State ex rel. Ohio Academy of Trial Lawyers v. Sheward

[This opinion has been published in Ohio Official Reports at 86 Ohio St.3d 451.]

THE STATE EX REL. OHIO ACADEMY OF TRIAL LAWYERS ET AL. v. SHEWARD,

JUDGE, ET AL.

[Cite as State ex rel. Ohio Academy of Trial Lawyers v. Sheward,

1999-Ohio-123.]

Tort reform—Am.Sub.H.B. No. 350 unconstitutional in toto—Standing—Where

object of an action in mandamus and/or prohibition is to procure the

enforcement or protection of a public right, the relator need not show any

legal or special individual interest in the result.

1. Where the object of an action in mandamus and/or prohibition is to procure

the enforcement or protection of a public right, the relator need not show

any legal or special individual interest in the result, it being sufficient that

the relator is an Ohio citizen and, as such, interested in the execution of the

laws of this state.

2. Am.Sub.H.B. No. 350 usurps judicial power in violation of the Ohio

constitutional doctrine of separation of powers and, therefore, is

unconstitutional.

3. Am.Sub.H.B. No. 350 violates the one-subject provision of Section 15(D),

Article II of the Ohio Constitution, and is unconstitutional in toto.

(No. 97-2419—Submitted September 29, 1998—Decided August 16, 1999.)

IN PROHIBITION AND MANDAMUS.

__________________

{¶ 1} On November 20, 1997, relators, Ohio Academy of Trial Lawyers

(“OATL”), Ohio AFL-CIO, Richard Mason, and William A. Burga, filed an

original action in prohibition and mandamus in this court against six Ohio common

pleas court judges “in their official capacities and representing those similarly

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situated.”1 Relators assert eight claims, one primary and seven ancillary,

challenging the constitutionality of Am.Sub.H.B. No. 350 of the 121st Ohio

General Assembly.2

{¶ 2} Relators’ primary claim is that Am.Sub.H.B. No. 350 constitutes an

improper legislative usurpation of judicial power, and an intrusion upon the

exclusive authority of the judiciary, in violation of Section 32, Article II, and

Sections 1, 5(A)(1) and (B), Article IV of the Ohio Constitution. Relators allege

that many provisions of Am.Sub.H.B. No. 350 conflict with various rules of

evidence, rules of civil procedure, and decisions by this court declaring that such

provisions are invalid, and thus “[t]he General Assembly, in passing Am.Sub.H.B.

350, * * * violated the constitutional separation of powers.”

{¶ 3} In their ancillary claims, relators maintain that Am.Sub.H.B. No. 350

1. According to the complaint, OATL is a voluntary association of over two thousand lawyers who

primarily represent plaintiffs in civil actions throughout Ohio. According to its Code of Regulations,

OATL’s objectives are “to uphold and defend the Constitution of the United States; to advance the

science of jurisprudence; to educate the bar and the general public in all fields and phases of

advocacy; to promote the administration of justice for the public good; to uphold the honor and

dignity of the profession of the law; to encourage fellowship among the members of the bar; to

uphold and approve the adversary system and trial by jury; and to advance the cause of those who

are damaged in person or property and who must seek redress therefor.”

Ohio AFL-CIO states that it is composed of one thousand five hundred local labor unions,

forty-three central bodies, and eight hundred fifty thousand members, and that its “primary purpose

is to represent the rights and interests of working people on a wide variety of public policy issues

and before various units and branches of the government of the State of Ohio.”

Mason and Burga, each of whom identifies himself as “a citizen and taxpayer in the State

of Ohio,” are, respectively, the Executive Director of OATL and the President of the Ohio AFL-

CIO.

The named respondents are Richard S. Sheward and Dale A. Crawford, both judges of the

Franklin County Court of Common Pleas; John W. Kessler and Jeffrey E. Froelich, both judges of

the Montgomery County Court of Common Pleas; Richard J. McMongle, presiding judge of the

Cuyahoga County Court of Common Pleas; and Norman A. Fuerst, retired judge of the Cuyahoga

County Court of Common Pleas, who was succeeded in office and replaced as a party by Nancy

Fuerst. 81 Ohio St.3d 1463-1464, 690 N.E.2d 1284-1285.

2. Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, was passed by the Ohio Senate on

September 11, 1996, and by the Ohio House of Representatives on September 26, 1996. The bill

was signed into law by former Governor George Voinovich on October 28, 1996, and took effect

on January 27, 1997.

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was passed in violation of Section 15(D), Article II of the Ohio Constitution,

providing that “[n]o bill shall contain more than one subject,” and that various

aspects of the legislation violate the following provisions of the Ohio Constitution:

right of trial by jury (Section 5, Article I), damages for wrongful death (Section

19a, Article I), right to remedy (Section 16, Article I), equal protection and

prohibition of special privileges (Section 2, Article I), and prohibition of retroactive

laws (Section 28, Article II).

{¶ 4} Relators seek (1) a writ of prohibition preventing respondents from

implementing those provisions in Am.Sub.H.B. No. 350 that intrude on judicial

authority, (2) a writ of mandamus ordering respondents to follow “the rules of civil

procedure, the rules of evidence, the relevant constitutional decisions and common-

law [causes of action] * * *, notwithstanding contrary provisions in Am.Sub.H.B.

350,” and (3) pursuant to their ancillary claims, an order declaring that

Am.Sub.H.B. No. 350 violates the Ohio Constitution and enjoining its

implementation.

{¶ 5} Along with their complaint, relators filed a memorandum in support

of the issuance of a peremptory writ in prohibition and mandamus and certification

of a respondent class consisting of sitting Ohio trial judges. On November 26,

1997, Attorney General Betty D. Montgomery filed a motion for leave to intervene.

On December 1, 1997, Judges Sheward and Crawford filed a memorandum

opposing relators’ petition for a peremptory writ pending the filing of a motion to

dismiss. On December 15, 1997, Judge Sheward and Attorney General

Montgomery filed separate motions to dismiss on the basis that relators lack

standing, that this court is without jurisdiction to grant declaratory or injunctive

relief, and that relators have failed to satisfy the requirements for the issuance of a

writ of prohibition or mandamus.

{¶ 6} On February 25, 1998, we granted an alternative writ, 81 Ohio St.3d

1226, 689 N.E.2d 971, and set forth a schedule for the presentation of evidence and

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briefing. On March 9, 1998, we denied class certification and granted Attorney

General Montgomery leave to intervene. 81 Ohio St.3d 1463, 690 N.E.2d 1284.

{¶ 7} On March 10, 1998, relators moved to quash subpoenas issued by

Attorney General Montgomery on March 5, 1998, for the purposes of discovery.

On March 12, 1998, Attorney General Montgomery filed a motion to compel and a

memorandum in opposition to relators’ motion to quash. On March 19, 1998, we

granted relators’ motion to quash and denied the Attorney General’s motion to

compel. 81 Ohio St.3d 1255, 691 N.E.2d 1050.

__________________

Don C. Iler Co., L.P.A., and Don C. Iler; Robert S. Peck; E.S. Gallon &

Associates and James D. Dennis, for relators Ohio Academy of Trial Lawyers and

Richard Mason.

Stewart R. Jaffy & Assoc. Co., L.P.A., Stewart R. Jaffy and Marc Jaffy, for

relators Ohio AFL-CIO and William A. Burga.

Ron O’Brien, Franklin County Prosecuting Attorney, and Jeffrey L.

Glasgow, Assistant Prosecuting Attorney, for respondents Judge Richard S.

Sheward and Judge Dale A. Crawford.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, Chris R.

Van Schaik and Walter F. Ruf, Assistant Prosecuting Attorneys, for respondents

Judge John W. Kessler and Judge Jeffrey E. Froelich.

William D. Mason, Cuyahoga County Prosecuting Attorney, Carol

Shockley and Robert E. Matyjasik, Assistant Prosecuting Attorneys, for respondents

Judge Richard J. McMonagle and Judge Nancy A. Fuerst.

Betty D. Montgomery, Attorney General, Arthur J. Marziale, Jr., Judith L.

French and Stephen P. Carney, Assistant Attorneys General, for intervening

respondent Ohio Attorney General Betty D. Montgomery.

Spater, Gittes, Schulte & Kolman and Frederick M. Gittes, urging the

granting of writs of prohibition and mandamus for amici curiae Ohio Employment

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January Term, 1999

Lawyers Association, the Columbus Chapter of the National Conference of Black

Lawyers, Ohio Civil Rights Coalition, Ohio NOW Education and Legal Fund,

Committee Against Sexual Harassment, and Ohio Environmental Council.

Murray & Murray Co., L.P.A., and James T. Murray, urging the granting

of writs of prohibition and mandamus for amicus curiae Ohio Citizen Action.

Manley, Burke, Lipton & Cook, Andrew S. Lipton and Johnathan M.

Holifield, urging the granting of writs of prohibition and mandamus for amici

curiae Ohio Conference of Branches for the National Association for the

Advancement of Colored People, and the Cincinnati, Columbus, and Dayton

Branches of the National Association for the Advancement of Colored People, and

the Armco Employees Independent Federation, Inc.

Hermanies, Major, Castelli & Goodman and Ronald D. Major, urging the

granting of writs of prohibition and mandamus for amicus curiae Ohio State UAW-

CAP Council, John F. Burke, Jr., and Vernon L. Traster.

Blaugrund, Herbert & Martin Incorporated, Steven A. Martin, Teri G.

Rasmussen, Christopher T. Cline and Stephen P. Postalakis, urging denial of writs

of prohibition and mandamus for amicus curiae Ohio Society of Certified Public

Accountants.

Vorys, Sater, Seymour & Pease, L.L.P., John C. Elam and Duke W. Thomas,

urging denial of writs of prohibition and mandamus for amicus curiae Owens

Corning.

Crowell & Moring, L.L.P., Victor E. Schwartz, Mark A. Behrens and Jeffrey

A. Spector, urging denial of writs of prohibition and mandamus for amici curiae

Product Liability Advisory Council, Inc., National Association of Manufacturers,

and American Tort Reform Association.

Gibson, Dunn & Crutcher, L.L.P., and Theodore J. Boutrous, Jr., urging

denial of writs of prohibition and mandamus for amicus curiae American Council

of Life Insurance.

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Arter & Hadden, L.L.P., and Irene C. Keyse-Walker, urging denial of writs

of prohibition and mandamus for amici curiae Ohio Association of Civil Trial

Attorneys and Defense Research Institute.

Isaac, Brant, Ledman & Teetor, Mark Landes and Paul A. MacKenzie,

urging denial of writs of prohibition and mandamus for amici curiae County

Commissioners’ Association of Ohio, Ohio Municipal League, Ohio Township

Association, and Public Children Services Association.

Schottenstein, Zox & Dunn and Roger L. Sabo, urging denial of writs of

prohibition and mandamus for amici curiae American Institute of Architects

(Ohio), Associated General Contractors of Ohio, National Electric Contractors

Association (Ohio Chapter), Ohio Association of Consulting Engineers, Ohio

Contractors Association, Ohio Home Builders Association, Ohio Mechanical

Contracting Industry, and Ohio Roofing Contractors Association.

Larry R. Gearhardt, urging denial of writs of prohibition and mandamus for

amici curiae Ohio Farm Bureau, National Federation of Independent Businesses,

and Ohio Small Business Council.

Squire, Sanders & Dempsey, L.L.P., Robin G. Weaver and Thomas G.

Kovach, urging denial of writs of prohibition and mandamus for amici curiae

Chemical Manufacturers Association and Ohio Chemical Council.

Bricker & Eckler, L.L.P., Randolph C. Wiseman and Kurtis A. Tunnell,

urging denial of writs of prohibition and mandamus for amici curiae Fowler

Products, Inc. et al.

Fredric J. Entin and James A. Henderson; Bricker & Eckler, L.L.P., James

J. Hughes, Jr., and Catherine M. Ballard; Hahn, Loeser & Parks, L.L.P., Terri-

Lynne B. Smiles and Richard W. Cline, urging denial of writs of prohibition and

mandamus for amici curiae American Hospital Association et al.

Thomas L. Froehle, urging denial of writs of prohibition and mandamus for

amicus curiae Ohio Manufacturers’ Association.

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January Term, 1999

Spengler Nathanson, P.L.L., and Truman A. Greenwood, urging denial of

writs of prohibition and mandamus for amicus curiae American Legislative

Exchange Council.

__________________

ALICE ROBIE RESNICK, J.

I

Am.Sub.H.B. No. 350 Converts the Drive for Civil Justice Reform into an

Attack on the Judiciary as a Coordinate Branch of Government

{¶ 8} For more than a decade, Ohio has been home to an ongoing conflict

over the necessity and propriety of transforming the civil justice system. In its most

elementary form, this conflict reflects a power struggle between those who seek to

limit their liability and financial exposure for civil wrongs and those who seek

compensation for their injuries. Research indicates that there is a vast amount of

scholarly analysis available on either side of virtually every conceivable aspect of

this debate.3 All arguments going to the soundness of legislative policy choices,

3. See, e.g., Development in the Law: Jury Determination of Punitive Damages (1997), 110

Harv.L.Rev. 1513; Eisenberg, Goerdt, Ostrom, Rottman & Wells, The Predictability of Punitive

Damages (1997), 26 J. Legal Stud. 623; Werber, Ohio Tort Reform Versus the Ohio Constitution

(1996), 69 Temple L.Rev. 1155; Wade, Should Joint and Several Liability of Multiple Tortfeasors

Be Abolished? (1986), 10 Am.J. Trial Adv. 193; Learner, Restrictive Medical Malpractice

Compensation Schemes: A Constitutional “Quid Pro Quo” Analysis to Safeguard Individual

Liberties (1981), 18 Harv.J. on Legis. 143; Bovbjerg, Sloan, Dor & Hsieh, Juries and Justice: Are

Malpractice and Other Personal Injuries Created Equal? (1991), 54 L. & Contemp. Probs. 5; Croley

& Hanson, What Liability Crisis? An Alternative Explanation for Recent Events in Products

Liability (1991), 8 Yale J. of Reg. 1; Hans & Lofquist, Jurors’ Judgments of Business Liability in

Tort Cases: Implications for the Litigation Explosion Debate (1992), 26 L. & Soc. Rev. 85; Kinney,

Gronfein & Gannon, Indiana’s Medical Malpractice Act: Results of a Three-Year Study (1991), 24

Ind.L.Rev. 1275; Koenig & Rustad, His and Her Tort Reform: Gender Injustice in Disguise (1995),

70 Wash.L.Rev. 1; Saine, Preserving the Collateral Source Rule: Modern Theories of Tort Law and

a Proposal for Practical Application (1997), 47 Case W.Res.L.Rev. 1075; Lefkin, Comment,

Shattering Some Myths on the Insurance Liability Crisis: A Comment on the Article by Clarke,

Warren-Boulton, Smith, and Simon (1988), 5 Yale J. of Reg. 417; Daniels & Martin, Myth and

Reality in Punitive Damages (1990), 75 Minn.L.Rev. 1; Mooney, The Liability Crisis — A

Perspective (1987), 32 Villanova L.Rev. 1235; Nader, The Corporate Drive to Restrict Their

Victims’ Rights (1986/1987), 22 Gonzaga L.Rev. 15; O’Connell & Tolnitch, Note, Ohio’s Attempts

to Halt the Medical Malpractice Crisis: Effective or Meaningless? (1984), 9 U. Dayton L.Rev. 361;

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however, are directed to their proper place, which is outside the door to this

courthouse. This court “has nothing to do with the policy or wisdom of a statute.

That is the exclusive concern of the legislative branch of the government.” State

ex rel. Bishop v. Mt. Orab Village School Dist. Bd. of Edn. (1942), 139 Ohio St.

427, 438, 22 O.O. 494, 498, 40 N.E.2d 913, 919. “The only judicial inquiry into

the constitutionality of a statute involves the question of legislative power, not

legislative wisdom.” State ex rel. Bowman v. Allen Cty. Bd. of Commrs. (1931),

124 Ohio St. 174, 196, 177 N.E. 271, 278.

{¶ 9} This struggle, waged by powerful and capable interests on both sides

of the issue, has created turbulence among our coordinate branches of government.4

Scheiner, Judicial Assessment of Punitive Damages, The Seventh Amendment, and the Politics of

Jury Power (1991), 91 Colum.L.Rev. 142; Wade, An Evaluation of the “Insurance Crisis” and

Existing Tort Law (1987), 24 Houston L.Rev. 81; Zwier & Piermattei, Who Knows Best About

Damages: A Case for Courts’ Rights (1989), 93 Dick.L.Rev. 689; Saks, Do We Really Know

Anything About the Behavior of the Tort Litigation System—and Why Not? (1992), 140

U.Pa.L.Rev. 1147; Galanter, News from Nowhere: The Debased Debate on Civil Justice (1993),

71 Denv.U.L.Rev. 77; Rustad, In Defense of Punitive Damages in Products Liability: Testing Tort

Anecdotes with Empirical Data (1992), 78 Iowa L.Rev. 1; Komesar, Injuries and Institutions: Tort

Reform, Tort Theory, and Beyond (1990), 65 N.Y.U.L.Rev. 23; Kahn, Regulation and Simple

Arithmetic: Shifting the Perspective on Tort Reform (1994), 72 N.C.L.Rev. 1129; Rustad,

Nationalizing Tort Law: The Republican Attack on Women, Blue Collar Workers and Consumers

(1996), 48 Rutgers L.Rev. 673; Annotation, Validity and Construction of Statute Terminating Right

of Action for Product-Caused Injury at Fixed Period After Manufacture, Sale, or Delivery of Product

(1995), 30 A.L.R.5th 1; Mutter, Moving to Comparative Negligence in an Era of Tort Reform:

Decisions for Tennessee (1990), 57 Tenn.L.Rev. 199; O’Connor & Sreenan, Apportionment of

Damages: Evolution of a Fault-Based System of Liability for Negligence (1996), 61 J.Air.L. &

Com. 365; Schwartz & Behrens, Punitive Damages Reform—State Legislatures Can and Should

Meet the Challenge Issued by the Supreme Court of the United States in Haslip (1993), 42

Am.U.L.Rev. 1365; Manzer, 1986 Tort Reform Legislation: A Systematic Evaluation of Caps on

Damages and Limitations on Joint and Several Liability (1988), 73 Cornell L.Rev. 628; Meros,

Toward a More Just and Predictable Civil Justice System (1998), 25 Fla.St.U.L.Rev. 141; Note,

“Common Sense” Legislation: The Birth of Neoclassical Tort Reform (1996), 109 Harv.L.Rev.

