State ex rel. Ohio Academy of Trial Lawyers v. Sheward

Lundberg Stratton, J.,

dissenting. I join in Chief Justice Moyer’s well-reasoned dissent and would grant the two motions to dismiss pending in this case. This case should have never been accepted for review on the merits. The majority’s acceptance of this case means that we have created a whole new arena of jurisdiction — “advisory opinions on the constitutionality of a statute challenged by a special interest group.”

In addition to the reasons set out in the Chief Justice’s dissent, I also object to the majority’s holding that Am.Sub.H.B. No. 350 violates the one-subject rule. I would find that Am.Sub.H.B. No. 350 encompasses only related topics pertaining to tort litigation.

Purpose of Am.Sub.H.B. No. 350

The history of the one-subject rule reveals the weakness in the majority’s position. The one-subject rule, set forth in Section 15, Article II of the Ohio Constitution, was first construed in 1856 in Pim v. Nicholson (1856), 6 Ohio St. 176. In Pim, the court considered whether an Act entitled “An Act in addition to the several acts in relation to the courts of justice and their powers and duties” violated the one-subject rule. The Act gave common pleas courts jurisdiction to enjoin collection of taxes, allowed appeals to the Supreme Court of decrees on title to real estate, and allowed appointment of assistant prosecuting attorneys. The appellee alleged that the Act violated the one-subject rule.

The court in Pim determined that the purpose of the one-subject rule was “to prevent combinations, by which various and distinct matters of legislation should gain a support which they could not if presented separately.” Id. at 179. But the court in Pim held that the one-subject rule was intended only to operate as a rule for the General Assembly to apply to bills. Id. The court also determined that to expose every Act to judicial application of a mandatory one-subject rule would result in inconsistent decisions because of differing judicial philosophies, which would make legislating a formidable task at best. Id. at 180. Thus, the court held that the one-subject rule is directory. Id. Accordingly, Pim envisioned that the only judicial safeguard against a violation of the one-subject rule *532would be upon a finding of a gross and fraudulent violation of the rale. Id. Based upon this analysis, the court in Pim held that the Act did not violate the one-subject rale.

Some delegates at the 1873-1874 Ohio Constitutional Convention proposed to amend the one-subject rule to make it mandatory rather than directory. 2 Proceedings and Debates of the Third Constitutional Convention of Ohio (1874) 285. However, concern grew among the other delegates over the wisdom of making the one-subject rule mandatory, as evidenced by the remarks of delegate S.O. Griswold:

“I am opposed to the adoption of this amendment, on the ground that it will lead to confusion and constant litigation of the question whether one subject is embraced in it or not. A subject of legislation may require various provisions, and men will be in doubt whether these different provisions come within the language of this clause. Under this general rule, the bill shall be made to express, by the title, all the provisions of the bill, and subjects of legislation have frequently such a wide range, and are so connected with other matters, that it is necessary, sometimes, to have your bill so enlarged that doubts will constantly be raised * * Id. at 284-285.

Also opposing one such amendment was delegate William W. West, who stated:

“[W]hat is a single subject, one subject? Take for example, the code of civil procedure. There is your title: a bill or an act to provide for a code of civil procedure. * * * Now, under that general title we may express that the general subject matter within that act is the civil practice; but there are an infinite number of subjects contained within that general subject, which might very properly be considered and regarded as distinct and different subjects matter [sic]. You have a statute of limitation. True, that has a general relation to the subject of practice, but it is a very distinct thing from the organization of a jury, and a very distinct thing from the law of evidence; and yet, they are all embraced within the same act. Now if we put into the Constitution the provision that no law shall contain more than one subject matter, may we not get into trouble and confusion about the matter? The subject of juries has a general relation to the matter of civil practice, a general relation to the subject matter of criminal practice; but it is a different subject entirely from the law of evidence. Hence you mil see that difficulties at once arise; so that under a statute of that kind it may be difficult to incorporate a great many subordinate subjects that have relation to the general subject. * * * I fear very much that our generalization of subjects will exclude a hundred and one subordinate subjects that ought to be embraced in the same bill, or might very properly be embraced in the same bill.

