Law And More

Kvetching about that $150,000 OH General Assembly Expenditure

It used to be called "framing."  Now it's called "positioning."  Whatever you call it, Aaron Marshall of THE PLAIN DEALER did it, big time, when he wrote that the Ohio General Assembly's challenge of Governor Strickland's veto of Substitute Senate Bill 117 is going to cost taxpayers at least $150,000. 

See, both the House and the Senate budgeted $75,000 each to compensate their independent counsel Columbus law firm Vorys, Sater, Seymour and Pease.  Because of the GA's conflict with the state's attorney general's office they requested and were granted the right to select their own legal representation.  Oddly, Marshall further kvetches about Vorys' $160 per hour fee.  That's chump change for legal fees.   

Let's reframe the issue: Wasn't it really Governor Strickland who triggered this expenditure when he vetoed a bill that had already become law?  The GA's challenge has two grounds:

• The ten-day window in which the bill could or would not become law.  It was the office of the new OH Attorney General Marc Dann which advised the new administration that it was within the window and could impose a veto. Interestingly, Dann has since blinked.

• The fact that the new Secretary of State Jennifer Brunner returned the bill, which former Governor Bob Taft allowed to become law by not vetoing it, to the new governor.  That bill had been certified by the previous Secretary of State J. Kenneth Blackwell.

If the challenge succeeds and the Strickland veto is declared by the OH Supreme Court as unconstitutional (Article 2, Section 16), then this expenditure could be framed or positioned as an early unnecessary expense incurred by the new Strickland Administration.  Let THE PLAIN DEALER reporters et al. then kvetch about the real spendthrifts.

Hillary Ahead in "Lead Paint" States

Maybe it's coincidence but Hillary is ahead in those hotbeds of lead-paint litigation, Rhode Island and Ohio. 

In RI, the Brown University poll shows she would beat out the Republican candidates if the election were held today. But, since RI is heavily Democratic, this good news shouldn't be taken too seriously.

In OH, which tipped the 2004 election for George W. Bush, Hillary leads her Democratic opponents.  That good news also shouldn't be taken too seriously since the Republicans there - think their fierce challenge to the Democratic Governor's veto of Substitute Senate Bill 117 - know how to organize and get things done.

If Hillary is nominated and then elected, and no no smart money is betting on the latter, she might have the clout to bring common-sense solutions to the lead-paint abatement issue.  A few years ago, she supported tax credits for landlords who make their property lead-safe.  Implementing such a program seems  more doable than the age-old idea of forming partnerships for all the players - former lead paint companies, government, landlords, economic developers - to share the cost of abatement.  In RI, there are already loans for landlords to do this but tax credits might be the  incentive that will get the job done.

NJ Lead-Paint Litigation - Same Old

New Jersey.  That state, along with Ohio, is where some sources claim will be the big action in lead-paint litigation and public-nuisance legislation. And those developments could prove more seminal than what has happened, is happening and might happen in Rhode Island. Therefore, here is a more thorough briefing about the review last November 28th by the NJ Supreme Court (In Re: Lead Paint Litigation, No. 58,531, N.J. Sup).

The defendants, ranging from Sherwin-Williams to American Cyanamid, filed for this review when the NJ Supreme Court Appellate Division reversed  (August 17th) the Middlesex County Superior Court dismissal (2002) of In Re Lead Litigation, A-73-05.  Essentially the issues were the same old same old. 

That same old same old is the defendants' argument that such lawsuits ignore the legal distinctions between product-liability and public nuisance claims.  There was more, of course.  The lead attorney for the defendants Ezra D. Rosenberg (Dechert Price & Rhoades) also claimed that the ruling by the Appellate Division was in violation of the rules of standing in permitting the municipalities to file a complaint for others.  The ruling, Rosenberg also indicated, gutted the requirement that the defendants must have control of the substance which the suit is all about.

The second same old same old is the defendants' contention that there are already laws put in place by the NJ Legislature which provide a comprehensive process for diagnosing and treating lead paint poisoning in children as well as abating the residue of lead paint in NJ's older housing.

As for the plaintiff, it was also plenty of the same old same old.  The lead attorney was Fidelma Fitzpatrick of Motley Rice who also represented the state of RI in lead paint trials I and II.  She argued that the defendants knowingly sold a hazardous product, presenting it as safe. 

What was new was that the NJ Supreme Court Judge Roberto Rivera-Soto asked Fitzpatrick why her complaint hadn't been preempted by product-liability law.  She replied that the defendants had expanded the interpretation of the state's product liability law in order to get under that umbrella.  But that's erroneous, she said, because the case under discussion fits public nuisance issues not product liability ones since the cause of action is abatement of a public nuisance. 

