June 2011 Archives

A bipartisan group of Senators have proposed S. 1180, the "Libyan Assets for Humanitarian Relief Act of 2011," which would authorize the use of assets seized from Muammar Qaddafi for humanitarian relief to and for the benefit of the people of Libya. Over $30 billion in his assets were seized on February 28 by the Treasury Department and our European allies (the latest estimate is $36 billion). The bill has yet to be debated in the Senate, and no companion bill has been introduced in the House as of today.

But there's no guarantee that any of the Qaddafi assets could be safeguarded all the way into the hands of the Libyan people. We have no firm information on the identity of all of the tribal leaders lined up against Qaddafi, and one of the rebel leaders has already admitted that his group includes Al Qaeda fighters who killed American soldiers in Iraq. We've already seen billions of dollars in Iraq aid disappear into thin aid, and probably used to kill our own troops - why would we do that again in Libya?

Instead of unlocking those billions for potential use by our terrorist enemies, let's unlock the frozen assets for use by those Americans, British, Irish, and others who suffered for years at the hands of Qaddafi's international terrorism. Americans who secured a judgment worth billions against Qaddafi in U.S.court saw their legal action cut short by the Libyan Claims Resolution Act of 2008. The bill forced them to accept a sharply reduced amount in compensation for the bombings that Qaddafi funded and encouraged. Scores of British and Irish victims who filed suit with Americans in U.S. court saw their legal actions completely dismissed by the same law, a deal between Qaddafi and the U.S. that enabled him to escape liability.

Qaddafi's terrorism victims, including those citizens of our allies overseas, deserve full compensation for Qaddafi's crimes before we even consider shipping one dollar to an unknown group of rebels with terrorist backgrounds.

One of my primary themes here is to remind readers that the Founding Fathers honored and protected the civil litigation process for all types of civil suits, including those filed by my friends and allies in the social conservative movement. The 7th Amendment protects the right to a jury trial for civil suits for standard tort claims arising from accidents, defective products, and medical malpractice... and that right also protects our religious liberty, gun rights, property rights, and so on. One of the points I make with my conservative friends is that "the tort reform movement is coming for you" in ways they would never imagine. This week, we might have the third instance in two years, and the second this year, in which tort reform confronts social conservatives.

In a 5-4 decision in the Pliva vs. Mensing case, the Supreme Court ruled that federal legislation regulating generic drugs pre-empts state law, effectively immunizing generics from state court cases. The decision also leaves generics in a favorable legal position compared to brand-name drugs, since the Court decided in Wyeth vs. Levine two years ago that the federal law regulating brand-names doesn't pre-empt state law, a point that Justices acknowledged in the Mensing decision. As generics constitute upwards of 70% of all drug sales, the Mensing decision marks a major step forward in the tort reform movement's campaign to eliminate lawsuits immediately upon FDA approval.

For the pro-life movement, this raises the specter that the makers of generic forms of RU-486, the "morning-after pill," can count on federal pre-emption to immunize them from civil suits over the pill's dangerous side-effects. So the Mensing decision may have created a permanent safe harbor for generic RU-486, foreclosing an important tool in the pro-life movement's fight to ban RU-486. As I posted on August 28, 2010, trial lawyers have assisted the pro-life and womens' health causes for decades, by pursuing dangerous abortifacients, unsafe drugs, and defective medical devices, all approved by a FDA asleep at the switch. Civil suits might be the last line of defense for champions of the unborn against the new wave of abortifacient technology, but not if the technology is immunized through pre-emption in federal law.

This comes after the Supreme Court decisions in the Iqbal and Twombly cases, which also impact social conservatives, especially those who litigate on behalf of their causes. I've written often on those cases and the potential impact on all plaintiffs. The Alliance Defense Fund wrote an important letter in early 2010 to Congress over its concern that the decisions could threaten every American's religious liberty through imposition of an uncertain "plausibility" standard, which invites "defensive lawyering" and subjective dismissals of complaints by individual judges.

