Separation Anxiety: Courts vs. Legislatures

By Allen, Anne B. | Risk Management, May 1998 | Go to article overview

Separation Anxiety: Courts vs. Legislatures


Allen, Anne B., Risk Management


Are judges usurping the role of legislators? In a number of states, some may be trying to. During a recent presentation to the American Tort Reform Association, Victor Schwartz, a products liability expert and partner with the Washington, D.C. firm of Crowell & Moring, commented that about 95 percent of the law in this country is being made not in legislatures, but in courts. And legal challenges to tort reform statutes in Illinois and Ohio appear to blur the lines that are supposed to separate the powers of the executive, judicial and legislative branches of government.

A number of courts have been active in statutory areas besides tort reform, perhaps most notably workers' compensation. We have seen workers' compensation decisions stretch legislative intent and threaten the system's exclusivity of remedy in decisions such as New York's Dole v. Dow. A recent attempt to overturn workers' compensation reform in Pennsylvania was, luckily, unsuccessful. In a creative approach, the Pennsylvania AFL-CIO filed a challenge not to the reform law, but to the process by which it was enacted.

Ironically, in an Illinois case, 1995's landmark tort reform statute was ruled unconstitutional because it violated the separation of powers doctrine. In Best v. Taylor Machine Works, the court held that the law's $500,000 cap on compensatory noneconomic damages was unconstitutional because it discriminated against seriously injured plaintiffs and infringed on the judiciary's role in determining damages. The court also held other portions of the law unconstitutional, including provisions that replaced joint and several liability with proportional liability and required plaintiffs to disclose medical information. The court did not reach other sections of the law, but all the elements of the statute are so interrelated that the entire law was rendered invalid.

While courts may have the biggest impact on the laws under which RIMS members conduct business, they are also the most difficult branch in which to effect change. Justices are often appointed; only in a few states, such as Alabama and Texas, are they elected by popular vote. More often, state judges are subject to merit retention elections. Under this approach, judges are initially appointed by the executive branch and then, after a certain term, voters cast ballots on whether or not the judges should stay on the bench.

In Ohio and Texas, however, unique programs have been launched to give citizens a more direct voice in the makeup of their courts. Last year, RIMS announced to its members the new CourtWatch program, sponsored by the Ohio Alliance for Civil Justice (OACJ).

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