Abuse of power: disregarding traditional legal principles to invalidate tort reform.

• Author: Loeb, Basil M.

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. Sheward(1) 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 self-interests. 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?

STANDING

1. 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.

   The second category, far less frequent than the first, includes parties who at the time of the claim have not suffered a concrete injury from the allegedly unconstitutional statute. This category typically involves a third party seeking a writ of mandamus or writ of prohibition challenging the constitutionality of one or more statutes. This type of action will generally be brought by a large group of people who contend that the issue is sufficiently important for the court to grant jurisdiction.

2. Requirements

   Rodriguez and Sheward are dangerous precedents in that their attenuated requirements of standing have the potential to encourage judicial abuse of power, trigger a flood of litigation and severely weaken state legislatures. There are fundamental discrepancies between federal and state standing policies, and the relaxed standing policies in Ohio and Missouri are problematic.

   1. Federal

      U.S. federal courts employ the standing principles of the case or controversy requirement of Article III of the U.S. Constitution.(7) Courts also incorporate prudential standing requirements to supplement the constitutional principles. Standing is a mandatory prerequisite to the exercise of jurisdiction in federal court.

      The constitutional requirements are binding on all federal courts. First, the litigant must suffer an injury-in-fact that is concrete and particularized.(8) The injury must be "actual or imminent."(9) If an injury has not yet become sufficiently concrete or is not readily imminent, the issue is not ripe for judicial review. Prospective litigants cannot merely show that they suffered "in some indefinite way in common with people generally."(10) Second, there must be a causal connection between the injury and the conduct alleged to be improper.(11) Third, it must be likely that the litigant's injury will be redressed by a favorable decision.(12) Finally, the issue must be ripe and not moot. If a statute has not yet harmed a party but may do so in the future, the case is not ripe for judicial review. If a party has been harmed but has been redressed for the injury, the case is moot.(13)

      Prudential standing requirements include court rules barring people from raising claims of third parties,(14) precluding parties from litigating "generalized grievances"(15) and requiring that the injury fall within the "zone of interest" intended by the legislature.(16)

   2. Ohio

      According to Consumers League of Ohio v. Ratchford, standing in Ohio is a common law doctrine with a three-part test similar to the federal standard: (1) the litigant has suffered or will suffer a specific injury, not abstract or suspected; (2) the injury resulted from the action or inaction being challenged; and (3) the injury is likely to be redressed if the court invalidates the action or inaction being challenged.(17)

      For an association to have standing, it must establish that its members have suffered an actual injury-in-fact. Ohio case law also mandates that the injury is individual.(18) The Ohio Supreme Court in State ex rel. Masterson v. Ohio State Racing Commission patterned this requirement on the federal standard when it stated that private citizens "may not restrain official acts when they fail to allege and prove damage to themselves different in character from that sustained by the public generally."(19) Another Ohio decision, State ex rel. Dallman v. Court of Common Pleas, also followed federal standing doctrine.(20)

   3. Missouri

      In Missouri, "not just anyone has standing to attack the constitutionality of a statute." The rationale behind the standing requirement is to assure there is a sufficient controversy between parties so the case can be adequately presented to the court.(21) Moreover, "a litigant must himself be hurt by the unconstitutional exercise of power before he may be heard to complain."(22)

      At a more general level, litigants in Missouri courts must be "adversely affected by the statute in question."(23) Another Missouri court, adopting language from the federal courts, noted that in order to invoke the court's jurisdiction, the party must allege "such a personal stake in the outcome of the controversy."(24)

   4. The Differences

      The main difference between the federal standing requirements and the standing doctrines of Ohio and Missouri is that standing in federal court is governed by the case and controversy provision of Article III of the federal Constitution.(25) Standing is not a constitutional requirement for jurisdiction in Ohio or Missouri.(26) Federal courts concede that the federal...