BuckeyeBlog

The Columbus Dispatch reported today that the “city of Columbus has dropped its lawsuit against former lead paint manufacturers after the Rhode Island Supreme Court last week shot down the legal argument the city was pursuing.” Marc Kilmer reported on the Rhode Island Supreme Court’s decision last week, pointing out the fallacy of trying to hold paint manufacturers liable for creating a “public nuisance” by selling paint that contained lead several decades ago. In fact, I suggested in a Buckeye Institute Viewpoint a year and a half ago that the city of Columbus should drop the lawsuit. I am glad the city attorneys have come to their senses. Now, the state should follow Columbus’ lead on lead paint and dismiss its similarly bogus lawsuit.

The Columbus Dispatch recently published a couple of excellent editorials, one today and another on Saturday, regarding two issues we covered here at Buckeye Blog last week. Today’s editorial deals with the bogus lead paint lawsuits. The editorial makes the same points we made last week that holding lead paint companies liable for a “public nuisance” for selling a product that was, at the time, completely legal and was not known to be dangerous, is inconsistent with prevailing legal norms. Moreover, it lets the property owners, who let the buildings fall into disrepair, off the hook.

The Dispatch editorial provides:

The paint companies aren’t responsible for what people do today with a product that was made decades ago, while it was still legal to make. And that’s what the Rhode Island decision boiled down to.

First, the court ruled, even if lead paint has harmed a lot of people in their homes, that doesn’t add up to ‘interfering with a public right,’ which is a prerequisite for a public-nuisance case. That’s commonly understood as affecting the air, a public road or a waterway, robbing the public of safe use of those things. One might bring a public-nuisance action against a giant pig farm that creates a constant foul smell or a company that dumped toxic chemicals in a river.

Another critical prerequisite of a public-nuisance action is control: The defendant has to have the instrument of harm under its control when the harm occurs. The paint companies relinquished any control over those gallons of lead paint decades ago when the consumers bought them. What has happened to the paint since can’t be those companies’ responsibility.

The tragedy is that children still are being poisoned by lead paint in 2008.

But states and cities looking for a giant payout to help them clean up the mess need to remember where the fault really lies: with the homeowners and landlords who have neglected to replace this paint, forcing vulnerable children to live in such conditions.”

Additionally, Saturday’s Dispatch editorial on the recent sentencing of super-lawyer Dickie Scruggs to five years in prison noted his ironic downfall was related to his disregard for the law, similar to that of Elliott Spitzer. Something we pointed out last week as well.

With the recent sentencing of super-plaintiffs’ attorney Dickie Scruggs to five years in prison for conspiring to bribe a judge, another chapter in the disturbing and continuing saga of “regulation through litigation” has been written.

In recent years, state attorneys general have taken on an expanded role in using litigation as a means of achieving public policy goals, usually by filing lawsuits against businesses or industries that the AGs see as unpopular and easy targets. In the process, the AGs often enlist personal injury trial lawyers to get into the act. The most prominent case was the state-sponsored tobacco litigation in the 1990’s. Then-Mississippi AG Mike Moore hired Scruggs to assist with the lawsuit against tobacco companies that led to a settlement where the companies paid more than $200 billion to 46 states, including Ohio. It is estimated that Scruggs received somewhere between $500 to $800 million from the tobacco settlement. The success of the tobacco litigation has led to a trend of AGs misusing various legal theories in order sue businesses that produce or sell goods or services that are completely legal.

The now disgraced Elliot Spitzer was one of the most egregious abusers of his office when he was New York’s AG. He brought several questionable lawsuits, including one against out-of-state gun manufacturers for causing gun violence and another against out-of-state utilities for causing global warming. Spitzer then used these high-profile cases as a stepping stone for his run for New York governor. Similarly disgraced Marc Dann modeled his campaign for Ohio AG after Spitzer’s approach of threatening litigation to achieve political ends.

In the eyes of these activist AGs and their trial lawyer accomplices, they can achieve political outcomes without going through the traditional lawmaking function required by the U.S. Constitution and the various state constitutions. By bringing lawsuits, they can effectively tax and regulate tobacco companies, electric utilities, gun manufacturers, etc. without having to worry about the legislative or regulatory process. In doing so Spitzer, Dann, Scruggs and the rest of the “regulation through litigation” crowd painted their crusade as necessary in order to protect the little guy and make the legal system achieve its true potential.

In the end, Spitzer, Dann, and Scruggs were done in by their disregard for the legal system and the laws they hid behind. Lust, greed, and ambition were their true motivators and they have now been exposed. Unfortunately, we are stuck with their legacy: state AGs and their trial lawyer buddies abusing the legal system to achieve political ends. Hopefully, more courts will see through such abuse as the Rhode Island Supreme Court did this week in the context of the bogus lead paint litigation.

The Rhode Island Supreme Court dismissed a public nuisance lawsuit against Sherwin Williams. Unfortunately, the suit filed by disgraced former Attorney General Marc Dann against this Ohio company remains, as does the suit filed by the city of Columbus. Perhaps this common sense ruling from Rhode Island will cause both the state of Ohio and the city of Columbus to stop wasting taxpayer dollars to harass this company with their baseless lawsuits.

