Smith v. Ohio State Univ.

[This opinion has been published in Ohio Official Reports at 176 Ohio St.3d 289.]

SMITH, APPELLEE, v. OHIO STATE UNIVERSITY, APPELLANT.

[Cite as Smith v. Ohio State Univ., 2024-Ohio-764.]

Subject-matter jurisdiction—Affirmative defenses—Discretionary immunity—R.C.

2743.02—R.C. 2743.03—Under R.C. Chapter 2743, Court of Claims has

subject-matter jurisdiction to hear suits brought against the state when the

state has waived its sovereign immunity—The state has not waived its

sovereign immunity when it acts pursuant to its highly discretionary

legislative, judicial, executive, or planning functions—Discretionary

immunity is a jurisdictional bar, not an affirmative defense, to suits brought

against the state in Court of Claims—Court of appeals’ judgment reversed

and cause remanded to court of appeals.

(No. 2023-0009—Submitted September 13, 2023—Decided March 6, 2024.)

APPEAL from the Court of Appeals for Franklin County,

No. 22AP-125, 2022-Ohio-4101.

__________________

KENNEDY, C.J.

{¶ 1} In this discretionary appeal from a judgment of the Tenth District

Court of Appeals, we consider whether discretionary immunity is a jurisdictional

bar or an affirmative defense to suits brought against the state or its

instrumentalities. We hold that the Court of Claims, the statutory body that has

original jurisdiction over claims against the state, does not have such jurisdiction

when discretionary immunity applies. We therefore reverse the judgment of the

Tenth District regarding discretionary immunity and remand this matter to that

court to determine whether Ohio State University is protected by discretionary

immunity regarding its decisions in response to the COVID-19 pandemic—namely,

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to suspend in-person instruction, transition to virtual learning, restrict access to its

campus, and provide limited refunds to students.

I. Facts and Procedural Background

{¶ 2} In response to the COVID-19 pandemic and for a portion of the spring

2020 semester, appellant, Ohio State University (“Ohio State”), suspended face-to-

face instruction, transitioned to virtual learning, and restricted in-person access to

its campus. Ohio State also provided pro rata refunds to students for the

recreational fee and for room and board. However, pro rata refunds were not

provided for the instructional fee, general fee, learning-technology fee, student-

activity fee, student-union-facility fee, international-undergraduate-student fee,

Central Ohio Transit Authority (“COTA”) bus fee, program fees, course fees, and

nonresident surcharges.

{¶ 3} Appellee, Brooke Smith, was a fourth-year student at Ohio State and

was enrolled in the College of Education and Human Ecology when Ohio State

suspended in-person instruction. Smith filed a class-action complaint in the Court

of Claims against the Ohio Department of Higher Education (“ODHE”) and Ohio

State, alleging breach of contract, unjust enrichment, and conversion. According

to Smith, students “lost the benefit of the education for which they paid, and/or the

services for which their fees paid, without having their tuition and fees refunded to

them” as a result of ODHE and Ohio State’s decisions in response to the COVID-

19 pandemic. Smith sought the “disgorgement of the pro-rated portion of tuition

and fees, proportionate to the amount of time that remained in the Spring Semester

2020 when classes moved online and campus services ceased being provided.”

{¶ 4} ODHE moved to dismiss the action. ODHE argued that it was not a

proper defendant in the matter, because it did not operate any Ohio institution of

higher education or collect any tuition or fees from students. In response, Smith

voluntarily dismissed her claims against ODHE.

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{¶ 5} Ohio State also moved to dismiss Smith’s complaint but on the basis

that Smith failed to state a claim upon which relief could be granted. Ohio State

did not reference discretionary immunity in its motion to dismiss. The Court of

Claims denied Ohio State’s motion to dismiss and ordered Ohio State to answer

Smith’s complaint. In its answer, Ohio State asserted discretionary immunity as an

affirmative defense.

{¶ 6} Subsequently, Smith moved the Court of Claims to certify the case as

a class action. In a footnote in her motion, Smith stated that she was no longer

pursuing her conversion claim. Ohio State opposed Smith’s motion for class

certification and filed a motion for summary judgment on the issue of liability. The

Court of Claims issued a decision granting Smith’s motion for class certification

and certifying the class as “all undergraduate students enrolled in classes at the

Columbus campus of The Ohio State University during the Spring 2020 semester

who paid tuition, the general fee, student activity fee, learning technology fee,

course fees, program fees, and/or the COTA bus fee.” Ohio State appealed that

decision to the Tenth District Court of Appeals, see R.C. 2505.02(B)(5), and Ohio

State’s summary-judgment motion remains pending before the Court of Claims.

