07-C-0303 Burton v. American Cyanamid Co.

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Constitutional Law
Due process; Takings Clause; retroactive liability

The Wisconsin Supreme Court’s adoption of the risk contribution doctrine for lead paint manufacturers was not unconstitutional.

“[E]ven assuming that the risk contribution doctrine imposed retroactive liability and that judicial decisions in the civil law area were subject to constitutional challenge on retroactivity grounds, the doctrine does not violate either the Due Process or Takings Clause. As to the former, a civil statute that imposes retroactive liability will be found to violate due process only if it is ‘arbitrary and irrational.’ Usery, 428 U.S. at 15 (holding that black lung compensation scheme satisfied due process because it was a ‘rational measure to spread the costs of the employee’s disabilities to those who have profited from the fruits of their labor’); see also Central States, SE & SW v. Midwest Motor Express, 181 F.3d 799, 806 (7th Cir. 1999) (stating that ‘when a question of retroactivity is involved’ the party claiming a due process violation must show that the provision in question is arbitrary and irrational). As discussed earlier, the Wisconsin Supreme Court explained in great detail in Collins why it adopted the risk contribution doctrine and in Thomas why it applied it in the lead paint context. Nothing about the court’s reasoning is arbitrary and irrational. See generally United States v. Monsanto Co., 858 F.2d 160, 174 (4th Cir. 1988) (holding that retroactive liability under Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which allocates to the defendant the burden of disproving causation, comports with due process).”

“Nor does application of the risk contribution doctrine in the lead paint context constitute an unlawful taking. The Takings Clause of the Fifth Amendment bars the taking of ‘private property . . . for public use without just compensation.’ Defendants cite no authority for the proposition that there can be a judicial taking. In Stop the Beach Renourishment, 130 S. Ct. 2592 (2010), four justices supported this idea, not enough to establish a binding precedent. Defendants also fail to identify any private property which would be the subject of a taking. Even if the risk contribution doctrine actually imposed liability, the imposition of general liability does not constitute a taking of private property. McCarthy v. City of Cleveland, 626 F.3d 280, 286 (6th Cir. 2010).”

07-C-0303 Burton v. American Cyanamid Co.

E.D.Wis., Adelman, J.