State ex rel. Celebrezze v. K & S Circuits, Inc.

Holmes, J.,

dissenting. I dissent, in that I conclude that the trial court’s determination denying a jury trial in a water pollution enforcement action commenced pursuant to R.C. Chapter 6111 is a final order within a special proceeding as set forth in R.C. 2505.02.

In this court’s most recent decision on the subject, Amato v. General Motors Corp. (1981), 67 Ohio St. 2d 253 [21 O.O.3d 158], this court emphasized the practical considerations in determining whether the order is made in a special proceeding, as follows, at page 258:

“* * * [w]e determine that whether an order is made in a special proceeding is resolved through a balancing test. This test weighs the harm to the ‘prompt and orderly disposition of litigation,’ and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable.”

This court held that an order, pursuant to Civ. R. 23(C), that an action may be maintained as a class action, is an order made in a special proceeding. Important to the court’s decision were two factors: first, immediate review would conserve judicial resources and avoid the unnecessary imposition of enormous burdens, by allowing reversal of orders which improperly certify class actions; second, anything less than immediate review would not be meaningful since improper certification would increase the defendant’s potential liability and litigation costs to the point where he would be forced to settle.

While this court has never decided the precise question as to whether an order denying a jury demand is an order made in a special proceeding, ap*357plication of the balancing test and criteria required by Amato dictates an affirmative response to such question in a water pollution enforcement action. As in Amato, a prompt review of the lower court’s denial of the state’s jury demand would produce very little harm to the “prompt and orderly disposition of litigation.” Indeed, if anything, the immediate appeal would be beneficial to the “prompt and orderly disposition of justice.” The trial of these environmental cases is extremely complicated, encompassing volumes of expert testimony. The trial in this case could take two weeks. When, upon appeal, it is ruled that the trial should have been to a jury, it will have to be remanded for a new trial to a jury. The entire two weeks consumed by the first trial would have been wasted. In addition, the retrial would probably be followed by a second appeal concerning the amount of penalty assessed by the jury. This would add an additional period of delay until that appeal is resolved. Thus, a failure to allow the appeal at this time would result in two separate time-consuming trials and two separate post-trial appeals, whereas allowing the appeal at this time would assure that there would be one trial conducted in the appropriate manner in the first instance, and only one appeal following that trial. Therefore, allowing the appeal at this time will have no detrimental effect on the “prompt and orderly disposition of litigation,” but rather will actually result in conservation of judicial resources.

Accordingly, I would reverse the judgment of the court of appeals.