And the House Judiciary Committee is still preparing to act on H.R. 966, the "Lawsuit Abuse Reduction Act," the tort reform movement's bill to unnecessarily impose sanctions on plaintiffs' attorneys as a means of preventing lawsuits. As I wrote on March 10, "LARA" could "scare away nonprofits or small firms specializing in religious liberty cases from filing suits against large entities, for fear that a judge could impose costly sanctions.rights to protect religious liberty against infringement by various parties." If "LARA" had been in effect last year, social conservatives might not have filed a lawsuit that forced the University of Illinois to back down from threatening to fire a professor for discussing Christianity in his history class.

Social conservatives should look over their shoulder; the tort reform movement is coming for them, case by case.

There were horror stories galore, reported by the business community and plaintiffs alike, on display yesterday at a U.S. House hearing on Medicare's mismanagement of secondary payer (MSP) claims. Rep. Cliff Stearns (R-FL), who chairs the Energy & Commerce Oversight & Investigations Subcommittee, framed the issue perfectly in his opening statement:

Generally, Medicare is the "primary payer" for health claims. If a beneficiary has other insurance, that insurance may fill in all or some of Medicare's gaps. However, the Medicare Secondary Payer program identifies specific conditions under which another party is legally responsible to be the primary payer. In such cases, Medicare is only responsible for certain secondary payments. This Medicare Secondary Payer statute was enacted to reduce expenditures under the Medicare program, and ensure that Medicare is properly reimbursed for such payments...

Medicare Secondary Payer recoveries fall into two main categories: post-payment collections for injuries that have occurred and were paid out by Medicare, and a set-aside account to cover future medical bills. For post-payment collections, there is widespread concern that CMS is creating unnecessary roadblocks for parties to reach a settlement agreement. Businesses and injured individuals routinely negotiate a settlement, but cannot close on the settlement until CMS provides a complete list of all medical costs incurred. We have heard complaints from a variety of interested parties that CMS is not providing this information in a consistent or timely manner. CMS's delays cause lawsuits to drag on, hinders timely payments to injured individuals, and causes uncertainty and increased costs for both large and small businesses.

This raises several questions: Why can't CMS more quickly and accurately track medical costs for covered individuals? And is CMS even capable of administering a health payment program for the medical community or accurately tracking costs? Based on a hearing in this subcommittee earlier this year, we already know CMS cannot accurately measure the amount lost to fraud and that CMS doles out tens of billions of dollars in improper payments every year. And we have yet to see reliable estimates on the total amount of secondary payment reimbursements that remain uncollected by CMS.

In my last post, I discussed the problems seniors face in settling secondary payer claims, but the business community also has its own set of major problems. Two of the hearing witnesses were a vice president at Cincinnati Insurance Company, one of the nation's top 25 property casualty insurer groups, and a vice president at Publix Supermarket, which operates over 1,000 stores and employs over 148,000 people. Some of the issues and anecdotes that they discussed include the following:

1. A woman who was in a car accident suffered chest wall contusions and reported the settlement to Medicare. Years later, that woman is diagnosed with breast cancer. Medicare denied her claim for treatment on the grounds that her breast cancer is related to her prior car accident, leaving the insurance company liable for the claims.

2. Complex Medicare reporting requirements imposed on insurance companies delay settlements, prevent settlements, and even incentivize jury trials. So money that otherwise could have been promptly returned to the Medicare Trust Fund is delayed, reduced, or never paid. Many Medicare beneficiaries decide to drop their claim rather than deal with the hassle of the MSP system. When a case goes to court, it increases the possibility that the claimant will not recover at all, with no repayment to the Medicare Trust Fund.

3. Medicare duns seniors years after the accident that gave rise to the initial claim, for amounts as little as $1.59, $2.00, and $4.00, and regularly fails to respond in a timely fashion to phone calls and letters requesting information and assistance from either businesses or seniors.

4. The manual that Medicare sends to businesses for use in complying with the secondary payer requirements is the size of a large metropolitan phone book and changes often. Large insurance companies need to hire personnel just to comply with the reporting requirements, the cost of which is passed onto consumers.

5. Medicare requires the use of Social Security numbers in the secondary payer process, which invites identity theft and fraud. Amazingly, Medicare is also running an advertising campaign to prevent Medicare fraud by discouraging Medicare beneficiaries from giving SSNs out to strangers!

6. Medicare imposes a mandatory $1,000 per day per claim penalty on businesses for failure to properly report a MSP claim, even for small errors or technical problems that occur through no fault of the business.

