The opinion
[This opinion has been published in Ohio Official Reports at 87 Ohio St.3d 188.]
BURGER, APPELLEE, v. CITY OF CLEVELAND HEIGHTS, APPELLANT, ET AL.
[Cite as Burger v. Cleveland Hts., 1999-Ohio-319.]
Tort reform—Am.Sub.H.B. No. 350—Appellate procedure—Final appealable
orders—Sovereign immunity—Amendment to R.C. 2501.02 and newly
enacted R.C. 2744.02(C)—Judgment of court of appeals affirmed on
authority of State ex rel. Ohio Academy of Trial Lawyers v. Sheward.
(No. 97-1870—Submitted September 29, 1998—Resubmitted August 25, 1999—
Decided November 17, 1999.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 72675.
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Javitch, Block, Eisen & Rathbone and Michael D. Linn, for appellee.
John H. Gibbon, Director of Law, and Laure A. Wagner, First Assistant
Director of Law, for appellant.
McDonald, Hopkins, Burke & Haber Co., L.P.A., and Thomas C. Schrader,
for Payto Architects, Inc.
McCarthy, Palmer, Volkema, Boyd & Thomas and Michael S. Miller, urging
affirmance for amicus curiae Ohio Academy of Trial Lawyers.
Walter & Haverfield, P.L.L., and R. Todd Hunt, urging reversal for amici
curiae Ohio Township Association and Cuyahoga County Law Directors
Association.
John E. Gotherman and Malcolm C. Douglas, urging reversal for amici
curiae Ohio Municipal League, Ohio Municipal Attorneys Association and County
Commissioners Association of Ohio.
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SUPREME COURT OF OHIO
{¶ 1} The judgment of the court of appeals dismissing the appeal for lack
of a final appealable order is affirmed on the authority of State ex rel. Ohio Academy
of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 715 N.E.2d 1062.
DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS and RESNICK, JJ., concur separately.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
COOK and LUNDBERG STRATTON, JJ., dissent.
__________________
DOUGLAS, J., concurring.
{¶ 2} I concur with the majority in affirming the judgment of the court of
appeals. I write separately to comment on the jurisdiction question arising out of
State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451,
715 N.E.2d 1062, which has been distorted beyond recognition by some of the print
media, the dissents in Sheward, and the dissents herein. Notwithstanding incessant
pounding, the justices making up the majority in Sheward have remained silent,
letting the opinion speak for itself. It is now time for that silence on the jurisdiction
question to be broken. In doing so I am guided by the words of Henri Frédérick
Amiel (1821-1881), a nineteenth century Swiss poet and philosopher, who once
said: “Truth is not only violated by falsehood; it may be equally outraged by
silence.” The International Dictionary of Thoughts (1969) 734.
I
A
Jurisdiction
{¶ 3} The lead dissent herein states, “In view of irregularities in the
assumption of jurisdiction * * * I cannot agree that Sheward should control the
outcome of this case.” The other dissent says that “Sheward should never have
been accepted as an original action.” Based on clear precedent, the dissenters and
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January Term, 1999
other like critics are in error. Given these statements and a number of others in the
printed media, it is time for the silent majority to break its silence.
B
Precedent
{¶ 4} The main complaint seems to be that this court should not have
accepted jurisdiction over a case that seemed to seek a declaratory judgment as to
the constitutionality of a legislative enactment. That argument, of course, misses
the point that Sheward was an action seeking writs of prohibition and mandamus,
over which this court has original jurisdiction. Section 2(B)(1), Article IV, Ohio
Constitution. Where extraordinary circumstances exist and declaratory judgment
might not (as it would not on all the issues raised in Sheward) provide an adequate
remedy in the ordinary course of law, “the constitutionality of a statute may * * *
be challenged by mandamus.” State ex rel. Purdy v. Clermont Cty. Bd. of Elections
(1997), 77 Ohio St.3d 338, 341, 673 N.E.2d 1351, 1354. This is not new law
invented by the Sheward majority for nefarious purposes as seemingly alleged in
some quarters. As long ago as 1956, over forty years ago, this court held, in State
ex rel. Michaels v. Morse (1956), 165 Ohio St. 599, 608, 60 O.O. 531, 536, 138
N.E.2d 660, 666, that “[t]he right of relator to question, by mandamus, the
constitutionality of [a] statute is recognized in Ohio.” While Purdy was an election
case, Morse was not, and there are a number of other examples.
