News

     In decisions issued today, the First and Ninth Circuits continued to adhere to prior decisions that held that no federal issue justified removal of state and municipal climate-change cases to federal court and holding that the cases should be returned to state court.

      The new decisions involved cases brought respectively by the state of Rhode Island and the city and county of Honolulu. In the Rhode Island case, the First Circuit denied the defendant oil companies' motion for rehearing, finding no reason to reconsider its decision from earlier this year. In the Honolulu case, a new panel heard the oil companies' arguments and found the case belonged in state court. Earlier Ninth Circuit panels had made similar rulings in cases brought by various California counties and cities.

      In both cases decided today, CCL filed amicus curiae briefs urging the result issued by the courts on behalf of the National League of Cities, the U.S. Conference of Mayors, and thee International Municipal Lawyers Association.

     In "Abortion Rights Wars Shift to Battles over State Constitutions," Bloomberg Law reporter Mary Anne Pazanowski details the developing legal battle between the two sides now that the U.S. Supreme Court has abrogated the federal constitutional right. 

      She quotes CCL President Robert S. Peck, as a former law professor who taught classes about state constitutions, about the state of constitutional law on abortion rights. Peck noted that four states have used explicit state constitutional privacy rights to uphold rights to abortion, while other states have found a right under other provisions. Still, Peck points out that, as the Iowa Supreme Court held recently, changing membership on courts open the rights already established to reconsideration.

       The article can be found at Bloomberg Law on State Constitutions and Abortion.

      Unanimously, the Seventh Circuit today held that a case alleging that an Illinois nursing home bore liability for the COVID death of one of its residents should be returned to state court for further proceedings in a case argued just two weeks ago by CCL President Robert S. Peck.

      In Martin v. Petersen Health Operations, the estate of Marlene Hill alleged that the nursing home resident died of COVID-19 due to negligence and willful and wanton misconduct that included insufficient staff, requiring staff with COVID symptoms to continue to work and expose vulnerable residents, and a failure to undertake any protective measures in a case filed in Illinois state court. The nursing home then removed the matter to federal court. In support, it claimed that it was acting under a federal officer as part of the national government's COVID response effort, that the case belonged in federal court due to a 2005 federal statute known as the PREP Act, and that the liability, if any, arose under federal rather than state law. 

      Based on a brief written by CCL, the district court ruled that none of the grounds asserted by the nursing home were valid and ordered the case remanded to state court. The nursing home appealed the decision to the Seventh Circuit, which heard argument on June 2. In a ruling written with unusual rapidity by Judge Frank Easterbrook, the Seventh Circuit affirmed the district court and found no merit in the nursing home's argument. By rejecting those arguments and ordering the return of the case to state court, the Seventh Circuit joined three sister circuits, the Third, Fifth, and Ninth Circuits, in ruling that way.

      In its briefing, CCL pointed out that in addition to the appellate court rulings, more than 80 district courts had also ruled consistently with those decisions, with no valid decision coming out the other way. The Seventh Circuit also rejected the nursing home's reliance on pronouncements from the Department of Health and Human Services, holding that these lightly supported advisory opinions bore no weight.

      In arguing these issues, CCL served as co-counsel to the Chicago law firm of Levin Perconti.

     Challenging a new Florida statute passed at special session less than a week earlier, CCL contended that a statute that home-repair contractors who receive assignments of benefits from a homeowner insurance policy cannot be treated less favorably than the homeowner and thus violates the Florida Constitution.

     Florida legislators targeted assignees in response to pleas from the insurance industry that property insurers were paying too much after wrongfully denying insurance benefits and then being successfully sued for clams that the insurers promised to pay after receiving premiums to assure coverage. Under the statute, a homeowner who receives covered repair and remediation services may sue for wrongfully denied benefits and receive attorney fees, but when the insurance proceeds are assigned to a contractor, a common occurrence, the assignee is not entitled to attorney fees for a successful lawsuit. The provision has the practical effect of making such lawsuits too expensive to bring for denials that can average $3500, thereby creating a perverse incentive for insurers to deny coverage and obtain a windfall.

     The lawsuit argues that the provision violates the Florida Constitution's single-subject restriction on legislation, its access to courts guarantee, equal protection, and due process. CCL is co-counsel in the case with the Boca Raton law firm of Shapiro, Blasi, Wasserman & Hermann.

     The Fourth Circuit denied serial applications from CCL to first rehear the case en banc and then to stay its mandate pending a petition for certiorari in the U.S. Supreme Court in the law firm's challenge to a West Virginia restrictive advertising statute that the district court held violated the First Amendment.

