COLUMBUS, Ohio - In handing another win to tort reformers against lead paint litigation, the Ohio Supreme Court on Wednesday finally showed the state's government how to count to 10.
A long-awaited 5-2 decision ruled Gov. Ted 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 end 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.
"We hold that under Section 16, Article II of the Ohio Constitution, the 10-day period for the governor to act upon Am.Sub.S.B. No. 117 began to run on the date that the General Assembly adjourned sine die, which was December 26, 2006," Cupp wrote.
"The time for the governor, therefore, to act upon the bill expired, at the latest, on Saturday, January 6, 2007, and the attempted veto by the governor on Monday, January 8, 2007, was without effect. Consequently, as asserted by relators, Am.Sub.S.B. No. 117 had already become law by the time the secretary of state returned the bill to the governor on January 8, 2007 when that 10-day period started."
Dann congratulated Strickland on the veto in January, when he was also taking office. Wednesday, he wasn't too happy.
"This is a sad day for the people and the ethical businesses of Ohio who have lost the protections afforded by the Consumer Sales Practices Act -- a law that was among the strongest in the nation until the legislature gutted it last year by passing Senate Bill 117," Dann said. "As a result, Ohioans are now more vulnerable than ever to scam artists and schemers. Because of this, businesses that play by the rules will be forced to compete against those who are more than willing to cheat."
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. "The majority defies common sense, the Ohio Constitution, the jurisprudence of the United States Supreme Court and the supreme courts of other states, and this court's own prior 'unmistakably clear' interpretation of the very same constitutional provision that is at issue today. The majority has achieved a new level of judicial activism -- a wholesale rewriting of the Ohio Constitution. And all the General Assembly had to do was ask."
O'Connor responded in a concurring opinion, claiming Pfeifer's dissent is an "improper accusation that the majority has not decided this case of first impression with honesty and integrity.
"The dissent states that our holding in this case was reached in a result-driven process that was started on the day the case was argued and that has been fueled by political considerations since then. Nothing could be farther from the truth."
Lanzinger offered a technical explanation for her dissent.
"Normally, the 10-day period for the governor's review begins at presentment. The specific exception that allows more time for review is if the legislature adjourns sine die after presentment. In that case, the adjournment 'prevents [the bill's] return,' and thus the 10-day period starts again from the date of adjournment.
"Under this interpretation, the governor always has 10 days in which to fully review legislation that is presented to him and is given extra time if the legislature adjourns sine die during his review period. Otherwise, reading the time as relators suggest would mean that a governor will have fewer than 10 days -- if, as in this case, adjournment occurs before presentment."
The case is the latest in a growing line of successes for the paint industry, which has already picked up wins in New Jersey, Missouri and Wisconsin.
"We will use the power we still have under the CSPA to stop fraud, to expose scams and to use both the criminal and civil justice systems to hold those who prey on Ohioans accountable for their actions," Dann said. "The scammers, cheaters and charlatans may think they have scored a victory today, but I want them to know that my office will not leave the people of this state defenseless."