of “Policy Preferences” on Legal Reform Constitutionality Issues

Summary

• On November 20, the Georgia Supreme Court struck down a provision of a 2005 law requiring plaintiffs in asbestos liability cases to meet specific medical criteria before they can pursue damages through the Georgia courts.

• The ruling allows thousands of unimpaired asbestos claimants, many of whom were not exposed to asbestos in Georgia, to go forward with their claims.

• The decision, by an elected supreme court that has shown a willingness to take an activist stance based on their "policy preferences", demonstrates the importance of greater involvement in supreme court elections by “rule of law” advocates.   

Background

The subtle “policy preferences” of the Georgia Supreme Court shaped a November 20^th ruling that has major consequences for thousands of asbestos liability cases pending in Georgia.  This decision, which was issued with little analysis and ambiguous language by the Court, shows why legal reform advocates are placing greater importance on electing ‘rule of law’ candidates to state supreme courts.

The Georgia Supreme decision[1] struck down legislation passed in 2005 intended to stop the tide of asbestos and silica claims filed in Georgia as applied to claims pending on the date of enactment.

• Georgia had become a dumping ground for asbestos lawsuits.  For example, approximately 3,200 asbestos claims were on the Fulton County court docket as of September 2005.  Many of those claimants were not exposed to asbestos in Georgia.  Studies have shown that as many as 90% of recent asbestos claimants were not physically impaired due to asbestos exposure.

The 2005 law requires plaintiffs to meet specific medical criteria before they can pursue an asbestos or silica claim in the court system.  The Georgia Court considered whether the law was unconstitutional as applied retroactively to pending cases. 

• The Georgia Constitution's Bill of Rights includes a specific clause explicitly prohibiting retroactive laws.  However, historically Georgia courts have interpreted this provision to permit retroactive application of "procedural" laws setting forth methods of enforcing rights, duties, and obligations, but not "substantive" laws altering the rights of litigants. 

The Georgia law required plaintiffs to show that exposure to asbestos was a "substantial contributing factor" to the individual's medical condition.  The court found that this new requirement altered substantive law because pre-enactment Georgia law required plaintiffs to show only that exposure was a "contributing factor" to the injury.  The term "substantial," the court found, placed a higher evidentiary burden on the plaintiff and could therefore not be applied to cases filed before the law was enacted.  The court refused to sever the term "substantial" to preserve other evidentiary requirements in the bill for pending cases.  The Court’s ruling in this case does not directly affect other legal reforms enacted in 2005.

The Supreme Court of Georgia's decision in this case indicates a willingness to engage in "judicial nullification," the striking down of legislative judgments based on its own policy preferences and without a firm basis in law.  Over time, the seven-member court has demonstrated a willingness to take an activist stance based on these policy preferences.

• Only one justice, Harold Melton, is considered by most to have a “rule of law” orientation.  This former legal counsel to Governor Sonny Perdue has taken the unusual step of recusing himself from any cases related to laws passed by the Perdue administration, thus creating a situation in which conservative arguments are not represented in the Court’s decision-making process.

In the November election, two current justices were elected to six year terms, and Justice Melton was elected to fill the balance of the term to which he was appointed.  Presiding Justice Carol Hunstein defeated “rule of law” candidate and former Deputy U.S. Attorney General Mike Wiggins. Thus, the current orientation of the Georgia Supreme Court will continue unless the broader community of those favoring “rule of law” candidates field and support candidates who can attract significant support in statewide supreme court elections. 

Historically, “rule of law” advocates have not fielded strong candidates for state supreme court, with the exception of a few states, such as Texas, Alabama, Michigan and Mississippi, where “rule of law” candidates have been elected and now comprise majorities on the state supreme courts.  The plaintiffs’ bar has been relentless throughout the nation in supporting and funding candidates for state supreme courts who would support policy preferences favorable to plaintiffs.

The business community is only now recognizing how the plaintiffs’ bar has succeeded in using the electoral process to win majorities on state supreme courts who will exercise "policy preferences" to nullify legal reform adopted by state legislatures, allowing plaintiffs wide latitude to gain unfair verdicts and unjustified monetary settlements.

Dan Pero, president of the Foundation for Fair Civil Justice, the leading national advocate for legal reform at the state level, said, “This ruling shows why business needs to get involved to support candidates for supreme court who are committed to the ‘rule of law’.  The overwhelming percentage of the Georgia asbestos plaintiffs are unimpaired and show no symptoms of harm.” 

Pero continued, “Thousands of asbestos cases have been filed in Georgia specifically because the Georgia judiciary has been favorable to these plaintiffs.  The Georgia General Assembly – the state’s elected lawmakers – saw this problem and addressed it with fair, reasonable legislation in 2005.  Now, the Georgia Supreme Court has on its own struck down the duly-enacted law in an opinion with virtually no analysis and against the mainstream of judicial analysis in this nation.”

“The Georgia Supreme Court has sent a dangerous signal to trial lawyers – Georgia’s courts are open for your business.  It’s no wonder that American industry is expanding its operations to other countries and jurisdictions where the legal environment is not so ready to reward the ‘strike it rich’ efforts of plaintiffs’ lawyers.”