Garrett v. City of Sandusky

Pfeifer, J.,

concurring. While I agree that Mr. Garrett is entitled to pursue his wrongful death action against the city for the losses incurred as a result of his son’s death, I would have held that the city cannot avoid liability for its negligence at the Surfs Up wave pool because the statute relied upon, R.C. 2744.01(C)(2)(u), formerly 2744.01(C)(2)(t), violates Section 16, Article I of the Ohio Constitution, and is thus unenforceable.

Section 16, Article I of the Constitution of Ohio, which establishes a right to bring suits against the state, has an interesting and long-ignored history. Section 16 provides:

“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.
“Suits may be brought against the state, in such courts and in such manner, as may be provided by law.” (Emphasis added.)

*142I

In 1975, the state of Ohio “waived” its immunity from suit by enacting R.C. Chapter 2743, the Court of Claims Act. 135 Ohio Laws, Part II, 869. Political subdivisions fell outside this waiver of immunity. Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 72, 23 OBR 200, 203, 491 N.E.2d 1101, 1105.

In 1982, this court belatedly recognized the great potential for injustice which resulted from the doctrine of sovereign immunity. Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749. The Haverlack court abrogated the doctrine of sovereign immunity for political subdivisions to the extent it was rooted in the common law. Id. at 30, 2 OBR at 575, 442 N.E.2d at 752. The court commented:

“Stare decisis alone is not a sufficient reason to retain the doctrine which serves no purpose and produces such harsh results.” Id.

In an effort to contain the implications of Haverlack, the General Assembly enacted R.C. Chapter 2744 in 1985. Am.Sub.H.B. No. 176, 141 Ohio Laws, Part I, 1699. These statutes attempt to define the extent to which political subdivisions can be sued rather than defining the manner and courts where actions could be brought. The statutes, with exceptions, exempted political subdivisions from liability for losses resulting from the exercise of “governmental” functions while exposing them to liability for the negligent exercise of “proprietary” functions. In 1987, the General Assembly, when it enacted Am.Sub.H.B. No. 295, hurriedly sought to blanket historically proprietary functions, such as swimming pools and golf courses, with immunity. See 142 Ohio Laws, Part II, 3250-3253.

In light of the original intent of the delegates to the Constitutional Convention of 1912 and the plain reading of Section 16, Article I of the Ohio Constitution, the remaining vestiges of local governmental immunity should be abolished. The General Assembly remains empowered to establish the manner that suits may be brought against the political subdivisions, and may select the appropriate courts for these suits.

II

Upon examining the proceedings and debates from the Constitutional Convention of 1912, it is clear that Section 16, Article I of the Constitution was originally intended to abolish the doctrine of sovereign immunity on its own. Legislation was not intended to be indispensable to effect this result. The sole sponsor of the amendment, B.F. Weybrecht, repeatedly indicated that the provision, once adopted, would end sovereign immunity. In describing the amendment, he stated:

*143“The proposal, which has been recommended by the Judiciary committee, recognizes the right of the individual to seek redress for claims against the state in such courts as may hereafter be designated, without petitioning the legislature as is now the custom.” 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio (1912) 1431.

According to those who drafted it, the amendment was intended to preempt the General Assembly’s authority to regulate the parameters of sovereign immunity. Weybrecht noted:

“ * * * I believe that the proposal is eminently a constitutional question, and not, as in the case of Virginia and North Carolina, a proper subject for legislative enactment.
“It will no doubt, be argued that the citizen has now, and always has had, the right to submit his grievance to the legislature, and supplicate that body for the privilege of making the state a party to a suit in some court in which he might judicially establish his claim.
“ * * * In this method of disposing of such claims we might well ask the question, Why should the state demand of her citizenship a certain line of conduct in the settlement of disputes between individuals, partnerships or corporations, and hold herself aloof from the operation of her own laws? * * *
« * * *
“ * * * Let the humblest citizen feel that while the state can impose on him all the duties of citizenship, taxation, obedience to law and the common defense, he is the equal of the sovereign before the law.” 2 Proceedings and Debates, supra, at 1431.

These remarks made by delegate Weybrecht confirm that after the constitutional convention passed the amendment to Section 16, Article I, and it was adopted by the electorate, the General Assembly could no longer abrogate sovereign immunity because the amendment had already done so.

When the amendment, as adopted, was read to the constitutional convention, delegate Samuel A. Hoskins inquired:

“Does this convey the idea that legislation is necessary to confer that right, or is the right given by this article itself? I don’t think the latter part is clear. The amendment says that the legislature shall provide the method of bringing suit. Will the amendment itself confer the right to bring the suit?” 2 Proceedings and Debates, supra, at 2028.

In response to this question, delegate Hiram D. Peck noted:

“The amendment does confer that right.” Id.

*144This discussion by other delegates at the convention confirms that the right to sue the state was conveyed to Ohioans in the amendment, and that the legislature was to have no role in determining the scope of this right.

The actual wording of the amendment expresses the intent of the delegates who enacted it. The General Assembly is responsible for determining the appropriate “courts” in which suits against the state are to be filed, and it must design the “manner,” or procedures, for plaintiffs to follow in these courts. Nowhere in the provision does it say that the General Assembly shall determine what causes of action can be brought against the state. Thus, the true intent of the amendment to Section 16, Article I was to abolish sovereign immunity in its entirety.

This true meaning has been ignored by Ohio case law, but should be acknowledged today. Governmental immunity, including municipal immunity, is contrary to the clear meaning and mandate of the Ohio Constitution.