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The United States Supreme Court.

In October 2020, RDM member attorney Dyanna Ballou wrote an article about jurisdiction stripping, a doctrine that allows Congress to remove jurisdiction from federal courts, including the Supreme Court. In light of recent Supreme Court rulings on abortion, gun control, and climate change regulations, Dyanna takes a fresh look at the concept of jurisdiction stripping below.

Unsurprisingly, there is increased interest in jurisdiction stripping by legal commentators. Many commentators are encouraging Congress to enact legislation to protect abortion rights with a clause forbidding judicial review of the law. “It’s clear to me that this action is allowed under Article 3 of the Constitution and Supreme Court precedent,” says Dyanna.

Despite its legality, jurisdiction stripping raises big issues:

  • Who should decide our most contentious social and cultural issues?
  • Is it fair for nine people to make fundamental legal determinations for over 300 million Americans?
  • How is the minority to be protected from the majority?

One thing has become clear: our courts are not apolitical. “Why else do we have such furious confirmation hearings,” asks Dyanna, “if they are allowed to go forward at all? Everyone knows that each party nominates judges from its own side. The always-reliable liberal and conservative blocks on the Court are further proof of the court’s politicization.” Dyanna suggests that jurisdiction stripping is a tacit acknowledgment of the Court’s political nature.

How Does Jurisdiction Stripping Work?

First, the Senate and the House must pass legislation that removes the Court’s power to review that legislation. Then, the President must sign the legislation, or, failing that, Congress would need the votes necessary to override a veto.

The chances of both houses of Congress and the President agreeing on legislation on hot-button topics like reproductive freedom and gun control are unlikely. Even when a single party controls both houses of Congress and the White House, senators and representatives who refuse to toe the party line are common, as we’ve seen with several pieces of legislation that have stalled in recent sessions. Historically, single-party control has resulted in less rather than more legislation.

Similar Laws in Canada

Our northern neighbor Canada allows jurisdiction stripping. Section 33 of the Canadian Charter (similar to our Constitution) allows Parliament and provincial legislatures to override court decisions that interpret key sections of the Charter dealing with fundamental rights like freedom of speech and freedom from unreasonable search and seizure.

Canada’s Section 33 became effective in 1982. What’s happened since then? Essentially nothing. It has never been used on a national level to override a court decision.

Will Congress Strip the Supreme Court’s Jurisdiction?

What does that mean for us? “I believe that like the Canadian experience, jurisdiction stripping would be difficult to realistically use in the United States,” says Dyanna, “especially on highly-charged social issues. I don’t see it as a practical solution to the problem of an activist Court.”

The Freedom Suits Memorial at the Civil Courts building in St. Louis.

This June, the Circuit Courts of St. Louis dedicated “Freedom’s Home,” a bronze statue memorializing the history of freedom suits in St. Louis. The four-ton bronze statue, sculpted by Preston Jackson, sits on the east side plaza of the Civil Courts Building in Downtown St. Louis. The black granite base of the statue is inscribed with the names of 330 people who petitioned for their freedom.

The Freedom Suits Memorial at the Civil Courts building in Downtown St. Louis.

Previously, RDM member attorney Nathan Lindsey wrote about the history of freedom suits in St. Louis. Beginning in 1824 with Winny v. Whitesides and continuing until the 1857 Supreme Court decision in Dred Scott v. Sandford, over 300 enslaved Black people sued for their freedom in Missouri, with roughly half of them prevailing in their petitions. Many of these cases were filed at the Old Courthouse, located at the doorstep of RDM’s St. Louis office.

The petitions were grounded in the “once free, always free” doctrine established in Winny. The case established that when an enslaved person was taken to a free state or territory such as Illinois, that freedom became permanent. The petitioners faced a cumbersome legal process to sue for that freedom, but many persevered, filed suits, and, in some cases, won the freedom to which they were entitled.

The unveiling of the freedom suits memorial coincided with Juneteenth, which commemorates the 1865 announcement of the end of slavery in Texas. Declared a federal holiday in 2021, Juneteenth celebrates not only the emancipation of enslaved Black people but African-American culture as well.

RDM attorney Vincent Gunter successfully filed a motion for summary judgment on behalf of a client at the Jackson County Courthouse in Kansas City, MO. Photo by Cat Craig.

Rasmussen Dickey Moore attorneys, led by member attorney Vincent Gunter, successfully prevailed on a motion for summary judgment on behalf of a client in early June. The case began when Plaintiff filed a negligence claim and a premise liability claim, alleging that exposure to asbestos at a high-rise office building in the late 1970s caused her to develop mesothelioma.

