Citations
- 86 Ohio St. 3d 451
Full opinion text
Alice Robie Resnick, J.
I
Am.Sub.H.B. No. 350 Converts the Drive for Civil Justice Reform into an Attack on the Judiciary as a Coordinate Branch of Government
For more than a decade, Ohio has been home to an ongoing conflict over the necessity and propriety of transforming the civil justice system. In its most elementary form, this conflict reflects a power struggle between those who seek to limit their liability and financial exposure for civil wrongs and those who seek compensation for their injuries. Research indicates that there is a vast amount of scholarly analysis available' on either side of virtually every conceivable aspect of this debate. All arguments going to the soundness of legislative policy choices, however, are directed to their proper place, which is outside the door to this courthouse. This court “has nothing to do with the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the government.” State ex rel. Bishop v. Mt. Orab Village School Dist. Bd. of Edn. (1942), 139 Ohio St. 427, 438, 22 O.O. 494, 498, 40 N.E.2d 913, 919. “The only judicial inquiry into the constitutionality of a statute involves the question of legislative power, not legislative wisdom.” State ex rel. Bowman v. Allen Cty. Bd. of Commrs. (1931), 124 Ohio St. 174, 196, 177 N.E. 271, 278.
This struggle, waged by powerful and capable interests on both sides of the issue, has created turbulence among our coordinate branches of government. While the General Assembly and former Governor Voinovieh have clearly expressed their commitment to revamp the civil justice system, this court has struck down significant components of these legislative measures as having gone too far, to the point of violating the constitutional rights of our citizens. Nevertheless, each has endeavored to comport with the principle of separation of powers and respect the integrity and independence of the other, that is, until now.
Am.Sub.H.B. No. 350 is the latest effort at civil justice reform and, to be sure, the most comprehensive and multifarious legislative measure thus far. More important, it changes the complexion of the reform debate into a challenge to the judiciary as a coordinate branch of government. It marks the first time in modern history that the General Assembly has openly challenged this court’s authority to prescribe rules governing the courts of Ohio and to render definitive interpretations of the Ohio Constitution binding upon the other branches.
II
It Is the Constitutional Duty of the Supreme Court of Ohio to Preserve the Integrity and Independence of the Judiciary and Ensure that the Judicial Power of the State Remains Vested in the Courts
As detailed in footnote 7 and below, Am.Sub.H.B. No. 350 intrudes upon judicial power by declaring itself constitutional, by reenacting legislation struck down as unconstitutional, and by interfering with this court’s power to regulate court procedure. To appreciate the importance of separation of powers we need look no further than Ohio’s own history.
“[T]he people possessing all governmental power, adopted constitutions, completely distributing it to appropriate departments.” Hale v. State (1896), 55 Ohio St. 210, 214, 45 N.E. 199, 200. They vested the legislative power of the state in the General Assembly (Section 1, Article II, Ohio Constitution), the executive power in the Governor (Section 5, Article III, Ohio Constitution), and the judicial power in the courts (Section 1, Article IV, Ohio Constitution). , They also specified that “[t]he general assembly shall [not] * * * exercise any judicial power, not herein expressly conferred.” Section 32, Article II, Ohio Constitution.
The power and duty of the judiciary to determine the constitutionality and, therefore, the validity of the acts of the other branches of government have been firmly established as an essential feature of the Ohio system of separation of powers. See, e.g., Beagle v. Walden (1997), 78 Ohio St.3d 59, 62, 676 N.E.2d 506, 508 (“[interpretation of the state and federal Constitutions is a role exclusive to the judicial branch”). However, this was not always so, and a major part of our history involves a continuing effort to establish and secure this power as intrinsic to the judiciary and, indeed, to establish the judiciary as a viable and coequal branch of our government.
On April 30, 1802, Congress approved an “Act to enable the people of the Eastern division of the territory northwest of the river Ohio to form a constitution and state government, and for the admission of such state into the Union, on an equal footing with the original States, and for other purposes.” 2 Stat. 173 (1802).' On November 1, 1802, over the objections of Governor Arthur St. Clair, Ohio’s first constitutional convention assembled at Chillicothe and proceeded to form a constitution which led to statehood in 1803.* *
The 1802 Constitution evinces a strong reaction to the executive autocracy that prevailed under the Ordinance of 1787, and touched off an era of legislative dominance. The General Assembly had the power of judicial appointment under Section 8, Article III of the Constitution of 1802, and considered the judiciary a subordinate governmental department. Four years after Ohio achieved statehood and the United States Supreme Court handed down its decision in Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 2 L.Ed. 60, Chief Justice Samuel Huntington and Judge George Tod of the Ohio Supreme Court held Section 5 of the Act of February 12, 1805, 3 Ohio Laws 14, 21, to be repugnant to Section 8, Article 8, Constitution of Ohio, 1802, and therefore void and of no binding effect. Rutherford v. M’Faddon (1807), Pollack, Ohio Unreported Judicial Decisions Prior To 1823 (1952) 71.
