How The Chamber’s Special Interest Politics Will Grow Government, Raise Taxes, And Threaten Liberty

Accountability. Responsibility. Liberty. Justice. These are fundamental American principles enshrined in our Constitution. But they are under attack in states across the country.

I typically write a "Did You Know…" post for Monday morning. But with state legislatures under attack by The Chamber's special interest political lobby, I chose to write something a little different this morning.

In Missouri, the legislative session opened last week. There was the typical flurry of bills filed, but even with a $500 million state budget shortfall, Missouri's arm of The Chamber set its sights on only 3 issues:

(1) Altering workers' compensation law so that fewer injuries are covered and granting immunity to co-workers who cause someone an injury on the job;

(2) Making it easier for employers to discriminate against employees and eliminating the right to jury trial by permitting a judge to make findings of fact when ruling on summary judgment; and

(3) Attacking the 7th Amendment fundamental right to civil jury trial by rejecting the American Rule and adopting the British Rule in civil cases; eliminating joint and several liability so defendants do not have pay the full amount of a victim's damages; and subjecting all Missouri judges to popular election to insert politics and the influence of campaign donations into Courtroom.

The Chamber sells its special interest agenda as a "jobs" package, but there's nothing in here that will create a single job. The Chamber's policies will, however, grow government, raise taxes, and reduce or eliminate our fundamental liberties.

I know. You're wondering why The Chamber and the elected officials introducing these bills want to grow government, raise taxes, and reduce liberty. A cynical person might say they don't care. But more likely, they just don't understand the effect these bills will actually have.

Let's look at a few of the proposals and see what effect they would have on ordinary people, government, taxes, and Liberty.

Popular Election of Judges

Former United States Supreme Court Justice, Sandra Day O'Connor told students and faculty at the University of Missouri School of Law:

"If judges are subject to regular and competitive elections, they cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects." Ignoring such non-legal and political pressure, she noted, would be "like ignoring a crocodile in your bathtub."

Hat Tip to Annesley H. DeGaris in The Trial Lawyer magazine.

Missouri's non-partisan court plan keeps politics and special interests out of Missouri courtrooms. The plan is so popular that it has been adopted in one form or another in more than 30 other states.

The Missouri Plan is based on the fundamental premise that cases should be decided on the facts and on the law by legal scholars and practitioners qualified to serve as judge… and cases should not turn on the amount of influence one of the parties might have over the judge through campaign donations or other political support. The plan is also founded on the premise that cases should be decided on the law, not the capricious shifts of political winds.

The Missouri plan has been nearly universally endorsed by Missouri judges — including Judges appointed by Republican governors (Judges Holstein, Covington, and Robertson, who were each appointed by Governor John Ashcroft who later served as Attorney General under President George W. Bush) and judges appointed by Democratic governors (Judge Higgins, appointed by Governor Joe Teasdale, and Judge White, appointed by Governor Mel Carnahan).

And, as noted above, even United States Supreme Court Judges support merit selection of judges under the Missouri Nonpartisan Court Plan. As US Supreme Court Justice Sandra Day O'Connor (appointed by President Ronald Reagan) said in support of the Missouri Plan:

Our judges must be capable of staying above politics if they're going to serve the function of making impartial decisions.

But the Missouri Court Plan is under attack by those seeking to influence judges by buying their vote. Think that's impossible? Read about Caperton v. A.T. Massey Coal Company, where a West Virginia coal company tried to buy the vote of a Supreme Court judge after it received a verdict against it at the trial court level. The same coal mine that owned the Upper Big Branch mine that exploded and killed dozens of mine workers paid $3 million in election contributions to a West Virginia Supreme Court Judge, who then was the deciding vote in overturning a $50 million judgment against the company. Missouri adopted the Nonpartisan Court Plan to avoid the very problems posed in the Caperton decision. Under the Nonpartisan Court Plan, judges are selected on merit rather than by political or ideological affiliation.

In Alabama, where judges are elected by popular vote, many citizens are uncomfortable with the selections because Alabama voters are often "in the dark" on judicial races.

I have voted, I believe, in every election I've been eligible to vote in. I take it seriously. But the judicial races are the ones I know the least about. Does this person have the background, experience and ability to do the job? I am in no position to make that judgment.

– Jim Winkates, Alabama Voter

When voters have little information about a judicial candidate, they often simply do not vote on that race. That gives additional influence to the special interests seeking to influence the race.

Educating voters about judicial candidates costs money and raises taxes. A North Carolina voter education guide for judicial elections cost $1.4 million and had to be paid for with state money.

Those who criticize the Missouri plan do so not because the Plan doesn't work. Special interests attack the Missouri Court Plan because it does work! Under the Missouri Court Plan, special interests can't stack the court with friendly judges. Under the Missouri Plan, special interests can't harbor special influence with judges. Under the Missouri plan, special interests must stand on an even playing with ordinary people like you and me.

