Cook and Lundberg Stratton, JJ., dissenting
How later courts described this case
- Cook and Lundberg Stratton, JJ., dissenting
Written by the judges who cited it.
The opinion
Cook, J.,
dissenting. I would not dismiss this case as improvidently allowed. Our Rules of Practice provide that one of two conditions should be met prior to this court’s sua sponte dismissal of an appeal on the basis that it was improvidently allowed. S.Ct.Prac.R. XII. Before taking this step we should find either (1) that there is no substantial constitutional question or question of public or great general interest, or (2) that the same question has been raised and passed upon in a prior appeal. Id. Neither of these conditions is met here. Instead, the majority initiates this dismissal, finding that the order appealed from is not final.
Whether the judgment of the trial court denying immunity is final and appealable depends on whether R.C. 2744.02(C) was validly reenacted by the General Assembly in Am.Sub.H.B. No. 215, given that R.C. 2744.02(C) was declared unconstitutional as being part of Am.Sub.H.B. No. 350. That is, if Am.Sub.H.B. No. 215 validly reenacted this section, then the trial court’s decision denying immunity to the board of education would be final, and the jurisdiction of the court of appeals would not be questioned by this court.
I thus would not dismiss the case sua sponte, but rather would have the parties brief the jurisdictional issue.
Lundberg Stratton, J., concurs in the foregoing dissenting opinion.