Archive for August, 2013

Tort reform in action: rapist wins back $3.1 million from his victim

August 12, 2013

“Tort reform” is a phrase used to describe legislated control over the amount of money that plaintiffs are allowed to recover in civil suits. Operating on the presumption that state legislative bodies know more about justice than the actual victims of injustice or physical harm do, many states, like Ohio, have worked to limit plaintiffs’ recoveries, confined mostly to either certain types of actions (medical malpractice, suits against municipalities, etc.) or certain types of harm (emotional distress is usually the big loser in tort reform).

Now, tort reform is a great thing for a lot of people. If you’re a large insurance company that wants to screw over the insureds under your care, tort reform is a really good idea. If you’re a drunk, incompetent, or negligent doctor or lawyer, tort reform is probably going to save you a lot of money some day. If you’re a manufacturer or retailer and you want to be able to get away with lax safety standards or other general disregard for the public health and safety, tort reform is likely near the top of your lobbying agenda. And, in Ohio, tort reform is apparently now working out like gangbusters for sexual predators:

A jury decided in June that a 21-year-old woman, sexually assaulted by her pastor when she was 15, should get upwards of $3.6 million for the post-traumatic stress she’d endured in the years since he attacked her.

Because of a state law that went into effect in 2005, though, she’ll get less than a sixth of that amount.

A judge ruled in Delaware County Common Pleas Court this week that the woman could receive no more than $500,000 because of the state’s limit on compensatory damages for emotional stress in civil cases. The limit was a key element of an effort to rein in lawsuits, a priority of Republicans’ in the state legislature in the mid-2000s.

In short, a jury of Ohioans came to the deliberated-upon conclusion that a woman’s years of suffering, including post-traumatic stress disorder after being raped during a counseling session by her pastor, was worth $3.6 million dollars in compensation. But the good Republicans of Ohio’s state legislature have decided that it would ultimately be injurious to the public good to permit juries to even contemplate damages in excess for $500,000 for such frivolous touchy-feely claims as “emotional distress” for victims of savage sexual abuse. Essentially, the rapist was given back $3.1 million of a $3.6 million debt he owed to the victim of his aggression because the state of Ohio feels that the suffering of such victims is never worth more than $500,000.

The overarching problem with tort reform is that it could only ever be good for people who lose lawsuits, and bad for everybody else. That tort reform is good for negligent, reckless, or just downright dangerous defendants is a no-brainer: the incompetent doctor, the drunk driver, the “lemon” dealer, the careless manufacturer, the discriminatory hirer and firer, the stingy landlord, everyone who could benefit from injuring the public stands to gain from tort reform. Even when damages are limited just to specific harms like emotional distress, the unjust will still find a way to win: in short, the state legislature of Ohio does not value the emotional well-being of its citizens, at least not enough to permit juries to even contemplate their value over $500,000.

The rapist’s political champion, Republican state representative Kirk Schuring, is quoted with the traditional red herring of tort reform:

I don’t know how you assign a dollar amount to emotion. … There’s probably never going to be an adequate dollar amount. And $500,000 is not a small sum of money. … And who’s to say that $3.6 million is enough? Why not $36 million?

Who is to say that $3.6 million is enough? A jury of your peers is. That is the system contemplated by the Constitution, the system that Schuring is supposed to serve. If the damages are generally not worth that much, if the claim is truly frivolous, then it is up to the jury, the trier of fact, to make that determination in a flexible, organic, case-by-case process, not just writ large from above. And yet, despite his professed agnosticism on the question of how much emotional damages are worth, Schuring seems to be 100% certain that they are never worth more than $500,000. Who’s to say that $500,000 is always enough?

Tort reform is often proposed a protection for businesses – and in a sense, it certainly is. Businesses facing unnaturally-limited damages have a clear picture of how much (and how little) they need to care for the safety of others. The grand purpose of civil liability is to provide economic disincentives for bad behavior. Removing a disincentive to behave badly (for example, limiting emotional damages that sexual predators and their principals can suffer) is the same as incentivizing such behavior. The only thing that keeps businesses from behaving negligently is the prospect of successful plaintiffs’ recoveries for harms they suffer, as valued by juries. But now, in Ohio, businesses, governments, and individuals know that any harms they inflict on plaintiffs’ emotions are relatively cheap now, compared to what prior to tort reform would have been liability that actually scales to the harm done to the plaintiff.