It's no wonder that Congressmen as different in political views as Allen West and Linda Sanchez are co-sponsoring H.R. 1063, the "SMART Act," to replenish the Trust Fund quickly; make Medicare work for seniors instead the other way around; and stop penalizing businesses for good-faith compliance.

Imagine a bipartisan Medicare bill, one that is already co-sponsored by Members from as far from the other side on most issues as possible: Republican Representatives like Ron Paul, Tim Murphy, Don Young, and Howard Coble; and Democratic Representatives like Ron Kind, Diana DeGette, Linda Sanchez, and Tammy Baldwin. That's H.R. 1063, the "Strengthening Medicare And Repaying Taxpayers Act of 2011" ("SMART Act"), which would help to replenish the Trust Fund, ensure that seniors and their attorneys settle injury claims quickly, and reduce paperwork burdens for businesses.

When seniors on Medicare are hurt in an accident and sue the other party, they file conditional Medicare claims to pay for treatment. Federal law requires the injured person's attorney to repay Medicare upon a judgment or settlement, before any funds are given to the injured senior. The Center for Medicare & Medicaid Services (CMS) is supposed to give the attorney a final figure for the total amount to repay, but CMS is slow and inaccurate. As a result, it can take years to finally pay off even the smallest claim, and the senior doesn't see a dime of the settlement. In extreme cases, CMS has even dunned seniors years after the accident, sometimes for ridiculously small amounts of money.

H.R. 1063 takes care of all that. It streamlines the process, establishes real deadlines for CMS for claims processing, and enables businesses to meet CMS reporting requirements while maintaining data security. H.R. 1063 encourages efficiency by providing settling parties reimbursement amounts prior to settling a claim. The SMART Act will require CMS to advise parties in the process of settling, before settlement, of how much is owed, so that the parties can appropriately resolve their Medicare obligations. By requiring Medicare to provide the amount due within 65 days of a request, the settling parties will know how much money has to be set aside for Medicare, and factor that amount into their final settlement. H.R. 1063 increases Medicare's efficiency by ensuring that the Government does not spend more money pursuing a MSP Claim then it will actually recover from that claim. The SMART Act will introduce a threshold, below which the provisions of MSP Act will not apply. And H.R. 1063 gives injured seniors finality for their settlements. H.R. 1063 establishes a three-year statute of limitations, allowing injured seniors to be able to settle claims confidently, without concern that they will be responsible for additional, substantial payments to Medicare sometime in the distant future.

That's why H.R. 1063 is supported by the U.S. Chamber and trial lawyers. Companies as large as WalMart, Best Buy, Marriott International, and Disney, as well as many of the largest insurance companies in America, support H.R. 1063.

The Oversight Subcommittee of the House Energy & Commerce Committee will hold a hearing on these Medicare issues on Wednesday at 10 am. Among the witnesses will be officers from Publix Supermarkets and Cincinnati Insurance Company, which are among the many companies supporting H.R. 1063, and a plaintiffs' attorney who will testify to the problems seniors face.

Rob Natelson retired from the University of Montana Law School last year and joined the Independence Institute in Colorado, thus relieving himself from a years of persecution and discrimination for being a vocal and active conservative. In 2004, after the law school had failed to recognize his prolific scholarship, denied him the opportunity for a sabbatical, and then refused to assign him to teach constitutional law, he filed a discrimination complaint, and the UM President ruled in his favor. The dean of the law school at the time admitted that their poor treatment had nothing to do with Natelson's work or professional conduct with his students. This week, the law school paid him back for that victory (and probably his anti-ObamaCare stance) and dissed him one last time, denying him an emeritus status that seems de rigeur for other retiring professors there. Natelson described his lonely road at UM in a comment on Volokh Conspiracy, the legal blog: "For the first five years I was on the faculty, I was not politically active and my views were largely unknown-and I was treated rather well by both faculty and students. After I became involved in politics (strictly on my own time, of course), things became quite different. (As a Reagan conservative, I was essentially a minority of one among faculty.) And the more visible politically I was at any given time, the more negative the response."