Fitzpatrick then echoed a lot of RI Superior Court Justice Michael Silverstein's instructions to the jury last February in RI lead paint II.  In those instructions he indicated that what was material was that the defendants had created a public nuisance by manufacturing the lead paint.  There need not be evidence that they sold it (in RI) or that they did or did not have control over it.

As in RI, we lead-paint watchers are waiting for a ruling.  Sources close to the New Jersey situation say that work is being done on a bill, similar to OH Substitute Senate 117 and the one vetoed in Wisconsin by Governor Doyle, which would prohibit the application of public nuisance law on what should be handled as product-liability cases.  My hunch is that the public-nuisance train is going to be derailed by state legislatures and by bringing the cases into federal court as Sherwin-Williams did last October.

OH 117 Veto Challenge - Constitutional Face-Off Imminent

Expect a lawsuit very soon.  Sources close to the Ohio 117 veto situation say it's "imminent."

Here are the details. In Ohio, the legislature, dominated by Republicans, is working on the details of a lawsuit challenging the veto of Substitute Senate Bill 117.  That bill, which many assumed became a law when the former Governor Bob Taft did not veto it, would prohibit the extension of the state's public nuisance law to such cases as abating lead paint.  This challenge is proving to be as riveting to lead-paint litigation watchers - attorneys, Wall Street, state government experts, media, chambers of commerce, trade associations - as was and is the landmark Rhode Island lead paint trials I, II and perhaps a III.

Not that taking on a veto is unprecedented.  It isn't.  Today, ASSOCIATED PRESS's Julie Carr Smyth reports that what is so unusual about this challenge to the 117 veto is that three factors "all converged." This particular lawsuit will bring together:

• An adjourning legislature.  After the legislature adjourned for the year, the bill was sent to then-Governor Taft.

• The window for enacting a pending bill.  That window is a period of 10 days, as days are defined in Article 2, Section 16 of the OH constitution.  Section 16 states, "If a bill is not returned by the governor within ten days, Sundays expected, after being presented to him, it becomes law in like manner as if he has signed it ... The governor shall file with the secretary of state every bill not returned to him to the house of origin that becomes law without his signature.  A further complication here is the Secretary of State.  According to the plaintiff, the former Secretary of State J. Kenneth Blackwell did certify that bill as law.  According to the current Secretary of State Jennifer Brunner that certification could be over-rode because, she contends, the 10-window was still open when the new Governor took office.  Brunner returned the bill to the new Governor.

• The new Governor was in office only about 15 hours when he vetoed the bill.  The plaintiff contends that Governor Strickland was given erroneous legal advice regarding his authority to veto the bill.  As this perfect storm has intensified in force, the new chief legal officer OH Attorney General Marc Dann has conceded that there might be ambiguity about the 10-day window and that an investigation should be done.  AG Dann has given the plaintiff permission to use legal counsel which is independent.  Traditionally, lawmakers would have been represented by attorneys belonging the the AG office.

As  AP reporter Symth views it, "The lawsuit, once filed, stands to engage Ohio's three branches of government in a constitutional face-off over a veto scenario lawyers in the state have never seen before." The human face on this challenge is that of OH House Speaker Jon Husted.  His passion seems to blaze brightly during every media interview.

So, who could be in hot water in the new administration? 

• AG Dann.  It was on his watch that the legal advice about the veto was transmitted to the new Governor.

• Secretary of State Brunner.  It was her responsibility to make sure that she was statutorily correct.

• Governor Strickland.  Within 15 hours he, a Democrat, squandered good will with the Republicans.  If his veto is ruled unconstitutional, that night there will be plenty of OH jokes on the late night shows.

  As my sources say: Stay tuned.

"We have nothing to gain," says OH Massillon City Council Member

The Ohio Massillon City Council might turn down the invitation to join in the Canton, OH lawsuit against the former lead-paint manufacturers.  Reporter Benjamin Duer for the REPOSITORY covered the Council meeting in which members debated this issue.  Member Donnie Peters (R-5) noted, "We have nothing to gain."  Another member Ron Mang (D-1) remarked that the whole public nuisance suit was "silly."

This evidence of common sense is a setback for law firm Motley Rice. During the past year, Motley Rice has been herding potential plaintiffs throughout OH, New Jersey and California. 

Brand Ohio & The Schumer Argument

The big bangs usually don't happen directly, do they.  And tort reform doesn't look like it's going to occur by way of a lot of earnest legal experts arguing for a more predictable, fair system. 

