Lead Paint Legal Issue Continues In Ohio

Ohio Secretary of State Jennifer Brunner has asked the State Supreme Court whether the issue of limiting lawsuits against paint manufacturers can be put on the ballot.

Her request for guidance follows the high court's finding that Ohio Gov. Ted Strickland improperly vetoed a bill that would restrict lawsuits against paint manufacturers.

In a motion for reconsideration or a stay of the ruling, Ms. Brunner said that she “does not contest the court's ruling in this case, and she does not ask the court to revisit its holding that the current governor's attempted veto was invalid,” or the court's ruling that the law must be viewed as enacted and enforced.

However, she noted in the motion filing that her office has been asked if a referendum on the issue remains possible, and seeks the court's opinion on the legality of such a referendum.

Specifically, she asks the court to answer a critical question: “Do Ohio's citizens still have the right of referendum” regarding the bill, “or did the time for referendum expire while this case was being litigated?”

At issue in the case is Democratic Gov. Strickland's veto of Senate Bill 117, passed by the Republican-controlled legislature. Under that measure paint manufacturers can't be sued under public nuisance laws, which some U.S. cities have used to try to force companies to help pay for the removal of lead-based paint in older homes.

Ohio's attorney general filed suit charging paint makers fraudulently sold the lead product when they knew it was dangerous and created a human health hazard. That action sought compensatory and punitive damages, funding of education, detection and abatement programs for lead paint.

The bill passed by Ohio's state legislature in December 2006 requires that lawsuits over lead paint must be filed under the state's product liability law rather than the public nuisance statute.

Gov. Strickland's Republican predecessor, Bob Taft, allowed SB 117 to become law without his signature, which under the Ohio constitution occurs after 10 days. Gov. Strickland vetoed the bill on his first day in office, but the state Supreme Court ruled earlier this month that the ten-day period had already elapsed, thus negating the veto.

In her motion, Sec. Brunner said the court's ruling “is not conclusive” on the issue of whether a referendum is still a viable possibility, and she asks for the court's guidance to ensure that any decision she might make would not bring unintended consequences.

“The court should resolve this issue, because if the secretary answers the question without the court's guidance, either path she takes might carry negative consequences for her office, the referendum process and this court,” she argued.

If the court rules that a referendum is not possible, Ms. Brunner asks the court to reconsider that portion of its decision, noting that the language of its ruling “leaves some room for speculation and debate.”

Specifically, she pointed to a portion of the ruling in which the court uses the past tense in noting that the parties involved did not seek a stay of SB 117's effective date, which would indicate the period for a possible stay would seem to have passed, while at the same time using the present tense to state that the court has no opinion on whether a stay “may be permissible.”

Additionally, she noted that Justice Evelyn Lundberg Stratton specifically stated the bill “is a valid law subject to the referendum process” in her concurring opinion.

The uncertainty on the issue, Ms. Brunner said in the motion, has placed her in an “untenable” position. She does not, she argued, want to send citizens on a futile effort to gather signatures for a referendum the court never intended to take place or unduly deprive citizens of the right to a referendum while ascribing that limitation to the court.

“Additionally, no matter which way the secretary acts, by either accepting or denying the referendum petitions, her decision may lead to further litigation and reappearance of the matter before this court,” she said in the motion. “As such, the secretary asks for the court to resolve this question now rather than later.”

In response to paint litigation, certain Lloyd's syndicates and more than 50 other insurers filed suit in February 2006 in New York State Supreme Court seeking to nullify any duty to indemnify various paint manufacturers for the cost of abatement or damages caused by their product. Parts of that case have been dismissed.