noting that Article I, Section 16 of the Ohio Constitution “provides simply that suits may be brought against the state as may be provided by law” but does not explain which branch of government is to do the providing
How later courts described this case
- noting that Article I, Section 16 of the Ohio Constitution “provides simply that suits may be brought against the state as may be provided by law” but does not explain which branch of government is to do the providing
- holding that the abrogation of sovereign immunity could be achieved judicially as well as statutorily
- holding that abrogation of sovereign immunity could be achieved judicially as well as statutorily
- abolishing sovereign immunity for proprietary function of park districts
Written by the judges who cited it.
Later courts went against this
Questioned by Chesler v. Doe, 532 F. Supp. 1033 (1982)
Although recent decisions of the Ohio Supreme Court cast doubt on the continuing viability of these principles, at least with respect to the “proprietary” functions of municipalities, see Schenkolewski v. Cleveland Metroparks System, 67 Ohio St.2d 31, 426 N.E.2d 784 (1981), it would not be appropriate for this Court to further modify them with respect to the governmental function of a municipality.
Distinguished
Distinguished by Houck v. Board of Park Commissioners, 116 Ohio St. 3d 148 (2007)
Thus, Schenkolewski and Marrek are distinguishable from the instant case.
The opinion
Paul W. Brown, J.,
dissenting. In a long and unbroken line of cases, this court has held that “[t]he provision of the Ohio Constitution, Article I, Section 16, as amended September 13, 1912, that ‘Suits may be brought against the *40 state, in such courts, and in such manner, as may be provided by law,’ is not self-executing; and statutory authority is required as a prerequisite to the bringing of suits against the state.” Raudabaugh v. State (1917), 96 Ohio St. 513 , paragraph two of the syllabus; Palumbo v. Indus. Comm. (1942), 140 Ohio St. 54 ; State, ex rel. Williams, v. Glander (1947), 148 Ohio St. 188 ; Wolf v. Ohio State University Hospital (1959), 170 Ohio St. 49 ; Krause v. State (1972), 31 Ohio St. 2d 132 ; and Thacker v. Bd. of Trustees of Ohio State Univ. (1973), 35 Ohio St. 2d 49 .
As the majority points out, when the General Assembly enacted the Court of Claims Act, it specifically provided that it was not waiving the governmental immunity of “political subdivisions.” R. C. 2743.01(B); R. C. 2743.02. Because a park district organized under R. C. 1545.01 et seq. is a “political subdivision” of the state, Village of Willoughby Hills v. Bd. of Park Commrs. (1965), 3 Ohio St. 2d 49 , it is immune from tort liability under the doctrine of governmental immunity, and this immunity was not waived by the Court of Claims Act.
“Although the doctrine of governmental immunity was judicially created, it is not now subject to judicial reexamination. When the people of Ohio, in 1912, adopted Section 16 of Article I as part of the organic law of this state, they foreclosed to this or any other court the authority to examine the ‘soundness’ or ‘justice’ of the concept of governmental immunity. The people of Ohio placed that policy decision in the hands of the General Assembly, and the merits or demerits of granting or withholding consent are to be debated and determined by that body alone. It is not within the province of the judiciary to make that determination. Nor can we make that constitutional provision meaningless. The alternative remedy is by a constitutional amendment.” Krause v. State, supra, at 147. Furthermore, the court pointed out in Thacker v. Bd., supra, at 54, “questions concerning the governmental or proprietary nature of state activity were rendered irrelevant by Krause.”
The issue of governmental immunity is for the General Assembly to decide. In enacting, the Court of Claims Act, the General Assembly specifically declined to waive the governmental immunity attaching to political subdivisions of the state *41 such as park districts. Therefore, I would affirm the decisions of the lower courts which dismissed the suit against the park district because it was immune from suit.
For the foregoing reasons, I dissent.
Locher and Stephenson, JJ., concur in the foregoing dissenting opinion.