1765; Eaton & Talarico, Testing Two Assumptions About Federalism and Tort Reform (1996), 14

Yale J. on Reg. 371; Schwartz & Behrens, The Road to Federal Product Liability Reform (1996),

55 Md.L.Rev. 1363: Schwartz, Behrens & Taylor, Illinois Law: A Rich History of Cooperation

and Respect Between the Courts and the Legislature (1997), 28 Loy.U.Chi.L.J. 745.

4. Indeed, one legal scholar, upon reviewing Ohio’s recent history in the area of tort reform, was

compelled to comment that “[a]lthough civil and mannerly in its tone, with all heeding the principle

of separation of power, there is no doubt that the Ohio Constitution forms the battleground for an

ongoing war between the tort policies and power of the judicial branch and those of the legislative

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January Term, 1999

While the General Assembly and former Governor Voinovich have clearly

expressed their commitment to revamp the civil justice system, this court has struck

down significant components of these legislative measures as having gone too far,

to the point of violating the constitutional rights of our citizens.5 Nevertheless, each

and executive branches of state government.” Werber, Ohio Tort Reform Versus the Ohio

Constitution (Fall 1996), 69 Temple L.Rev. 1155, 1156.

5. See Adamsky v. Buckeye Local School Dist. (1995), 73 Ohio St.3d 360, 653 N.E.2d 212 (two-

year statute of limitations contained in R.C. 2744.04[A], enacted in 1985 as part of the Political

Subdivision Tort Liability Act, 141 Ohio Laws, Part I, 1699, held unconstitutional as applied to

minors in violation of Section 2, Article I of the Ohio Constitution); Zoppo v. Homestead Ins. Co.

(1994), 71 Ohio St.3d 552, 644 N.E.2d 397, paragraph two of the syllabus (R.C. 2315.21[C][2], 142

Ohio Laws, Part I, 1661, 1691, enacted in 1987, providing that the amount of punitive or exemplary

damages shall be determined by the court, held to violate the right to trial by jury under Section 5,

Article I of the Ohio Constitution); Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio St.3d 421, 644

N.E.2d 298, paragraph one of the syllabus (R.C. 2323.57, mandating that upon motion future

damages awards in medical malpractice claims exceeding $200,000 be paid periodically rather than

in a lump sum, held violative of Sections 5 and 16, Article I of the Ohio Constitution); Cyrus v.

Henes (1994), 70 Ohio St.3d 640, 640 N.E.2d 810, and Brennaman v. R.M.I. Co. (1994), 70 Ohio

St.3d 460, 639 N.E.2d 425, paragraph two of the syllabus (overruling Sedar v. Knowlton Constr.

Co. [1990], 49 Ohio St.3d 193, 551 N.E.2d 938, and holding that former R.C. 2305.131, a statute of

repose barring tort actions against designers and engineers of improvements to real property, that

are brought more than ten years after completion of construction services, violates the right to a

remedy guaranteed by Section 16, Article I of the Ohio Constitution); Depew v. Ogella (1994), 69

Ohio St.3d 610, 635 N.E.2d 310, May v. Tandy Corp. (1994), 69 Ohio St.3d 415, 633 N.E.2d 504,

and Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504 (R.C. 2317.45, part of the Tort

Reform Act of 1987, enacted by Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661, 1694, effective

January 5, 1988, relating to the deductibility of collateral source benefits, held violative of Sections

2, 5, and 16, Article I of the Ohio Constitution and unconstitutional in toto); Hiatt v. S. Health

Facilities, Inc. (1994), 68 Ohio St.3d 236, 626 N.E.2d 71 (holding that R.C. 2307.42, requiring that

a complaint in a medical action be accompanied by an affidavit asserting that claimant’s attorney

requested medical records from each defendant, is in conflict with Civ.R. 11, promulgated by the

Supreme Court pursuant to Section 5[B], Article IV of the Ohio Constitution, and thus invalid and

of no force and effect); Rockey v. 84 Lumber Co. (1993), 66 Ohio St.3d 221, 611 N.E.2d 789 (R.C.

2309.01, which prohibited a plaintiff in a tort action from specifying in the complaint an amount of

damages in excess of $25,000 and requiring the plaintiff to later amend for such purpose, held to be

in conflict with Civ.R. 8[A]); Burgess v. Eli Lilly & Co. (1993), 66 Ohio St.3d 59, 609 N.E.2d 140,

paragraph one of the syllabus (holding that the provision of R.C. 2305.10 regarding the accrual date

of a cause of action for diethylstilbestrol-related injuries is unconstitutional under the right-to-

remedy clause of Section 16, Article I, Ohio Constitution); Morris v. Savoy (1991), 61 Ohio St.3d

684, 576 N.E.2d 765 (holding that R.C. 2307.43, part of the Ohio Medical Malpractice Act enacted

by Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, 2809, 2813, setting a $200,000 cap on general

damages that may be awarded for medical malpractice, is unconstitutional); Brady v. Safety-Kleen

Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, paragraph two of the syllabus (R.C. 4121.80,

governing intentional torts that occur within the employment relationship, held to exceed and

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has endeavored to comport with the principle of separation of powers and respect

the integrity and independence of the other, that is, until now.

{¶ 10} Am.Sub.H.B. No. 350 is the latest effort at civil justice reform and,

to be sure, the most comprehensive and multifarious legislative measure thus far. 6

conflict with the legislative authority granted to the General Assembly pursuant to Sections 34 and

35, Article II of the Ohio Constitution). See, also, Gaines v. Preterm-Cleveland, Inc. (1987), 33

Ohio St.3d 54, 514 N.E.2d 709; Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 512 N.E.2d 626;

and Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, relative to

the constitutionality of R.C. 2305.11(B), the four-year statute of repose for medical malpractice

actions.

6. Am.Sub.H.B. No. 350 amends, enacts, or repeals over one hundred sections of the Ohio Revised

Code “relative to changes in the laws pertaining to tort and other civil actions.” 146 Ohio Laws,

Part II, 3867, 3867. The changes addressed include interest on judgments (R.C. 163.17, 1343.03,

1701.95, 2743.18, 2743.19, 2744.06, 3113.219, 3722.08, 4113.52, 4909.42), immunity and liability

of political subdivisions (R.C. 723.01, 2744.01 through 2744.06), liability for the condition of

premises open to the public for accessing growing agricultural produce (R.C. 901.52), sales of

securities and class action requirements therefor (R.C. 1707.01, 1707.432 through 1707.438), joint

and several liability, contributory and comparative fault, assumption of risk and apportionment of

damages (R.C. 1775.14, 2307.31 through 2307.331, 2315.19, 2345.20, 4171.10, 4507.07),

alternative dispute resolution (R.C. 1901.262, 1907.262, 2101.163, 2151.542, 2303.202),

certificates of merit (R.C. 2305.011), wrongful death (R.C. 2125.01, 2125.02, 2125.04), statutes of

repose (R.C. 2117.06[G], 2125.02, 2125.04, 2305.10, 2305.11, 2305.131), discrimination claims

(R.C. 4112.02, 4112.14, 4112.99), accrual dates (R.C. 2305.10, 2305.131), collateral benefits (R.C.

2317.45), seat belts (R.C. 4513.263), alcohol and drug consumption (R.C. 2323.59), liability of

liquor permit holder (R.C. 4399.18), caps on recoverable damages (R.C. 2305.01, 2315.21,

2323.54), frivolous conduct (R.C. 2323.51), liability of athletic coaches and officials (R.C.

2305.381), contingency fees for expert witnesses (R.C. 2317.46), hazardous- or toxic-substance

litigation (R.C. 2307.792), actions by a roller skater (R.C. 4171.10), domestic relations (R.C.

3113.219), poison prevention and treatment centers (R.C. 3701.19), appellate court jurisdiction

(R.C. 2501.02), personal services contracts (R.C. 109.36), appropriation cases (R.C. 163.17),

liability of directors to corporations (R.C. 1701.95), adult care facilities (R.C. 3722.08),

whistleblowers (R.C. 4113.52), port authority boards (R.C. 4582.27), public utilities (R.C. 4909.42),

and a variety of other changes relative to products liability, wrongful death, medical malpractice,

jury instructions, burdens of proof, statutes of limitation, and procedural and evidentiary matters too

numerous to set forth here.

The Legislative Service Commission, in its Final Analysis of Am.Sub.H.B. No. 350, breaks

down the bill into five different general sections (“The cause of action”; “Trial, liability, damages,

and judgment”; “Product liability actions”; “Medical claims and claims against other professionals”;

and “Miscellaneous”), headed by roman numerals, for purposes of analysis of the content and

operation of the bill. These general sections are correspondingly broken down into subsections. For

example, the first general section, “The cause of action,” is divided into thirteen different

subsections, such as “Civil actions regarding picking agricultural produce,” “Unavailability of

wrongful death action,” “Recovery of damages by a criminal plaintiff,” “Accrual of certain causes

of action,” “Statutes of repose,” etc. Some of the subsections are further broken down into

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January Term, 1999

More important, it changes the complexion of the reform debate into a challenge to

the judiciary as a coordinate branch of government. It marks the first time in

modern history that the General Assembly has openly challenged this court’s

authority to prescribe rules governing the courts of Ohio and to render definitive

interpretations of the Ohio Constitution binding upon the other branches.7

subsubsections: “Product liability actions”; “Specified malpractice claims; medical, dental,

optometric, and chiropractic claims”; and “Improvements to real property.” For each section (or

subsubsection when there is one), the Legislative Service Commission’s Analysis indicates which

Revised Code section is affected. Under this analysis, there are at least forty-eight separate topics

in the bill.

The enormousness of Am.Sub.H.B. No. 350’s scope is highlighted by the diversity of

interested parties who have joined this action, which include approximately two hundred

associations, corporations, organizations, and individuals participating in the submission of twenty-

four separate amicus curiae briefs.

7. On September 18, 1995, the Legislative Service Commission (“LSC”) issued a research

memorandum, No. R-121-1458, on the “Potential Constitutional Infirmities in H.B. 350 of the 121 st

General Assembly.” According to the memo, a member of the General Assembly had requested

that the LSC expand upon the following “Comment” to the “As Introduced” analysis of H.B. No.

350:

“Several provisions of the bill arguably include potential conflicts with the due process and

equal protection provisions of Sections 2 and 16 of Article I of the Ohio Constitution and the

Fourteenth Amendment to the United States Constitution, the ‘open courts’ provision of Section 16

of Article I of the Ohio Constitution, the prohibition against limiting damages in wrongful death

actions of Section 19a of Article I of the Ohio Constitution, and the duty of the Supreme Court to

adopt procedural rules (e.g., the Rules of Civil Procedure and the Rules of Evidence) under Section

5 of Article IV of the Ohio Constitution.”

The LSC responded in chart form by grouping various provisions of the introduced version

of H.B. No. 350 according to topic, and found potential constitutional infirmities with regard to

fourteen topics. The LSC reminded the General Assembly that “only the Ohio Supreme Court * *

* would have the constitutional authority to ‘definitively’ declare (1) whether those provisions pass

constitutional muster or are constitutionally infirm and (2) which provisions of the Ohio Constitution

* * * are infringed by the constitutionally infirm provisions.”

Most of the provisions that the LSC identified as potential constitutional infirmities were

retained in Am.Sub.H.B. No. 350 as passed at the regular session of the 121st General Assembly.

However, the bill includes a number of uncodified sections that contain various findings and

statements of intent with regard to the constitutionality of Am.Sub.H.B. No. 350 and some of its

more controversial provisions. Later in this opinion, we will examine the substance of these

declarations, as well as the extent to which they reveal an attempt to absorb the authority of the

judicial branch of government. Suffice it to say here that the General Assembly, particularly in

Section 5, has sought to rework the rules of procedure and evidence, issue judicial mandates, and

judge the constitutionality of its own acts even to the point of reenacting legislation which this court

has struck down as constitutionally infirm, while proclaiming to respectfully disagree with our

holdings and to recognize the legal rationale of a dissenting opinion and the judgment of a court of

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appeals that we reversed. The following are but a few instances of just such legislative overreaching:

“(E) In enacting new section 2305.131 of the Revised Code in this act, it is the intent of the

General Assembly to do all of the following:

“(1) To recognize the holdings of the Ohio Supreme Court in Sedar v. Knowlton Constr.

Co. (1990), 49 Ohio St.3d 193 [551 N.E.2d 938], and in Ross v. Sam W. Emerson Co. (1990), 49

Ohio St.3d 206 [551 N.E.2d 950], the holding of the Court of Appeals for Lorain County in Cyrus

v. Henes (1993), 89 Ohio App.3d 172 [623 N.E.2d 1256], the holding of the Court of Appeals for

Highland County in Cincinnati Ins. Co. v. Wylie (1988), 48 Ohio App.3d 289 [549 N.E.2d 1198],

and the holding of the Court of Appeals for Hamilton County in Elizabeth Gamble Deaconess Home

Assn. v. Turner Constr. Co. (1984), 14 Ohio App.3d 281 [14 OBR 337, 470 N.E.2d 950] [all of

which were overruled, reversed, or rendered ineffectual by Brennaman, Ross v. Tom Reith, Inc., and

Cyrus, infra], that a statute of repose, as contained in former section 2305.131 of the Revised Code,

does not violate the remedy by due course of law and open courts provisions of Section 16 of Article

I of the Ohio Constitution, the equal protection guarantee of Section 2 of Article I of the Ohio

Constitution, or the equal protection or due process clauses of the Fourteenth Amendment to the

United States Constitution when applied to bar a third person’s assertion of a cause of action against

a person performing services for an improvement to real property or furnishing the design, planning,

supervision of construction, or construction of an improvement to real property;

“(2) To repeal former section 2305.131 of the Revised Code in light of the holdings of the

Ohio Supreme Court in Ross v. Tom Reith, Inc. (1995), 71 Ohio St.3d 563 [645 N.E.2d 729],

Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460 [639 N.E.2d 425], and Cyrus v. Henes (1994),

70 Ohio St.3d 640 [640 N.E.2d 810] but to respectfully disagree with those holdings and to

recognize the legal rationale set forth in the concurring-dissenting opinion in Brennaman v. R.M.I.

Co., supra.

“***

“(5) To recognize that new section 2305.131 of the Revised Code, as enacted by this act,

does not deny a remedy to a claimant who has a vested cause of action but instead bars a cause of

action before it ever arises as stated by the Ohio Supreme Court in Sedar v. Knowlton Constr. Co.

(1990), 49 Ohio St.3d 193 [551 N.E.2d 938] [overruled by Brennaman, supra];

“***

“(G) In amending section 2305.11 of the Revised Code in this act, it is the intent of the

General Assembly to do all of the following:

“(1) To recognize the holdings of the Ohio Supreme Court in Sedar v. Knowlton

Construction Company (1990), 49 Ohio St.3d 193 [551 N.E.2d 938] [overruled in Brennaman] and

in Ross v. Sam W. Emerson Co. (1990), 49 Ohio St.3d 206 [551 N.E.2d 950], that the concept of a

statute of repose does not violate the remedy by due course of law and open courts provisions of

Section 16 of Article I of the Ohio Constitution, the equal protection guarantee of Section 2 of

Article I of the Ohio Constitution, or the equal protection or due process clauses of the Fourteenth

Amendment to the United States Constitution;

“***

“(4) To recognize [contrary to Brennaman, Cyrus, and Ross v. Tom Reith, Inc.] that the

failure to adopt orderly and predictable rules governing the resolution of disputes, such as the six-

year statutes of repose set forth in section 2305.11 of the Revised Code, as amended by this act,

would violate the rights of certain defendants to due course of law under Section 16 of Article I of

the Ohio Constitution and due process of law under the due process clause of the Fourteenth

Amendment to the United States Constitution;

“***

“(H) In enacting section 2305.011 of the Revised Code in this act, it is the intent of the

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General Assembly to do all of the following:

“(1) To respond to the issues raised by the holding of the Supreme Court in Hiatt v. S.

