Tuesday, November 14, 2017

Chancellor Kyle Splits the Baby in the Opioid-Suit Dispute

Temporary injunction upholds mayoral authority over legal actions but leaves Commission's Circuit Court suit intact, pending possible agreement.

Posted By on Tue, Nov 14, 2017 at 4:36 PM

click to enlarge Smiles from the Commission's side of the dispute indicated at least some satisfaction with Chancellor Kyle's even-handed ruling. - JB
  • JB
  • Smiles from the Commission's side of the dispute indicated at least some satisfaction with Chancellor Kyle's even-handed ruling.

Asked to rule on the dispute between two branches of county government on a dispute involving authority to sue regarding opioid damages, Chancellor Jim Kyle took a  leaf from the Biblical account of King Solomon, After hearing out legal pleading on Tuesday  for the Shelby County administration of Mayor Mark Luttrell and opposing testimony offering the County Commission's case, Kyle split the baby neatly.

And, unlike the  account in the Bible, both parties got some of what they wanted, and neither complained.

Kirk Caraway, acting as attorney for the county administration, sought a restraining order and injunction against a suit — contracted for by County Commission chair Heidi Shafer, supported by a Commission majority, and filed in Circuit court — that sought damages against various principals (including physicians, manufacturers, pharmacists, and others) involved in the distribution of opioids in Shelby County, on account of the resulting ravages of addiction in the population.

Allan Wade and Herman Morris, attorneys for the County Commission and the legal firms hired by Shafer et al., respectively, had offered in their turn two motions of dismissal of the administration's request for specific punitive and restrictive actions against the Commissioners..

And, in between debating those precise points of difference, the opposing sides essentially made competing cases for and against the right of Shafer and the Commission to file their action independently of consent and oversight from the administration via the County Attorney's office.

After an hour and a half of arguments back and forth, Kyle withdrew to his chambers and emerged some ten minutes later with a ruling. As indicated, there was something in it for both sides.

The Chancellor declined to cross jurisdictional lines and intervene against the Commission's suit, filed in Circuit Court by the national firm of Napoli Shkolnick and associated local attorneys, including lawyer Julian Bolton, who serves as the Commission's policy advisor but is actively involved with as an associate of the other litigators.

Kyle also took under advisement the two motions for dismissal filed by Wade and Morris. And he offered the opinion that there seemed to be agreement between the contending parties that legal action against distributors of opioids and that time was of the essence in proceeding on the matter.

In that sense, Kyle ruled on behalf of the Commission's argument that a "public health crisis" existed. But on the matter of legal authority to pursue damages, he sided with the administration, agreeing that the county charter categorically and unmistakably restricted the right of legal action to the executive branch, allowing legal activity by the legislative branch only in support of legislative ends.

Having found on that count for the administration, which had argued that a "constitutional crisis" existed, Kyle granted a temporary injunction against the commission's immediate right to proceed independently with the Circuit Court suit. But he noted that Luttrell had responded to the Commission's action with a statement that the administration had  itself  been on course to proceed by the end of the year with some legal action against distributors of opioids.

Kyle therefore limited the injunction period to the end of 2017, acknowledging the administration's authority over lawsuits but giving it time to decide whether to join in on the Circuit Court suit. Meanwhile he suggested from the bench, as he had previously in separate discussions with the parties, that the contending parties consult as to the possibility of joint action.

Thereby was the baby split, still alive and potentially able to be conjoined again via an agreement between the administration and the Commission. Should that happen, the Commission would have in effect forced the administration's hand in expedited action against the purveyors of opioids. Or at least that's how various Commissioners in attendance tended to view the outcome.



click to enlarge Smiles from the Commission's side of the dispute indicated at least some satisfaction with Chancellor Kyle's even-handed ruling. - JB
  • JB
  • Smiles from the Commission's side of the dispute indicated at least some satisfaction with Chancellor Kyle's even-handed ruling.

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