News

     In two separate cases, CCL replied today to state briefs defending the Illinois governor's authority to grant immunity to nursing homes that allegedly did nothing different than they normally do for "rendering assistance" to the state in the pandemic, pointing out that nothing in state law provides that type of extraordinary authority to the executive.

     The dispute arises in two cases in which nursing home residents died after the homes failed to take any relevant precautions to protect the residents from COVID-19. In seeking dismissal of negligence allegations against them, the homes' invoked a temporary executive order from Illinois Governor JB Pritzker that asked health-care providers to render assistance to the state's efforts to combat the pandemic and granted immunity from negligence liability in return.

      CCL argued that the Illinois Emergency Management Agency Act does not provide the authority claimed by the governor and does not allow him to unilaterally suspend the Illinois Nursing Home Reform Act, particularly where no assistance was rendered to the State. As a result, the grant of immunity violated separation of powers, equal protection, and due process. Moreover, it constitutes a form of special legislation by providing improper economic favoritism without justification.

     In a unanimous 93-page decision, the U.S. Court of Appeals for the Fourth Circuit ordered the return of Baltimore's climate-change case against Big Oil to state court. CCL filed an amicus brief in support of Baltimore on behalf of the National League of Cities, U.S. Conference of Mayors, and the International Municipal Lawyers Association.

      Baltimore sued oil companies for misrepresenting the environmental impact of fossil fuels, which has resulted in damage to the city's infrastructure. Seeking compensation for the damage, Baltimore filed suit under various state law causes of action in state court. The oil companies removed the case to federal court, claiming that the case actually sounds in federal law. When the district court ordered the case remanded to state court, the oil companies appealed, relying on a federal statute that permits interlocutory appeals when a defendant claims to be acting as a federal officer. The Fourth Circuit affirmed the district court's decision, finding that the oil companies were not federal agents, but the Supreme Court subsequently held that the Fourth Circuit also needed to address the oil companies' other grounds for removal. 

     Today's decision undertook that analysis and held that no grounds existed that would require submission of the case federal jurisdiction. The holding maintains a consistent position from federal courts of appeal that these types of cases are not federal in character.

     CCL President Robert S. Peck discussed the continuing impact of political outlooks on appellate decision-making in a post on the Appellate Advocacy Blog of the Law Professor's Blog Network.

     Even so, the theory of the law is that logic and reason control outcomes -- and usually it does, as evidenced by the frequency of 9-0 decisions on an ideologically diverse U.S. Supreme Court. However, on hot-button issues, where either a statute or the Constitution provides no singular answer, the post explains that judges imbue their decisions with the lessons of experience or past determinations that result in diverse views when reading the same language, precedents, and arguments. The post suggests that, while this type of political-outlook influence has always been true, the frequency of it seems to be increasing as the division of judicial philosophies often seem to reflect diverse political views.

     The post can be viewed at The Logic of the Courtroom, the Skewing Influence of Politics.

     In a reply brief filed in a New York lawsuit, CCL argued that the Brooklyn Diocese cannot redact a full 18 pages of potential discovery on the grounds that the documents inform the Vatican of a priest's misconduct and should be protected by an imaginary "bishop workplace privilege." Instead, of permitting the religious authority to be the judge of its own discovery determinations, CCL argued for in-camera review and selective redactment because the documents apparently contained factual information about sexual misconduct by the priest at the heart of the case, J.D. v. Roman Catholic Diocese of Brooklyn.

     In the case, CCL joined Janet, Janet & Suggs in representing the plaintiff on this discovery dispute. The Diocese argued that the First Amendment permits it to withhold documents that formed the basis for the Church's defrocking of a priest and internal religious governance. In the brief filed today, the Plaintiff disclaimed any interest in the church governance or the defrocking process, only relevant factual information about the priest's similar sexual misconduct over the years. The brief further argued that the First Amendment provides no shield against discovery of such information. 

     The court is expected to hold oral argument on the issue in May.

