McClain v. State

Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

McClain v. State, Slip Opinion No. 2022-Ohio-4722.

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

Slip Opinion No. 2022-Ohio-4722

MCCLAIN, APPELLANT, v. THE STATE OF OHIO, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as McClain v. State, Slip Opinion No. 2022-Ohio-4722.]

Criminal law—Wrongful imprisonment—Jury trial—Article I, Section 5 of the Ohio

Constitution—There is no constitutional right to a jury trial in a wrongful-

imprisonment action, because the action did not exist at common law.

(No. 2021-0718—Submitted May 24, 2022—Decided December 29, 2022.)

APPEAL from the Court of Appeals for Hamilton County,

No. C-200195, 2021-Ohio-1423.

_______________________

STEWART, J.

{¶ 1} In this discretionary appeal, we are asked to decide whether a

defendant is entitled to a jury trial under Article I, Section 5 of the Ohio Constitution

in a claim for wrongful imprisonment. We hold that appellant, Anthony McClain,

has no constitutional right to a jury trial in his action to be declared a wrongfully

imprisoned person under R.C. 2743.48, because this type of action did not exist at

SUPREME COURT OF OHIO

common law. Accordingly, we affirm the judgment of the First District Court of

Appeals.

Facts and Procedural History

{¶ 2} In 1995, McClain was indicted for murder in violation of R.C.

2903.02(A), with an accompanying firearm specification. He was tried by a jury,

convicted of murder, and sentenced to a prison term of 15 years to life, to be served

consecutively to a 3-year prison term for the firearm specification. The First

District Court of Appeals affirmed McClain’s conviction on appeal. State v.

McClain, 1st Dist. Hamilton No. C-950859, 1996 WL 487931 (Aug. 28, 1996).

{¶ 3} In 2002, McClain filed in the trial court a motion for leave to file a

motion for a new trial based on newly discovered evidence. After converting the

motion for leave into a motion for a new trial, the trial court denied the motion. The

First District reversed the trial court’s judgment and remanded for a new trial. State

v. McClain, 1st Dist. Hamilton No. C-040647 (Aug. 17, 2005). In 2006, McClain

was retried by a jury and acquitted of all offenses.

{¶ 4} McClain filed an action against appellee, the state of Ohio, to be

declared a “wrongly imprisoned individual” under R.C. 2743.48(A). He included

a jury demand with his complaint.1 McClain’s demand was overruled. The

question raised under R.C. 2743.48(A)(5)—whether McClain proved either that he

did not commit murder or that no offense was committed by any person—was then

tried to the bench.

{¶ 5} The trial court held that McClain failed to prove that he was actually

innocent of the murder offense or that no offense was committed by any person; it

therefore declined to declare McClain a wrongfully imprisoned person. McClain

1. McClain initially filed this action in the Franklin County Court of Common Pleas in 2008. He

voluntarily dismissed his complaint in 2010 and refiled it in the same court in 2011. In 2016, the

state filed a motion seeking a change of venue under R.C. 2743.48(B)(1). The court granted the

motion and transferred the case to the Hamilton County Court of Common Pleas.

2

January Term, 2022

appealed to the First District, raising a single assignment of error: the trial court

erred by refusing to grant McClain’s right to a jury trial. The court of appeals, in a

two-to-one decision, overruled McClain’s assignment of error, holding that

McClain did not have a constitutional right to a jury trial in the wrongful-

imprisonment action. 2021-Ohio-1423, 171 N.E.3d 1228, ¶ 30.

{¶ 6} McClain filed a discretionary appeal in this court, raising a single

proposition of law:

The divided court in the First District erred when it held, in

direct contravention of Article I, Section 5 of the Ohio Constitution,

that Appellant was not entitled to a jury trial for his wrongful

imprisonment claim.

See 164 Ohio St.3d 1460, 2021-Ohio-3594, 174 N.E.3d 810.

