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No Tort Victim, No Tortfeasor,
No Tort Reform Law in Ohio

Kurt Tunnell
Anne Marie Sferra

This article was prepared in September 1999, shortly after the Ohio Supreme Court decision in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, and provides an indepth analysis of the court decision overturning tort reform legislation in Ohio.

On August 16, 1999, approximately two and a half years after its effective date of January 27, 1997, Amended Substitute House Bill 350 ("H.B. 350"), Ohio’s comprehensive tort reform legislation1, was dealt a swift and deadly blow by a 4-3 majority of the Ohio Supreme Court in State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, a case in which the jurisdiction of the Court was hotly contested. In a unique decision2 known as much for its hostile tone as for its demise of tort reform in Ohio, the 4-3 majority found H.B. 350 unconstitutional in toto.

In sum, the majority held that (1) the Ohio Academy of Trial Lawyers and the Ohio AFL-CIO had standing to pursue this original action in the Ohio Supreme Court, (2) H.B. 350 violated the doctrine of separation of powers by usurping judicial authority, and (3) H.B. 350 violated the single-subject rule of the Ohio Constitution. In contrast, each of the dissenting justices would have denied jurisdiction and granted the motions to dismiss, which were never overtly addressed by the majority. In its apparent "zeal to invalidate all aspects of the comprehensive tort reform legislation," the Court appears to have opened the door wide for original actions in the Supreme Court challenging both prospective and existing legislative enactments. At the same time, while purporting to protect the doctrine of separation of powers, the Court appears to have slammed the door on possible future legislative enactments, thereby violating the very doctrine it sought to protect. Although the impact of Sheward remains to be seen, its reach appears to go far beyond tort reform, making every legislative enactment (both existing and prospective) the potential target of an original action in the Ohio Supreme Court.

To understand the sweeping scope and effect of Sheward, it is necessary to be familiar with the procedural history of the case. Sheward is not the typical tort case involving an injured plaintiff who files a lawsuit against a defendant accused of causing the plaintiff’s harm. In fact, there is no named tort victim in Sheward and there is no allegation that the respondents have engaged in any wrongdoing. Rather, ten months after H.B. 350 became the law in Ohio, the Sheward case was brought as an original action in the Ohio Supreme Court by the Ohio Academy of Trial Lawyers, its executive director Richard Mason, the Ohio AFL-CIO and its president William Burga (collectively referred to herein as "Relators"), seeking the extraordinary writs of mandamus and prohibition against six Ohio common pleas court judges in their official capacities.3 Despite the fact that the Relators did not have a true dispute or controversy with the respondent judges, the Relators sought: (1) a writ of prohibition preventing Ohio’s lower courts from implementing those provisions in H.B. 350 that allegedly intruded on judicial authority, (2) a writ of mandamus compelling Ohio’s lower courts to apply pre-H.B. 350 statutory and common law, rules of procedure and rules of evidence, and (3) an order declaring that Am. Sub. H.B. 350 violates the Ohio Constitution and enjoining its implementation. Sheward at 452. The Ohio Attorney General was permitted to intervene. (Collectively, the respondent judges and the Attorney General are referred to herein as "Respondents.")

Remarkably, Ohio’s comprehensive tort reform bill was struck down in its entirety in an action that did not include a tort victim or a tortfeasor.

In motions to dismiss (which motions were never ruled upon) and in their merit briefs, Respondents contended that "this action is an inappropriate vehicle for determining the constitutionality of Am. Sub. H.B. 350, as it involves the wrong parties seeking the wrong relief in the wrong court." Sheward at 467. Thus, one of the threshold issues was the question of standing. Respondents argued that the Relators "are not the proper parties to raise constitutional questions because they have failed to show the necessary personal injury to establish standing to sue in a court in Ohio." Id. In response, Relators asserted that "Ohio follows federal precedent on standing, in which the sine qua non of standing is a concrete injury." Reply Brief of Relators, p. 1. The Ohio Academy of Trial Lawyers and their members claimed that they suffered direct financial losses (i.e., lost membership dues and income) sufficient to establish the "concrete injury" necessary to satisfy the standing requirement in Ohio and that Burga and Mason have standing to sue as citizens and taxpayers. Reply Brief of Relators, pp. 1-2. Recognizing that "[v]irtually every legislative action is bound to affect at least some attorneys who practice in an area of law related to the subject of the legislation," the Court expressly rejected the doctrine of lawyer standing and held that the action should not be allowed as a private action. Sheward at 473. Any glimmer of hope that this statement may have given to Respondents quickly vanished (three paragraphs later) when the Court proceeded to hold that "where the object of an action in mandamus and/or prohibition is to procure the enforcement or protection of a public right, the relator need not show any legal or special individual interest in the result, it being sufficient that relator is an Ohio citizen and, as such, interested in the execution of the laws of this state." Sheward at 475, syllabus, paragraph 1 (emphasis added).