Health Facilities, Inc. (1994), 68 Ohio St.3d 236 [626 N.E.2d 71] [holding former R.C. 2307.42’s

certificate-of-merit requirement to be invalid and in conflict with Civ.R. 11], by clarifying the

jurisdictional nature of certificate of merit requirements and creating a substantive requirement for

medical, dental, optometric, chiropractic, and malpractice claims defined or described in section

2305.11 of the Revised Code;

“(2) To exercise the General Assembly’s constitutional power to establish certain

jurisdiction for Ohio courts by establishing that trial courts lose subject matter jurisdiction to hear

medical, dental, optometric, chiropractic, and malpractice claims defined or described in section

2305.11 of the Revised Code unless they are supported by certificates of merit;

“***

“(L) In enacting new division (D)(2) in section 2125.02 and new division (C) in section

2305.10 of the Revised Code in this act, it is the intent of the General Assembly to do all of the

following:

“(1) To recognize the holdings of the Ohio Supreme Court in Sedar v. Knowlton Constr.

Co. (1990), 49 Ohio St.3d 193 [551 N.E.2d 938] [overruled in Brennaman], and in Ross v. Sam W.

Emerson Co. (1990), 49 Ohio St.3d 206 [551 N.E.2d 950], that a statute of repose does not violate

the remedy by due course of law and open courts provision of Section 16 of Article I of the Ohio

Constitution, the equal protection guarantee of Section 2 of Article I of the Ohio Constitution or the

equal protection or due process clauses of the Fourteenth Amendment to the United States

Constitution, and to respectfully disagree with the Ohio Supreme Court’s holdings in Ross v. Tom

Reith, Inc. (1995), 71 Ohio St.3d 563 [645 N.E.2d 729], Brennaman v. R.M.I. Co. (1994), 70 Ohio

St.3d 460 [639 N.E.2d 425], and Cyrus v. Henes (1994), 70 Ohio St.3d 640 [640 N.E.2d 810] that a

statute of repose violates Section 16 of Article I of the Ohio Constitution.

“2. To recognize the legal rationale set forth by Chief Justice Moyer in Brennaman * * *

[dissenting in part] and by the Ohio Supreme Court in Sedar * * *, and in light of that rationale, to

recognize that new division (D)(2) of section 2125.02 and new division (C) of section 2305.10 of

the Revised Code do not deny a remedy to a claimant who has a vested cause of action, but instead

bar the commencement of an action before any right accrues.

“***

“(O) The intent of the General Assembly in enacting section 2307.792 of the Revised Code

is to establish the judicial standard for the granting of summary judgment in hazardous or toxic

exposure cases, consistent with the decision of Lohrmann v. Pittsburgh Corning Corp. 782 F.2d

1156 (4th Cir.1986), and contrary to Syllabus 2, Horton v. Harwick Chemical Corp. (1995), 73 Ohio

St.3d 679 [653 N.E.2d 1196]. The General Assembly recognizes that the courts of Ohio prior to the

Horton decision generally followed the rationale of the Lohrmann decision in determining when

summary judgment was appropriate in hazardous or toxic exposure cases, a similar standard of

which has been adopted by the majority of states. The Lohrmann standard provides litigants and

the courts of Ohio with an objective, easily applied standard for determining when summary

judgment is appropriate.

“(P) In enacting the amendments to section 2305.01 and new section 2323.54 of the

Revised Code [establishing noneconomic damage caps], the General Assembly finds * * * all of the

following:

“***

“(6) The Ohio Constitution, Article I, Section 19A provides that ‘The amount of damages

recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of

another, shall not be limited by law.’; that provision refers only to economic or pecuniary losses and

13

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II

It Is the Constitutional Duty of the Supreme Court of Ohio to Preserve the

Integrity and Independence of the Judiciary and Ensure that the Judicial

Power of the State Remains Vested in the Courts

{¶ 11} As detailed in footnote 7 and below, Am.Sub.H.B. No. 350 intrudes

upon judicial power by declaring itself constitutional, by reenacting legislation

struck down as unconstitutional, and by interfering with this court’s power to

regulate court procedure. To appreciate the importance of separation of powers we

need look no further than Ohio’s own history.

{¶ 12} “[T]he people possessing all governmental power, adopted

constitutions, completely distributing it to appropriate departments.” Hale v. State

(1896), 55 Ohio St. 210, 214, 45 N.E. 199, 200. They vested the legislative power

not to noneconomic or nonpecuniary losses, which by implication distinguishes among potential

damages and supports the authority of the General Assembly to limit damages otherwise.

“***

“(8) The courts of common pleas were established by the Ohio Constitution as courts of

general jurisdiction in Ohio, but the Constitution itself limits their jurisdiction to that which is

expressly conferred by the General Assembly, including jurisdiction to limit consideration of

noneconomic damages. The Ohio Constitution, Article IV, Section 4(B) provides: ‘The courts of

common pleas and divisions thereof shall have such original jurisdiction over all justiciable matters

and such powers of review of proceedings of administrative officers and agencies as may be

provided by law.’ In addition, Section 18 of Article IV provides: ‘The several judges of the supreme

court, of the common pleas, and of such other courts as may be created, shall, respectively, have

and exercise such power and jurisdiction, at chambers, or otherwise, as may be directed by law.’

The Supreme Court of Ohio has uniformly held that the provisions of Article IV are not self-

executing. Rather, the jurisdiction of the common pleas courts is limited to whatever the legislature

may choose to bestow. Central Ohio Transit Auth. v. Transport Workers Union of America (1988),

37 Ohio St.3d 56 [524 N.E.2d 151]; Seventh Urban, Inc. v. University Circle (1981), 67 Ohio St.2d

19 [21 O.O.3d 12, 423 N.E.2d 1070]; State ex rel. Miller v. Keefe (1958), 168 Ohio St. 234 [6

O.O.2d 18, 152 N.E.2d 113].” 146 Ohio Laws, Part II, 4021-4028. (The last nine quoted words of

Section 5[E][2] do not appear in 146 Ohio Laws, due to a printing error. They are in the official

enrolled Act, as correctly quoted in notes to R.C. 2305.131 in both published versions of the Revised

Code.)

See, also, Werber, supra, 69 Temple L.Rev. at 1170:

“The legislative branch, at least in theory, knows the extent to which it has the power to

act, and that the judiciary alone has the authority to determine constitutional issues. Where the tort

reform legislation [H.B. No. 350] seeks to impose the General Assembly’s view of the constitution

upon the court—as it does in several key places—the effort is not only misguided, it is futile. In

these areas, battle is truly joined.” (Footnote omitted.)

14

January Term, 1999

of the state in the General Assembly (Section 1, Article II, Ohio Constitution), the

executive power in the Governor (Section 5, Article III, Ohio Constitution), and the

judicial power in the courts (Section 1, Article IV, Ohio Constitution). They also

specified that “[t]he general assembly shall [not] * * * exercise any judicial power,

not herein expressly conferred.” Section 32, Article II, Ohio Constitution.

{¶ 13} The power and duty of the judiciary to determine the

constitutionality and, therefore, the validity of the acts of the other branches of

government have been firmly established as an essential feature of the Ohio system

of separation of powers. See, e.g., Beagle v. Walden (1997), 78 Ohio St.3d 59, 62,

676 N.E.2d 506, 508 (“[i]nterpretation of the state and federal Constitutions is a

role exclusive to the judicial branch”). However, this was not always so, and a

major part of our history involves a continuing effort to establish and secure this

power as intrinsic to the judiciary and, indeed, to establish the judiciary as a viable

and coequal branch of our government.

{¶ 14} On April 30, 1802, Congress approved an “Act to enable the people

of the Eastern division of the territory northwest of the river Ohio to form a

constitution and state government, and for the admission of such state into the

Union, on an equal footing with the original States, and for other purposes.” 2 Stat.

173 (1802). On November 1, 1802, over the objections of Governor Arthur St.

Clair, Ohio’s first constitutional convention assembled at Chillicothe and

proceeded to form a constitution which led to statehood in 1803.8

{¶ 15} The 1802 Constitution evinces a strong reaction to the executive

8. This portion of the opinion dealing with Ohio’s history as it relates to judicial power is based in

part on the following sources: Gold, Public Aid to Private Enterprise Under the Ohio Constitution:

Sections 4, 6, and 13 of Article VIII In Historical Perspective (1985), 16 U.Tol.L.Rev. 405;

Woodbridge, A History of Separation of Powers in Ohio: A Study in Administrative Law (1939),

13 U.Cin.L.Rev. 191; Pollack, Ohio Unreported Judicial Decisions Prior To 1823 (1952); 1, 2

Marshall, History of the Courts and Lawyers of Ohio (1934); Gilkey, The Ohio Hundred Year Book

(1901); 1 Report of the Debates and Proceedings of the Convention for the Revision of the

Constitution of the State of Ohio, 1850-1851; 1 Chase, Statutes of Ohio and of the Northwestern

Territory (1833).

15

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autocracy that prevailed under the Ordinance of 1787, and touched off an era of

legislative dominance. The General Assembly had the power of judicial

appointment under Section 8, Article III of the Constitution of 1802, and considered

the judiciary a subordinate governmental department. Four years after Ohio

achieved statehood and the United States Supreme Court handed down its decision

in Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 2 L.Ed. 60, Chief Justice

Samuel Huntington and Judge George Tod of the Ohio Supreme Court held Section

5 of the Act of February 12, 1805, 3 Ohio Laws 14, 21, to be repugnant to Section

8, Article 8, Constitution of Ohio, 1802, and therefore void and of no binding effect.

Rutherford v. M’Faddon (1807), Pollack, Ohio Unreported Judicial Decisions Prior

To 1823 (1952) 71.

{¶ 16} In asserting the court’s authority to determine the constitutionality

of a legislative Act, Chief Justice Huntington wrote that “our constitution * * * is

the supreme law of the land, and paramount to any legislative act,” that “the

judiciary [is] a co-ordinate branch of the government deriving its authority from the

constitution,” and that “[t]he people can never be secure under any form of

government, where there is no check among the several departments.” Id. at 73,

74, 75. He went on to explain that if it is true that “the legislature can pass

unconstitutional acts—that they are the sole judges of their constitutionality—and

if unconstitutional, that there is no remedy; then indeed is our constitution a blank

paper: there is no guarantee for a single right to citizens; * * * but slavery may be

introduced; a religious test may be established; the press may be fettered or

restrained; the trial by jury may be abolished; ex post facto laws may be made;

standing armies may be raised, and the whole train of evils against which our

constitution meant to provide, may be gradually let in upon us.” (Emphasis sic.)

Id. at 76.

{¶ 17} Judge Tod, concurring, added:

“The people in this, their fundamental law, have entered into a solemn

16

January Term, 1999

covenant with every individual citizen, that [their] inherent rights shall be protected,

even against the encroachments of legislative authority. If a law was to be passed,

inflicting death on a person convicted of larceny — or that a particular class of

citizens should have the exclusive privilege of acquiring and possessing property,

and that all others should be proscribed and doomed to exile; could not the devoted

victims of such legislative tyranny, claim, with a confidence inspired by the

constitution, the interfering power of the judicial courts? Could they not entrench

themselves within the ramparts raised by the constitution, and then in safety bid

defiance to such attempts?” Id. at 85-86.

{¶ 18} Judge Tod explained that “[i]f legislative acts are to all intents

obligatory on the court — the constitution is a subordinate instrument — liable to

be annulled, altered and amended by legislative supremacy. Their acts would not

only be equal, but superior to that charter, which has the sanction of ‘We the people

do ordain and establish.’ ” Id. at 87.

{¶ 19} On January 9, 1809, Judge Tod stood on trial before the Ohio Senate,

charged as follows:

“That he did in his judicial capacity, adjudicate and determine, that the said

* * * act of the general assembly * * * was unconstitutional, null and void, * * * to

the evil example of all good citizens of the State of Ohio * * * contrary to its

constitution and laws, disgraceful to his own character as a judge, and degrading to

the honor and dignity of the State of Ohio.” House Journal of the 7th Ohio General

Assembly, 47, 79; Journal of the Senate of Ohio in Cases of Impeachment (1808-

1809) 53.

{¶ 20} Although Judge Tod was acquitted by a margin of one vote, the

majority of the General Assembly quickly retaliated. The provision held to be

unconstitutional in Rutherford was reenacted in an even stronger form. House

Journal, supra, at 164; 7 Ohio Laws 43, 49. On January 16, 1810, the General

Assembly passed the “sweeping resolution,” which declared that all judicial offices

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carrying a seven-year appointment would become vacant on the state’s seventh

anniversary regardless of interim appointments that had been made to fill vacancies.

8 Ohio Laws 349. By virtue of this resolution, the General Assembly was able to

sweep out of office those judges whose views on judicial review differed from the

legislative majority, including Judge Tod, and appoint in their place those whose

views were more in harmony with their own. See Pollack, supra, at 102-105; 3

Marshall, A History of the Courts and Lawyers of Ohio (1934) 722-727; Gilkey,

The Ohio Hundred Year Book (1901) 468.

{¶ 21} The legislature also became heavily involved in the subsidization of

private companies and the granting of special privileges in corporate charters. The

General Assembly passed a number of Acts, most notably the Loan Law of 1837,

35 Ohio Laws 76, which became known as the “Plunder Law,” designed to loan

credit or give financial aid to private canal, bridge, turnpike, and railroad

companies. Between 1825 and 1830, the total state debt increased nearly

elevenfold and more than doubled again by 1840. The public began to bemoan the

taxes imposed on them for the benefit of private companies and the losses incurred

by the state when subsidized corporations failed. See Gold, Public Aid to Private

Enterprise Under the Ohio Constitution: Sections 4, 6, and 13 of Article VIII In

Historical Perspective (1985), 16 U.Tol.L.Rev. 405, 407-423.

{¶ 22} This era of legislative dominance, which proved as undesirable as

the executive supremacy which preceded it, led to the Constitutional Convention of

1851 and the adoption of our second Constitution. Just as the Constitution of 1802

had reflected an aversion to an all-powerful executive, so the Constitution of 1851

was inspired by an antipathy toward an all-powerful legislature and a desire for

more independence of each branch of our tripartite system of government. One

delegate to the convention expressed this belief:

“To the Legislative department * * * is expressly delegated an almost

boundless discretion, and an almost unlimited authority * * *. It is, then, in the

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Legislative department of the Government that the rights of the people will be

usurped and sacrificed, in my opinion, if at all. And it is this body, possessing by

far the most vast and dangerous discretion of any body under the constitution, that

we should especially watch and restrain.

“Mr. President, I am not one of those who believe that * * * any essential

or any lasting encroachment will be made upon the essential liberties of the mass

of the people. But, sir, so far as any encroachments upon the popular rights may be

made, they will be made by the Legislative body. They will not proceed from a

military dictator; they will not proceed from the Judicial Power. They will not

proceed from an over-riding executive, but from an irrational, excited, triumphant

party majority in the Halls of the Legislature.

“***

“I am, therefore, especially anxious to guard well the limits of the exercise

of the Legislative Power.

“ * * * I shall vote to take away from the Legislature all power to pass local,

partial, private and exposte facto [sic] laws. I shall vote for an executive veto. I

shall vote to take away from the Legislature all power to appoint officers, or to

intervene with the Judiciary; and in fine, I shall vote to define and limit as closely

as possible, the exact line in which the Legislative Department shall move.” 1

Debates of the Constitutional Convention, 1851-52, at 123.

{¶ 23} Another delegate summarized the overall sentiment as follows:

“What kind of a General Assembly shall we have under the new

Constitution? In view of all the opinions which we have gathered from each other

with reference to what our constitution will be, we must expect to have a General

Assembly stripped of certain important powers which it before possessed; stripped

of the power to enact special laws or creating special corporations; stripped of the

appointing power; stripped of the apportionment power, and of the power of special

legislation. We shall have a General Assembly reduced materially in power and

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the scope of duties, in all its arrangements; and we shall thus take away from them

as much as possible all temptation to the abuse of their powers. * * *

“***

“ * * * Under the old Constitution, the legislature swallowed up all the rest

of the government. They constituted not only the Legislature, but the Executive

and Judiciary to some extent. Now it seems to me, that by confining the Legislature,

to their appropriate law making functions, we shall have accomplished everything

the people have asked for; that is we shall have established a just equilibrium in the

government. We shall have an active Legislature—if they meet annually; an active

Governor; and a more active Judiciary, thus restoring the harmony that has been so

long disturbed under the old Constitution, in all the different departments of

governments.” Id. at 174-175.

{¶ 24} Our second Constitution was adopted on March 10, 1851, and the

following year the court, in Cincinnati, Wilmington & Zanesville RR. Co. v. Clinton

Cty. Commrs. (1852), 1 Ohio St. 77, held:

“It is the right and duty of the judicial tribunals to determine, whether a

legislative act drawn in question in a suit pending before them, is opposed to the

constitution of the United States, or of this State, and if so found, to treat it as a

nullity.” Id., paragraph one of the syllabus.

{¶ 25} In so holding, the court expounded as follows:

“How any doubt could ever have been entertained upon this subject, is

matter of no little astonishment; and yet the history of our own State shows, that

the power was, at one time, not only doubted, but positively denied; and judges, for

a fearless discharge of this duty, were subjected to impeachment by the house of

representatives. * * *

“***

“To adjudicate upon, and protect [individual] rights and interests, constitute

the whole business of the judicial department. Each judge before he is permitted to

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January Term, 1999

enter upon so important a duty, is required to bind his conscience by a solemn oath

to support these constitutions. After all this, when he is clearly convinced, their

provisions have been violated, and the rights of the individual secured by them,

have been invaded by a legislative enactment, he has but one of two courses to

pursue—either to regard his oath, vindicate the fundamental law, and protect the

rights of the individual citizen, or to give effect to an act of usurped authority. In

such case, it cannot be doubtful where the path of duty leads. The latter alternative

can only be followed, when we are to nullify all constitutional guaranties, and

proclaim the legislative body, like the British Parliament, omnipotent.” Id. at 81-

82.