Law and Analysis

{¶ 7} Article I, Section 5 of the Ohio Constitution protects the right to a jury

trial: “The right of trial by jury shall be inviolate, except that, in civil cases, laws

may be passed to authorize the rendering of a verdict by the concurrence of not less

than three-fourths of the jury.” In 1929, this court clarified that a right to a jury

trial in civil cases is available only when, under the principles of the common law,

the type of claim existed prior to the adoption of the Ohio Constitution. Belding v.

State ex rel. Heifner, 121 Ohio St. 393, 396, 169 N.E. 301 (1929). Accordingly,

the “assertion of a constitutional right to a jury necessarily entails inquiry into

whether the common law recognized the type of claim [the plaintiff] presents.”

Arrington v. DaimlerChrysler Corp., 109 Ohio St.3d 539, 2006-Ohio-3257, 849

N.E.2d 1004, ¶ 22.

{¶ 8} The wrongful-imprisonment statute, R.C. 2743.48, was enacted in

1986 to authorize wrongfully imprisoned persons to bring civil actions against the

3

SUPREME COURT OF OHIO

state for money damages. Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, 985

N.E.2d 1229, ¶ 10. The statute establishes a two-step process: it first directs a

plaintiff to obtain a determination whether he was wrongfully imprisoned by filing

a civil action in the court of common pleas in the county in which the underlying

criminal action was initiated, R.C. 2743.48(B)(1). That court has exclusive,

original jurisdiction to hear and determine that action. R.C. 2305.02. Second, if

the common pleas court determines that a person was wrongfully imprisoned, then

the person may file a civil action against the state in the court of claims to recover

a sum of money because of the wrongful imprisonment, R.C. 2743.48(B)(2). The

court of claims has exclusive, original jurisdiction over the action to determine

damages. R.C. 2743.48(D).

{¶ 9} To be declared a “wrongfully imprisoned individual” by the court of

common pleas under the first step of the statute, an individual needs to satisfy the

five elements of R.C. 2743.48(A):

(1) The individual was charged with a violation of a section

of the Revised Code by an indictment or information, and the

violation charged was an aggravated felony, felony, or

misdemeanor.

(2) The individual was found guilty of, but did not plead

guilty to, the particular charge or a lesser-included offense by the

court or jury involved, and the offense of which the individual was

found guilty was an aggravated felony, felony, or misdemeanor.

(3) The individual was sentenced to an indefinite or definite

term of imprisonment in a state correctional institution for the

offense of which the individual was found guilty.

(4) The individual’s conviction was vacated, dismissed, or

reversed on appeal and all of the following apply:

4

January Term, 2022

(a) No criminal proceeding is pending against the individual

for any act associated with that conviction.

(b) The prosecuting attorney in the case, within one year

after the date of the vacating, dismissal, or reversal, has not sought

any further appeal of right or upon leave of court, provided that this

division does not limit or affect the seeking of any such appeal after

the expiration of that one-year period as described in division (C)(3)

of this section.

(c) The prosecuting attorney, city director of law, village

solicitor, or other chief legal officer of a municipal corporation,

within one year after the date of the vacating, dismissal, or reversal,

has not brought a criminal proceeding against the individual for any

act associated with that conviction, provided that this division does

not limit or affect the bringing of any such proceeding after the

expiration of that one-year period as described in division (C)(3) of

this section.

(5) Subsequent to sentencing or during or subsequent to

imprisonment, an error in procedure was discovered that occurred

prior to, during, or after sentencing, that involved a violation of the

Brady Rule which violated the individual’s rights to a fair trial under

the Ohio Constitution or the United States Constitution, and that

resulted in the individual’s release, or it was determined by the court

of common pleas in the county where the underlying criminal action

was initiated either that the offense of which the individual was

found guilty, including all lesser-included offenses, was not

committed by the individual or that no offense was committed by

any person.

