Constitutionalism and Democracy

Interest Groups, Judicial Elections, and Public Policy

Lawrence Baum, David Klein, Matthew J. Streb

• Publisher: University of Virginia Press
• Year: 2017
• ISBN:
  9780813940359
• Topic: Law
• Subtopic: Legal History
• Index: Law

Once largely ignored, judicial elections in the states have become increasingly controversial over the past two decades. Legal organizations, prominent law professors, and a retired Supreme Court justice have advocated the elimination of elections as a means to choose judges. One of their primary concerns is interest group involvement in elections to state supreme courts, which they see as having negative effects on both the courts themselves and public perceptions of these judicial bodies.

In The Battle for the Court, Lawrence Baum, David Klein, and Matthew Streb present a systematic investigation into the effects of interest group involvement in the election of judges. Focusing on personal-injury law, the issue that has played the most substantial role in spurring interest group activity in judicial elections, the authors detail how interest groups mobilize in response to unfavorable rulings by state supreme courts, how their efforts influence the outcomes of supreme court elections, and how those outcomes in turn effectively reshape public policies. The authors employ several decades' worth of new data on campaign activity, voter behavior, and judicial policy-making in one particularly colorful, important, and representative state—Ohio—to explore these connections among interest groups, elections, and judicial policy in a way that has not been possible until now.

ONE
The Course of Tort Policy

At one time, especially before World War II, the Ohio Supreme Court was quicker than the average state supreme court to adopt new tort law doctrines that favored plaintiffs (Canon and Baum 1981). By the 1970s, however, tort law in Ohio was in a rather sleepy state. The Ohio court still made major changes in the law on occasion. In 1975, for instance, it invalidated the state guest statute, which exempted a driver from liability toward a guest in the car if the guest was not paying for the ride.¹ But more typical of this period were decisions that refused to adopt proposed changes in the law. The court chose not to overrule spousal immunity, the prohibition of lawsuits between spouses (1978); not to expand the definition of “pecuniary injury” in a wrongful death statute to include loss of companionship (1979); and not to read the Landlords and Tenants Act of 1974 as establishing “duties or standards of conduct for the breach of which a tenant may hold his landlord liable in tort” (1980).²

Those three decisions were consistent with the court’s tendency to favor defendants over plaintiffs in tort law, but that tendency was not overwhelming. Each of the three decisions attracted dissents from justices who favored changes in the law, but on the whole disagreements on the court were low key. In this sense, too, the court’s work in personal injury law was quiet.

All of this changed beginning in the early 1980s. Pro-plaintiff justices engaged in a decades-long battle with the state legislature and succeeded in swinging the court to the left—first in the early 1980s and then, after a reversal of direction, a second time in the 1990s. The justices became more polarized, sometimes engaging in sharp verbal battles through their opinions. “Stare decisis” became little more than a phrase of lament. Things eventually quieted back down, but only after the court had turned sharply, and lastingly, back to the right.

In this chapter we canvass these changes and attempt to determine to what extent they are attributable to changes in the court’s membership. We begin with a qualitative overview of doctrine and opinion language before moving to quantitative analyses of justices’ votes.

Changing Doctrine

The topic of immunity from liability provides an excellent example of changing doctrine. As of 1972, immunity was commonly available as a defense to tort claims in Ohio. Even when they were plainly at fault, governments and charities could often get lawsuits dismissed simply by virtue of their status. Insurance companies could invoke interspousal and parent-child immunity to avoid payouts when the victim was injured by a relative (usually in a car accident). The landscape of immunity changed dramatically with a series of decisions in the mid-1980s. Major legislation and court decisions since then have been more favorable to defendants, but immunity has not returned to pre-1972 levels.

Both charitable and intrafamilial immunity had been created through court decisions many years before the period under study and were based on both moral and public policy judgments. Then, as now, charities and families were valued for providing support to people when they most need and can least afford it, and it was thought that both types of institutions could be undermined by allowing beneficiaries of support to sue benefactors. In addition, lawsuits within families raised concerns about collusive fraud.

