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Thomas v. Mallett7/15/2005
ple is consistent with the majority opinion.
B. Substantive Due Process
The majority's complete disregard for longstanding principles of tort liability certainly "shocks the conscience," thus violating substantive due process.
In effect, the majority opinion imposes ex post facto liability on the defendants for activities long past. In this regard, the majority opinion is directly contrary to the principles expressed in Justice Anthony Kennedy's concurrence in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998).
In Apfel, the petitioner, a corporation formerly engaged in coal mining, challenged the Coal Industry Retiree Health Benefit Act of 1992 on the grounds that it violated the due process and takings clauses of the constitution by retroactively imposing liability based on the corporation's activities between 1946 and 1965. A plurality of the Court concluded that the law violated the takings clause because it "improperly places a severe, disproportionate, and extremely retroactive burden on Eastern."
Justice Kennedy concurred, arguing that "If retroactive laws change the legal consequences of transactions long closed, the change can destroy the reasonable certainty and security which are the very objects of property ownership." As Justice Kennedy pointed out, " oth stability of investment and confidence in the constitutional system . . . are secured by due process restrictions against severe retroactive legislation." Accordingly, Justice Kennedy would have held the law unconstitutional on due process grounds. Id. at 550 (Kennedy, J., concurring).
Here, it is not a statute, but the majority's decision, that imposes retroactive and severe liability based on "transactions long closed." The principles articulated by Justice Kennedy are no less forceful when applied here; and the majority's decision, which will have the unerring consequence of imposing retroactive liability, is just as unconstitutional as if the same action had been taken by the state legislature.
EQUAL PROTECTION
The equal protection clause "creates no substantive rights," but embodies the general rule that the government "must treat like cases alike." The majority's rule does not "treat like cases alike."
Assume for a moment that the year is 1960, and consider two Wisconsin paint manufacturers. Under the majority opinion, each would be equally culpable, assuming they both produced lead-based paint. Assume further that the first company was a small division of a larger company with minimal contacts in Wisconsin and sold only a small volume of paint in Wisconsin. Assume that the other company was based in Wisconsin, did most of its business here, and operated here for the majority of the time in question.
Assume now that today, the first company is still in business as a large, profitable corporation, and the second company is defunct. Despite the fact that the company that has gone out of business was, in this hypothetical, the most culpable tortfeasor, it escapes all liability. The first company, on the other hand, will bear a disproportionate share of the liability. This is not "treating like cases alike."
PUBLIC POLICY
The majority's disregard for the type of "fair play" guaranteed by the due process and equal protection clauses is illuminated by a review of the six public policy factors this court has identified as tending to preclude liability even when negligence exists.
The six factors are: (1) Whether the injury is too remote from the negligence; (2) Whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor; (3)
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