Peck Speaks to AAJ Civil Rights Section

July 9th, 2018

     CCL President Robert S. Peck described landmines that recent U.S. Supreme Court decisions placed in the path of civil rights advocates in remarks made at the meeting of the Civil Rights Section of the American Association for Justice on July 9 in Denver, Colorado. 

     Peck began his talk by describing the impact that Justice Kennedy's retirement was likely to have, with the certainty being that the new nominee will be a more doctrinaire conservative. Peck likened Justice Kennedy's civil rights record to Thomas Paine's sunshine patriot, who comfortably stakes out a favorable position when the wind is blowing in that direction, but retreats when more heavy lifting is required. Peck said that the distinction often played out on issues of race. In making that case, Peck contrasted the Court's treatment of religious liberty in Masterpiece Cakeshop and its emphasis on the animus expressed in two of the five Colorado commissioners statements with the dismissal of more tethered animus from the president in connection with the Court's deference in the Travel Ban case.

     Peck also highlighted the uneven treatment often afforded those whose civil rights were violated because of the qualified immunity doctrine. There, unless the violation is clearly established before the violation takes place, the misbehavior is excused, essentially allowing one free violation -- as long as the case bothers to label the misconduct as a violation. Even though a prior case need not be on all fours with the current misconduct, and courts regularly recite that standard, it is rarely applied. Peck also highlighted a pending petition to the Supreme Court on qualified immunity, Allah v. Milling, that has attracted an unusual set of amicus supporters that span the ideological spectrum and urged his audience to watch that space.

     Peck also described the Court's recent interest in proximate cause in applying civil rights statutes. The standard applicable in civil rights remains in flux, but could trip up an otherwise meritorious case.

Peck Speaks at AAJ Insurance Law Section Meeting

July 8th, 2018

     CCL President Robert S. Peck reported on the new Restatement of Insurance Liability Law, promulgated by the American Law Institute (ALI), in May to members of the Insurance Law Section of the American Association for Justice, meeting in Denver, Colorado at AAJ's Summer Convention on July 8. The ALI is a prestigious organization of lawyers, law professors and jurists, which publish the authoritatively regarded Restatements of the Law on various subjects. Peck is a member of the ALI.

     Peck described the new Restatement as consumer-friendly, recognizing that consumers rarely have much say over the insurance contracts they sign. During the recent ALI meeting, which gave final approval to the new restatement, members rejected a number of amendments offered by the insurance industry that would have weakened consumer protections in the black-letter law of the proposed Restatement. The result, Peck said, is one that should provide courts with substantial guidance in resolving disputes between insurers and their insured.

Peck Participates in AAJ Legal Affairs Committee Meeting

July 8th, 2018

     CCL President Robert S. Peck participated in the Legal Affairs Committee meeting at the Summer Convention of the American Association for Justice on July 8, 2018 in Denver, Colorado. At the meeting, members discussed the latest legal developments affecting civil justice issues. Peck also reported on recent litigation undertaken by CCL to protect access to the courts.

Peck Speaks at State Constitutional Law Symposium

July 7th, 2018

     CCL President Robert S. Peck reminded judges attending the 2018 Pound Institute Forum for State Appellate Judges in Denver, Colorado, that state constitutions provide a double protection for individual rights that may go beyond the protections afforded by the U.S. Constitution and that state judges also have the authority to interpret the U.S. Constitution. He urged the judges, in appropriate cases, to use the incorporation doctrine to apply the Seventh Amendment's civil jury trial right to the states.

    The Pound forum focused on state constitutions this year. Professors Robert Williams of Rutgers Law School and Justin Long of Wayne State Law School presented papers on state constitutions. Peck was among the panelists commenting on the paper of Professor Williams. At lunch, the 140 judges from 36 states heard from Justice Goodwin Liu of the California Supreme Court, who reprised his Brennan Lecture of last year, delivered at New York University Law School. The lecture focused on the need to undertake an independent interpretation of state constitutional provisions and not to simply adopt the U.S. Supreme Court's views on similar federal rights.

     In Peck's remarks, judges heard about some of the reasons state constitutions, with their own unique text, support a stronger application. Still, he noted that sometimes federal provisions provide strong rights that should be applicable to the states. He gave the Seventh Amendment jury-trial right as an example of the rare Bill of Rights provision that had not been applied to states. He noted that little of the Bill of Rights had been made applicable until the 1960s. The Seventh Amendment's status was a function of jurisprudence that dates back to the late 19th century. Yet, Peck said, when the Second Amendment was made applicable to the states in 2010 in McDonald v. City of Chicago, the Supreme Court urged lower courts not to rely on outdated 19th century precedents. Using the criteria that the Supreme Court said justified incorporating the Second Amendment, Peck pointed out that the Seventh Amendment qualified as well, with an even stronger claim to incorporation.

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.

CCL's Peck Interviewed on Justice Kennedy Legacy

June 28th, 2018

      CCL President Robert S. Peck told Washington Lawyer magazine that U.S. Supreme Court Justice Anthony Kennedy may have erased much of his legacy by announcing his retirement at the end of the most recent term, rather than wait just a bit longer, in an interview today.

     With a nomination likely to be made very quickly and a Senate majority pledging to confirm any  nominee before the 2018 midterm election, the expectation is that Justice Kennedy will be replaced with a far more doctrinaire conservative. That means that many of the issues upon with Justice Kennedy joined the Court's more liberal justices to form a 5-4 majority are in danger of being overturned. Other cases in which he wrote on behalf of the more conservative wing of the Court may turn in a more rigid direction without his moderating influence. When combined with Justice Kennedy's approach to questions presented in cases, where he focused on deciding the case but rarely defined doctrine or imposed a three-part test, Kennedy's nearly three decades on the Court where he was often the decisive swing vote, could become more of a footnote to the judicial revolution that could take place with a clear majority of committed conservative justices, Peck told Sarah Kellogg of the DC Bar's magazine.

     Though plainly conservative, Kennedy had a tendency when deciding rights-based cases to employ an almost mystical phraseology, based on concepts of dignity and liberty that lacked the type of rigor he brought to issues of constitutional structure. Had the justice waited until after the midterm election, Peck speculated, the politics of the confirmation process would have changed and forced the president to consider a more moderate nominee, one more in the mold of Justice Kennedy, than he is likely to choose at this time.


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.