5

SUPREME COURT OF OHIO

{¶ 10} McClain argues that a wrongful-imprisonment claim has roots in the

common law in the intentional tort of false imprisonment, which carried with it a

right to a jury trial. McClain further asserts that this court recognized a common-

law claim of false imprisonment against state officials long before R.C. 2743.48

was enacted, so he is therefore entitled to a jury trial.

{¶ 11} The state first responds that McClain’s claim is statutory and has no

common-law analogue. Second, the state argues that because McClain essentially

seeks a declaratory judgment that he qualifies as a wrongfully imprisoned person

under R.C. 2743.48(A), he seeks relief that was unavailable at common law.

Finally, the state reasons that because McClain seeks to sue the state, an entity that

could not be sued at common law without its express consent, the enactment of the

wrongful-imprisonment statute created a new cause of action against the state

without displacing former remedies. We agree with the state.

{¶ 12} Contrary to McClain’s assertion, a wrongful-imprisonment claim is

different than a claim at common law for the intentional tort of false imprisonment.

The latter exists when “a person confines another intentionally ‘without lawful

privilege and against his consent within a limited area for any appreciable time,

however short.’ ” Bennett v. Ohio Dept. of Rehab. & Corr., 60 Ohio St.3d 107,

109, 573 N.E.2 633 (1991), quoting Harper & James, The Law of Torts, Section

3.7, at 226 (1956). While the common law sometimes allowed plaintiffs to bring

false-imprisonment claims against state officials, see, e.g., Brinkman v.

Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451 (1918), it did not permit suits against

the state itself, Raudabaugh v. State, 96 Ohio St. 513, 518, 118 N.E. 102 (1917).

However, R.C. 2743.02—the general waiver of immunity that was enacted in 1975

as part of the Court of Claims Act, see Reynolds v. State, Div. of Parole &

Community Servs., 14 Ohio St.3d 68, 471 N.E.2d 776 (1984)—now allows persons

who were imprisoned to bring false-imprisonment actions against the state. Bennett

at 110. But the elements of a false-imprisonment claim differ from the elements of

6

January Term, 2022

a wrongful-imprisonment claim; they include (1) the expiration of a lawful term of

confinement, (2) intentional confinement after the expiration, and (3) knowledge

that the privilege initially justifying confinement no longer exists. Brandon v. Ohio

Dept. of Rehab. & Corr., 10th Dist. Franklin No. 20AP-211, 2021-Ohio-418, ¶ 17,

citing Washington v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 19AP-830,

2020-Ohio-3385, ¶ 22. For example, an action against the state for false

imprisonment may be based on the state’s failure to comply with statutes

controlling the release of a prisoner at the end of a prison term. Bennett at 110.

{¶ 13} In contrast, the underlying purpose of R.C. 2743.48 is to “provid[e]

compensation to innocent persons who have been wrongfully convicted and

incarcerated for a felony.” Bennett at 110. And unlike an action for wrongful

imprisonment, an action for false imprisonment does not turn on a plaintiff’s

innocence, see Brinkman at 174.

{¶ 14} A wrongfully imprisoned person could not bring an action against

the state at common law, because the state enjoyed sovereign immunity. See

Walden v. State, 47 Ohio St.3d 47, 53, 547 N.E.2d 962 (1989). And unlike the

false-imprisonment tort, the wrongful-imprisonment statute requires that plaintiffs

bring wrongful-imprisonment claims against the state for damages, not state

officials. See R.C. 2743.48(B)(2).

{¶ 15} This court has recognized that the first step of the wrongful-

imprisonment statute—being declared a wrongfully imprisoned individual in the

court of common pleas—“has no parallel in the ancient dual system of law and

equity.” Walden at 53; see also Renee v. Sanders, 160 Ohio St. 279, 282, 116

N.E.2d 420 (1953) (“[Declaratory-judgment actions] did not exist prior to the

adoption of the Ohio Constitution, and consequently it is manifest that there was no

right to trial by jury in such actions prior to the adoption of the Constitution”).

