Thursday, December 13, 2007

RI Supreme Court In Lead Paint Ruling

I was alerted to this by Jane Genova on Wednesday morning. It was a very nice way for Sherwin Williams shareholders to welcome the day.

The following is from Jane's blog Law and More

"A victory for both the children of Rhode Island and the three lead-paint public nuisance defendants, the RI Supreme Court today upheld the 2002 Lead Hazard Mitigation Action.

That law puts the responsibility on the landlords to maintain their property as lead-safe. And that's where the accountability is and should be, the lead paint defendants Sherwin-Williams (SHW), Millennium Holdings, and NL Industries (NL) have been arguing. They have also contended that "lead-safe" is the appropriate approach to preventing lead-poisoning of children. "Lead-safe" means that the lead paint is intact, therefore not producing chips or dust containing lead. The plaintiff, including in its recent abatement plan, insists that "lead-free" is the only way to ensure that the state's children are rid of this hazard. "Lead-free" entails removing all the lead paint, a costly procedure.

Does this ruling by the RI Supreme Court bode well for when those Justices hear the appeal of the 2006 RI lead paint verdict by the defendants? After all, this decision aligns with what the defendants have been fighting for since their first lead paint public nuisance trial and throughout and after the second one. There's more: In his opinion, the RI Supreme Court Chief Justice criticized the RI Superior Court Justice. So much for the supposed old-boys' network in the RI court system.

Here is some background on this Act that the RI Supreme Court ruled as constitutional today. According to the Lead Hazard Mitigation Act, landlords are required to:

* Take a lead-hazard awareness course. This runs about three hours.
* Prove that their properties comply with RI Health Department standards. This is done by having their properties certified as lead-safe every two years or each time there is a new tenant.

As the law was written there were exemptions. Those appy to:

* Owner-occupied two- and three-unit properties
* Residences restricted to those 62 years of age or older
* Temporary housing
* Housing certified as lead-safe or lead-free.

It was these exemptions that brought this whole enchilada to the highest Court in the state. Landlords saw these as violations of their rights to equal protection as defined by the RI constitution. They filed a complaint through their lawyer Joseph Larisa Jr.

When the case was heard by Superior Court Judge Stephen J. Fortunato Jr., reports THE PROVIDENCE JOURNAL writer Brandie M. Jefferson, that judge ruled it unconstitutional . However, his decision could not be enforced. That Judge recommended that the General Assembly review that Act.

Most importantly, how he handled that was criticized today by RI Supreme Court Chief Justice Frank J. Williams. Jefferson notes that Judge Fortunato's ruling left the law in limbo. It was still on the books but unenforceable. On this Chief Justice Williams wrote, quotes Jefferson, "We pause to note our concern with the trial justice's refusal to enter final judgment. This, coupled with the trial justice's refusal to restrain the implementation of legislation that he found unconstitutional let the parties in legal limbo."

What we lead-paint watchers pick up loud and clear is: The RI Supreme Court both overturned and criticized the decision of a RI Superior Court Judge. If that could happen with the Lead Hazard Mitigation Act, it could also happen in the Court's review of the second RI lead paint public nuisance trial.

Just the possibility of this is the best holiday present for everyone who has worked so hard to right what we see as the injustices associated with RI Lead Paint Trial II."

This is it, it is over. If RI law determines that "lead safe" is the best way o protest children, the forced removal of that paint by the lower court judge is now against RI law. Further, the justices place the responsibility on the property owners, where it should be, not the producers of the product.

Finally, some common sense in Rhode Island. It only took 3 years.....

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