{¶ 5} State ex rel. Pub. Institutional Bldg. Auth. v. Griffith (1939), 135 Ohio
St. 604, 14 O.O. 533, 22 N.E.2d 200, was an original action in mandamus filed in
this court. The General Assembly had created the Public Institutional Building
Authority, and the authority sought to issue bonds to raise revenue to support some
of its projects. The Secretary of State refused to attest the bonds, and the authority
brought suit—an original action in this court seeking mandamus—to require the
Secretary of State to sign the bonds and attest them. The court said that the sole
issue before the court was whether the enactments of the General Assembly
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violated the constitutional prohibition against the creation of public debt beyond a
stated limit. The question was answered by saying that “[t]he court also holds that
Sections 2332-3a, 2332-4 and 2332-5, of the General Code, are unconstitutional
and void * * *.” Id. at 623, 14 O.O. at 541, 22 N.E.2d at 208. Clearly, the case
was an original action, was filed in this court, sought a writ of mandamus, and
involved a declaration as to the constitutionality of a legislative enactment.
{¶ 6} State ex rel. State Bridge Comm. of Ohio v. Griffith (1940), 136 Ohio
St. 334, 16 O.O. 467, 25 N.E.2d 847, was an original action in this court, mandamus
was sought, and the issue was the constitutionality of certain statutes. The court
held that “it is clear that no constitutional provisions are violated in the issuance of
these refunding bonds, and the writ will be granted.” Id. at 339, 16 O.O. at 469, 25
N.E.2d at 850. Yet again a declaration as to the constitutionality of a legislative
enactment.
{¶ 7} Then in 1951, this court entertained an original action in mandamus
seeking a declaration that the Act creating the Ohio Turnpike did not contravene
several provisions of the Ohio Constitution. The Auditor of State was the
respondent, and the court stated that “[t]he auditor contends that the turnpike act is
unconstitutional because it purports to authorize the appropriation of private
property for the construction of roads or turnpikes upon which tolls are to be
charged in violation of Section 19 of Article I of the Constitution.” State ex rel.
Allen v. Ferguson (1951), 155 Ohio St. 26, 35, 44 O.O. 63, 67, 97 N.E.2d 660, 666.
After analysis the court then said, “It follows that, even if these portions of the act
are unconstitutional, the remaining portions must be sustained.” Id. at 45, 44 O.O.
at 71, 97 N.E.2d at 670. Once more we have an original action in this court seeking
mandamus and a declaration of constitutionality. Obviously, original actions in this
court in mandamus seeking a declaration of constitutionality or unconstitutionality
are not new, unknown, or unheard of, as some would have us believe. But there is
more.
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January Term, 1999
{¶ 8} In 1981, a relator brought an original action in this court seeking an
order compelling respondent, the Treasurer of State, to issue certain bonds pursuant
to R.C. Chapter 166. By way of affirmative defense, the Treasurer asserted that
R.C. Chapter 166 violated Section 13, Article VIII of the Ohio Constitution. The
court said, “We find that respondent has failed to meet this burden and hold that
R.C. Chapter 166 complies with Section 13, Article VIII of the Ohio Constitution.”
(Emphasis added.) Duerk v. Donahey (1981), 67 Ohio St.2d 216, 219, 21 O.O.3d
135, 138, 423 N.E.2d 429, 432. Clearly, a declaration of constitutionality of a
statute, and a writ was granted.