In reaching the conclusion that Relators had standing to pursue this action, the Court rejected Relators’ own assertion that Ohio follows federal precedent on standing 4 and dispensed with the "concrete injury" standard urged by Relators. Instead, the Court premised its finding of standing on authority and principles that were not even raised by the Relators. Relying heavily on cases from the late 1800’s and on cases involving the election/ appointment of public officials, the Court drew a distinction between public and private rights and stated that:

This court has long taken the position that when the issues sought to be litigated are of great importance and interest to the public, they may be resolved in a form of action that involves no rights or obligations peculiar to named parties.

Sheward at 471. The majority, viewing H.B. 350 as a deliberate attempt by the General Assembly to usurp the judiciary’s power, concluded that the "people’s interest in keeping the judicial power of the state in those in whom they vested it" rises to the level of a public right. Sheward at 474.

Thus, in finding that Relators had standing, the Court relied on (or, per the dissent, created) an exception to the general rule that a private litigant must show that s/he has suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the public in general, that the law in question has caused the injury, and that the relief requested will redress the injury. This exception permits standing when "the issues sought to be litigated are of great importance and interest to the public" even if the action "involves no rights or obligations peculiar to named parties." Sheward at 471.

This new or expanded "public right" theory of standing appears to create an exception so large that it not only swallows but decimates the rule. As Justice Lundberg Stratton put it, Sheward "creates a whole new arena" in which "advisory opinions on the constitutionality of a statute challenged by a special interest group" are allowed to be issued by the Ohio Supreme Court. This problem is compounded by the fact that this "public right" theory of standing is included in the syllabus of Sheward.5 There is no doubt the majority recognized that its decision on standing, with no discernible guidelines, could be so broadly construed as to eliminate well-established limitations previously imposed on litigants seeking to invoke the original jurisdiction of the Court. Indeed, the concurring opinion of Justice Pfeifer suggests that lower courts and litigants need not be concerned about application of the rule as it will be decided by the Court on a case-by-case basis.6 It remains to be seen whether the Court’s decision will transform it from a court of last resort into a court of first resort.7

In the ongoing battle between state courts and legislatures regarding tort reform, a fundamental question has been who should make tort law – courts or legislatures?8In Ohio, the battle between the Court and the legislature unfortunately escalated to a war.9 The tension between the role of the General Assembly and the role of the judiciary is the epicenter of the Sheward decision.

At the outset of its decision in Sheward, the Court acknowledged that it is the legislative branch’s prerogative to make policy choices, that the Court is not to question the policy choices made by the legislature or the wisdom underlying such statutes,10 and that "[t]he only judicial inquiry into the constitutionality of a statute involves the question of legislative power, not legislative wisdom." Sheward at 456 (citations omitted). Purportedly based on this limited inquiry, and despite its recognition that the Court "has nothing to do with the policy or wisdom of a statute," the Court went on to hold that "Am.Sub. H.B. 350 usurps judicial power in violation of the Ohio constitutional doctrine of separation of powers11 and, therefore, is unconstitutional." Sheward, syllabus, paragraph 2.

In this regard, the majority declared that:

Am.Sub. H.B. 350 is no ordinary piece of legislation that happens to inadvertently cross the boundaries of legislative authority. The General Assembly has circumvented our mandates, while attempting to establish itself as the final arbiter of the validity of its own legislation. It has boldly seized the power of constitutional adjudication, appropriated the authority to establish rules of court and overrule judicial declarations of unconstitutionality, and under the thinly veiled guise of declaring ‘public policy,’ establishing ‘jurisdiction’ and enacting ‘substantive’ law, forbade the courts the province of judicial review.

* * *

Such a threat to judicial independence is reminiscent of a bygone era of legislative omnipotence existing prior to the adoption of the [Ohio] Constitution of 1851.

Sheward at 492.

