News

CCL’s Robert S. Peck participated in the biannual meeting of the Board of Directors of Justice at Stake, a nonpartisan national partnership of more than 50 organizations, working to keep courts fair and impartial through public education, litigation and reform. The April 16-17 board meeting took place in Washington, DC, where the board talked about the anticipated U.S. Supreme Court ruling in Williams-Yulee v. Florida State Bar (where the Supreme Court later held that a restriction on direct solicitation of campaign funds by judicial candidates did not violate the candidates’ First Amendment rights) and the battle between the Kansas Governor and the state supreme court over judicial authority. Peck serves as board secretary and chairs JAS’s amicus curiae committee.

CCL President Robert S. Peck told CBS News that the California Attorney General’s had only “ministerial” responsibility for giving a title and summary for qualifying initiative petitions, meaning that she could not exercise discretion. Appearing on the CBS Morning News on March 31, CBS News correspondent Ben Tracy about the options available to Attorney General Kamala Harris, who has sought judicial permission to avoid proceeding with an initiative that would criminalize homosexual sex and punish it with death, specifying that the sentence be carried out by “bullets to the head or by any other convenient method.” The blatantly unconstitutional proposed amendment to the California Constitution, which Peck also called “insensible,” has no chance of passing, but garnered headlines because of its extreme proposal and the ease with which the California initiative process is commenced. To make it to the ballot, a petition must gather nearly 400,000 signatures after receiving a title and summary from the Attorney General.

Peck explained that California’s Attorney General may have a way to avoid any further involvement with the amendment. California law requires a proponent to pay a filing fee of $200, plus provide certain information, including public contact information. To date, all news reports indicate that no news organization has successfully contacted the Californian who proposed the initiative. If his public contact information is inadequate or wrong, Peck said, the petitioner has not complied with the prerequisites for filing so that no title or summary would need to be issued by the state.

Arguing that the so-called Lawsuit Abuse Reduction Act would have prevented Brown v. Board of Education from going forward, CCL President Robert S. Peck told a House Judiciary subcommittee that the bill would “expose Americans to more harmful products and misconduct by diminishing the opportunity to hold those responsible accountable,” “add to the cost of litigation, not lower it,” while raising profound separation of powers issues by virtue of its attempt to amend a rule of civil procedure directly, rather than through the Rules Enabling Act, which makes the judiciary primarily responsible for the promulgation of procedural rules.

The bill, H.R. 758, attempts to roll back the present version of Rule 11, adopted in 1993, to reinstate the language it had in 1983, when sanctions were mandatory, rather than discretionary. Even the strongest judicial advocates of mandatory sanctions, receded from that support based on experience that showed that Rule 11 motions were brought primarily for tactical reasons that only multiplied proceedings, caused waste and delay, and increased tensions between parties, making the job of judges harder, Peck told the Subcommittee on the Constitution and Civil Justice.  The bill is also opposed by the Judicial Conference of the United States, the governing body of the federal courts, as well as the American Bar Association.  A 2005 poll of judges, conducted by the Federal Judicial Center, found 87 percent favored the current rule, while only five percent wanted a return to the 1983 version.

Peck’s reference to Brown v. Board of Education was supported by a 1988 article by U.S. District Court Judge Robert Carter, a member of the legal team in Brown, who believed that the case would not have gotten past a Rule 11 motion under the 1983 rule. Noting that judges have ample authority to sanction baseless filings, Peck said that judicial discretion is necessary because different violations warrant different remedies. Peck concluded his remarks by quoting University of Pennsylvania Professor Stephen Burbank, who described the decade-long experience under the 1983 rule as an “irresponsible experiment with court access,” and urged Congress to reject the bill for the reason that the Judicial Conference had interred the 1983 rule.

CCL President Robert S. Peck called the chronic underfunding of state courts throughout the United States a profound constitutional issue and economically shortsighted at a one-day conference held by the RAND Institute for Civil Justice (ICJ) in Santa Monica, California January 12. The conference attracted legal and court leaders from throughout the country, exploring better ways to assure adequate funding for the courts.