In asserting the court’s authority to determine the constitutionality of a legislative Act, Chief Justice Huntington wrote that “our constitution * * * is the supreme law of the land, and paramount to any legislative act,” that “the judiciary [is] a co-ordinate branch of the government deriving its authority from the constitution,” and that “[t]he people can never be secure under any form of government, where there is no check among the several departments.” Id. at 73, 74, 75. He went on to explain that if it is true that “the legislature can pass unconstitutional acts — that they are the sole judges of their constitutionality— and if unconstitutional, that there is no remedy; then indeed is our constitution a blank paper: there is no guarantee for a single right to citizens; * * * but slavery may be introduced; a religious test may be established; the press may be fettered or restrained; the trial by jury may be abolished; ex post facto laws may be made; standing armies may be raised, and the whole train of evils against which our constitution meant to provide, may be gradually let in upon us.” (Emphasis sic.) Id. at 76.
Judge Tod, concurring, added:
“The people in this, their fundamental law, have entered into a solemn covenant with every individual citizen, that [their] inherent rights shall be protected, even against the encroachments of legislative authority. If a law was to be passed, inflicting death on a person convicted of larceny' — or that a particular class of citizens should have the exclusive privilege of acquiring and possessing property, and that all others should be proscribed and doomed to exile; could not the devoted victims of such legislative tyranny, claim, with a confidence inspired by the constitution, the interfering power of the judicial courts? Could they not entrench themselves within the ramparts raised by the constitution, and then in safety bid defiance to such attempts?” Id. at 85-86.
Judge Tod explained that “[i]f legislative acts are to all intents obligatory on the court — the constitution is a subordinate instrument — liable to be annulled, altered and amended by legislative supremacy. Their acts would not only be equal, but superior to that charter, which has the sanction of ‘We the people do ordain and establish.’ ” Id. at 87.
On January 9, 1809, Judge Tod stood on trial before the Ohio Senate, charged as follows:
“That he did in his judicial capacity, adjudicate and determine, that the said * * * act of the general assembly * * * was unconstitutional, null and void, * * * to the evil example of all good citizens of the State of Ohio * * * contrary to its constitution and laws, disgraceful to his own character as a judge, and degrading to the honor and dignity of the State of Ohio.” House Journal of the 7th Ohio General Assembly, 47, 79; Journal of the Senate of Ohio in Cases of Impeachment (1808-1809) 53.
Although Judge Tod was acquitted by a margin of one vote, the majority of the General Assembly quickly retaliated. The provision held to be unconstitutional in Rutherford was reenacted in an even stronger form. House Journal, supra, at 164; 7 Ohio Laws 43, 49. On January 16,1810, the General Assembly passed the “sweeping resolution,” which declared that all judicial offices carrying a seven-year appointment would become vacant on the state’s seventh anniversary regardless of interim appointments that had been made to fill vacancies. 8 Ohio Laws 349. By virtue of this resolution, the General Assembly was able to sweep out of office those judges whose views on judicial review differed from the legislative majority, including Judge Tod, and appoint in their place those whose views were more in harmony with their own. See Pollack, supra, at 102-105; 3 Marshall, A History of the Courts and Lawyers of Ohio (1934) 722-727; Gilkey, The Ohio Hundred Year Book (1901) 468.
The legislature also became heavily involved in the subsidization of private companies and the granting of special privileges in corporate charters. The General Assembly passed a number of Acts, most notably the Loan Law of 1837, 35 Ohio Laws 76, which became known as the “Plunder Law,” designed to loan credit or give financial aid to private canal, bridge, turnpike, and railroad companies. Between 1825 and 1830, the total state debt increased nearly elevenfold and more than doubled again by 1840. The public began to bemoan the taxes imposed on them for the benefit of private companies and the losses incurred by the state when subsidized corporations failed. See Gold, Public Aid to Private Enterprise Under the Ohio Constitution: Sections 4, 6, and 13 of Article VIII In Historical Perspective (1985), 16 U.ToLL.Rev. 405, 407-423.
This era of legislative dominance, which proved as undesirable as the executive supremacy which preceded it, led to the Constitutional Convention of 1851 and the adoption of our second Constitution. Just as the Constitution of 1802 had reflected an aversion to an all-powerful executive, so the Constitution of 1851 was inspired by an antipathy toward an all-powerful legislature and a desire for more independence of each branch of our tripartite system of government. One delegate to the convention expressed this belief:
“To the Legislative department * * * is expressly delegated an almost boundless discretion, and an almost unlimited authority * * *. It is, then, in the Legislative department of the Government that the rights of the people will be usurped and sacrificed, in my opinion, if at all. And it is this body, possessing by far the most vast and dangerous discretion of any body under the constitution, that we should especially watch and restrain.
“Mr. President, I am not one of those who believe that * * * any essential or any lasting encroachment will be made upon the essential liberties of the mass of the people. But, sir, so far as any encroachments upon the popular rights may be made, they will be made by the Legislative body. They will not proceed from a military dictator; they will not proceed from the Judicial Power. They will not proceed from an over-riding executive, but from an irrational, excited, triumphant party majority in the Halls of the Legislature.
