dissenting. Dean Pound in his Introduction to the Philosophy of Law at 189 (quoted by Judge Benjamin N. Cardozo in the Growth of the Law [1924] at 102) wrote:
“The law * * * enforces the reasonable expectations arising out of conduct, relations and situations.”
Reasonable expectations are built on existing legal conditions. In the present case not only did the school board have immunity at the time the injury occurred, but the legislature reinforced this expectation by statutorily prohibiting the purchase of liability insurance. Ironically, a “Cassandra” representing the legal interests of the school board might arguably be adjudged guilty of malpractice if he or she had made the proper hindsight recommendation that steps be taken to safeguard the school board by acquiring liability insurance in contravention of an explicit statute.
Can any citizen, governmental body, business, or corporation make future plans when ex post facto liability may be imposed no matter how reasonable an action or inaction may have been? And why was this case accepted for appeal when Carbone v. Overfield (1983), 6 Ohio St. 3d 212, is dispositive of the issue except for the statutory unavailability of insurance?
It is easy for a court to impose ex cathedra edicts — in effect legislative edicts creating substantive rights — when the “details” of those edicts are left for others to resolve. It is, however, more difficult for a court to exercise restraint and consider the ramifications of its decrees.
For the reasons set forth in the accompanying dissent in which I join and the reasons set forth above, I dissent.
Holmes, J., concurs in the foregoing dissenting opinion.