An innocent defendant, still proven guilty

By The SE Texas Record | Oct 30, 2010

The dealer calls draw poker with deuces wild. You wind up with three aces and two twos! Five of kind! Five aces! Unbeatable! But the dealer has four tens, natural, and declares deuces aren't wild after all. All you have is a full house. Dealer wins!

You put your derringer on the table and wait for him to amend his decision. Changing the rules of the game after it's over isn't fair.

The rules of legislation are similar. There are constitutional prohibitions against enacting most retroactive laws, and they should be upheld.

It's hard to disagree in principle with the State Supreme Court's decision last week to invalidate such a law, one that granted bottle cap maker Crown Cork and Seal retroactive protection from asbestos lawsuits.

And yet, holding Crown responsible for often dubious asbestos claims against a company it purchased more than four decades ago doesn't seem right either.

Crown never made products with asbestos, but Mundet Cork, the company it purchased 44 years ago, did. Crown purchased Mundet in 1966 for $7 million and has since spent 59 times that amount--$413 million--resolving claims made decades later against Mundet.

In 2003, the state legislature sought relief for Crown, incorporating retroactive relief for the company into asbestos litigation reform. The Court overturned that provision last week.

Justice David Medina concluded that "the Legislature's interest in protecting 'innocent' defendants does not justify its assumption here of the judiciary's role of adjusting private obligations incurred under existing law."

Granted, the Legislature ought not to usurp the prerogatives of the Court, and vice versa, but this lesson in civics, and the importance of high-quality district court justice, is instructive.

It's a safe bet that Crown would never have had to shell out $413 million in settlements if lower courts had seen fit to adjust private obligations in an equitable manner. The courts didn't do their job, so Crown and its allies sought justice the only other place--in the legislature.

Once bitten by the judiciary, twice shy. And now twice bitten.

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