures attributable to Wells Fargo. The court also dismissed without prejudice for re-filing the city's claim for harm to its goal and programs advancing fair housing. 

    When the Supreme Court handed down its decision last term, both sides claimed victory. To date, CCL has prevailed on the proximate cause issue in each of the cases in which it represents a city bringing a fair housing case.

District Court Stays Discovery Pending Mandamus Petition

May 16th, 2018

     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.

CCL Files Reply Brief in Support of Mandamus Petition

May 14th, 2018

      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.

CCL Moves to Stay Discovery Pending Disposition of Mandamus Petition

May 2nd, 2018

     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.

Eighth Circuit Orders Response to Mandamus Petition

May 1st, 2018

     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.

CCL Files Brief in Eleventh Circuit Arguing Proximate Cause Standard in Fair Housing Act Cases

April 30th, 2018

     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.