Access to Justice

  • June 19, 2015

    by Nanya Springer

    For those who attended, the 2015 ACS National Convention was not only an opportunity to catch up with old friends, make new connections, and obtain CLE credits; it was also a time to reflect upon the important work that attorneys do every day and gain inspiration for the road ahead.  Speakers from across the country and from diverse professional backgrounds delved into the issues of the day, including voting rights, women’s access to reproductive health care, LGBT rights and marriage equality, access to counsel, and more.  Here are some highlights with links to high-quality video for those who missed the live event.

    Stephen Bright, president and senior counsel at the Southern Center for Human Rights, received a stirring round of applause when he encouraged students and young lawyers to represent unpopular clients, saying “we need to see the kinds of injustices that got . . . people where they are.” In attendance with Mr. Bright were Theo Shaw, one of the exonerated “Jena 6” who is now on his way to law school on a full scholarship, and Jarrett Adams, an exoneree who graduated from law school and will soon begin clerking for the court that exonerated him.

    Wendy Davis, women’s rights crusader and a former state Senator from Texas, discussed how rampant voter suppression has led to bad policies in her state, particularly concerning access to reproductive health care. “Women who lack the means to manage their fertility lack the means to manage their lives,” she declared. “It is just that simple.”

    Former U.S. Attorney General Eric Holder called for automatic registration of all eligible voters in the U.S., stating that “the ability to vote is a right, it is not a privilege.” He decried efforts to make voting less accessible, explaining that in-person voting fraud is very rare and no such widespread schemes have been detected.

    U.S. Representative Hakeem Jeffries discussed the ongoing need to address faulty police practices, including so-called “taxation by citation,” “stop and frisk,” and “broken windows” tactics that disproportionately target low-income people and communities of color.

    U.S. Supreme Court Justice Ruth Bader Ginsburg drew laughs and applause during her conversation with California Supreme Court Justice Goodwin Liu. Speaking about her groundbreaking career, she said “I don’t think the meaning of feminism has changed,” it has always meant “girls should have the same opportunity to dream, aspire, achieve . . . as boys.” It’s about “women and men working together to help make society a better place.”

  • June 10, 2015
    Guest Post

    by Arthur BryantChairman of Public Justice

    * This post originally appeared on the blog for Public Justice

    Corporate America and irresponsible government officials consistently trash lawsuits as “frivolous” and trial lawyers as “greedy.” Why? Because lawsuits and trial lawyers hold them accountable when they abuse their power, break the law, and violate people’s rights.

    Want proof? Just look at the five finalists for Public Justice’s 2015 Trial Lawyer of the Year Award. This coveted honor goes annually to the lawyers who won the verdict or settlement that made the biggest contribution to the public interest in the past year.

    David v. Signal International

    In 2005, Signal International, a large contractor in Alabama and Mississippi, was hired to help rebuild the Gulf Coast in the wake of Hurricanes Rita and Katrina. It recruited nearly 500 pipefitters and welders from India with promises of good jobs and permanent U.S. residency. The recruits paid $10,000 to $25,000 just to be considered. But Signal brought them here on guest worker visas, with no possibility of residency; forced them to live in “man camps” on “the reservation,” with up to two dozen workers in a trailer with one bathroom; and deducted $1,050 monthly from their pay to do so. When Signal learned some workers were organizing to take action, they locked those workers in a trailer, terminated the leaders of the organizing movement and attempted to forcibly deport them. One became so distraught he attempted suicide.

    The Southern Poverty Law Center (SPLC) and a team of public interest and private attorneys fought for seven years – and continues to fight – to hold Signal accountable. When the judge would not let the case proceed as a class action, the SPLC recruited an extraordinary group of lawyers to represent hundreds of workers  in a dozen related lawsuits in multiple jurisdictions on a pro bono basis. David v. Signal International was the first to go to trial. Led by Alan Bruce Howard of Crowell & Moring in New York, with other attorneys from that firm, the SPLC, the American Civil Liberties Union, the Asian American Legal Defense and Education Fund, the Louisiana Justice Institute in New Orleans, and Sahn Ward Coschignano & Baker in Uniondale, NY, the lawyers navigated numerous complex challenges, including explaining immigration law to jurors and presenting testimony from workers who did not speak English. They won a unanimous $14 million jury verdict for five workers in a four-week trial. The jury found Signal had engaged in labor trafficking, fraud, racketeering and discrimination. This is the largest labor trafficking litigation in U.S. history. The David verdict is just the beginning. The claims of the other workers have yet to be heard.

  • May 19, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; Guttman is a member of the ACS Board of Directors.

    *This piece originally appeared on The Global Legal Post.

    When the United States Supreme Court issued its decisions in Bell Atlantic Corp v Twombly, 550 U.S. 544 (2007) and Ashcroft v Iqbal, 556 U.S. 662 (2009), there was sea change in the standard by which judges evaluated lawsuits to determine their sufficiency to withstand a motion to dismiss. Rather than merely placing a defendant on notice of a claim, the Court established a new standard. Plaintiffs must allege facts allowing a court to find that a claim is plausible. In reviewing the allegations of the complaint, courts are challenged to weed out conclusory statements and base their analysis on only the factual pleadings of the Complaint.

