Holeton v. Crouse Cartage Co.

Cook, J.,

dissenting. Like the Chief Justice, I would answer “no” to each certified question. And I agree with much of what the Chief Justice expresses in his dissenting opinion. I write separately to address the majority’s unfortunate decision to declare R.C. 4123.931 unconstitutional on its face for violating the Takings and Right to Remedy Clauses of the Ohio Constitution.

A party may challenge a statute as unconstitutional either on its face or as applied to a particular state of facts. Belden v. Union Cent. Life Ins. Co. (1944), 143 Ohio St. 329 , 28 O.O. 295 , 55 N.E.2d 629 , paragraph four of the syllabus. The effect of a successful challenge will differ depending on whether the court strikes the statute on its face or as applied. “If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances.” Women’s Med. Professional Corp. v. Voinovich (C.A.6, 1997), 130 F.3d 187 , 193. This case necessarily presents a facial challenge to R.C. 4123.931. Because there has been no verdict or settlement to which the statute has been applied, this case presents no set of facts upon which we can base an as-applied constitutional analysis. See State v. Beckley (1983), 5 Ohio St.3d 4, 6-7 , 5 OBR 66, 68-69, 448 N.E.2d 1147, 1148-1149 (constitutional challenge had to be a facial one when there was no “presently existing state of facts to which to apply the challenged statutes”).

The majority fails to appreciate the distinction between facial and as-applied constitutional challenges. Because the majority deems R.C. 4123.931 unpalatable when applied to various factual scenarios not presented in this case, the majority declares the statute unconstitutional on its face. As noted above, this decision precludes future application of the statute under any circumstances. But the *140 majority’s approach fails to acknowledge important precepts that are supposed to guide an analysis of facial challenges. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that [a statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid * * *." United States v. Salerno (1987), 481 U.S. 739, 745 , 107 S.Ct. 2095, 2100 , 95 L.Ed.2d 697, 707 ; see, also, Emerson Elec. Co. v. Tracy (2000), 90 Ohio St.3d 157, 162 , 735 N.E.2d 445, 449-450 (Cook, J., dissenting). By ignoring this principle, the majority loses sight of “the strong presumption in favor of the constitutionality of legislation and the judicial obligation which exists to support the enactment of a lawmaking body if this can be done.” Beckley, 5 Ohio St.3d at 7 , 5 OBR at 69, 448 N.E.2d at 1149 . Today’s decision thus stands for the bizarre (and unsupportable) proposition that a court may declare a statute unconstitutional on its face simply because it may be applied unconstitutionally in some situations, under a set of facts not at bar.

The majority goes to great lengths in defending its mode of analyzing the constitutionality of R.C. 4123.931 under the Takings and Right to Remedy Clauses. For example, the majority claims that it “would be more than a bit anomalous to now limit our consideration of R.C. 4123.931’s constitutionality to the present certified facts” in light of the respondent’s representations to this court that numerous pending cases may be resolved by our decision in this one. The majority also contends that the factual scenarios it considers in this case are “familiar and repeated circumstances that necessarily arise” from R.C. 4123.931’s “interplay” with the common law. But these arguments are unresponsive to the mistake that the majority actually makes in its constitutional analysis.

The majority’s error is not the consideration of additional situations; indeed, when entertaining a facial challenge, the court necessarily considers how the statute may apply to a variety of circumstances. Rather, the majority’s mistake comes in considering too few additional situations before declaring the statute facially unconstitutional. Before we may strike the statute as facially unconstitutional, and therefore invalid in toto, we must do more than simply find that the statute operates unconstitutionally in some situations. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 494-497 , 102 S.Ct. 1186, 1191-1193 , 71 L.Ed.2d 362, 369-370 . Finding a law facially unconstitutional requires us “to hold that under no reasonable set of circumstances” could the statute operate constitutionally. (Emphasis added.) Beckley, 5 Ohio St.3d at 7 , 5 OBR at 69, 448 N.E.2d at 1149 ; see, also, Salerno, 481 U.S. at 745 , 107 S.Ct. at 2100 , 95 L.Ed.2d at 707 . The majority’s analysis falls far short of this exhaustive standard. Instead of striking R.C. 4123.931 because it violates the Right to Remedy and Takings Clauses in virtually all of its applications, the majority has *141 instead voided the statute simply because it deems the law invalid under the limited circumstances it has chosen to address.

The majority also justifies its departure from the proper mode of constitutional analysis by painting a misleading picture about how this court manages its docket. The majority notes that this court has allowed discretionary appeals in Yoh v. Schlachter (Mar. 17, 2000), Williams App. No. WM-99-008, unreported, 2000 WL 281748 , and In re Estate of Stewart (June 28, 2000), Lorain App. No. 99CA007422, unreported, 2000 WL 840512 . See (2000), 89 Ohio St.3d 1490 , 734 N.E.2d 377 , and (2000), 90 Ohio St.3d 1471 , 738 N.E.2d 383 . In both of these cases, this court sua sponte ordered the briefing schedules stayed and the causes “held” for the decision in this case. According to the majority, this means that these cases “are poised to be decided” summarily “upon the authority” of this case. Thus, the majority concludes that a decision upholding the facial constitutionality of R.C. 4123.931 could result in this court “upholding] the constitutionality of the statute as applied in situations that we declined to consider.” But this explanation is just plain wrong, for it is based on an inaccurate depiction of how other cases currently pending before this court would be affected in the event that we upheld the facial validity of R.C. 4123.931 in this case.