Instead what's getting noticed and probably will get the big-bang action is New York Senator Chuck Schumer's very non-legal argument. Schumer's argument is all about 30,000 to 60,000 lost jobs in America's key industry - finance.  It's also about the industry's declining prestige in the world market for capital.

In a very methodical manner, Senator Schumer, along with New York Mayor (and finance type) Bloomberg, commissioned a McKinsey Study about how recent litigation and regulation have affected Wall Street's competitiveness. The results were no surprise. The cover story for THE ECONOMIST (November 25th - December 1st) was: "Wall Street: What Went Wrong." It's also no surprise that the power brokers and influencers are listening.  From THE WALL STREET JOURNAL to the web's bulletin boards, the reaction is intense.  Even former New York Attorney General Eliot Spitzer, who piled on a lot of that litigation and regulation on the securities industry, supports the McKinsey research.

Major reform is in the wings.  The only question is: Will it happen fast enough?  And that's a question other states with their own key industries or the lack of them have to ask.  Ohio is an example of the lack of them.  Brand Ohio sends the message: Old Economy. Old economic development thinking.  Old power plays by old-line politicians. 

That horrific brand identity has gotten even more horrific with its Governor's veto of Substitute Senate bill 117.  If 117 became law the monkey of public nuisance would be taken off business' backs.  The brand wouldn't be fixed but it would be out of the ICU.

Ohio needs its own shrewd, methodical version of Senator Schumer.  And he or she  needs to produce a chilling study done by a top-tier research firm on how the state is economically stuck.  Then it needs a top-tier publicist to get that story out to the right people.  The rest shouldn't be that difficult.   

The Supremes (as in US Supreme Court Justices) on YouTube?

Late Monday afternoon, Senator Arlen Specter introduced a bill for mandatory TV coverage of open sessions at the U.S. Supreme Court.  The exception would be if the majority of Justices ruled against the coverage of any specific session.  The bill did not specify if the mandatory coverage would or would not be live.

What's the odds this will happen? And, if it does, will we be seeing clips on YouTube?

The dust still has to settle on this one but early indications are not bullish. There are concerns about persevering the separation of powers.  Should Congress be moving in TV cameras into the judicial branch of government? 

Also, there is the issue of redundancy. Some claim that transcripts are already available of court sessions.  There's no need for additional coverage by another medium. 

In addition, there's the question of decorum.  Will TV cameras in the US Supreme Court reduce its status to a kind of "Judge Judy?"

Then, of course, there is the slippery slope argument.  Today, TV cameras, tomorrow bloggers.

NJ Supreme Court & Public Nuisance

In re Lead Paint Litigation, A-73-05 was heard by the New Jersey Supreme Court last November.

That lawsuit has a long history.  It was filed in New Jersey by Newark, Camden, Jersey City, Passaic and 22 other city and county governments against eight former lead-paint manufacturers.  They include DuPont, Sherwin-Williams, NL Industries, Millennium Holdings, Atlantic Richfield, American Cyanamid, Cytec Industries and ConAgra Grocery Products Company.  The plaintiffs are being represented by Motley Rice, which also represented the state of Rhode Island in the landmark RI lead paint trials I & II (and if there's a III).

In 2002, reports Charles Toutant in the NEW JERSEY LAW JOURNAL (March 8, 2006), Middlesex County Superior Court dismissed the case.  The reason essentially was that responsibility for abatement is the landlords'. 

In August 2006, the Appellate Devision reinstated the suit.  The reason was the court's interpretation that landlords weren't solely responsible for abatement. The NJ Supreme Court will be hearing the case. 

Sources for the defense predict that the case will collapse right there in the NJ Supreme Court after the ruling is issued. Their arguments focus on many issues associated with the 900-year-old public nuisance law.  But, their best shot seems to concern the sections of the law concerning "public right" and "harm."

As for "public right," defense attorneys assert that this concept in public nuisance has a highly specific meaning of "a right held in common by all members of the general public" which is "collective in nature."  This, they contend, is very different from alleged violations of the rights of a number of individuals.  An actual violation of a public right, they assert, would be air pollution or inaccessibility of a public highway. 

As for "harm," the long and short of this is that a harm by itself ain't enough.  According to defense lawyers, to be liable for a public nuisance the conduct must be wrong or actionable under tort law. 

Tort law specifies that the conduct can only be actionable if it meets the strict liability principles or is in violation of a state statue.  Under strict liability principles, the conduct would have to be unreasonable or intentional and constitute an unusual dangerous activity.