An opening panel at the conference, "Discount Justice: State Court Budgeting in an Era of Fiscal Austerity," included Minnesota Chief Justice Lorie Gildea, Los Angeles Presiding Judge Carolyn Kuhl, and National Center for State Courts President Mary McQueen focusing on the depth of the problem and the various ways that courts have attempted to address it. Funding cuts have devastated the California courts, worse than other states, resulting in closed courthouses and courtrooms, employee layoffs and furloughs, trial delays, and an undermining of court modernization programs.

Peck spoke as part of a panel on constitutional issues raised by the cuts, with New York Chief Judge Jonathan Lippman and California lawyer Donna Melby. The panel agreed that a legal challenge was a last resort, but that precedent supported the courts. Peck described some of the past lawsuits over court funding, noting that the early 1970s were a high-water mark for challenges to underfunding. He noted that litigants, the bar, as well as judges, had standing to bring such actions, which were often premised on due process, separation of powers, and the courts' own inherent powers.

During a luncheon conversation, California Chief Justice Tani Cantil-Sakauye talked about the hardships effected by the cuts, the efficiencies that California has instituted to limit their impact, and the plans for the future when new economic hard-times are likely to hit.

Afternoon panels focused on the available and relevant research, as well as court services that may need to be abandoned or curtailed. Former ABA President Bill Robinson delivered a stem-winding keynote speech that reminded the audience that without funding, there is no law and no justice.

Peck, who serves as chair of the board of overseers for the co-sponsor ICJ, gave closing remarks that emphasized the continuing challenges ahead and the need to engage the broader public. The conference was also cosponsored by UCLA law school.

On December 11, CCL President Robert S. Peck spoke about U.S. Supreme Court practice as the featured speaker for the Delaware ABOTA meeting, whose president, Joseph Weik is a Governor for the American Association for Justice. Peck talked about the peculiarities of practicing before the U.S. Supreme Court and the unusual turns that oral argument can take. Among the examples he used were his own experiences in arguing Jinks v. Richland County (2003) and his two arguments in Philip Morris USA v. Williams (2007 & 2009), in which the Supreme Court sustained a punitive damage award that was 97 times larger than the compensatory damages awarded by the jury.

CCL President Robert S. Peck spoke at the opening of the South Carolina Association for Justice’s annual Auto Torts Seminar Dec. 5 in Atlanta, describing the efforts that CCL has made in fighting damage caps in the courts, making sense of the U.S. Supreme Court’s jurisprudence on preemption to permit plaintiffs to bring their cases, and dealing with a variety of other obstacles to access to justice. The well-attended seminar, often called "the best seminar in the region, if not the country," by trial lawyers from across the South, provided CCL with an opportunity to showcase its most recent victories in the courts, as well as some of the issues currently on its docket.  In the course of his remarks, Peck talked about CCL’s wins in the Florida Supreme Court in Estate of McCall v. United States, which struck down the state’s aggregate damage cap in medical malpractice cases, as well as Fulgenzi v. PLIVA in the Sixth Circuit and In re: Reglan Litigation in the Appellate Division of the New Jersey Superior Court, both of which held that failure-to-warn claims against generic drug manufacturers were not preempted by federal law when the manufacturer has failed to update its label to encompass the warnings appearing on the name-brand version of the drug.

On November 13^th and 14^th, CCL Senior Litigation Counsel Valerie M. Nannery participated in a two-day, invitation-only conference hosted by the Duke Center for Judicial Studies to examine how the amendments to Federal Rule of Civil Procedure Rule 26(b)(1), discussed earlier here and here, should be implemented, should they go into effect on December 1, 2015. “Implementing Discovery Proportionality Standard Conference” included panels on the history of the amendments and the concept of “proportionality” in discovery, judicial case management, and applying the factors in the “proportionality” standard. Participants included practitioners from the defense and plaintiffs’ bar, in-house counsel from several large corporations, and several federal judges, including members of the Advisory Committee on Civil Rules and the Judicial Conference’s Committee on Rules of Practice and Procedure.

CCL President Robert S. Peck talked about the need for stronger public disclosure requirements as part of the remedy needed to assure fair and impartial courts in the aftermath of heightened judicial election spending during a one-day symposium at New York University School of Law November 14. The symposium, “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton,” explored the aftermath of the U.S. Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co., where the Court ruled that due process required the recusal of a justice of the West Virginia Supreme Judicial Court because a party in a pending case spent $3 million to oust a justice of that court in favor of a challenger he believed would be more favorable to his interests. The decision endorsed the idea that state judicial ethics rules could go further in disqualifying judges from sitting on cases where their impartiality could be questioned as a result of a debt of gratitude based on financial support of their election.