The Court’s determination that H.B. 350 usurps judicial power is premised on its review of several substantive provisions of H.B. 35012 and the uncodified law included in H.B. 350 which, among other things, sets forth the General Assembly's policy reasons and rationale. Each of the substantive provisions reviewed addressed a topic that had been the subject of a previous Ohio Supreme Court decision. With respect to these substantive provisions, the majority concluded that it had either already determined that a statute on the same topic was unconstitutional and likewise found the new statute to be unconstitutional, or the statute in question ran afoul of Article IV, Section 5(B) of the Ohio Constitution13 by setting forth a rule governing practice and procedure in Ohio’s courts. The majority viewed the uncodified law as a direct attack on its power to be the final arbiter of constitutionality. The gist of the majority’s decision is that it is impermissible for the General Assembly to enact legislation similar to legislation previously found to be unconstitutional (even when the General Assembly attempts to "cure" the previous constitutional defect) or to enact legislation which arguably may conflict with the Court's authority to prescribe rules of practice and procedure.

In contrast to the majority, the dissenting justices believe that the separation of powers doctrine was not violated by the General Assembly in enacting H.B. 350, but, arguably, by the Court itself in accepting jurisdiction and deciding this case "in its zeal to invalidate all aspects of the comprehensive tort reform legislation." Sheward at 518, Moyer, C.J., dissenting opinion. The dissenting justices agreed with the majority that it is beyond question that the Court has the authority to declare statutes unconstitutional. However, the dissenting justices do not believe that adopting a statute similar to one previously found to be unconstitutional is a violation of the doctrine of separation of powers14 or that the Court could control future legislative activity of the General Assembly.15

Although it is desirable that a legislature make a good-faith effort to enact law that is constitutional, the General Assembly has the right to enact legislation even if the constitutionality of that legislation is questionable. . . . [T]his court does not have authority to order the General Assembly to refrain from enacting a similar statute [to one previously held unconstitutional]. Our precedent recognizes this conclusion. The legislative branch of government is free to act upon its own judgment of its constitutional powers. We have not even advisory jurisdiction to render opinions upon mooted questions about constitutional limitations of the legislative function . . . . The legislature having delegated authority, prescribed and limited by the constitution, may exceed its authority by promulgating a law in conflict with the constitution.

Sheward at 528, Moyer, C.J., dissenting opinion (citations omitted).

With respect to the uncodified law included in H.B. 350, the dissent did not view this language in "the most negative light" as did the majority. See Sheward at 518, Moyer, C.J., dissenting opinion. Rather, the dissent found that the General Assembly’s inclusion of statements of intent in uncodified law is consistent with the General Assembly’s duty and does not in any way usurp judicial authority.

While the statements of intent in Am.Sub. H.B. 350 obviously have raised the ire of the majority, those statements in no way affect the duty of the common pleas courts to follow the precedent established by this court or the substantive power of this court to follow, or reject, its precedents. The enactment of a statute similar or even identical, to one previously found to be unconstitutional in no way affects the power of the judiciary to strike down the new statute as well.

* * * * *

The majority confuses determination of constitutionality with expression of opinion as to constitutionality. The General Assembly has not deemed its constitutional interpretation to be superior to that of the courts, and its statements of intent in Am.Sub.H.B. 350 simply are not binding on the judiciary.

Sheward at 529, Moyer, C.J., dissenting opinion.

In sum, the majority disregards, while the dissent recognizes, that it is appropriate and necessary for the General Assembly, as the elected representatives of the people, to express views upon matters of public importance. Moreover, it is often essential for courts to consider the General Assembly’s intent.16 Uncodified law serves as one way for the legislature to express its views and intent. Far from being an attack on the judicial branch, the uncodified law was intended to provide information (to the judicial branch and others) with respect to the intent and rationale of the General Assembly in enacting H.B. 350. The uncodified law was included not only to serve an explanatory purpose, but also in an effort to address concerns previously raised by the Court when interpreting or considering the constitutionality of statutes.

In its "zeal to invalidate" H.B. 350, the majority focused on the constitutionality of H.B. 350, while the determinative issue (as raised by the Respondents) was "whether it is appropriate for this court to examine constitutional challenges to Am.Sub. H.B. 350 in the context of an extraordinary action rather than in the ordinary course of law." Sheward at 517, Moyer, J., dissenting opinion. Thus, the real issue in the case was whether the Court should even address the constitutionality of H.B. 350.

The procedural posture of the case is significant in understanding the stark differences between the majority and the dissent on this issue.