By the 1970s, the spread of liability insurance had done much to allay these fears (though not the fear of fraud). Lawsuits were still directed against charities and family members in name, but in reality it was insurance companies who were on the hook. Charitable immunity, especially, was on shaky ground, having been limited by a series of decisions in the previous several decades. Perhaps most importantly, in 1956 the court had abolished charitable immunity for hospitals.³ So the court’s decision to abolish charitable immunity altogether in 1984, with only Justices Robert Holmes and Ralph Locher dissenting, probably did not come as much of a surprise.⁴

In contrast, intrafamilial immunity retained considerable vitality until just before it was abolished. The court explicitly reaffirmed both spousal and parent-child immunity as late as 1982, in the latter case refusing to make an exception even where “the parent alleged to be negligent is deceased and liability insurance proceeds alone would be the source for the payment of any judgment.”⁵

Within two years, however, familial immunity was clearly under threat. In 1983, the court ruled that spousal immunity did not bar an action for wrongful death brought by the estate of the deceased spouse against the surviving spouse.⁶ (The practical effect in that case was to allow the husband, who caused the accident, to recover from his insurance company by suing himself.) The next year, it overruled the 1982 case on parental liability and held that an unemancipated child could sue a dead parent’s estate.⁷

The court did not allow the suspense to build for long, fully abolishing the immunity of both parents and children in 1984 and spousal immunity in July, 1985.⁸ James Celebrezze, newly arrived on the court, joined with William Brown, Clifford Brown, and A. William Sweeney to form a bare majority for abolition. Strikingly, James Celebrezze was not accompanied by his brother Frank, who, while vociferously pro-plaintiff by this point in his career, was something of a social conservative. In fact, Frank wrote the principal dissent in the case abolishing parent-child immunity. (However, he accepted the rulings as a matter of stare decisis in later cases.)

Whereas the court had the stage largely to itself when it came to charitable and family immunity, the legislature had a starring role in the story of governmental immunity. By the start of the period covered by our study, it was well established that governmental immunity was only available when the defendant had been engaged in a “governmental”— as opposed to a “proprietary”—function. Indeed, the court issued an important decision limiting municipal immunity in 1972, holding that “where a municipality owns a hospital, thereby providing a service not essential to municipal government, there is no basis in logic for granting the municipality governmental immunity as to that hospital.”⁹

Nevertheless, governmental immunity was still an important barrier to lawsuits. The very next year the court, in a 4-3 decision, relied on statements in precedent to rule that state—as opposed to municipal— immunity is absolute except where the state consents to be sued through legislation and that the Ohio State University hospitals were immune to suit.¹⁰

The first and biggest blow against governmental immunity came from the legislature, when it passed an act in 1974 waiving sovereign immunity for all institutions and instrumentalities of the state government. The act specifically exempted political subdivisions, such as municipalities and school districts, from this waiver, leaving them with the immunity already recognized in case law. However, the court restricted subdivisions’ immunity dramatically in a series of cases decided between 1981 and 1984. Having first declared that it possessed the “constitutional authority to modify or abrogate common law doctrines of governmental or sovereign immunity,” it went on to abolish common-law immunity for boards of education, park districts, and public libraries, and for municipalities with the exception of “essential acts of governmental decision-making.”¹¹ These cases were decided by consistent 5-2 voting blocs, with the Celebrezze brothers, the Browns, and Sweeney in the majority and Justices Holmes and Locher in dissent.

In a pattern that would play out in numerous other areas of tort law, the tide then turned once more, as the legislature responded to the court’s pro-plaintiff decisions with legislation to protect defendants. It began by granting political subdivisions substantial statutory immunity in 1985; later amendments expanded that immunity considerably. These laws and the decisions implementing them elicited fierce protests from some justices, especially Paul Pfeifer. (“With its decision today, the court has stated: ‘The Constitution be damned, we will not allow the King or any person exercising discretion on behalf of the King to be sued.’ Even though Ohio’s citizens have been part of a representative democracy for over 200 years, the King still lives.”¹²) However, the critics on the court never formed a majority, and the law in Ohio today is that a political subdivision can be sued only for certain discretionary acts, and only if those discretionary acts were performed “with malicious purpose, in bad faith, or in a wanton or reckless manner.”¹³

INTENTIONAL TORTS BY EMPLOYERS

Ohio’s system of workers’ compensation (originally “workmen’s” compensation) was established in the early 1910s through statutes and a constitutional amendment.¹⁴ Like all such systems, it requires employers to pay into insurance funds that are used to compensate workers injured on the job. Its generally understood purposes were not only to provide more financial security to workers, but also to make compensation more predictable for both employees and employers and to relieve the courts of a large number of cases. Accordingly, the Ohio Code as of the 1970s exempted employers who complied with the law from having to “respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment.”¹⁵