But, like many instances of academic bias against a real conservative, the only thing that UM has really done has been to turn Rob Natelson into a conservative hero. His case has been discussed on Real Clear Politics and a number of conservative websites, in addition to being noted on legal blogs like Volokh and the ABA Journal. But I didn't need them to tell me about Rob Natelson's principles or resolve. I've come to know and appreciate Rob Natelson as a respected scholar and Constitutional conservative, as well as a nice guy, through a series of e-mails with him as he tried to persuade Congress to reject an unconstitutional federal medical malpractice law. His letter to the chairmen of two House committees and blog posts warning Congress of the ramifications of that law planted sufficient doubt in the minds of Republican lawmakers that tort reformers tried to counter him with an analysis of their own, and it fell flat. Many scholars would've shied away from criticizing powerful lawmakers over one of their favorite bills. But fortunately Rob Natelson isn't like most scholars.

The Alliance Defense Fund, the premier litigators for social conservatives in the country, won another victory through civil litigation, this time forcing a Minnesota high school to officially recognize a pro-life student club. The ADF sued the St. Michael-Albertville School District in April when the high school denied the "All Life is Valuable" (ALIV) group permission to meet in school facilities, alleging that it didn't "support the student body as a whole." That's not going to work under the First Amendment, and ADF attorneys knew it. The school backtracked in the press, suddenly claiming that the group was free to meet just like other non-curricular groups. But the suit continued until the school district officially recognized the club, leading this month to a dismissal of the lawsuit. The district will also pay the club's legal costs. Congratulations to ADF for once again pursuing the Constitutional right to a civil jury trial in order to protect free speech and the right to peaceful assembly.

Today is a special day in the history of democracy and jurisprudence, the 796th anniversary of the sealing of the Magna Carta by King John at Runnymede in England on June 15, 1215. The document required King John to proclaim certain individual liberties, and accept that his will was not arbitrary, for example by explicitly accepting that no "freeman" (in the sense of non-serf) could be punished except through the law of the land. The Wikipedia entry describes it as "the first document forced onto an English King by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their privileges." Constitutional scholar Rob Natelson of the Independence Institute was invited to write the entry on the Magna Carta for the limited-edition Encyclopedia of the U.S. Supreme Court. He told me that he considers the Magna Carta as "Probably the greatest Anglo-American legal document of all." It's certainly the charter for modern democracy, the basis for eight centuries of British and American law (copied around the world), and the foundation for the U.S. Constitution and the Bill of Rights. The colonies in Virginia, Massachusetts, and Maryland especially sought to reflect various points of the Magna Carta in their early charters and laws. In 1957, the American Bar Association acknowledged the debt that American law and constitutionalism owed to Magna Carta by erecting a monument at Runnymede.

British jurist Sir William Blackstone organized the 1215 version into numbered articles. Article 39 of the Magna Carta can be translated as, No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. It is this article that establishes and protects the right to a trial by local jury in criminal and civil cases, to protect all other individual liberties from the power of centralized government. The Founding Fathers studied the Magna Carta and knew the many instances in which the British had deprived them of their right. John Adams referred to it as "that fundamental law" when opposing the Stamp Act of 1765, and the deprivation of jury trials was among the grievances listed in the Declaration of Independence. George Mason, who refused to sign the Constitution because it didn't explicitly protect individual rights and the prerogatives of states, drew upon it for his writings, which eventually led to the enactment of the Bill of Rights.

All those who live liberty and cherish individual rights should raise a toast and a prayer today to those good people of England who stood their ground against King John's army and established the basis for self-government.

Because the federal government shouldn't be involved. It's a state matter; tort law is a state matter.

Rep. Ron Paul when asked by Fox News' Shannon Bream why he opposes a federal medical malpractice law, during the GOP Presidential debate in South Carolina, May 5, 2011 (starting just after the 3:00 mark on the embedded video).

Rep. Paul has written before about his principled opposition to federal tort reform bills, and he has voted that way on the floor of the U.S. House. Rep. Paul is one of the few Republicans who have been in office long enough to have a chance to vote on H.R. 5, the "HEALTH Act," in two previous Republican Congresses, and he has never voted for it.

Rep. Paul, who has delivered approximately 4,000 babies as a licensed ob-gyn, repeated his opposition to federal tort reform bills and the general federal preemption doctrine when he was interviewed on the nationally syndicated 'What's Up' radio program by host Terry Lowry last week. You can download his interview here (mp3 file). He discusses the importance of the Bill of Rights, including the 7th Amendment, his opposition to federal preemption of state laws twice during the interview, and to federal tort reform bills starting at the 5:15 mark.

