A 1968 amendment to the Ohio Constitution granted the Supreme Court of Ohio the authority to promulgate “rules governing practice and procedure” for Ohio courts. The amendment also provided that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect” and that no rule may “abridge, enlarge, or modify any substantive right.”
Although the amendment was explicit about automatic repeal of existing laws, it says nothing about whether the General Assembly may legislate on a procedural matter after a court rule takes effect. That silence has caused enduring confusion. Since 1968, the Supreme Court of Ohio has considered dozens of cases in which a court-promulgated rule appears to conflict with a subsequently enacted statute.
The court has reached two views on whether later-enacted statutes that conflict with existing court rules are constitutional. One holds that, because the constitution grants rulemaking authority exclusively to the court, the General Assembly has no authority once the court promulgates a procedural rule. It has also held the opposite: the General Assembly may legislate on a procedural matter already addressed in a court rule if the legislature intends to remake that “matter of practice or procedure” into a “substantive right.” These contradictory interpretations cannot both be right, yet each remains controlling precedent in Ohio.
Neither of the court’s contradictory rulings rests on a cogent textual analysis of the 1968 amendment. This failing, however, is no reflection on the court. A definitive resolution of the conflicting interpretations is impossible because the sparse language of the amendment simply does not contain enough textual foundation from which to derive a compelling, permanent answer—one way or the other.
The authors propose an amendment that would add language to the 1968 amendment. By providing a textual basis for the court’s second interpretive ruling, it would make clear and permanent the legislature’s authority to share in the process of forming court rules. It would align Ohio’s rulemaking process with Congress’s participation in rulemaking for federal courts and with the large majority of states that preserve for their legislatures at least some participation in forming the content of rules of practice and procedure.
Richard S. Walinski and Mark D. Wagoner Jr.,
Ohio's Modern Courts Amendment Must Be Amended: Why and How,
66 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol66/iss1/7