Workers' and voters' rights on court dockets.

With the integrity of the civil justice system under attack, the Center for Constitutional Litigation (CCL) continues to defend plaintiffs' right to seek redress in court. Three cases--in the areas of mandatory arbitration, voting rights, and punitive damages--highlight CCL's efforts to enforce state and federal constitutional rights and set favorable precedent for future plaintiffs.

Illinois Supreme Court

Melena v. Anheuser-Busch, Inc. In 1999, Joann Melena began working as a nonunion hourly employee at an Anheuser-Busch distribution center in Mount Vernon, Illinois. One year later, the company instituted a mandatory dispute-resolution policy. The policy was imposed on all new employees, and existing employees were required to accept it as a condition of continued employment. With little choice, Melena signed the policy.

In September 2002, Melena suffered a work-related injury. She filed a claim for workers' compensation and began receiving temporary total-disability benefits. Six months latex, while she continued to receive benefits, Anheuser-Busch fired her.

Melena brought an action in state court, alleging retaliatory discharge. Anheuser-Busch moved to dismiss, arguing that Melena could not seek redress in state or federal court but was required to submit her claim to mandatory arbitration according to the dispute resolution policy.

Melena acknowledged that she had signed the arbitration agreement, but she maintained that her acceptance of the agreement was involuntary. She also argued that she did not knowingly waive her right to a jury trial in future actions against Anheuser-Busch. The company responded by arguing that under the Federal Arbitration Act, there is no requirement that a waiver of a judicial thrum be knowing or voluntary.

Both the trial court and an intermediate appellate court rejected Anheuser-Busch's attempt to compel arbitration. The appellate court concluded that a waiver of a judicial forum must be voluntary. Notably, this court expressed serious reservations regarding whether an agreement to arbitrate offered as a condition of employment is ever voluntary.

CCL Senior Litigation Counsel John Vail will represent Melena before the Illinois Supreme Court, which has agreed to hear the case. He will argue, in part, that on state and federal grounds, the constitution compels the requirement of a knowing and intelligent waiver and that the Federal Arbitration Act cannot eliminate this requirement. Because the case will likely require the state supreme court to consider federal issues, look for a petition to the U.S. Supreme Court in the future.

Eleventh Circuit

Wexler v. Lepore. As the Supreme Court held in Bush v. Gore, the right to vote, once granted, includes the right to have your vote counted and, if necessary, recounted. After Bush, Florida updated its voting equipment to include touch-screen voting machines, only some of which created a paper trail. Florida also kept on the books a law that mandated, in the event of a close election, that the Board of Electors conduct a manual recount of all votes cast using voting machines.

On behalf of Rep. Robert Wexler (D-Fla.), several local officeholders, and a voter, CCL President Robert Peck and Associate Litigation Counsel Julie Schroeder, along with Florida ATLA member Jeffrey Liggio, challenged Florida's use of touch-screen paperless voting machines. They argued that the use of these machines in certain counties made it impossible for the Board of Electors to conduct a manual recount because there would be no paper record to review. As a result, Florida election officials denied equal protection to voters who used the paperless machines.

A federal district court in Florida disagreed, finding that the use of different voting systems did not violate equal protection. Although the right to vote is a fundamental right that should trigger strict scrutiny, the court appeared more sympathetic to the board's need for flexibility in choosing voting systems than to voters' rights.

Briefs will be filed soon in the Eleventh Circuit to challenge that ruling.

Oregon Supreme Court 

Philip Morris USA, Inc. v. Williams. The U.S. Supreme Court decision in Slate Farm v. Campbell continues to be grist for the constitutional litigation mill. The Oregon Court of Appeals has repeatedly upheld a $78.5 million punitive damages award against Philip Morris on behalf of a smoker's family. In its latest opinion, on remand from the U.S. Supreme Court, the Oregon court described the company's fraudulent acts as the most pervasive and deadly in the state's history. Determined to have the last word, Philip Morris has appealed to the Oregon Supreme Court, where the case will be argued this month. CCL's Peck worked with Oregon cocounsel in briefing the case.