When justice can be influenced (or worse, bought), Liberty is extinguished. Fairness. Justice. Liberty. Rule of Law. These are not partisan issues. These are not Democrat vs. Republican issues. Cases should be decided on the facts and on the law, not by partisan politics funded by special interest groups.

The British Rule

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

With these words, on July 4, 1776, 56 men (including 34 lawyers) declared United States independence.

When was the last time you read the Declaration of Independence? If it's been a while (or never), you can read it here. Included in the Declaration of Independence is a list of Oppressions identified by the Founders justifying their Declaration

We're familiar with many items on the list, perhaps most notably "For imposing Taxes on us without our Consent." But did you know that elimination of the right to trial by jury was also listed as an Oppression by the King?

"For depriving us in many cases, of the benefits of Trial by Jury."

The right of citizens to trial by jury was of such importance to our Founding Fathers that it was included in the list of Oppressions by the King in support of the Declaration of Independence. The fundamental right of Civil Justice was also included in the Bill of Rights as the 7th Amendment to the Constitution.

The American Rule of Civil Justice ensures access to – and an even playing field in – the Courts by eliminating oppressive disincentives to those either seeking justice (as a plaintiff) or defending one's conduct (as a defendant).

Yet, the Chamber has also called for legislation rejecting more than two hundred years of following the American Rule and replacing it with the British Rule that our Founders fought and died to defeat. According to John F. Vargo, The American Rule on Attorney Fee Allocation: The Injured Person's Access to Justice, the American Rule took root in colonial America in keeping with the freedom to contract. The American Rule was further entrenched in 1789 when the United States Supreme Court held:

We do not think this charge [an award of attorneys fees to the prevailing party] ought to be allowed. The general practice of the United States is in opposition to it; and even if that practice were not strictly correct in principle, it is entitled tot he respect of the court, till it is changed, or modified, by statute.

Arcambel v. Wiseman, 3 U.S. 306, 306 U.S. (1976). From 1800 to 1853, no federal statute authorized an award of attorney's fees. In 1851, the U.S. Supreme Court again ruled against the award of attorney's fees to the prevailing party. Day v. Woodworth, 54 U.S. 363, 372-73 (1851).

Ultimately, the modern view of the American Rule was expressed by the United States Supreme Court in 1967:

[S]ince litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents' counsel…. Also, the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney's fees would pose substantial burdens for judicial administration.

– Fleishmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 718 (1967)

As the colonists recognized, as our Founders recognized, and as more than 200 years of history and practice has recognized, the fundamental problem with the British Rule is that it denies access to the courts for all but the very, very wealthy (or, perhaps, the very, very poor). Why? Because anyone else could not afford to risk the financial burden of losing even a meritorious case and being forced to pay the other side's attorney bill.

The British Rule, thus, provides disincentive to either seek justice for wrongdoing or to defend against a claim brought against you.

Consider this example: Driver A is injured in an auto accident at an intersection. Both Driver A and Driver B believe in good faith that they had the green light. There are no other eye witnesses to verify. Driver A incurs $20,000 in medical bills. Driver A sues driver B for damages. The jury is charged with hearing the evidence; determining who is at fault; and awarding damages.

Also assume Driver A and Driver B have equal litigation costs of $10,000 (including attorney fees).

First, assume Driver A loses the lawsuit. There has been no bad faith. Both parties have acted in good faith to resolve a genuine, but disputed claim. However, under the British Rule, Driver A must not only pay his medical bills for his injury, he must now pay Driver B's attorneys an additional $10,000 for Driver B's litigation costs.

Next, assume Driver A prevails in the lawsuit and receives a $20,000 judgment. Again, there has been no bad faith. But under the British Rule, not only must Driver B (the defendant in this example) pay the $20,000 judgment, but he must also pay Driver A an additional $10,000 for Driver A's litigation costs.

If the losing party is very wealthy (or is a wealthy corporation), perhaps he can simply write a check for the winning side's costs. If the losing party is very poor, perhaps he is "judgment proof" or can simply file bankruptcy to avoid paying the prevailing side's litigation costs. For everyone else, the substantial risk of loss in even a reasonable case brought in good faith will effectively shut the courthouse doors. The rich and the powerful will have much greater leverage in such litigation as they understand very few ordinary people can afford to risk loss at trial.

For all practical purposes, access to justice will be denied under the British Rule.

Denying Access To Justice Grows Government, Raises Taxes, and Threatens All Other Liberties

When access to justice limited or outright denied, the result is more government; higher taxes; and threatened liberty.

Liberty is threatened because the 7th Amendment and the fundamental right of access to the Courts are the ultimate lynch pins for all other fundamental rights, which is why constitutional conservatives oppose attacks on 7th Amendment rights through tort reform. Conservatives understand that the Constitution means something. Conservatives understand that the Constitution must be upheld. Conservatives understand that the founding fathers inserted this amendment into the Bill of Rights for a reason. Conservatives understand that a civil jury trial is the ultimate check and balance against corporate and government intrusion. This is why leading conservative legal groups have begun to question the need for tort reform over concerns about tort reform's encroachment on fundamental civil liberties, increasing the size and burden of government, encroachment of states' rights, and tort reform's failure to promote accountability and personal responsibility.