     CCL President Robert S. Peck told justices of the Ohio Supreme Court that the cap on personal injury non-economic damages cannot constitutionally apply to a rape victim, arguing that the damage-cap statute is an unconstitutional violation of the state constitution's "inviolate" jury trial right and, alternatively, a violation of equal protection and due process as applied to this case.

     Plaintiff Amanda Brandt was sexually assaulted 34 times over a two-year period starting when she was 11, by the father of her best friend, who would spike her drinks to render her unconscious during sleepovers. When it was discovered that he had done so to her and others, he was prosecuted and is now serving a prison term.

     Now 26, after having withdrawn from being among crowds, losing her position as an honor student, becoming homeless, attempting suicide, and facing counseling for the rest of her life, Brandt sued her rapist winning a $20 million verdict for actions that took place while the cap was in effect, but seeing it reduced under the statute to $250,000.

      In arguing the case, Peck pointed out that the word "inviolate" is used three times in the Ohio Constitution. Twice it refers to private property rights, but then qualifies the right, allowing it to be "subservient to public welfare." The jury right is inviolate, however, without qualification, which he said means it is not subject to a balancing test against any state interest.

       Even if the Court were not prepared to overturn a precedent that it has recently filed but that the Attorney General conceded was irreconcilable with years of other precedents that were still good law, Peck told the justices that exceptions to the rule that treated as catastrophic a permanent scar, a lost finger, and other comparatively minor injuries, denied Brandt equal protection and due process for its irrationality. Moreover, the rationale for the cap -- assuring defendants predictability in verdicts and boosting the state economy -- had no bearing where the defendant is a rapist.

        The case is now under advisement with a decision expected later this year.

      CCL helped a Washington state law firm write and file its reply brief in the state supreme court, arguing that a trial court's dismissal of the action without explaining its reasoning should be reversed.

      The case, filed by Stritmatter Kessler Koehler Moore, asserts that, despite warnings by a succession of state chief justices that judicial funding has hurt the delivery of justice in the state, the legislature has failed to respond, largely pawning off trial court funding on counties ill-equipped to meet the demand. The result is unseemly delays. The case was filed on behalf of a series of plaintiffs awaiting their day in court.

      The constitutional argument is premised on two provisions of the Washington Constitution: the right to justice "without unnecessary delay" and the "inviolate" right to trial by jury. The trial court rendered a final judgment consisting of a single word: "Dismissed." 

       The Attorney General's office, defending the case, claims that the two provisions do not establish a right to adequate funding, argues that only the judiciary has standing to bring such a lawsuit, and says that there is no caselaw supporting the Plaintiffs. In reply, the Plaintiffs argued that adequate funding was a remedy to "unnecessary delay," and is only one of several options the Court could choose, noting that in a school funding case, it declared the right and then asked the legislature to respond. The reply also demonstrated why the two Declaration of Rights provisions are individual rights upon which Plaintiffs may sue. Finally, it rebutted the claim that no caselaw supports Plaintiffs. Among other cases, Plaintiffs cited a Ninth Circuit decision that held a three-and-a-half month suspension of jury trials across the nation due to budget shortfalls violated the federal jury right.

      The next step is for the state supreme court to decide whether to keep the case or send it to the court of appeals.

     Critics of the nomination of Judge Ketanji Brown Jackson have leveled several poorly taken criticisms to score political points against her confirmation. One of the many arguments made is that she may not be the "best qualified" person to serve on the Court, despite her sterling credentials. In a post for the Appellate Advocacy Blog of the Law Professors Blog Network, CCL President Robert S. Peck explains why the critique is without any force.

      His post shows that no objective criteria exists to determine the most qualified potential nominee. In addition, he demonstrates that some of the most celebrated of Supreme Court justices were not considered the most qualified candidate for a seat, yet history has vindicated their selection. In addition, he notes one justice who was widely considered the most qualified turned out to be a dud.

