On Monday, April 27, 2009, The Heartland Institute filed an Amicus brief in the California Supreme Court supporting the defendants in the case who argue California cities and counties ought to be barred from hiring contingent fee lawyers to prosecute public nuisance cases.
The Supreme Court ruled about 23 years ago that such hiring is banned because government prosecutors must not have a financial interest in the outcome of the cases they bring. The contingent counsel in the current case stand to pocket a contingent fee of $9.6 billion, according to Heartland’s analysis. The California Court of Appeal last year refused to follow that 1985 ruling, so the issue now before the Supreme Court is whether the appellate court was wrong.
The suit was brought against former manufacturers of lead-based paint who haven’t made the paint or lead pigment for many decades, whose only activity was the sale of a useful product, legal when sold, and who withdrew that product from the market decades ago, well before government banned it.
Heartland’s brief, authored by Heartland’s senior fellow for legal affairs Maureen Martin, expressed concern that public nuisance cases against manufacturers are being used as an alternative to well-established and balanced product liability law principles. Product liability laws are typically time-limited. Liability for public nuisances, on the other hand, is perpetual, and contours of this common law theory are too vague to be applied to products. The only thing motivating these cases, Heartland argued, is the prospect of billions of dollars in contingent fees for the outside lawyers.
Heartland’s brief argued California law already gives local government bodies powerful tools to prosecute owners of property posing a health risk due to deteriorating lead paint or lead dust and don’t need what is essentially the private tort remedy of public nuisance to supplement them. These remedies are properly aimed at owners of properties containing lead hazards, who can prevent deterioration. Paint companies should not have liability for hazards they could not prevent, Heartland argued.
Heartland also argued that this case violates separation of powers doctrines because the California legislature has already established a comprehensive lead paint enforcement system, so the Court should abstain from deciding the public nuisance case out of respect for the legislative branch of government.