{¶ 16} Moreover, we have characterized a wrongful-imprisonment action

under R.C. 2473.48 as a special proceeding. State ex rel. O’Malley v. Russo, 156

7

SUPREME COURT OF OHIO

Ohio St.3d 548, 2019-Ohio-1698, 130 N.E.3d 256, ¶ 21. We have noted that “[a]

‘special proceeding’ is one ‘that is specially created by statute and that prior to 1853

was not denoted as an action at law or a suit in equity.’ ” Id., quoting R.C.

2505.02(A)(2). This court has held that Article I, Section 5 of the Ohio Constitution

does not confer a right to a jury trial in a workers’ compensation appeal permitted

by R.C. 4123.512, although there is a right under the statute to a jury trial, because

a workers’ compensation claim is not sufficiently similar to any cause of action

recognized at common law. Arrington, 109 Ohio St.3d 539, 2006-Ohio-3257, 849

N.E.2d 1004, at ¶ 27; see also Hoops v. United Tel. Co. of Ohio, 50 Ohio St.3d 97,

100-101, 553 N.E.2d 252 (1990) (there is no right to a jury trial under the Ohio

Constitution in a claim brought under the age-discrimination statute, because the

statute created a new civil right for which no common-law action had provided

relief). Finally, this court has explicitly noted that the wrongful-imprisonment

statute supplements the false-imprisonment tort to allow recovery in cases when

recovery was not available before. Bennett, 60 Ohio St.3d at 111, 573 N.E.2 633.

We have thus recognized that R.C. 2743.48 created a new right without a common-

law analogue.

{¶ 17} Accordingly, we hold that Article 1, Section 5 of the Ohio

Constitution does not preserve a right to a jury trial in a wrongful-imprisonment

action against the state, because the action did not exist at common law. For these

reasons, we affirm the judgment of the court of appeals.

Judgment affirmed.

O’CONNOR, C.J., and KENNEDY and FISCHER, JJ., concur.

DEWINE, J., concurs, with an opinion joined by KENNEDY and FISCHER, JJ.

DONNELLY, J., dissents, with an opinion joined by BRUNNER, J.

_________________

8

January Term, 2022

DEWINE, J., concurring.

{¶ 18} The majority opinion correctly concludes that the Ohio

Constitution’s jury trial right does not attach to a wrongful imprisonment action

brought against the state. The Ohio Constitution codified a preexisting right to a

jury trial and, as the majority explains, there was nothing equivalent to an R.C.

2743.48 wrongful imprisonment claim available at common law.

{¶ 19} I write separately to add a few points to the majority opinion’s

analysis. First, I explain that in addition to failing because of the lack of a historical

analogue, the claim that there is a jury trial right here also fails because it is

inconsistent with the state’s waiver of sovereign immunity. Second, I supplement

the majority opinion’s analysis of the lack of historical analogues to the wrongful

imprisonment action by explaining that prior to the enactment of R.C. 2743.48, the

remedy for wrongful imprisonment came not through a lawsuit but by the passage

of special legislation.

The state’s waiver of sovereign immunity is limited and does not include a right

to a jury trial

{¶ 20} At common law, the state, as sovereign, could not be sued without

its consent. Raudabaugh v. State, 96 Ohio St. 513, 515, 118 N.E. 102 (1917).

Indeed, “[t]he immunity of a truly independent sovereign from suit in its own courts

has been enjoyed as a matter of absolute right for centuries.” Nevada v. Hall, 440

U.S. 410, 414, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979), overruled on other grounds

by Franchise Tax Bd. of California v. Hyatt, ___ U.S. ___, 139 S.Ct. 1485, 203

L.Ed.2d 768 (2019). Thus, “[o]nly the sovereign’s own consent could qualify the

absolute character of that immunity.” Id.

