Krause v. State

• Decision Date: 19 July 1972
• Docket Number: No. 71-779,71-779
• Parties: , 60 O.O.2d 100 KRAUSE, Admr., Appellee, v. The STATE of Ohio, Appellant.
• Court: Ohio Supreme Court

Page 132

31 Ohio St.2d 132

285 N.E.2d 736, 60 O.O.2d 100

KRAUSE, Admr., Appellee, v. The STATE of Ohio, Appellant.

No. 71-779.

Supreme Court of Ohio.

July 19, 1972.

Syllabus by the Court

1. The state of Ohio is not subject to suits in tort in the courts of this state without the consent of the General Assembly. (Raudabaugh v. State, 96 Ohio St. 513, 118 N.E. 102; Palumbo v. Indus. Comm., 140 Ohio St. 54, 42 N.E.2d 766; State, ex rel. Williams v. Glander, 148 Ohio St. 188, 74 N.E.2d 82; and Wolf v. Ohio State Univ. Hospital, 170 Ohio St. 49, 162 N.E.2d 475, approved and followed.)

2. Section 16 of Article I of the Ohio Constitution, as amended September 3, 1912, abolished the defense of governmental immunity and empowered the General Assembly to decide in what courts and in what manner suits may be brought against the state.

3. Section 16 of Article I of the Ohio Constitution, as amended September 3, 1912, which provides that '* * * Suits may be brought against the state in such courts and in such manner, as may be provided by law,' is not self-executing, and statutory consent is a prerequisite to such suit. (Raudabaugh, Palumbo, Williams and Wolf, supra, approved and followed.)

4. Section 16 of Article I of the Ohio Constitution does not offend the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

5. The rule-making authority of the Supreme Court of Ohio is limited under Section 5(B) of Article IV of the Ohio Constitution to the formulation of rules governing practice and procedure in all the courts of this state, and by such rules this court may not abridge, enlarge or modify any substantive right.

Appellee, as administrator of the estate of Allison Krause, brought a wrongful death and survivorship action against appellant, the state of Ohio.

Appellant filed a motion to quash service of summons upon it and to dismiss it as a party defendant for the reason that it had not consented to be sued and, therefore, was immune from such suit.

The Common Pleas Court judge sustained the motion, quashed the service of summons and dismissed the state as a party defendant.

The Court of Appeals of the Eighth Appellate District, one judge dissenting, reversed and remanded. 28 Ohio App.2d 1, 274 N.E.2d 321 (1971).

The cause is before this court by certification as being in conflict with the judgment of the Court of Appeals of the Tenth Appellate District in State ex rel. Clark v. Dept. of Mental Hygiene (1955), 72 Ohio Law Abs., 340, 135 N.E.2d 72, and with the judgment of the Court of Appeals of the Seventh Appellate District in Carolyne v. Youngstown State University (1970, unreported).

Sindell, Sindell, Bourne, Markus, Stern & Spero, Steven A. Sindell, Cleveland, and Robert G. Begam, Phoenix, Ariz., for appellee.

William J. Brown, Atty. Gen., Crabbe, Brown, Jones, Potts & Schmidt, Charles E. Brown, Robert F. Howarth, Jr., A. L. Gretick, Columbus, and Daniel M. Collett, Asst. Atty. Gen., for appellant.

C. WILLIAM O'NEILL, Chief Justice.

The ultimate issue is whether an action based on tort is properly maintainable against the state of Ohio when it has not consented to such suit. Based on precedent, this issue would seem to be foreclosed against appellee. See Raudabaugh v. State (1917), 96 Ohio St. 513, 118 N.E. 102, wherein paragraph one of the syllabus states:

'A state is not subject to suit in its own courts without its express consent.'

Paragraph two of that syllabus states:

'The provision of the Ohio Constitution, article 1, section 16, as amended September 3, 1912, that 'suits may be brought against the state, in such courts and in such manner, as may be provided by law,' is not self-executing; and statutory authority is required as a prerequisite to the bringing of suits against the state.'

See, also, paragraphs one and two of the syllabus in Palumbo v. Indus. Comm. (1942), 140 Ohio St. 54, 42 N.E.2d 766; paragraph one of the syllabus in State, ex rel. Williams v. Glander (1947), 148 Ohio St. 188, 74 N.E.2d 82; and paragraphs two and four of the syllabus in Wolf v. Ohio State Univ. Hospital (1959), 170 Ohio St. 49, 162 N.E.2d 475.

However, because appellee challenges the correctness of those cases as precedent for such a ruling, and because the majority of the court below found that 'the doctrine of sovereign immunity cannot be supported in Ohio in the light of the history of Section 16, Article I' and because of the widespread criticism of it, the doctrine of governmental immunity in Ohio will be re-examined herein.