{¶ 26} Thereafter, the power of constitutional adjudication was secured

exclusively in the judiciary, essential to its integrity and independence, serving,

fundamentally and intrinsically, as a check upon the other branches. Once doubted,

it became axiomatic that the judicial branch is the final arbiter in interpreting the

Constitution and that the General Assembly may not enter upon the judicial

business of settling the constitutionality of its own laws, disregard a Supreme Court

decision on the subject, reenact legislation previously declared violative of the

Constitution, or in any other way exercise, direct, control, or encroach upon the

judicial power. Temporally connected to the formative history of our second

Constitution, our early decisions reflect the proven dangers of a subservient

judiciary. We learn therefrom to jealously guard the judicial power against

encroachment from the other two branches of government and to conscientiously

perform our constitutional duties and continue our most precious legacy. See, e.g.,

Ex parte Bevan (1933), 126 Ohio St. 126, 184 N.E. 393; Bowman v. Allen Cty. Bd.

of Commrs. (1931), 124 Ohio St. 174, 177 N.E. 271; State ex rel. Bryant v. Akron

Metro. Park Dist. for Summit Cty. (1929), 120 Ohio St. 464, 473-475, 166 N.E.

407, 410; State ex rel. Davis v. Hildebrant (1916), 94 Ohio St. 154, 169, 114 N.E.

55, 59; State ex rel. Weinberger v. Miller (1912), 87 Ohio St. 12, 99 N.E. 1078;

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Fairview v. Giffee (1905), 73 Ohio St. 183, 76 N.E. 865; Bartlett v. State (1905),

73 Ohio St. 54, 75 N.E. 939; State ex rel. Trauger v. Nash (1902), 66 Ohio St. 612,

64 N.E. 558; Zanesville v. Zanesville Tel. & Tel. Co. (1900), 63 Ohio St. 442, 451,

59 N.E. 109, 110; Hale v. State (1896), 55 Ohio St. 210, 45 N.E. 199; Hixson v.

Burson (1896), 54 Ohio St. 470, 43 N.E. 1000; State ex rel. Atty. Gen. v. Harmon

(1877), 31 Ohio St. 250; State ex rel. Atty. Gen. v. Kennon (1857), 7 Ohio St. 546,

553-554; Cass v. Dillon (1853), 2 Ohio St. 607.

III

This Court Will Entertain a Public Action in the Rare and Extraordinary

Case Where Relators Challenge the Constitutionality of a Legislative

Enactment on Grounds that It Operates, Directly and Broadly, to Divest the

Courts of Judicial Power

{¶ 27} Perhaps the most amorphous and contentious aspect of this litigation

involves the question whether relators’ claims should even be heard at this juncture.

In their motions to dismiss, and again in their merit briefs, respondents contend that

this action is an inappropriate vehicle for determining the constitutionality of

Am.Sub.H.B. No. 350, as it involves the wrong parties seeking the wrong relief in

the wrong court. Respondents argue that relators are not the proper parties to raise

constitutional questions because they have failed to show the necessary personal

injury to establish standing to sue in a court in Ohio. Respondents assert that

relators have demonstrated no more than an insufficient generalized public interest

in the enforcement of Am.Sub.H.B. No. 350, and that relators’ claims of potential

financial loss hardly rise to the level of concrete injury required for standing.

According to respondents, relators have no standing to bring an action as taxpayers

because they are not enforcing a public right, and because they have failed to

demonstrate pecuniary harm different from the harm suffered by the general

taxpaying public.

{¶ 28} Respondents also maintain that the present form of action is an

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improper means by which to secure judicial review. Since the unconstitutionality

of a statute does not deprive a trial court of the jurisdiction to proceed to its terms,

it is inappropriate to grant an extraordinary writ to compel or prohibit trial judges

in the exercise of their essential function to adjudicate constitutional questions.

Further, adequate procedural mechanisms are available in the ordinary course of

law to any tort victim who wishes to challenge the constitutionality of Am.Sub.H.B.

No. 350. In addition, the argument continues, relators’ requests for prohibitive and

mandatory writs are actually disguised requests for declaratory and injunctive

relief, which this court has no original jurisdiction to grant. Respondents urge that

we allow the normal judicial process to run its course, whereby the constitutionality

of the various components of Am.Sub.H.B. No. 350 would be determined by trial

courts as they arise in individual tort and other civil actions, and then proceed

piecemeal through the appellate process toward a final determination by this court.9

9. Cases brought by private litigants, many of which remain pending, include Wolgamott v. E.R.

Trucking, Inc. (Nov. 12, 1995), Stark C.P. No. 1996 CV 02033; Wells v. Thomson Newspaper

Holdings, Inc. (1998), 183 F.R.D. 225; Crowe v. Owens Corning Fiberglas (Oct. 29, 1998),

Cuyahoga App. No. 73206, unreported, 1998 WL 767622, discretionary appeal allowed (1998), 85

Ohio St.3d 1426, 707 N.E.2d 516; Kempthorn, Inc. v. Wallace (Sept. 14, 1998), Stark App. No.

98CA00087, unreported, 1998 WL 667655; Leisure v. State Farm Auto. Ins. Co. (Aug. 31, 1998),

Stark App. Nos. 1997CA00417 and 1998CA00001, unreported, 1998 WL 667437; Mead v.

Lakewood School Dist. Bd. of Edn. (Aug. 5, 1998), Licking App. No. 97 CA 113, unreported, 1998

WL 516290; McCray v. Springboro (July 13, 1998), Warren App. No. CA98-01-006, unreported,

1998 WL 391404; Harris v. Trader Bud’s Westside Dodge, Inc., Medina C.P. No. 97CIV-0212;

Schriner v. Valve-Trol Co., Summit C.P. No. 97-01-0827; Triplett v. Triplett (Aug. 14, 1997),

Franklin App. No. 97APE02-147, unreported, 1997 WL 467322; Emerick v. Reddy (Mar. 25, 1997),

Montgomery C.P. No. 95-2316; Shaker Auto Lease, Inc. v. Cleveland Hts. (June 19, 1997),

Cuyahoga App. No. 72022, unreported, 1997 WL 337632; Sheets v. Carmel Farms (June 5, 1997),

Franklin App. Nos. 96APE09-1224 and 96APE09-1225, unreported, 1997 WL 303760; Burt v.

Gregory Galvanized & Metal Processing (May 9, 1997), Stark C.P. No. 1994 CV 01786; Grasse v.

Eden (June 24, 1997), Lorain C.P. No. 97 CV 118008; Marcum v. Bynorty (Nov. 24, 1997), Licking

C.P. No. 96-CV-625; Katynski v. Kotaka, Franklin C.P. No. 97CV03-4056; Cugliari v. Colts’ Mgf.

Co., Stark C.P. No. 1997 CV02668; Burger v. Cleveland Hts. (July 21, 1997), Cuyahoga App. No.

72675, dismissed without opinion for lack of a final appealable order, discretionary appeal allowed

(1997), 80 Ohio St.3d 1482, 687 N.E.2d 476; Stickovich v. Cleveland, Cuyahoga App. No. 72874,

discretionary appeal not allowed (1997), 80 Ohio St.3d 1470, 687 N.E.2d 298; Foreman v. TS Tech,

Franklin C.P. No. 97CV10-9455; Kagy v. Toledo-Lucas Cty. Port Auth. (1997), 121 Ohio App.3d

239, 699 N.E.2d 566. See, also, Natl. Lawyers Guild of Cleveland v. Voinovich (Nov. 7, 1997),

Franklin C.P. No. 97CVH06-6194 (case dismissed for lack of standing).

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{¶ 29} It is well established that before an Ohio court can consider the

merits of a legal claim, the person seeking relief must establish standing to sue.

Ohio Contractors Assn. v. Bicking (1994), 71 Ohio St.3d 318, 320, 643 N.E.2d

1088, 1089. The concept of standing embodies general concerns about how courts

should function in a democratic system of government. As the court explained in

Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 35, 257 N.E.2d

371, 372:

“It has been long and well established that it is the duty of every judicial

tribunal to decide actual controversies between parties legitimately affected by

specific facts and to render judgments which can be carried into effect. It has

become settled judicial responsibility for courts to refrain from giving opinions on

abstract propositions and to avoid the imposition by judgment of premature

declarations or advice upon potential controversies. The extension of this principle

includes enactments of the General Assembly.”

{¶ 30} These concerns become more acute where there may be an intrusion

into areas committed to another and coequal branch of government. The judicial

“power to declare legislative enactments unconstitutional is not a superior power,

neither one of veto nor of greater wisdom. It is rather a power burdened with a

duty—a duty to determine in particular cases whether the Legislature has reached

and passed the extreme boundary of its legislative power.” Ostrander v. Preece

(1935), 129 Ohio St. 625, 629, 3 O.O. 24, 26, 196 N.E. 670, 672. Thus, the judicial

function does not begin until after the legislative process is completed and “the void

law is about to be enforced against a citizen to his prejudice.” Otherwise, if “no

private rights of person or property are in jeopardy, * * * [w]e are simply asked to

regulate the affairs of another branch of government.” Pfeifer v. Graves (1913), 88

Ohio St. 473, 488, 104 N.E. 529, 533.

{¶ 31} Accordingly, in the vast majority of cases brought by a private

litigant, “ ‘the question of standing depends upon whether the party has alleged

24

January Term, 1999

such a personal stake in the outcome of the controversy, as to ensure that the dispute

sought to be adjudicated will be presented in an adversary context and in a form

historically viewed as capable of judicial resolution.’ ” (Citations and internal

quotations omitted.) State ex rel. Dallman v. Franklin Cty. Court of Common Pleas

(1973), 35 Ohio St.2d 176, 178-179, 64 O.O.2d 103, 105, 298 N.E.2d 515, 516,

quoting Sierra Club v. Morton (1972), 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31

L.Ed.2d 636, 641. In order to have standing to attack the constitutionality of a

legislative enactment, the private litigant must generally show that he or she has

suffered or is threatened with direct and concrete injury in a manner or degree

different from that suffered by the public in general, that the law in question has

caused the injury, and that the relief requested will redress the injury. See Bicking,

supra; Willoughby Hills v. C.C. Bar’s Sahara, Inc. (1992), 64 Ohio St.3d 24, 27,

591 N.E.2d 1203, 1205; Palazzi v. Estate of Gardner (1987), 32 Ohio St.3d 169,

512 N.E.2d 971, at the syllabus; Anderson v. Brown (1968), 13 Ohio St.2d 53, 42

O.O.2d 100, 233 N.E.2d 584, paragraph one of the syllabus; State ex rel. Lynch v.

Rhodes (1964), 176 Ohio St. 251, 254, 27 O.O.2d 155, 156, 199 N.E.2d 393, 396;

State ex rel. Skilton v. Miller (1955), 164 Ohio St. 163, 169, 57 O.O. 145, 149, 128

N.E.2d 47, 51; Zangerle v. Evatt (1942), 139 Ohio St. 563, 574, 23 O.O. 52, 57, 41

N.E.2d 369, 374. See, generally, 16 Ohio Jurisprudence 3d (1979) 266, 270,

Constitutional Law, Sections 134 and 135.

{¶ 32} In the federal judicial system, where the requirement for injury is

grounded in the constitutional requirements of Section 2, Article III of the United

States Constitution, the necessity of showing injury in fact prevails irrespective of

whether the complaining party seeks to enforce a private or public right. See

Whitmore v. Arkansas (1990), 495 U.S. 149, 155, 110 S.Ct. 1717, 1722-1723, 109

L.Ed.2d 135, 145; Secy. of State of Maryland v. Joseph H. Munson Co., Inc. (1984),

467 U.S. 947, 954, 104 S.Ct. 2839, 2845, 81 L.Ed.2d 786, 794; Singleton v. Wulff

(1976), 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826, 832; Sierra Club

25

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v. Morton (1972), 405 U.S. 727, 736-740, 92 S.Ct. 1361, 1367-1368, 31 L.Ed.2d

636, 643-646. However, the federal decisions in this area are not binding upon this

court, and we are free to dispense with the requirement for injury where the public

interest so demands. “Unlike the federal courts, state courts are not bound by

constitutional strictures on standing; with state courts standing is a self-imposed

rule of restraint. State courts need not become enmeshed in the federal complexities

and technicalities involving standing and are free to reject procedural frustrations

in favor of just and expeditious determination on the ultimate merits.”10 (Footnote

omitted.) 59 American Jurisprudence 2d (1987) 415, Parties, Section 30.

{¶ 33} This court has long taken the position that when the issues sought to

be litigated are of great importance and interest to the public, they may be resolved

in a form of action that involves no rights or obligations peculiar to named parties.

Thus, in In re Assignment of Judges to Hold Dist. Courts (1878), 34 Ohio St. 431,

it was held that two legislative enactments, 75 Ohio Laws 139 and 537, which

undertook to reconstruct the common pleas districts of the state, would work “the

10. The federal courts have described the problem of standing as being among “ ‘the most

amorphous [concepts] in the entire domain of public law.’ ” Flast v. Cohen (1968), 392 U.S. 83,

99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947, 961, quoting Hearings on S. 2097, before the

Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 2d

Session (1966) 498 (statement of Professor Paul A. Freund). Justice William O. Douglas warned

that “[g]eneralizations about standing to sue are largely worthless as such.” Assn. of Data

Processing Serv. Org., Inc. v. Camp (1970), 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184,

187. Similarly, in what has been described as “a nearly unprecedented degree of inarticulateness,”

Jaffe, Standing to Secure Judicial Review: Public Actions (1961), 74 Harv.L.Rev. 1265, 1268,

Justice Frankfurter wrote: “It would not further clarification of this complicated specialty of federal

jurisdiction, the solution of whose problems is in any event more or less determined by the specific

circumstances of individual situations, to set out the divergent grounds in support of standing in

these cases.” United States ex rel. Chapman v. Fed. Power Comm. (1953), 345 U.S. 153, 156, 73

S.Ct. 609, 612, 97 L.Ed. 918, 925. It has also been stated that “[c]onfusion twice-confounded reigns

in the area of federal jurisdiction described as ‘standing to sue,’ ” Berger, Standing to Sue in Public

Actions: Is it a Constitutional Requirement? (1969), 78 Yale L.J. 816, and the high court has been

constrained to acknowledge that “ ‘the concept of “Art. III standing” has not been defined with

complete consistency in all of the various cases decided by this Court which have discussed it.’ ”

Whitmore, supra, 495 U.S. at 155, 110 S.Ct. at 1723, 109 L.Ed.2d at 145, quoting Valley Forge

Christian College v. Americans United for Separation of Church & State, Inc. (1982), 454 U.S. 464,

475, 102 S.Ct. 752, 760, 70 L.Ed.2d 700, 710.

26

January Term, 1999

substantial destruction of,” id. at 436, constituted “an attempt to overthrow,” id. at

438, and were “subversive of the judicial system established by the constitution,”

id. at 439. The court, viewing the issues presented as “of the highest importance,”

id. at 432, determined the constitutionality of the acts solely upon the submission

of briefs of amici curiae.

{¶ 34} In State v. Brown (1882), 38 Ohio St. 344, at paragraph one of the

syllabus, the court held that “[a] proceeding in mandamus to compel the sheriff to

give notice and make proclamation to the qualified voters of a county to elect a

judge of the court of common pleas therein is properly instituted upon the relation

of an elector of such county.” In so holding, the court explained as follows:

“It is said that this proceeding could only be properly instituted upon the

relation of the attorney-general, and that the relator is not a party ‘beneficially

interested’ in the sense in which that term is used in the [mandamus] statute.

* * * This objection, we think, is not well taken. The relator, as a citizen of

Clermont county, is interested in having the proper number of courts and judges to

administer justice therein; as an elector, he would be entitled to vote at the election,

if an election were proper, and would be himself eligible to the office.” Id. at 346-

347.

{¶ 35} In State ex rel. Meyer v. Henderson (1883), 38 Ohio St. 644, the

court held that the Clerk of the city of Cincinnati was required, under an ordinance,

to advertise for sealed proposals for the construction of a street railway. In

discussing whether the clerk could be compelled by mandamus to perform this duty,

upon the relation of a citizen and owner of property along the line of the proposed

railroad, the court explained:

“As regards the degree of interest on the part of the relator, requisite to make

him a proper party on whose information the proceedings may be instituted, a

distinction is taken between cases where the extraordinary aid of a mandamus is

invoked, merely for the purpose of enforcing or protecting a private right,

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unconnected with the public interest, and those cases where the purpose of the

application is the enforcement of a purely public right, where the people at large

are the real party in interest, and, while the authorities are somewhat conflicting,

yet the decided weight of authority supports the proposition that, where the relief

is sought merely for the protection of private rights, the relator must show some

personal or special interest in the subject matter, since he is regarded as the real

party in interest and his rights must clearly appear. On the other hand, where the

question is one of public right and the object of the mandamus is to procure the

enforcement of a public duty, the people are regarded as the real party, and the

relator need not show that he has any legal or special interest in the result, it being

sufficient to show that he is a citizen, and, as such, interested in the execution of

the laws.” Id. at 648-649.