{¶ 21} The Ohio Constitution is in line with this historical understanding of

sovereignty. It provides that “[s]uits may be brought against the state, in such

courts and in such manner, as may be provided by law.” Ohio Constitution, Article

I, Section 16. Adopted in 1912, Section 16 constitutionalizes the common-law

9

SUPREME COURT OF OHIO

precept that the state is absolutely immune from suits brought by individuals, unless

it consents to be sued—that is, unless the right to sue the state “is provided by law.”

Before Section 16, the state was “not capable of being made a party defendant.”

Miers v. Zanesville & Maysville Turnpike Co., 11 Ohio 273, 274 (1842).

{¶ 22} The state waives sovereign immunity “by express power conferred

by statute, and in the manner so expressed.” See Hunter v. Mercer Cty. Commrs.,

10 Ohio St. 515, 520 (1860). Thus, when a state chooses to waive its immunity, it

“may prescribe the terms and conditions on which it consents to be sued, and the

manner in which the suit shall be conducted.” Beers v. Arkansas, 61 U.S. 527, 15

L.Ed. 991 (1857); see also Raudabaugh at 515.

{¶ 23} One example of such a waiver comes from the Court of Claims Act,

R.C. 2743.01 et seq. Under the act, “[t]he state hereby waives its immunity from

liability, * * * and consents to be sued, and have its liability determined, in the court

of claims” for certain claims, R.C. 2743.02(A)(1). But the waiver is partial: it is

expressly “subject to the limitations set forth in this chapter,” id.; see Scot Lad

Foods, Inc. v. Secy. of State, 66 Ohio St.2d 1, 11-12, 418 N.E.2d 1368 (1981). One

of those limitations is that “civil action[s] against the state shall be heard and

determined by a single judge,” R.C. 2743.03(C)(1), not by a jury, R.C. 2743.11.

Accordingly, the constitutional right to a jury trial never attaches in a proceeding

commenced against the state in the court of claims. See R.C. 2743.11; accord

McElrath v. United States, 102 U.S. 426, 440, 26 L.Ed. 189 (1880) (no jury trial

right in federal court of claims); United States v. Sherwood, 312 U.S. 584, 587, 61

S.Ct. 767, 85 L.Ed. 1058 (1941) (same).

{¶ 24} The General Assembly waived sovereign immunity again in 1986

when it “ ‘authorize[d] civil actions against the state, for specified monetary

amounts, in the Court of Claims by certain wrongfully imprisoned individuals.’ ”

Walden v. State, 47 Ohio St.3d 47, 49, 547 N.E.2d 962 (1989), quoting Sub.H.B.

No. 609, 141 Ohio Laws, Part III, 5351. The wrongful imprisonment statutes

10

January Term, 2022

created a “two-step process.” Id. First, the plaintiff must “be declared a wrongfully

imprisoned individual in the court of common pleas.” R.C. 2743.48(B)(1). If the

court declares the plaintiff wrongfully imprisoned at step one, then the plaintiff at

step two “may file a civil action against the state, in the court of claims, to recover

a sum of money.” R.C. 2743.48(D).

{¶ 25} This case pertains to step one. There, the court of common pleas

“has exclusive, original jurisdiction to hear and determine” a wrongful-

imprisonment action. R.C. 2305.02. The state’s waiver of immunity does not go

so far as to give the plaintiff a jury trial right. Rather, at step one, it is for the court

of common pleas, not a jury, to “determine[] that a person is a wrongfully

imprisoned individual.” R.C. 2743.48(B)(2).

{¶ 26} McClain’s contention that he is entitled to a jury trial contradicts the

“manner” that the General Assembly has “provided by law” for wrongful

imprisonment actions to proceed. Ohio Constitution, Article I, Section 16. Thus,

even if McClain proved that at common law one could sue an individual defendant

for wrongful imprisonment type claims, it would transgress the Constitution to

provide a jury trial right against the state when the General Assembly has not

waived sovereign immunity. Raudabaugh, 96 Ohio St. at 515, 118 N.E. 102.