      The post can be found here.

     CCL President Robert S. Peck wrote to members of the Louisiana Legislature that a proposed advertising law had not corrected problems with a statute approved last year but vetoed by the governor. 

     Last year, legislators attempted to prohibit certain statements and logos in lawyer advertising about drug and medical device cases, while adding a variety of disclaimers. Peck testified before the Senate Commerce Committee that the proposal ran afoul of the First Amendment as a near-clone of a West Virginia law that a federal court had enjoined and subsequently declared unconstitutional. The bill also intruded on regulatory authority that the Louisiana Constitution assigend to the state supreme court, which was the basis for the veto by Gov. John Bel Edwards.

     Recently, a similar bill was introduced that attempts to regulate all advertising of that type, rather than be specifically aimed at lawyers, in an apparent attempt to avoid the basis for last year's gubernatorial veto. However, because First Amendment law requires a state to identify a real problem an demonstrate that the regulatory approach it adopts is both narrowly tailored and likely to be effective, the focus on lawyers remains its apparent, even if unspoken, objective. Yet, the problems that sponsors claim exist have nothing to do with the offer of legal services, making it impossible to justify the proposal.

     Another change was to weaken the prior bill's prohibition on truthful speech about a drug or medical device's recall, yet Peck's letter makes clear that the change does not solve the bill's constitutional problems.

     CCL filed supplemental authority in support of its completed briefing in the Seventh Circuit, letting the court know of a new decision from the Fifth Circuit that agrees with CCL's arguments. 

      In Martin v. Petersen Health Operations, CCL is defending its victory in winning remand to state court in a federal district court in Illinois, where it argued that there was no federal jurisdiction over this nursing home death case because the facility was not acting as a federal agent and the federal PREP Act did not apply, either as a form of complete preemption or as a federal basis for adjudicating the case. In a decision last week, the Fifth Circuit, based in New Orleans, joined the Third Circuit (Philadelphia) and Ninth Circuit (San Francisco), in agreeing with CCL's argument. In addition, more than 100 federal district courts have now also agreed. 

      The defendant's reply brief is due March 21. Nonetheless, CCL suggested that the Seventh Circuit dispense with oral argument in view of the overwhelming consensus in the courts that the federal courts lack jurisdiction over a state law cause of action.

    Asking the Fourth Circuit to affirm a district court's decision holding a lawyer advertising law enacted by West Virginia unconstitutional, CCL President Robert S. Peck told the judges that the categorical prohibition of the use of the word "recall" by lawyers advertising for drug and medical device injury cases could not be justified because the word is used in his client's advertisements in a factual and verifiable form and that the State of West Virginia had failed to meet its burden to proffer any evidence in support of their claimed need to bar the word.

     One member of the panel, Judge J. Harvey Wilkinson III, pushed back on this argument, asserting that use of the word "recall" would mislead some listeners into thinking that the government had ordered the recall, even though federal law defines recalls as voluntary withdrawals of drugs or medical devices from the market by the manufacturer and that the Food and Drug Administration (FDA) does not issue recalls. The judge also asserted that the court could simply defer to the legislature's judgment on the need for the prohibition, but Peck responded that that would utilize a "rational-relationship" test, rather than the intermediate scrutiny test that applies to commercial speech under the First Amendment. 

     In response to the evidence that the law also required disclaimers that take up 30-seconds of a 30-second television advertisement, Judge Wilkinson asked why it was not unconstitutional for drug manufacturers to have to reveal all the adverse effects of their drugs in their advertising. Peck provided two reasons: first, the adverse effects information was a condition of the companies' receiving a license to market the drug in the first place, which cannot occur without FDA approval. Second, he stated that the information was tied to the product being offered, a prescription drug. In contrast, the West Virginia law required an attorney offering legal services to provide information about drugs, even though the attorney was not attempting to sell drugs or medical services.

     The case, Recht v. Morrisey, is now under advisement in the Fourth Circuit.