The Ohio Supreme Court has lost its way. It has become an arm of the insurance, business and medical communities. To run a successful campaign for the court one needs hundreds of thousands of dollars. Those interests groups are there to provide those kinds of funds. When one reviews the campaign finance reports available from the Secretary of State, contribution sources are plain. The main contributors are the businesses including the Chamber of Commerce, insurance companies, and doctors and other medical providers. The unspoken understanding is that when a case having one of their interests comes before the Court, the group will file an amicus brief telling the Court what that group wants.
The current court bends over backwards to accommodate their wants and desires, but before getting into specific cases one needs to review some history, before it is lost.
Before the enactment of the Modern Courts Amendment (Amended Article IV) to the Ohio Constitution, the practice of law had traps which drove practitioners and judges crazy. The problem arose in the distinction between substantive law and procedure. A simple example would be a court rule which required a pleading to be filed 14 days after a certain date, while a statute would specify 21 days. The issue would be which date was the correct date. The distinction can get more complicated in perfecting an appeal for example, as a statute might specify certain documents, while a rule of court might specify others. If one failed to file the correct documents, then the appeal would be dismissed.
To help eliminate this problem, two Republicans were instrumental in attempting to create a remedy. C. William O’Neil was the Chief Justice of the Ohio Supreme Court. Justice O’Neil had been governor and had served as Speaker of the House. Charles Kurfess was in the late 1960’s speaker of the Ohio House. The Ohio State Bar Association, the Ohio Judicial Conference and lawyer members of the legislature were champions of the Modern Courts Amendment which was placed on the ballot to amend the Ohio Constitution. In May 1968 by popular vote the “Modern Courts Amendment” was adopted in Ohio and gave us an amended Article IV of the Ohio Constitution.
Among the problems the amendment sought to cure was the dichotomy been substance and procedure.
Prior to this constitutional amendment, practice and procedure in Ohio have bene governed by statute. While the Ohio Practice Code has served the state long and well, it has become overly complicated and disorganized. The debate over whether the legislature or the judiciary should have jurisdiction in this matter is now settled. The rule-making authority is clearly vested in the Supreme Court. 49 Ohio State Law Journal at 829.
That was the change and it worked – at least for a while. It has been said that those who do not know history are bound to repeat it. We now have term limits with the result that elected officials in Columbus are mainly younger and are there for a short time figuratively speaking and have no sense of historical perspective. If they are lawyers they have not practiced for any length of time.
Let us know look at Havel v. Villa St. Jospeh, 131 Ohio St.3d 235, decided in February 2012. In Havel the Court had to decide whether a statute which dictated the procedure for dealing with punitive damages was procedural or substantive. The statute requires two trials when punitive damages are alleged. One trial for compensatory damages and another for punitive damages. The syllabus by the Court could have been taken from Alice In Wonderland.
R.C. 2315.21(B) creates, defines, and regulates a substantive, enforceable right to separate stages of trial relating to the presentation of evidence for compensatory and punitive damages in tort actions and therefore takes precedence over Civ.R. 42(B) and does not violate the Ohio Constitution, Article IV, Section 5(B).
To hold that the legislative “two trial” requirement is not procedural is absurd. The amicus briefs supporting the decision were filed by the Ohio Hospital Association, the Ohio Association of Civil Trial Attorneys (generally an insurance industry attorney association), the Physician Insurers of America, and the Ohio Alliance for Civil Justice. Those interest groups got what they wanted – a procedure which was expensive and slow, cloaked in a goofy opinion that said that procedure was substance.
So if procedure can now be substance, we can be on pins and needles for a decision that substance is procedure. The interest groups will be ready for that one.