    Naturally, Iqbal and Twombly have raised serious access to justice issues for plaintiffs who must muster the facts without an opportunity to gather evidence through discovery. The “plausibility” standard is of course entirely subjective; what is plausible to one judge based on his or her life’s journeys may not be plausible to another. And with the challenge to plead facts, plaintiffs are undoubtedly encouraged to put the “kitchen sink” into their complaints and plead complaints that are exponentially larger than those of yesteryear.  

    With all of the problems caused by Iqbal and Twombly, there is a nugget of gold that can be snatched as a teaching lesson. The notion that litigants are instructed to make their cases based on facts and not conclusions or hyperbole, is a solid concept.  

  • May 11, 2015

    by Nanya Springer

    Say the words “judicial selection” to average Americans, and their eyes may very well glaze over.  But tell them the story of Wendy Baggett ‒ a woman whose three-day-old baby died because her doctor neglected to take her off of blood pressure medication during her pregnancy ‒ and a spark of concern may appear in those dull pupils.  Then explain that a jury sided with Baggett in her medical malpractice claim against the doctor, only to be overturned by business-backed judges on the Alabama Supreme Court, and that concern may transform into shock, curiosity and perhaps, eventually, action.

    It’s well understood that telling human stories is more effective than talking about political, economic or societal problems in the abstract.  That’s why Life of the Law, a bi-weekly podcast series, focuses on compelling, human-driven stories instead of merely analyzing legal arguments and dissecting Supreme Court rulings. 

    The story of Baggett is a true one, used to exemplify how the practice of electing judges affects people from all walks of life.  As explained in the podcast, in states where judges are forced to campaign for the bench, courts are becoming increasingly hostile to tort plaintiffs and to criminal defendants.  This makes sense; campaigns cost money, business interests have plentiful funds from which to donate, and judges, whether consciously or unconsciously, tend to side with the interests of those who helped them win their increasingly expensive elections.  (In criminal cases, judges are often attacked by their business-backed opponents for being “soft on crime” when they side with defendants, merely because it’s an easy attack.)

  • April 3, 2015
    Guest Post

    by Nicole Huberfeld, H. Wendell Cherry Professor of Law, University of Kentucky

    The Supreme Court recently decided Armstrong v. Exceptional Child Center, a low-profile case that could strike at the heart of the Medicaid program, a federal program that provides funding to states to facilitate mainstream medical care for low-income Americans. The Medicaid Act contains requirements that states must obey to receive federal funding, one of which is called the equal access provision, or "30(A)".  This provision requires states to ensure that “payments . . . are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” Historically, Medicaid payment rates are lower than private insurance or Medicare rates, despite the 30(A) requirement for sufficient payment.

    Additionally, the Medicaid Act does not provide explicit remedies for state failures in the program, other than authorizing the Department of Health and Human Services (HHS) to withdraw federal funding.  Thus, over the years, health care providers and patients have brought private enforcement actions under the civil rights statute known as Section 1983 or under the Supremacy Clause of the U.S. Constitution to enforce statutory rights under the Medicaid Act.  Section 1983 actions have been limited by the Supreme Court.  Consequently, health care providers and Medicaid beneficiaries turned to the Supremacy Clause, seeking injunctive relief against states under the theory that states violate federal law when they fail to pay sufficient reimbursement rates to ensure equal access.  Two years ago, the Court nearly eliminated Supremacy Clause actions in Douglas v. Independent Living Center, but deference to agency decision making ultimately stayed the Court’s hand.

    Armstrong has done what the dissent in Douglas would have.  Justice Scalia’s majority opinion pointedly began by noting that states agree to spend federal funds "in accordance with congressionally imposed conditions."  The majority asserted that the Supremacy Clause provides a "rule of construction" but does not "create a cause of action" unless Congress "permits the enforcement of its laws by private actors."  The Court then determined that Congress intentionally excluded private enforcement from the Medicaid Act, and therefore providers cannot seek injunctive relief under the Supremacy Clause.

    This conclusion is incorrect.  Congress did not "foreclose" or "exclude" private enforcement from the Medicaid Act, either in 1965 when Medicaid was enacted, or when 30(A) amended the Act.  In fact, Congress debated preventing providers and beneficiaries from seeking relief in federal court but never added such language to the Medicaid Act.  Nevertheless, the majority concluded that the Secretary of HHS is solely responsible for enforcing 30(A) pursuant to her authority under 42 U.S.C. §1396c to withhold Medicaid funds from non-compliant states.  The Secretary is reluctant to withhold funds because it could harm beneficiaries, but the majority did not engage this quandary.  Instead, the majority called 30(A) judicially unmanageable – even though lower federal courts have guided states under 30(A) for years – and held that HHS must directly engage the states without federal courts’ interference.

    The majority circled back to Medicaid's status as a spending program in Part IV of its opinion, which may resurrect a dormant theory of spending programs as being like contracts and unlike other federal laws.  The Court often analogizes federal conditional spending programs to contracts under the Pennhurst decision, but in some cases (e.g. Barnes v. Gorman), Justices have suggested that the "third party beneficiaries" of federal spending programs have no enforceable rights.  The majority opinion reiterated this view of conditional spending statutes, noting that "contracts between two governments" cannot be enforced by beneficiaries of those contracts.  Not even the historical vision of strict dual sovereignty in federalism would have claimed that the federal government and the states are co-equal sovereigns, yet this dicta seems to embrace a vision of federalism that offers much more power to the states.  The majority opened the courthouse doors to further eroding of conditional spending statutes in the context of the Medicaid Act and perhaps beyond.