This court does not summarily decide all held causes when we have decided the case for which those causes are held. The disposition of a given case may not warrant summary disposition of causes held for it, particularly if the held causes present unique issues that are not addressed in the lead case. For example, this court ordered briefing in at least two recent cases that were originally held for dispositions in other cases. Compare State v. Eppinger (2000), 89 Ohio St.3d 1447 , 731 N.E.2d 1136 , and Paton v. Paton (2000), 89 Ohio St.3d 1436 , 730 N.E.2d 990 (lifting stays on briefing), with State v. Eppinger (1999), 86 Ohio St.3d 1465 , 715 N.E.2d 568 , and Paton v. Paton (1999), 86 Ohio St.3d 1465 , 715 N.E.2d 568 (holding causes for decisions in cases already pending before this court). In Eppinger and Paton, this court examined each case and found it inappropriate to decide them summarily, despite the fact that we had originally held them for other cases pending here. Similarly, if Yoh and Stewart present issues not adequately addressed by the decision in this case, this court would lift the stay on briefing and hear the cases on the merits. Thus, if the majority had (correctly) upheld the facial constitutionality of R.C. 4123.931, it would be inappropriate for this court to summarily decide Yoh and Stewart if those cases challenge the constitutionality of the statute as applied to the facts of those cases. We would instead order briefing on the merits and the parties would have the opportunity to focus their arguments on the as-applied challenges without having to address the facial challenges we have already decided here.

Shumaker, Loop & Kendrick, L.L.P., Jack G. Fynes and Stefanie E. Berk, for petitioners.

The majority discounts this orderly (and correct) procedure by claiming that a supposedly “absurd result” would flow from it. The majority states, “Assuming that a refusal to consider additional factual situations in this case would result in a decision in favor of constitutionality, that decision would stand only so long as it took us to reverse it in Yoh and Stewart.” But this assertion is woefully wrong and further illuminates the majority’s failure to distinguish between facial and as-applied constitutional challenges. If a majority of this court had (correctly) decided here that the statute was not facially unconstitutional, only to decide later that the statute was unconstitutional as applied to the' situations presented in Yoh and Stewart, we would not “reverse” our decision in this case. The statute would merely be unenforceable as applied to the circumstances presented in those previously held cases; the statute would remain facially valid, meaning that the law could still be enforced in other circumstances where its operation would be constitutional. Simply put, a decision upholding the facial constitutionality of R.C. 4123.931 in this case would not preclude this court (or any other court for that matter) from finding the statute unconstitutional as applied to a particular set of facts in a later case.

Finally, the majority contends that the district court, by certifying the constitutional questions, “is actually asking us to evaluate the constitutionality of R.C. 4123.931 under the various situations that may arise in this case.” The majority says this is so because the district court is “without any knowledge” of what facts will arise after trial. But this explanation is curious, given that the certified questions dealing with constitutionality ask only abstract questions of whether R.C. 4123.931 is constitutional under various provisions of the Ohio Constitution. How the majority gleans the district court’s desire to have us decide the constitutionality of the statute “under the various situations that may arise in this case” is anyone’s guess. It is more likely, given the general phrasing of the certified constitutional questions, that the district court wanted to know whether R.C. 4123.931 is unconstitutional on its face and therefore incapable of any application to the Holetons’ lawsuit. With our answer to that question, the district court would know whether it had to consider R.C. 4123.931 at all. See Women’s Med. Professional Corp., 130 F.3d at 193 (statute unconstitutional on its face cannot be enforced under any circumstances).

For these reasons, in addition to those stated by the Chief Justice, I dissent. I would uphold the facial validity of R.C. 4123.931 and advise the district court accordingly.

Lundberg Stratton, J., concurs in the foregoing dissenting opinion.

Betty D. Montgomery, Attorney General, James A. Barnes, G. James Van Heyde and James M. Evans, Assistant Attorneys General, for respondent C. James Conrad, Administrator of Workers’ Compensation.

Nurenberg, Plevin, Heller & McCarthy Go., L.P.A., Kathleen J. St. John and David M. Paris, in support of petitioners, for amicus curiae Ohio Academy of Trial Lawyers.

Manley, Burke & Lipton, Andrew S. Lipton and Steven M. Ingram, in support of petitioners, for amicus curiae Armco Employees Independent Federation, Inc.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, in support of petitioners, for amicus curiae Ohio AFL-CIO.

Scott, Scriven & Wahoff, L.L.P., Timothy E. Cowans, William J. Wahoff and Richard Goldberg, in support of respondent, for amicus curiae Ohio Council of Retail Merchants.

Brickler & Eckler, L.L.P., and Kurtis A. Tunnell, in support of respondent, for amicus curiae Ohio Manufacturers’ Association.

Brickler & Eckler, L.L.P., Thomas R. Sant and Nan M. Still, in support of respondent, for amici curiae Ohio Chapter of the National Federation of Independent Business and Ohio Farm Bureau Federation, Inc.

Vorys, Sater, Seymour & Pease, L.L.P., Robert A. Minor and Robin R. Obetz, in support of respondent, for amici curiae Kokosing Construction Company, Inc., the Ohio Self-Insurers’ Association, and the American Insurance Association.

Garvin & Hickey and Preston J. Garvin, in support of respondent, for amicus curiae Ohio Chamber of Commerce.

Vozar, Roberts & Matejczyk Go., L.P.A., Thomas J. Vozar, Glenna M. Roberts and David M. Matejczyk, in support of respondent, for amicus curiae National Association of Subrogation Professionals.