{¶ 7} On appeal, Ohio State asserted eight assignments of error challenging

the Court of Claims’ class certification. 2022-Ohio-4101, 200 N.E.3d 1249, ¶ 23.

In two of its related assignments of error, Ohio State argued that the Court of Claims

failed to conduct a rigorous analysis under Civ.R. 23 regarding the common

evidence of class-wide injury. In another of its assignments of error, Ohio State

argued that the Court of Claims did not have jurisdiction over the matter, because

Ohio State’s “decision to temporarily close or restrict access to its facilities in the

face of the COVID-19 pandemic” was protected by discretionary immunity. 2022-

Ohio-4101 at ¶ 23.

{¶ 8} The court of appeals agreed with Ohio State that the class was

improperly certified, finding that the Court of Claims failed to rigorously analyze

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the requirements for class certification. Id. at ¶ 48. However, the Tenth District

did not agree with Ohio State that discretionary immunity was a jurisdictional bar;

instead, the court held that discretionary immunity is an affirmative defense. Id. at

¶ 28-29. The court of appeals declined to decide in the first instance whether Ohio

State was entitled to discretionary immunity as an affirmative defense. Id. at ¶ 30.

The court of appeals determined that its decision regarding the Court of Claims’

failure to rigorously analyze the requirements for class certification rendered moot

the remaining assignments of error. Id. at ¶ 48.

{¶ 9} Ohio State appealed to this court only on the issue whether

discretionary immunity is a jurisdictional bar or an affirmative defense. We

accepted the following proposition of law for review: “The Court of Claims does

not have subject matter jurisdiction to hear claims against the State that are subject

to discretionary immunity.” See 169 Ohio St.3d 1457, 2023-Ohio-758, 204 N.E.3d

565.

{¶ 10} We hold that discretionary immunity is a jurisdictional bar, not an

affirmative defense, to suits brought against the state in the Court of Claims. We

therefore reverse the judgment of the Tenth District regarding discretionary

immunity and remand this matter to that court to determine whether discretionary

immunity applies as a jurisdictional bar to Smith’s suit against Ohio State.

II. Law and Analysis

A. Standard of Review

{¶ 11} Whether a trial court had subject-matter jurisdiction is a question of

law that we review de novo. State v. Hudson, 169 Ohio St.3d 216, 2022-Ohio-

1435, 203 N.E.3d 658, ¶ 19; see also State ex rel. Ohio Civ. Serv. Emps. Assn. v.

State, 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 12.

B. Sovereign Immunity and the Court of Claims

{¶ 12} Under the doctrine of sovereign immunity, “a state is not subject to

suit in its own courts unless it expressly consents to be sued.” Proctor v.

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Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, ¶ 7. The Ohio

Constitution as amended in 1912 allows “[s]uits [to] be brought against the state,

in such courts and in such manner, as may be provided by law.” Ohio Constitution,

Article I, Section 16.

{¶ 13} This constitutional provision is “not self-executing;” rather,

“legislative authority by statute is required as a prerequisite” to allowing suits

against the state. Raudabaugh v. State, 96 Ohio St. 513, 518, 118 N.E. 102 (1917);

see also Krause v. State, 31 Ohio St.2d 132, 285 N.E.2d 736 (1972), paragraph

three of the syllabus (“statutory consent is a prerequisite”), overruled in part on

other grounds by Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31,

426 N.E.2d 784 (1981). This court has also held that sovereign immunity may,

consistent with this constitutional provision, be altered or abrogated judicially.

Schenkolewski at paragraph one of the syllabus.

{¶ 14} Through the Court of Claims Act, R.C. 2743.01 et seq., the state

waived sovereign immunity with respect to certain claims and consented to be sued

and have its liability determined in the Court of Claims. Under R.C. 2743.03(A)(1),

the Court of Claims “has exclusive, original jurisdiction of all civil actions against

the state permitted by the waiver of immunity contained in section 2743.02 of the

Revised Code.” In addition to having jurisdiction over civil suits against the state

for money damages, the Court of Claims has jurisdiction over ancillary claims for

injunctive or declaratory relief. Ohio Hosp. Assn. v. Ohio Dept. of Human Servs.,

62 Ohio St.3d 97, 103-104, 579 N.E.2d 695 (1991); see also R.C. 2743.03(A)(2)

(“If the claimant in a civil action as described in [R.C. 2743.03(A)(1)] also files a

claim for a declaratory judgment, injunctive relief, or other equitable relief against

the state that arises out of the same circumstances that gave rise to the civil action

described in [R.C. 2743.03(A)(1)], the court of claims has exclusive, original

jurisdiction to hear and determine that claim in that civil action”). As used in R.C.

