Judge Barrett on Government I

The following cases are brought by or against the government. They do not include criminal cases, lawsuits against law enforcement, lawsuits based on the management of jails and prisons, immigration, or lawsuits against the government in its capacity as an employer. Those lawsuits are (or will be) summarised elsewhere. For further context, please read the overview.

Acevedo v. Cook County Officers Electoral Board (2019)

Edward Acevedo ran for sheriff of Cook County in 2018. Before he could enter the Democratic primary, Mr. Acevedo had to collect enough signatures to justify his inclusion on the ballot, and he had to do so in a single period of 90 days. Had he run for a state-wide office, 5000 signatures would have been enough. Cook County had a different minimum. Acevedo had to show collect signatures equal to 0.5% of the voters in the primary race, which was calculated based on the number of qualified voters of the party who had voted in the most recent general election. That came to 8236 signatures. Acevedo garnered 5654 signatures, exceeding the state-wide requirement but failing to meet the local requirement. [2, 5]

Acevedo sued the electoral board, arguing that the rule violated the First and Fourteenth Amendments. Judge Elaine Bucklo dismissed his complaint for failure to state a claim, opining that a county requirement requirement need not be justified by a compelling state interest merely because it is stricter than a state requirement. [2-3]

By the time the appeal reached the Court of Appeals for the 7th Circuit, the election was over. [3] Therefore, his request to be placed on the 2018 primary ballot was moot. [Note 1 on page 4] Judge Barrett wrote for the Court that it had jurisdiction over Acevedo’s appeal, however, because the time to collect signatures was too short to fully litigate a case and Acevedo intended to run for office again in future. Therefore, as was often the case in ballot access lawsuits, the injury was capable of recurring but would otherwise evade review. [3-4]

Judge Barrett wrote that, under the framework set out in Anderson v. Celebrezze and applied to all voting rights cases in Burdick v. Takushi, the Court had to first identify the injury to the plaintiff’s rights and then evaluate the state’s justification for burdening those rights. [4] Therefore, under 7th Circuit case law, minor restrictions on voting rights were often justified by the need for orderly elections. [5] Judge Barrett held that such was the case here, citing cases in which the Court of Appeals had upheld higher percentile requirements to appear on a ballot, at least one of which (Stone v. Board of Election) imposed such a requirement in Chicago. [5-6]

Acevedo argued that Cook County was required to justify the burden it imposed on him, because that burden exceeded the burden he would face to run for a state-wide office. Judge Barrett held otherwise, arguing that the existence of a less burdensome alternative became relevant only when the plaintiff had demonstrated a sufficient burden on voting rights. Judge Barrett then stated that the cases Acevedo cited predated the Supreme Court’s unambiguous application of the Anderson framework to all elections but, regardless, those cases came out as they had because the Court of Appeals had identified a significant burden on voting rights. [6-8]

Therefore, Acevedo’s lawsuit was dismissed.

Beley v. City of Chicago (2018)

Michael Beley was a sex offender, recently out of prison. The Illinois Sex Offenders Registration Act obligated him to register himself with the police. [1, 3] The police would not accept Mr. Beley’s repeated attempts to register, however, because he could not provide them with an address. The police force therefore listed him as non-compliant on its web-site. Beley was briefly able to register as a resident of a homeless shelter but, after being kicked out of the shelter for his past crimes, he was forced to report to the police every week. [3-4] Douglas Montgomery was likewise unable to register for his lack of address and was even charged with failing to do so, a felony, although he was later acquitted. [3]

Messrs. Beley and Montgomery tried to bring a class action against Chicago, arguing that it had violated the Due Process rights of homeless sex offenders by not permitting them to register. Judge John Robert Blakey granted summary judgment for the City, concluding that the sex offenders had a liberty interest in registering, as had other federal judges in Chicago. [4-5 and note 3 on page 5] Judge Blakey held that the plaintiffs failed to prove that the entity responsible for their inability was Chicago, however, rather than individual police officers. [5]