The next big area of focus for tort reform is medical malpractice. With the healthcare industry’s rapid changes in the last few years, combined with the new pressures insurance companies face thanks to proscriptions against denying coverage based on pre-existing conditions and other provisions of the Affordable Care Act, the heat is on to cut costs wherever possible and tort liability is certainly up there. Unfortunately for the friends of the negligent and the reckless, tort reform is empirically known not to cause decreases in insurance premiums. All that it changes is that insurance companies and doctors are faced with fewer reasons to monitor and improve their safety procedures. When a medical malpractice judgment can cost millions of dollars just to settle, you have millions of reasons to make sure your doctors don’t commit malpractice; the hospital, being a much cheaper cost-avoider than patients, is properly responsible for policing its own internal safety procedures and for compensating the public when it fails to do so. Artificial limitation of malpractice recovery instead shifts the costs of malpractice onto the public: limiting recovery to, say, $500,000 for medical malpractice, would shift all harms from medical malpractice in excess of $500,000 to the victim.

Whether it’s a rape victim having to pick up the tab for almost 80% of the damage done to her by a sexual predator, or the victim of medical negligence having recovery limited by the dedicated ideologues of big business lobbying interests, tort reform is bad for victims, and good for the negligent and the reckless. The sad case of the Ohio rape victim is the logical result of tort reform: juries have less freedom, victims have less compensation, and wrongdoers laugh all the way to the bank.

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Galloway v. Greece: a Lemon Test no-brainer

August 7, 2013

Following a relatvely mixed ruling from the Second Circuit on the question, the Supreme Court decided a few months ago to take up the issue of whether or not municipal or state legislatures should be able to open their legislative sessions with sectarian prayer. The case, Galloway v. City of Greece, is based on a fact pattern familiar to every level of American government, from the Senate to local town councils: the legislative body in question opens its sessions with a prayer, almost universally led by Christian clergy, using ambiguous or non-existent criteria for selecting the clergyman or vetting the content of his (the clergy invited to perform the incantations are almost universally male) prayers, during hours that the legislature in question is supposed to be doing the business the taxpayers pay them for.

According to the briefs filed by the respondents, on facts that the Second Circuit noted were basically uncontested, the town of Greece, New York, fits the familiar pattern to a T:

The Town Board in Greece, New York, opens its monthly meetings with clergy-led prayer. With the exception of a four-meeting hiatus around the time of the filing of this lawsuit in 2008, the Town has relied exclusively on Christian clergy, who have persistently delivered overtly Christian prayers. Many of the prayer-givers have elaborated on Christian tenets and celebrated the birth and resurrection of Jesus Christ; one asked attendees to recite the Lord’s Prayer in unison; and another criticized objectors to the prayer practice as an “ignorant” “minority.”

Clergy request that attendees join in the prayers. Town Board members participate by bowing their heads, standing, responding “Amen,” or making the sign of the cross. Members of the audience do the same. At the conclusion of the prayer, the Town’s Supervisor typically thanks the prayer-giver for serving as the Town’s “chaplain of the month,” though he did not bestow this title on the few non-Christians who delivered the prayer in 2008. Many members of the audience are required to attend the meetings; children also routinely attend to fulfill a high-school civics requirement.

In short, the question before the Supreme Court is whether or not it is appropriate for the state to invite religious proselytizers of an almost exclusively Christian background to pray, and compel government officials and non-governmental attendees ranging from children in mandatory high school classes to public onlookers, to join in their proselytizing, on government time, using government funds, in government facilities, on behalf of the taxpayers, without violating a Constitution that expressly forbids the government from establishing a state religion.

This should be a brainer-free case. The flagship judicial test for whether or not the government has violated the First Amendment’s proscription against the establishment of state religion (hence the “Establishment Clause“) is the Lemon Test. Despite all attempts by the conservative wing of the Supreme Court to curtail the use of the Lemon Test, it remains the most common, and most accessible, test for whether or not an action by the state unconstitutionally establishes a state religion or otherwise infringes on the religious liberties of American citizens.

The relative paucity of brainers in this case is exemplified in some of the amici (“friend-of-the-court” briefs, basically, legal briefs written by parties that aren’t part of the lawsuit but that have some other interest, such as a moral conviction or political affiliation, related to the case) that have been filed for Greece by such notable champions of the separation of church and state as the Southern Baptist Convention (my religious alma mater) and the Republican-controlled Congress. The Southern Baptist Convention points out that denying the power of legislatures to open with sectarian prayer raises the ghastly specter of a Unitarian takeover of America. And as for the Republicans’ brief, well, lets just say that its “table of authorities” includes one actual statute, seven actual cases (more than half of which were decided in favor of the secular side of the case), and ten Bible verses.