Chapter 2743, “ ‘[s]tate’ means the state of Ohio, including, but not limited to, the

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general assembly, the supreme court, the offices of all elected state officers, and all

departments, boards, offices, commissions, agencies, institutions, and other

instrumentalities of the state.” R.C. 2743.01(A). And under R.C. 2743.02(A)(1),

the state “consents to be sued, and have its liability determined, * * * in accordance

with the same rules of law applicable to suits between private parties.”

{¶ 15} While the judiciary may abrogate the state’s sovereign immunity,

this court has held that the judiciary may also determine the outer limits of the

statutory waiver of that immunity. “In Reynolds v. State[, 14 Ohio St.3d 68, 471

N.E.2d 776 (1984)], * * * this court squarely addressed the meaning of R.C.

2743.02(A)(1), [and] this court acknowledged that the state’s potential liability

under R.C. Chapter 2743 is not unbounded.” Wallace v. Ohio Dept. of Commerce,

96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 34. In particular, “this

court rejected the notion that the General Assembly’s abrogation of sovereign

immunity in R.C. 2743.02 extended to essential acts of governmental

decisionmaking.” Id., citing Reynolds at 70. In Reynolds, this court held:

The language in R.C. 2743.02 that “the state” shall “have its

liability determined * * * in accordance with the same rules of law

applicable to suits between private parties * * * ” means that the

state cannot be sued for its legislative or judicial functions or the

exercise of an executive or planning function involving the making

of a basic policy decision which is characterized by the exercise of

a high degree of official judgment or discretion.

(Ellipses in original.) Id. at paragraph one of the syllabus.

{¶ 16} Therefore, the Court of Claims does not have jurisdiction when the

state makes highly discretionary decisions pursuant to its legislative, judicial,

executive, or planning functions, because the state has not waived its sovereign

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immunity for those decisions. Consequently, discretionary immunity is a

jurisdictional bar, not an affirmative defense. See State ex rel. Parker Bey v. Bur.

of Sentence Computation, 166 Ohio St.3d 497, 2022-Ohio-236, 187 N.E.3d 526,

¶ 18. Because the Court of Claims does not have subject-matter jurisdiction when

discretionary immunity applies, discretionary immunity cannot be waived and may

be raised at any time. See State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880,

951 N.E.2d 1025, ¶ 10.

{¶ 17} It is important to note that discretionary immunity is not absolute.

Once a discretionary decision has been made to engage in a certain activity, “the

state may be held liable, in the same manner as private parties, for the negligence

of the actions of its employees and agents in the performance of such activities.”

Reynolds at paragraph one of the syllabus; see also Wallace at ¶ 35. This means

that when a suit challenges the manner in which the state implements one of its

discretionary decisions, the Court of Claims will not be barred from hearing the

case. See Risner v. Ohio Dept. of Transp., 145 Ohio St.3d 55, 2015-Ohio-4443, 46

N.E.3d 687, ¶ 23.

C. Subject-Matter Jurisdictional Bar Versus Affirmative Defense, in Practice

{¶ 18} “ ‘Subject-matter jurisdiction of a court connotes the power to hear

and decide a case upon its merits’ and ‘defines the competency of a court to render

a valid judgment in a particular action.’ ” Cheap Escape Co., Inc. v. Haddox,

L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 6, quoting

Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972). Subject-matter

jurisdiction may never be waived and may be challenged at any time. Mbodji at

¶ 10. “ ‘[I]n the absence of subject-matter jurisdiction, a court lacks the authority

to do anything but announce its lack of jurisdiction and dismiss.’ ” Hudson, 169

Ohio St.3d 216, 2022-Ohio-1435, 203 N.E.3d 658, at ¶ 22, quoting Pratts v. Hurley,

102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 21.

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{¶ 19} An affirmative defense is different than a subject-matter

jurisdictional bar because an affirmative defense considers the pleadings and claims

of the parties. See Parker Bey, 166 Ohio St.3d 497, 2022-Ohio-236, 187 N.E.3d

526, at ¶ 17-18. An affirmative defense “ ‘ “admits that the plaintiff has a claim

* * * but asserts some legal reason why the plaintiff cannot have any recovery on

that claim.” ’ ” Id. at ¶ 18, quoting State ex rel. Plain Dealer Publishing Co. v.