In 1982, the court was asked to declare that this exempting language was not absolute—specifically, that an injured worker could sue an employer for damages for an intentional tort. Justices Robert Holmes and Blanche Krupansky, emphasizing the goals of predictability and reducing judicial caseloads, would have held that intentional torts, like ordinary acts of negligence, must be handled exclusively through the workers’ compensation system. But five justices disagreed and ruled that suits for intentional torts could be brought in court.¹⁶

Two years later the court went further, in a decision that fractured the coalition from the previous case. The court announced two major holdings. First, a successful suit did not require a finding of a specific intent to injure; an act “committed with the belief that [an] injury is substantially certain to occur” would also constitute an intentional tort. Second, the fact that the employee had already received workers’ compensation benefits for the injury did not preclude a lawsuit nor reduce the amount of damages for which the employer could be held liable.¹⁷ Justices Ralph Locher and William Brown had been in the majority that allowed suits for intentional torts by employers. Here, while Locher agreed with the first holding and Brown did not indicate a view one way or the other, both joined with Justice Holmes in dissenting from the second holding. The fourth vote for the majority came from James Celebrezze, who had replaced Krupansky.

Employees did not win every case in the next two decades. For instance, a unanimous court in 1988 warned litigants that claims against employers would be dismissed unless “the complaint alleges facts showing that the employer: (1) specifically desired to injure the employee; or (2) knew that injury to an employee was certain or substantially certain to result from the employer’s act and despite this knowledge, still proceeded.”¹⁸ However, most major decisions went in favor of workers.

Most importantly, when the state legislature tried to restrict suits against employers, the court refused to allow it. A 1986 statute set limits on the damages that could be awarded for an intentional tort and gave the workers’ compensation commission—as opposed to the courts—exclusive authority to determine damages. The court struck the statute down in its entirety in 1991, ruling 4-3 that the statute went beyond the power allocated to the legislature in the Ohio constitution.¹⁹ The legislature responded in 1995 with a less direct assault on the court’s position, recognizing a claim of intentional tort while attempting to set fairly strict parameters on the claim. Notably, the statute required plaintiffs to demonstrate the elements of an intentional tort by “clear and convincing evidence,” a more demanding standard than the typical “preponderance of the evidence.” Again the court invalidated the entire statute by a 4-3 vote.²⁰

Neither the legislature nor the pro-plaintiff majority on the court tried to disguise the fact that they were in a struggle to control tort policy. The 1995 statute explicitly declared the legislature’s “intent . . . to supersede” several court decisions. Justice Andrew Douglas’s majority opinion striking down that statute in 1999 upbraided the legislature: “In [invalidating the 1991 statute,] we thought that we had made it abundantly clear that any statute created to provide employers with immunity from liability for their intentional tortious conduct cannot withstand constitutional scrutiny. Notwithstanding, the General Assembly has enacted R.C. 2745.01, and, again, seeks to cloak employers with immunity. In this regard, we can only assume that the General Assembly has either failed to grasp the import of our holdings in Brady or that the General Assembly has simply elected to willfully disregard that decision.”²¹

The legislature’s next attempt to limit the scope of intentional tort suits against employers came in a 2005 statute. In a creative move, the legislature recognized a cause of action if an employer “committed [a] tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur” but then defined away the second alternative by declaring “substantially certain” to mean “that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” Two Ohio courts of appeals balked at the legislature’s sleight of hand, one ruling that the statute was unconstitutional, the other that the definition of “substantially certain” was a drafting error. But the membership of the supreme court had changed a great deal by 2010, and the legislature won both cases when they reached that court, with only Justice Pfeifer dissenting and with several cases explicitly or implicitly overruled in the process.²²

THE COURT VERSUS THE LEGISLATURE

Public battles with the legislature were a regular feature of court life from the 1980s through the early 2000s. The single most consequential, and perhaps the fiercest, battle took place outside the area of torts (Hignett 2005; Obhof 2005). In 1997 the court held that Ohio’s system for funding elementary and secondary sch...

Table of contents

• Cover Page
• Title Page
• Copyright
• Contents
• List of Figures and Tables
• Acknowledgments
• Introduction
• 1 The Course of Tort Policy
• 2 Campaigns and Elections
• 3 Voters’ Responses to Electoral Campaigns
• 4 Findings and Implications
• Appendix 1: Cast of Characters
• Appendix 2: Outcomes of Ohio Supreme Court Elections, 1976–2016
• Appendix 3: Partisan Makeup of the Ohio Supreme Court, 1977–2017
• Notes
• References
• Index