In addition, there's the matter of proximate cause of the harm.  It seems impossible to prove that the defendants were the proximate cause of the harm. 

Whatever happens, though, in the NJ Supreme Court probably won't bring closure to the public nuisance litigation issue.  Weary former lead-paint manufacturers instead are looking to state-level legislation as well as the federal courts to stop this prairie firm of public-nuisance litigation.

Sources tell me that in NJ, just as in Ohio (Substitute Senate Bill 117), there are plans for a bill in the legislature to prohibit the extension of the 900-year-old public nuisance law to what should be product-liability cases. 

Members of state legislatures seem to be becoming sympathetic to such bills, especially since the Attorney General in California piggybacked on this sort of novel legal thinking in September 2006.  The CA AG filed a lawsuit against domestic auto manufacturers. The charge: legal responsibility for global warming.    This provocative and highly controversial stance follows similar kinds of lawsuits against industries ranging from fast food to handguns.  Incidentally, the posse chasing after gun manufacturers was halted by Congressional action, not the courts.

As for taking the struggle to the federal courts, Sherwin-Williams did that in Mississippi and the litigation blew away.  Last October, in what the media describes as a pre-emptive move, Sherwin-Williams filed a complaint in Columbus in federal court against cities in OH which were considering suing it or had already sued it. 

It would be interesting to ask the presidential candidates, particularly since so many of them are attorneys, how they perceive this ten-year run of public-nuisance litigation.

OH 117 - Update 1/29

The fierce battle against Ohio Governor Ted Strickland's veto of Substitute Senate Bill 117 hasn't lost any of its momentum, at least in spirit.  Action, though, is still on hold.

Sources close to the OH situation tell me that OH House Speaker Jon Husted and OH Senate President Bill Harris intend to formally challenge the veto.  One of the steps they have already taken is to jointly retain the Vorys law firm as their special counsel. 

Those sources make this plea:

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Parties interested in being supportive of challenging the 117 veto are asked to talk this up with influentials, especially hands-on policy makers, the media, and everyone on your supply chain. The stakes are huge for Ohio and for your particular business.

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New Jersey, Public Nuisance, Big Pharma

Could we lead-paint watchers be shifting our attention to New Jersey?  A source says yes. 

And this source may be on the money.  New Jersey, as we all know, remains Industrial-Age.  There are many manufacturers based there, including Big Pharma.  So, business leaders in New Jersey have plenty at stake if the public-nuisance litigation focused for now on the former lead paint industry is eventually applied to their operations. 

No newsflash, plaintiff law firm Motley Rice has been emboldened by its victory last February in the landmark Rhode Island lead paint trial.  The verdict is being appealed.  Defense motions, which were heard by Judge Michael Silverstein last August 30-31, request dismissal or a new trial.  We lead-paint watchers have been waiting nearly five months for Judge Silverstein's ruling.

Whatever. Motley Rice flexed its muscles, in Ohio, and here in New Jersey.  As Charles Toutant reports in THE NEW JERSEY LAW JOURNAL (March 8, 2006), Motley Rice represents Newark, Camden, Jersey City (my home town), Passaic and 22 other city and county governments.  The suit is called In re Lead Paint Litigation, A-73-05. The suit has a long history.  In 2002, says Toutant, the Superior Court in Middlesex County dismissed it.  The ruling indicated that local government action precluded the Lead Paint Statue which, to make a long story short, puts the burden for abatement on landlords in rental property.

Last August, the Appellate Division brought the suit back to life.  It ruled that the thrust of the statue did not restrict abatement options only to landlord action.  The case was scheduled to be re-argued by the New Jersey Supreme Court but that hasn't happened yet, as far as I know. (If readers know differently, please bring us up to date mgenova981@aol.com)

Big Pharma sees the implications of this sort of lawsuit.  Some of its big guns in New Jersey  joined in filing an amicus brief.  They argue on behalf of the predictability of how things are supposed to go under the state's Product Liability Act and the exceptions to the act which have become statutory law.

When the New Jersey gun industry felt likewise threatened by the tenacles of public-nuisance litigation it sought and got relief from Congress in 2005.  Clearly, this public-nuisance train probably will be derailed only by state and federal legislative action [that's why the OH battle against the 117 veto is key] and by bringing the matter to federal court [as has Sherwin-Williams in OH). 

Playing it out in state-level courts seems to be a must-do with no resolution.  In the RI lead paint situation, expect to see the matter in various courts forever but not a dime paid out in abatement costs. Taking this litigation route wasn't efficient for local and state government which wanted/needed funding for lead-paint abatement.