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

> Ohio Supreme Court · August 16, 1999 · 86 Ohio St. 3d 451

URL: https://www.frixlaw.com/law-library/cases/11151491

## Case

- **Court:** Ohio Supreme Court
- **Decided:** August 16, 1999
- **Citations:** 86 Ohio St. 3d 451; 1999 Ohio 123
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Alice Robie Resnick, J.
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by State ex rel. Martens v. Findlay Mun. Court, 2024 Ohio 5667 (2024).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11151491

## Opinion text

[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.

2
January Term, 1999

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

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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.)

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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).

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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

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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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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

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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

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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.

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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
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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.

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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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{¶ 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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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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SUPREME COURT OF OHIO

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 eco

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11151491. Public record. Not legal advice.