Reducing the Power of Juries

If you want to know whether people are embarrassed about a decision or announcement needing to be made or are just trying to sneak something through hoping the public and media aren't paying attention -- just watch the day of the week or time of the year when those decisions or announcements are made.

Friday afternoons after financial markets have closed for the weekend are often when companies announce they’ve lost millions or billions. Around Thanksgiving (usually after) is a popular time for corporate announcements of mass layoffs.

Just before Christmas is when the US military attacked Panama and NAFTA was passed by Congress and signed by President Clinton. It’s also a popular time for mass layoff announcements by corporations. The Ohio General Assembly a few ago right after Christmas passed a major campaign finance “reform” package increasing individual contribution “limits” by 400% and permitting business corporations to be involved directly in elections for the first time in nearly a century.

It happened again.

Two days after Christmas 2007, the Ohio Supreme Court decided that the power of people like you and me to judge our peers in a court of law (otherwise known as juries) was significantly reduced.

The Ohio Supremes on December 27 in Arbino v. Johnson & Johnson ruled that Senate Bill 80 passed by the Ohio legislature in 2005 capping personal injury awards was not a violation of the constitutional rights of plaintiffs (for example, people who are victims of medical malpractice).

By capping personal injury awards, the Supremes capped the right to decide of people who make up juries. Corporate-funded state legislators and state supreme court justices have made the decision for us. Citizens who compose juries no longer possess the authority to decide fair compensation for injuries suffered by our fellow citizens -- even after sitting through an entire legal case, listening to evidence and arguments presented by both sides, and ruling in favor of a plaintiff.

Justice Paul E. Pfeifer, in his written dissent (one of two Justices who voted against) asserted that the decision deprives plaintiffs of their right to a trial by jury and that nothing now prevents the Ohio legislature from further limiting damages to $1. "After today, what meaning is left in a litigant's constitutional right to have a jury determine damages?"

This decision serves corporate interests of course. With citizens possessing little or no power these days to either (a) define corporate actions, or (b) regulate corporate abuse, the only alternative we have to respond to corporate harms are lawsuits.

Now that is severely limited in Ohio.

It’s easy to look at this decision through several different lenses -- the specific case of Arbino v. Johnson & Johnson and the general issue of frivolous lawsuits being two of them. More instructive, however, is the lens of public power.
Does this decision increase the authority of the public (namely those on juries) to make decisions in a court of law? To determine to what extent people who are harmed should be fairly compensated for personal pain and suffering and for economic losses?

The answer to these question may suggest why the Ohio Supremes made their ruling two days after Christmas.

It also suggest that our work beginning in this New Year needs to be about doing all we can to uncap the commitment to expanding our right to decide. The Right to Decide — whether it’s our health care, jobs, education, community, media, energy, foreign policy, environment, vote counting systems, lawsuit damages, etc. — is the single most important issue in 2008.