Andrew Cochran, Fred Thompson, Rand Paul, Clarence Thomas, and other leading conservatives have come out against tort reform.

What is your remedy if someone violates your constitutional rights to free speech? To religious freedom? To keep and bear arms? To contract? What is your remedy when government goes beyond the constitution to infringe upon your fundamental civil liberty (whether health care, religion, firearms, marriage, equality, taxation, etc.)? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

In addition to threatening Liberty, tort "reforms" also have the perverse effect of bloating government and penalizing taxpayers through government funded bailouts of negligent actors. Imagine someone is paralyzed by a defective product, a negligent doctor, or a drunk driver. Tort reform either excludes the plaintiff completely from the court system or limits the recovery to only a portion of the plaintiff's actual needs. The bad actor is relieved of personal (or corporate responsibility) and the burdens of the bad actions are borne by taxpayers in the form of Medicare, Medicaid and disability payments.

Carter Wrenn offers this excellent example for why conservatives should reject tort reform proposals like those endorsed by The Chamber:

A jury may still hear a medical malpractice case but it will not be told about Senator Rucho's cap on how much restitution it can award for disfigurement, loss of limb and so on. Instead, the jury will hear the evidence, reach its verdict, determine damages, award whatever it decides is fair restitution and go home.

But, then, something odd happens.

If the jury awards a victim (say, for the loss of his legs) over $250,000, Senator Rucho reaches out of the State Senate and into the jury box and changes its verdict and the judge cuts the restitution to $250,000.

Now Bob Rucho will tell you he's for less government and less government power but his bill extends the power of the State Senators and Representatives into a place (the jury box) where common sense and the North Carolina Constitution says politicians ought not to be meddling.

In the end it boils down to this: Who do we trust to decide verdicts? Juries who hear evidence or politicians like Senator Rucho who take contributions from the Medical Society?

Even politicians who would limit or even eliminate your right to civil justice understand the justice system's critical importance… at least when it comes to them and their families. Republican presidential contender Rick Santorum has frequently attacked the civil justice system and sponsored numerous bills to limit your access to the courthouse and cap the damages you could recover as an injured victim. But Rick Santorum and his wife sued a chiropractor for $500,000 over a back injury that resulted in $18,800 in medical bills. The Santorums' $500,000 lawsuit was twice as much as the $250,000 cap Santorum has advocated to apply for you and me. The jury's verdict – $350,000 to Mrs. Santorum – was $100,000 more than Santorum would permit you or me to recover under the exact same circumstances based upon the many tort reform bills Santorum has sponsored.

Former Republican presidential front-runner, Gov. Rick Perry, has also attacked the civil justice system by reducing access to courts in Texas, capping damages, and invoking the British rule in Texas courts. But when Perry failed to obtain enough valid signatures to appear on the Virginia presidential primary ballot, Perry sued the commonwealth of Virginia.

I don't think either of these lawsuits were remotely frivolous. I believe wholeheartedly both lawsuits were made in good faith to seek redress for damages and injustice. In fact, I applaud both Rick Santorum and Rick Perry for recognizing the importance of the civil justice system in facilitating accountability and protecting civil liberty.

However, such recognition by these politicians and their utilization of the very system they have condemned politically, make their continued attacks on the civil justice system that much more disheartening.

Our Pledge of Allegiance declares not Liberty and Justice for some. The Pledge does not permit Liberty and Justice for only the powerful. Our Pledge of Allegiance demands "One Nation, under God, with Liberty and Justice for all."

Freedom, liberty, and civil justice are issues our Founders fought and died for. These are issues that should unite us as citizens rather than divide us as partisans. Join those on both sides of the political aisle in calling for personal and corporate resonsibility, for demanding accountability, for limiting government, lowering taxes, protecting Liberty, and in upholding our Constitution.

[More on your 7th Amendment Rights]

Read More:

• The American Rule on Attorney Fee Allocation: The Injured Person's Access to Justice [John F. Vargo for The American University Law Review]
• Should Jutice Be For Sale In Missouri?
• Did You Know… Non-Partisan Selection Of Judges Remains Under Attack?
• Missouri Non-Partisan Court Plan Attacked Again (For Failing To Be Partisan)
• Alabama voters often in the dark on judicial races [Eric Velasco at Birmingham News]
• Tort Reform, The Constitution and Limited Government
• The 7th Amendment Advocate
• Trial Lawyers Helping Reduce Health Care Costs [Jon Lewis at The Injury Board]

(c) Copyright 2012 Brett A. Emison

Follow @BrettEmison on Twitter.