Highlights of the Ohio Supreme Court June 2002-June 2003

AuthorMarianna Brown Bettman
PositionUniversity of Cincinnati College of Law
Pages181-217

Page 181

I Introduction

This Article explores twelve of the most significant cases decided by the Ohio Supreme Court from June 2002 through June 2003. This time period is divided between a first half dominated by the so-called liberal activist wing and a second half with a more conservative majority, with two new justices, one elected and one appointed.1 The case selection for this Article is obviously highly subjective.

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II Educational Funding: DeRolph IV and DeRolph V

DeRolph IV2 and DeRolph V,3 both decided in the look back period of this Article, put an end to a constitutional challenge to the method of financing Ohio's public schools.4 The cases must be studied in context in order to understand them.

The DeRolph litigation began in December 1991 with the filing of a lawsuit in Perry County5 claiming that the method of financing the schools violated the "thorough and efficient" clause of the Ohio Constitution.6 The case involves only a state constitutional challenge to a provision with no federal analogue.7

A threshold issue that sharply split Ohio Supreme Court justices in their first review of the case was whether this was indeed a justiciable controversy8 or a nonjusticiable political question, as Justice Moyer repeatedly asserted.9 The majority found this to be a classic example of the court exercising its constitutional authority as set forth in Marbury v. Madison.10

In 1997, in DeRolph I, by a four to three majority, the court held that Ohio's system of public school financing violated the thorough andPage 183 efficient clause of the state constitution.11 The court's criticism focused on the current school funding formula because of its over-reliance on local property taxes.12 This Article does not explore all the holdings of the DeRolph decisions, but rather focuses on the separation of powers issues that are a leitmotif throughout all the decisions.

In DeRolph I, although the court found the school financing system unconstitutional, it refused to tell the legislature how to fix it.13 It did make clear that property taxes could still be used as part of the funding formula, but they could no longer be the primary part.14 The court expressly declined to retain jurisdiction over the case to review all remedial legislation enacted in response to its decision, declaring that it is not the function of the judiciary to supervise or participate in the legislative and executive process.15 But despite this separation of powers declaration, the court stayed the effect of the decision for one year to give the General Assembly time to enact remedial legislation.16 The court remanded the case back to the trial court, ordering Judge Lewis17 to retain jurisdiction over the case until the legislature enacted a new funding system and then to rule on the constitutionality of that legislative effort.18 The court also created a right of direct appeal in the case.19

Judge Lewis reviewed the legislative response and found it wholly inadequate.20 The appeal of that decision is DeRolph II.21 In DeRolph II, the high court evaluated the legislative response to DeRolph I and found that it came up short because the school financing system still relied too heavily on local property taxes.22 The court again directed the legislature to remedy the problem, but again refused to offer the General Assembly clear instructions.23 Instead, the court simply stated that "[t]he legislature has the power to draft legislation, and the court has the power to determine whether that legislation complies with the Constitution,"24 and it gave thePage 184 legislature another year to remedy the problem.25 However, this time the court itself retained continuing jurisdiction over the case and did not remand it back to the trial court.26

In DeRolph III,27 the court evaluated the legislative response to DeRolph II and found that despite a good faith effort, the legislature still had to make changes to the funding formula to come into constitutional compliance.28 Unlike the court's previous rulings in DeRolph I and DeRolph II, this time the court laid out for the legislature the exact changes the legislature needed to make to the school funding formula and the parity aid program to comply with the court's order.29 The court (with a different majority from DeRolph I and DeRolph II)30 now told the legislature exactly what to do.31 Ironically, in DeRolph I and DeRolph II it was the "liberal, activist" justices who refused to tell the legislature exactly what to do, while in DeRolph III, two "conservative" justices found themselves in the position of dictating to the legislature.32

Though many believed that DeRolph III was a pragmatic solution to end a sticky wicket, it was not. Subsequent to the release of the decision, both sides agreed that the change in the funding formula ordered by the court in DeRolph III was based on bad numbers given to the court.33 As a result, the court agreed to reconsider its ruling, which hatched DeRolph IV, released in December of 2002.34 In DeRolph IV, the court announced that it had "changed [its] collective mind"35 and again found the method of financing the schools unconstitutional,36 as it had in the first two DeRolph cases. The majority, which was the same majority as it was in DeRolph IPage 185 and DeRolph II,37 found that the legislature had just been "nibbling at the edges" and had still failed to focus on the '"complete systematic overhaul' of the school-funding system" that was necessary.38 As in DeRolph I and DeRolph II, the court in DeRolph IV declined to provide the legislature with specific instructions to enable it to solve the problem.39

When the court decided DeRolph IV, the Chief Justice signed the judgment with the mandate that the matter be sent to "the Court of Common Pleas for Perry County to carry this judgment into execution."40 That seemingly routine language caused problems. In DeRolph I, the court remanded the matter back to Judge Lewis in Perry County to evaluate the legislative response.41 Consequently, following DeRolph IV, a coalition of five hundred school districts returned to the trial court and asked Judge Lewis to begin oversight of the legislative response to DeRolph IV.42 Their request was not unreasonable, since the court had required this after DeRolph I.43 The state filed a writ of prohibition to prevent Judge Lewis from exercising further jurisdiction in the case,44 and in DeRolph V, in a five to two decision, the court, noting the case had not been remanded for further proceedings, granted the writ and declared the case over.45 Justice Lundberg Stratton wrote that "[t]he duty now lies with the General Assembly to remedy an educational system that has been found by the majority in DeRolph IV to still be unconstitutional."46

Currently, the DeRolph litigation has ended, though an unconstitutional funding formula still remains.47 It is unclear what will happen if the legislative branch of government ignores a mandate from thePage 186 judicial branch. Courts do have the authority to enforce their orders, but it is not clear how this would work in practicality. As Justice Douglas stated:

The judicial branch has no concrete powers like the sword (executive) or the purse (legislative) with which to carry its judgments into effect .... We recognize that we have no army and no police force to send. We have only our ability to reason, persuade, and even plead with the Governor and General Assembly to do what is right and best for schoolchildren in Ohio.48

The issue of whether education is a fundamental right under the Ohio Constitution is an important education issue that remains unresolved. In 1973, the United States Supreme Court held that education is not a fundamental right under the federal constitution.49 The Ohio Supreme Court considered whether education is a fundamental right under the state constitution in Cincinnati Board of Education v. Walter,50 the predecessor to the DeRolph cases. Although some argue that the Walter Court held it was not,51 the better view is that the issue was deflected rather than answered.52 Though the issue of whether education is a fundamental right under the Ohio Constitution was raised initially in DeRolph I,53 it was taken off the table when the high court limited the issues on remand to the thorough and efficient clause questions and not equal protection issues.54

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III Punitive Damages Awards: Dardingerv. Anthem Blue Cross & Blue Shield
A The Federal Due Process Challenge

Dardinger v. Anthem Blue Cross & Blue Shield55 is an insurance bad faith case involving the way a health insurer and its parent company handled a request for the treatment of brain cancer by a terminally ill forty-nine-year-old woman named Esther Dardinger.56 A treatment called intra-arterial chemotherapy was shrinking Esther's brain tumors and giving her a decent quality of life.57 Anthem Blue Cross and Blue Shield (Anthem) had agreed to pay for a series of twelve of these treatments, but changed its mind after three and refused to pay for any more.58 The case meticulously details the bureaucratic nightmare from hell in the attempt of Esther's husband and her doctors to...

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