Justice Pfeifer, Man of Conviction

Jul 19, 2013

Ohio has 88 counties. Each county has a court of Common Pleas. Each court of Common Pleas deals with a wide range of legal issues – domestic, criminal, probate, juvenile and just about any other dispute upon which a claim can be made.

Ohio is then divided into 12 districts, each with its own court of appeals.  The 88 counties are grouped into these various district.  For example the 9th District Court of Appeals located in Akron covers Summit, Lorain, Medina, and Wayne counties.

Ruling over all of these courts is the Ohio Supreme Court; established under Ohio’s constitution as the highest court in our state and the so-called “court of last resort.”  The Ohio Supreme Court has seven Justices, one of whom is Justice Paul E. Pfeifer. Each Ohio Supreme Justice is elected for a six-year term by a general statewide election.

The buck stops at the Ohio Supreme Court when it comes to the determination of a legal issue. An issue that arises in a county court of Common Pleas may go through the Court of Appeals and end up in the Ohio Supreme Court where the seven justices will decide its fate.  Once the Supreme Court issues a ruling it becomes the law of the land and must be followed by all the lower courts.  A majority of the seven justices is required to reach a ruling.  Those not in the majority are free to write a dissenting opinion, explaining why they do not agree with the majority opinion. 

Earlier this year the Ohio Supreme Court decided the case of Ruther v. Kaiser.  We have told you in the past that your rights are under attack by well-funded special interests that pour money into legislative and Supreme Court elections.  We have reprinted Justice Pfeifer’s Ruther dissent in full below outlining his thoughts on the attack on your rights, the time-honored law of our nation, and the Ohio Constitution itself.

It is not everyday when one of the seven highest judges in our state calls out the others for falling for the powerful and seductive money interests presently involved in Ohio politcs.

PFEIFER, J., dissenting.

{¶ 40} Early in law school, every student is introduced to the rich historical tradition and critical importance of the common law in our nation's development. Today, American judges and attorneys are invited to assist both developed and developing countries in applying our common-law traditions, which date back centuries in England, to their efforts in empowering their courts to protect basic and constitutional human rights without interference from political leaders and legislative bodies or their military establishment. The power of every citizen in the United States to seek redress in our open courts for injury done, be it by our government, another citizen, or a large corporation, is a source of some amazement and great envy in many parts of the world. That the resulting decisions by judges and juries are respected and enforced without police or military intervention is incomprehensible in some quarters. Protecting our citizens' individual fundamental constitutional rights from attack by the government is the proud duty of the American judiciary and a part of our oath.

{¶ 41} The case of Ruther v. Kaiser, rolled out amidst a blizzard of announcements by this court, will be of little immediate notice, except to the parties, the medical community, and a small, specialized element of the bar. Over time, however, Ruther will come to be known for the profound damage done to every Ohio citizen's constitutional right to remedy in open court for an injury done him in his land, goods, person, or reputation. Ohio Constitution, Article I, Section 16.

420*420 {¶ 42} The sweeping language employed by the majority in this case is the crescendo in our court's decade-long deference to, and acceptance of, the General Assembly's assault on our citizens' right to remedy set forth, without alteration, for over two centuries in the Ohio Constitution.

{¶ 43} When is a fundamental right, contained in the Ohio Constitution and Bill of Rights since 1802, no longer the individual right of an Ohio citizen? According to this court, whenever the Ohio General Assembly chooses to extinguish the right, it will no longer exist, period. The majority writes:

A plain reading of Article I Section 16 reveals that it does not provide for remedies without limitation or for any perceived injury. Rather, the right-to-remedy clause provides that the court shall be open for those to seek remedy "by due course of law." (Emphasis added.) Article I, Section 16 does not prevent the General Assembly from defining a cause of action.

Majority opinion, ¶ 12. In case the reader did not understand the breadth of the majority's devastating proclamation, it continues: "Thus, the General Assembly has the right to determine what causes of action the law will recognize and to alter the common law by abolishing the action, by defining the action, or by placing a time limit after which an injury is no longer a legal injury." Majority opinion, ¶ 14.

{¶ 44} Under Ruther, we now fully abdicate our solemn duty to enforce and protect constitutional rights afforded citizens since the beginning of statehood. If the General Assembly abolishes a remedy, including those recognized at common law when the constitution was written, it is now clearly within its power. We will afford "great deference" in presuming constitutionality of any act of the General Assembly limiting or abolishing a cause of action.

{¶ 45} Continued erosion of the venerable right of every citizen to a remedy in open court for injury done will inevitably flow from the General Assembly. It may come in small drips or in tidal waves, but it will come. The economic interests pushing limitations on causes of action are just too powerful and too seductive for the General Assembly to resist. We have now removed the Assembly's only dam against the onslaught; this court's previous vigorous enforcement of the "right to remedy" constitutional protections.

{¶ 46} When Timothy and Tracy Ruther sought a remedy in open court for injuries suffered because of a doctor's failure to properly respond to three elevated liver-enzyme tests taken more than a decade before Timothy developed a fatal liver lesion and hepatitis C, they could never have envisioned the damage their case would ultimately cause for generations of Ohioans yet to be injured. 421*421 Their personal tragedy has evolved into a undiscovered nightmare for legions of Ohioans who will find the courthouse doors barred for the presentation of their future legitimate injury claims.

{¶ 47} I dissent.

As pointed out by Justice Pfeifer, this decision by the majority of our supreme court will clear the way for the Ohio Legislature to enact laws overriding individuals’ rights as previously protected by the Ohio Constitution.


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