Hill v. City of Urbana

Cook, J.,

dissenting. Although I agree with much of the dissenting opinion written by Chief Justice Moyer, 3 I adhere to my view that the plain error doctrine should be reserved for use in criminal cases and held wholly inapplicable to civil cases.

The majority holds that the doctrine should be applied “where the rights and interests involved may warrant it.” How, then, are we, as courts, to rank rights and interests? By discarding the criminal and constitutional dimensions that grounded the court’s plain-error analysis in In re M.D. (1988), 38 Ohio St.3d 149 , *142 527 N.E.2d 286 , 4 the majority leaves judges with standardless discretion to weigh interests according to personal predilections. Such an illusory standard is damaging to the integrity of the judicial process. 5

The standard announced in Goldfuss v. Davidson (1997), 79 Ohio St.3d 116 , 679 N.E.2d 1099 , syllabus, is, by its language, more cautious, but still provides no real boundaries for its application. The Goldfuss court held that plain error may be recognized in civil cases where the fairness, integrity, or public reputation of the judicial process necessitates its application. Neither Goldfuss nor the cases upon which it relies, however, found the plain-error doctrine applicable or provided a meaningful example of appropriate circumstances for its application. Instead, this court legitimizes plain error in civil cases — eschewing the uniformity, predictability and equal treatment of individuals that a complete ban would foster— based on the possibility that there is a scenario where its application would be judicious. As discussed in my concurring opinion in Goldfuss at 125 , 679 N.E.2d at 1106 , however, that scenario is more imaginary than real.

Because this court has imported the doctrine of plain error into the civil arena despite its absence from our Civil Rules and fundamental inapplicability to the civil judicial process, and for the reasons cited in my concurrence in Goldfuss , I respectfully dissent.

. Particularly, I am in general accord with Chief Justice Moyer’s conclusion that this ease is inapposite to Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274 , 617 N.E.2d 1075 . I would additionally note, however, that the rule in Belvedere should not be read to provide discretion to a court to make an exception to the waiver doctrine. Instead, the Belvedere court recognized that a legal issue that is not specifically argued must nevertheless be analyzed when its resolution is essential to determining an issue that was argued. Accordingly, it is more appropriate to analyze the Belvedere rule as exemplifying circumstances where an issue is not waived rather than as an exception to the waiver doctrine.

. The complete syllabus of In re M.D. (1988), 38 Ohio St.3d 149 , 527 N.E.2d 286 , reads:

“The waiver doctrine in State v. Awan (1986), 22 Ohio St.3d 120 , 22 OBR 199, 489 N.E.2d 277 , is discretionary. Even where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.”

In re M.D. involved only review of constitutional issues not raised to the trial court and argued on appeal in a criminal case. There is no suggestion that the holding in In re M.D. was meant to apply to civil cases or to issues of no constitutional moment. The majority’s deletion from the In re M.D. syllabus of any reference to State v. Awan, supra, and its use of italics after the conjunction “or” to imply that waiver may be excepted “where the rights and interests involved may warrant it,” irrespective of whether the challenge involves constitutional issues, are misleading.

. Bright-line generalizations ought to be favored over discretion-conferring approaches such as balancing tests, or “totality of the circumstances” tests. The benefits from application of a clear, previously enunciated rule include (1) the appearance of equal treatment, (2) an ability to point to a rule in explanation of the decision, (3) uniformity in application, and (4) predictability. These legal values outweigh the occasional substantive distortion that may occur. Since oui- court reviews only a small percentage of the cases appealed, and our objective is a principled decision, “one that rests on reasons * * * that in their generality and their neutrality transcend any immediate result that is involved,” rules are better. Wechsler, Toward Neutral Principles of Constitutional Law (1959), 73 Harv.L.Rev. 1,19.