“I am, therefore, especially anxious to guard well the limits of the exercise of the Legislative Power.
“ * * * I shall vote to take away from the Legislature all power to pass local, partial, private and exposte facto [sic ] laws. I shall vote for an executive veto. I shall vote to take away from the Legislature all power to appoint officers, or to intervene with the Judiciary; and in fine, I shall vote to define and limit as closely as possible, the exact line in which the Legislative Department shall move.” 1 Debates of the Constitutional Convention, 1851-52, at 123.
Another delegate summarized the overall sentiment as follows:
“What kind of a General Assembly shall we have under the new Constitution? In view of all the opinions which we have gathered from each other with reference to what our constitution will be, we must expect to have a General Assembly stripped of certain important powers which it before possessed; stripped of the power to enact special laws or creating special corporations; stripped of the appointing power; stripped of the apportionment power, and of the power of special legislation. We shall have a General Assembly reduced materially in power and the scope of duties, in all its arrangements; and we shall thus take away from them as much as possible all temptation to the abuse of their powers. * * *
“ * * * Under the old Constitution, the legislature swallowed up all the rest of the government. They constituted not only the Legislature, but the Executive and Judiciary to some extent. Now it seems to me, that by confining the Legislature, to their appropriate law making functions, we shall have accomplished everything the people have asked for; that is we shall have established a just equilibrium in the government. We shall have an active Legislature — if they meet annually; an active Governor; and a more active Judiciary, thus restoring the harmony that has been so long disturbed under the old Constitution, in all the different departments of governments.” Id. at 174-175.
Our second Constitution was adopted on March 10,1851, and the following year the court, in Cincinnati, Wilmington & Zanesville RR. Co. v. Clinton Cty. Commrs. (1852), 1 Ohio St. 77, held:
“It is the right and duty of the judicial tribunals to determine, whether a legislative act drawn in question in a suit pending before them, is opposed to the constitution of the United States, or of this State, and if so found, to treat it as a nullity.” Id., paragraph one of the syllabus.
In so holding, the court expounded as follows:
“How any doubt could ever have been entertained upon this subject, is matter of no little astonishment; and yet the history of our own State shows, that the power was, at one time, not only doubted, but positively denied; and judges, for a fearless discharge of this duty, were subjected to impeachment by the house of representatives. * * *
« * * *
“To adjudicate upon, and protect [individual] rights and interests, constitute the whole business of the judicial department. Each judge before he is permitted to enter upon so important a duty, is required to bind his conscience by a solemn oath to support these constitutions. After all this, when he is clearly convinced, their provisions have been violated, and the rights of the individual secured by them, have been invaded by a legislative enactment, he has but one of two courses to pursue — either to regard his oath, vindicate the fundamental law, and protect the rights of the individual citizen, or to give effect to an act of usurped authority. In such case, it cannot be doubtful where the path of duty leads. The latter alternative can only be followed, when we are to nullify all constitutional guaranties, and proclaim the legislative body, like the British Parliament, omnipotent.” Id. at 81-82.
Thereafter, the power of constitutional adjudication was secured exclusively in the judiciary, essential to its integrity and independence, serving, fundamentally and intrinsically, as a check upon the other branches. Once doubted, it became axiomatic that the judicial branch is the final arbiter in interpreting the Constitution and that the General Assembly may not enter upon the judicial business of settling the constitutionality of its own laws, disregard a Supreme Court decision on the subject, reenact legislation previously declared violative of the Constitution, or in any other way exercise, direct, control, or encroach upon the judicial power. Temporally connected to the formative history of our second Constitution, our early decisions reflect the proven dangers of a subservient judiciary. We learn therefrom to jealously guard the judicial power against encroachment from the other two branches of government and to conscientiously perform our constitutional duties and continue our most precious legacy. See, e.g., Ex parte Bevan (1933), 126 Ohio St. 126, 184 N.E. 393; Bowman v. Allen Cty. Bd. of Commrs. (1931), 124 Ohio St. 174, 177 N.E. 271; State ex rel. Bryant v. Akron Metro. Park Disk for Summit Cty. (1929), 120 Ohio St. 464, 473-475, 166 N.E. 407, 410; State ex rel. Davis v. Hildebrant (1916), 94 Ohio St. 154, 169, 114 N.E. 55, 59; State ex rel. Weinberger v. Miller (1912), 87 Ohio St. 12, 99 N.E. 1078; Fairview v. Giffee (1905), 73 Ohio St. 183, 76 N.E. 865; Bartlett v. State (1905), 73 Ohio St. 54, 75 N.E. 939; State ex rel. Trauger v. Nash (1902), 66 Ohio St. 612, 64 N.E. 558; Zanesville v. Zanesville Tel. & Tel. Co. (1900), 63 Ohio St. 442, 451, 59 N.E. 109, 110; Hale v. State (1896), 55 Ohio St. 210, 45 N.E. 199; Hixson v. Burson (1896), 54 Ohio St. 470, 43 N.E. 1000; State ex rel. Atty. Gen. v. Harmon (1877), 31 Ohio St. 250; State ex rel. Atty. Gen. v. Kennon (1857), 7 Ohio St. 546, 553-554; Cass v. Dillon (1853), 2 Ohio St. 607.
