Sunday, August 22, 1999
Ohio justices clash with gusto
No holds barred on state court
BY MICHAEL HAWTHORNE
Enquirer Columbus Bureau
COLUMBUS — Judges aren't supposed to act like this.
With a scathing opinion condemning state lawmakers and fellow justices who opposed the majority, the Ohio Supreme Court split 4-3 last week on a landmark decision striking down a 1997 law that limited Ohioans' ability to sue for inju ries.
But the caustic tone of the Ohio decision and the accompanying dissents — an intellectual equivalent of taunts exchanged on an elementary school playground — has court watchers scratching their heads again about seven justices known more for their caution and general deference to legislators.
The court split the same way two years ago when it handed down another landmark decision striking down the way Ohio pays for public schools. That decision still is reverberating among lawmakers facing the politically tricky task of revamping the system.
“It's one thing to have differences of opinion. It's another to have really heated differences come out,” said David Goldberger, an expert on con stitutional law at Ohio State University. “This is one of the byproducts of having an elected judiciary. They feel a need to take positions that the electorate understands.”
Unlike U.S. Supreme Court justices, whom the president nominates and the Senate confirms for life, Ohio Supreme Court justices are elected. The races are nonpartisan but the political parties recruit and promote candidates.
This isn't the first time the
justices have been embroiled in personal disputes, though occasional bursts of animosity usually haven't flared up in the opinions they write.
Justice Andrew Douglas, for instance, accused Chief Justice Thomas J. Moyer last year of contributing to his mild heart attack by ordering an investigation into ethics complaints about Justice Douglas. A three-judge panel later cleared Justice Douglas of charges that he had pressured a judge to dismiss a special prosecutor investigating a Youngstown-area corruption scandal.
Not since two law clerks had to break up a 1991 fight between Justice Douglas and former Justice Craig Wright had the court received so much negative publicity.
Chief Justice Moyer, a Republican, tried to downplay the implications of the tort reform fracas, even though his dissenting opinion lamented it could “unnecessarily create tension between this court and the General Assembly.”
He noted that when the court is in session, he has dinner each night with two justices who were on opposite sides of the tort reform decision: Democratic Justice Francis Sweeney and Republican Justice Paul E. Pfeifer. Justice Deborah Cook, a Republican who joined Chief Justice Moyer in the dissenting opinion, usually joins them.
“We may have strong arguments in the afternoon,” Chief Justice Moyer said. “But we greatly enjoy each other's company in the evening, when the conversation is about anything but work. I would expect us to continue to do that.”
Blistering dissent
Strong arguments were on display last week when Justice Alice Robie Resnick, a Democrat who wrote the tort reform opinion, declared the Republican-controlled General Assembly had overstepped its authority three years ago by approving sweeping limits on liability lawsuits.
The majority opinion also concluded the law violated a provision of the Ohio Constitution that prohibits lawmakers from rolling unrelated ideas into a single bill.
“It marks the first time in modern history that the General Assembly has openly challenged this court's authority to prescribe rules governing the courts of Ohio and to render definitive interpretations of the Ohio Constitution binding upon other branches,” Justice Resnick wrote.
In a sign of how intense the debate raged, she went to the extent of writing an “Anatomy of the Dissents,” attacking the minority for mischaracterizing the majority opinion's findings and for selectively citing portions of the law “while ignoring its overall tenor and content.”
Labor leaders, who joined trial attorneys in challenging the tort reform law, pledged to use Justice Cook's vote favoring the minority dissent against her in next year's elections.
Three dissenting justices, led by Chief Justice Moyer, filed an equally blistering response accusing their colleagues of overstepping their own authority. They also took issue with the court's decision to hear the case even though it didn't involve an injured party whose complaint had wound its way up through the judicial system.
The dissenting opinion echoed comments from business and insurance groups that vowed to block Justice Resnick from winning a third six-year term next year.
“In arriving at these conclusions the majority has chosen, unnecessarily, to construe the actions and language of the General Assembly in a most negative light,” Chief Justice Moyer wrote. “It is difficult to see how the majority's rhetoric will result in anything but detriment to the citizens of Ohio.”
While nominally led 5-2 by Republicans, the tort-reform decision provided another example of the court's label-busting split on opinions regarding labor laws and civil lawsuits.
The three Republican justices who joined the dissent — Chief Justice Moyer, Justice Cook and Justice Evelyn Stratton — are conservative and generally side with businesses and insurance companies.
They get the bulk of their campaign contributions from those groups. Business and insurance interests, for instance, organized an aggressive independent expenditure campaign on Justice Stratton's behalf in 1996 that skirted spending limits on judicial campaigns.
Justices Resnick and Sweeney are Democrats who draw most of their support from labor unions, and as a result are considered more liberal and more likely to support labor and plaintiff complaints.
Often predictable
The Republican mavericks are Justice Douglas and Justice Pfeifer. Some Republicans don't trust Justice Douglas because of his longtime political support from organized labor. Justice Pfeifer, considered the swing vote in the school-funding decision, is openly despised by some GOP leaders for his vote in that case and for his ties to trial attorneys.
Despite strong opposition from business and insurance interests who supported his Democratic opponent, Justice Pfeifer easily won another term last year.
“Part of the blistering tone you see in the tort decision reflects the frustration of justices forced to clean up the mess knowingly left by the legislature working on behalf of those groups,” said Kevin O'Neill, a professor at the Cleveland-Marshall School of Law.
In some other areas of the law, the court's outcomes also are fairly predictable.
The justices have established themselves as national leaders with a series of decisions that strengthened and focused Ohio's open-records law. On most criminal-justice issues, the court is conservative, particularly in its staunch defense of the state's death-penalty law.
Earlier this year, the court voted unanimously to clear the way for death-row inmate Wilford Lee Berry Jr. to become the first person executed in Ohio since 1963.
“Conservatives may view this court as liberal on economic issues, but they are quite conservative when it comes to law-and-order cases,” said Benson Wolman, a Columbus lawyer, longtime court watcher and former executive director of the American Civil Liberties Union of Ohio.
Each decision is rendered after the justices read reams of legal briefs and listen to oral arguments, after which they walk into a nearby conference room to debate the case.
Starting with the most junior justice, the court then takes a voice vote. To decide who will write each decision, the justices roll out plastic- numbered tokens from a narrow-necked leather bottle. The justice in the majority whose token appears writes the lead opinion.
“It would surely be disingenuous to assert that the philosophy of various members of the Ohio Supreme Court is not the product of their life experience and background,” former Justice Wright wrote in a 1997 article published by the Cleveland State Law Review.
In interviews last week, Chief Justice Moyer and Justice Pfeifer agreed the tort-reform and school-funding decisions displayed fundamental differences about how the constitution should be interpreted.
“I generally defer to the General Assembly when I can,” Chief Justice Moyer said. “The legislature at least in theory is elected to represent the will of the people. We need to respect that.”
Victor Schwartz, general counsel of the pro-business American Tort Reform Association, was more blunt about the majority decision in the tort case.
“This court completely disemboweled the fundamental principles of constitutional law,” said Mr. Schwartz, former acting dean of the University of Cincinnati law school. “Their decision opens up every other law to challenge even though nobody has been harmed.”
On school funding, the court found the General Assembly had failed to meet its constitutional obligation for a “thorough and efficient” system by allowing vast disparities between rich and poor schools that depend on local property taxes for much of their revenue.
The tort reform law, Justice Pfeifer said, ignored previous decisions that struck down similar laws as unconstitutional violations of the right to a jury trial.
“The legislature had plenty of warnings from the Legislative Service Commission (a non-partisan bill-writing agency) that this was unconstitutional, but they chose to send it up anyway,” Justice Pfeifer said.
“If you really get down to what our critics are saying, they're saying they would like to suspend that pesky constitution.”
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