Peck Explains Insurrection Act on WUSA-9/CBS

January 11th, 2021

     As the country reels from the assault on the Capitol as Members of Congress were engaged in totalling the Electoral College votes received from the States in the presidential election, concerns continue to grow about further incidents domestic terrorism. WUSA-9, the Washington, DC CBS affiliate, had received questions from viewers about claims being made by conspiracy theorists that President Trump had invoked the Insurrection Act to seize military control of the country and even hold public tribunals to try those who would not reconsider the election results as criminals.

     The station turned to CCL's Robert S. Peck for an explanation of the Insurrection Act, which has existed in one form or another since 1807. As Peck told the station, the Insurrection Act can only be invoked unilaterally by a president, either when a state's legislature and governor were no longer functioning due to an insurrection or domestic unrest so that federal legal rights were being trampled, or when insurrection or domestic unrest prevented law enforcement or the normal processes from proceeding. To invoke the Act, a public proclamation is necessary so that the insurgents have an opportunity to disperse and return peaceably to their homes and so that other government actors might get involved. Not only is there a safeguard role for Congress and the courts during this cooling-off period, Peck said, but also an opportunity for the vice president to make use of the 25th Amendment, if the invocation of the Act is unjustified.

Peck Interviewed about Impeachment, Twenty-fifth Amendment

January 7th, 2021

     After Members of Congress and newspaper editorials across the country advocated that President Donald Trump needed to be removed from office immediately, CCL President Robert S. Peck did a number of television interviews about the meaning of impeachment with only 13 days left in the Administration, the process of the 25th Amendment, and the consequences of removal by that amendment.

     Peck explained that an impeachment process can be done quickly, if Congress had the will to do so. He also explained that ineligibility for future office does not automatically follow a conviction following impeachment. Instead, Congress has to explicitly include those terms in the impeachment and conviction.

     Peck also explained the process anticipated by the 25th Amendment, its origins, use, and how it does not have the effect of rendering the removed president permanently disabled from seeking the presidency again.

     Peck's interviews appeared on Washington, DC CBS affiliate WUSA-9 and Toronto's CTV news channel.

CCL President Interviewed about Electoral College Certification

January 6th, 2021

     CCL President Robert S. Peck told the Washington, DC CBS affiliate, WUSA-9, that the vice president had no authority to refuse to recognize the certified results of the Electoral College in an interview just before Congress took up that process.

     Peck told WUSA-9 that the vice president's role is ceremonial and that there were no further legal or constitutional options to overturn the result. Shortly after the interview, Vice President Mike Pence issued a statement recognizing that the truth of what Peck said. Peck added that the next date to watch was January 20 to see if there is any resistance on the part of the president to leave office. Still, he said, the Trump presidency ends on that date as a constitutional matter.

     In a second and separate interview with the station, Peck was asked about the Expulsion Clause, which was used during the Civil War to expel some members of Congress loyal to the Confederacy. He said he thought today's senators objecting to the Electoral College certification were phrasing their objections carefully to avoid providing a smoking gun of their disloyalty, even though they are likely to be accused of that.

     The assault on the Capitol building by Trump supporters occurred shortly after both interviews.

CCL Files Amicus Brief for State and Local Government Groups in Supreme Court

December 22nd, 2020

     CCL filed a amicus curiae brief in the U.S. Supreme Court on behalf of state and local government groups, arguing that appeal from a remand order that rejects removal on federal-officer grounds, when other removal grounds was also asserted, is limited to that one issue. 

     In addressing this technical civil procedure issue, CCL's brief argued that the removal statute's text, Congress's intent, congressional ratification of prior court precedent, and legislative history all support affirming the decision rendered by the Fourth Circuit in this case, BP Plc v. Mayor and City of Baltimore, No. 19-1189. Federalism principles further support the reading advanced by CCL's brief, because Congress would only abrogate state court authority through the most explicit statutory direction, as past Supreme Court decisions have required. 

     The brief also defends the capability and impartiality of state courts when confronted with issues of this kind. Furthermore, it argues that BP's myopic focus on the word "order" in the statute as authorizing an appeal of all grounds rejected by a district court in a single ruling takes the word out of context. It cites the late Justice Scalia's book on interpretation to explain that a good "textualist" is neither a literalist nor a nihilist, but that BP's approach would make the Court both. 

