D’Aurora: Lawyer's for Ohio rapist swung for fences and missed, but case reason for concern

Jack D’Aurora is a partner with the Behal Law Group and produces a podcast, JUSTUS with Jack & Gonzo. He is a frequent Dispatch contributor.

Last December, the Ohio Supreme Court in Brandt v. Pompa changed its position on a 2005 statute, Senate Bill 80, that caps non-economic damages—think pain and suffering. More stunning is how the case brings to light the politics in judicial decisions.

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Amanda Brandt had been sexually abused as a middle schooler by Roy Pompa, now serving a life sentence. Based on Senate Bill 80, part of her jury award was reduced by the trial judge.

Brandt appealed on grounds the statute was unconstitutional as applied to her. Based on the court’s 2016 decision in Simpkins v. Grace Brethren, few anticipated the supreme court would accept the case.

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Jessica Simpkins had been raped at age 15 by her pastor and suffered significant psychological trauma. Did the absence of an exception to the damage cap in Senate Bill 80 for significant psychological trauma — exceptions exist for permanent and substantial deformity and permanent physical injury — mean the statute was unconstitutional as applied to her?

The court didn’t see a problem with the statute.

Still, the business and insurance communities that had lobbied for Senate Bill 80 couldn’t take the risk of the court deciding Brandt’s case differently, and so Pompa got new lawyers. Zieger Tigges & Little, a silk stocking firm that represents well-heeled business interests, took over.

But this time — similar facts to Simpkins’ case, mind you, and highly competent counsel— the court held the statute was unconstitutional as it applied to Brandt.

A rushed decision?

The court’s decision was also notable for another reason. Dissenting, Justice Patrick F. Fischer complained of being rushed and the court’s internal rules not being followed and stated his time for writing a dissent had been “aberrantly and improperly limited.”

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Zieger Tigges and Little, a silk stocking firm that represents well-heeled business interests, took over.

Pompa’s lawyers asked the court on December 27 to reconsider its decision. Asking for reconsideration requires a deft touch — explaining why you believe an error was made without being critical of the court.

Based on Fischer’s statement, Pompa’s lawyers took a tack few lawyers would.

Swing for the fences

They asserted the timing of the court’s decision was suspect and accused the court of manipulating its own rules. Worse yet, they argued, the court’s analysis was “flatly inconsistent” with its prior decision in the Simpkins case, “utterly flawed” and represented “result-oriented judicial activism.”

Pompa’s lawyers then swung for the fences and requested the recusal of Chief Justice Maureen O’Connor and each justice “who elected to proceed” in deciding the case “in non-compliance with the Court's rules and practices.” After all, they had engaged in “stratagems to achieve a particular result” that was “sure to weaken public trust in the judiciary.”

Not the Dale Carnegie approach to litigation, but Pompa’s lawyers weren’t writing for the court as much as they were writing for a larger audience—business and insurance interests.

Two days later, on December 29, the court denied the request for reconsideration, and O’Connor retired on the 31.

Perhaps the court did rush the case along to preclude the possibility of the case taking a different turn with the appointment of conservative jurist in January.

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What gets lost in all this is that for years the Ohio Supreme Court had consistently rebuffed the General Assembly’s efforts to pass tort reform.

From 1991 to 1999, the court struck down as unconstitutional five tort reform laws. Then in December 2007, the court did an abrupt about face in Arbino v. Johnson & Johnson and held the General Assembly was now within its constitutional power to limit noneconomic damages.

What made the difference? In the 90s, the court was comprised of at least three Democrats and one Republican, Justice Paul E. Pfeifer — with the exception of Pfeifer, party affiliation is generally a good predictor of what to expect — who protected the jury system. The court in 2007 was all Republican.

O’Connor, a Republican, had concurred in the Arbino decision but then did the unthinkable and wrote the Brandt decision. Perhaps Pompa’s lawyers felt emboldened by how statehouse Republicans had called for O’Connor’s impeachment last March when she joined three Democrat justices in striking down legislative maps as unconstitutional.

What we’ve seen isn’t how the system is supposed to work, but perhaps we shouldn’t be surprised.

The question is, will this become the new norm. I’m concerned it might.

Jack D’Aurora is a partner with the Behal Law Group and produces a podcast, JUSTUS with Jack & Gonzo. He is a frequent Dispatch contributor.

This article originally appeared on The Columbus Dispatch: How did politics factor in Brandt v. Pompa in Ohio?