      In its rehearing petition and its stay motion, CCL argued that Supreme Court precedent does not permit a state to prohibit certain words, truthfully used, from only some speakers and also prohibits the state from requiring advertising include such substantial disclaimers that it blots out the speaker's message. The underlying statute bans the word "recall" from attorney drug and medical device case advertising, even though the word is accurately used when a manufacturer recalls a product for violating federal law. When a recall is issued, both the Food & Drug Administration and the manufacturer put out press releases and website information that the drug or medical device was recalled. Only lawyers advertising for clients injured by those devices cannot tell consumers that the product was recalled. Under Supreme Court precedent, that type of prohibition constitutes a form of content discrimination that is rarely justified. Even so, the Fourth Circuit permitted the statute to stand because it was concerned that "medically unsophisticated" persons would misinterpret the words and stop taking medication on the basis of the advertising, but, apparently, not on the basis of the FDA and manufacturers' use of the term.

     In addition, the Fourth Circuit failed to address CCL's argument that 30 seconds of disclaimers, which would take up the entirety of a television or radio advertisement was unduly burdensome in violation of other Supreme Court precedent. 

      A petition for certiorari in the case is due in late August.

     Just days after being signed into law, CCL has filed a new challenge to a special session statute designed to cut the costs for property insurers that deny legitimate homeowners' claims, arguing that it violates the Florida Constitution.

     Governor Ron DeSantis called the legislature into special session to enact the law as part of an effort that claims that property insurance carriers face a financial crisis. The solution the Legislature chose within an omnibus bill was to prevent contractors who receive assignments of benefits from receiving attorney fees when they have to go to court to force the insurer to honor the homeowner's policy. Homeowners, however, may still receive attorney fees for a successful suit under the same circumstances when they do not sign an assignment of benefits. 

     The lawsuit, filed with Boca Raton's Shapiro Blasi law firm, argues that the statute creates a perverse incentive for insurer's to deny claims, knowing that the vast majority of claims for a few thousand dollars will not be economically viable without the award of attorney fees. Plaintiffs claim that the statute violates the state constitution's single-subject rule, access to the courts, due process, and equal protection.

     In a notice of recent decision, CCL alerted the court hearing its challenge to the Texas medical-malpractice damage cap to a recent decision of the Fifth Circuit that supported CCL's arguments on the Seventh Amendment's right to trial by jury.

     In Winnett v. Frank, the federal district court in Austin, Texas heard oral argument on the constitutional issues and standing in February that asserted the Seventh Amendment satisfies the criteria that applies Bill of Rights provisions to the States and that it prevents other branches of government from substituting their determinations for the jury's assessment of damages as a set of facts constitutionally committed to that body. 

     In a new decision, the U.S. Court of Appeals for the Fifth Circuit, the appellate court that oversees the district court in which Winnett is pending, invalidated certain administrative proceedings held by the Securities and Exchange Commission as constitutionally unsound. While the primary ground was based on separation of powers, the court also found the substitution of administrative procedures to violate the right to a jury trial. The historic analysis that supported the decision tracked CCL's arguments about the scope of the jury-trial right.

     A decision on the issues briefed is pending in Winnett.

     A new Newsweek opinion piece on the decline of the civil jury centers on a study of the jury and recommendations for its revival co-authored by CCL President Peck and law professors Richard Jolly (Southwestern Law) and Valerie Hans (Cornell Law). The article by John Quinn, managing partner and founder of the Quinn Emanuel law firm, summarizes the study published last fall by the Civil Justice Research Institute at Berkeley Law School. A longer, more detailed version of the study will be published later this year in the Georgia Law Review.

     CCL President Robert S. Peck supported amendments and participated in the debate at the American Law Institute's Annual Meeting in Washington, DC. The ALI, which celebrates its 100th anniversary next year, is best known for publishing Restatements of the Law, which are often used to guide courts about the consensus in the law.

      Among the issues the ALI considered was a new Restatement on the Law of Consumer Contracts, an emerging area of law in which precedents are still developing and general contract principles provide unsatisfying guidance. At the meeting on May 17, the draft Restatement was amended to provide a new definition of "reasonableness" that considers the consumer's perspective and the totality of the circumstances. A second amendment provided guidance in interpreting the Restatment, emphasizing the importance of consumer expectations. CCL's Peck supported both changes.

      The ALI also considered sections of the Restatement:Torts, Concluding Provisions, and Restatement: Torts, Remedies. Neither of those projects, part of an overhaul of tort law begun 30 years ago, were completed, although various sections were approved.

     Responding to critiques about unenumerated constitutional rights, CCL President Robert S. Peck devoted his post to the Appellate Advocacy Blog to the subject, explaining both textual and originalist justifications and for proper application of common-law interpretative methodologies. 

     In Denying Unenumerated Rights, Peck explains that all sections of the political spectrum have their favorite implied rights that they insist is embodied in the Constitution. The disagreement, then, is not about the existence of such rights, but how they are read into the Constitution.