Judge Barrett, writing for the Court of Appeals, did not need to address the question of proof. She held that sex offenders had no liberty interest in registration per se (and that the specific plaintiffs had abandoned their argument that they had a property right in their ability to register). [5 (and note 2 on page 4)] First, she rejected the argument that sex offenders had a right to register, because registration is a burden rather than an element of liberty. Judge Barrett next rejected the argument that the inability to register could lead to arrest and incarceration. She held that the possible loss of a liberty interest in future was not a present deprivation of the right to liberty, citing Section 1 of the Fourteenth Amendment and LaBella Winnetka v. Village of Winnetka, and therefore that this did not create a liberty interest under the Due Process clause. [6-7] She also observed that this was not an issue of ripeness, because the alleged deprivation of liberty had already occurred. [Note 4 on page 6] Judge Barrett then held that fear of incarceration was not itself a liberty interest and that failure to register placed no burdens on the plaintiffs not placed on all sex offenders. [7-8]

Finally, the plaintiffs argued that they actually had been deprived of their liberty. Judge Barrett seemed to agree that arresting Mr. Montgomery may have violated due process, although she appeared sceptical of Mr. Beley’s claim that he had been deprived of liberty through the stigma of being labelled a non-compliant sex offender. [9 and note 5 on the same page] The plaintiffs had attempted to sue on behalf of a much larger class, however, namely all homeless sex offenders. They had not restricted the class to sex offenders who had been arrested or stigmatised. The only deprivation of liberty alleged by the class was denial of registration, which the Court of Appeals had found was not a deprivation. [8-9]

Therefore, the lawsuit against the City of Chicago failed, and future claims of the same nature became much less likely to succeed.

Clanton v. United States (2019)

This would a standard medical malpractice case, except that the negligent health-care provider happened to be employed by the U.S. Public Health Service. This claim was therefore brought against the U.S. government under the Federal Tort Claims Act. [3]

Kevin Clanton failed a pre-employment physical exam because of high blood pressure. He therefore twice visited Denise Jordan, a nurse-practitioner, to obtain medical care. Mr. Clanton did not return a week after his second appointment, as requested. Two weeks later, when he again showed high blood pressure at a physical exam, he visited Ms. Jordan. Over the following two years, Clanton missed appointments and often failed to take his medication. Clanton did not explain to him the importance of keeping all his appointments, the need to take medication even when he felt well, or the risks of hypertension. [2-3] Eventually, Clanton developed end-stage renal disease as a result of his hypertension, which might have been avoided if Jordan had looked at the results of some tests she had ordered. [3] Clanton underwent haemodialysis, paid for by Medicare, and eventually received a kidney transplant. He may need further treatment in future, however. [3]

Clanton sued the United States government in federal court. Chief Judge Nancy Rosenstengel held a five-day bench trial. She found that Jordan had been negligent, that Clanton had not contributed to the injury through his own negligence, and that damages came to nearly $ 30 million. [3] The government moved for reconsideration of damages on several grounds. The district court agreed to conduct a damages analysis but did not change its award and rejected the government’s other arguments. [3-4]

The government first argued that the district court had erred in its comparative negligence analysis under Illinois law. The district court had found that Clanton was not negligent because he did not understand the severity of his condition but had failed to cite any legal authority (or even to articulate the legal standard) in its analysis. Judge Barrett held that the question was not what Clanton had done and why, it was whether Clanton had acted as a reasonable person in his situation would have. Clanton had some clues that he was unwell, so a reasonable person might have done more than Clanton had to prevent further deterioration. Judge Barrett therefore vacated the judgment and remanded for the court to properly analyse Clanton’s share of fault. [4-5]

