Academic journal article Defense Counsel Journal

Abuse of Power: Disregarding Traditional Legal Principles to Invalidate Tort Reform

Academic journal article Defense Counsel Journal

Abuse of Power: Disregarding Traditional Legal Principles to Invalidate Tort Reform

Article excerpt

Do you have to have an injury before you can challenge the constitutionality of legislation? Not if it's tort reform in Missouri or Ohio

TORT REFORM is or has been on the agenda of most state legislatures in the United States. When legislation is enacted, it is subject to a court challenge for constitutionality, and this has triggered both an external clash between the legislature and the judiciary, as well as internal strife within the judiciary over the proper scope of judicial power. In Ohio and Missouri, for instance, both branches fired their best shots in stubborn attempts to assert their authority. When the dust settled in State ex rel. Ohio Academy of Trial Lawyers v. Sheward1 and Rodriguez v. Suzuki Motor Corp.,2 substantial portions of both states' tort reform statutes were struck down as unconstitutional. Courts had successfully defended their turf-tort law-at least for the time being.3

State legislatures, meanwhile, were left pondering their next move and wondering if the "statutory age"4 was beginning to wane. The judiciary, at least those judges who promote extensive judicial power, had won round one. But the war over judicial power, in the context of tort reform, is only beginning.

Financial responsibility plays an integral role in tort law. Tort reform legislation curbs this responsibility by establishing statutory damage caps, which are direct attacks on the plaintiff bar's financial selfinterests. The conflict between the legislature and plaintiffs' attorneys can be phrased in simple terms. Lawmakers believe in a policy limiting financial punishment of wrongdoers, while contingency fee attorneys want to maximize potential profits. Judges enter the mix because they either believe in the common law principle of expanded liability or of increasing access to the court system.

The Ohio Supreme Court is illustrative of this three-dimensional struggle. Justice Resnick of that court points out in her opinion in Sheward that "for more than a decade, Ohio has been home to an ongoing conflict over the necessity and propriety of transforming the civil justice system." Professor Stephen J. Werber adds that the Ohio Constitution forms the battleground for the war between the legislative and judicial branches of that state.5

The casualties in this war, at a practical level, are the long-standing constitutional and statutory jurisdictional principles of standing and original jurisdiction. At a more theoretical level, the casualty is the separation of powers doctrine. These two casualties represent legal principles that embody the traditional goals of the American legal system and therefore make tort reform an issue of national concern.

In both Sheward and Rodriguez, the Ohio and Missouri supreme courts exercised jurisdiction over constitutional attacks on tort reform despite admitting that the challenging parties did not suffer concrete injuries. Although other states have declared tort reform statutes unconstitutional, they have not inappropriately relaxed standing requirements to do so.6 The Sheward decision also involved an improper recognition of original jurisdiction.

Is the expansive approach to standing simply a means for the judiciary to manipulate the tort reform movement? Are principles of standing and original jurisdiction sufficient checks on the potential for a judiciary abuse of power? Most important, is bending jurisdictional doctrine an inappropriate exercise of judicial power?


A. Injury-in-Fact and Extraordinary Writs

Constitutional challenges to tort reform legislation fall into two distinct categories.

The first consists of parties who are personally affected by the allegedly unconstitutional statute. Courts grant standing in these situations because the litigant has a personal stake in the controversy. The party's clear injury is the reduced damage award that could be rectified by reinstating the original award. …

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