Ill
This Court Will Entertain a Public Action in the Rare and Extraordinary Case Where Relators Challenge the Constitutionality of a Legislative Enactment on Grounds that It Operates, Directly and Broadly, to Divest the Courts of Judicial Power
Perhaps the most amorphous and contentious aspect of this litigation involves the question whether relators’ claims should even be heard at this juncture. In their motions to dismiss, and again in their merit briefs, respondents contend that this action is an inappropriate vehicle for determining the constitutionality of Am.Sub.H.B. No. 350, as it involves the wrong parties seeking the wrong relief in the wrong court. Respondents argue that relators are not the proper parties to raise constitutional questions because they have failed to show the necessary personal injury to establish standing to sue in a court in Ohio. Respondents assert that relators have demonstrated no more than an insufficient generalized public interest in the enforcement of Am.Sub.H.B. No. 350, and that relators’ claims of potential financial loss hardly rise to the level of concrete injury required for standing. According to respondents, relators have no standing to bring an action as taxpayers because they are not enforcing a public right, and because they have failed to demonstrate pecuniary harm different from the harm suffered by the general taxpaying public.
Respondents also maintain that the present form of action is an improper means by which to secure judicial review. Since the unconstitutionality of a statute does not deprive a trial court of the jurisdiction to proceed to its terms, it is inappropriate to grant an extraordinary writ to compel or prohibit trial judges in the exercise of their essential function to adjudicate constitutional questions. Further, adequate procedural mechanisms are available in the ordinary course of law to any tort victim who wishes to challenge the constitutionality of Am.Sub. H.B. No. 350. In addition, the argument continues, relators’ requests for prohibitive and mandatory writs are actually disguised requests for declaratory and injunctive relief, which this court has no original jurisdiction to grant. Respondents urge that we allow the normal judicial process to run its course, whereby the constitutionality of the various components of Am.Sub.H.B. No. 350 would be determined by trial courts as they arise in individual tort and other civil actions, and then proceed piecemeal through the appellate process toward a final determination by this court.
It is well established that before an Ohio court can consider the merits of a legal claim, the person seeking relief must establish standing to sue. Ohio Contractors Assn. v. Bicking (1994), 71 Ohio St.3d 318, 320, 643 N.E.2d 1088, 1089. The concept of standing embodies general concerns about how courts should function in a democratic system of government. As the court explained in Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 35, 257 N.E.2d 371, 372:
“It has been long and well established that it is the duty of every judicial tribunal to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect. It has become settled judicial responsibility for courts to refrain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declarations or advice upon potential controversies. The extension of this principle includes enactments of the General Assembly.”
These concerns become more acute where there may be an intrusion into areas committed to another and coequal branch of government. The judicial “power to declare legislative enactments unconstitutional is not a superior power, neither one of veto nor of greater wisdom. It is rather a power burdened with a duty — a duty to determine in particular cases whether the Legislature has reached and passed the extreme boundary of its legislative power.” Ostrander v. Preece (1935), 129 Ohio St. 625, 629, 3 O.O. 24, 26, 196 N.E. 670, 672. Thus, the judicial function does not begin until after the legislative process is completed and “the void law is about to be enforced against a citizen to his prejudice.” Otherwise, if “no private rights of person or property are in jeopardy, * * * [w]e are simply asked to regulate the affairs of another branch of government.” Pfeifer v. Graves (1913), 88 Ohio St. 473, 488, 104 N.E. 529, 533.
Accordingly, in the vast majority of cases brought by a private litigant, “ ‘the question of standing depends upon whether the party has alleged such a personal stake in the outcome of the controversy, as to ensure that the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.’ ” (Citations and internal quotations omitted.) State ex rel. Dallman v. Franklin Cty. Court of Common Pleas (1973), 35 Ohio St.2d 176, 178-179, 64 O.O.2d 103, 105, 298 N.E.2d 515, 516, quoting Sierra Club v. Morton (1972), 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636, 641. In order to have standing to attack the constitutionality of a legislative enactment, the private litigant must generally show that he or she has suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the public in general, that the law in question has caused the injury, and that the relief requested will redress the injury. See Bicking, supra; Willoughby Hills v. C.C. Bar’s Sahara, Inc. (1992), 64 Ohio St.3d 24, 27, 591 N.E.2d 1203, 1205; Palazzi v. Estate of Gardner (1987), 32 Ohio St.3d 169, 512 N.E.2d 971, at the syllabus; Anderson v. Brown (1968), 13 Ohio St.2d 53, 42 O.O.2d 100, 233 N.E.2d 584, paragraph one of the syllabus; State ex rel. Lynch v. Rhodes (1964), 176 Ohio St. 251, 254, 27 O.O.2d 155, 156, 199 N.E.2d 393, 396; State ex rel. Skilton v. Miller (1955), 164 Ohio St. 163, 169, 57 O.O. 145, 149, 128 N.E.2d 47, 51; Zangerle v. Evatt (1942), 139 Ohio St. 563, 574, 23 O.O. 52, 57, 41 N.E.2d 369, 374. See, generally, 16 Ohio Jurisprudence 3d (1979) 266, 270, Constitutional Law, Sections 134 and 135.