Cleveland, 75 Ohio St.3d 31, 33, 661 N.E.2d 187 (1996), quoting 1 Klein, Browne

& Murtaugh, Baldwin’s Ohio Civil Practice, Section T 13.03, 33 (1988). This

means that any “defense that prevents a plaintiff * * * from even establishing a

prima facie case is not an affirmative defense.” Id. Unlike a lack of subject-matter

jurisdiction, all affirmative defenses, other than those listed in Civ.R. 12(B), “are

waived if not raised in the pleadings or in an amendment to the pleadings,” Jim’s

Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18, 20, 688 N.E.2d 506 (plurality

opinion).

{¶ 20} The Tenth District erred by finding that Ohio State had not

demonstrated that discretionary immunity is jurisdictional in nature. Based on this

error, the court of appeals did not decide whether discretionary immunity applies

to this case. Therefore, we remand this matter to the Tenth District to determine

whether Ohio State is immune from suit in the Court of Claims regarding its

decisions in response to the COVID-19 pandemic, including to suspend in-person

instruction, transition to virtual learning, restrict access to its campus, and provide

pro rata refunds to students only for the recreational fee and for room and board.

III. Conclusion

{¶ 21} Pursuant to R.C. Chapter 2743, the Court of Claims has subject-

matter jurisdiction to hear suits brought against the state when the state has waived

its sovereign immunity. The state has not waived its sovereign immunity when it

acts pursuant to its highly discretionary legislative, judicial, executive, or planning

functions. Therefore, discretionary immunity is a jurisdictional bar, not an

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affirmative defense, and the Court of Claims does not have subject-matter

jurisdiction over suits brought against the state when discretionary immunity

applies. Since the Tenth District Court of Appeals concluded that discretionary

immunity was an affirmative defense and did not decide whether discretionary

immunity applied in this case, we remand this matter to the Tenth District for it to

determine whether discretionary immunity protects Ohio State from Smith’s suit.

Judgment reversed

and cause remanded.

FISCHER, DEWINE, and DETERS, JJ., concur.

BRUNNER, J., dissents, with an opinion joined by DONNELLY and STEWART,

JJ.

__________________

BRUNNER, J., dissenting.

{¶ 22} Ohio’s sovereign-immunity-waiver statutes allow people to bring

actions against the state for liability and damages, determined in the same manner

as in actions between private parties. See R.C. 2743.02(A)(1) and 2743.03(A)(1).

Private parties generally do not engage in legislative or judicial functions. Thus,

people are barred from bringing suit against the state for its decisions involving

legislative or judicial functions. But the state may not necessarily be shielded from

liability for injury or loss that occurs when it implements such decisions. The

statutes by which the state waives sovereign immunity do not bar the Court of

Claims from hearing or deciding whether the state is immune from suit or liability.

If that were the case, the mere raising of an immunity defense would negate that

court’s ability to act. Because the majority’s decision, in effect, creates this kind

of rubric, I respectfully dissent.

Statutory basis for the Court of Claims’ subject-matter jurisdiction

{¶ 23} Under statutory law, the Court of Claims has exclusive subject-

matter jurisdiction over claims against the state for money damages. See R.C.

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2743.02(A)(1) and 2743.03(A)(1); see also Bla-Con Industries, Inc. v. Miami

Univ., 12th Dist. Butler No. CA2006-06-127, 2007-Ohio-785, ¶ 12 (citing several

cases in support of its statement that “the Court of Claims retains exclusive

jurisdiction over complaints against the state seeking monetary damages”).

Appellee, Brooke Smith, properly invoked the subject-matter jurisdiction of the

Court of Claims when she filed her money-damages claim against appellant, Ohio

State University (“Ohio State”).1 If following this court’s remand the Tenth District

Court of Appeals determines that Ohio State is entitled to discretionary immunity,

its decision does not affect the subject-matter jurisdiction of the Court of Claims.

Thus, even if the state is no longer a party or money damages are no longer sought,

the Court of Claims has jurisdiction to resolve the case, because its subject-matter

jurisdiction as defined by statutes permits it to render a valid judgment in the action

before it. See Nease v. Med. College Hosps., 64 Ohio St.3d 396, 399, 596 N.E.2d

432 (1992), quoting R.C. 2743.03(E)(2) (“ ‘The court may remand a civil action to

the court in which it originated upon a finding that the removal petition does not

justify removal, or upon [a] finding that the state is no longer a party.’ * * * The

court is not required to remand the case upon a finding that the state is no longer a

party” [emphasis sic]); Cristino v. Ohio Bur. of Workers’ Comp., Ct. of Cl. No.

