National Courts Monitor

Congress’ Judiciary Committees Active On Civil Courts Issues

Posted: May 1, 2015

The congressional judiciary committees have been active in national civil justice issues, with the House Judiciary looking at “fairness in class actions” and the Senate Judiciary holding a hearing on civil asset forfeiture, which no doubt failed to entertain as much as HBO’s John Oliver did with his take-down of the issue.

One interesting note is that reformers are calling for “right to attorney” for people facing civil asset seizures, which can happen even if authorities never file criminal charges. The National Coalition for a Civil Right to Counsel explained it like this: “In response to a Senate Judiciary Committee hearing this morning relating to civil asset forfeiture reform, the Leadership Conference on Civil and Human Rights (“a coalition of more than 200 national organizations”) issued a letter calling for, among other things, a right to counsel in all civil forfeiture proceedings. Current federal forfeiture law provides a right to counsel only where the asset seized is the defendant’s primary residence.”

Rand Paul, U.S. Senator for Kentucky (official photo)

The website also noted that “… a number of people testifying at the hearing discussed the need for appointed counsel at these proceedings. Sen. Rand Paul referred to his “Fifth Amendment Integrity Restoration Act of 2014” that he introduced last year, which he said would provide counsel, and a representative from the Institute for Justice also called upon the provision of counsel to indigent defendants.”

On the House side, a bill under discussion would narrow who could directly participate in class action suits and require that “… only that a class be composed of members with “an injury of the same type and extent.”

Read more on the Judiciary Committee website and the National Coalition for a Civil Right to Counsel (NCCRC) website.

Weekend Read: From The ‘Amazon tax’ To Litigation, U.S. Arm-Wrestles Over State v. Fed

by NCM Staff

Updated: April 24, 2015

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By Randy Wyrick, NCM contributing editor

If you’ve ever been to a high school basketball game, you know that using local refs begets screaming parents. Congratulations, you now understand a core idea of legal jurisdiction: No home cooking.

The Denver Post said as much by beginning a story about the famous Amazon Tax with “… the U.S. Supreme Court stripped Colorado Attorney General Cynthia Coffman of home field advantage Tuesday in the long-running — and closely watched — legal challenge of a state law requiring online retailers to report purchases made by their Colorado customers for tax purposes.”

It took the nation’s high court to move “Amazon” to federal court, but it is one issue among many. Across the country we are arm-wrestling over who should be calling the fouls. Read More

Attorney-Author Marks BP-Spill Anniversary With Dire Assessment

by NCM Staff

Updated: April 21, 2015

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An environmental attorney from New Orleans has marked this week’s 5-year anniversary of the huge BP with a truly dire assessment of regulatory inaction, warning in a Los Angeles Times op-ed that the region not only remains at risk, but the “cure” of using dispersant may have been worse than the oil itself.

Stuart H. Smith, a high-profile plaintiff’s attorney who turned blogger then author in the wake of the BP disaster, says President Obama said the right things “… but Congress — controlled by Republican lawmakers indebted to their Big Oil campaign contributors — still has not enacted the offshore-drilling safety measures recommended by the president’s Oil Spill Commission. It has not given strong regulatory powers to the agency that replaced the scandal-scarred Minerals Management Service. And it has not raised the ridiculously low cap of $75 million for corporate liability on major spills.”

Smith offers this even more unsettling take on the half-decade: “… on the fifth anniversary of the Deepwater Horizon accident, workers continue to clean up tar balls and giant tar mats of weathered BP oil along beaches from Louisiana to Florida. Black crude still clogs the edges of our ever-shrinking wetlands. A recent report by the National Wildlife Federation chronicled significant health damage to some 20 species of marine plants and birds, while people who took part in 2010 cleanup efforts struggle with headaches, nausea and other symptoms.”

He contends that “lax government standards for highly toxic dispersants are yet another problem” and that a “string of scientific studies has suggested that exposure to Corexit [the dispersant famously used in bulk during the BP spill] may have been more damaging to the health of cleanup workers and marine life than the initial exposure to spilled oil.”

Meanwhile, of course, the civil lawsuits continue to have billions of dollars at stake. Check out the excellent Smith blog, with links to his book “Crude Justice” here: http://www.stuarthsmith.com/

Check out the LAT opinion piece here: 5 years after BP spill, little has changed to protect Gulf of Mexico

POLITICO Looks Into Judicial Appointment Backlog

by NCM Staff

Updated: April 20, 2015

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The POLITICO website it taking a look at why the U.S. Senate is allowing a backup on federal appointments, including filling jobs for emergency judges. The report comes after a critical report documented serious delays in civil justice cases, as reported here in the Wall Street Journal.

That WSJ report quoted a seated federal judge in California saying of civil court delays that “it is not justice. We know it.”

Alarmingly, POLITICO says it might be political payback for the so-called “nuclear option” of last year that forced some appointments through to a vote despite the long-standing tradition of needing 60 of 100 votes to move a nomination to a full vote. Reports POLITICO of the GOP-controlled Senate, “… Republicans don’t pinpoint one reason for the major logjam at the judicial level, which has infuriated outside groups intent on seeing the Senate fill 23 judicial emergencies across the nation’s courts. Some argue that Senate Republicans are still getting up and running, while others say the delay is retribution for Democrats’ power play with the nuclear option.”

Read the POLITICO report here.

Arbitration At Issue In Key California High Court Cases

by NCM Staff

Posted: April 17, 2015

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The nation’s largest state is being watched closely as it tackles on of the largest class-action issues: arbitration. In recent years, large companies have been able to shield themselves from a variety of lawsuits by having customers and vendors agree to settle differences outside the courts, which are seen as being much more favorable to plaintiffs.

Now the Recorder offers an excellent overview of the issue nationally and notes that “… in California, plaintiffs lawyers find a measure of hope in the push and pull between the pro-arbitration U.S. Supreme Court and the California Supreme Court, which takes a more skeptical view. Earlier this month the state Supreme Court agreed to review in McGill v. Citibank whether consumers seeking injunctive relief under California law can be forced into arbitration. In May the justices will hear arguments in Sanchez v. Valencia Holding, and potentially lay out new grounds by which courts can reject unfair or one-sided arbitration agreements.”