In the federal judicial system, where the requirement for injury is grounded in the constitutional requirements of Section 2, Article III of the United States Constitution, the necessity of showing injury in fact prevails irrespective of whether the complaining party seeks to enforce a private or public right. See Whitmore v. Arkansas (1990), 495 U.S. 149, 155, 110 S.Ct. 1717, 1722-1723, 109 L.Ed.2d 135, 145; Secy, of State of Maryland v. Joseph H. Munson Co., Inc. (1984), 467 U.S. 947, 954, 104 S.Ct. 2839, 2845, 81 L.Ed.2d 786, 794; Singleton v. Wulff (1976), 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826, 832; Sierra Club v. Morton (1972), 405 U.S. 727, 736-740, 92 S.Ct. 1361, 1367-1368, 31 L.Ed.2d 636, 643-646. However, the federal decisions in this area are not binding upon this court, and we are free to dispense with the requirement for injury where the public interest so demands. “Unlike the federal courts, state courts are not bound by constitutional strictures on standing; with state courts standing is a self-imposed rule of restraint. State courts need not become enmeshed in the federal complexities and technicalities involving standing and are free to reject procedural frustrations in favor of just and expeditious determination on the ultimate merits.” (Footnote omitted.) 59 American Jurisprudence 2d (1987) 415, Parties, Section 30.
This court has long taken the position that when the issues sought to be litigated are of great importance and interest to the public, they may be resolved in a form of action that involves no rights or obligations peculiar to named parties. Thus, in In re Assignment of Judges to Hold Dist. Courts (1878), 34 Ohio St. 431, it was held that two legislative enactments, 75 Ohio Laws 139 and 537, which undertook to reconstruct the common pleas districts of the state, would work “the substantial destruction of,” id. at 436, constituted “an attempt to overthrow,” id. at 438, and were “subversive of the judicial system established by the constitution,” id. at 439. The court, viewing the issues presented as “of the highest importance,” id. at 432, determined the constitutionality of the acts solely upon the submission of briefs of amici curiae.
In State v. Brown, (1882), 38 Ohio St. 344, at paragraph one of the syllabus, the court held that “[a] proceeding in mandamus to compel the sheriff to give notice and make proclamation to the qualified voters of a county to elect a judge of the court of common pleas therein is properly instituted upon the relation of an elector of such county.” In so holding, the court explained as follows:
“It is said that this proceeding could only be properly instituted upon the relation of the attorney-general, and that the relator is not a party ‘beneficially interested’ in the sense in which that term is used in the [mandamus] statute. * * * This objection, we think, is not well taken. The relator, as a citizen of Clermont county, is interested in having the proper number of courts and judges to administer justice therein; as an elector, he would be entitled to vote át the election, if an election were proper, and would be himself eligible to the office.” Id. at 346-347.
In State ex rel. Meyer v. Henderson (1883), 38 Ohio St. 644, the court held that the Clerk of the city of Cincinnati was required, under an ordinance, to advertise for sealed proposals for the construction of a street railway. In discussing whether the clerk could be compelled by mandamus to perform this duty, upon the relation of a citizen and owner of property along the line of the proposed railroad, the court explained:
“As regards the degree of interest on the part of the relator, requisite to make him a proper party on whose information the proceedings may be instituted, a distinction is taken between cases where the extraordinary aid of a mandamus is invoked, merely for the purpose of enforcing or protecting a private right, unconnected with the public interest, and those cases where the purpose of the application is the enforcement of a purely public right, where the people at large are the real party in interest, and, while the authorities are somewhat conflicting, yet the decided weight of authority supports the proposition that, where the relief is sought merely for the protection of private rights, the relator must show some personal or special interest in the subject matter, since he is regarded as the real party in interest and his rights must clearly appear. On the other hand, where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party, and the relator need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen, and, as such, interested in the execution of the laws.” Id. at 648-649.
