Ohio Supreme Court: Retired Judges May Serve as
Private Judges Even If Never Elected to the Bench

Bridget A. Purdue Riddell
Bricker & Eckler LLP
July 2008

Full text of the Barnes decision

In a 5-2 decision, the Ohio Supreme Court recently held in Barnes v. Univ. Hosps. of Cleveland that a retired judge who was never elected judge but served by appointment of the Governor is nevertheless eligible to serve as a private judge under R.C. 2701.10.

Barnes involved a wrongful death claim stemming from the death of a mentally handicapped and epileptic patient left unattended during dialysis. At trial, the parties agreed to submit the dispute to a retired private judge for a jury trial, as authorized by R.C. 2701.10. The parties' agreement was approved by the judge initially assigned to the case.

At the beginning of the trial, the parties again confirmed on the record their consent to the private judge's authority and waived any challenge to that authority on appeal. The jury found in the plaintiff's favor, awarding compensatory and punitive damages in excess of $6 million.

On appeal to the Eighth District Court of Appeals, the defendant argued that the judgment was void because the private judge who presided over the trial had been appointed, rather than elected, to the bench, and thus failed to meet the qualifications of the of R.C. 2710.10. The court of appeals found that the private judge had authority to preside over the case, stating that R.C. 2701.10 does not differentiate between retired judges who were elected and those who were appointed.

The Supreme Court affirmed the Eighth District's ruling, holding that the presiding judge was eligible to serve as a private judge under R.C. 2701.10, even though he was never elected. In the majority opinion, Justice Lanzinger noted that although the definition of a "voluntarily retired judge" under Gov.Jud.R. VI(C)(2) includes only a judge "who was elected to and served on an Ohio court," the text of R.C. 2701.10 does not differentiate between appointed judges and elected judges concerning eligibility for private judging. Justice Lanzinger also noted that there was no evidence that the Legislature had any such restriction in mind while drafting R.C. 2701.10. The Court held, then, that both elected and appointed judges who have retired under Section 6 of Article IV, of the Ohio Constitution are eligible to serve as private judges.

The majority opinion was joined in its entirety by Chief Justice Moyer and Justices O'Connor and Cupp. Justice Pfeiffer concurred with the majority decision on the private judging issue. Justices O'Donnell and Stratton dissented from the decision on other grounds.

This decision is noteworthy because courts' dockets are often backlogged and litigants are often looking for alternative avenues to resolve their disputes. This decision increases the pool of private judges from which parties can choose to adjudicate their disputes in Ohio courts. It is clear that judges who were appointed to the bench, but never elected, may now be serve as private judges.