Copyright 1999 Plain Dealer Publishing Co.
The
Plain Dealer
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September 5, 1999 Sunday, FINAL / ALL
SECTION: FORUM OPINION & IDEAS; Pg. 4D
LENGTH: 612 words
HEADLINE:
WEIGHING HIGH COURT'S;
DECISION ON TORT REFORM
BODY:
Tom Suddes' historical excursion to Ohio's
1851 Constitutional Convention to rebut the reasoning of the Supreme Court's
invalidation of the 1997 Tort Reform Act was necessary but far from sufficient
("Tort law ruling is right - for wrong reasons," Aug. 18).
Of course, it
is true that interpretations can yield any view the interpreter holds
personally. Butwhat's new about that? Right now, the national debate on gun
control revolves around the Second Amendment's use of "people" - is it singular
or plural? The choice dictates whether individuals or only the military can bear
arms. Ultimately, as with our tort-reform law, the interpretation will spring
from personal predilection, not from the law, and that is precisely the point
that Suddes misses. Whether it's tort reform, gun control or workers'
compensation, the right choices depend on politics, not the law. And, decisions
in Ohio or Washington mean that the law cannot be predicted until the next
election takes place, including the solemn ceremony of GOP and Democratic
presidents making judges out of their philosophical soulmates.
Here in
Ohio, no lawyer will be certain of the "law" of torts until after redistricting
and the next election. With a single shift to the right, what was anathema
yesterday will become the rule of law tomorrow.
Oliver Wendell Holmes
memorably defined "law" as "what the courts will do in fact and nothing more
pretentious." He also noted that predictability was for the bad man, not the
good one, who would not need the strictures of the law.
What Holmes
missed, like Suddes, is that the bad man is not only in the street. He has to be
watched carefully in the legislature and, unfortunately, in the next election.
HAROLD TICKTIN
Cleveland
Ticktin is an attorney with
Ticktin, Baron, and Koepper & Co.
The Ohio Supreme Court decision
voiding the General Assembly's most recent effort at tort reform is not
surprising. A strong argument can be made that the statute violated the
constitutional mandate that legislation be limited to a single subject.
The decision, however, went well beyond the application of this
recognized principle of constitutional law to effectively throw a gauntlet in
the face of the General Assembly. In so doing, the court majority, consisting of
highly intelligent, dedicated professionals of great integrity, seems to have
allowed its philosophy, which seeks to protect injured persons, to overcome
restraint as it challenged the General Assembly's philosophy of limiting such
actions in what it perceived to be the public interest. This difference has
existed for more than a decade, but only now has reached improper proportions.
This decision marks a sad day for Ohio - not because of its ruling but
because of its reflection on separation of powers and its liberal approach to
the legal doctrine of standing, which despite limiting language, opens the door
to challenging any significant legislation without benefit of a trial-court
record. The decision fails to provide guidance as to which of the statutes' many
provisions would be constitutionally valid if properly enacted.
Through
its choice of language and grounds of attack, the court has, regrettably,
reached a fully defensible outcome in a less-than-judicious opinion. The result
of this decision can only be to impair the operation of government and to
exacerbate deeply and honestly held conflicting opinions. This is, indeed, a sad
day for Ohio citizens, who rely on the proper and professional functioning of
all parts of their government.
STEPHEN J. WERBER
Cleveland
Werber is a professor at Cleveland State University's Cleveland-Marshall
College of Law.
COLUMN: LETTERS
LOAD-DATE: September 6, 1999 