The government appealed the district court’s denial of its request to let it pay damages in monthly instalments, which had been authorised (but not required) in medical malpractice cases by an Illinois statute. That statute had since been repealed. Judge Barrett held that the law had created a new remedy for a particular subject. Under Eitel v. Lindheimer (slightly misquoted) and Shelton v. City of Chicago, that made it a special remedial statute. Although repeals of substantive law generally did not apply retroactively in Illinois, Judge Barrett argued that there was an exception for special remedial statutes, rendering the previously-authorised relief unavailable from the moment of the repeal. Judge Barrett therefore held that, whether or not the district court had erred, periodic payments were no longer available. [5-8]

The government also appealed the result of the district court’s non-economic damages analysis. The district court had first compared the amount of damages to similar cases, then confirmed its analysis by comparing the ratio of economic to non-economic damages. During the former, the district court had rejected as comparators two Hawaii cases, on the grounds that Hawaii capped pain-and-suffering damages whereas Illinois did not. Judge Barrett held that this decision was the application of a methodology rather than a choice of methodology, to be reviewed for abuse of discretion – which it was not, because the damages cap was sufficient difference for the district court to reasonably deem those cases unhelpful. [9-10] Judge Barrett did not address the merits of the ratio damages comparison. Because the district court conducted this analysis only for confirmation, she concluded it would have reached the same result had it not performed the analysis. [10-11]

The government argued that the district court should have deducted Medicare’s contribution to Clanton’s health-care from his damages, because Medicare and the damages were both paid for out of the same fund (i.e. tax-payer dollars). Judge Barrett concluded that this off-set was barred under Illinois’ collateral payments doctrine, which permitted a party to recover damages for expenses that had been compensated by a third party. Judge Barrett applied Laird v. Illinois Central Gulf Railroad, in which the Supreme Court of Illinois held that a railroad could not reduce payments to its injured employee by the amount paid out of its disability benefit fund. Judge Barrett found this case similar, because both cases involved funds to which plaintiff and defendant had contributed and that were not related to liability. [11-14] The government attempted to distinguish Laird,on the grounds that Medicare would have paid for Clanton’s dialysis even if he had not contributed, but Judge Barrett rejected this argument because the Supreme Court of Illinois had rejected the argument that medical expenses could be recovered only when the plaintiff had previously paid for the right to those benefits. She cited Wills v. Foster for this point. [Note 3 on pages 13-14]

Therefore, the damages award remained, although how much of the award Clanton received would depend on the district court’s second comparative fault analysis.

Cleven v. Soglin (2018)

This is arguably an employment case. Given the significance of government pensions and the complexity of the associated law, however, I thought it more fitting to include it here.

In the early 1980s, when Gary Cleven began working as a stage-hand for Madison, the City considered stage-hands to be independent contractors. Decades later, the stage-hands’ union convinced the City to treat them as employees, which meant that they were eligible to enrol in the Wisconsin Retirement System. The City did not agree to pay the contributions to this System that the stage-hands had accrued. [2-3]

Mr. Cleven went to the Employee Trust Funds Board, the state body that ruled on disputes relating to the Retirement System. Although the Board did not order the City to pay Cleven’s past dues, it did order the City to report his past hours and earnings, which would render Cleven eligible for retirement benefits. The City did not do so. [3-4] Cleven spent two years trying, without success, to contest the Board’s decision in state court. Only then did he seek, and receive, from state court a writ of mandamus ordering the City to report his hours and earnings. [4-5]

Cleven the sued the City in federal court, arguing that it had deprived him of his liberty without due process by effectively preventing him from retiring for five years. Judge William Conley granted summary judgment for the City, finding that the writ of mandamus had afforded Cleven sufficient remedy. [5]

Judge Barrett, writing for the Court of Appeals, assumed that delaying Cleven’s retirement deprived him of a property right. Judge Barrett held that the delay was not because he’d received no hearing, however, but because the City had decided not to act as ordered after the hearing he did receive. State law offered him a means to compel it to do so, namely seeking a writ of mandamus, but Cleven chose not to for two whole years. Moreover, if the problem was that the City had violated its lawful obligations, a pre-deprivation hearing would have been either futile or impossible. Therefore, the state had satisfied due process by giving Cleven a means to remedy his deprivation after the fact. [6-7]

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