{¶ 9} In August 1987, after both Chief Justice Moyer and I had become
members of this court, the Director of Budget and Management brought an original
action in this court seeking a writ of mandamus. In State ex rel. Shkurti v. Withrow
(1987), 32 Ohio St.3d 424, 513 N.E.2d 1332, the issue presented was whether R.C.
4141.251 and 4141.48 were constitutional. R.C. 4141.48 directed the Treasurer of
State to issue bonds to repay outstanding advances made by the federal government
to the Ohio unemployment compensation program. R.C. 4141.251 provided for a
surcharge on employer contributions to pay the bond service charges.
{¶ 10} The director determined that issuance of the bonds ($315,400,000)
would be cost-effective. However, the Treasurer refused to issue the bonds, citing
provisions of the Ohio Constitution and previous decisions of this court prohibiting
the incurrence of indebtedness. The director brought an original action in
mandamus in this court to compel the Treasurer to issue the bonds. After
considering the director’s arguments, a majority of the court said that “[w]e reject
both of these contentions and find that the proposed bond issuance would violate
Sections 1 and 3 of Article VIII of the Ohio Constitution.” Id. at 425, 513 N.E.2d
at 1334. Again, an original action in this court seeking a writ of mandamus and a
declaration of unconstitutionality.
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{¶ 11} Other language from Shkurti is instructive. The court also said that
“[w]hile the relator is correct about the deference this court owes to legislative acts,
his reliance on the statute’s declaration is misplaced. Such reliance would make the
General Assembly and not this court the final and conclusive authority of the
constitutional debt question. The interpretation of the Ohio Constitution is,
however, not a legislative but a judicial question, which ultimately this court must
decide.” (Emphasis added.) Id. at 429, 513 N.E.2d at 1337. Some might say that
this sounds strangely like the opinion of Justice Resnick and the majority of this
court in Sheward.
{¶ 12} In the final example from this nonexhaustive selection, in 1994, with
five of the present seven members of this court present and participating, we
accepted jurisdiction and decided State ex rel. Ohio AFL-CIO v. Voinovich (1994),
69 Ohio St.3d 225, 631 N.E.2d 582. Voinovich was a case brought in mandamus,
prohibition, and quo warranto. Three cases were consolidated for decision. All of
the cases involved the biennial appropriations for the Bureau of Workers’
Compensation and the Industrial Commission.
{¶ 13} Case No. 93-2057 sought a writ of prohibition to prevent new
commissioners of the Industrial Commission, authorized pursuant to Am.Sub.H.B.
No. 107, from acting or hearing cases as the Industrial Commission.
{¶ 14} Case No. 93-2059, an action in mandamus and quo warranto, sought
an order that the relator was the rightful public member of the Industrial
Commission.
{¶ 15} In case No. 93-2060, the relators sought a writ of mandamus
compelling the bureau and the commission not to implement the nonappropriation
provisions of 1993 Am.Sub.H.B. No. 107 and to require the processing of claims
under the old law.
1
Voinovich Majority Opinion
6
January Term, 1999
{¶ 16} Justice Wright, as author of the majority opinion, commenced his
discussion by saying: “[T]hese three cases challenge the constitutionality of
Am.Sub.H.B. No. 107 of the 120th Ohio General Assembly. The cases present the
following constitutional issues: (1) whether Am.Sub.H.B. No. 107 violates the one-
subject rule of Section 15(D), Article II of the Ohio Constitution; (2) whether the
bill violates the three-consideration provision of Section 15(C), Article II of the
Ohio Constitution; (3) whether the bill denies the citizens of this state their right to
a referendum under Section 1, Article II of the Ohio Constitution; and (4) whether
abolishing the old Industrial Commission and creating a new one deprives the
former commission members of their positions without due process of law and
violates the constitutional doctrine of separation of powers. Case No. 93-2059
presents the further question of whether the Governor violated former R.C.