{¶ 36} In State ex rel. Trauger v. Nash, supra, relator, as an elector, citizen,

and taxpayer, filed an action in mandamus to compel Governor George K. Nash to

fill a vacancy in the office of Lieutenant Governor created by the resignation of

Carl L. Nippert. The court held that “[t]he attorney general not having become

such, a private citizen may be the relator in a mandamus proceeding to enforce the

performance of a public duty affecting himself as a citizen and the citizens of the

state at large.” Id. at paragraph one of the syllabus. In so holding, the court

explained:

“[I]t may be conceded that a majority of the courts which have pronounced

opinions on the subject, have held that a private relator applying for a mandamus

must show a special interest in himself; but even in some of those jurisdictions it

has been said that ‘the rule which rejects the intervention of private complainants

against public grievances is one of discretion and not of law.’ Ayres v. Board of

State Auditors [1880], 42 Mich. 422, 429 [4 N.W. 274, 278-279]. And in the same

case, pages 429-430 [4 N.W. 274, 279], the court made the following observations

which are very pertinent here: ‘ * * * There are serious objections against allowing

28

January Term, 1999

mere interlopers to meddle with the affairs of the state, and it is not usually allowed

unless under circumstances when the public injury by its refusal will be serious.’ ”

(Emphasis added.) Id., 66 Ohio St. at 615-616, 64 N.E. at 558-559.

{¶ 37} In State ex rel. Newell v. Brown (1954), 162 Ohio St. 147, 54 O.O.

392, 122 N.E.2d 105, relator, as citizen, taxpayer, and elector of Cleveland Heights,

filed an original action in prohibition in this court seeking to prevent the Secretary

of State and the members of the Board of Elections of Cuyahoga County from

placing on a ballot the names of certain candidates for the office of several

judgeships. In allowing the action and ultimately finding R.C. 3513.256

unconstitutional, the court held, at paragraph one of the syllabus:

“Ordinarily a person is not authorized to attack the constitutionality of a

statute, where his private rights have suffered no interference or impairment, but as

a matter of public policy a citizen does have such an interest in his government as

to give him capacity to maintain a proper action to enforce the performance of a

public duty affecting himself and citizens generally.”

{¶ 38} The court explained that “[w]here a public right, as distinguished

from a purely private right, is involved, a citizen need not show any special interest

therein, but he may maintain a proper action predicated on his citizenship relation

to such public right. This doctrine has been steadily adhered to by this court over

the years.” Id. at 150-151, 54 O.O. at 393, 122 N.E.2d at 107.

{¶ 39} More recently, in State ex rel. Cater v. N. Olmsted (1994), 69 Ohio

St.3d 315, 322-323, 631 N.E.2d 1048, 1054-1055, we held that a taxpayer has

standing as such to enforce the public’s right to proper execution of city charter

removal provisions, regardless of any private or personal benefit. While the

mandamus action in Cater was brought pursuant to R.C. 733.59, which specifically

provides for judicial review, we have made clear that R.C. 733.56 through 733.61

merely codify the public-right doctrine as to municipal corporations, and that the

doctrine exists independent of any statute authorizing invocation of the judicial

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process. State ex rel. Nimon v. Springdale (1966), 6 Ohio St.2d 1, 4-5, 35 O.O.2d

1, 3, 215 N.E.2d 592, 595. In particular, the court in Nimon listed a long line of

cases in support of the citizen/taxpayer-mandamus action, and explained that “no

case cited in the footnote involves (1) a municipal corporation; (2) Section 733.59,

Revised Code, or any statute similar thereto; or (3) an extrastatutory demand upon,

and refusal of, a county prosecutor, the Attorney General or other public legal

officer to institute the suit.” Id., 6 Ohio St.2d at 4, 35 O.O.2d at 3, 215 N.E.2d at

595. See, also, 67 Ohio Jurisprudence 3d (1986) 388-390, Mandamus, Section 124.

{¶ 40} Thus, the public action is fully conceived in Ohio as a means to

vindicate the general public interest. The only question that remains is whether the

present action should be allowed to proceed as a private action, a public action,

neither, or both.

{¶ 41} In support of their claim for a personal or private right to secure

judicial review, relators have submitted uncontroverted affidavits to the effect that

Am.Sub.H.B. No. 350 has caused OATL to lose dues-paying members, and its

members to lose fees and clients. While we do not question the accuracy or veracity

of relators’ affidavits, we must reject the doctrine of lawyer standing. Virtually

every legislative action is bound to affect at least some attorneys who practice in

an area of law related to the subject of the legislation. Since any injury, however

small, is sufficient for purposes of private-action standing, there would be no

objective basis upon which to disallow suits by attorneys or their organizations to

challenge any number of statutory enactments. Quite frankly, we are not willing to

allow every lawyer who suffers a diminution in income traceable to legislation to

mount a constitutional challenge in his or her own right. Accordingly, we find that

the present action should not be allowed as a private action.

{¶ 42} However, there can be no doubt that the issues sought to be litigated

in this case are of such a high order of public concern as to justify allowing this

action as a public action. The people of this state have delegated their judicial

30

January Term, 1999

power to the courts, and have expressly prohibited the General Assembly from

exercising it. Section 1, Article IV, and Section 32, Article II, Ohio Constitution.

“A people does not lose majesty by achieving liberty.” Hale, supra, 55 Ohio St. at

214, 45 N.E. at 200. The argument surely defeats itself that proclaims that the

people’s interest in keeping the judicial power of the state in those in whom they

vested it does not rise to the level of a public right. Indeed, it is difficult to imagine

a right more public in nature than one whose usurpation has been described as the

very definition of tyranny. See State ex rel. Bryant, supra, 120 Ohio St. at 473, 166

N.E. at 410; Zanesville, supra, 63 Ohio St. at 451, 59 N.E. at 110. If the General

Assembly could, even inadvertently, reenact legislation declared unconstitutional

by this court and “require the courts to treat [these laws] as valid * * * the whole

power of the government would at once become absorbed and taken into itself by

the legislature.” Bartlett, supra, 73 Ohio St. at 58, 75 N.E. at 941.

{¶ 43} We are well aware, as respondents point out, that the

unconstitutionality of a statute does not deprive a court of the initial jurisdiction to

proceed to its terms; and, therefore, a writ of prohibition will not lie to prevent a

court of common pleas from determining its own jurisdiction or rendering an

anticipated erroneous judgment. See State ex rel. Crebs v. Wayne Cty. Court of

Common Pleas (1974), 38 Ohio St.2d 51, 52, 67 O.O.2d 61, 309 N.E.2d 926, 927;

State ex rel. Heimann v. George (1976), 45 Ohio St.2d 231, 232, 74 O.O.2d 376,

377, 344 N.E.2d 130, 131. See, also, State ex rel. Tubbs Jones v. Suster (1998), 84

Ohio St.3d 70, 74, 701 N.E.2d 1002, 1006. However, this case has little to do with

the jurisdiction of common pleas courts to initially determine constitutional

questions or with preventing anticipated erroneous judgments. Here, the General

Assembly has, in several places, reenacted legislation which this court has already

determined to be unconstitutional and/or in conflict with the rules we have

prescribed pursuant to Section 5(B), Article IV of the Ohio Constitution governing

practice and procedure for Ohio courts. As will be seen in the following section,

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the General Assembly has clearly indicated in Section 5, Am.Sub.H.B. No. 350,

that these provisions were not reenacted inadvertently, but that it intends for the

courts to treat these laws as valid notwithstanding our previous pronouncements.

Respondents have cited no authority, and we reject any such notion, that purports

to give any inferior tribunal the power to reject the mandates of this court on

constitutional questions or rules of court in favor of conflicting judicial mandates

issued by the General Assembly. To say the least, this is not how our system of

government operates.

{¶ 44} We hold, therefore, that where the object of an action in mandamus

and/or prohibition is to procure the enforcement or protection of a public right, the

relator need not show any legal or special individual interest in the result, it being

sufficient that relator is an Ohio citizen and, as such, interested in the execution of

the laws of this state.

{¶ 45} Accordingly, we now proceed to determine the merits of relators’

claims.11

IV

Am.Sub.H.B. No. 350 Usurps Judicial Power in Violation of the Doctrine of

Separation of Powers

{¶ 46} A statute that violates the doctrine of separation of powers is

unconstitutional. In State v. Hochhausler (1996), 76 Ohio St.3d 455, 463, 668

N.E.2d 457, 465-466, Chief Justice Moyer explained as follows:

“The principle of separation of powers is embedded in the constitutional

framework of our state government. The Ohio Constitution applies the principle in

defining the nature and scope of powers designated to the three branches of the

government. State v. Warner (1990), 55 Ohio St.3d 31, 43-44, 564 N.E.2d 18, 31.

11. As to respondents’ arguments going to the true nature of the relief sought and the availability of

alternative remedies and forms of actions, we reject these arguments for the reasons stated in State

ex rel. Zupancic v. Limbach (1991), 58 Ohio St.3d 130, 131-134, 568 N.E.2d 1206, 1207-1209.

32

January Term, 1999

See State v. Harmon (1877), 31 Ohio St. 250, 258. It is inherent in our theory of

government ‘ “that each of the three grand divisions of the government, must be

protected from the encroachments of the others, so far that its integrity and

independence may be preserved. * * * ” ’ S. Euclid v. Jemison (1986), 28 Ohio

St.3d 157, 159, 28 OBR 250, 252, 503 N.E.2d 136, 138, quoting Fairview v. Giffee

(1905), 73 Ohio St. 183, 187, 76 N.E. 865, 866.”

{¶ 47} In light of the foregoing history, and with this principle of separation

of powers in mind, we will proceed to examine several aspects of Am.Sub.H.B. No.

350.

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A

Statutes of Repose

{¶ 48} Former R.C. 2305.131, 134 Ohio Laws, Part I, 530, barred tort

actions against designers and engineers of improvements to real property that were

brought more than ten years after the completion of the construction services. In

Brennaman v. R.M.I Co. (1994), 70 Ohio St.3d 460, 639 N.E.2d 425, paragraph

two of the syllabus, we held:

“R.C. 2305.131, a statute of repose, violates the right to a remedy

guaranteed by Section 16, Article I of the Ohio Constitution, and is, thus,

unconstitutional. (Sedar v. Knowlton Constr. Co. [1990], 49 Ohio St.3d 193, 551

N.E.2d 938, overruled.)”

{¶ 49} Pursuant to Brennaman, “the General Assembly is constitutionally

precluded from depriving a claimant of a right to a remedy ‘before a claimant knew

or should have known of her injury.’ ” Id., 70 Ohio St.3d at 466, 639 N.E.2d at

430, quoting Burgess v. Eli Lilly & Co. (1993), 66 Ohio St.3d 59, 61, 609 N.E.2d

140, 141. On the authority of Brennaman, we reversed contrary appellate court

judgments in Cyrus v. Henes (1994), 70 Ohio St.3d 640, 640 N.E.2d 810; Ross v.

Tom Reith, Inc. (1995), 71 Ohio St.3d 563, 645 N.E.2d 729; and Cleveland City

School Dist. Bd. of Edn. v. URS Co. (1995), 72 Ohio St.3d 188, 648 N.E.2d 811.

{¶ 50} Prior to the passage of Am.Sub.H.B. No. 350, the Legislative

Service Commission (“LSC”) advised the General Assembly that under these

decisions, “[a]n issue may be raised that a statute of repose infringes the ‘open

courts, right-to-remedy, and due course of law’ provisions of Section 16 of Article

I of the Ohio Constitution.” See Research Memorandum, No. R-121-1458, supra,

fn. 7, at 3, 5. The LSC informed the General Assembly that “only the Ohio Supreme

Court * * * would have the constitutional authority to ‘definitively’ declare * * *

whether those [statutory] provisions passed constitutional muster.” Id. at 1.

{¶ 51} Nevertheless, Am.Sub.H.B. No. 350 reenacts R.C. 2305.131 as a

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January Term, 1999

fifteen-year statute of repose with certain exceptions, and provides for a fifteen-

year statute of repose for wrongful death actions involving a product liability claim

(R.C. 2125.02[D][2]), a fifteen-year statute of repose for product liability claims

(R.C. 2305.10[C]), a six-year statute of repose for professional malpractice claims

other than medical (R.C. 2305.11[A][2]), and a six-year statute of repose for

medical malpractice claims (R.C. 2305.11[B][3]).

{¶ 52} In enacting and/or amending these sections, the General Assembly

chose to usurp this court’s constitutional authority by refusing to recognize our

holdings in Brennaman, Cyrus, and Ross.12 The General Assembly’s stated intent

is “to respectfully disagree with those holdings and to recognize the legal rationale

set forth in the concurring-dissenting opinion in Brennaman,” Section 5(E)(2),

Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 4021, as well as the holdings in

Sedar (which was overruled) and several courts of appeals, including that of the

Court of Appeals for Lorain County, which we reversed in Cyrus. Section 5(E)(1).

See, also, Sections 5(E)(5), (G)(1), (L)(1) and (2), 146 Ohio Laws, Part II, 4022,

4023, 4025. The General Assembly not only directs, contrary to our declarations,

that “the concept of a statute of repose does not violate the remedy by due course

of law and open courts provisions of Section 16 of Article I of the Ohio

12. Professor Werber argues that the fifteen-year statute of repose for wrongful death actions set

forth in R.C. 2125.02(D)(2) “is unlike any other in the legislation as it relates to a statutory cause of

action.” Werber, Ohio Tort Reform Versus the Ohio Constitution, supra, 69 Temple L.Rev. at 1177.

Relying on Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 574 N.E.2d 457, Professor Werber

argues that the result in Shover, based on “the principle that the legislature has the power to condition

the right it created as it deems appropriate, applies with equal force to the repose provision.” Werber

at 1177. However, Shover has been overruled. Collins v. Sotka (1998), 81 Ohio St.3d 506, 692

N.E.2d 581. Moreover, the right-to-remedy analysis of the majority in Shover did not proceed from

this premise. Instead, the majority in Shover explained that “[t]he effect of R.C. 2125.02(D) [now

R.C. 2125.02(D)(1)] is to prevent what might otherwise be a cause of action from ever arising.” Id.,

61 Ohio St.3d at 219, 574 N.E.2d at 462. This was the very same reasoning employed in Sedar,

supra, 49 Ohio St.3d at 201, 551 N.E.2d at 946, to uphold the constitutionality of former R.C.

2305.131, and which was rejected in Brennaman and its progeny. Thus, Shover provides no more

basis than Sedar on which to distinguish R.C. 2125.02(D)(2) from the other statutes of repose

contained in Am.Sub.H.B. No. 350.

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Constitution,” Section 5(G)(1), it also finds that the failure to recognize the validity

of rules “such as the six-year statutes of repose set forth in section 2305.11 of the

Revised Code, as amended by this act, would violate the rights of certain defendants

to due course of law under Section 16 of Article I of the Ohio constitution and due

process of law under the due process clause of the Fourteenth Amendment to the

United States Constitution.” Section 5(G)(4).

{¶ 53} The following language from Bartlett, supra, 73 Ohio St. at 58, 75

N.E. at 941, has particular force here:

“It is sufficient to say that we adhere to [our prior] ruling [declaring acts to

be in violation of the constitution]; and that the sections of the statutes now under

consideration do not stop short of being a mandate to all of the courts [to accept as

legal that which we have declared unconstitutional]. This we regard as wholly

beyond the power conferred upon the general assembly by the constitution. The

power conferred upon the general assembly is legislative power, and that body is

expressly prohibited from exercising any judicial power which is not expressly

conferred by the constitution. Article 2, section 32.

“At this time, the limits of the power invested in the respective co-ordinate

branches of the government [are] so well defined and so generally understood, that

we are constrained to believe that, whatever may have been the thought of the

persons who drafted them, the enactment of these sections was an inadvertence on

the part of the general assembly; for it is well settled that the legislature cannot

annul, reverse or modify a judgment of a court already rendered, nor require the

courts to treat as valid laws those which are unconstitutional. If this could be

permitted the whole power of the government would at once become absorbed and

taken into itself by the legislature.”

{¶ 54} Am.Sub.H.B. No. 350, however, does not allow for any pretense of

inadvertence. While some members of this court, now and in the past, may disagree

with the holding in Brennaman, no member of this court can, consistent with his or

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her oath of office, find that the General Assembly has operated within the

boundaries of its constitutional authority by brushing aside a mandate of this court

on constitutional issues as if it were of no consequence. Indeed, the very notion of

it threatens the judiciary as an independent branch of government and tears at the

fabric of our Constitution.

B

Certificate of Merit

{¶ 55} Section 5(B), Article IV of the Ohio Constitution provides: “The

supreme court shall prescribe rules governing practice and procedure in all courts

of the state, which rules shall not abridge, enlarge, or modify any substantive right.

* * * All laws in conflict with such rules shall be of no further force or effect after

such rules have taken effect.”

{¶ 56} In Rockey v. 84 Lumber Co. (1993), 66 Ohio St.3d 221, 611 N.E.2d

789, paragraph two of the syllabus, we held:

“The Ohio Rules of Civil Procedure, which were promulgated by the

Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must

control over subsequently enacted inconsistent statutes purporting to govern

procedural matters.”

{¶ 57} Civ.R. 11 provides in part:

“Except when otherwise specifically provided by these rules, pleadings

need not be verified or accompanied by affidavit. The signature of an attorney or

pro se party constitutes a certificate by the attorney or party that the attorney or

party has read the document; that to the best of the attorney’s or party’s knowledge,

information, and belief there is good ground to support it; and that it is not

interposed for delay.”