RDM’s client moved for summary judgment, asserting immunity from suit under the workers’ compensation exclusivity doctrine. As part of our client’s argument that Plaintiff’s exclusive remedy was controlled by the Missouri Workers’ Compensation Law, our client produced several insurance policies that provided additional Mesothelioma Benefits Endorsement in order to establish it had the requisite coverage in place as required by the statute.

Plaintiff opposed our client’s motion by filing a series of responses, including a motion to strike the client’s summary judgment motion on the grounds that it did not comply with Rule 74 of the Missouri Rules of Civil Procedure. Plaintiff also argued that our client’s insurance policies are hearsay, and to be admissible, the foundation affidavit authenticating the policies must satisfy Missouri’s business records hearsay exception codified in RSMo. § 490.680.

Relying on CACH, LLC v. Askew, 358 S.W. 58 (Mo. banc 2012), Plaintiff argued that neither RDM’s client nor its insurance agent could authenticate the insurance policies because they were drafted by another company. The Court overruled all of Plaintiff’s arguments and objections.

Regarding Plaintiff’s hearsay argument, the Court held that insurance policies are not hearsay because they are written contracts that memorialize the fact of a legal agreement and, therefore, fall outside the definition of hearsay. The statute Plaintiff relied on is for “business records” that would otherwise be hearsay. The Court explained that if a document is not hearsay, an authentication affidavit does not need to satisfy the requirements of RSMo. § 490.680.

The Court further found that our client’s insurance agent may authenticate the policies because, as he stated in his affidavit and deposition, he has personal knowledge of the policies from his role as our client’s agent in obtaining the policies and advising our client throughout the process.

Plaintiff also challenged the validity of the insurance policies themselves. The Court rejected these arguments and ruled that the undisputed facts showed RDM’s client had a workers’ compensation policy covering claims for enhanced mesothelioma benefits under RSMo. § 287.200.4 during the relevant time period. Accordingly, because Plaintiff was our client’s employee when she claimed exposure to asbestos, and that our client had a policy for enhanced benefits for mesothelioma, our client was immune from civil liability under the workers’ compensation exclusivity doctrine.

Sarra Agha, Law Clerk at Rasmussen Dickey Moore.

Coming off her first year at St. Louis University School of Law, Sarra Agha has joined Rasmussen Dickey Moore as a summer law clerk at our Downtown St. Louis office. Both she and the firm are excited for her first foray into the world of litigation!

After she completed her bachelor’s degree in international business and Middle East studies, Sarra enrolled at SLU’s School of Law to further her studies. During undergrad, Sarra was an active member of Zeta Tau Alpha. In law school, she has joined the Middle Eastern and North African Law Students Association and the Women Law Students Association.

Between undergrad and law school, Sarra spent time as an intern with Hacking Immigration Law helping immigrants who sought asylum in the United States. She also previously spent time as an English tutor with the International Institute of St. Louis.

This summer, Sarra will be focused on researching expert witnesses, reading depositions, and drafting motions. Also during the break, Sarra will have a brief internship with Judge James Dowd of the Missouri Court of Appeals, Eastern District. When she returns to school in the fall, she’s looking forward to participating in moot court and delving further into business and corporate law.

Sarra is a life-long St. Louisan. Away from the classroom and the office, she enjoys cooking, shopping, working out, and spending time with her friends and roommates.

We wish Sarra the best this summer and through her ongoing studies, and we hope to see her join our ranks of talented young litigators in the coming years!

A fingerprint being scanned for security. Illinois' Biometric Information Privacy Act (BIPA) regulates the collection and usage of biometric data by private entities.

The Illinois Supreme Court has answered a long-awaited question regarding the Illinois Biometric Information Privacy Act (BIPA) and its interaction with the state’s workers compensation statute. In McDonald v. Symphony Bronzeville Park, LLC, the Supreme Court addressed a certified question from the Court of Appeals to determine whether the Worker’s Compensation exclusivity provisions bar an employee’s claims filed under BIPA. The Court distinguished those workplace injuries suffered that were subject to the exclusivity provision, reasoning that a BIPA violation “is not the type of injury that categorically fits within the purview of the Compensation Act and is thus not compensable under the Compensation Act.”

