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Thursday, April 23, 2015

Forum selection, upside-down

The family of Michael Brown has filed a civil rights action against the City of Ferguson, the former Chief of Police, and Darren Wilson. The complaint is a bit confusing. It appears to assert multiple individual, supervisory, and Monell counts for Fourth and Fourteenth Amendment violations, including a claim for loss of familial relationship under the Fourteenth Amendment, as well as excessive force. The complaint goes after Ferguson's larger patterns-or-practices of unconstitutional behavior, describing events going back as far as 2010. At the same time, the introduction describes it as a wrongful death action under Missouri law for violations of the U.S. and Missouri constitutions, even though the state Constitution is never mentioned again and no torts (battery, whatever) are asserted.

It is noteworthy--and puzzling--that the family filed in state rather than federal court. There is nothing state-based about the legal rights actually asserted in the Complaint; this is a straight-forward § 1983 claim asserting federal constitutional rights. The idea behind federal question jurisdiction was to offer parties the expertise and respect for federal law and federal rights that federal judges offer, as well as the freedom to protect those rights that comes with Article III protections. And that idea takes on special importance when asserting constitutional claims against local governments and local government officials that only became possible with the Fourteenth Amendment, where federal judges are insulated from the local pro-government pressures that might work against civil-rights plaintiffs. Indeed, arguments against congressional jurisdiction-stripping always have fought against the bogeyman of plaintiffs forced to pursue federal constitutional rights against local government institutions before an uninsulated local judiciary.* Has federal judicial procedure--Twiqbal, summary judgment, limits on discovery--become so hostile to civil rights plaintiffs and so pro-defendant that plaintiffs would prefer to litigate against a local government in state court? Consider that the two biggest hurdles that § 1983 plaintiffs regularly face--qualified immunity and the heightened demands for making a Monell claim--follow them into state court anyway. So why pick state over federal in this type of case?

Addition: Note that I am assuming the choice was strategic rather than familiar. The three lawyers on the case include one attorney from Clayton, MO and two from Tallahassee. The web site for the latter two indicates that they largely specialize in personal injury and automobile accident cases, although Civil Rights is listed as a practice area. I cannot find anything about the local attorney (who has been in front of the media since the fall). If all three are primarily PI lawyers who primarily litigate in state court, the choice of forum might simply have been an automatic move rather than a deliberate choice based on specialized understanding of § 1983 litigation.

The interesting question is whether the defendants remove, seeing as how they might see themselves as being in an advantageous position in either court.

Posted by Howard Wasserman on April 23, 2015 at 03:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

In addition to the "pay for parking" argument, there is also the simple difference in filing fees. The civil case filing fee is $400 in federal court in St. Louis. The state court fee is (probably) much less. If you file in state court, and the defendant removes, the plaintiff saves several hundred dollars which goes right to their bottom line. And who knows, even though the complaint is shot through from one side to the other with federal claims, maybe the defendants will decide (or fail to) remove? Stranger things have happened.

State court also offers a much simpler pre-trial procedure (typically not requiring a 40+ page pre-trial order which harkens back to the code pleading days)

Posted by: Jack | Jun 2, 2015 8:45:25 AM

The protester case doesn't raise First Amendment claims, only Fourth Amendment claims and a bunch of state torts (more state torts than the Brown family raise).

Posted by: Howard Wasserman | Apr 27, 2015 11:35:48 PM

Of course you don't have to respond. I just found it puzzling that you chose to respond to several of the comments to point out flaws, and seemed to suggest that the so-called presumption had yet to be rebutted, but hadn't explained why you thought the combination of racial angle plus ideological skew of appellate cts wasn't a fairly obvious reason for the forum choice here.