2008-10773, 2013-Ohio-5936, ¶ 36, quoting Morrison v. Steiner, 32 Ohio St.2d 86,

87, 290 N.E.2d 841 (1972) (“Plaintiff has failed to provide support for the assertion

that the Court of Claims can ‘transfer’ a case to a common pleas court when

monetary damages are no longer sought. ‘Subject-matter jurisdiction of a court

connotes the power to hear and decide a case upon its merits * * * [and] defines the

competency of a court to render a valid judgment in a particular action’ ”).

1. Under R.C. 2743.01(A), Ohio State meets the definition of “state” because it is a state

instrumentality. See Thacker v. Bd. of Trustees of Ohio State Univ., 35 Ohio St.2d 49, 51-52, 298

N.E.2d 542 (1973), overruled in part on other grounds by Schenkolewski v. Cleveland Metroparks

Sys., 67 Ohio St.2d 31, 426 N.E.2d 784 (1981).

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{¶ 24} Thus, when no state actor remains in the case or when money

damages are no longer sought, a determination that immunity applies does not

deprive the Court of Claims of jurisdiction. Moreover, the power to determine

immunity is just one facet of the Court of Claims’ jurisdiction, and when the state

does not argue that immunity applies, the Court of Claims is not deprived of

jurisdiction to adjudicate the merits of the action. See In re K.K., 170 Ohio St.3d

149, 2022-Ohio-3888, 209 N.E.3d 660, ¶ 48, quoting Corder v. Ohio Edison Co.,

162 Ohio St.3d 639, 2020-Ohio-5220, 166 N.E.3d 1180, ¶ 14, quoting State v.

Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 23 (explaining

that subject-matter jurisdiction is not dependent on the rights of the parties in a

particular case, but “ ‘instead, “the focus is on whether the forum itself is competent

to hear the controversy” ’ ”).

Discretionary immunity as an affirmative defense

{¶ 25} The state’s argument that discretionary immunity applies should be

treated as a belated affirmative defense that, even though pled in its answer, was

neither timely argued nor proved in a trial court, as required. See State ex rel. Koren

v. Grogan, 68 Ohio St.3d 590, 594, 629 N.E.2d 446 (1994); State ex rel. Vanni v.

McMonagle, 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243, ¶ 13-15.

{¶ 26} The state’s claim of immunity, a question of law, may be determined

by a court of common pleas, by the Court of Claims, or by an appellate court

reviewing a lower court’s decision. Common pleas courts and the Court of Claims

are trial courts under provisions of the Ohio Constitution and the Revised Code.

Ohio Constitution, Article IV, Section 4(B); R.C. 2743.03(A)(1) and (2). A court

of common pleas may hear an action against the state for declaratory judgment or

injunctive relief. See R.C. 2743.02(A)(1) (“To the extent that the state has

previously consented to be sued, this chapter has no applicability”); R.C.

2743.03(A)(2). But a court of common pleas does not have subject-matter

jurisdiction to adjudicate money-damages claims against the state, see R.C.

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2743.03(A)(1), even though it may be able to determine whether a state entity is

immune from suit or liability, see R.C. 2743.03(A)(2).

{¶ 27} The majority’s decision today appears to relegate the determination

of discretionary immunity to only courts of common pleas and appellate courts on

review, even though the Revised Code specifically states that the Court of Claims

has jurisdiction over all claims before it. So, under the majority’s approach, the

critical question at the outset is whether there is an unresolved issue of, in this case,

discretionary immunity.

The Court of Claims may determine its own jurisdiction

{¶ 28} Cloaking the question of discretionary immunity as “jurisdictional”

does not mean that it is a jurisdictional question. If it did, the Court of Claims

would not be permitted to determine its own jurisdiction. Yet the majority confuses

the issue by remanding this case to the court of appeals, appearing to depart from

the general jurisdictional grant of R.C. 2743.02 and 2743.03 in contravention of

statutory law that the Court of Claims has “exclusive, original jurisdiction of all

civil actions against the state permitted by the waiver of immunity contained in

section 2743.02 of the Revised Code,” R.C. 2743.03(A)(1). What the majority

opinion should not be read to say is that if there is even a whiff of an immunity

argument, the Court of Claims has no jurisdiction to decide that question—even

though it and each and every other court is imbued with the power to determine its

own jurisdiction. See State ex rel. Ohio Bur. of Workers’ Comp. v. O’Donnell, 172

Ohio St.3d 407, 2023-Ohio-428, 224 N.E.3d 1057, ¶ 8, quoting State ex rel. Plant

v. Cosgrove, 119 Ohio St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5 (“Thus,

‘[i]n the absence of a patent and unambiguous lack of jurisdiction, a court having

general subject-matter jurisdiction can determine its own jurisdiction’ ” [brackets

sic]). The statutory language is clear that an immunity question may be determined

by the Court of Claims. If the immunity question has been determined by another

court, such as on removal under R.C. 2743.03(E), the case comes to the Court of

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Claims with that question having already been decided. The statute continues to

describe the broad powers of the Court of Claims:

The court shall have full equity powers in all actions within its

jurisdiction and may entertain and determine all counterclaims,

cross-claims, and third-party claims.