4121.02(E) by failing to grant relator Geltzer an annual salary increase of five
percent.” 69 Ohio St.3d at 228, 631 N.E.2d at 585-586.
{¶ 17} Five members of the court, Chief Justice Moyer,1 Justice Douglas,
Justice Wright, Justice Resnick, and Justice Pfeifer, concurred in the Voinovich
majority opinion.
{¶ 18} Justice Wright, with the concurrence of the aforementioned justices,
made a number of points interesting for our purposes here:
(1) “On October 15, 1993, relators filed the following three original actions
in this court, all of which make various challenges to the constitutionality of
Am.Sub.H.B. No. 107.” (Emphasis added.) Id. at 226, 631 N.E.2d at 585.
(2) “Case No. 93-2057 is an original action in mandamus and prohibition
filed by the Ohio AFL-CIO, a citizen taxpayer, and a board member * * *. Relators
seek a writ of mandamus * * * declaring the nonappropriations provisions
1. Chief Justice Moyer concurred in part and dissented in part but agreed that all of the constitutional
issues were properly presented for decision.
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unconstitutional and void. Relators [also] seek a writ of prohibition * * *.”
(Emphasis added.) Id. at 226-227, 631 N.E.2d at 585.
(3) “Relator asks this court to * * * (2) find that Am.Sub.H.B. No. 107 is
void because it violates the three-consideration provision of Section 15(C), Article
II of the Ohio Constitution. Relator seeks a writ of mandamus * * *.” (Emphasis
added.) Id. at 227, 631 N.E.2d at 585.
(4) “Relators seek a writ of mandamus compelling the bureau and the
commission not to implement the nonappropriation provisions of Am.Sub.H.B. No.
107 * * *.” (Emphasis added.) Id. at 227, 631 N.E.2d at 585.
(5) “However, although we are most reluctant to interfere in the legislative
process, we will not ‘abdicate [our] duty to enforce the Ohio Constitution.’ ”
(Emphasis added.) Id. at 229, 631 N.E.2d at 586.
(6) “[W]e therefore hold that such provision violates Section 15(D), Article
II of the Ohio Constitution.” (Emphasis added.) Id. at 230, 631 N.E.2d at 587.
(7) “Likewise, we determine that the provisions creating an exemption for
the employment of minors violate Section 15(D), Article II of the Ohio
Constitution. * * * We therefore find that the inclusion * * * was an actionable
violation * * * of the Ohio Constitution.” (Emphasis added.) Id. at 230, 631 N.E.2d
at 587.
(8) “Having found that the intentional tort and child labor exemption
provisions * * * violate * * * the Ohio Constitution,* * * [w]e therefore grant
relators’ request for a writ of mandamus * * *.” (Emphasis added.) Id. at 230, 631
N.E.2d at 587.
(9) “Relators in all three cases argue * * * violation * * * of the Ohio
Constitution.” Id. at 23l, 631 N.E.2d at 587.
(10) “Relators * * * argue * * * that the enactment * * * unconstitutionally
deprived the citizens of Ohio of their right of referendum. We agree * * *.”
(Emphasis added.) Id. at 234, 631 N.E.2d at 590.
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January Term, 1999
(11) “Thus, we grant relators’ request for a writ of mandamus on the issue
of whether Am.Sub.H.B. No 107 violates * * * the Ohio Constitution.” (Emphasis
added.) Id. at 237, 631 N.E.2d at 591.
(12) “We disagree with each of these assertions, and therefore deny
relators’ requests for writs of mandamus, prohibition and quo warranto with respect
to these issues.” Id. at 237, 631 N.E.2d at 591-592.
2
Voinovich—Concurring and Dissenting Opinions
{¶ 19} In his concurring opinion in Voinovich, Justice Pfeifer said that
“[t]he majority opinion does effectively and pragmatically resolve the legitimate
constitutional concerns raised by relators.” (Emphasis added.) Id., 69 Ohio St.3d
at 247, 631 N.E.2d at 598.