{¶ 58} Former R.C. 2307.42 provided that in an action upon a medical,

dental, optometric, or chiropractic claim, the complaint must be accompanied by

affidavit of merit. 142 Ohio Laws, Part III, 4696. In Hiatt v. S. Health Facilities,

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Inc. (1994), 68 Ohio St.3d 236, 626 N.E.2d 71, syllabus, we held that “R.C. 2307.42

is in conflict with Civ.R. 11 and is invalid and of no force and effect.” See, also,

State ex rel. Bohlman v. O’Donnell (1994), 68 Ohio St.3d 496, 628 N.E.2d 1367.

{¶ 59} Am.Sub.H.B. No. 350 repeals R.C. 2307.42, but enacts a certificate-

of-merit requirement under R.C. 2305.011(A) and (B) for actions upon a medical,

dental, optometric, chiropractic, or malpractice claim. Under R.C. 2305.011, the

certificate of merit must be filed within ninety days after the later of the filing of a

responsive pleading or compliance with discovery requests for the production of

the appropriate medical or professional records.

{¶ 60} Respondent Montgomery argues that Hiatt is not determinative of

R.C. 2305.011’s validity because the General Assembly now “sets forth its view

that the certificate of merit is substantive and it sets forth its rationale for that

conclusion.” In Section 5(H)(1), the General Assembly states that its intent in

enacting R.C. 2305.011 is to respond to the holding in Hiatt “by clarifying the

jurisdictional nature of certificate of merit requirements and creating a substantive

requirement for medical, dental, optometric, chiropractic, and malpractice claims.”

146 Ohio Laws, Part II, 4024.

{¶ 61} The notion that the General Assembly can direct our trial courts to

apply a legislative rule that this court has already declared to be in conflict with the

Civil Rules simply by denominating it “jurisdictional” or “substantive” is so

fundamentally contrary to the principle of separation of powers that it deserves no

further comment. Moreover, the General Assembly has clarified nothing by

expressing its view that certificate-of-merit requirements are jurisdictional in

nature. Former R.C. 2307.42(B) specifically provided that trial courts “shall have

jurisdiction to hear and determine an action upon a medical, dental, optometric, or

chiropractic claim only if the complaint or other pleading that sets forth the claim

is supported by” an affidavit of merit. (Emphasis added.) The fact that the General

Assembly views certificate-of-merit requirements as something other than

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procedural is nothing new, and it certainly adds nothing to its claim of clarification

that the term “jurisdiction” was used in former R.C. 2307.42, but appears nowhere

in R.C. 2305.011(B).13

C

Collateral Benefits

{¶ 62} In Pryor v. Webber (1970), 23 Ohio St.2d 104, 52 O.O.2d 395, 263

N.E.2d 235, paragraph two of the syllabus, the court held:

“The collateral source rule is an exception to the general rule of

compensatory damages in a tort action, and evidence of compensation from

collateral sources is not admissible to diminish the damages for which a tort-feasor

must pay for his negligent act.”

{¶ 63} The court in Pryor explained:

“The collateral source rule has been defined as ‘the judicial refusal to credit

to the benefit of the wrongdoer money or services received in reparation of the

injury caused which emanates from sources other than the wrongdoer.’ Maxwell,

The Collateral Source Rule in the American Law of Damages, 46 Minn.L.Rev. 669,

670.

“***

“ ‘ * * * To this extent, plaintiff may get double payment on account of the

same items. The defendant wrongdoer should not, it is said, get the benefit of

payments that come to the plaintiff from a “collateral source” (i.e., “collateral” to

the defendant).’ 2 Harper and James, The Law of Torts, 1343, Section 25.22.” Id.,

23 Ohio St.2d at 107-108, 52 O.O.2d at 397, 263 N.E.2d at 238.

13. While an argument could be made that, unlike former R.C. 2307.42, R.C. 2305.011 does not

require the affidavit or certificate to be filed as part of the complaint, this argument must also be

rejected. The essence of Civ.R. 11 is that “[t]he signature of an attorney or pro se party constitutes

a certificate by the attorney or pro se party that * * * there is good ground to support it,” and nothing

more is needed by way of verification or affidavit. The question whether the Civil Rules should, or

could, be amended to allow for certificate-of-merit requirements is entirely distinct from the

question of whether the General Assembly can do so of its own volition.

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{¶ 64} In an effort to abrogate the collateral source rule adopted in Pryor,

the General Assembly originally enacted R.C. 2317.45 as part of the Tort Reform

Act of 1987, Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661, 1694, to require

trial courts to deduct from a plaintiff’s jury award collateral benefits which have or

will be received by the plaintiff. In Sorrell v. Thevenir (1994), 69 Ohio St.3d 415,

633 N.E.2d 504, syllabus, we held that “R.C. 2317.45 violates Sections 2, 5 and 16,

Article I of the Ohio Constitution, and is unconstitutional in toto.” See, also, May

v. Tandy Corp. (1994), 69 Ohio St.3d 415, 633 N.E.2d 504; Depew v. Ogella

(1994), 69 Ohio St.3d 610, 635 N.E.2d 310.

{¶ 65} In holding R.C. 2317.45 to be violative of the Due Process Clause of

Section 16, Article I of the Ohio Constitution, we explained in Sorrell:

“In our view, R.C. 2317.45 has not been shown to be necessary to promote

a compelling state interest that requires undermining the fundamental and inviolate

right to a jury trial. Moreover, we believe that R.C. 2317.45 does not withstand

scrutiny even under the less stringent rational basis standard * * *.

“***

“ * * * [W]ith respect to the goal of R.C. 2317.45 of eliminating double

recoveries, the means employed in the statute to attain the goal are both irrational

and arbitrary. Of primary significance is that the statute requires deductions from

jury verdicts irrespective of whether a collateral benefit defined in R.C.

2317.45(A)(1) is actually included in the verdict. While the goal of preventing

double recoveries is not arbitrary or unreasonable, * * * R.C. 2317.45 fails to take

into account whether the collateral benefits to be deducted are within the damages

actually found by the jury, especially where there are no interrogatories to quantify

the categories of damages that make up the general verdict. Thus, the statute can

arbitrarily reduce damages that a jury awards a plaintiff, since under the statute it

is irrelevant whether any collateral benefit actually represents any portion of the

jury’s award.” Id., 69 Ohio St.3d at 423-424, 633 N.E.2d at 511.

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January Term, 1999

{¶ 66} Am.Sub.H.B. No. 350 amends R.C. 2317.45 in order to “[a]brogate

the common law collateral source rule as adopted * * * in Pryor * * * and

reaffirmed in Sorrell,” and “[a]ddress the aspects of section 2317.45 * * * found

in [Sorrell, May, and Depew] to be unconstitutional.” Sections 5(I)(1)(a) and (b),

146 Ohio Laws, Part II, 4024. As amended by Am.Sub.H.B. No. 350, R.C. 2317.45

provides:

“(A) As used in this section:

“(1) ‘Collateral benefits’ means benefits that are paid by any source,

including workers’ compensation benefits, to or on behalf of the plaintiff as a result

of an injury or loss to person or property, regardless of whether there is an

obligation to pay back the money or other benefits, in whole or in part, upon

recovery in a tort action. ‘Collateral benefits’ does not include life insurance

proceeds.

“***

“(3) ‘Trier of fact’ means the jury or, in a nonjury action, the court.

“(B) In determining the amount of the compensatory damages that are

recoverable by the plaintiff in a tort action, the trier of fact shall consider, if

presented in the tort action, relevant collateral benefits that have been paid, or that

the source of the benefits has acknowledged are payable, from insurance other than

insurance for which the plaintiff, spouse of the plaintiff, or parent of the plaintiff if

the plaintiff is a minor, has paid a premium, insurance that is subject to a right of

subrogation, or insurance that has any other obligation of repayment, including, but

not limited to, evidence of the amount of the collateral benefit and of the costs,

premiums, or charges for the collateral benefits.”

{¶ 67} Respondent Montgomery contends that “[t]he statute cures the

defect of [its] predecessor * * * [because] [t]here is no mandatory deduction, nor

is there a blanket deduction of all collateral benefits. Rather, the statute provides

the jury with more information in order to permit the jury to better determine the

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amount of recovery.”

{¶ 68} Amici Ohio Association of Civil Trial Attorneys and Defense

Research Institute (“OACTA”) contend that amended R.C. 2317.45 cures the

violation of the right to a jury trial of its predecessor “by removing judicial

participation in the damage finding process,” and that “[b]ecause the right to a jury

trial is not implicated, strict scrutiny does not apply [to a due process analysis]. The

statute need only have a ‘rational basis’ to pass constitutional muster.” Quoting

from Werber, Ohio Tort Reform Versus the Ohio Constitution (1996), 69

Temp.L.Rev. 1155, 1184, OACTA argues:

“ ‘As there is now no deduction for collateral source payments, there is no

need for ascertaining whether such payments have been included in the jury verdict.

The statute authorizes the jury to consider the effect of collateral source payments,

however it believes appropriate, in its determination of compensatory damages.

The statute’s modifications have removed the arbitrary and unreasonable aspects of

the prior statute. In other words, the statute merely permits the jury to predicate its

award on the full story.’ ”

{¶ 69} We agree with OACTA that the appropriate inquiry is whether

amended R.C. 2317.45 violates due process, and that the rational basis test is the

appropriate test to apply in making this determination. However, it is pure sophistry

to suggest that “[a]s there is now no deduction for collateral source payments, there

is no need for ascertaining whether such payments have been included in the jury

verdict.” While the statute no longer mandates a postverdict deduction for

collateral source payments, it certainly authorizes a preverdict setoff for collateral

payments. In either case, it is contemplated that the amount of the compensatory

damages may be reduced by the amount of collateral payments, thus triggering the

constitutional requirement that those payments match the items or categories of

damages actually awarded. Sorrell, supra. See, also, Buchman v. Wayne Trace

Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 269, 652 N.E.2d 952,

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960. Therefore, regardless of when and by whom the reduction for collateral source

payments is made, there is every “need for ascertaining whether such payments

have been included in the jury verdict.”

{¶ 70} However, amended R.C. 2317.45 does everything but remove those

aspects of its preamended form that were held in Sorrell to be arbitrary and

unreasonable. Present R.C. 2317.45 still fails to take into account whether the

collateral benefits held against the general verdict are within the damages actually

found by the jury. Present R.C. 2317.45 essentially gathers all evidence of

collateral source payments, regardless of the category of harm for which it

compensates and regardless of whether it compensates for past or future losses,

tosses it in an indiscriminate heap along with all categories and items of

compensatory damages, and authorizes, out of that, a general verdict replete with

collateral benefit setoffs. Any prevention of double recovery that may result from

this morass is fortuitous at best. Indeed, the relation between the purported goal of

eliminating double recovery and the means employed in amended R.C. 2317.45 to

achieve it is so attenuated that one could conclude that the primary goal of R.C.

2317.45 is simply to reduce damages generally. Amended R.C. 2317.45 simply

attempts to sidestep Sorrell.

D

Damage Caps

1

Punitive Damages

{¶ 71} Former R.C. 2315.21(C)(2) provided:

“In a tort action, whether the trier of fact is a jury or the court, if the trier of

fact determines that any defendant is liable for punitive or exemplary damages, the

amount of those damages shall be determined by the court.” 142 Ohio Laws, Part

I, 1691.

{¶ 72} In Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552, 644

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N.E.2d 397, paragraph two of the syllabus, we held that “R.C. 2315.21(C)(2)

violates the right to trial by jury under Section 5, Article I of the Ohio Constitution.”

In so holding, we explained:

“Prior to the 1987 enactment of R.C. 2315.21(C)(2), 142 Ohio Laws, Part

I, 1661, 1691, juries in this state had the integral role of determining not only when

punitive damages were justified but also of assessing the amount of such damages.

Clearly, the assessment of punitive damages by the jury stems from the common

law and is encompassed within the right to trial by jury. * * *

“It is well settled that the right to trial by jury ‘ “cannot be invaded or

violated by either legislative act or judicial order or decree.” ‘ Sorrell v. Thevenir,

supra, 69 Ohio St.3d at 421, 633 N.E.2d at 510, quoting Gibbs v. Girard (1913),

88 Ohio St. 34, 102 N.E. 299, paragraph two of the syllabus. Since R.C.

2315.21(C)(2) impairs the traditional function of the jury in determining the

appropriate amount of damages, we hold that R.C. 2315.21(C)(2) violates the right

to trial by jury under Section 5, Article I of the Ohio Constitution.” (Emphasis

added.) Id., 71 Ohio St.3d at 557, 644 N.E.2d at 401.

{¶ 73} Am.Sub.H.B. No. 350 amends former R.C. 2315.21(C), and

renumbers it R.C. 2315.21(D)(1), to provide that the trier of fact shall determine

both “the liability of a defendant for punitive or exemplary damages and the amount

of those damages to be awarded.” (R.C. 2315.18 has also been amended to reflect

this change.) However, R.C. 2315.21(D)(1) provides further:

“(a) Except as otherwise provided in division (D)(3)(b) of this section, the

court shall not enter judgment for punitive or exemplary damages in excess of the

lesser of three times the amount of the compensatory damages awarded to the

plaintiff from that defendant or one hundred thousand dollars, as determined

pursuant to division (B)(2) or (3) of this section.

“(b) If the defendant is a large employer, except as otherwise provided in

division (D)(3)(b) of this section, the court shall not enter judgment for punitive or

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exemplary damages in excess of the greater of three times the amount of the

compensatory damages awarded to the plaintiff from that defendant or two hundred

fifty thousand dollars, as determined pursuant to division (B)(2) or (3) of this

section.”

{¶ 74} Pursuant to amended R.C. 2307.801(E) and 2315.21(A)(4), R.C.

2315.21(D)(1) also applies to product liability claims.

{¶ 75} Section 5(B)(2) explains:

“In amending sections 2307.80 (2307.801), 2315.18, and 2315.21 of the

Revised Code in this act to permit the trier of fact to determine the amount of

recoverable punitive or exemplary damages to be awarded in connection with a

product liability claim or in a tort action, as defined in section 2315.21 of the

Revised Code, it is the intent of the General Assembly to reflect that portion of the

holding of the Supreme Court in Zoppo v. Homestead Ins. Co. [supra] that statutory

provisions requiring a trial court to determine the amount of awardable punitive or

exemplary damages are unconstitutional as being violative of the right to a trial by

jury established by Section 5 of Article I of the Ohio Constitution.” 146 Ohio Laws,

Part II, 4020.

{¶ 76} However, in prohibiting courts from entering judgment on a jury

verdict greater than the amounts specified in R.C. 2315.21(D)(1)(a) and (b), the

General Assembly “finds” that “[p]unitive or exemplary damages awarded in a tort

action are similar in nature to fines and additional costs imposed in criminal

actions,” and that the lack of a statutory ceiling has resulted “in excessive

punishment of tortfeasors for their wrongful actions or omissions, in violations of

the prohibitions against cruel and unusual punishment of Section 9 of Article I of

the Ohio Constitution and the Eighth Amendment to the Constitution of the United

States, and in a denial of due process of law as guaranteed by Section 16 of Article

I of the Ohio Constitution and Section 1 of the Fourteenth Amendment to the

Constitution of the United States.” Sections 5(B)(1)(a) and (b), Am.Sub.H.B. No.

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350, id. at 4019-4020.

{¶ 77} These amendments create the illusion of compliance by permitting

the jury to assess the amount of punitive damages to be awarded, but requiring the

court to nullify the jury’s determination and substitute the will of the General

Assembly in any case where a jury awards punitive damages in excess of the

amounts specified in R.C. 2315.21(D)(1)(a) and (b). This is a Constitution we are

dealing with. “The right to a trial by jury is a fundamental constitutional right which

derives from the Magna Carta.” Zoppo, 71 Ohio St.3d at 556, 644 N.E.2d at 401.

The right belongs to the litigant, not the jury, and a statute that allows the jury to

determine the amount of punitive damages to be awarded but denies the litigant the

benefit of that determination stands on no better constitutional footing than one that

precludes the jury from making the determination in the first instance.

{¶ 78} Indeed, R.C. 2315.21(D)(1)’s violation of the right to trial by jury

becomes particularly egregious when considered in conjunction with the added

provisions of R.C. 2315.21(D)(3). Under R.C. 2315.21(D)(3)(a), all tort victims

are denied the right to have a jury determine punitive damages against a particular

tortfeasor if, at some previous time, in any state or federal court, some tort victim

or victims collected against that tortfeasor a punitive damage award the aggregate

sum of which exceeds the amounts specified in R.C. 2315.21(D)(1). The

constitutional right to have a jury determine both the liability and amount of

punitive damages to be awarded thereby becomes a lottery prize, going to that

victim or victims fortunate enough to be the first to win and collect it. All others

simply lose their constitutional right to a jury trial as to punitive damages.

{¶ 79} Moreover, the General Assembly has in effect found that any

punitive damage award in excess of the greater of three times the amount of

compensatory damages or $250,000 is unconstitutional. This finding contravenes

our decision in Williams v. Aetna Fin. Co. (1998), 83 Ohio St.3d 464, 479-480, 700

N.E.2d 859, 870-871, where we upheld the constitutionality of an award for

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$15,000 in compensatory damages and $1.5 million in punitive damages.

2

General Damages

{¶ 80} Former R.C. 2307.43 provided:

“In no event shall an amount recovered for general damages in any medical

claim, as defined in division (D) of section 2305.11 of the Revised Code, not

involving death exceed the sum of two hundred thousand dollars.” 136 Ohio Laws,

Part II, 3840, 3843.