“ * * * There are general subjects of legislation, and there are subordinate subjects, cognate to the general subject, that are properly embraced in the same *533bill; and yet if you put this in, I fear very much, that they cannot be included.” (Emphasis added.) Id. at 291.

The convention voted against the proposed amendments to the one-subject rule. Id. at 292, 1543-1544. Pirn emerged unscathed. Until today, the one-subject rule remained directory and only a gross and fraudulent violation of the rule would render a statute or provisions thereof unconstitutional. See Beagle v. Walden (1997), 78 Ohio St.3d 59, 676 N.E.2d 506; State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 580 N.E.2d 767; State ex rel. Dix v. Celeste (1984), 11 Ohio St.3d 141, 11 OBR 436, 464 N.E.2d 153.

The purpose of the one-subject rule is to prevent logrolling. Id. at 142, 11 OBR at 438, 464 N.E.2d at 155. Logrolling is the practice of several minorities combining their proposals as a single bill, thereby consolidating their votes to obtain a majority even though no single proposal would have passed separately. Rudd, “No Law Shall Embrace More Than One Subject” (1958), 42 Minn.L.Rev. 389, 391. A variant is the practice of attaching a rider to a popular bill, whereby the rider is passed on the coattails of the popular bill. Id.

Yet “[a]ll bills are subject to debate, discussion, and amendment prior to being put to a vote.” Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563, 566, 697 N.E.2d 198, 201, citing Section 15, Article II of the Ohio Constitution. I believe that there is an important distinction between logrolling and the typical and necessary debate, compromise, and amendment of bills during the legislative process. Protecting this negotiation and revision from being negated by an overzealous application of the one-subject rule is further reason to apply the one-subject rule with extreme caution. The one-subject rule “was imposed to facilitate orderly legislative procedure, not to hamper or impede it.” (Emphasis sic.) Dix, 11 Ohio St.3d at 143, 11 OBR at 438, 464 N.E.2d at 156.

Another purpose of the one-subject rule is to “facilitate orderly legislative procedure” by excluding issues that are extraneous to the bill. Rudd, supra, 42 Minn.L.Rev. at 391. But this purpose “does not aim to eradicate devices designed to pervert the rule of majority vote but rather to eliminate rambling, discursive deliberations.” (Emphasis added.) Id. The one-subject rule is “not directed at plurality but at disunity in subject matter.” Dix at 146, 11 OBR at 441, 464 N.E.2d at 158. Multiple topics will not render a bill constitutionally infirm as long as the topics have a common purpose or relationship. Hoover v. Franklin Cty. Bd. of Commrs. (1985), 19 Ohio St.3d 1, 6, 19 OBR 1, 5, 482 N.E.2d 575, 580. There must be a “common thread” that “ties each of these topics together.” Beagle, 78 Ohio St.3d at 62, 676 N.E.2d at 507. Only “when there is an absence of common purpose or relationship between specific topics in an act and when there are no discemable practical, rationale or legitimate reasons for combining the provisions in one act, there is a strong suggestion that the *534provisions were combined for tactical reasons, i.e., logrolling.” (Emphasis added.) Dix, 11 Ohio St.3d at 145, 11 OBR at 440, 464 N.E.2d at 157. The majority even goes so far as to recognize that the “ ‘term “subject” within such constitutional provisions [one-subject rule] is to be given a broad and extensive meaning so as to allow legislature full scope to include in one act all matters having a logical or natural connection.’” (Emphasis added.) Quoting Black’s Law Dictionary (6 Ed.1990) 1425.

