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Jury Trials Not Permitted in Cases Referred to Private Judges, Courts May Allow Use of Facilities

2005-2130. State ex rel. Russo v. McDonnell, 2006-Ohio-3459.
In Prohibition. Writ granted in part and denied in part.
Resnick, Acting C.J., McGrath, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Pfeifer, J., dissents.
Patrick M. McGrath, J., of the Tenth Appellate District, sitting for Moyer, C.J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2006/2006-Ohio-3459.pdf

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(July 12, 2006) In a case out of Cuyahoga County, the Supreme Court of Ohio today ruled that when litigants in a civil action agree to have their case heard by a private judge, if the matter goes to a trial it must be heard by the private judge and not by a jury. In addition, the Court in today's decision ruled that a court where a privately judged action is pending is not required to provide facilities, equipment or personnel but may at its discretion do so if the parties agree to pay the costs.

The 6-1 decision was authored by Justice Terrence O'Donnell. Justice Paul E. Pfeifer entered a dissent.

R.C. 2701.10 authorizes state courts, at the request of the parties in a lawsuit, to refer a pending civil case or selected issues in a pending civil case for “private” adjudication by a retired judge who is compensated by the parties rather than by a sitting judge of the local court paid with tax dollars. In this case, Judge Nancy Russo of the Cuyahoga County Common Pleas Court filed for a writ of prohibition ordering the administrative judge of that court, Judge Richard J. McMonagle (now Judge Nancy R. McDonnell), to stop authorizing retired judges to whom cases have been referred under R.C. 2701.10 to conduct jury trials. Judge Russo also asked the Supreme Court to prohibit the use of publicly funded courtroom facilities, jurors and court reporters for cases that have been referred for “private judging.”

Citing the plain language of the statute and previous Supreme Court cases that have established when a jury trial is appropriate, Justice O'Donnell wrote in today's opinion that the law and rules governing the judiciary require that matters referred to a private judge be heard by the private judge and not by a jury.

“…[O] ur own precedent supports the conclusion that the requirement in R.C. 2701.10 that the ‘judge' to whom a case is referred “try all of the issues in the action or proceeding” denies the judge the authority to conduct a jury trial.”

O'Donnell's opinion rejected McDonnell and McMonagle's assertion that R.C. 2701.10 allows for jury trials by granting retired judges hearing cases on referral “all of the powers, duties and authority of an active judge of the (referring) court.”

“That statement, however, must be read in pari materia (in conjunction with or in the context of) all of R.C. 2701.10 and Gov.Jud.R. VI, which manifestly restrict the proceedings referred and matters submitted to bench trials,” O'Donnell wrote.

To assert that parties agreeing to a private judge have a right for the matter to be heard by a jury would in effect be not interpreting the statute but adding to it, O'Donnell wrote.

In addition, the Court rejected the argument that because R.C. 2701.10 does not expressly mention the right to a jury trial it cannot expressly prohibit that right. “There is no right to a jury trial,” O'Donnell writes, “unless that right is extended by statute or existed at common law prior to the adoption of the Ohio Constitution.”

Finally, the majority opinion noted that the right to a jury trial may be waived and ruled that an agreement to refer a matter to a private judge constitutes a jury trial waiver.

“As with other forms of alternative-dispute-resolution techniques, parties entering into an agreement to refer a case or issues to a private judge under R.C. 2701.10 and Gov.Jud.R. VI manifestly waive their right to a jury trial.”

With regard to providing use of court facilities, equipment and personnel to parties agreeing for their dispute to be heard by a private judge, Justice O'Donnell wrote: “Although R.C. 2701.10(C) states that ‘[t]he court in which the action or proceeding is pending is not required to provide the retired judge with court or other facilities, equipment, or personnel during his consideration of the action, proceeding, issue, or question,' it does not preclude the court from doing so. The sole caveat is provided by R.C. 2701.10(B)(1)(d), which requires the parties seeking the use of retired judges pursuant to the private-judging provision to ‘pay all costs arising out of the provision of facilities, equipment, and personnel' reasonably needed by the retired judge. Consequently, in matters referred to private judges pursuant to R.C. 2701.10 and Gov.Jud.R. VI, the court in which the action or proceeding is pending is not required to provide the retired judge with court or other facilities, equipment, or personnel, but may in its discretion do so if the parties assume the responsibility and pay for all costs arising out of the provision of the facilities, equipment, and personnel.”

Justice O'Donnell's opinion was joined by Justices Alice Robie Resnick, Evelyn Lundberg Stratton, Maureen O'Connor and Judith Ann Lanzinger. Also voting in the majority was Judge Patrick M. McGrath, of the 10th District Court of Appeals, sitting for Chief Justice Thomas J. Moyer, who recused himself from the case.

Justice Pfeifer wrote in dissent: “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.”

Citing the section of the private judging statute that grants to private judges “all of the powers, duties and authority of an active judge of the (referring) court,” Justice Pfeifer argued that a provision of Ohio's civil rules of procedure (Civ.R. 39(C)) includes among these powers the authority for judges to refer a case to a jury.

In addition, Justice Pfeifer rejected the majority's conclusion that litigants agreeing to a private judge waive their 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” Justice Pfeifer wrote. “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.”

Finally, Justice Pfeifer rejected the majority's argument that “[t]here 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.”

“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. … Why is the constitutional right to a trial by jury different?”

Contacts
Robert A. Zimmerman, 216.696.3311, for Judge Nancy M. Russo.

Kenneth J. Fisher, 216.696.7661, for Judge Richard J. McMonagle.