{¶ 81} In Morris v. Savoy (1991), 61 Ohio St.3d 684, 576 N.E.2d 765, the

court held R.C. 2307.43 to be violative of the due course of law provision of Section

16, Article I of the Ohio Constitution. In reaching its conclusion, the court applied

the less stringent “rational relation” test, under which a legislative enactment not

involving a fundamental right or suspect class will be deemed valid on due process

grounds “ ‘[1] if it bears a real and substantial relation to the public health, safety,

morals or general welfare of the public and [2] if it is not unreasonable or arbitrary.’

”14 Id., 61 Ohio St.3d at 688-689, 576 N.E.2d at 769, quoting Mominee v.

Scherbarth (1986), 28 Ohio St.3d 270, 274, 28 OBR 346, 349-350, 503 N.E.2d 717,

720-721.

{¶ 82} The court explained:

14. The majority in Morris found that R.C. 2307.43 “did not involve a fundamental right or suspect

class.” Id., 61 Ohio St.3d at 689, 576 N.E.2d at 769-770. This finding seems to suggest that the

right to a jury trial guaranteed by Section 5, Article I of the Ohio Constitution was not implicated,

although the majority did not conduct any specific analysis into this issue. This is significant for

two reasons. First, the denial of a right to trial by jury would invalidate the statute irrespective of

whether due process was accorded. Second, a finding that the right to trial by jury was implicated

would have invoked a higher level of judicial scrutiny for purposes of the due process analysis.

“Under this ‘strict scrutiny’ standard for reviewing legislation which restricts the exercise of

fundamental rights, a statute will be considered unconstitutional unless it is shown to be necessary

to promote a compelling governmental interest.” Id., 61 Ohio St.3d at 704, 576 N.E.2d at 780 (A.

William Sweeney, J., concurring in part and dissenting in part). While Morris may have generated

some confusion over whether R.C. 2307.43 implicates the right to trial by jury, our decisions

subsequent to Morris clearly hold that the right to a jury trial includes the right to have the jury

determine the amount of damages to be awarded. See Zoppo; Galayda; Sorrell, supra.

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“We are unable to find, either in the amici briefs or elsewhere, any evidence

to buttress the proposition that there is a rational connection between awards over

$200,000 and malpractice insurance rates. There is evidence of the converse,

however. The Supreme Court of Texas found no relationship between insurance

rates and the cap, citing an independent study that showed that less than .6 percent

of all claims brought were for more than $100,000. Lucas v. United States

(Tex.1988), 757 S.W.2d 687, 691. According to three amici arguing against the

statute’s constitutionality, a 1987 study by the Insurance Service Organization, the

rate-setting arm of the insurance industry, found that the savings from various tort

reforms, including a $250,000 cap on noneconomic damages, were ‘marginal to

nonexistent.’ * * *

“On the second prong of the analysis set forth in Mominee, supra, whether

the statute is unreasonable or arbitrary, we note with approval the following excerpt

from an opinion of the Court of Appeals for Stark County regarding R.C. 2307.43:

“ ‘ * * * [I]t is irrational and arbitrary to impose the cost of the intended

benefit to the general public solely upon a class consisting of those most severely

injured by medical malpractice. * * * ’ Nervo v. Pritchard (June 10, 1985), Stark

App. No. CA-6560, unreported, at 8.

“We hold, therefore, that R.C. 2307.43 is unconstitutional because it does

not bear a real and substantial relation to public health or welfare and further

because it is unreasonable and arbitrary.” Id., 61 Ohio St.3d at 690-691, 576 N.E.2d

at 770-771.

{¶ 83} Am.Sub.H.B. No. 350 repeals former R.C. 2307.43. Section 5(I)(2)

provides that “[i]t is the intent of the General Assembly in repealing former section

2307.43 of the Revised Code in this act to reflect the holding of the Supreme Court

in Morris v. Savoy [supra].” 146 Ohio Laws, Part II, 4025. However, Am.Sub.H.B.

No. 350 enacts R.C. 2323.54, which caps the amount of noneconomic damages

recoverable in any tort action at the greater of $250,000 or three times the economic

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January Term, 1999

loss, to a maximum of $500,000; or, in the case of certain specified types of

permanent injuries, at the greater of $1 million or $35,000 times the number of

years remaining in the plaintiff’s expected life.15 R.C. 2305.01 has also been

15. R.C. 2323.54 provides:

“(A) As used in this section:

“(1) ‘Economic loss’ means any of the following types of pecuniary harm:

“(a) All wages, salaries, or other compensation lost as a result of an injury, death, or loss

to person or property that is a subject of a tort action, including wages, salaries, or other

compensation lost as of the date of a judgment and future expected lost earnings;

“(b) All expenditures for medical care or treatment, rehabilitation services, or other care,

treatment, services, products, or accommodations incurred as a result of an injury, death, or loss to

person that is a subject of a tort action, including expenditures for those purposes that were incurred

as of the date of a judgment and expenditures for those purposes that, in the determination of the

trier of fact, will be incurred in the future because of the injury, whether paid by the injured person

or by another person on behalf of the injured person;

“(c) All expenditures of a person whose property was injured or destroyed or of another

person on behalf of the person whose property was injured or destroyed in order to repair or replace

the property;

“(d) Any other expenditures incurred as a result of an injury, death, or loss to person or

property that is a subject of a tort action, except expenditures of the injured person, the person whose

property was injured or destroyed, or another person on behalf of the injured person or the person

whose property was injured or destroyed in relation to the actual preparation or presentation of the

claim involved.

“(2) ‘Noneconomic loss’ means nonpecuniary harm that results from an injury, death, or

loss to person that is a subject of a tort action, including, but not limited to, pain and suffering, loss

of society, consortium, companionship, care, assistance, attention, protection, advice, guidance,

counsel, instruction, training, or education, mental anguish, and any other intangible loss.

“(3) ‘Tort action’ means a civil action for damages for injury, death, or loss to person or

property. ‘Tort action’ includes a product liability claim but does not include a civil action for

damages for a breach of contract or another agreement between persons.

“(4) ‘Trier of fact’ means the jury or, in a nonjury action, the court.

“(B)(1) Except as otherwise provided in division (B)(2) of this section, the amount of

compensatory damages that represents damages for noneconomic loss that is recoverable in a tort

action shall not exceed the greater of two hundred fifty thousand dollars or an amount that is equal

to three times the plaintiff’s economic loss, as determined by the trier of fact, to a maximum of five

hundred thousand dollars.

“(2) The amount recoverable for noneconomic losses may exceed the amount described in

division (B)(1) of this section but shall not exceed the greater of one million dollars or thirty-five

thousand dollars times the number of years remaining in the plaintiff’s expected life if the

noneconomic losses of the plaintiff are for either of the following:

“(a) Permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily

organ system;

“(b) Permanent physical functional injury that permanently prevents the injured person

from being able to independently care for herself or himself and perform life sustaining activities.

“(C) If a trial is conducted in a tort action and a plaintiff prevails with respect to any claim

for relief, the court in a nonjury trial shall make findings of fact, and the jury in a jury trial shall

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amended to provide that “[t]he court of common pleas shall not have jurisdiction to

award compensatory damages for noneconomic loss that exceed the amounts set

forth in section 2323.54 of the Revised Code.”

{¶ 84} Section 5(P), Am.Sub.H.B. No. 350, provides as follows:

“(P) In enacting the amendments to section 2305.01 and new section

2323.54 of the Revised Code, the General Assembly finds that the direct and

indirect costs of disproportionate compensatory damages awards for noneconomic

loss in tort actions increase the costs of health care delivery, manufacturing, and the

delivery of services and that those increased costs have a significant negative

impact upon the economic well-being of the citizens of the state. The General

Assembly further finds all of the following:

“(1) The limitation on the recovery of compensatory damages for

noneconomic loss in tort actions is intended to stabilize the costs for health care

return a general verdict accompanied by answers to interrogatories, that shall specify all of the

following:

“(1) The total compensatory damages recoverable by the plaintiff, subject to possible

adjustment under division (D) of this section;

“(2) The portion of the total compensatory damages that represents damages for economic

loss;

“(3) The portion of the total compensatory damages that represents damages for

noneconomic loss and that is subject to possible adjustment under division (D) of this section.

“(D) After the trier of fact in a tort action complies with division (C) of this section, the

court shall enter a judgment in favor of the plaintiff for compensatory damages for economic loss

in the amount determined pursuant to division (C)(2) of this section and a judgment in favor of the

plaintiff for compensatory damages for noneconomic loss in whichever of the following amounts

applies:

“(1) The amount determined pursuant to division (C)(3) of this section if that amount is

equal to or less than the applicable maximum amount recoverable for noneconomic loss as provided

in division (B) of this section;

“(2) The maximum amount recoverable for noneconomic loss as provided in division (B)

of this section if the amount determined pursuant to division (C)(3) of this section is greater than

the applicable maximum amount recoverable for noneconomic loss as provided in division (B) of

this section.

“***

“(H) If the trier of fact is a jury, the court shall not instruct the jury with respect to the limit

on compensatory damages for noneconomic loss described in divisions (B) and (D) of this section,

and neither counsel for any party nor a witness shall inform the jury or potential jurors of that limit.”

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delivery, manufacturing, and the delivery of services.

“(2) The citizens of this state will benefit from stabilized costs for health

care delivery, manufacturing, and the delivery of services.

“(3) This state has a rational and legitimate state interest in stabilizing the

costs of health care deliver, manufacturing, and the delivery of services.

“(4) Limiting the amount of compensatory damages for noneconomic loss

in tort actions furthers this rational and legitimate state interest.

“(5) The distinctions among claimants with a permanent physical functional

loss strikes a rational balance between potential plaintiffs and defendants in

consideration of the intent of an award for noneconomic losses, while treating

similar plaintiffs equally, acknowledging that such distinctions do not limit the

award of actual economic damages.

“(6) The Ohio Constitution, Article I, Section 19(A) provides that ‘The

amount of damages recoverable by civil action in the courts for death caused by the

wrongful act, neglect, or default of another, shall not be limited by law.’; that

provision refers only to economic or pecuniary losses and not to noneconomic or

nonpecuniary losses, which by implication distinguishes among potential damages

and supports the authority of the General Assembly to limit damages otherwise.

“(7) Noneconomic damage caps have been determined by the

Congressional Budget Office of the United States Congress, the United States

Accounting Office, and the American Academy of Actuaries to effectively reduce

loss payments, liability insurance premiums, and defensive medicine costs, upon

which findings the General Assembly partially relies.

“(8) The courts of common pleas were established by the Ohio Constitution

as courts of general jurisdiction in Ohio, but the Constitution itself limits their

jurisdiction to that which is expressly conferred by the General Assembly,

including jurisdiction to limit consideration of noneconomic damages. The Ohio

Constitution, Article IV, Section 4(B) provides: ‘The courts of common pleas and

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divisions thereof shall have such original jurisdiction over all justiciable matters

and such powers of review of proceedings of administrative officers and agencies

as may be provided by law.’ In addition, Section 18 of Article IV provides: ‘The

several judges of the supreme court, of the common pleas, and of such other courts

as may be created, shall, respectively, have and exercise such power and

jurisdiction, at chambers, or otherwise, as may be directed by law.’ The Supreme

Court of Ohio has uniformly held that the provisions of Article IV are not self-

executing. Rather, the jurisdiction of the common pleas courts is limited to

whatever the legislature may choose to bestow. Central Ohio Transit Auth. v.

Transport Workers Union of America (1988), 37 Ohio St.3d 56 [524 N.E.2d 151];

Seventh Urban, Inc. v. University Circle (1981), 67 Ohio St.2d 19 [21 O.O.3d 12,

423 N.E.2d 1070]; State ex rel. Miller v. Keefe (1958), 168 Ohio St. 234 [6 O.O.2d

18, 152 N.E.2d 113].” 146 Ohio Laws, Part II, 4027-4028.

{¶ 85} These findings, like others in Section 5, Am.Sub.H.B. No. 350, are

judicial, not legislative in nature, and are being used to justify the reenactment of

legislation already determined to be unconstitutional. The thrust of Section 5(P) is

to declare R.C. 2323.54 constitutional on the basis that it caps only noneconomic

damages, rather than economic damages. However, this is precisely what former

R.C. 2307.43 did. In his concurring and dissenting opinion in Morris, Justice

Holmes described former R.C. 2307.43 as follows:

“It must be emphasized that this limiting section involves only general,

noneconomic damages, and not special, economic damages. The damages that are

limited to $200,000 are those of a nonpecuniary harm alleged to have resulted from

injury, such as pain and suffering, loss of society, companionship, mental anguish,

etc. The damages that are not limited are those of a pecuniary harm such as all

wages, salaries, or other compensation lost as a result of the injury; all expenditures

for medical care or treatment, rehabilitation services, or other care, treatment,

products or accommodations needed by virtue of the injury; or any other

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expenditures incurred as a result of the injury.” (Emphasis sic.) Morris, supra, 61

Ohio St.3d at 696, 576 N.E.2d at 774 (Holmes, J., concurring and dissenting in

part).

{¶ 86} In addition, R.C. 2323.54 continues to impose the cost of the

intended benefit to the general public solely upon a class consisting of those most

severely injured by tortious conduct. Thus, like former R.C. 2307.43, R.C. 2323.54

is invalid on due process grounds because it is unreasonable and arbitrary,

irrespective of whether it bears a real and substantial relation to public health or

welfare. Morris, 61 Ohio St.3d at 691, 576 N.E.2d at 771. There is simply no

constitutional difference between R.C. 2323.54 and former R.C. 2307.43. By

replacing former R.C. 2307.43 with R.C. 2323.54, the General Assembly has

merely expanded the scope of a statute declared unconstitutional by this court in

the context of medical claims to include all tort claims, medical and otherwise.

{¶ 87} Moreover, the General Assembly has attempted in Section 5(P)(8)

to bind this court to its interpretation of the Constitution. We have held, as the

General Assembly asserts, that “the jurisdiction of the common pleas courts is

limited to whatever the legislature may choose to bestow.” However, we have

never allowed this rubric to be employed in an effort to shield legislation from

judicial review or deprive the courts of the jurisdiction to enforce a constitutional

right. The General Assembly may not gain the authority to take away a

constitutional right by the simple expedient of limiting the jurisdiction of the courts

to the parameters of its own unconstitutional Act. “What the constitution grants,

no statute may take away.” State ex rel. Hoel v. Brown (1922), 105 Ohio St. 479,

138 N.E. 230, paragraph three of the syllabus.

E

Appropriate Summary Judgment Standard for Proving Causation in

Hazardous or Toxic Exposure Cases

{¶ 88} In Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653

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N.E.2d 1196, paragraphs two and three of the syllabus, we held:

“2. A plaintiff need not prove that he was exposed to a specific product on

a regular basis over some extended period of time in close proximity to where the

plaintiff actually worked in order to prove that the product was a substantial factor

in causing his injury. (Lohrmann v. Pittsburgh Corning Corp. [C.A.4, 1986], 782

F.2d 1156, disapproved.)

“3. Summary judgment is proper in an asbestos case in the same

circumstances as in any other case, i.e., when, looking at the evidence as a whole,

(1) no genuine issue of material fact remains to be litigated, (2) the moving party is

entitled to judgment as a matter of law, and (3) it appears from the evidence,

construed most strongly in favor of the nonmoving party, that reasonable minds

could only conclude in favor of the moving party.”

{¶ 89} Section 5(O) provides:

“The intent of the General Assembly in enacting section 2307.792 of the

Revised Code is to establish the judicial standard for the granting of summary

judgment in hazardous or toxic exposure cases, consistent with the decision of

Lohrmann v. Pittsburgh Corning Corp. * * * and contrary to Syllabus 2, Horton v.

Harwick Chemical Corp. * * * The General Assembly recognizes that the courts

of Ohio prior to the Horton decision generally followed the rationale of the

Lohrmann decision in determining when summary judgment was appropriate in

hazardous or toxic exposure cases, a similar standard of which has been adopted by

the majority of states. The Lohrmann standard provides litigants and the courts of

Ohio with an objective, easily applied standard for determining when summary

judgment is appropriate.” (Emphasis added.) 146 Ohio Laws, Part II, 4027.

{¶ 90} This is a clear violation of the principle of separation of powers for

the General Assembly to actually attempt to establish a judicial standard for the

granting of summary judgment, contrary to our own, and based on a decision by

another court, which this court has expressly rejected pursuant to our authority

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under Section 5(B), Article IV of the Ohio Constitution.

F

Admissibility of Evidence of a Common Insurer

{¶ 91} Like the Ohio Rules of Civil Procedure, the Ohio Rules of Evidence,

which were promulgated by the Supreme Court pursuant to Section 5(B), Article

IV of the Ohio Constitution, must control over subsequently enacted inconsistent

statutes purporting to govern evidentiary matters. In re Coy (1993), 67 Ohio St.3d

215, 616 N.E.2d 1105.

{¶ 92} In Ede v. Atrium S. OB-GYN, Inc. (1994), 71 Ohio St.3d 124, 642

N.E.2d 365, at the syllabus, we held:

“In a medical malpractice action, evidence of a commonality of insurance

interests between a defendant and an expert witness is sufficiently probative of the

expert’s bias as to clearly outweigh any potential prejudice evidence of insurance

might cause. (Evid.R. 411, applied.)”