Relators invoked the original jurisdiction of the Court seeking a writ of mandamus and prohibition against several common pleas court judges, but not with respect to any particular cases. Respondents argued that despite Relators’ characterization of this action as one seeking extraordinary relief, it was really seeking declaratory relief -- a declaration that H.B. 350 is unconstitutional -- and injunctive relief.17 enjoining the lower courts in Ohio from applying H.B. 350. Until Sheward, it was well recognized that the Ohio Supreme Court’s original jurisdiction did not include the power to entertain actions for injunctive or declaratory relief. State ex. rel. Governor v. Taft (1994), 71 Ohio St.3d 1; State ex rel. Ohio Mechanical Contracting Industry, Inc. v. Cleveland (1992), 65 Ohio St.3d 1210; State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, syllabus, paragraph four. The dissenting justices determined that Relators were actually seeking a declaratory judgment that H.B. 350 was unconstitutional and an accompanying injunctive order, neither of which fell within the court’s original jurisdiction. Notwithstanding this determination, the dissenting justices continued their analysis as if the Court’s original jurisdiction had been properly invoked.

Because Relators sought the extraordinary writs of mandamus and prohibition, they were required to meet the established legal principles governing the exercise of the Court’s jurisdiction in mandamus18 and prohibition.19 The majority and dissent approached these legal principles from different directions.

In broad terms, the critical differences between the majority and dissent relate to who determines whether H.B. 350 is constitutional and when this determination is to be made (i.e. by the trial courts of Ohio in the first instance, with appeals through the courts of appeal and perhaps to the Ohio Supreme Court or by the Supreme Court in the first instance without the benefit of a record or a reasoned decision by the lower courts). The majority concluded that the Court was to first determine whether H.B. 350 was unconstitutional20, and then, armed with that conclusion, consider whether Relators met the criteria for the extraordinary writs they sought. Sheward at 509 ("[i]t is necessary to consider whether Am.Sub. H.B. 350 is unconstitutional in order to determine whether [respondent judges] have a clear legal duty to follow prior law.") The Court saw no reason to allow the various provisions of H.B. 350 to be decided in the ordinary course of the law on a case-by-case basis. The dissenting justices, on the other hand, found it wholly inappropriate to consider the constitutionality of H.B. 350 (or any of its provisions) in the original action before it and applied the criteria for mandamus and prohibition without first considering the constitutionality of H.B. 350. The dissenting justices would have allowed Ohio’s trial courts, in the first instance, to determine the constitutionality of H.B. 350, followed by appellate review and ultimate review by the Ohio Supreme Court.

The reasoning underlying the dissenting opinion is well-grounded. Under Ohio law, although mandamus may be used to order a court to make a ruling if it has failed to do so, it should never be used to direct a court to rule in any particular way. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118. In other words, mandamus may be used to ensure that judges carry out their duty to proceed to final judgment, but not to control the outcome or correctness of rulings.21 Similarly, prohibition "does not lie to prevent a subordinate court from deciding erroneously or from enforcing an erroneous judgment in a case in which it has a right to adjudicate. In all cases the aggrieved party must pursue the ordinary remedies for the correction of errors." State ex rel. Garrison v. Brough (1916), 94 Ohio St. 115. In Sheward, Relators neither alleged nor showed that the respondent judges had failed to perform their duties.22 Accordingly, the dissenting justices determined that Relators (and the majority) were not seeking to ensure that the lower courts proceeded to judgment, but were instead inappropriately seeking to ensure that the lower courts made specific rulings (i.e., that H.B. 350 is unconstitutional). Sheward at 522, Moyer, C.J., dissenting opinion. Moreover, Relators did not present any evidence or otherwise show that the respondent judges would not adhere to their duties (i.e., were about to exercise judicial power unauthorized by law) if the writs they sought were denied by the Supreme Court. Sheward at 524, Moyer, C.J., dissenting opinion. Thus, Relators were improperly seeking the extraordinary remedy of prohibition to prevent "incorrect" rulings. Sheward at 524, Moyer, C.J., dissenting opinion, rather than permitting rulings on the constitutionality of H.B. 350 – correct or incorrect – to be reviewed on appeal.

On the other hand, the majority’s reasoning to justify exercising its original jurisdiction in mandamus and prohibition is rather circular, as pointed out in Chief Justice Moyer’s dissent:

The majority’s justification . . . is based upon the following circular reasoning: Am.Sub.H.B. 350 is unconstitutional because it encroaches upon judicial authority; therefore, relators have standing in mandamus and prohibition to assert that Am.Sub.H.B. 350 is unconstitutional because it encroaches upon judicial authority. Stated another way, the majority concludes that, since Am.Sub.H.B. 350 is unconstitutional, the trial courts of the state should be precluded from determining whether Am.Sub. H.B. 350 is unconstitutional.

