The opinion
[This opinion has been published in Ohio Official Reports at 83 Ohio St.3d 1208.]
DEROLPH v. THE STATE OF OHIO.
[Cite as DeRolph v. State, 1998-Ohio-525.]
(No. 95-2066—Submitted March 24, 1998—Decided August 21, 1998.)
ON MOTION OF APPELLANTS from the Perry County Court of Common Pleas, No.
22043.
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{¶ 1} This matter is before the court on the motion of appellants filed March
23, 1998. The court, having remanded the cause to the trial court for further
proceedings, is now without jurisdiction to decide this motion.
{¶ 2} When the court reasserted jurisdiction over DeRolph v. State (1997),
78 Ohio St.3d 193, 677 N.E.2d 733, and 78 Ohio St.3d 419, 678 N.E.2d 886, it was
for the sole purpose of resolving “* * * any election-related challenge to the May
5, 1998 election * * *.” State ex rel. Taft v. Franklin Cty. Court of Common Pleas
(1998), 81 Ohio St.3d 1244, 691 N.E.2d 677.
{¶ 3} Accordingly, the motion of appellants is ordered stricken from the
court’s records.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.
COOK, J., dissents.
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COOK, J., dissenting.
{¶ 4} I respectfully dissent. Today’s decision that the court lacks
jurisdiction to rule on the pending motion cannot be squared with the court’s
previous assertion of jurisdiction over State ex rel. Taft v. Franklin Cty. Court of
Common Pleas (1998), 81 Ohio St.3d 1244, 691 N.E.2d 677. In Taft, the court
determined that it could assert exclusive jurisdiction over a declaratory judgment
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action pending in Franklin County Common Pleas Court based on the authority of
DeRolph v. State (1997), 78 Ohio St.3d 193, 677 N.E.2d 733 (“DeRolph I”) and
DeRolph v. State (1997), 78 Ohio St.3d 419, 424-426, 678 N.E.2d 886, 890-891
(“DeRolph II”). Although I will not restate my dissenting view in Taft, a key factor
in that dissent was that the Taft case did not even involve the DeRolph parties or
the DeRolph issues.
{¶ 5} The court today strikes the pending motion even though that motion
relates directly to mandates issued by the DeRolph court. Thus, the majority holds
that it lacks the authority to enforce its own DeRolph mandates despite having
previously reached out on the strength of DeRolph to take jurisdiction in Taft on
issues that were only collateral to the DeRolph proceedings.
{¶ 6} As part of the stricken motion, appellants ask the court to allocate to
the state both the burden of production and the burden of proof in the remanded
proceedings. Justices Douglas and Resnick have already expressed their view that
it is the “state’s burden of showing the constitutionality of all remedial legislation
in the DeRolph litigation” (State ex rel. Taft v. Franklin Cty. Court of Common
Pleas [1998], 81 Ohio St.3d 480, 486, 692 N.E.2d 560, 565 [Douglas, J., concurring
in judgment only]). Given that the trial court is to hold hearings pursuant to this
court’s unusual remand and that the decision of that court is to be appealed directly
to this court, the questions on burdens of proof and production should be answered,
by a majority decision, before the trial court begins its proceedings. Since that is
not to be, a dissenting analysis to contrast with the existing published viewpoint
follows.
{¶ 7} We have consistently expressed that “[a]n enactment of the General
Assembly is presumed to be constitutional, and before a court may declare it
unconstitutional it must appear beyond a reasonable doubt that the legislation and
constitutional provisions are clearly incompatible.” E.g., State ex rel. Dickman v.
Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one
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of the syllabus. The Ohio Constitution vests the legislative authority of this state
in the General Assembly. Section 1, Article II, Ohio Constitution. Although the
legislative power is subject to the express limitations found in the Constitution and
the implied limitation that it must fall within the scope of legislative authority, the
legislative and judicial branches are coequal, and neither can be subordinated or
made answerable to the other.
{¶ 8} That the court once found the legislature’s treatment of school funding
unconstitutional cannot create a presumption that its later efforts will also be
constitutionally infirm. Nor can this court alter the balance of constitutional power
by ordering the legislature to pass new laws as part of a “remedy.” In DeRolph I
this court was presented only with a challenge to the school funding scheme as it
existed in 1992. Id. at 199, 677 N.E.2d at 738, fn. 1. We did not pass on the myriad
of changes to the school funding scheme that have since intervened. The case on
remand involves this new legislation.
{¶ 9} Displacing the judicial deference normally accorded the General
Assembly in exercising its constitutional authority jeopardizes the separation of
powers. It threatens to subordinate the legislative branch to the judiciary by forcing
the General Assembly, albeit by proxy, to placate a common pleas judge and,
eventually, a majority of this court by affirmatively demonstrating that it exercised
its constitutionally prescribed function within the confines vaguely set forth by this
court in DeRolph I. In essence, such a standard forces the General Assembly to
seek court approval regarding the wisdom of its enactments, since there is no track
record of the legislation’s effect. On remand, the Attorney General would be forced
to affirmatively prove by theory and projection that the General Assembly’s latest
allocation scheme will satisfy aspirations that the DeRolph I majority itself was
either unwilling or unable to define.
