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Capitol Comment

    Capitol Comment 251 - Rapid-Fire Assault on the Separation of Powers

    09/09/1999

    Quietly and without much fanfare, state supreme courts across the nation are subtly taking powers from state legislatures. Traditionally, state legislatures, which are most accountable to the electorate, pass laws and state supreme courts, which are less accountable, interpret these laws. For years state supreme courts have exercised "judicial restraint;" i.e., even if the court thought the legislature created bad policy, the separation of powers doctrine mandated that the court defer to the legislature’s judgment.

    Many would argue that creating a law that provides an incentive for attorneys to leave the vastly over-populated field of personal injury law is a positive policy initiative that the legislature should pursue.

    This summer, the centuries-old doctrine of separation of powers is under attack.1 On August 16, the Ohio Supreme Court struck down an entire package of laws designed to curb frivolous lawsuits. The court found that the Ohio Legislature had over-stepped its bounds by creating laws addressing what happens in the courts, thereby violating the separation powers and the one-subject provision of the Ohio Constitution.

    What’s most interesting about the Ohio case is the Supreme Court’s willingness to issue a ruling even though the law injured no one. Typically, in order for a court to hear a case, the plaintiff must show a specific, individualized injury. In Ohio before the law even took effect, the Academy of Trial Lawyers, mostly made up of personal injury lawyers like those who advertise on television, filed suit arguing that the law was so unfair, it would force lawyers to abandon personal injury law. This abandonment, the lawyers argued, created the probability of a drop in the Academy’s membership.

    Many would argue that creating a law that provides an incentive for attorneys to leave the vastly over-populated field of personal injury law is a positive policy initiative that the Legislature should pursue. But rather than defer to the Legislature’s judgment, the Ohio Supreme Court followed its brethren’s lead in 89 previous cases and substituted the Supreme Court’s judgment for the Legislature’s.

    Such steps by state supreme courts are not only unconstitutional, but are also bad public policy. Victor Schwartz, civil justice reform expert and author of several law school text books, argues that when legislatures pass public policy, hundreds of people have input on the process.2 On the other hand, when courts make policy, they hear from two individuals – defense and plaintiff’s counsels. Each side has only twenty minutes to make their case, after which a handful of justices retire to make their decision.

    Which process affords greater opportunity for public opinion? Which process is subject to more media scrutiny? It’s clear that the legislative process affords the most opportunity for the public to express their opinion and hold their legislators accountable. The judicial process provides little opportunity for the public to make their voice heard.

    It is for this reason that all states created a tripartite form of government. The legislature is best suited to legislate with the concerns of the electorate in mind. The judicial branch is best suited to interpret those legislative policy initiatives and apply them to individualized cases.

    Yet state supreme courts across the nation continue to ignore this axiom, striking down civil justice reforms 90 times since 1983. This trend will most likely continue as trial lawyers continue to give millions of dollars to state supreme court judges. Why waste time trying to influence an entire legislature and governor when all the trial lawyers need to do is focus on just a handful of supreme court justices?

    The trial lawyers have now set a precedent of using state supreme courts to kill any law adverse to their interests. The public has little recourse. State supreme court justices are not subjected to voter scrutiny as often as legislators. Moreover, most of the public is unaware of what transpires at the court. We need to save our legal system from exploitation by an elite group of greedy trial lawyers.

    The United States Congress has the power to stop these state supreme court justices from usurping the legislature’s power to create civil justice reform laws. If Congress passes comprehensive civil justice reforms, the trial lawyers can only appeal to the United States Supreme Court, a court that has a history of deferring to Congress on most economic issues.

    Until Congress acts, it is up to the voters to closely watch their own state supreme courts. Perhaps if voters start paying attention to their state supreme courts, justices will start abiding by their constitutions rather than exploiting them.

    1On July 15, the Oregon Supreme Court struck down a law that tried to reign in frivolous lawsuits by limiting non-economic damages (such as "pain and suffering") to $500,000. The Oregon Court found that such a law violated the right to jury trial provision of the Oregon Constitution. On July 8, the Indiana Supreme Court struck down a two-year statute of limitations law because it felt the law violated the privileges and immunities clause and the open courts provision of the Indiana Constitution.

    2Victor Schwartz, Speech before the American Legislative Exchange Council, August 1999.