As for the protester case, that seems to me quite distinct on both factors: 1) the juror-race angle will be much more attenuated, both given diminished salience in 1A analysis and lower likelihood of trial on a 1A issue; and 2) ideological gap between ca8 and mo sct probably less on 1A. In all events, assuming all is equal (precedent, etc), the protesters' lawyers would seem to be the ones who picked the wrong forum. It seems quite unlikely that the Brown pltfs will be worse off in state ct, because the particular context here seems to clearly trump any general view that fed cts are more favorable for 1983 claims (and I have serious doubts as to whether even the general view is correct, given the many states with liberal state judges and conservative federal ones).

Posted by: Hash | Apr 27, 2015 10:54:33 PM

I'm not sure how or why I am supposed to respond. I was soliciting thoughts on the subject and the jury make-up may be one workable explanation.

Even in St. Louis, of course, this is not so clear-cut: The Ferguson-protester lawsuit, which has a similar racial angle, was filed in federal court.

Posted by: Howard Wasserman | Apr 27, 2015 9:15:47 PM

The overwhelming number of 1983 cases don't have such a clear racial angle, in which the difference between urban and suburban jury pools plays a larger role than normal. Nor they involve places like St. Louis, where the federal cts are notably more conservative than the state cts, especially at appellate level. I don't think it's any coincidence that the same two factors were likely at play in the most famous 1983 case brought in state ct - felder v. Casey (race discrimination in wi rather than ca7). Numerous folks have made these points, and i''m not sure you've yet responded.

Posted by: Hash | Apr 27, 2015 9:05:56 PM

But that's not what the lawyers here did--they only mentioned federal constitutional and statutory law as the basis for relief. Maybe they were trying to assert tort claims, but there is no question the complaint as framed makes this case removable.

I think it is safe to infer that, if the overwhelming majority of § 1983 actions are filed in federal court, the lawyers believe they have at least a reasonable shot at winning in federal court. It's not the only conclusion, but it seems a fairly reasonable one.

Posted by: Howard Wasserman | Apr 27, 2015 3:14:21 PM

Federal judges don't generally get to decide who files in federal court. I'm not sure what conclusions we can draw from most 1983 actions being brought in federal court. A lawyer who wants to stay in state court will file the same fact pattern based on a state statute or common law.

Posted by: arthur | Apr 27, 2015 1:20:41 PM

But clearly it is not only academics making these presumptions. It's also federal judges. And it's also the hundreds of § 1983 plaintiffs' attorneys who keep filing far more of these cases in federal than state court. And that includes the § 1983 lawsuit brought in August by several protesters alleging Fourth Amendment violations.

There is no "may be" about removability. This complaint is entirely federal, other than two throwaway sentences at the outset. Every claim is under the Fourteenth Amendment and § 1983. The only question is whether the City wants to remove.

Posted by: Howard Wasserman | Apr 27, 2015 10:04:03 AM

The shot at law school vs. actual lawyering is justified here. You say "A plaintiff such as the Brown family, it is presumed, wants that broader, district-wide jury pool that is less connected to the local government and the judge who is less a part of the local community and thus less tied to the local government." "It is presumed" only by academics. Practitioners may believe that a judge who personally faces voters for retention is more concerned with fairness to a sympathetic planitiff than a federal judge with life tenure. Later, "whether the defendant bias in federal court has overcome the expected benefits of federal court." Practitioners generally recognize that the "expected benefits" of federal court benefit the defendant. This is explicitly recognized in the legislative history of the most recent large expansion of federal diversity jurisdiction, the Class Action Fairness Act.

"The mixed urban/rural jury consideration potentially pushes almost all "urban" cases into state court, since just about every urban center lies within a larger federal district that includes suburban, ex-urban, and rural areas." Usually, yes. Plaintiffs prefer a jury of their peers. An exception would be where the racial up of the two venire pools is very different. There is also a perception that rural jurors are more sympathetic to plaintiffs who carry firearms (not the case here).

Finally, don't discount the "pay for parking" factor. Twice I can recall, plaintiffs have specifically mentioned the difficulty of finding parking, and paying for it, in the big city, as reasons to file in state court in the suburbs.

The error I see in the Complaint is that it unnecessarily refers to federal law enough that the case may be removable to federal court.