Finally, it must also be remembered that statutes maintain a strong presumption of constitutionality and that the challenger has the burden of overcoming this strong presumption of constitutionality. State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas (1967), 9 Ohio St.2d 159, 161, 38 O.O.2d 404, 405, 224 N.E.2d 906, 908-909. Only if it appears beyond a reasonable doubt that the constitutional provision and the statute are clearly incompatible will the legislation be found unconstitutional. State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 147, 57 O.O. 134, 137, 128 N.E.2d 59, 63.

It is against this daunting presumption of constitutionality that the majority finds that Am.Sub.H.B. No. 350 violates the one-subject rule. The majority states that “[w]hile an examination of any two provisions contained in Am.Sub. H.B. No. 350, carefully selected and compared in isolation, could support a finding that ‘a common purpose or relationship exists among the sections, representing a potential plurality but not disunity of topics,’ an examination of the bill in its entirety belies such a conclusion.” I disagree.

Am.Sub.H.B. No. 350 indicates that it encompasses “changes in the laws pertaining to tort and other civil actions.” Title, 146 Ohio Laws, Part II, 3868. In other words, Am.Sub.H.B. No. 350 is aimed at “tort reform.” Id., Section 8, at 4031; see, also, Werber, Ohio Tort Reform 1998: The War Continues (1997), 45 Cleve.St.L.Rev. 539. An examination of the substantive language of Am.Sub.H.B. No. 350 reveals that its provisions generally address the following topics: (1) immunity/liability,17 (2) statutes of limitation/repose,18 (3) damages,19 (4) contributory tortious conduct,20 and (5) joint and several liability.21

While this is not an exhaustive list of every topic in Am.Sub.H.B. No. 350, it does address a core of its provisions and demonstrates the various topics represented in Am.Sub.H.B. No. 350. These provisions address issues that *535pertain to private, noncontract, civil actions by which the injured party may seek redress for his or her injuries. Such actions are commonly referred to as torts. See, e.g., R.C. 2315.21(4); see, also, Haag v. Cuyahoga Cty. (N.D.Ohio 1985), 619 F.Supp. 262, 276-277. The subject of tort reform typically addresses such diverse topics as damages, products liability law, medical malpractice law, joint and several liability, wrongful death, etc. See, e.g., Payne, Linking Tort Reform to Fairness and Moral Values (1995), Det.C.L.Mich.St.U.L.Rev. 1207, 1215-1236 (reviewing tort reform efforts including damage caps, medical malpractice, and products liability law); Michael, Joint Liability: Should it be Reformed or Abolished? — The Illinois Experience (1996), 27 Loy.U.Chi.L.J. 867 (discussion on tort reform and joint and several liability); Peck, Constitutional Challenges to the Partial Rejection and Modification of the Common Law Rule of Joint and Several Liability by the 1986 Washington Tort Reform Act (1987), 62 Wash.L.Rev. 681, fn. 60 (discussing changes in joint and several liability as part of tort reform); Bovbjerg & Schumm, Judicial Policy and Quantitative Research: Indiana’s Statute of Limitations for Medical Practitioners (1998), 31 Ind.L.Rev. 1051 (revision of statute of limitations was part of tort reform). Similarly, the provisions of Am.Sub.H.B. No. 350, while diverse, have the common purpose of reforming tort law. Hoover, 19 Ohio St.3d at 6, 19 OBR at 5, 482 N.E.2d at 580. And Am.Sub.H.B. No. 350 has the practical advantage of addressing all tort reform issues in a single bill rather than addressing them in a piecemeal fashion. As we have acknowledged, “ ‘[t]he number of statutes required to effect a given purpose is not to be needlessly multiplied, nor is the scope of the required single subject to be unduly restricted.’ ” Dix, 11 Ohio St.3d at 143, 11 OBR at 438, 464 N.E.2d at 156, quoting 1A Sutherland, Statutes and Statutory Construction (4 Ed.1972) 2, Section 17.01. The issues addressed in Am.Sub.H.B. No. 350 are interrelated and reflect the give and take of lawmaking.