{¶ 20} In his opinion concurring in part and dissenting in part in Voinovich,
Chief Justice Moyer said, “I concur in the majority opinion, except that I believe
there exists a sufficient common purpose or relationship between the child labor
exemption provision of R.C. 4109.06, the workplace intentional tort provision of
R.C. 2745.01 and the balance of Am.Sub.H.B. No. 107. Therefore, these provisions
should also be upheld.” Id. at 248, 631 N.E.2d at 599. This is clearly a declaration
of constitutionality of a legislative Act in an original action in this court.
{¶ 21} In his opinion concurring in part and dissenting in part in Voinovich,
Justice A. William Sweeney said that “the 1993 enactment of Am.Sub.H.B. No.
107 clearly violates the one-subject rule of the Ohio Constitution * * *.” (Emphasis
sic.) Id. at 249, 631 N.E.2d at 599-600. Again, an unambiguous declaration as to
constitutionality of a legislative Act and determined in an original action in this
court.
{¶ 22} In his opinion dissenting in part and concurring in part in Voinovich,
Justice Francis E. Sweeney said, “Because I believe that the 1993 enactment of
Am.Sub.H.B. No. 107 is unconstitutional, I vigorously dissent from the bulk of the
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majority’s opinion.” 69 Ohio St.3d at 250, 631 N.E.2d at 601. There can be no
question that Justice Sweeney, along with the rest of the court, was giving a
declaration of constitutionality of a legislative Act pursuant to an original action
filed in this court.
{¶ 23} Moreover, in Voinovich, many of our same detractors with regard to
Sheward in general, and the jurisdiction issue in Sheward in particular, the Ohio
Manufacturers Association, Ohio Self-Insurers Association, Ohio Council of Retail
Merchants, Ohio Chamber of Commerce, National Federation of Independent
Business, Ohio Farm Bureau Federation, Ohio Business Roundtable, and Council
of Smaller Enterprises, appeared and participated before this court as amici curiae.
At no time did any of them question the court’s taking jurisdiction of an original
action in this court seeking writs of mandamus, prohibition, and quo warranto and
a declaration as to the constitutionality of an Act of the General Assembly. In fact,
in their joint brief filed on December 2, 1993, in Voinovich, these amici said, “The
constitutionality of Am.Sub.House Bill 107 should be affirmed, and the requests
for writs of mandamus, prohibition and quo warranto should be denied by this
Court.” (Emphasis added.)
{¶ 24} Why did they not question this court’s taking jurisdiction in
Voinovich? Only they could answer, but it is not unreasonable to assume that they
conceded that we had jurisdiction or, alternately, that their interests and those of
their constituent members required a favorable and rapid declaration as to the
constitutionality of legislation (premium credits and refunds) that has proven to be
very beneficial to them—certainly a legitimate interest.
{¶ 25} Accordingly, based upon a legion of precedents, jurisdiction in
Sheward was properly vested in this court. To continue to play the tired and worn-
out tune of “judicial activism” in opposing jurisdiction is, at best, misleading.
II
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January Term, 1999
Original Jurisdiction of the Ohio Supreme Court Pursuant to Ohio Constitution
Article IV, Section 2(B)(1)(f)
{¶ 26} Section 2, Article IV of the Ohio Constitution establishes the
Supreme Court. Subsection (B) of Section 2 defines the court’s jurisdiction and is
further divided into Subsections 1 and 2. Subsection (B)(1) is further divided into
Subsections (a) through (g). Subsection (B)(2) is further divided into Subsections
(a) through (f).
{¶ 27} Subsection (B)(1) establishes the original jurisdiction of this court.
Subsection (B)(2) provides for the appellate jurisdiction of this court.
{¶ 28} Section 2(B)(1)(f), Article IV, Ohio Constitution provides that “[t]he
supreme court shall have original jurisdiction in the following: * * * (f) In any cause
on review as may be necessary to its complete determination.” While the phrase
“any cause on review” will sound to some, I am sure, like language of appellate
jurisdiction, it is clearly not so. Had the drafters meant the subsection to apply to
the appellate jurisdiction of this court, it would have been easy enough to so
provide. All that would have been needed was to drop down five or so lines and
place the provision in Section (B)(2) – the appellate jurisdiction section. Since this
was not done, the section obviously pertains to the court’s original jurisdiction.
{¶ 29} That having been established, what then does Subsection (f) mean?
{¶ 30} As recently as 1994, Chief Justice Moyer, writing for a unanimous
court in State v. Steffen (1994), 70 Ohio St.3d 399, 407, 639 N.E.2d 67, 74, said:
“The relief requested by the state is unprecedented and extraordinary. The
reasons to grant the relief are compelling. We can and do hereby grant that relief
to the extent allowed by the Constitution and statutes of Ohio.
“Section 2(B)(1)(f), Article IV of the Constitution of Ohio grants original
jurisdiction to this court ‘[i]n any cause on review as may be necessary to its
complete determination.’ We have interpreted this provision to authorize
judgments in this court that are necessary to achieve closure and complete relief in
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actions pending before the court. We conclude * * * that Section 2(B)(1)(f), Article
IV of the Ohio Constitution authorizes this court to enter such judgments in causes
it hears on review as are necessary to provide a complete and final determination
thereof.
“We have exercised our original jurisdiction conferred by Section 2(B)(1),
Article IV to prevent the abuse of the trial and appellate courts by repeated and
vexatious lawsuits. * * * We emphasized that prohibition was a writ to be used
with great caution and only in the presence of extraordinary circumstances.”
(Citations omitted.)
{¶ 31} All of the above could have been written as pertaining to jurisdiction
in Sheward. In fact, and again, that which was written in Steffen sounds strangely
like Sheward and Justice Resnick’s opinion.
{¶ 32} The morass of the thousands of cases affected by the Act in question
needed to be cleared once and for all by the court’s action in Sheward. Comments
on the need for finality in another context are relevant here: “A procedural system
which permits an endless repetition of inquiry into facts and law in a vain search
for ultimate certitude implies a lack of confidence about the possibilities of justice
that cannot but war with the effectiveness of underlying substantive commands. *
* * There comes a point where a procedural system which leaves matters
perpetually open no longer reflects humane concern but merely anxiety and a desire
for immobility.” Bator, Finality in Criminal Law and Federal Habeas Corpus for
State Prisoners (1963), 76 Harv.L.Rev. 441, 452-453. In addition, the author
comments that “[s]urely the answer runs, in the first place, in terms of conservation
of resources—* * * not only simple economic resources, but all of the intellectual,
moral, and political resources involved in the legal system. The presumption must
be * * * that if a job can be well done once, it should not be done twice. * * * Why
should we duplicate effort?” Id. at 451.
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January Term, 1999
{¶ 33} The issues involved in Sheward cried out for closure and complete
relief; the relief sought was unprecedented and extraordinary. The tests set forth in
Steffen for exercising jurisdiction pursuant to Section 2(B)(1)(f), Article IV, Ohio
Constitution were met, and the reasons to grant the relief were compelling.
{¶ 34} The history of Subsection (f) reinforces this interpretation. By joint
resolution adopted March 1, 1968, the General Assembly submitted to the electors
a proposition to amend the Ohio Constitution at an election held May 1968.
Included in that submission, presumably read and understood by the legislators,
was the language in Subsection (f). The proposal received a favorable vote of the
electorate and Subsection (f) became a part of the Constitution of Ohio, the supreme
law of our state.
{¶ 35} The analysis of the resolution by the Legislative Services
Commission stated that “[t]he jurisdiction of the Supreme court is augmented
* * *.” Ohio Legislative Service Commission Bill Analysis: Sub.H.J.R 42 (1968).
“Augment” is defined as “to enlarge or increase esp. in size, amount, or degree.”
Webster’s Third New International Dictionary (1986) 143. The report of the
commission and this definition speak for themselves, but clearly the new language
in the court’s original jurisdiction section had to be intended to mean something.
The next fact makes it even clearer.
{¶ 36} The drafters and the members of the General Assembly (and
ultimately the electors) used the word “cause” in Subsection (f). In contrast, the
word “case” is used, six times, in the appellate jurisdiction section. The difference,
I believe, was quite intentional. It was recognized that in our more modern,
fastmoving, and technological world, long waits for judgments in “causes”
involving unprecedented and extraordinary matters needing closure and complete
relief could bring about personal, professional, and business disasters before any
meaningful and/or effective relief would be granted. For example, the reforms at
issue in Voinovich were brought directly to this court to help eliminate problems in
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a workers’ compensation system that had been called the “silent killer of jobs.” The
final decision in that “cause,” rendered in a relatively short period of time, made
clear that the new procedures urged by the Governor and enacted by the General
Assembly were, for the most part, constitutional and could stay in full force and
effect, and no person, including some current members of this court, ever raised the
question of this court’s assuming jurisdiction over the cause.
{¶ 37} Thus, the use of the word “cases” indicates the routine way in which
matters come before this court. Use of the word “cause” is broader and can include
the extraordinary and unprecedented. Therefore, it is also clear why, in Section
2(B)(3), we find that “[n]o law shall be passed or rule made whereby any person
shall be prevented from invoking the original jurisdiction of the supreme court.”
{¶ 38} Accordingly, in those causes where four or more members of this
court (and at any particular point in time—not just the current court) agree that the
matters to be resolved are unprecedented and extraordinary and are in need of
closure and complete determination and relief, Section 2(B)(1)(f), Article IV, Ohio
Constitution is there and available for use. To find otherwise would be to thwart
the will of the General Assembly, the body that proposed the language in question,
and the will of the electorate of Ohio, which adopted, by way of amendment to our
Constitution, the language in question, and would read right out of the Constitution
Subsection (f) of Section 2(B)(1), Article IV, Ohio Constitution. Obviously, each
of us should give deference to all sections of the Constitution—not just those with
which we agree at any given moment.
{¶ 39} Thus, considering all of the foregoing, the cause was properly before
us as an original action, there were no irregularities in the assumption of
jurisdiction, and we have not “thrown out the baby with the bath water,” but,
instead, with Justice Resnick’s opinion we have remained true to our oath to uphold
the Constitution of the State of Ohio. I respectfully concur.
RESNICK, J., concurs in the foregoing concurring opinion.
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January Term, 1999
__________________
MOYER, C.J., dissenting.
{¶ 40} I disagree with the decision of the majority, which affirms the
judgment of the court of appeals on the authority of State ex rel. Ohio Academy of
Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 715 N.E.2d 1062. The parties
in this case did not challenge the constitutionality of Am.Sub.H.B. No. 350, and,
therefore, I believe that the case should have been decided on the issue raised.
While it is true that if Sheward is to be followed in the instant case, the question
whether R.C. 2744.02(C) as amended by Am.Sub.H.B. No. 350 should be applied
retroactively to the instant case would be rendered moot, I would not want a vote
of concurrence in this case to in any way suggest that I believe Sheward should
necessarily be followed by this court in the future. Therefore, I dissent.
{¶ 41} It is not unusual for this court to summarily decide pending cases
that raise legal issues dependent on those recently decided by the court in another
case. It has been my past practice in such circumstances to follow the law
announced in the earlier case, even where I dissented from the decision of the
majority in that earlier case. My reason is based on my belief that once this court
announces its opinion on an issue of law, that principle of law should be applied
consistently to all persons similarly situated, whether or not I agree with that
principle.