In State ex rel. Trauger v. Nash, supra, relator, as an elector, citizen, and taxpayer, filed an action in mandamus to compel Governor George K. Nash to fill a vacancy in the office of Lieutenant Governor created by the resignation of Carl L. Nippert. The court held that “[t]he attorney general not having become such, a private citizen may be the relator in a mandamus proceeding to enforce the performance of a public duty affecting himself as a citizen and the citizens of the state at large.” Id. at paragraph one of the syllabus. In so holding, the court explained:
“[I]t may be conceded that a majority of the courts which have pronounced opinions on the subject, have held that a private relator applying for a mandamus must show a special interest in himself; but even in some of those jurisdictions it has been said that ‘the rule which rejects the intervention of private complainants against public grievances is one of discretion and not of law.’ Ayres v. Board of State Auditors [1880], 42 Mich. 422, 429 [4 N.W. 274, 278-279]. And in the same case, pages 429-430 [4 N.W. 274, 279], the court made the following observations which are very pertinent here: ‘ * * * There are serious objections against allowing mere interlopers to meddle with the affairs of the state, and it is not usually allowed unless under circumstances when the public injury by its refusal will be serious.’ ” (Emphasis added.) Id., 66 Ohio St. at 615-616, 64 N.E. at 558-559.
In State ex rel. Newell v. Brown (1954), 162 Ohio St. 147, 54 O.O. 392, 122 N.E.2d 105, relator, as citizen, taxpayer, and elector of Cleveland Heights, filed an original action in prohibition in this court seeking to prevent the Secretary of State and the members of the Board of Elections of Cuyahoga County from placing on a ballot the names of certain candidates for the office of several judgeships. In allowing the action and ultimately finding R.C. 3513.256 unconstitutional, the court held, at paragraph one of the syllabus:
“Ordinarily a person is not authorized to attack the constitutionality of a statute, where his private rights have suffered no interference or impairment, but as a matter of public policy a citizen does have such an interest in his government as to give him capacity to maintain a proper action to enforce the performance of a public duty affecting himself and citizens generally.”
The court explained that “[w]here a public right, as distinguished from a purely private right, is involved, a citizen need not show any special interest therein, but he may maintain a proper action predicated on his citizenship relation to such public right. This doctrine has been steadily adhered to by this court over the years.” Id. at 150-151, 54 O.O. at 393, 122 N.E.2d at 107.
More recently, in State ex rel. Cater v. N. Olmsted (1994), 69 Ohio St.3d 315, 322-323, 631 N.E.2d 1048, 1054-1055, we held that a taxpayer has standing as such to enforce the public’s right to proper execution of city charter removal provisions, regardless of any private or personal benefit. While the mandamus action in Cater was brought pursuant to R.C. 733.59, which specifically provides for judicial review, we have made clear that R.C. 733.56 through 733.61 merely codify the public-right doctrine as to municipal corporations, and that the doctrine exists independent of any statute authorizing invocation of the judicial process. State ex rel. Nimon v. Springdale (1966), 6 Ohio St.2d 1, 4-5, 35 O.O.2d 1, 3, 215 N.E.2d 592, 595. In particular, the court in Nimon listed a long line of cases in support of the citizen/taxpayer-mandamus action, and explained that “no case cited in the footnote involves (1) a municipal corporation; (2) Section 733.59, Revised Code, or any statute similar thereto; or (3) an extrastatutory demand upon, and refusal of, a county prosecutor, the Attorney General or other public legal officer to institute the suit.” Id., 6 Ohio St.2d at 4, 35 O.O.2d at 3, 215 N.E.2d at 595. See, also, 67 Ohio Jurisprudence 3d (1986) 388-390, Mandamus, Section 124.
Thus, the public action is fully conceived in Ohio as a means to vindicate the general public interest. The only question that remains is whether the present action should be allowed to proceed as a private action, a public action, neither, or both.
In support of their claim for a personal or private right to secure judicial review, relators have submitted uncontroverted affidavits to the effect that Am.Sub.H.B. No. 350 has caused OATL to lose dues-paying members, and its members to lose fees and clients. While we do not question the accuracy or veracity of relators’ affidavits, we must reject the doctrine of lawyer standing. Virtually every legislative action is bound to affect at least some attorneys who practice in an area of law related to the subject of the legislation. Since any injury, however small, is sufficient for purposes of private-action standing, there would be no objective basis upon which to disallow suits by attorneys or their organizations to challenge any number of statutory enactments. Quite frankly, we are not willing to allow every lawyer who suffers a diminution in income traceable to legislation to mount a constitutional challenge in his or her own right. Accordingly, we find that the present action should not be allowed as a private action.
However, there can be no doubt that the issues sought to be litigated in this case are of such a high order of public concern as to justify allowing this action as a public action. The people of this state have delegated their judicial power to the courts, and have expressly prohibited the General Assembly from exercising it. Section 1, Article IV, and Section 32, Article II, Ohio Constitution. “A people does not lose majesty by achieving liberty.” Hale, supra, 55 Ohio St. at 214, 45 N.E. at 200. The argument surely defeats itself that proclaims that the people’s interest in keeping the judicial power of the state in those in whom they vested it does not rise to the level of a public right. Indeed, it is difficult to imagine a right more public in nature than one whose usurpation has been described as the very definition of tyranny. See State ex rel. Bryant, supra, 120 Ohio St. at 473, 166 N.E. at 410; Zanesville, supra, 63 Ohio St. at 451, 59 N.E. at 110. If the General Assembly could, even inadvertently, reenact legislation declared unconstitutional by this court and “require the courts to treat [these laws] as valid * * * the whole power of the government would at once become absorbed and taken into itself by the legislature.” Bartlett, supra, 73 Ohio St. at 58, 75 N.E. at 941.