The Constitutions of 1803 and 1851 were silent on the question of governmental immunity, but case law by this court clearly shows that it existed in Ohio. See, State v. Franklin Bank of Columbus (1840), 10 Ohio 91; Miers v. Zanesville and Maysville Turnpike Co. (1842), 11 Ohio 273; and Seely v. State (1842), 11 Ohio 501, affirmed, 12 Ohio 496. Thus, the doctrine had a judicial origin.

In 1850, a constitutional convention was convened for the purpose of amending the Constitution of 1803. Delegate Woodbury presented the convention with the following proposal:

'When any claim or demand shall be presented to the General Assembly, and one-fourth one the members elected to either branch thereof, shall be opposed to the allowance of such claim or demand, the General Assembly shall then and forever thereafter, be prohibited from allowing the same, but provision shall be made by law for the prosecution in the courts of law and equity, of all claims or demands against the state.' Vol. 2, Debates and Proceedings of the Constitutional Convention of 1850, page 182.

Speaking on behalf of the amendment, Delegate Woodbury stated:

'We are all aware that claims are submitted to the Legislature, about which we have no means of ascertaining whether they are correct or not, because the evidence we have is merely ex parte. The allowances depend generally more upon the men who advance the claims than the justice of the claims. * * * Claims have been brought here which parties would never think of applying to a court to enforce * * *.'

He also argued that:

'Of all bodies in the world the Elgislature is the poorest to settle disputes about claims.' Id., Vol. 1, page 297.

Delegates opposing the amendment argued that the state was immune to suit and to allow it to be sued would be 'no case at all-there is no possibility of a fair trial, with the state on the one side and an individual on the other.' The 'State * * * will always be 'plucked' in the absence of * * * protection in some shape.' Id., Vol. 2, page 182.

'When the debate was over Delegate Woodbury withdrew the proposal and governmental immunity remained the law of Ohio. Id., Vol. 1, page 298. The amendment was ultimately rejected by the Convention on December 26, 1850. Id., Vol. 2, page 182. Private claims against the state were redressed only by petition to the General Assembly, as was done prior to 1850. Subsequent thereto, this court again reaffirmed the doctrine of governmental immunity in Ohio. See State, ex rel. Parrott, v. Bd. of Public Works (1881), 36 Ohio St. 409, 415, and State, ex rel. Ogelvee v. Cappeller (1883), 39 Ohio St. 207. Thus, for approximately 100 years prior to the amendment of Section 16 of Article I, this court had consistently held that the state of Ohio could not be sued without first having expressly consented to such suit.

At the 1912 Constitutional Convention, Delegate Weybrecht introduced Proposal No. 252, which was entitled 'Providing for redress of claims against the state.' Vol. 1, Proceedings and Debates of the Constitutional Convention of 1912, at page 249. The proposal was referred to the Committee on Judiciary and Bill of Rights. Id., Vol. 1, page 318. It was reported out by that committee in the following language:

Suits may be brought against the state, in such courts, and in such manner, as may be directed by law.' Id., Vol. 2, page 1431.

Speaking on behalf of the proposal, Delegate Weybrecht stated:

'The proposal * * * 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.' (Emphasis added.) Id., Vol. 2, page 1431.

Delegate Weybrecht referred to other jurisdictions whose then present procedure was in accord with Proposal No. 252:

'In our national government this ancient attribute of sovereignty was overthrown many years ago when Congress conferred on a special court the adjudication of all claims of the individual against the general government.

'Today the states of Pennsylvania, New York and Connecticut, through their constitutions, confer on the Legislature, as does this proposal, the right to designate the tribunal in which redress may be sought.'

'* * * why should the Legislature appropriate the people's money in settlement of claims against the state of dubious and uncertain origin and without the intervention of courts?' (Emphasis added.) Id., Vol. 2, page 1431.

The proposal passed with near unanimous approval and was referred to the Committee on Arrangement and Phraseology. Id., Vol. 2, page 1432. That committee changed the title to 'Suits against the state' and changed the phrase 'as may be directed by law' to 'as may be provided by law.' Id., Vol. 2, page 1797.

At the third reading, Delegate Hoskins spoke on behalf of the proposal:

'This section * * * permits a suit to be brought against the state in a manner to be provided by law. * * * The Legislature ought to have a right to provide by law for the adjustment of controversies between its citizens and the state. That is the sole purpose of this proposal.' (Emphasis added.) Id., Vol. 2, page 1919.

Delegate Woods objected to the proposal, stating: 'If this door is thrown open it will be a great expense to the state. The cases will have to be tried by juries in the local county and the idea will be that 'The state has a lot money and we will make ...