R.C. 2743.48 creates a special proceeding with no common-law analogue

{¶ 27} In addition to failing because it is inconsistent with the state’s limited

waiver of sovereign immunity, McClain’s claim fails because there was no judicial

action comparable to wrongful imprisonment available at common law.

{¶ 28} The Ohio Constitution speaks of “[t]he right of trial by jury.” Article

I, Section 5. By referring to “the right,” it presupposes “a right then known and

established” at “the time of the framing” of the Ohio Constitution, Rutherford v.

M’Faddon (1807), Pollack, Ohio Unreported Judicial Decisions Prior to 1823, Part

II, 71, 78 (1952), available at 2001-Ohio-56; see also District of Columbia v.

Heller, 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (discussing the

11

SUPREME COURT OF OHIO

preexisting right to keep and bear arms). “That guaranty only preserves the right

of trial by jury in cases where under the principles of the common law it existed

previously to the adoption of the Constitution.” Belding v. State ex rel. Heifner,

121 Ohio St. 393, 396, 169 N.E. 301 (1929).

{¶ 29} The majority opinion properly characterizes the type of suit that

McClain has commenced as a “special proceeding”—one that “is specially created

by statute and that prior to 1853 was not denoted as an action at law or a suit in

equity.” R.C. 2505.02(A)(2); see majority opinion, ¶ 16, citing State ex rel.

O’Malley v. Russo, 156 Ohio St.3d 548, 2019-Ohio-1698, 130 N.E.3d 256, ¶ 21.

As the majority opinion explains, there was no comparable action available prior to

R.C. 2743.48’s enactment. Indeed, the state was previously immune from suits for

wrongful imprisonment (absent waiver in a particular case).

{¶ 30} The 1986 codification of the wrongful-imprisonment action

“replac[ed] the former practice of compensating wrongfully imprisoned persons by

ad hoc moral claims legislation.” Walden, 47 Ohio St.3d at 49, 547 N.E.2d 962.

That is, prior to the advent of R.C. 2743.48, the legislature, not the courts, fashioned

the remedy for wrongful imprisonment. This court summarized, and sanctioned,

the practice nearly a century ago:

Where the state inflicts an injury upon an individual, for the

reparation of which no law exists, and the facts incident thereto are

not in dispute, and the Legislature finds that a moral obligation rests

upon the state to compensate the injured party for the damages

sustained, the Legislature has full authority to provide, by special

enactment, for the appropriation of public money to meet such moral

obligation * * *.

Spitzig v. State, 119 Ohio St. 117, 162 N.E. 394, syllabus (1928).

12

January Term, 2022

{¶ 31} Special bills could grant individualized permission to bring a claim

against the state in a court of law or order direct compensation of a sum certain for

torts committed by the state. Thomas W. Kahle & Stephen R. Schmidt, Claims

against the State of Ohio: Sovereign Immunity, the Sundry Claims Board and the

Proposed Court of Claims Act, 35 Ohio St.L.J. 462, 469 (1974). As an example of

the former, the General Assembly passed a bill that read: “Morris Seely * * * is

hereby authorized and empowered to institute, commence and prosecute an

amicable suit * * * in the court of common pleas * * * against the state of Ohio for

the recovery of any and all such damages which he may have sustained by reason

of the nonperformance upon the part of the state of any contract entered into

* * * .” An Act for the relief of Morris Seely, 37 Ohio Laws 220 (1839); see also

Seely v. State, 11 Ohio 501 (1842). Such enactments functioned as individualized

waivers of immunity from suits commenced against the state. Other times, the

General Assembly used its appropriation power directly, see Ohio Constitution,

Article II, Section 22, such as when it authorized the state treasurer “to pay Caleb

Atwater the sum of [$534.96] out of any moneys in the treasury not otherwise

appropriated,” An Act for the relief of Caleb Atwater, 36 Ohio Laws 305 (1838).