We are well aware, as respondents point out, that the unconstitutionality of a statute does not deprive a court of the initial jurisdiction to proceed to its terms; and, therefore, a writ of prohibition will not lie to prevent a court of common pleas from determining its own jurisdiction or rendering an anticipated erroneous judgment. See State ex rel. Crebs v. Wayne Cty. Court of Common Pleas (1974), 38 Ohio St.2d 51, 52, 67 O.O.2d 61, 309 N.E.2d 926, 927; State ex rel. Heimann v. George (1976), 45 Ohio St.2d 231, 232, 74 O.O.2d 376, 377, 344 N.E.2d 130, 131. See, also, State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 74, 701 N.E.2d 1002, 1006. However, this case has little to do with the jurisdiction of common pleas courts to initially determine constitutional questions or with preventing anticipated erroneous judgments. Here, the General Assembly has, in several places, reenacted legislation which this court has already determined to be unconstitutional and/or in conflict with the rules we have prescribed pursuant to Section 5(B), Article IV of the Ohio Constitution governing practice and procedure for Ohio courts. As will be seen in the following section, the General Assembly has clearly indicated in Section 5, Am.Sub.H.B. No. 350, that these provisions were not reenacted inadvertently, but that it intends for the courts to treat these laws as valid notwithstanding our previous pronouncements. Respondents have cited no authority, and we reject any such notion, that purports to give any inferior tribunal the power to reject the mandates of this court on constitutional questions or rules of court in favor of conflicting judicial mandates issued by the General Assembly. To say the least, this is not how our system of government operates.
We hold, therefore, that where the object of an action in mandamus and/or prohibition is to procure the enforcement or protection of a public right, the relator need not show any legal or special individual interest in the result, it being sufficient that relator is an Ohio citizen and, as such, interested in the execution of the laws of this state.
Accordingly, we now proceed to determine the merits of relators’ claims.
IV
Am.Sub.H.B. No. 350 Usurps Judicial Power in Violation of the Doctrine of Separation of Powers
A statute that violates the doctrine of separation of powers is unconstitutional. In State v. Hochhausler (1996), 76 Ohio St.3d 455, 463, 668 N.E.2d 457, 465-466, Chief Justice Moyer explained as follows:
“The principle of separation of powers is embedded in the constitutional framework of our state government. The Ohio Constitution applies the principle in defining the nature and scope of powers designated to the three branches of the government. State v. Warner (1990), 55 Ohio St.3d 31, 43-44, 564 N.E.2d 18, 31. See State v. Harmon (1877), 31 Ohio St. 250, 258. It is inherent in our theory of government ‘ “that each of the three grand divisions of the government, must be protected from the encroachments of the others, so far that its integrity and independence may be preserved. * * * ” ’ S. Euclid, v. Jemison (1986), 28 Ohio St.3d 157, 159, 28 OBR 250, 252, 503 N.E.2d 136, 138, quoting Fairview v. Giffee (1905), 73 Ohio St. 183, 187, 76 N.E. 865, 866.”
In light of the foregoing history, and with this principle of separation of powers in mind, we will proceed to examine several aspects of Am.Sub.H.B. No. 350.'
A
Statutes of Repose
Former R.C. 2305.131, 134 Ohio Laws, Part I, 530, barred tort actions against designers and engineers of improvements to real property that were brought more than ten years after the completion of the construction services. In Brennaman v. R.M.I Co. (1994), 70 Ohio St.3d 460, 639 N.E.2d 425, paragraph two of the syllabus, we held:
“R.C. 2305.131, a statute of repose, violates the right to a remedy guaranteed by Section 16, Article I of the Ohio Constitution, and is, thus, unconstitutional. (Sedar v. Knowlton Constr. Co. [1990], 49 Ohio St.3d 193, 551 N.E.2d 938, overruled.)”
Pursuant to Brennaman, “the General Assembly is constitutionally precluded from depriving a claimant of a right to a remedy ‘before a claimant knew or should have known of her injury.’ ” Id., 70 Ohio St.3d at 466, 639 N.E.2d at 430, quoting Burgess v. Eli Lilly & Co. (1993), 66 Ohio St.3d 59, 61, 609 N.E.2d 140, 141. On the authority of Brennaman, we reversed contrary appellate court judgments in Cyrus v. Henes (1994), 70 Ohio St.3d 640, 640 N.E.2d 810; Ross v. Tom Reith, Inc. (1995), 71 Ohio St.3d 563, 645 N.E.2d 729; and Cleveland City School Dist. Bd. of Edn. v. URS Co. (1995), 72 Ohio St.3d 188, 648 N.E.2d 811.