Posted by: arthur | Apr 27, 2015 9:49:32 AM

I love how folks cannot resist taking shots about "law school v. actual lawyering" even in talking about substantive legal questions. And even when the original post specifically framed it as whether the defendant bias in federal court has overcome the expected benefits of federal court, recognizing that this is an open issue and wanting to hear what people thought about that balance, the answer still has to include a (pseudonymous) shot at law schools, Maybe Paul is right.

The mixed urban/rural jury consideration potentially pushes almost all "urban" cases into state court, since just about every urban center lies within a larger federal district that includes suburban, ex-urban, and rural areas.

Posted by: Howard Wasserman | Apr 26, 2015 9:50:52 AM

It's the difference between law school and actual lawyering. If you are the plaintiff, you want an urban county jury and to get away from too much QI focus.

Federal court has become increasingly hostile to claimants, both in substance and procedure. It is rigid, formal, expensive, and time consuming when compared with state court. The state court judges mostly are recent former trial lawyers and are more lawyer friendly and user friendly for that reason.

Finally, Missouri civil juries need not be unanimous in their verdicts. I think it is 9 of 12. In this case in federal court, you'd likely have 8 jurors who had to rule unanimously. In a hot public trial with a troubled plaintiff, you'd be a fool to file in fed court.

Posted by: Jojo | Apr 26, 2015 8:05:07 AM

A relevant thought from Judge Kopf's blog recently:

"We then sued the Officer and others in state court (not a snowball’s chance we were letting some qualified immunity happy federal judge anywhere near the case)."

http://herculesandtheumpire.com/2015/04/24/an-experienced-plaintiffs-civil-trial-lawyers-take-on-the-south-carolina-police-shooting/

I think this probably applies especially well in the conservative Eighth Circuit. Although the QI principles might, in theory, apply in both forums, it seems to me that federal judges, as a whole, may be more inclined to grant QI.

Posted by: KKL | Apr 24, 2015 10:53:09 PM

I think it might well make strategic sense to bring the case in state court, for reasons (the other) Sam and others articulate. The jury pool is likely to be better in St. Louis County than in the whole Eastern District (though I'm sure it's not fantastic from a plaintiff's perspective). And as a plaintiff's lawyer, I'd certainly rather appeals be going to the Missouri Supreme Court than to the Eighth Circuit. Which doesn't mean that's why they did what they did here, of course.

Posted by: Sam Bagenstos | Apr 24, 2015 2:03:12 PM

I think it might well make strategic sense to bring the case in state court, for reasons (the other) Sam and others articulate. The jury pool is likely to be better in St. Louis County than in the whole Eastern District (though I'm sure it's not fantastic from a plaintiff's perspective). And as a plaintiff's lawyer, I'd certainly rather appeals be going to the Missouri Supreme Court than to the Eighth Circuit. Which doesn't mean that's why they did what they did here, of course.

Posted by: Sam Bagenstos | Apr 24, 2015 2:03:11 PM

I don't think this is at all about the jury pool; I think this is about the judicial pool if anything. I say this from a background as a plaintiffs'-side litigator: When I had a choice, I preferred federal to state court, whether in my home territory or as a white-hat hired gun.

There are two significant advantages to a federal court for a plaintiff whose claim(s) is/are on current law's boundaries:

(1) Any decision is probably more appealable, if only because it is not (a) stuck in local law, (b) not subject to ridiculous length strictures imposed by many state courts on lower-court opinions that work against coherence and nuance, and (c) vastly more likely to be written in a context-sensitive manner. This is all important whether that decision is "for" or "against" one's position, because a context-free or overnarrow decision helps nobody during the appellate process. Defending a winning position in the face of obvious flaws like this is hard.

