Ohio SC must decide on special vote for tort reform law

John O'Brien Aug. 14, 2007, 1:48pm


COLUMBUS, Ohio - Ohio Secretary of State Jennifer Brunner doesn't think the state's Supreme Court made itself clear enough in a recent pro-business ruling.

The Court decided Aug. 1 that Gov. Ted Strickland's veto of a tort reform law was invalid and ordered Brunner to put it on the books. However, Brunner now wants clarification, specifically if opponents of the law are still allowed to ask voters to overturn it in a special referendum.

Brunner asked the Court Monday if the 90-day time period for a referendum expired while the lawsuit was going on, according to a report by The Associated Press.

"People are calling our office about a referendum, but we don't know what to tell them. The court's decision wasn't clear about that," said Patrick Gallaway, a spokesman for Brunner, according to the report.

The long-awaited 5-2 decision ruled Strickland's January veto of Senate Bill 117 invalid, meaning public nuisance claims may not be used in cases of product liability. The decision should have ended Attorney General Marc Dann's nuisance lawsuit against companies that manufactured lead paint more than 30 years ago.

The opinion, authored by Justice Robert Cupp, settled a dispute between Strickland and the General Assembly, which passed the tort reform law in December while Bob Taft was still Governor. Strickland claimed he still had time to veto the bill, but the General Assembly said the 10-day window was up.

Chief Justice Thomas Moyer and justices Evelyn Lundberg Stratton, Maureen O'Connor and Terrence O'Donnell made up the rest of the majority.

Justices Paul Pfeifer and Judith Ann Lanzinger dissented. Pfeifer's dissenting opinion claimed the majority was ignoring common sense.

"The majority today allows the General Assembly, through the manipulation of its adjournment, to effectively render a governor's veto power a nullity," Pfeifer wrote.

Critics say public nuisance claims are a way around the shortcomings of a products liability case, like the now-expired statute of limitations. Lead paint was outlawed in 1978.

"The defendants have long argued that this distortion of nuisance law - in which you don't have to identify the manufacturer that made the product - is inconsistent with fundamental principles of our legal system," said Bonnie J. Campbell, former Attorney General of Iowa and spokesperson for the Missouri defendants.

Plaintiffs firm Motley Rice is credited with the idea of using a public nuisance claim to sue paint companies and has been successful in each of its battles in Rhode Island, where the first state-powered suit was filed. Similar suits have been rejected in New Jersey, Missouri and Wisconsin.

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