The American Medical Association is now e-mailing Congressional staff to push for H.R. 5, the "HEALTH Act," citing a paper prepared by the American Tort Reform Association as proof that the bill defends state rights. In contrast, SIX respected Constitutional scholars say that H.R. 5 is an unconstitutional infringement on states' rights. First among the experts to fire against H.R. 5 was Rob Natelson of the Independence Institute, in a letter and several blog posts; then Prof. Randy Barnett wrote his op-ed in the Washington Examiner and a Volokh Conspiracy blog post (Acrobat files), followed by Prof. Ilya Somin in a Volokh blog post. And it was Prof. Barnett's writings that led to the concessions by pro-tort reformers Walter Olson and Ted Frank that H.R. 5 is "impermissible" (Frank's words). And on top of all that, Tea Party Patriots leader Mark Meckler says that tort law is the province of state legal systems, not Uncle Sam.

Another difference worth remembering between Prof. Barnett and the AMA is that the former deserves Republican respect for fighting ObamaCare (he'll be in court tomorrow and wrote about it today), while the AMA fought for the enactment of ObamaCare and recently named a new President who is pro-ObamaCare. H.R. 5 rewards the medical associations which were the co-conspirators in the enactment of ObamaCare, and they don't deserve the partial immunity they would receive through H.R. 5.

Republicans should reject the AMA's and ATRA's phony "states' rights" argument and oppose H.R. 5.

Tomorrow is the 222nd anniversary of the introduction by James Madison of the first proposed amendments to the Constitution, eventually the Bill of Rights, before the first Congress.

I posted long excerpts of Madison's remarks here on March 30, including the language of his amendment to protect the right to a jury trial for civil suits: In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate. Madison went on to describe that right "as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Of course, he was one of many of the Founding Fathers who supported the unfettered right to a civil jury trial. Quote of the Day has been a feature of this website since I opened almost a year ago, in order to highlight the Founding Fathers' quotes in favor of the 7th Amendment. Here are more such quotes by Thomas Jefferson and other Founders and commentators:

I sincerely rejoice at the acceptance of our new constitution by nine States. It is a good canvas, on which some strokes only want retouching. What these are, I think are sufficiently manifested by the general voice from north to south, which calls for a bill of rights. It seems pretty generally understood, that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies. I conceive there may be difficulty in finding general modifications of these, suited to the habits of all the States. But if such cannot be found, then it is better to establish trials by jury, the right of habeas corpus, freedom of the press and freedom of religion, in all cases, and to abolish standing armies in time of peace, and monopolies in all cases, than not to do it in any. The few cases wherein these things may do evil, cannot be weighed against the multitude wherein the want of them will do evil. In disputes between a foreigner and a native, a trial by jury may be improper. But if this exception cannot be agreed to, the remedy will be to model the jury by giving the mediatas linguae, in civil as well as criminal cases. Thomas Jefferson, letter to James Madison, July 31, 1788.

In conformity with these principles, and from respect for the public sentiment on this subject, it is submitted, that the new constitution proposed for the government of the United States be bottomed upon a declaration or bill of rights, clearly and precisely stating the principles upon which this social compact is founded, to wit: ... that the trial by jury in criminal and civil cases, and the modes prescribed by the common law for the safety of life in criminal prosecutions shall be held sacred,... Richard Henry Lee, proposed amendments to the Constitution, October 16, 1787.

Your constitution further provides 'that in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.' ... Whether the trial by jury is to continue as your birth-right, the freemen of Pennsylvania, nay, of all America, are now called upon to declare... The late Convention have submitted to your consideration a plan of a new federal government--The subject is highly interesting to your future welfare--And it is worthy of remark, that there is no declaration of personal rights, premised in most free constitutions; and that trial by jury in civil cases is taken away... 'Centinel,' presumed to be "Antifederalist" Samuel Bryan, in letter to fellow Pennsylvanians, October 5, 1787.