{¶ 42} Regrettably, I am compelled to make an exception to that practice in
this case. In view of irregularities in the assumption of jurisdiction and the
inclusion of inappropriate references to the conduct of the General Assembly in
State ex rel. Ohio Academy of Trial Lawyers v. Sheward, as is more fully described
in my dissent therein, I cannot agree that Sheward should control the outcome of
this case.
COOK and LUNDBERG STRATTON, JJ., concur in the foregoing dissenting
opinion.
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__________________
LUNDBERG STRATTON, J., dissenting.
{¶ 43} I continue to disagree with the majority’s decision in State ex rel.
Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 715 N.E.2d
1062, upon which the majority relies herein in affirming the appellate court’s
dismissal of the city of Cleveland Heights’ appeal. Thus, I join in Chief Justice
Moyer’s dissent and agree that Sheward should never have been accepted as an
original action. I also reiterate my belief that 1996 Am.Sub.H.B. No. 350, including
the amendments made to R.C. 2744.02(C) and 2501.02, at issue in this case,
addresses the single subject of tort reform.
{¶ 44} Burger was fully briefed and argued before this court, and, as Chief
Justice Moyer indicates, neither party challenged the constitutionality of
Am.Sub.H.B. No. 350. Nor were any other constitutional issues raised. The only
issue in Burger is whether R.C. 2744.02(C) and 2501.02, which allow for an
immediate appeal of an order denying political subdivisions immunity pursuant to
R.C. Chapter 2744, apply to orders that are issued after those statutes went into
effect in cases that were filed prior to the effective date. Clearly, this procedural
issue pertaining to the timing of appeals was within the province of the General
Assembly to decide.
{¶ 45} But rather than addressing this issue, this court has summarily
discarded the amendments made to R.C. 2744.02(C) and 2501.02 pursuant to
Sheward. The majority’s wholesale dismantling of Am.Sub.H.B. No. 350 under
the pretext of a violation of the one-subject rule will preclude this court from
individually considering important issues like the one presented in this case. At the
very least, R.C. 2744.02(C) and 2501.02, which are clearly related to tort litigation,
should have been preserved, while any unconstitutional provisions could have been
severed.
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{¶ 46} By failing to preserve at least these sections, the court has promoted
inefficiency in our civil justice system. From a practical perspective, determination
of whether a political subdivision is immune from liability is usually pivotal to the
ultimate outcome of a lawsuit. Early resolution of the issue of whether a political
subdivision is immune from liability pursuant to R.C. Chapter 2744 is beneficial to
both of the parties. If the appellate court holds that the political subdivision is
immune, the litigation can come to an early end, with the same outcome that
otherwise would have been reached only after trial, resulting in a savings to all
parties of costs and attorney fees. Alternatively, if the appellate court holds that
immunity does not apply, that early finding will encourage the political subdivision
to settle promptly with the victim rather than pursue a lengthy trial and appeals.
Under either scenario, both the plaintiff and the political subdivision may save the
time, effort, and expense of a trial and appeal, which could take years.
{¶ 47} Without the benefit of immediate appealability of this issue, these
cases are more likely to proceed through a lengthy trial, as well as subsequent
appeals, only to have the appellate court nullify the holding of the trial court on the
issue of immunity. As the General Assembly envisioned, the determination of
immunity could be made prior to investing the time, effort, and expense of the
courts, attorneys, parties, and witnesses pursuant to amendments made to R.C.
2744.02(C) and 2501.02. Because of this court’s wholesale dismantling of
Am.Sub.H.B. No. 350, the benefits of the immediate appealability of the denial of
immunity to a political subdivision will not be realized, even though neither section
was challenged on a constitutional basis by the parties in this case. We have thrown
out the baby with the bath water.
{¶ 48} For all the aforementioned reasons I respectfully dissent.
COOK, J., concurs in the foregoing dissenting opinion.
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