{¶ 32} Perhaps seeing a need to streamline this ad hoc legislative practice,

the General Assembly in 1917 created the Sundry Claims Board. H.B. 32, 107

Ohio Law 532. The board was “empowered to receive original papers representing

claims against the state of Ohio for the payment of which no monies have been

appropriated,” to “carefully investigate[]” such claims, and to tender its “approval

or disapproval” to “the chairman of the finance committee of the house of

representatives of the next general assembly.” Id. In effect, approval of the Sundry

Claims Board amounted to its recommendation that the legislature appropriate

funds to remedy wrongs committed by the state.

{¶ 33} On rare occasions, victims of wrongful imprisonment received

compensation through appropriations bills passed at the behest of the Sundry

13

SUPREME COURT OF OHIO

Claims Board. In one 1959 “sundry appropriations” bill, the state awarded Joseph

Cole Jr. $5,000 “for damages sustained as the result of his wrongful arrest and

imprisonment,” Roy Donley $2,400 “for wrongful incarceration” after someone

else confessed to the crime, and Aaron Morgan $5,000 “for false incarceration”

after a writ of habeas corpus issued for his release. Am.H.B. No. 1125, 128 Ohio

Laws Supp. 127, 141. And in a 1971 “sundry appropriation,” the state awarded

Charles Bailey $30,000 after he served approximately 10 years of “unlawful

incarceration.” Am.S.B. No. 562, 134 Ohio Laws 520, 525.

{¶ 34} But perceived defects in the sundry-claims process spelled the end

of the board and gave rise to the Court of Claims in its stead. Ohio Court of Claims,

History of the Court, https://ohiocourtofclaims.gov/about-us/history-of-the-court-

2/ (accessed Dec. 26, 2022) [https://perma.cc/Q63H-ZTQL]. Although the Court

of Claims Act waived the state’s immunity from lawsuits in that court, “the Act

d[id] not create new rights or causes of action.” Reese v. Ohio State Univ. Hosps.,

6 Ohio St.3d 162, 163, 451 N.E.2d 1196 (1983). With respect to wrongful

imprisonment, the General Assembly had yet to create a cause of action in the court

of claims (thus retaining immunity from those suits). See Tymcio v. State, 52 Ohio

App.2d 298, 369 N.E.2d 1063 (10th Dist.1977). So prior to R.C. 2743.48, only the

political process of individualized appropriations could make wrongful-

imprisonment victims whole. See Johns v. State, 67 Ohio St.2d 325, 423 N.E.2d

863 (1981), paragraph one of the syllabus (“A defendant has no common-law claim

against the state for damages after he has obtained his release” from prison “for

violation of his constitutional rights”).

{¶ 35} In the case of Frank Johns, after a writ of habeas corpus was issued

ordering his release from prison, see Johns v. Perini, 462 F.2d 1308 (6th Cir.1972)

(ineffective assistance of counsel), he persuaded the General Assembly to pass a

special bill on his behalf, Am.Sub.S.B. No. 221, Section 41, 137 Ohio Laws Supp.

172, 434 (1977). That legislation “authorized [Johns] to file a claim for damages

14

January Term, 2022

in the Court of Claims for unlawful incarceration,” among other things. Id. The

bill tasked the court of claims with determining whether “Johns ha[d] been

unlawfully incarcerated by the State of Ohio,” and if so, to compensate him. Id.

Although litigation tactics ultimately cost Johns any chance of compensation, Johns

at 329, the legislation granting him special authority shows that the first step to

earning relief from the state for wrongful imprisonment was obtaining authorization

to sue by special bill—itself a limited waiver of sovereign immunity.

{¶ 36} Similarly, when “[Leonard] O’Neil filed suit in the Court of Claims

seeking to recover damages for his unlawful incarceration,” the court turned him

away. O’Neil v. State, 13 Ohio App.3d 320, 321, 469 N.E.2d 1010 (10th

Dist.1984). But the General Assembly subsequently passed a bill authorizing

“O’Neil to ‘file a claim in the Court of Claims against the State of Ohio for * * *

damages that allegedly resulted from an erroneous imprisonment.’ ” Id., quoting

Am.Sub.S.B. No. 123, Section 2, 139 Ohio Laws, Part I, 1896, 1897 (1981).

