Voinovich v. Ferguson

• Citation: 62 Ohio St.3d 1224,584 N.E.2d 737
• Decision Date: 13 January 1992
• Docket Number: No. 91-1882,91-1882
• Parties: VOINOVICH, Governor, et al. v. FERGUSON, Auditor, et al.
• Court: United States State Supreme Court of Ohio

Page 1224

62 Ohio St.3d 1224

584 N.E.2d 737

VOINOVICH, Governor, et al. v. FERGUSON, Auditor, et al.

No. 91-1882.

Supreme Court of Ohio.

Submitted Jan. 8, 1992.

Decided Jan. 13, 1992.

Prior Report: 62 Ohio St.3d 1209, 581 N.E.2d 560.

This cause is pending in this court on the filing of an amended complaint for declaratory judgment and related relief. Upon consideration of the motions to dismiss of defendants Thomas E. Ferguson, Barney Quilter and Lee I. Fisher, and the demand for trial by jury of defendants Ferguson and Quilter,

IT IS ORDERED by the court that said motions to dismiss and the demand for trial by jury be, and the same are hereby, overruled.

MOYER, C.J., and HOLMES, DOUGLAS and MILLIGAN, JJ., concur.

SWEENEY, HERBERT R. BROWN and RESNICK, JJ., dissent and concur in part.

JOHN R. MILLIGAN, J., of the Fifth Appellate District, sitting for WRIGHT, J.

This cause is pending in this court on the filing of an amended complaint for declaratory judgment and related relief.

IT IS ORDERED by the court, sua sponte, that pursuant to Civ.R. 12(A) and Civ.R. 13, defendants Thomas E. Ferguson, Barney Quilter and Lee I. Fisher shall file answers to the amended complaint, and may file counterclaims, on or before January 27, 1992.

IT IS FURTHER ORDERED by the court that the parties shall file briefs on or before January 27, 1992, on the following issue: the ability of counterclaims to be independently adjudicated, pursuant to Civ.R. 13(I) and Civ.R. 42(B) or otherwise, should the plaintiffs' action be dismissed.

SWEENEY, DOUGLAS, HERBERT R. BROWN and RESNICK, JJ., concur.

MOYER, C.J., and HOLMES and MILLIGAN, JJ., dissent.

JOHN R. MILLIGAN, J., of the Fifth Appellate District, sitting for WRIGHT, J.

MOYER, Chief Justice, concurring in part and dissenting in part.

In approving the entry overruling defendants' motions to dismiss plaintiffs' amended complaint, I agree with the analysis of the issue regarding plaintiffs' standing as stated by Justice Holmes and Judge Milligan.

I dissent from the entry approved by the majority that delays our determination of the merits in this matter by requiring further briefing on the issue of the survival of a counterclaim if a complaint or amended complaint is dismissed (which has not occurred here).

All of those, both Democrats and Republicans, who will seek election to the Ohio House of Representatives and the Ohio Senate in the elections to be held this year deserve a timely and expeditious determination of the Ohio constitutional issues presented to this court. The delay already caused and the delay that will be caused by the filing of more briefs, not until January 27, on an issue that is not even relevant in view of our disposition of defendants' motions to dismiss, will make it very difficult for this court to resolve the issues arising under the Ohio Constitution that are before us prior to the February 20, 1992 filing deadline.

The parties have previously been able to meet expedited briefing schedules in this court and in the federal court in order that Ohio may have an orderly election of its state legislators in 1992. They can certainly continue to comply with such orders.

I would not require further briefing on procedural issues; would set an expedited time schedule for the filing of answers, counterclaims, and briefs; and proceed to exercise our constitutional duty to resolve the state constitutional issues presented in the pleadings.

HOLMES, Justice, concurring in part and dissenting in part.

I am in agreement that the motions of defendants Ferguson, Quilter and Fisher to dismiss this action and motions of Ferguson and Quilter for a jury trial should be overruled, and would accordingly approve such an entry. However, I am in disagreement with those portions of the entry in which the majority in essence questions (if not denies) the standing of the plaintiffs Voinovich, Taft and Aronoff to bring this action.