      Baltimore, like a number of states and local governments, brought what are largely public nuisance actions under state law in state court, seeking relief from oil companies for their contributions to climate change. BP and the other oil company defendants tried to remove the case from state court to federal court, claiming that its responsibility for climate change was a function of following the federal government's directions and making them the equivalent of a federal officer, who has a right to have any case against that officer heard in federal court. BP does not really defend that ground, but uses it as a basis to bring its other grounds as a basis for appeal. Federal law does not allow the other bases to be grounds for being in federal court. CCL argues that this misuse of federal-officer removal is a matter of gamesmanship. Any competent lawyer would make the allegation in order to obtain appellate rights for more serious arguments.

     In the amicus brief, CCL represents the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

Peck Moderates Supreme Court Advocacy Panel

December 16th, 2020

     CCL President Robert Peck moderated a panel of Supreme Court advocates discussing how arguments have changed during the COVID-19 pandemic. Peck posed questions and shared insights with Tom Goldstein of Goldstein & Russell and co-founder of SCOTUSBlog, Deepak Gupta of Gupta Wessler, and Roman Martinez of Lathan & Watkins.

     The three panelists had argued cases during 2020, using the telephone format that the Court had adopted. The hour-long conversation covered the technological set-up each used, the changes they made to the way they normally prepare for Supreme Court arguments, the surprises that occurred that required last-minute adjustments, their tips for dealing with each justice having a short period of time for questioning in order of seniority, and how the change might affect oral arguments when they return to being in-person.

     The panel was sponsored by the ABA Litigation Section's Appellate Advocacy Committee.

CCL Files Supreme Court Reply Brief in FHA Civil Procedure Issue

December 11th, 2020

     Today, CCL filed its reply brief in City of Miami Gardens v. Wells Fargo & Co., pending on a writ of certiorari in the U.S. Supreme Court. Representing Miami Gardens, CCL argues that Wells Fargo distorts the record in attempting to avoid review in the Supreme Court.

      When the case was before the U.S. Court of Appeals for the Eleventh Circuit, that court raised a new issue that had not been briefed or before the district court just before oral argument. That issue, whether there was record evidence of the City's injuries from allegedly discriminatory mortgage loans the bank had made, had not been part of the threshold inquiry that the district court had limited itself to. Because the district failed to permit discovery on that issue, CCL's Robert Peck argued that the issue was not ripe from review and instead remained at the pleadings stage, where allegations were sufficient. 

     Nonetheless, the appellate court ruled that it was a fair inquiry and held that Miami Gardens lacked Article III standing to pursue its case. CCL then sought rehearing en banc, arguing that this procedural tactic had been condemned by the U.S. Supreme Court in Alabama Legislative Black Caucus v. Alabama (2015). The Eleventh Circuit denied review, but the original panel wrote an extensive defense of its use of the procedural device. Two judges on the Eleventh Circuit dissented from the denial of rehearing en banc, likening the situation to a teacher who confiscated a student's pencil before an exam and then penalized the student for turning in a blank sheet of paper.

     CCL petitioned for certiorari, and Wells Fargo opposed. The International Municipal Lawyers Association filed an amicus brief in support of the petition. Today's filing responded to the Wells Fargo brief. The case is expected to be reviewed by the Supreme Court at its January 8 conference.

Cert Petition Filed in Colorado Supreme Court on "Corporate Practice of Medicine" Doctrine

November 26th, 2020

     CCL joined co-counsel Levanthal Puga Braley in filing a petition for a writ of certiorari in the Colorado Supreme Court to restore the jury's verdict in Smith v. Surgery Center, a medical malpractice case.

     The case began when Robbin Smith sought treatment for lower back pain in anticipation of standing for a long time at her son's upcoming wedding. Instead, because the doctor improperly used a drug that had a black-box warning against epidural use, Robbin suffered paralysis in her lower body and ended up having to watch the ceremony by video.

      The doctor settled his liability, but the case continued against the ambulatory surgical center where the treatment took place. The center's formulary supplied the drug, Kenalog, despite knowing of its planned use, the warning against that use, and which was confirmed four times by center nurses who were part of the surgery. While the center claimed it could not control its use by the doctor, it subsequently passed a rule that gave it that control. In addition, the center violated a host of state and federal regulations designed to assure patient safety at centers like the defendant, which the jury found to constitute negligence per se. Finally, by interposing its own "informed consent" form that failed to inform Robbin of the warning against Kenalog's use for her procedure, the jury found a violation of standards of care. The jury awarded damages of $14.9 million to Robbin and her husband, which the trial court reduced to $7 million under the state non-economic damage cap while also rejecting a constitutional challenge to the cap.