If the federal constitution is to be construed so far in connection with the state constitutions, as to leave the trial by jury in civil causes, for instance, secured; on the same principles it would have left the trial by jury in criminal causes, the benefits of the writ of habeas corpus, &c. secured; they all stand on the same footing; they are the common rights of Americans, and have been recognized by the state constitutions... "Federal Farmer IV", another of the "Antifederalists," in letter of October 12, 1787.

These quotes are the seeds of our democracy, planted by our forefathers, nurtured and fed with the blood, toil, and sweat of two hundred years of Americans who served the cause of freedom.

Several days ago, Hot Air highlighted the case of Katya Koren, a teenage Muslim girl in Crimea stoned to death after participating in a beauty contest. The suspected murderer told police that she violated the laws of Sharia by her participation. Tina Korbe of Hot Air interviewed me and included my quote pointing to the differences between Sharia law and the Bill of Rights. "The Bill of Rights, which was first based on the Magna Carta signed in 1215, has led to a system of procedures fair to all parties, such as the use of juries in criminal and civil cases and standard procedures for each type of case. That system has been a beacon to societies around the world, for which men and women of all races, creeds and colors have fought and died."

It's true, as another expert pointed out in the article, that "There is no universally accepted standardized Shari'a," and it was simple Islamic-based radicalism that led to the suspect's comments. But that shouldn't comfort anyone. Radical Muslims around the world continue to pursue the injection of Sharia principles into Western courtrooms. In Australia, the Australian Federation of Islamic Councils wants Muslims to be able to marry, divorce and conduct financial transactions under the principles of sharia law.

And in the United States, some judges, ignorant of our own Constitution and Bill of Rights, have allowed Sharia principles to be applied in local domestic relations and contract cases. In a landmark study, Shariah Law and American State Courts, An Assessment of State Appellate Court Cases, the Center for Security Policy discusses dozens of such cases. In a New Jersey case decided just last year, a New Jersey appellate court ruled that a trial court erroneously allowed the husband's Islamic religious beliefs to excuse him from New Jersey's criminal code after the husband knowingly engaged in non-consensual sex with his wife. The couple were Muslims and citizens of Morocco and resided in New Jersey. After only three months of marriage, the husband started physically abusing the wife, forcing himself on her for non-consensual sex with her on multiple occasions. The husband told the wife that Islam allowed him to have sex with her at any time he wished. When she refused, he verbally divorced her before their local imam. She then asked a trial court to grant a restraining order against him, but the trial court refused, citing his religious belief of his right to have non-consensual sex with his wife, thus precluding any criminal intent. The New Jersey appellate court reversed the trial court and ordered that the trial court enter a final restraining order against husband.

I've written often here and spoke on a Capitol Hill panel on the dangers posed by the creeping use of Sharia legal principles in American courtrooms. It's a lot easier to know what we're AGAINST when we remember and protect what we stand FOR - the unalienable rights recognized in the Bill of Rights, including the right to a jury trial for criminal and civil cases. That's the challenge and the agenda for those of us engaged in civil justice issues.

Congratulations to the Liberty Institute for using the civil litigation process to successfully defend Pastor Scott Rainey's right to pray "in Jesus' name" at the Houston National Cemetery. In the process, they defeated a national effort by the Veterans' Administration to stifle religious liberty at all national cemeteries, an outrageous action never before taken.

Here's a great summary of the case facts from Fox News Radio: Rainey, the pastor of Living Word Church of the Nazarene, has delivered prayers at the Memorial Day service for the past two years. But this year the cemetery's director asked him to submit his prayer in writing. The prayer concluded with the words, 'in the name of Jesus Christ, the risen Lord.' Rainey told KRIV-TV that he was contacted four hours later by cemetery director Arleen Ocasio who told him to either remove the words or he would not be allowed to pray.

Rainey sued the VA, with litigators from the nonprofit Liberty Institute representing him. "It is very clear that a pastor has a right as a private citizen to speak his mind freely and not have the government censor or edit the content of his speech,' said Jeff Mateer, general counsel of the Institute, who personally represented Rainey (quoted by Fox).

Trial lawyer Jared Woodfill, the chairman of the Harris County (Texas) Republican Party and the founding partner at Woodfill & Pressler LLP in Houston, rallied Harris County Republicans through a e-mail blast to county GOP members and the county GOP website to call the cemetery director and urge her to back off.