In doing so, the Supreme Court removed what had previously been the prevailing defense for employers accused of technical violations of BIPA. The Court stated, “We are cognizant of the substantial consequences the legislature intended as a result of [BIPA] violations. Pursuant to [BIPA], the General Assembly has adopted a strategy to limit the risks posed by the growing use of biometrics by businesses and the difficulty in providing meaningful recourse once a person’s biometric identifiers or biometric information has been compromised.”

This dictum strengthens the recent holdings of Illinois’s Appellate courts, which have weighed in on the BIPA ruling on an expansive definition for when a claim accrues and leaving open the question of how to calculate damages for successive violations. This question may need to be addressed on remand in the McDonald case, which involves the repeated scanning of an employee’s fingerprint to keep track of worked time.

What constitutes biometric information and how does BIPA protect it?

Illinois enacted the Illinois Biometric Information Privacy Act in 2008 to create a private tort action in response to privacy violations related to biometric data. BIPA states a “Biometric Identifier” means a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.

Given the rise of biometric data used across industries such as transportation, finance, hospitality, retail, and education, all businesses must be keenly aware of the requirements under the act. Any private entity which collects biometric information must:

  • Create a publicly available policy on its biometric data practices;
  • Provide disclosures;
  • Obtain releases from individuals for whom biometric identifiers are collected before the collection occurs; and
  • Use a reasonable standard of care based on industry to store, transmit, and protect the information.

Who can make a BIPA claim?

The Illinois Biometric Information Privacy Act is written broadly to protect any individual (consumers, employees, etc.) who might have a biometric identifier collected by a private entity.

Importantly, in a watershed 2019 decision by the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corp., the Court’s unanimous decision settled a circuit split among Illinois appellate courts regarding the pleading standard for demonstrating a claimant was “aggrieved” under the act determining a claimant need not plead actual harm to recover under the statute.

Six Flags had a practice of collecting fingerprints for pass membership to their amusement park but had not complied with the notice and consent provisions of BIPA. The Second District Illinois Appellate Court dismissed the claim given there was no breach and consequently no actual harm demonstrated. However, the Illinois Supreme Court reversed the decision, finding that “aggrieved” under BIPA included technical violations of the statutory requirements because they created substantive rights. 

“Such a characterization, however, misapprehends the nature of the harm our legislature is attempting to combat through this legislation. The Act vests in individuals and customers the right to control their biometric information by requiring notice before collection and giving them the power to say no by withholding consent.”

The Illinois Biometric Information Privacy Act has distinct subparts which could each constitute individual violations:

  • Failing to develop a written policy under 15(a);
  • Failing to provide written notice of collection under 15(b);
  • Profiting from the biometric data under 15(c);
  • Unlawfully disclosing the biometric identifier under 15(d); or
  • Not taking reasonable care in storing, transmitting, or otherwise protecting the information under 15(e).

When does a BIPA claim accrue?

In Watson v. Legacy Healthcare Financial Services, LLC et al., the First District Illinois Appellate Court determined that a claim does not accrue on only the initial capture of a claimant’s biometric data but at the time of each individual capture.

What are the damages in a BIPA claim?

The court in Watson did not address whether each capture represented a separate violation under the Illinois Biometric Information Privacy Act or how multiple captures of biometric data might affect monetary damages under BIPA, which establishes damages in the amount of $1,000 for each negligent violation and up to $5,000 for intentional or reckless violations. A claimant is entitled to seek more if their actual damages would exceed the statutory amount. 

In enacting the law, the Illinois General Assembly expressly noted that “[b]iometrics are unlike other unique identifiers that are used to access finances or other sensitive information. For example, Social Security numbers, when compromised, can be changed. Biometrics, however, are biologically unique to the individual; therefore, once compromised, the individual has no recourse, is at heightened risk for identity theft, and is likely to withdraw from biometric-facilitated transactions.”

Biometric Information Privacy outside of Illinois

Currently, only the states of Arkansas, California, Texas, and Washington have enacted legislation similar to Illinois’ Biometric Information Privacy Act. Additionally, several large cities have adopted their own biometric technology regulations, including New York City, San Francisco, Baltimore, and Portland, Oregon.

Numerous other legislatures, including Missouri, have bills in the works to adopt BIPA-like legislation in the future.

Protect yourself from BIPA claims

Technology evolves, and so does the law. Whether your business is on the cutting edge or keeping up with the times, it’s imperative that you have skilled counsel on your side. The attorneys at Rasmussen Dickey Moore can help your business maintain compliance and stay out of the courtroom or work to extricate you from litigation should it arise. Contact RDM today to protect your business from BIPA claims.