Equipped with admission into court, O’Neil returned to the court of claims and

received compensation.

{¶ 37} This history makes clear that McClain’s wrongful imprisonment

claim fails the test for the attachment of the constitutional right to a trial by jury.

The right to seek compensation for wrongful imprisonment “is specially created

by” R.C. 2743.48 (or a few special bills that preceded it), and “prior to 1853 was

not denoted as an action at law or a suit in equity,” R.C. 2505.02(A)(2); accord

Spitzig, 119 Ohio St. 117, 162 N.E. 394, at syllabus (special bills permitted only if

“no law exists”). Indeed, nearly a century ago, we characterized as “well

recognized” the principle that “many special proceedings for the enforcement of a

moral duty, where the payment of money is the ultimate relief granted, do[] not

entitle the parties to a jury trial.” Belding, 121 Ohio St. at 397, 169 N.E. 301.

{¶ 38} Courts have long played a role in freeing wrongfully imprisoned

individuals through the writ of habeas corpus. In re Collier, 6 Ohio St. 55, 59

15

SUPREME COURT OF OHIO

(1856). But prior to R.C. 2743.48’s enactment, compensating victims of wrongful

imprisonment had been a legislative prerogative. And courts were involved in that

process only to the extent that a special bill prescribed their involvement. But

never has a jury assessed the state’s liability and damages.

{¶ 39} McClain analogizes his claim to the common-law tort of false

imprisonment, for which a jury did traditionally play a role in assessing liability

and damages. See Arrington v. DaimlerChrysler Corp., 109 Ohio St.3d 539, 2006-

Ohio-3257, 849 N.E.2d 1004, ¶ 24-25. But “an action for false imprisonment

cannot be maintained where the wrong complained of is imprisonment in

accordance with the judgment or order of a court.” Diehl v. Friester, 37 Ohio St.

473, 475 (1882). That defeats the analogy because a “wrongfully imprisoned

individual” must have been “sentenced to” a “term of imprisonment” after being

“found guilty.” R.C. 2743.48(A)(3). False imprisonment and wrongful

imprisonment are mutually exclusive, not analogous.

Conclusion

{¶ 40} McClain is attempting to require the state to defend itself before a

jury in a civil case. Trial by jury, however, is not the “manner” in which the state

has agreed by law to be sued for wrongful imprisonment. And the constitutional

right to a jury trial, Ohio Constitution, Article I, Section 5, does not attach to

wrongful-imprisonment actions in any event because prior to R.C. 2743.48, the

General Assembly, not the judiciary, remedied harms suffered from wrongful

imprisonment. For these reasons, and the ones set forth in the majority opinion, the

judgment of the First District Court of Appeals is properly affirmed.

KENNEDY and FISCHER, JJ., concur in the foregoing opinion.

_________________

DONNELLY, J., dissenting.

{¶ 41} I respectfully dissent for the reasons stated in Judge Bergeron’s well-

researched and well-reasoned dissenting opinion in the First District Court of

16

January Term, 2022

Appeals. 2021-Ohio-1423, 171 N.E.3d 1228, ¶ 32-70 (Bergeron, J., dissenting). I

would hold that a constitutional right to a jury trial exists in an action under R.C.

2743.48 to be declared a wrongfully imprisoned person. I would therefore reverse

the judgment of the court of appeals and remand the cause to the trial court for a

jury trial.

BRUNNER, J., concurs in the foregoing opinion.

_________________

Dave Yost, Attorney General, and Benjamin M. Flowers, Solicitor General,

for appellee.

Koenig & Owen, L.L.C., Charles A. Koenig, and James D. Owen, for

appellant.

_________________

17