Ohio SC paves way for referendum on tort reform law

John O'Brien Sep. 4, 2007, 1:23pm



COLUMBUS, Ohio - The future of Ohio's most debated tort reform law appears to be in the hands of its citizens.

By a 4-3 vote Friday, the state's Supreme Court authorized the organization of a referendum of Senate Bill 117, which prevents claims of public nuisance from being used in cases of product liability. The issue has affected several paint companies that have been sued for manufacturing lead paint before it was outlawed in 1978.

Public nuisance claims are seen as a way around the defenses those companies could use in a products liability case. On Aug. 1, the Supreme Court struck down the attempted veto of Senate Bill 117 by Gov. Ted Strickland with a 5-2 vote, a move considered a victory for the business world.

The case was a dispute between Strickland and the General Assembly, which passed the tort reform law in December while Taft was still Governor.

Taft did not sign or veto the bill during a 10-day period, effectively placing the bill into law. Strickland and Dann thought the new Governor had one more day to veto it, but the Supreme Court said he did not.

The decision followed similar victories in the Supreme Courts of Missouri, New Jersey and Wisconsin, while Rhode Island will soon hear a case backed by Attorney General Patrick Lynch.

After Ohio's decision, Secretary of State Jennifer Brunner asked how it applied to the creation of a special referendum. Attorney General Marc Dann is considering a state-backed public nuisance lawsuit against several paint companies.

The Court on Friday decided that a 90-day period during which signatures can be taken for a petition with the intent of organizing a referendum should have begun on Aug. 1 instead of earlier this year.

"(W)e deemed the law to be effective 90 days after it was originally filed in the secretary of state's office by Governor Bob Taft, i.e., April 5, 2007." the Court wrote. "Upon reconsideration, though, the Court found that this ruling unintentionally infringed upon the citizens' constitutional right to referendum, which it stated is 'of paramount importance.'"

Chief Justice Thomas Moyer and justices Evelyn Lundberg Stratton and Maureen O'Connor joined in the majority opinion. Justice Judith Ann Lanzinger concurred in judgment only.

Lanzinger was one of the two dissenters in the original decision, claiming Strickland's veto should have been valid. Justice Paul Pfeifer, who dissented in this case only because he thinks the 90-day period should have started at an even later date than Aug. 1, was the other dissenter in the first case.

Justice Terrence O'Donnell dissented, saying the decision goes against the Court's history of barring advisory opinions because it was based on a legal question posed on the potential of a petition, not on the receipt of an actual petition.

Justice Robert Cupp, who authored the original opinion, joined O'Donnell.

"A majority of this court, in pursuit of the laudable goal of preserving a clear referendum opportunity unobscured by the cloud of litigation, creates a mechanism for delaying the constitutionally established effective date of a law in this 'unique case,'" Cupp wrote.

"To accomplish this result, the court majority inserts into the Ohio Constitution what is, in effect, a retroactive stay: a remedy that is previously unknown to the law. However desirable an extension of time for a referendum in this case may be, it has no authorization in the text of the Constitution, and, in fact, contradicts it."

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.

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