Some legislators, business leaders and insurance-industry executives accuse the Ohio Supreme Court's four-member majority coalition -- justices Alice Resnick, Paul Pfeifer, Andrew Douglas and Francis Sweeney -- of using their authority to advance their political ideologies and of usurping the lawmaking power of the General Assembly.
These same accusers praise the rest of the court -- Chief Justice Thomas Moyer and justices Deborah Cook and Evelyn Lundberg Stratton -- as constitutional constructionists, judges who adhere strictly to the letter of the state constitution.
In next month's election, voters will strengthen, maintain or dismantle the majority coalition. Resnick faces Terrence O'Donnell of the Cuyahoga County Court of Appeals, while Cook battles Tim Black of Hamilton County Municipal Court. O'Donnell generally agrees with the rulings of the court's minority, while Black expresses judicial philosophies in line with the majority bloc.
The Columbus Dispatch has endorsed Cook and O'Donnell and, in doing so, slammed several decisions passed by Resnick, Pfeifer, Douglas and Sweeney as "judicial activism with a messianic and populist bent" that "is seriously undermining faith in the integrity and fairness of the court." (The Cincinnati Enquirer also endorsed O'Donnell.)
But examining records of these controversial decisions yields a dramatically different story.
When an alliance of school districts throughout the state believed the General Assembly had violated the constitution's explicit command to provide "a thorough and efficient system of common schools throughout the state," they filed suit in Perry County. The school districts won, and the state appealed the case, DeRolph v. the State of Ohio, to the Supreme Court.
According to court records, the state and the education-related agencies named as co-defendants agreed with the plaintiffs' assessment of Ohio's education-finance policies.
"Plaintiff and defense witnesses alike testified as to the inadequacies of Ohio's system of school funding and the need for reform," the Supreme Court's decision states. "In fact, defendant State Board of Education has not only advocated comprehensive reform, but has stated the following three goals of such reform: equity, adequacy and reliability of school funding."
The four-member majority concluded that, because the legislature violated the constitutional mandate to provide a thorough and efficient education, the court had the authority to intervene.
The majority then declared that, in order to meet the requirement contained in the constitution, the legislature must, among other things, overhaul the state's education-finance system and provide funding for the construction and maintenance of school buildings.
Because of this decision, billions of dollars will go toward rebuilding Ohio's dilapidated schools, and the state's education budget will increase dramatically as lawmakers realign their priorities and fund the actual cost of educating Ohio's children. The court found legislators were funding education with dollars left over after the rest of the budget was drafted.
In their endorsement, The Dispatch gushed that Cook is "committed to rendering decisions validated by the constitution," but she rendered no such decision in DeRolph. In her dissenting opinion, she waves off the constitution's "thorough and efficient" clause as irrelevant, arguing that requiring lawmakers to adhere to this mandate would be "absurdity." The constitution permits only the citizens of Ohio, not judges, to determine which provisions should be removed.
The majority coalition has also been accused of judicial activism for declaring tort-reform legislation unconstitutional. Once again, examining the case reveals that the legislature, not the court, might have acted inappropriately.
The Ohio Academy of Trial Lawyers filed suit to block tort-reform legislation passed by the 121st General Assembly. One provision of the law created deadlines for the filing of civil lawsuits -- 15 years from the date of manufacture for product-liability claims and six years from the date of treatment for medical-malpractice claims -- no matter when problems became evident to the injured party. Another provision limited punitive damages assessed against corporations to $250,000 and capped medical malpractice damages at $200,000 for all cases not involving death, regardless of the actual damage caused. The law also capped non-economic damages, such as those awarded for pain and suffering, at the greater of $250,000 or three times the economic loss, up to $500,000.
In prior decisions, the court had already struck down such filing deadlines because they violate the constitutionally recognized right to remedy and had found damage caps unconstitutional because they infringe on the right to a trial by jury.
In addition to challenging these Supreme Court rulings, the legislature also usurped judicial power by declaring the legislation constitutional within the text of the law itself. In Ohio, as in all other states, the U.S., and many foreign countries, the judicial branch of the government alone has the power to determine the constitutionality of laws.
As the author of the majority opinion that struck down this tort-reform legislation, Resnick drafted a scholarly yet passionate argument that clearly expressed the court's anger with the legislature.
"The General Assembly has circumvented our mandates, while attempting to establish itself as the final arbiter of the validity of its own legislation," the ruling says. "It has boldly seized the power of constitutional adjudication, appropriated the authority to establish rules of court and overrule judicial declarations of unconstitutionality."
Cook did not draft an opinion but concurred with Moyer's and Lundberg Stratton's dissenting opinions. These opinions argued the Supreme Court did not have jurisdiction, because the case had not been brought by a claimant who had suffered remediable damages and had not wound its way through the lower courts.
The majority believed the magnitude of the legislature's abuses and the harm that would be done to the public if they were forced to wait justified the immediate review of this case.
In a divergence from the majority's defense of judicial authority and the constitution, Moyer's opinion expresses his "fear that today's decision will unnecessarily create tension between this court and the General Assembly," just as he expressed fear the DeRolph decision would create "possible chaos."
The decisions in these two cases clearly demarcate the choice Ohioans face on Nov. 7. We can keep and even strengthen a majority coalition that has protected the constitution from a brazen General Assembly, forced that same legislature to rescue the school system it has neglected for decades and refused to allow lawmakers and their corporate supporters, instead of citizens sitting as jurors, to determine compensation for damages. Or we can assemble a court that dismisses entire provisions of the constitution and allows the legislature to trample on the court's authority.
As we make this decision, it is important to remember that, without strong judicial protection, the legislative branch of government could whittle away the constitution, rendering rights and privileges meaningless.
contact pete shuler: email@example.com