After determining that H.B. 350 violates the doctrine of separation of powers, the majority held that H.B. 350 also violates the single subject rule (also referred to as the one-subject rule or provision) of the Ohio Constitution, which provides that "[n]o bill shall contain more than one subject, which shall be clearly expressed in its title." Ohio Const., Art. II, Section 15(D). The Court’s decision on the single-subject rule served as a "poison pill" effectively precluding appeal of the Court’s decision to the United States Supreme Court.23

Relying on precedent, the majority began its discussion by (1) stating that the purpose of the one subject rule is to prevent logrolling,24 (2) reiterating that "the one-subject provision is not directed at plurality but at disunity in subject matter"25 and (3) recognizing "the necessity of giving the General Assembly great latitude in enacting comprehensive legislation by not construing the one-subject provision so as to unnecessarily restrict the scope and operation of laws, or to multiply their number excessively, or to prevent legislation from embracing in one act all matters properly connected with one general subject." Sheward at 496 (quoting State ex rel. Dix v. Celeste (1984), 11 Ohio St.3d 141, 144). In addition, the majority stated that "every presumption in favor of the enactment’s validity should be indulged" and noted that although this provision has been invoked in hundreds of cases, "in only a handful of cases have the courts held an act to embrace more than one subject." Sheward at 496 (quoting Dix, supra).

Despite these statements, the majority disregarded the extensive history of H.B. 350 in the General Assembly (which belies any claim that logrolling occurred), focused on the number of titles, chapters and sections embraced by H.B. 350, and found the stated purpose of H.B. 350 – to make changes to laws pertaining to "tort and other civil actions" – to be "a ruse by which to connect blatantly unrelated topics." Sheward at 513. Noting that the Court is required "to invalidate a bill when a ‘manifestly gross and fraudulent violation’ of the one-subject rule has occurred," the majority found that such a violation occurred with H.B. 350. Sheward at 498.

Significantly, the Court then rejected Respondents’ arguments that provisions of the bill found to be unconstitutional should be severed and the remaining provisions allowed to stand. The Court acknowledged that when addressing a single-subject challenge, its own precedent permits it "to ascertain which subject is primary and which subject is an unrelated add-on" and sever the latter, but then quickly concluded that "[i]n the present case, it is not possible to make this kind of determination." Sheward at 500.

In a separate dissenting opinion, Justice Lundberg Stratton opined that H.B. 350 does not violate the single-subject rule as it encompasses only topics related to "tort reform" which is a diverse, but single, subject. Accordingly, while there is a plurality of subjects covered in H.B. 350, there is not disunity.26 To prove the point that all of the provisions included in H.B. 350 relate to tort actions, Justice Lundberg Stratton reviewed statutory provisions that the majority specifically referenced. Contrary to the majority’s conclusion that the subjects are unrelated, Justice Lundberg Stratton demonstrated that a brief review of the amendments to these provisions (as opposed to the subject or topic of the statute) relate to tort law. Sheward at 537, Lundberg Stratton, J., dissenting opinion. In addition, the dissenting justices indicated that the Court was required at least to attempt to sever the provisions of H.B. 350 that the majority believed had "no common purpose with the subject matter of tort reform," rather than simply pay lip service to its well established authority to sever. Had the majority attempted this task, it may have become apparent that there is no disunity.

The fundamental difference between the majority and dissenting opinions on the one-subject rule is that the dissent gives deference to the legislature in determining the breadth of H.B. 350, but the majority does not. In other words, while the dissent is perfectly comfortable allowing the legislature to enact comprehensive legislation pertaining to "tort and other civil actions," the majority believes that there must be limitations on the breadth of the subject that the General Assembly may address in a bill, but it provides no guidance to the General Assembly as to what these limitations should be. See Sheward at 514.

The difficulties created by the absence of guidelines to the General Assembly are increased by the seemingly unlimited reach of Sheward’s single-subject decision to all legislative enactments – existing and prospective. It is not inconceivable that Sheward will be the authority relied on to invalidate other comprehensive legislative enactments which are currently Ohio law.27 It is also likely that Sheward will unnecessarily impede future comprehensive legislative enactments and multiply excessively the number of bills considered by the General Assembly.

Conclusion

The Sheward decision stunned the legal community for many reasons including the Court’s expressed hostility toward the General Assembly. One of the most troubling aspects of the decision is that without giving any consideration at all to most of the provisions in the comprehensive tort reform bill, they were summarily rejected. While waiting to see the impact of Sheward on courts, litigants and the General Assembly, both proponents and opponents of tort reform will continue to marvel at how Ohio’s tort reform laws died in a case that did not even involve a tort victim, a tortfeasor or an alleged tort.

Footnotes: