Wednesday, March 29, 2000
Tort reform on lawmakers' agenda
Start with court, pro side suggests
BY SPENCER HUNT
Enquirer Columbus Bureau
COLUMBUS — If Ohio Lawmakers want to revive an effort to place legal limits and caps on expensive lawsuits, they should first tell the Ohio Supreme Court to back off.
That's what Victor Schwartz, a former acting law school dean for the University of Cincinnati, plans to tell legislators who attend a special Statehouse briefing on court issues today.
As the general counsel for the American Tort Reform Association, Mr. Schwartz is a leader in a national effort to curb the multimillion dollar awards businesses sometimes pay in liability and injury lawsuits.
A law the Ohio General Assembly passed in 1995 created deadlines for filing lawsuits and put limits on how much money plaintiffs could collect. The Ohio Supreme Court struck down the law last year in a 4-3 ruling.
As lawmakers consider passing a new lawsuit reform measure, Mr. Schwartz suggests they first pass a law that simply reminds the high court of the separation of power between the legislative and judicial branches.
“Every seventh-grade student knows it's the legislature's job to make the laws and it's the court's duty to interpret them,” he said.
Mr. Schwartz says the Supreme Court violated that basic rule of government when it declared Ohio's tort reform law unconstitutional. He said the high court set itself up as the only body that can make laws concerning lawsuits.
A Separation of Powers Act, he said, would show the high court that it cannot craft laws from the bench.
But a majority of the Supreme Court clearly saw things the other way around. In their August decision, four of the seven justices said the General Assembly overstepped its bounds because it tried to restrict the way the courts operate.
The tort reform law capped most noneconomic damages at $500,000 and punitive damages at $250,000 or three times compensatory damages, whichever was greater. Punitive damages are awarded to punish a defendant's misconduct.
The law also put a six-year limit on the filing of medical and professional malpractice suits and a 15-year limit on many other kinds of lawsuits.
The co-host of today's seminar, State Rep. Dale Van Vyven, R-Sharonville, said he thinks Mr. Schwartz's idea should be considered. He hopes to help pass a lawsuit reform bill next year.
“If it comes from Mr. Schwartz, I think the (legislative) leaders will take a look at it,” Mr. Van Vyven said.
House Speaker Jo Ann Davidson, R-Reynoldsburg, was much less supportive. She said no tort reform measure will advance in the Legislature unless voters elect at least one new justice from two contested high court races this November.
In one of those two races, Justice Alice Robie Resnick, a Democrat, faces Terrence O'Donnell, a Republican judge on the 8th Ohio District Court of Appeals. Justice Resnick wrote the opinion that cast out Ohio's lawsuit reforms, and that has inspired Republican Party leaders and business groups to target her for defeat.
“I think this court has already spoken,” Ms. Davidson said. “We're not going to go through an exercise in futility.”
Mr. Schwartz also admits a Separation of Powers Act may not actually change anything, because the justices have the power to interpret how the law applies to them.
“It's another way of getting at this issue that's better than simply passing another tort reform,” he said.
Mr. Schwartz will share his speaking duties with the Supreme Court's chief justice, Thomas J. Moyer. The state's top jurist was one of the three justices who disputed the high court majority's opinion.
Although he agrees with Mr. Schwartz that the Supreme Court should not have thrown out the law, Justice Moyer said he won't offer lawmakers any advice on how to pass a new one. Doing so would break an ethical rule barring judges from offering opinions on issues that could come before their courts.
“I'm not going to project what the court might do on pending legislation,” he said.
Justice Moyer said he will only talk about the court's decision, what it meant and why he objected to it.
“It will be very limited,” he said. “I think my part would be rather dull.”
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