     Both parties appealed to the state court of appeals, with the Surgery Center appealing its liability and the Smiths appealing rejection of their constitutional challenge. The Court of Appeals, however, took away the judgment, finding that the Surgery Center cannot be held responsible for the injury due to Colorado's prohibition on the corporate practice of medicine, that the regulations violated were more oriented toward licensure than safety, and that the center could not be liable for failing to provide informed consent, even if assuming that duty, because it was not its responsibility. As a result, the constitutional issue was not addressed.

     The petition filed today asks the Colorado Supreme Court to review those determinations.

Peck Argues Ripeness and Standing Issues in Virginia Constitutional Challenge

November 23rd, 2020

     CCL President Robert S. Peck argued that a federal district court in Virginia was obliged to take up a constitutional challenge to Virginia's $2 million limitation on damages in medical malpractice cases before undertaking trial of the case today.

     In J.S. v. Winchester Pediatric, a young boy was catastrophically injured, requiring life-long care, as a result of medical negligence after being involved in an automobile collision. One set of defendants settled for the entire damage limitation of $2 million. However, because of the statutory limit, the second defendant is immunized from liability, even if found to have been at fault and a jury determination that the damages exceed the $2 million limit. For that reason, Peck argued that the district court did not have Article III authority under the Constitution to try the case. The Supreme Court has made clear that to constitute a "case" or "controversy" within the authority of the federal courts there must be an injury in fact fairly traceable to the defendant's conduct for which the court can give relief. Because no relief could be had as a result of the damage-cap statute, Peck told the court it was without authority to try the case. However, he said the constitutional challenge to the statute demonstrated the requisite case or controversy because J.S. would be shut out of his day in court as a result of the state law and that a declaration of unconstitutionality could remedy this injury.

     The defendant and the Virginia Attorney General's office both argued that a trial needed to take place before the constitutional question could be taken up, in order to be sure there was liability and a verdict above the cap. Neither, however, was able to explain how the court had Article III authority to conduct the medical-malpractice trial. 

Peck Speaks at Conference on Emerging Civil Justice Trends

November 23rd, 2020

     CCL President Robert S. Peck spoke about trends and issues in personal jurisdiction, COVID-19 litigation and effects on the courts and jury system, and qualified immunity in a wide-ranging panel discussion, sponsored by the Law and Economics Center at George Mason University's Antonin Scalia Law School. The panel was part of a month-long virtual conference for judges, academics, and lawyers.

     Peck was part of a panel moderated by U.S. District Court Judge Sarah Pitlyk of the Eastern District of Missouri. Also on the panel were Kalpana Srinivasan, managing partner of Susman Godfrey in Los Angeles and John Beisner of Skadden Arps in Washington, DC. 

     Peck suggested that the justices themselves expressed some dissatisfaction with the direction recent personal jurisdiction cases had taken and had overstated some of the primary considerations when they heard the Ford cases that came from Montana and Minnesota in October. He also suggested that their attempt to carve federal cases out of the strict approach taken in state cases are likely to come home to roost soon, forcing them to confront different aspects of the latter's strictness.

    On COVID-19 proposals for immunity, Peck explained why tort law incorporates a type of flexibility that acknowledges unusual situations and adjusts to a sensible standard of care so that businesses and others who do not take precautions are properly held liable, while those that do will rarely be subject to suit. For that reason, immunity proposals are ill-considered because they fundamentally excuse irresponsible behavior. Peck also suggested that the technological innovations that have expanded access to the courts during the pandemic are probably here to stay, but expressed concern that we are losing familiarity with and support for jury trials, which remain essential to our civil justice system.

    Finally, Peck thought that recent developments had exposed problems with the judge-made doctrine of qualified immunity that immunizes government officials from civil rights liability when the right was not "clearly established" has begun to show enough problems that changes to the doctrine cannot be far off.

CCL Files Challenge to Texas Non-Economic Damage Cap

November 20th, 2020

     CCL, along with trial lawyers in Texas, filed a challenge to the non-economic damage cap in medical malpractice cases that was enacted 17 years ago. The case, a purported class action seeks the "incorporation" of the Seventh Amendment's right to trial by jury, meaning its application to the States, and a declaration of unconstitutionality for the cap.

     In recent years the U.S. Supreme Court has expanded the "incorporation" doctrine to include the Eighth Amendment's excessive fines clause and the Fifth Amendment's unanimous criminal jury requirement. Under the criteria used by the Court, the Seventh Amendment qualifies as well, the new lawsuit contends.

     The cap will likely be defended by the Attorney General's office in Texas.