If the claimant in a civil action as described in division

(A)(1) of this section also files a claim for a declaratory judgment,

injunctive relief, or other equitable relief against the state that arises

out of the same circumstances that gave rise to the civil action

described in division (A)(1) of this section, the Court of Claims has

exclusive, original jurisdiction to hear and determine that claim in

that civil action.

R.C. 2743.03(A)(1) and (2). The statute creating the Court of Claims promotes

flexibility, and hence judicial economy and fair process, by permitting entire

actions, including the issue of discretionary immunity, to be decided in one action

by the Court of Claims. Finally, if there had ever been any caselaw before now

holding that discretionary immunity was jurisdictional, there would be a plethora

of decisions from the Court of Claims considering the issue sua sponte, because

every court holds a duty to ensure it has jurisdiction to hear the claims before it.

{¶ 29} In short, I do not want the majority’s decision today to create

confusion and render the statute inoperable or to in effect cause nearly every action

that is brought in the Court of Claims to be subject to dismissal at the moment the

state raises the defense of discretionary immunity. Nor do I want litigants and their

lawyers who would have filed a comprehensive set of claims in the first instance in

the Court of Claims to feel compelled to instead first file a declaratory-judgment

action in a court of common pleas for a determination whether discretionary

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immunity exists under the law. Otherwise, it is highly likely that direct appeals of

the immunity question would ensue, resulting in the case dragging on in the courts

for years. And I do not want to see cases that are meritorious ultimately fail because

of statute-of-limitations or statute-of-repose bars when those cases are finally

brought before the Court of Claims on their merits. See, e.g., Everhart v.

Coshocton Cty. Mem. Hosp., 176 Ohio St.3d 91, 2023-Ohio-4670, 247 N.E.3d 101.

This could occur because common pleas courts and courts of appeals appear limited

in their ability to remove a plaintiff’s case to the Court of Claims. See Adams v.

Cox, 10th Dist. Franklin No. 09AP-684, 2010-Ohio-415, ¶ 11-12 (holding that a

court of common pleas had no authority to transfer a plaintiff’s case to the Court of

Claims under R.C. 2743.03(E), which is the sole mechanism for removal); R.C.

2743.03(E)(1) (allowing for removal to the Court of Claims only when a third-party

complaint or counterclaim is filed against the state in an action commenced in any

court other than the Court of Claims and requiring the timely filing of a petition for

removal to the Court of Claims). Thus, without a “transfer” or “removal” of a case,

any new case filed in the Court of Claims uses the date of the filing in that court for

the purposes of statutes of limitations and repose.

{¶ 30} Many cases brought before the Court of Claims involve serious

personal injury or death allegedly caused by wanton and reckless actions of the

state or by medical malpractice. Issues of immunity that may affect the jurisdiction

of the Court of Claims should therefore be raised—and decided—at the earliest

possible point in litigation, as part of the action on the merits and not in a bifurcated

process between two courts.

Remand should be to the Court of Claims

{¶ 31} While Ohio State asserted discretionary immunity as an affirmative

defense in its answer, the Court of Claims did not consider whether discretionary

immunity applied, because Ohio State did not argue the doctrine in its motion to

dismiss or in its motion for summary judgment. Determining whether discretionary

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immunity applies could have been the subject of a motion for judgment on the

pleadings or summary judgment, but, again, the issue was not considered by the

Court of Claims.

{¶ 32} When discretionary immunity is timely raised, discovery and

evidence are often required to determine whether it applies, making it more likely

than not a mixed question of fact and law. When discretionary immunity is not

timely raised and is instead raised at the appellate level, the matter should be

remanded to the Court of Claims, or other appropriate trial court, for it to oversee

the discovery process, make evidentiary rulings, and ultimately determine the

immunity issue.

{¶ 33} The Court of Claims, which has expertise developed from years of

litigation on the specific issue of the state’s waiver of immunity, is best suited for

the immunity issues raised by the state here. The purpose of the statutes by which

the state waives its sovereign immunity should not be defeated by a reading that all

questions of the state’s immunity are jurisdictional and not able to be determined

by the Court of Claims. This case is an outlier, one arising from the rare occurrence

of a worldwide pandemic. It appears that the majority reached its conclusions on

jurisdiction because this is one of those unicorns. Its holding should not be

universally applied. Otherwise, egregious situations caused by the state would go

unchecked, despite the existence of specific statutes by which the state waives

sovereign immunity.