Now, on the Lemon Test, there isn’t much to argue about. The Test comes in three prongs; to wit:

1. The challenged state action must advance a valid secular governmental interest
No prayer advances any valid secular governmental interest. The government’s interests are diverse and many, but none of them seems ever to have been advanced or protected by inviting sectarian interests, almost entirely Christian ones, to spend legislatures’ time praying. Now, either prayer is capable of causing real change in the world, or it isn’t. If it is, then whatever beneficence the Almighty seeks to bestow upon the peoples’ representatives are likely already accounted for in his divine plan (for the Calvinists in the audience), or, it can be accomplished just as easily and somewhat less controversially through the legislators’ private prayer rights that are absolutely and unreservedly protected by the First Amendment. And if prayer isn’t so powerful, then no amount of public pandering to religious interests will yield advance any secular governmental interests whatsoever, except for the interest individual legislators have in getting re-elected by friendly religious voters.

2. The challenged state action must not needlessly advance one religious interest over others
The key word in this arm of the test is “needlessly.” Many government actions advance religious interests: for example, tax exemptions for religious institutions doubtlessly advance religious interests, but the rules for those exemptions are so broad and ecumenical that even mafioso cults like Scientology qualify. But a significant component of the complaint in Galloway is that the city council’s prayers are almost entirely delivered by Christians, and the invocations often extend far beyond simple intercessory prayer into outright evangelism. For example, according to the complaint, there has been exactly one attempt to have a Jewish prayer open the town’s sessions, and it wasn’t even clear whether or not the person invited to deliver that prayer was a Jewish clergyman or simply a layman of Jewish background. Given the relative media hubbub that erupts whenever, for example, a Hindu or a Muslim clergyman is selected to lead such prayers in Congress or other legislative bodies, combined with the dire statistical summaries of who leads the prayers in the town of Greece given in the complaints, it stands to reason that the legislative prayer sessions are uniformly Christian in nature, they are highly sectarian, and they are often evangelistic in nature.

3. The challenged state action must not needlessly entangle the state with religion
This arm of the test is the heart of my own objections to legislative prayer sessions. How does the Congress determine who is “qualified” to give an invocation? Does the Congress, or the town of Greece for that matter, have either the authority or the competence to investigate somebody’s religious background sufficiently to know if the prayer they are giving is “accurate?” The very existence of this case suggests that the government is getting too tied up in internecine religious arguments for its own good by having these prayers at all, since the case forces us to investigate the bona fides of public prayer leaders in a way that the state is usually forbidden to do. We don’t want the state deciding that person x is a “real” Christian but that person y is not, that person x’s religion is appropriate for public display but person y’s is not. And yet the scheme of legislative prayer sessions forces us to do just that.

So, if the Lemon Test jurisprudence is so clear, why is this even an issue? Well, as the Second Circuit pointed out, the Supreme Court has had to examine the Constitutional muster of legislative prayer sessions, but in the flagship case in that area, Marsh v. Chambers, the Court did not apply the Lemon Test at all. Instead, the Court provided an articulate and interesting but I think entirely off-topic examination of the long history of American public bodies using prayer on taxpayer time and ruled accordingly. But the Court did not pause to ask itself the basic question of whether or not a violation of the Constitution is validated just because the state has done it a lot, as if the First Amendment comes with a grandfather clause or a statute of limitations, as if the Constitution contemplates ratification of unconstitutional acts just by doing them over and over again for a long time!

As such, while the legal question may be one about the legality of state-sponsored prayer, the practical question is whether or not the Supreme Court will actually use the Lemon Test in answering that question. As I’ve mentioned, the Lemon Test has sometimes been criticized by the conservative wing of the Court, mostly for delivering results unpalatable to Antonin Scalia personally and his acolytes by association. The Court has not clearly spelled out a precise test for when the Lemon Test is appropriate, instead seeming to apply it according to whether or not the outcome desired by the majority can be reached through that test or not. If it can be, the Lemon is hailed as the mainstay of Establishment Clause jurisprudence, and if it can’t, then the Lemon Test is derided as a relic of the liberal excesses of the mid-20th-century Supreme Court. It remains my hope that the Lemon Test, a perfectly lucid and logical exposition of the soul of the secular framework of the Constitution, will be used and will yield the appropriate outcome. If not, we leave it to the future leaders of America to see what happens when you combine political gridlock with religious gridlock, and hope that you all enjoy the outcome.