Historically, the General Assembly has passed numerous bills that contain a wide range of topics and that have never been challenged under the one-subject rule. For example, in 1995 the General Assembly passed Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136. The purpose of Am.Sub.S.B. No. 2 as stated in its title was to “implement recommendations of the Criminal Sentencing Commission and to make other changes in the criminal law.” Id. at 7138. Consistent with this purpose, Am.Sub.S.B. No. 2 changed the term of imprisonment for many criminal offenses. State v. Rusk (1998), 83 Ohio St.3d 53, 55-56, 697 N.E.2d 634, 636. Am.Sub.S.B. No. 2 also made numerous substantive changes in various criminal statutes other than sentencing. For instance, Am.Sub.S.B. No. 2 (1) created the criminal act of possession of an unauthorized device for gaining access to cable television,22 (2) gave additional duties to the Ohio Criminal Sentencing Commission,*53623 and (3) modified definitions in the Victims’ Rights Law.24

Am.Sub.S.B. No. 2 addresses numerous diverse topics including sentencing, defining new crimes, and amending current criminal statutes. Yet all these provisions clearly fit within the broad but single subject of changes in the criminal law. This is evidenced by the fact that Am.Sub.S.B. No. 2 has not been challenged under the one-subject rule.

Even more relevant to the case at bar is Am.Sub.H.B. No. 1 enacted in 1987. 142 Ohio Laws, Part I, 1661. Its stated purpose was to “make changes in civil justice and insurance law, thereby reducing the causes of the current insurance crisis.” Id. Its provisions (1) addressed damages in wrongful death actions,25 (2) made changes in joint and several liability,26 (3) codified products liability as a cause of action,27 (4) made changes in contributory negligence and implied assumption of the risk,28 (5) made changes in the doctor-patient privilege,29 (6) defined how collateral benefits reduce compensatory damages,30 (7) created the Ohio Commercial Insurance Joint Underwriting Association,31 (8) amended the law governing frivolous conduct in litigation,32 (9) provided for periodic payment of damages,33 and (10) addressed numerous issues on administration and enforcement of insurance law.34

Clearly, Am.Sub.H.B. No. 1 also addresses a diverse range of topics from creating a commercial underwriting association to making changes in the physician-patient privilege. Many of these topics addressed in Am.Sub.H.B. No. 1 regarding the reform of the civil justice system are similar to the topics addressed in Am.Süb.H.B. No. 350 at issue in this case. Yet Am.Sub.H.B. No. 1 *537was never challenged under the one-subject rule. I submit that the reason Am.Sub.H.B. No. 1 was not challenged is that its topics all pertained to the diverse, but single, subject of reform of the civil justice system. Likewise, Am.Sub.H.B. No. 350 addresses the diverse, but single, subject of tort reform and thus comports with the single-subject rule.

The majority’s own analysis is primarily composed of (1) a listing of sections of the Ohio Revised Code affected by Am.Sub.H.B. No. 350, (2) a comparison of eight sections of the Ohio Revised Code affected by Am.Sub.H.B. No. 350, and (3) a Legislative Service Commission (“LSC”) analysis of Am.Sub.H.B. No. 350.

This analysis remains unpersuasive. First, a mere listing of the provisions affected merely reveals that Am.Sub.H.B. No. 350 addresses a plurality of topics. The one-subject rule addresses disunity, not plurality.

Second, the LSC analysis is unpersuasive. Similar to the majority’s determination that the General Assembly’s stamp of constitutionality on its own legislation has no binding authority on this court, neither does the LSC analysis carry any weight as authority.

