Civil Justice System - Protecting All Citizens, Even Hypocrites

Mar 12, 2014

Civil Justice System - Protecting All Citizens, Even Hypocrites

Recent divergent news stories have prompted me to think about government regulations and our civil justice system. There was the leakage and chemical pollution of water supplies in West Virginia, the Exxon CEO complaining about fracking in his own back yard, seemingly all the speakers at the recent C-PAC event railing against government regulations, a federal report on the prevalence of harm to residents in nursing homes, and the government asking why auto manufacturers fail to fix problems that they know are leading to injuries and deaths.

We have regulations at the federal and state level that are railed against by politicians and corporate entities as being nothing more than job killers. Proponents argue that regulations are in place so that corporate activities don't become people and environment killers. We've had a thirty plus year attack on, and rollback of, government regulations. Accompanying that regulatory rollback has been another attack – on the ability of citizens to access the civil justice system to try to prevent harm by seeking injunctive relief or to be compensated for harms suffered.

The basic premise of our civil justice system is that if you are physically injured, if your property is damaged or if your rights are violated, by the wrong doing or negligence of another, you have the right to seek to have the wrong doer held responsible and accountable in a court of law. The constitutions of the United States and Montana guarantee our rights of access to our courts and to have our cases heard by a jury of our peers. The civil justice system also provides citizen access to the courts to try to prevent harms from occurring in the first place.

The jury was an important aspect of English law that was a hot topic at the time of our nation’s birth. Juries in England and in the colonies at that time were restricting the power of government and powerful commercial interests to run roughshod over ordinary citizens. Jefferson wrote to Tom Paine: "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

Regulations and the civil justice system work together. Regulations help to prevent harm. If regulations fail, the civil justice system can hold the wrong doer accountable and responsible for the harms caused. The threat of being held legally accountable in the civil justice system sometimes acts as a deterrent when regulations are absent or ineffectual. And, some regulations provide a mechanism for compensating for some harms.

Over the past several decades the public has been deluged with misleading rhetoric that portrays regulations, trial lawyers, juries and the civil justice system as the scourge of the land. A scourge that, if unchecked, will lead to the destruction of business and even the country itself. This rhetoric flows from so-called tort "reformers," groups and individuals that are almost always fronts for corporations. The same corporations that trial lawyers hold legally responsible for the injuries their actions or products cause.

And, these are often the same corporations that complain about regulations. They want little or no regulation, and they want little or no exposure to accountability and responsibility in the civil justice system. They view regulations as unnecessary burdens, and also seek to shield themselves from legal accountability for the harms they cause.

Now, I've talked before about one of those twists that has elements of both irony and hypocrisy. Denny Rehberg, while a state legislator and in Congress, was one of those voices singing the corporate siren song for tort reform and deregulation. Ironic in that Rehberg sought the benefit of a civil justice system that he had previously sought to deny to citizens - his day in court before a jury to seek compensation for an injury he had suffered to his property. Hypocritical in that he could lambast citizens who have the audacity to go to court against public officials to protect our public lands from harm, yet go to court himself against public officials to seek damages for harm to his private lands.

You can put the Exxon CEO in this hypocrisy gang. Exxon has fought regulations and citizen access to the courts for decades, but when infrastructure development related to fracking threatened his property, he went to court, along with former Congressman Dick Armey, another avid deregulator and tort reformer.

Chemical companies like those in West Virginia, anti-regulation zealots like those at C-PAC, nursing home corporations, and auto manufacturers are at least consistent – they don't want to be held accountable or responsible, either by regulation or by the civil justice system. I wonder if they would support a hypocrisy clause - any industry, politician, corporation or CEO that advocates for limiting or denying citizen access to the civil justice system forfeits their right to access the courts should they or their property be harmed or at risk of being harmed.

Our Constitutional rights are fundamental to our country’s success. While all may not agree with someone’s decision to sue, we should all defend his constitutional right under the Seventh Amendment to take his case before a jury – even if he is a hypocrite.

This is Al Smith for the Montana Trial Lawyers Association.