dissenting.
{¶ 62} The majority opinion’s interpretation of R.C. 2701.10 is plausible - as far as it goes. I dissent because I do not believe that R.C. 2701.10 prohibits private judges from using juries; it certainly doesn’t do so directly.
{¶ 63} The majority opinion states that “R.C. 2701.10 and Gov.Jud.R. VI require bench trials in referrals of civil actions or submissions of issues or questions.” Essentially, the majority opinion concludes that private judges cannot preside over jury trials. Once a referral is made to a private judge, however, that judge has “all of the powers, duties, and authority of an active judge of the court in which the action or proceeding is pending.” R.C. 2701.10(C). The powers, duties, and authority of an active judge include the ability to use Civ.R. 39(C), which states, “In all actions not triable of right by a jury (1) the court upon motion or on its own initiative may try any issue with an advisory jury or (2) the court, with the consent of both parties, may order a trial of any issue with a jury, whose verdict has the same effect as if trial by jury had been a matter of right.” According to the majority opinion, a referral case requires a bench trial; therefore, a referral case is an action “not triable of right by a jury.” Therefore, pursuant to Civ.R. 39(C), a judge in a referral case has the ability to “try any issue with an advisory jury” or, “with the consent of both parties, [to] order a trial of any issue with a jury.”
{¶ 64} Section 5, Article I of the Ohio Constitution states, “The right of trial by jury shall be inviolate * * See, also, Civ.R. 38(A) (“The right to trial by jury shall be preserved to the parties inviolate”). The General Assembly is well aware of Section 5, Article I, and Civ.R. 38(A) and made no plain statement that can be construed as abrogating or otherwise affecting the right to a jury trial. Though the right to trial by jury can be waived, the General Assembly did not state that referral of a case to a private judge is the equivalent of waiving a jury trial. The General Assembly could have done either of these things. It did neither, and I will not interpret R.C. 2701.10 as if it did. This court should not interpret a statute to infringe an inviolate right absent plain and clear language from the General Assembly that it intends to do so.
{¶ 65} Finally, the majority opinion gratuitously (because it is not necessary to resolve the case) states, “There is no right to a jury trial, however, unless that right is extended by statute or existed at common law prior to the adoption of the Ohio Constitution. Kneisley [v. Lattimer-Stevens Co. (1988) ], 40 Ohio St.3d [354] 356, 533 N.E.2d 743.” As I explained in Arrington v. DaimlerChrysler Corp., 109 Ohio St.3d 539, 2006-Ohio-3257, 849 N.E.2d 1004 (Pfeifer, J., dissent*156ing), ancient and distinguishable case law limits the right to a jury trial; the Constitution of Ohio does not. The Constitution states, “The right of trial by jury shall be inviolate,” not “The right to a jury trial shall be inviolate except as to new causes of action not available when this Constitution was ratified.”
Kahn Kleinman, L.P.A., Robert A. Zimmerman, Michael H. Diamant, and Mark R. Jacobs, for relator. Kenneth J. Fisher Co., L.P.A., and Kenneth J. Fisher, for respondent. Philip J. Fulton Law Office and Philip J. Fulton; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging denial of the writ for amicus curiae Ohio Academy of Trial Lawyers. Weston, Hurd, Fallon, Paisley & Howley, L.L.P., and Gregory E. O’Brien, urging denial of the writ for amicus curiae Ohio Academy of Civil Trial Lawyers.{¶ 66} The Internet had not been invented when the Constitution of the United States was ratified. Yet no rational jurist would suggest that the right to free speech does not apply to articles, blogs, or mere musings posted on the Internet. The religions of the Seventh Day Adventists, the Church of Jesus Christ of Latter-Day Saints (the Mormons), and the Church of Christ, Scientist, to name just a few, were not practiced when the Constitution of the United States was ratified. Yet no rational jurist would suggest that the right to freedom of religion does not extend to the practitioners of these religions. Why is the constitutional right to a trial by jury different? For no rational reason. I dissent.