(2) In this particular matter (and too many other matters), local/state judiciary is often intricately bound up in its context, and as a plaintiff what you want is anything but business-as-usual assumptions behind managing the case flow... and all of those little preliminary rulings and "local procedures" that never make the news. In particular, a plaintiff is almost always better off with close rulings being made by a judge with life tenure who is not a neighbor of somebody associated with the other side. That's no guarantee of the nature of the rulings; it's no guarantee of anything at all, in fact (as epitomized by a certain Northern District of Illinois judge in the mid-1990s and a certain Central District of California judge today, to name two obvious examples). It's about tendencies and probabilities, just like arguments over jury pools.

Then, too, I guess I'm just more comfortable with the breadth and detail of the federal rules (procedure and evidence) than I am with many state-law equivalents. Not to mention the absence of lined pleading paper requirements. ;-)

Posted by: C.E. Petit | Apr 24, 2015 11:42:14 AM

In state court, the jury comes from the 21st District, which is St. Louis County. In federal court, the jury comes from 14 counties of the Eastern Division of the Eastern District (counting the City of St. Louis as a county), many of which are rural. This is a case where having a feel fro the conditions of the streets of St. Louis County is highly relevant. Why would you presume that the Brown family wants a more rural jury? The Brown family may also be more comfortable in a local court rather than shlepping into St. Louis for every hearing.

There are numerous local exceptions and permutations, but generally speaking, pliantiffs' lawyers have found state courts more hospitable for suing local governments since the late 1980's, when the federal courts became more hospitable to both qualified immunity defenses and summary judgment generally, and Reagan-appointed judges reached a plurality.

Posted by: arthur | Apr 24, 2015 9:54:53 AM

But the premise of federal jurisdiction, especially post-Fourteenth Amendment, is that all of those things cut in favor of the federal forum. A plaintiff such as the Brown family, it is presumed, wants that broader, district-wide jury pool that is less connected to the local government and the judge who is less a part of the local community and thus less tied to the local government. The point about precedent is fair. Although since so few excessive force cases are brought in state court (since they are exclusively the province of § 1983 and not criminal-case motions to suppress), the chances of there being sufficient binding precedent to "clearly establish" the right is fairly slim.

Posted by: Howard Wasserman | Apr 24, 2015 9:16:04 AM

The choice to file in state court doesn't seem "puzzling" at all, from a lawyer's perspective. Not that I know exactly why they made that choice in this case - but there are many reasons why a good pltf lawyer in some jurisdictions might prefer state court. Hash, above, gets at one of them - in some places, state court jury venires are county-wide whereas federal court is district-wide. Another is "who's on the bench," in particular (not based on broad a priori premises about what federal judges are like, but about the actual people). Another might be precedent - maybe the relevant federal Circuit Court has bad precedent on some relevant debatable point but the state supreme court doesn't.

Posted by: Sam | Apr 24, 2015 9:06:20 AM

Are there differences in the jury pool? It may be, for example, that the federal jury pool is drawn from a broader region, and perhaps one less likely to be favorable.

Posted by: Hash | Apr 24, 2015 2:21:42 AM

That's how read the Complaint; it does not clearly mark what each count is, but reading through it, each one keeps talking about § 1983 and/or the Fourteenth Amendment. Which is why I was so surprised to see them filing in state court in the first place.

Posted by: Howard Wasserman | Apr 23, 2015 11:02:10 PM

I was assuming -- wrongly, it seems -- that the causes of action were brought under state law. If so, it's not obvious why a judicial gloss on a federal cause of action should apply in a state cause of action. But re-reading your post, I gather the point is that the plaintiffs are asserting federal causes of action under 1983 in state court, so the federal judicial gloss on the cause of action of course would apply in either court.

Posted by: Orin Kerr | Apr 23, 2015 10:54:49 PM

Out of curiosity, why not? The underlying rationale is to offer officers breathing space by immunizing (at the time) good-faith conduct. Why would that principle play differently in state court as opposed to federal court?

Posted by: Howard Wasserman | Apr 23, 2015 10:52:46 PM

Interesting that QI applies in state court, too. It's not obvious to me that this should be the case as a matter of first principles, but it sounds like long settled law.

Posted by: Orin Kerr | Apr 23, 2015 10:48:35 PM

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