The judge ruled for Paster Rainey and issued a TRO against the cemetery. "The government cannot gag citizens when it says it is in the interest of national security, and it cannot do it in some bureaucrat's notion of cultural homogeneity," District Judge Lynn Hughes wrote. One day later, the VA caved, agreeing to not fight the TRO and allowing Pastor Rainey at pray as he planned. You can read the Liberty Institute's lawsuit, the judge's order, and the Institute's press release at its website.

In an interview with Terry Lowry on his nationally syndicated 'What's Up' radio program, Jared Woodfill discussed the case and the need for all Americans to protect their 1st Amendment rights by exercising their 7th Amendment right to a civil jury trial. He disclosed that VA headquarters was attempting to stop prayers at national cemeteries nationwide, not just in Houston, and the lawsuit apparently put a halt to that attempt.

Woodfill highlighted the importance of the right to a civil jury trial, as protected by the 7th Amendment. "Absolutely, obviously the 7th Amendment protections allowed the Liberty Institute to go into federal court and say, 'Judge, we believe that this is unconstitutional, we believe this is a violation of this pastor's First Amendment rights under the Establishment Clause.' He reminded listeners of the importance of each of the ten amendments in the Bill of Rights. "...(O)ur Founding Fathers were very purposeful and intentional when they drafted the Bill of Rights. And I believe that every single one of those ten amendments is sacrosanct... The federal government should not be stepping on those rights... If the courts are not open to redress grievances such as these, then the federal government will continue to trample upon our rights... the great thing about the 7th Amendment is that it allows the court system to be open to redress these very types of wrongs." You can download and listen to the entire interview with Jared Woodfill from this link (MP3 file).

So there's another victory for religious liberty thanks to the 7th Amendment and the trial lawyers at the Liberty Institute. Anybody want to "tort reform" them out of federal court? And a big thanks to Jared Woodfill, who demonstrates every day in his dual roles that a true Constitutional conservative can be a Republican activist and a successful trial lawyer.

UPDATE: I discussed this on the nationally syndicated 'What's Up' radio program with host Terry Lowry. You can download and listen to the podcast using this link.

On May 9, I posted about the recent victories through civil litigation, by social conservatives, to protect free speech, religious freedom, & property rights. Today brings another example of such a victory, this time by the Alliance Defense Fund, the premier nonprofit litigation group in America for social conservatives. They forced a school board in New York to cease discriminatory tactics against a Christian youth club. From the ADF press release:

At the beginning of her freshman 2009-2010 school year at Half Hollow Hills High School East, the student co-leader of the Ichthus Club was told that her extracurricular student group had been cancelled. She was given no advance notification. Following the decision, more than 90 students signed a petition in favor of allowing the club to continue meeting, but school officials still did not immediately reinstate the club... Public school officials claimed that unspecified budget cuts and a lack of student popularity spurred their decision to cancel the club, even though the club had more than 55 student attendees in 2009 and approximately 60 other student clubs, including the Gay-Straight Alliance and Amnesty International, were allowed to continue.

Alliance Defense Fund attorneys filed suit against the school district in February 2010. Today, ADF announced a settlement and voluntarily dismissed the suit, after "school officials agreed to reinstate the club, change district policy, and revoke unconstitutional guidelines for club formation and official recognition" (quoting the press release).

This is just another example of the weekly victories that conservatives achieve by engaging in civil litigation, just as the Founding Fathers designed it in the Constitution and Bill of Rights. For mainstream conservatives to turn around and attack product liability and medical malpractice lawsuits is both unprincipled and unwise. It denigrates and trivializes the original intent of the Founders, backed by centuries of American and British law, that "We the People" have the unalienable right to protect our rights and have our claims heard before a local jury. Such attacks also ignore the Biblical basis for civil suits and trial lawyers, including the clear direction by Moses in Exodus 22:9 that one who harms another's property shall pay double the value of the lost property. It's unwise to believe that the tort reform movement can't reach lawsuits over lost rights; there are already plenty of proposals in Congress which would, if enacted, make it more difficult for social conservatives to bring lawsuits over their causes. I just hope they see that and fight such proposals vigorously.

Moses, the drafters of the Magna Carta, and the Founding Fathers didn't differentiate between civil suits over lost rights, lost property, or lost limbs, and neither should we.