Common-law immunity versus statutory immunity

{¶ 34} It is concerning that the majority declares that this court may alter or

abrogate the immunity provisions prescribed by the General Assembly. Majority

opinion, ¶ 13. This is not correct law, statutorily or constitutionally. Perhaps what

the majority means is that it can do so in the context of common law when

discretionary immunity is being raised by the state for the first time on appeal. And

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perhaps this is a situation when the court is trying to do its job as a keeper of the

common law.

{¶ 35} The case the majority relies on, Schenkolewski v. Cleveland

Metroparks Sys., 67 Ohio St.2d 31, 426 N.E.2d 784 (1981), explains that courts can

set the bounds of the common-law doctrine of sovereign immunity, id. at paragraph

one of the syllabus, which is not at issue here. And in my view, the majority is

using Schenkolewski to wedge this unicorn case into some kind of caselaw category

that will help it solve the unusual problems presented here. But Schenkolewski

implies that both the judiciary and the legislature may simultaneously “provide” the

laws governing suits against the state. Id. at 35 (noting that Article I, Section 16 of

the Ohio Constitution “provides simply that suits may be brought against the state

as may be provided by law” but does not explain which branch of government is to

do the providing). For clarity’s sake, Schenkolewski is a case involving the

application of common-law sovereign immunity to a municipal-park district, not

the state, id. at 31-32, and at least one appellate court has recognized that

Schenkolewski has no applicability in determining questions related to statutory

immunity, see R.K. v. Little Miami Golf Ctr., 2013-Ohio-4939, 1 N.E.3d 833, ¶ 10

(1st Dist.).

Determining discretionary immunity

{¶ 36} Elementally, the state’s consent to be sued is explicit in statutes

establishing and governing the Court of Claims, specifically, R.C. 2743.02 and

2743.03. The state’s waiver of sovereign immunity in R.C. 2743.02(A)(1) is

general, and the determination of liability is “subject to the limitations set forth” in

R.C. Chapter 2743. Specifically reserved within R.C. Chapter 2743 is the state’s

immunity from liability for matters that relate to “the performance or

nonperformance of a public duty,” R.C. 2743.02(A)(3)(a), except when a “special

relationship” exists between the injured party and the state, R.C. 2743.02(A)(3)(b).

Ohio State has not asserted that public-duty immunity under R.C. 2743.02(A)(3)(a)

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applies here. Immunity must be raised and proved, and a general assertion of

immunity does not divest the Court of Claims of jurisdiction. See Vanni, 137 Ohio

St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243, at ¶ 13-14.

{¶ 37} The majority misapplies Reynolds v. State, 14 Ohio St.3d 68, 471

N.E.2d 776 (1984) (“Reynolds”), in reaching its conclusion that discretionary

immunity is a jurisdictional bar. See majority opinion at ¶ 15-16. In Reynolds, we

interpreted statutory language waiving sovereign immunity that is contained in R.C.

2743.02. That language requires that the state shall “have its liability determined

* * * in accordance with the same rules of law applicable to suits between private

parties.” R.C. 2743.02(A)(1). We explained that this language means that the state

cannot be sued for the exercise of its legislative or judicial functions or its exercise

of an executive or planning function involving the making of a basic policy decision

that requires the exercise of a “high degree of official judgment.” Reynolds at

paragraph one of the syllabus.

{¶ 38} But that interpretation has little application here. And although Ohio

State was not exercising legislative or judicial functions when it suspended in-

person classes or closed certain facilities during the COVID-19 pandemic, it may

have been exercising executive function involving a basic policy decision requiring

a “high degree of official judgment.” However, Smith is not challenging the

university’s decisions. She is seeking reimbursement for the effects of Ohio State’s

decisions. Smith claims that she did not get what she paid for, and that is the sum

and substance of her claim for money damages. Thus, as in Reynolds, Smith may

seek money damages that arose from Ohio State’s decisions, even though she may

not challenge the propriety of those decisions.

{¶ 39} In Reynolds, the issue was whether the plaintiffs could maintain their

claims for money damages against the state, even if the decision that caused the

money damages was barred from suit. We said they could. Id. at 70-71. We first

concluded that the plaintiffs failed to state a claim insofar as they were attempting

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to challenge the state’s decision to furlough a prisoner under state law. Id. at 70.