{¶ 10} In support of their motion to shift the burden of proof, appellants cite
footnote 2 of the Arizona Supreme Court’s decision in Hull v. Albrecht (1997), 190
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Ariz. 520, 522, 950 P.2d 1141, 1143. That footnote, however, cited no legal
authority for its conclusion. Furthermore, as demonstrated below, appellants’
citation of United States v. Fordice (1992), 505 U.S. 717, 112 S.Ct. 2727, 120
L.Ed.2d 575, does not support its request to shift the burden of proving
constitutionality on remand.
{¶ 11} Initially, it is important to identify the different constitutional
authorities that distinguish the United States Supreme Court’s exercise of remedial
power in Brown v. Bd. of Edn. (1955), 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99
L.Ed. 1083, 1106 (“Brown II”), from this court’s order in DeRolph II. The federal
judiciary derives its power from the United States Constitution. The Supremacy
Clause of the federal Constitution “makes federal law paramount over the contrary
positions of state officials; the power of federal courts to enforce federal law thus
presupposes some authority to order state officials to comply.” New York v. United
States (1992), 505 U.S. 144, 179, 112 S.Ct. 2408, 2430, 120 L.Ed.2d 120, 152.
Accordingly, based on notions of federal supremacy, the federal authority may, at
times, justify retaining a direct supervisory or overruling power over state officials
to enforce compliance with federal law. The federal judiciary’s power to supervise
state officials involves questions of federalism, while the Ohio judiciary’s
interaction with its coequal branches of government involves the separation of
powers.
{¶ 12} Brown II and its progeny have also developed a burden-shifting
presumption that distinguishes those cases. Under the Brown II line of authority,
state school officials bear the burden of demonstrating compliance with the Brown
mandate with respect to policies and practices traceable to de jure segregation.
Once it is established that school officials have operated a school system with a
history of intentional segregation in violation of the Equal Protection Clause of the
Fourteenth Amendment, continuing racial imbalance is considered prima facie
proof of a continuing violation and requires school officials to come forward with
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sufficient countervailing evidence demonstrating that segregative intent did not
motivate their actions. Keyes v. School Dist. No. 1, Denver, Colo. (1973), 413 U.S.
189, 207-210, 93 S.Ct. 2686, 2697-2698, 37 L.Ed.2d 548, 562-564; Dayton Bd. of
Edn. v. Brinkman (1979), 443 U.S. 526, 536-537, 99 S.Ct. 2971, 2978-2979, 61
L.Ed.2d 720, 732-733. In this case, there is no similar justification for assuming
that the General Assembly will attempt to maintain or revive aspects of former
legislation that the DeRolph I court declared unconstitutional. Moreover, the
mandate of Brown II applied to school officials, and the court was “not content * *
* to leave [the] task in the unsupervised hands of local school authorities, trained
as most would be under the old laws and practices, with loyalties to the system of
separate white and Negro schools.” United States v. Montgomery Cty. Bd. of Edn.
(1969), 395 U.S. 225, 227, 89 S.Ct. 1670, 1671, 23 L.Ed.2d 263, 268. There is no
legitimate justification for having a similar suspicion of the General Assembly in
this case.
{¶ 13} Finally, Brown II and its progeny involved invidious discrimination
based on race. Classifications based on race receive strict constitutional scrutiny.
Adarand Constructors, Inc. v. Pena (1995), 515 U.S. 200, 227, 115 S.Ct. 2097,
2113, 132 L.Ed.2d 158, 182. Under Washington v. Davis (1976), 426 U.S. 229, 96
S.Ct. 2040, 48 L.Ed.2d 597, an initial showing of discriminatory purpose is
necessary to impose strict scrutiny on facially neutral classifications having
discriminatory impact. After discriminatory purpose is established, the
governmental actor must defend against strict scrutiny and prevails only if it can
demonstrate that its legislation is narrowly tailored to achieve a compelling interest.
Miller v. Johnson (1995), 515 U.S. 900, 920, 115 S.Ct. 2475, 2490, 132 L.Ed.2d
762, 782. Accordingly, the burden-shifting rationale developed in Brown II and its
progeny is consistent with the allocation of burdens regularly employed in equal
protection cases based on race. Racial motivation is presumed from the
combination of a presently existing racial imbalance and a history of intentional
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segregation, shifting the burden to school officials to defend the imbalance. In
contrast, this case involves neither a suspect classification nor a fundamental right
that would require strict scrutiny, nor has there been any presumption identified
that justifies shifting the burden of proof to the Attorney General.
{¶ 14} The idea that the judiciary must begin with a presumption that all
statutes are constitutional until it is proven otherwise is deeply rooted in our
Constitution and its framework, which implicitly requires the separation of powers.
See S. Euclid v. Jemison (1986), 28 Ohio St.3d 157, 28 OBR 250, 503 N.E.2d 136.
The novel procedure employed in this case cannot change this essential
presumption.
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