The defendants Ferguson and Quilter have from the outset of this proceeding not only questioned the standing of these plaintiffs, but also questioned the jurisdiction of this court to entertain this action which has been presented in the form of a declaratory judgment action. Further, the defendants claim that this matter may not be entertained here, in that there has been no justiciable case or controversy presented to this court. These are the issues that the majority of this panel, by this entry, concludes are in need of additional briefing before this court will be in position to decide the merits. With this I disagree in that there has been ample briefing before this court to lawfully conclude that not only do the plaintiffs have standing to bring this action, but there is indeed a justiciable controversy presented to this court, and this court does indeed have jurisdiction in this instance to entertain this action sounding in declaratory judgment.

At the outset, it is my position that this court does have jurisdiction in this matter to entertain a declaratory judgment action, and the power to award declaratory relief herein. The fount of such authority is to be found in Section 13, Article XI of the Ohio Constitution, which grants to the Supreme Court not only original but exclusive jurisdiction in all cases arising under Article XI which are concerned with the subject of apportionment. Such section, in pertinent part, is as follows:

"The supreme court of Ohio shall have exclusive, original jurisdiction in all cases arising under this Article. In the event that any section of this Constitution relating to apportionment or any plan of apportionment made by the persons responsible for apportionment, by a majority of their number, is determined to be invalid by either the supreme court of Ohio, or the supreme court of the United States, then notwithstanding any other provisions of this Constitution, the persons responsible for apportionment by a majority of their number shall ascertain and determine a plan of apportionment in conformity with such provisions of this Constitution as are then valid, including establishing terms of office and election of members of the general assembly from districts designated in the plan, to be used until the next regular apportionment in conformity with such provisions of this Constitution as are then valid."

Although generally appellate courts, inclusive of this court, do not entertain original actions seeking declaratory judgments, this case presents the unique situation in which by Constitution this court has been empowered with exclusive jurisdiction over actions concerning the constitutionally provided apportionment process. This exclusive jurisdiction does not provide for the specific remedy or manner by which this court shall proceed to make its determination in these controversies. However, this court does have the sua sponte power to select the appropriate form of action and manner in which it proceeds to carry out this constitutionally granted exclusive jurisdiction. The appropriate action to determine issues presented to this court under Article XI may well be by way of declaratory judgment.

Within the spirit of the Declaratory Judgment Act, an action for declaratory judgment may be entertained by a court, in the exercise of its sound discretion, where a justiciable controversy exists between adverse parties, and speedy relief is necessary to the preservation of rights which may otherwise be impaired or lost. Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 63 O.O.2d 149, 296 N.E.2d 261, paragraph one of the syllabus. See, generally, Corron v. Corron (1988), 40 Ohio St.3d 75, 531 N.E.2d 708. A declaratory judgment action seeking the construction of a statute or a law may be maintained without the plaintiff either attacking or supporting the validity of such law. Eudela v. Rogers (1984), 9 Ohio St.3d 159, 9 OBR 448, 459 N.E.2d 539. Accordingly, in Pack v. Cleveland (1982), 1 Ohio St.3d 129, 131, 1 OBR 166, 168, 438 N.E.2d 434, 437, I, on behalf of the majority, stated:

"Where a complainant asserts the validity of a law in a declaratory judgment proceeding and shows that he is affected by, or materially interested in, a statute or ordinance, and that he has a justiciable cause concerning such law, the litigant's standing may be established. A justiciable cause may be shown in these instances by the relationship of the parties concerned with the application of the law, and there need not be an actual controversy or violation of the ordinance to give one standing."

There are indeed a real controversy and justiciable issues between the parties here. First, it must be noted that the plaintiffs are the Republican majority members of the body constitutionally provided by way of Section 1, Article XI for the apportionment of the state for membership in the General Assembly. This body is referred to as the "Apportionment Board." After convening such group upon call by the Governor, an apportionment plan was formulated by the plaintiffs and published by the Governor on October 5, 1991, as required by Section 1, Article XI. The instant case involves the constitutionality of such plan. The plaintiffs have authored such plan and feel that they have devised such to the best of their ability within the framework of Article XI. However, they bring this action stating that there exists some question of conflict of such plan and certain provisions of Article XI, and that there presently exists a real, substantial and justiciable dispute and controversy between the parties concerning the correct construction of Sections 3, 4, 7, 8, 9, 10 and 11, Article XI of the Ohio Constitution under the plan and the facts of this case.

The plan having been adopted and published, there would seem to be no question that there is more than an advisory opinion sought from this court. What is sought is a determination of the constitutionality of this plan by the plaintiffs. The defendant Henry and...