David Owsiany wrote an excellent Viewpoint for the Buckeye Institute last year explaining the flaws of the “public nuisance” theory:

Public nuisance is a relatively obscure and narrow legal theory that permits a government entity to take action to stop or abate the impact of specific unreasonable behavior that causes injury to a public right. For example, under the public nuisance theory, a city may take action to stop someone from blasting their radio when people are picnicking in a public park or to force responsible parties to abate the damage caused by their dumping of sewage into a public river. Public nuisance law, however, has little applicability in the lead paint context.

Lead paint is only dangerous when it peels or flakes, releasing a fine dust that when ingested can cause lead poisoning. Accordingly, proper maintenance of older buildings over the last three decades, including a fresh coat of non-lead paint, would have dramatically reduced the threat of lead poisoning. Most paint companies, including the Ohio-based Sherwin-Williams Company, which is one of the companies named in Columbus’ lawsuit, stopped selling lead-based paints long before the federal government banned its use in 1978.

Misusing public nuisance law as a means to shake down paint companies for selling, what was at the time, a legal product more than forty years ago, ignores the traditional legal standards for liability, including proving that a product defect caused a specific harm. Such litigation also disregards the negligence of owners who failed to maintain their properties in a reasonable fashion, especially in light of the well-known threat caused by allowing buildings with lead paint to deteriorate.

What an amazing spin put out by Stephen Koff of the Plain Dealer on AG Marc Dann’s lobbying office in Washington, DC. He writes in regard to this office that few have noticed Dann’s “pioneering ways.” [The Columbus Dispatch runs the article today with the sub-header of "Ohio Attorney General's Innovation".]

Sorry, Steve. There is nothing pioneering about one government entity lobbying another government entity for handouts. This is a well-established, pernicious process that costs taxpayers both in needlessly inflating demand for government spending and in the intrinsic waste of government spending money to get money from…government. This process is highly susceptible to pork-barrel politics and in general defeats the kind of efficient, transparent government Ohioans deserve for their tax dollars. (more…)

A good friend of ours points out how…

Tom Noe is languishing away in jail right now for the so-called $50 million “mis-investment” of BWC funds in his rare coin fund. Money which the state has largely recovered (with interest!). Yet Mark Lay who is responsible for a $216,000,000 loss in BWC funds gets to just settle out of court and pay a percentage of his commissions back to Ohio. Of course this guy has big Democrat ties…so that must mean this motivations were purely noble and above board, right?

Something stinks about this settlement at the hands of our once crime crusading AG Marc Dann.

We couldn’t say it better ourselves.

Arkansas Attorney General Dustin McDaniel has demanded documents from five ticket-sales Web sites in an investigation into whether a quick sellout of a “Hannah Montana” concert violated scalping laws.

Venues for the 54-date tour by 14-year-old Miley Cyrus, the star of the Disney Channel show, sold out in as little as four minutes and scalpers are getting four to five times the face value, creating a torrent of complaints from frustrated parents. A single ticket for the show in Charlotte, N.C., sold for $2,565.

Where is Marc Dann when you need him?

Yesterday AG Marc Dann announced that he was suing to close two struggling charter schools. Charter school advocate Ron Adler had a couple of good points in response:

So, what’s the big deal? The Attorney General obviously wants to defend public tax dollars and protect kids from low performing schools. Well, let’s think about this.

Last year, the state legislators passed HB-79 which requires closure for chronically poor performing community schools. After the 2008-09 school year, community schools that have been in Academic Emergency for three years will be closed.

[My organization] supports high performing, quality schools……but, we also support following the legislative process. This surprising rush to action by the Attorney General raises several critical questions:

1. Legislative Process: Our society is orderly because it functions under the rule of law. House Bill 79 was carefully crafted by our state legislators. It was debated by both the House and Senate and set into motion to defend public tax dollars and protect the children. Then the Governor signed this bill into law. Now, I suspect that the Attorney General’s staff researched the powers of his office before taking this action…..but how can one man circumvent the entire legislative process to serve his desires?

Are citizens of Ohio to question every new law enacted because one man, albeit in high office, may choose to skirt the entire legislative process? If that’s true….then why do we need legislators….why should we obey the law?

2. Discriminatory Application of Policy: Why is the Attorney General targeting only failing community schools and ignoring failing district schools? A close examination of the traditional district schools Report Cards in Akron, Canton, Cincinnati, Cleveland, Columbus, Dayton, Toledo and Youngstown will reveal over 175 district schools that are not meeting state standards and are ranked Academic Emergency or Academic Watch. Dozens of them have been ‘stuck’ in their School Improvement Status for 3 years, 4 years, 5 years, 6 years, 7 years and a few are in their 8th year. There are over 90,000 children languishing in those 175 plus district schools.

To target the failings of a handful of community schools and ignore 175 failing traditional district schools is without question a discriminatory application of policy.

Funny thing is that Marc Dann voted for HB 79 when he was in the Senate (Senate Journal, 126th G.A., pg 1684; Oct 26, 2005).

HB 79 will protect taxpayers from poorly performing charter schools. This, in turn, will permit successful charter schools to protect taxpayers (and kids) from poorly performing public schools. The AG has no value to add to this formula and he should remove himself from the process.