Third, the majority’s comparison of the sections of the Revised Code does not reveal a disunity of subject matter. Even an examination of the majority’s own comparison of the changes made by Am.Sub.H.B. No. 350 in the seat belt law (R.C. 4513.263) and in the antidiscrimination law (R.C. Chapter 4112) does not reveal disunity. The primary substantive amendment to the seat belt law (R.C. 4513.263) by Am.Sub.H.B. No. 350 allows evidence of nonuse of a seat belt to diminish recovery in a tort action. 146 Ohio Laws, Part II, 4012-4014. The primary substantive amendment to the antidiscrimination law (R.C. Chapter 4112) is in R.C. 4112.99, which places a two-year limitation of actions on discrimination tort cases. 146 Ohio Laws, Part II, 4007. Thus, these changes address contributory tortious conduct and limitation of actions in tort cases. These are two of the five categories that pertain to tort law that I identified above. Thus, taken in their proper context, the changes made in these sections of the Revised Code, pursuant to Am.Sub.H.B. 350, do not display a disunity of subject matter as the majority claims.

Finally, the majority makes an interesting point. Am.Sub.H.B. No. 350 addresses torts and other civil actions. As has been recognized many times throughout this dissent, as well as in the majority opinion, the one-subject rule addresses disunity, not plurality. In other words, there is no limitation in this rule pertaining to the breadth of the subject that the General Assembly may address. Torts are civil actions. A civil action by its nature encompasses any action that is noncriminal in nature, including tort actions. Clearly all the provisions that Am.Sub.H.B. No. 350 addresses are civil in nature. Thus, even under this analysis, there is no violation of the one-subject rule.

*538Accordingly, I would find that while Am.Sub.H.B. No. 350 addresses a plurality of topics, there is no disunity of the subject matter in Am.Sub.H.B. No. 350 because all these topics address the single subject of tort reform.

Severability

Although I disagree with the majority’s determination that Am.Sub.H.B. No. 350 violates the one-subject rule, that determination still requires the court to attempt to sever the offending provisions. The majority unjustifiably gives short shrift to the argument that the unconstitutional provisions of Am.Sub.H.B. 350, if any, should be severed. Ironically, the majority declines even to attempt to sever any provisions because it believes that any attempt at “identifying and assembling what we believe to be key or core provisions of the bill would constitute a legislative exercise wholly beyond the province of this court.” This conclusion does not comport with this court’s historical approach to addressing unconstitutional provisions within a statute.

Where a statute is found to be unconstitutional, the offending provisions do not nullify the entire statute, if the offending provisions are severable. See, e.g., State ex rel. Maurer v. Sheward (1994), 71 Ohio St.3d 513, 644 N.E.2d 369. In the rare instance where this court has found a violation of the one-subject rule, the court has severed the offending provisions. See, e.g., Hinkle, 62 Ohio St.3d at 149, 580 N.E.2d at 770; State ex rel. Ohio AFL-CIO v. Voinovieh (1994), 69 Ohio St.3d 225, 230, 631 N.E.2d 582, 587; and Simmons-Harris v. Goff (1999), 86 Ohio St.3d 1, 711 N.E.2d 203.

In Hinkle, the court determined that Section 7 of 1991 Am.Sub.H.B. No. 200, which changed the effective date of a previous amendment to liquor control law, violated the one-subject rule. 62 Ohio St.3d at 148, 580 N.E.2d at 770. The court severed Section 7. The remainder of Am.Sub.H.B. No. 200 contained provisions that (1) created an environmental division of the Franklin County Municipal Court, (2) added a common pleas judge in Lucas County, (3) revised municipal and county court law, and (4) changed the disposition of court fines. Id. Obviously these provisions addressed a wide range of topics. Yet, in deference to the General Assembly, the court in Hinkle held that these provisions did “relate to a single subject” of the “state judicial system,” and could therefore be saved by severance. Id. at 148-149, 580 N.E.2d at 770.