The symposium’s first panel recounted the story of the Caperton case, where coal company owner Don Blankenship spent millions in independent expenditures in support of now-Justice Brent Benjamin’s campaign for a seat on the West Virginia court and who then provided the deciding vote overturning a $50 million verdict against Blankenship’s company. Moderated by New York Times Supreme Court reporter Adam Liptak, the panel found that the dissenting justices’ concern about a flood of recusal motions have not come to pass.

The second panel, featuring CCL’s Peck, looked at the struggle to define rules that go further than due process requires. Peck emphasized that recusal was a remedy, but an imperfect and less than optimal one and that the objective still is an impartial tribunal. Peck advocated that better disqualification rules be accompanied by improved disclosure of campaign spending sources, including those that go into independent expenditures, issue advocacy and voter education efforts in judicial elections. He pointed out that someone with Blankenship’s intentions today would likely contribute to a number of innocuous sounding committees that would seek to perform the same function of changing the membership of a court in a way that launders the money given and makes it more difficult to trace back to its source. He described some of the issues now pending in Illinois, where accusations are pending in court about indirect efforts to replace a justice and affect the outcome of several cases.

Subsequent panels explored judges’ views and sources of bias. Participants included New York Chief Judge Jonathan Lippman, Ohio Chief Justice Maureen O’Connor, former Alabama Chief Justice Sue Bell Cobb, and former Wisconsin Justice Louis Butler.

Peck was invited to participate as the author of an amicus brief on behalf of the American Association for Justice in Caperton and as the leader in a successful effort in the American Bar Association’s House of Delegates to resolve that courts must adopt transparent and timely procedures for permitting recusal and providing for independent review of any decision not to step down from a case. The resolution had the endorsement of the Conference of Chief Justices. The symposium was co-sponsored by NYU’s Journal of Legislation and Public Policy, the Brennan Center for Justice, and the ABA Center for Professional Responsibility.

On November 8^th, CCL Senior Litigation Counsel Valerie M. Nannery participated The Future of Class Action Litigation: A View From The Consumer Class, a conference sponsored by the Center on Civil Justice at NYU School of Law. The day-long conference hosted law professors, judges, and practitioners from both the defense and plaintiffs’ bar to discuss the current state of the consumer class action, ideas for changes to the class action device, and the future of class actions. After panels that included current and former members of the Advisory Committee on Civil Rules, and several academics who study issues related to class actions, Chief Judge of the United States Court of Appeals for the Ninth Circuit, Alex Kozinski, gave the Keynote—a conversation with Professor Arthur Miller about the current state and future of consumer class actions. While several panelists provided some new research into specific aspects of class actions, and specifically about class action settlements, it was repeatedly noted that there is currently a dearth of empirical data and research available about the current state of class actions. The conference organizers and participants called for study of class actions and class action settlements.

Further description of the conference and videos of the panel discussions can be found here.

The Summer 2014 issue of The Appellate Quarterly, the newsletter of the Appellate Advocacy Committee of ABA-TIPS, published today, features a lead article written by CCL’s Valerie M. Nannery regarding draft amendments to the Federal Rules of Appellate Procedure that were published for public comment in August. The article, which can be downloaded or viewed here, describes the proposed changes to Appellate Rules 4, 5, 21, 26, 27, 28.1, 29, 32, 35, and 40, and Form 6, and how they would affect appellate practice. Draft amendments to Appellate Rules 32 and 28.1 would reduce the current length limits for appellate briefs, and draft amendments to Rules 5, 21, 27, 35, and 40, and Form 6 would convert page length limits to word limits in most cases, using a conversion rate of 250 words per page. Draft amendments to Rule 29 would amend the current provision, and add a new provision for amicus curiae briefs on petitions for rehearing.

The public comment period on the draft amendments is open until mid-February 2015, and the Advisory Committee on Appellate Rules invites comments from the public, bench and bar. You can review the draft amendments and submit comments online at this website: http://www.uscourts.gov/RulesAndPolicies/rules/proposed-amendments.aspx.