We established, however, that while discretionary immunity, if applicable, makes

the decision of the state immune from the suit, it does not shield the state from

liability for an injury or loss that occurs in implementing that decision. Id. at 70-

71. We said that a cause of action could be maintained against the state for personal

injuries proximately caused by the failure to confine the furloughed prisoner during

nonworking hours pursuant to R.C. 2967.26(B), because such a failure to confine

is negligence per se. Id. at 70. We therefore determined that the Court of Claims’

dismissal of the plaintiffs’ action was reversible error, and we remanded the matter

to the Court of Claims. Id. at 71.

{¶ 40} In Reynolds, on remand, the Court of Claims reviewed the evidence

of the state’s conduct following its decision to furlough the prisoner and found the

state liable for the plaintiffs’ injuries, ordering the state to pay money damages to

the plaintiffs. Reynolds v. Div. of Parole & Community Servs., 23 Ohio Misc.2d

31, 39, 492 N.E.2d 172 (Ct. of Cl.1985). Importantly, in Reynolds, the state moved

for summary judgment in the Court of Claims, arguing that it was entitled to

judgment as a matter of law. See Reynolds v. State, 10th Dist. Franklin No. 83AP-

348, 1983 WL 3745, *1 (Oct. 27, 1983), rev’d, Reynolds, 14 Ohio St.3d 68, 471

N.E.2d 776.

{¶ 41} Reynolds does not support any conclusion that discretionary

immunity is a jurisdictional bar or that it can be raised for the first time on appeal.

Even if Reynolds could be read to imply that discretionary immunity is a

jurisdictional bar, its holding applies only to claims made against the decision

giving rise to the injury or loss and not to the injury or loss that may have occurred

as a result of that decision being implemented once decided. Thus, the state could

be entitled to immunity in making its decision, but under Reynolds, claims for

money damages survive for the purposes of adjudication. Consequently, the

majority’s use of Reynolds to support its conclusion that discretionary immunity is

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an all-encompassing jurisdictional bar is a misapplication of Reynolds. See

majority opinion at ¶ 15-16.

Conclusion

{¶ 42} Whether raised in boilerplate language in the answer with no further

argument before the Court of Claims or thereafter argued for the first time in the

court of appeals, Ohio State’s assertion of discretionary immunity is without merit.

No amount of cloaking Ohio State’s discretionary-immunity defense with the

import of being a jurisdictional issue saves it from waiver, because neither the

statutes nor caselaw support the conclusion that the immunity question, itself, is

jurisdictional. When the legal determination of discretionary immunity may turn

on evidence, it is even more important for discretionary immunity to be raised

before a trial court and not for the first time before a court of appeals. The Court

of Claims should determine whether immunity exists, and the court of appeals

should determine whether the Court of Claims’ decision is correct under the law.

{¶ 43} A hard-and-fast rule that discretionary immunity or the

determination of any type of immunity is a jurisdictional question could thwart the

state’s limited waiver of sovereign immunity set forth in R.C. Chapter 2743 and

thereby undermine the Court of Claims’ ability to address claims such as Smith’s

(i.e., claims that the Court of Claims may hear according to Reynolds). Our review

of these issues should not advance any limitation to the state’s consent to be sued

beyond what is provided in the Revised Code or beyond how we have fairly applied

the sovereign-immunity-waiver statutes under common law. No general statement

that sovereign immunity may be “altered or abrogated judicially,” majority opinion

at ¶ 13, creates such power. Accordingly, this court should not make the broad and

unlimited statement that discretionary immunity is a jurisdictional bar; if we do, we

gut sovereign immunity without having any statutory or constitutional authority to

do so.

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{¶ 44} For these reasons, I disagree with the majority’s conclusion that

discretionary immunity is a jurisdictional bar to suits brought against the state in

the Court of Claims. Ohio State should have done more than assert discretionary

immunity as a boilerplate defense in its answer. It should have argued the issue

before the Court of Claims. Having failed to do so, this case should be remanded

to the Court of Claims to fairly address any necessary evidentiary issues related to

Ohio State’s belated defense of discretionary immunity. Accordingly, and for the

reasons expressed in this separate opinion, I respectfully dissent.

DONNELLY and STEWART, JJ., concur in the foregoing opinion.

__________________

Climaco Wilcox Peca & Garofoli Co., L.P.A., and Scott D. Simpkins; and

Bursor & Fisher, P.A., and Joshua D. Arisohn, for appellee.

Squire Patton Boggs (U.S.), L.L.P., John R. Gall, Traci L. Martinez,

Christopher F. Haas, E. Joseph D’Andrea, Elizabeth P. Helpling, and Roger M.

Gold, for appellant.

__________________

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