{¶ 93} Am.Sub.H.B. No. 350 enacts R.C. 2317.46, which provides:

“(C) If a defendant presents testimony or other evidence in a tort action by

means of an expert witness, evidence of a common insurer of liability of the

defendant and the expert witness or evidence of a potential financial impact of the

action on the amount of liability insurance premiums paid by the expert witness is

inadmissible to prove bias, interest, or prejudice of the expert witness unless the

party offering the evidence proves that the probative value of the evidence

outweighs the evidence’s potential prejudicial effect.”

{¶ 94} Section 5(N), Am.Sub.H.B. No. 350, provides:

“In enacting division (C) of section 2317.46 of the Revised Code in this act,

the General Assembly declares that it is the public policy of the state of Ohio that

evidence of a common insurer of liability of the defendant and an expert witness in

an action upon a medical, dental, optometric, or chiropractic claim or evidence of

a potential financial impact of the action on the amount of liability insurance

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premiums paid by the expert witness is not admissible to prove bias, interest, or

prejudice of the expert witness unless the party offering the evidence proves that

probative value of the evidence outweighs the evidence’s potential prejudicial

effect.”

{¶ 95} As our holding in Ede involves the application of a Rule of Evidence

promulgated pursuant to Section 5(B), Article IV of the Ohio Constitution, any

attempt to statutorily supersede that holding constitutes a violation of the doctrine

of separation of powers.

G

Summary — Separation of Powers

{¶ 96} Am.Sub.H.B. No. 350 is no ordinary piece of legislation that

happens to inadvertently cross the boundaries of legislative authority. The General

Assembly has circumvented our mandates, while attempting to establish itself as

the final arbiter of the validity of its own legislation. It has boldly seized the power

of constitutional adjudication, appropriated the authority to establish rules of court

and overrule judicial declarations of unconstitutionality, and, under the thinly

veiled guise of declaring “public policy,” establishing “jurisdiction,” and enacting

“substantive” law, forbade the courts the province of judicial review.

{¶ 97} Such a threat to judicial independence is reminiscent of a bygone era

of legislative omnipotence existing prior to the adoption of the Constitution of

1851. In this regard, we find the following remarks of Hamilton in The Federalist

No. 78 to be particularly illuminating:

“The complete independence of the courts of justice is particularly essential

in a limited Constitution. * * * Without this, all the reservations of particular rights

or privileges would amount to nothing.

“***

“If it be said that the legislative body are themselves the constitutional

judges of their own powers, and that the construction they put upon them is

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conclusive upon the other departments, it may be answered, that this cannot be the

natural presumption, where it is not to be collected from any particular provisions

in the Constitution. It is not otherwise to be supposed, that the Constitution could

intend to enable the representatives of the people to substitute their will to that of

their constituents. It is far more rational to suppose, that the courts were designed

to be an intermediate body between the people and the legislature, in order, among

other things, to keep the latter within the limits assigned to their authority. The

interpretation of the laws is the proper and peculiar province of the courts. A

constitution is, in fact, and must be regarded by the judges, as a fundamental law.

It therefore belongs to them to ascertain its meaning, as well as the meaning of any

particular act proceeding from the legislative body. If there should happen to be an

irreconcilable variance between the two, that which has the superior obligation and

validity ought, of course, to be preferred; or, in other words, the Constitution ought

to be preferred to the statute, the intention of the people to the intention of their

agents.

“Nor does this conclusion by any means suppose a superiority of the judicial

to the legislative power. It only supposes that the power of the people is superior

to both; and that where the will of the legislature, declared in its statutes, stands in

opposition to that of the people, declared in the Constitution, the judges ought to be

governed by the latter rather than the former. They ought to regulate their decisions

by the fundamental laws, rather than by those which are not fundamental.”

{¶ 98} As another writer has observed, “we create an independent judiciary

in order to remove from the legislature the temptation to draft [unconstitutional]

statutes and to then use the judiciary under its control as an instrument to shore up

such statutes. * * * In particular, it is difficult to imagine how an independent

judiciary could possibly play the role of keeping the legislature in check without

also having the final say in what the constitution means. * * * Therefore, to give

the legislature and not the judiciary the final say on the meaning of the constitution,

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would undermine * * * the separation of powers scheme by giving the legislature

the means to overrule or circumvent the judiciary’s decision to strike down a statute

as unconstitutional.” Anhang, Separation of Powers and The Rule of Law: On The

Role of Judicial Restraint in ‘Secur[ing] the Blessings of Liberty’ (1990), 24 Akron

L.Rev. 211, 226. And as Chief Justice Huntington so shrewdly observed in

Rutherford v. M’Faddon, Pollack, supra, at 75: “The people can never be secure

under any form of government, where there is no check among the several

departments.”

{¶ 99} We hold that Am.Sub.H.B. No. 350 usurps judicial power in

violation of the Ohio constitutional doctrine of separation of powers and, therefore,

is unconstitutional.

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V

Am.Sub.H.B. No. 350 Violates the One-Subject Rule

{¶ 100} In their first ancillary claim, relators maintain that Am.Sub.H.B.

No. 350 was passed in violation of Section 15(D), Article II of the Ohio

Constitution, which provides that “[n]o bill shall contain more than one subject,

which shall be clearly expressed in its title.” Relators argue that Am.Sub.H.B. No.

350 “addresses at least 19 diverse topics * * * [that] cannot logically be viewed as

a single subject.” Respondent Montgomery maintains that “each and every

provision contained in H.B. 350 deals with the law of torts.”

{¶ 101} The bill purports to encompass “changes in the laws pertaining to

tort and other civil actions.” Title, 146 Ohio Laws, Part II, 3868. Section 8,

Am.Sub.H.B. No. 350 provides:

“The General Assembly hereby finds that the sections presented in this act

constitute one subject as required by Section 15(D), Article II of the Ohio

Constitution, in particular finding that each change and each topic relates directly

to or in conjunction with other sections to the subject of tort and other civil action

reform as clearly enumerated in the title. The General Assembly further recognizes

the holdings in State ex rel. Ohio AFL-CIO v. Voinovich (1994), 69 Ohio St.3d 225

[631 N.E.2d 582], and State ex rel. Dix v. Celeste (1984), 11 Ohio St.3d 141 [11

OBR 436, 464 N.E.2d 153], and finds that a common purpose or relationship exists

among the sections, representing a potential plurality but not disunity of topics,

notwithstanding that reasonable minds might differ in identifying more than one

topic contained in the bill.”

{¶ 102} This determination, however, is neither conclusive nor binding

upon this court. As we held in Dix, supra, at the syllabus:

“The one-subject rule contained in Section 15(D), Article II of the Ohio

Constitution is merely directory in nature; while it is within the discretion of the

courts to rely upon the judgment of the General Assembly as to a bill’s compliance

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with the Constitution, a manifestly gross and fraudulent violation of this rule will

cause an enactment to be invalidated. (Pim v. Nicholson, 6 Ohio St. 176, approved

and followed, and extended; State ex rel. Attorney General v. Covington, 29 Ohio

St. 102, paragraph seven of the syllabus, modified.)”

{¶ 103} The one-subject rule was added to our Constitution in 1851. It was

one of the proposals resulting from the efforts of the Second Constitutional

Convention, of 1850-1851. See Kulewicz, The History of the One-Subject Rule of

the Ohio Constitution (1997), 45 Cleve.St.L.Rev. 591, 591-593. The genesis of

support for this rule had its roots in the same concerns over the General Assembly’s

dominance of state government that formed the most significant theme of the

Constitution of 1851. These concerns, illustrated earlier in this opinion, resulted in

the placement of concrete limits on the power of the General Assembly to proceed

however it saw fit in the enactment of legislation. The one-subject rule is one

product of the drafters’ desire to place checks on the legislative branch’s ability to

exploit its position as the overwhelmingly pre-eminent branch of state government

prior to 1851.

{¶ 104} Accordingly, one delegate to the Constitutional Convention of

1851 remarked:

“It is well known that special charters are always ‘got through’ our

Legislature at will, and it must be evident that it always will be so, in the absence

of a constitutional prohibition. When was there ever an instance within the

recollection of the oldest legislator on this floor, where a single special act of

incorporation was defeated — I mean an act applying to any subject matter

embraced in this report. * * * It is but too generally known, that these ‘special acts’

are ‘got through’ by a log-rolling system as it is called, the friends of one ‘bill’

voting for the bills of others, in consideration of their aid, when the final vote is

taken upon his own. These acts will always pass a legislative body — the ‘dignity’

and ‘purity’ of your General Assembly to the contrary, notwithstanding. Any

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association of capitalists, who ask for a right of way, through any part of the

country, will always get it, and ten thousand remonstrances might be sent up in

vain. A single member could carry it through the Legislature, if each other member

had had a bill of his own for similar acts of [incorporation].” I Report of the Debates

and Proceedings of the Convention for the Revision of the Constitution of the State

of Ohio (1851) 351.

{¶ 105} One commentator, writing approximately sixty years later,

identified the above quote as “an illuminating exposition of the devious ways of

legislatures sixty years ago.” Galbreath, Constitutional Conventions of Ohio

(1911) 27.

{¶ 106} Thus, as we explained in Dix, supra, 11 Ohio St.3d at 142-143, 11

OBR at 438, 464 N.E.2d at 155:

“Ohio is one of among forty-one states whose Constitution contains a one-

subject provision. The primary and universally recognized purpose of such

provisions is to prevent logrolling—‘ * * * the practice of several minorities

combining their several proposals as different provisions of a single bill and thus

consolidating their votes so that a majority is obtained for the omnibus bill where

perhaps no single proposal of each minority could have obtained majority approval

separately.’ * * *

“The one-subject provision attacks logrolling by disallowing unnatural

combinations of provisions in acts, i.e., those dealing with more than one subject,

on the theory that the best explanation for the unnatural combination is a tactical

one—logrolling. By limiting each bill to a single subject, the bill will have unity

and thus the purpose of the provision will be satisfied.”

{¶ 107} In attempting to define our role in the enforcement of the one-

subject provision of Section 15(D), Article II of the Ohio Constitution, this court

has been emphatic about its reluctance to interfere or become entangled with the

legislative process. We have endeavored to “accor[d] appropriate respect to the

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General Assembly, a coordinate branch of the state government.” Dix, supra, 11

Ohio St.3d at 144, 11 OBR at 439, 464 N.E.2d at 157. In so doing, we have

recognized “the necessity of giving the General Assembly great latitude in enacting

comprehensive legislation by not construing the one-subject provision so as to

unnecessarily restrict the scope and operation of laws, or to multiply their number

excessively, or to prevent legislation from embracing in one act all matters properly

connected with one general subject.” Id. at 145, 11 OBR at 440, 464 N.E.2d at 157.

We have emphasized that “every presumption in favor of the enactment’s validity

should be indulged.” Hoover v. Franklin Cty. Bd. of Commrs. (1985), 19 Ohio

St.3d 1, 6, 19 OBR 1, 5, 482 N.E.2d 575, 580, and noted that “while this provision

has been invoked in hundreds of cases in various jurisdictions, ‘ * * * in only a

handful of cases have the courts held an act to embrace more than one subject.’ ”

Dix, 11 Ohio St.3d at 144, 11 OBR at 439, 464 N.E.2d at 157, quoting Ruud, “No

Law Shall Embrace More Than One Subject” (1958), 42 Minn.L.Rev. 389, 447.

{¶ 108} On the other hand, we have been equally emphatic about not

extending this reluctance to impede the legislative process so far as to negate the

one-subject provision of Section 15(D), Article II of the Ohio Constitution. “While

this court has consistently expressed its reluctance to interfere with the legislative

process, it will not, however, abdicate in its duty to enforce the Ohio Constitution.”

Dix, 11 Ohio St.3d at 144, 11 OBR at 439, 464 N.E.2d at 157. See, also, Ohio AFL-

CIO v. Voinovich, supra, 69 Ohio St.3d at 229, 631 N.E.2d at 586.

{¶ 109} With these principles in mind, we have adopted the position that

“the one-subject provision is not directed at plurality but at disunity in subject

matter.” Dix, 11 Ohio St.3d at 146, 11 OBR at 440-441, 464 N.E.2d at 158. See,

also, State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d

145, 148, 580 N.E.2d 767, 770. Thus, “[t]he mere fact that a bill embraces more

than one topic is not fatal, as long as a common purpose or relationship exists

between the topics.” Hoover, supra, 19 Ohio St.3d at 6, 19 OBR at 5, 482 N.E.2d

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at 580; Ohio AFL-CIO, supra, 69 Ohio St.3d at 229, 631 N.E.2d at 586. However,

“when there is an absence of common purpose or relationship between specific

topics in an act and when there are no discernible practical, rational or legitimate

reasons for combining the provisions in one act, there is a strong suggestion that

the provisions were combined for tactical reasons, i.e., logrolling. Inasmuch as this

was the very evil the one-subject rule was designed to prevent, an act which

contains such unrelated provisions must necessarily be held to be invalid in order

to effectuate the purpose of the rule.” Dix, 11 Ohio St.3d at 145, 11 OBR at 440,

464 N.E.2d at 157. See, also, Beagle v. Walden (1997), 78 Ohio St.3d 59, 62, 676

N.E.2d 506, 507; Hinkle, supra, 62 Ohio St.3d at 148-149, 580 N.E.2d at 770;

Hoover, supra, 19 Ohio St.3d at 6, 19 OBR at 5, 482 N.E.2d at 580.

{¶ 110} Undoubtedly, Am.Sub.H.B. No. 350 embraces a multitude of

topics. See fn. 6. The bill affects some eighteen different titles, thirty-eight

different chapters, and over one hundred different sections of the Revised Code, as

well as procedural and evidentiary rules and hitherto uncodified common law. The

pivotal question is whether these various topics share a common purpose or

relationship, i.e., whether they unite to form a single subject for purposes of Section

15(D), Article II of the Ohio Constitution.

{¶ 111} While an examination of any two provisions contained in

Am.Sub.H.B. No. 350, carefully selected and compared in isolation, could support

a finding that “a common purpose or relationship exists among the sections,

representing a potential plurality but not disunity of topics,” an examination of the

bill in its entirety belies such a conclusion. For example, R.C. 2323.54 (establishing

noneconomic damage caps) could be grouped with amended R.C. 2305.01

(depriving the court of common pleas of jurisdiction to award compensatory

damages in excess of the amounts set forth in R.C. 2323.54) to be comprised within

the subject “noneconomic damage caps.” Similarly, R.C. 2315.21(D)(1)

(establishing punitive damage caps), and R.C. 2305.01 (which also deprives the

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common pleas court of jurisdiction to award punitive damages that exceed the

amounts set forth in R.C. 2315.21), could be juxtaposed under the subject “punitive

damage caps.” If noneconomic and punitive damage caps were to be considered

topics rather than subjects, and if the term “subject” were interpreted broadly

enough, R.C. 2305.01, 2315.21(D)(1), and 2323.54 could all be classified as

“damage cap provisions.” It could then be argued that R.C. 2315.21(B)(1), which

governs the procedural matter of bifurcating tort actions into compensatory and

punitive damage stages, correlates with these provisions under the expanded

heading “tort damage matters.”

{¶ 112} However, a thorough and in-depth review of Am.Sub.H.B. No. 350

reveals numerous other, more diverse, provisions contained therein; and as we

examine the substance and content of these provisions, it becomes apparent that

the commonality of purpose or relationship between them becomes increasingly

attenuated, and the statement of subject necessary to encompass them grows

broader and more expansive, until finally any suggestion of unity of subject matter

is illusory. For example, Am.Sub.H.B. No. 350 attempts to combine the wearing

of seat belts with employment discrimination claims, class actions arising from the

sale of securities with limitations on agency liability in actions against a hospital,

recall notification with qualified immunity for athletic coaches, actions by a roller

skater with supporting affidavits in a medical claim, and so on. See fn. 6.

{¶ 113} With all due respect and deference to the General Assembly, it is

simply impossible to uphold the constitutionality of Am.Sub.H.B. No. 350 under

the one-subject provision of Section 15(D), Article II of the Ohio Constitution. The

various provisions in this bill are so blatantly unrelated that, if allowed to stand as

a single subject, this court would be forever left with no basis upon which to

invalidate any bill, no matter how flawed. Indeed, even one of Am.Sub.H.B. No.

350’s most ardent defenders was compelled to write that “[d]ue to its scope, House

Bill 350 may be subjected to an attack based on Article II, § 15(C) [sic (D)] of the

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Ohio Constitution—the one subject rule.” Werber, supra, 69 Temple L.Rev. at

1156, fn. 3. Our precedents require us to invalidate a bill when a “manifestly gross

and fraudulent violation” of the one-subject rule has occurred. Despite the General

Assembly’s own stated conclusion to the contrary, we find that just such a violation

has occurred in the enactment of Am.Sub.H.B. No. 350. To find otherwise would

be no less than an “abdicat[ion] [of our] duty to enforce the Ohio Constitution.”

Dix, supra, 11 Ohio St.3d at 144, 11 OBR at 439, 464 N.E.2d at 157.

{¶ 114} In pronouncing its compliance with the one-subject rule, the

General Assembly has managed to concoct a subject broad enough to encompass

the multifarious provisions of Am.Sub.H.B. No. 350—“laws pertaining to tort and

other civil actions.” We fully accept the proposition that, in order to accord

appropriate deference to the General Assembly in its law-making function, a

subject for purposes of the one-subject rule is to be liberally construed as a

classificati

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