dissenting.
{¶ 81} I join in Justice Resnick’s dissent regarding the use of all-videotape trials. I also dissent because I reject the idea that there ought to be a dichotomy in jury-trial rights between litigants bringing causes of action that existed at the time of the adoption of the Ohio Constitution and litigants whose causes of action were recognized after that time. Section 5, Article I of the Ohio Constitution provides:
{¶ 82} “The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.”
{¶ 83} The only limitation that the Constitution puts on the right to a jury trial is the number of jurors necessary to decide a civil case. The Constitution does not limit the right to have a matter tried before a jury to causes of action existing at the time of the ratification of the Constitution. We do not make artificial distinctions as to juries in criminal matters based upon whether the crimes with which the defendant is charged existed at the time of the crafting of the Constitution. We should not make such distinctions in civil matters, either.
{¶ 84} Did the framers really intend a two-tiered system of civil justice? Were they so shortsighted as to think that the common law would suddenly stop the evolution it had been making since the Magna Carta? Can Ohioans alleging wrongful termination, discrimination, intentional infliction of emotional distress, or filial consortium claims have their jury trial rights extinguished, since those causes of action did not exist at common law at the time the Constitution was written?
{¶ 85} The limitation of the jury trial right is not a creature of our Constitution, but instead emerged from this court’s case law. The flimsy decisions upon which is built the jurisprudence limiting jury trial rights are Belding v. State ex rel. Heifner (1929), 121 Ohio St. 393, 169 N.E. 301, and Brown v. Reed (1897), 56 Ohio St. 264, 46 N.E. 982. Neither deals with a traditional civil matter. Belding arose from a bastardy proceeding, wherein the defendant was ordered to pay to the mother of his child a “ ‘sum * * * necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth together with the costs of prosecution.’” (Emphasis sic.) Belding, 121 Ohio St. at 394, 169 N.E. 301, quoting G.C. 12123. The court held that the father did not have a right to a jury trial in that case, since “[t]hat [constitutional] guaranty only preserves the right of trial by jury in cases where under the principles of the common law it existed previously to the adoption of the Constitution.” Id. at 396, 169 N.E. 301. The court saw a bastardy proceeding as a “special proceeding[ ] for the enforcement of a moral duty,” along the lines of an alimony proceeding. Id. at 397, 169 *559N.E. 301. The court noted that an alimony proceeding “is not a civil action.” Id. at 398,169 N.E. 301.
Kelley & Ferraro, L.L.P., Michael V. Kelley, and Thomas M. Wilson, for appellant. Buckingham, Doolittle & Burroughs, L.L.P., George H. Rosin, and David W. Hilkert, for appellee DaimlerChrysler Corporation. Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Stephen P. Carney, Senior Deputy Solicitor, Elise Porter, Assistant Solicitor, Vincent T. Lombardo, and James A Barnes, Assistant Attorneys General, for appellee William E. Mabe, Administrator of Workers’ Compensation.{¶ 86} Brown was a probate court matter involving an executor that had committed malfeasance in the sale of land. The court held that “[b]oth before and since the adoption of the constitution it has been usual to call executors and other trustees to account in courts having equity or probate jurisdiction, and without the intervention of a jury to determine any question affecting the state of their accounts.” Brown, 56 Ohio St. at 270, 46 N.E. 982.
{¶ 87} Whether or not Bolding and Brown correctly decided the applicability of jury trial rights in those cases, they dealt with a very narrow category of causes of action. In the case at bar, we are not dealing with a bastardy proceeding or any other proceeding to enforce a moral duty; nor did this matter arise in probate court. It is a civil cause brought in a court of general jurisdiction. That broad category of cases enjoyed the jury-trial right before ratification of the Constitution. Moreover, the General Assembly recognizes the role of a jury in an R.C. 4123.512 proceeding. Can we truly interpret the Constitution to mean that the right to a jury trial is not inviolate in cases where that right is specifically recognized by the General Assembly?
{¶ 88} I would hold that the plaintiff in this case has a fundamental right to a jury trial.
O’Donnell, J., concurs in the foregoing dissenting opinion.