In State ex rel. Ohio AFL-CIO v. Voinovich, 69 Ohio St.3d at 230, 631 N.E.2d at 587, the court held that 1993 Am.Sub.H.B. No. 107 was enacted specifically to “amend workers’ compensation laws.” Am.Sub.H.B. No. 107 (1) appropriated funds for the Bureau of Workers’ Compensation, (2) appropriated funds for the Industrial Commission, (3) made structural changes to the Bureau of Workers’ Compensation, (4) made changes to substantive provisions of the workers’ compensation law, (5) made structural changes to the Industrial Commission, (6) *539restricted actions for employment intentional torts, and (7) created a child-labor exemption in the entertainment industry. The court held that the restrictions on the employment intentional tort and the creation of the child-labor exemption violated the one-subject rule. Despite the fact that the remaining provisions addressed such diverse issues as redefining the types of investments that the Administrator of Workers’ Compensation is authorized to make35 and changing the appeal process,36 the court held that these remaining provisions came under the single subject of workers’ compensation.

Finally, in our recently issued opinion in Simmons-Harris v. Goff (1999), supra, this court exercised its power to sever an offending provision from a bill. The court found that the School Voucher Program was so dissimilar to the other provisions of the bill that logrolling had occurred, and therefore it violated the one-subject rule. The lead opinion stated that “[t]he School Voucher Program, which is leading-edge legislation, was in essence little more than a rider attached to an appropriations bill.” Id., 86 Ohio St.3d at 16, 711 N.E.2d at 215. Stating that Dix was modified only to the extent that appropriations cannot be a catchall subject upon which to defeat the one-subject rule, the lead opinion clearly stated that “[o]ur holding does not overrule Dix.” Id. at 17, 711 N.E.2d at 216. But the court severed only the offending program, not the entire appropriation bill.

I believe that the provisions in Am.Sub.H.B. No. 350 relate to the single subject and common purpose of “tort reform.” But if the majority truly found that any provisions in Am.Sub.H.B. No. 350 met the test of a fraudulent violation of the one-subject rule, it should have severed those offending provisions that have no common purpose with the subject matter of tort reform and left the remaining provisions as this court did in Hinkle, Voinovich, and Goff.

Conclusion

To hold that the topics addressed in Am.Sub.H.B. No. 350 grossly and fraudulently violate the one-subject rule because they have no common purpose, not only ignores the true nature of Am.Sub.H.B. No. 350 as a unified tort reform measure and its presumption of constitutionality, but also interjects a judge’s personal philosophy in determining whether a bill addresses a single subject — an exercise that the Pim decision warned against. Because I believe that the topics addressed in Am.Sub.H.B. No. 350 have a common purpose of addressing the single subject of tort reform, I respectfully dissent.

Moyer, C.J., and Cook, J., concur in the foregoing dissenting opinion.

. See R.C. 723.01, 901.52, 2125.01, 2305.25, 2305.381, 2305.382, 2744.03, 2307.60, 2307.61, 2307.75, 2307.73, 2307.791.

. See R.C. 2125.02, 2125.04, 2305.10, 2305.11, 2305.113, 2305.131, 2744.04.

. See R.C. 2323.54, 2307.801, 2317.45,1707.438, 2315.21.

. See R.C. 2315.19, 2315.20.

. See R.C. 2307.31, 4507.07(B).

. See R.C. 2913.041.

. See R.C. 181.25.

. See R.C. 2930.01.

. R.C. 2125.02,142 Ohio Laws, Part 1,1669,1670.

. R.C. 2307.33, id. at 1673.

. R.C. 2307.71 to 2307.80, id. at 1674-1684.

. R.C. 2315.19 and 2315.20, id. at 1686-1690.

. R.C. 2317.02, id. at 1692-1694.

. R.C. 2317.45, id. at 1694-1697.

. R.C. 3930.03, id. at 1725.

. R.C. 2323.51, id. at 1698-1700.

. R.C. 2323.56, id. at 1700-1706.

. I'd at 1706-1751.

. R.C. 4123.44 and 4123.441,145 Ohio Laws, Part II, 3138-3147.

. R.C. 4123.511, id. at 3148-3153.