Prior to the passage of Am.Sub.H.B. No. 350, the Legislative Service Commission (“LSC”) advised the General Assembly that under these decisions, “[a]n issue may be raised that a statute of repose infringes the ‘open courts, right-to-remedy, and due course of law3 provisions of Section 16 of Article I of the Ohio Constitution.” See Research Memorandum, No. R-121-1458, supra, fn. 7, at 3, 5. The LSC informed the General Assembly that “only the Ohio Supreme Court * * * would have the constitutional authority to ‘definitively’ declare * * * whether those [statutory] provisions passed constitutional muster.” Id. at 1.
Nevertheless, Am.Sub.H.B. No. 350 reenacts R.C. 2305.131 as a fifteen-year statute of repose with certain exceptions, and provides for a fifteen-year statute of repose for wrongful death actions involving a product liability claim (R.C. 2125.02[D][2]), a fifteen-year statute of repose for product liability claims (R.C. 2305.10[C]), a six-year statute of repose for professional malpractice claims other than medical (R.C. 2305.11[A][2]), and a six-year statute of repose for medical malpractice claims (R.C. 2305.11[B][3]).
In enacting and/or amending these sections, the General Assembly chose, to usurp this court’s constitutional authority by refusing to recognize our holdings in Brennaman, Cyrus, and Ross. The General Assembly’s stated intent is “to respectfully- disagree with those holdings and to recognize the legal rationale set forth in the concurring-dissenting opinion in Brennamcm,” Section 5(E)(2), Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 4021, as well as the holdings in Sedar (which was overruled) and several courts of appeals, including that of the Court of Appeals for Lorain County, which we reversed in Cyrus. Section 5(E)(1). See, also, Sections 5(E)(5), (G)(1), (L)(l) and (2), 146 Ohio Laws, Part II, 4022, 4023, 4025. The General Assembly not only directs, contrary to our declarations, that “the concept of a statute of repose does not violate the remedy by due course of law and open courts provisions of Section 16 of Article I of the Ohio Constitution,” Section 5(G)(1), it also finds that the failure to recognize the validity of rules “such as the six-year statutes of repose set forth in section 2305.11 of the Revised Code, as amended by this act, would violate the rights of certain defendants to due course of law under Section 16 of Article I of the Ohio constitution and due process of law under the due process clause of the Fourteenth Amendment to the United States Constitution.” Section 5(G)(4).
The following language from Bartlett, supra, 73 Ohio St. at 58, 75 N.E. at 941, has particular force here:
“It is sufficient to say that we adhere to [our prior] ruling [declaring acts to be in violation of the constitution]; and that the sections of the statutes now under consideration do not stop short of being a mandate to all of the courts [to accept as legal that which we have declared unconstitutional]. This we regard as wholly beyond the power conferred upon the general assembly by the constitution. The power conferred upon the general assembly is legislative power, and that body is expressly prohibited from exercising any judicial power which is not expressly conferred by the constitution. Article 2, section 32.
“At this time, the limits of the power invested in the respective co-ordinate branches of the government [are] so well defined and so generally understood, that we are constrained to believe that, whatever may have been the thought of the persons who drafted them, the enactment of these sections was an inadvertence on the part of the general assembly; for it is well settled that the legislature cannot annul, reverse or modify a judgment of a court already rendered, nor require the courts to treat as valid laws those which are unconstitutional. If this could be permitted the whole power of the government would at once become absorbed and taken into itself by the legislature.”
Am.Sub.H.B. No. 350, however, does not allow for any pretense of inadvertence. While some members of this court, now and in the past, may disagree with the holding in Brennaman, no member of this court can, consistent with his or her oath of office, find that the General Assembly has operated within the boundaries of its constitutional authority by brushing aside a mandate of this court on constitutional issues as if it were of no consequence. Indeed, the very notion of it threatens the judiciary as an independent branch of government and tears at the fabric of our Constitution.
B
Certificate of Merit
Section 5(B), Article IV of the Ohio Constitution provides: “The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”
In Rockey v. 84 Lumber Co. (1993), 66 Ohio St.3d 221, 611 N.E.2d 789, paragraph two of the syllabus, we held:
“The Ohio Rules of Civil Procedure, which were promulgated by the Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must control over subsequently enacted inconsistent statutes purporting to govern procedural matters.”
Civ.R. 11 provides in part:
“Except when otherwise specifically provided by these rules, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney’s or party’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”
Former R.C. 2307.42 provided that in an action upon a medical, dental, optometric, or chiropractic claim, the complaint must be accompanied by affidavit of merit. 142 Ohio Laws, Part III, 4696. In Hiatt v. S. Health Facilities, Inc. (1994), 68 Ohio St.3d 236, 626 N.E.2d 71, syllabus, we held that “R.C. 2307.42 is in conflict with Civ.R. 11 and is invalid and of no force and effect.” See, also, State ex rel. Bohlman v. O’Donnell (1994), 68 Ohio St.3d 496, 628 N.E.2d 1367.
Am.Sub.H.B. No. 350 repeals R.C. 2307.42, but enacts a certificate-of-merit requirement under R.C. 2305.011(A) and (B) for actions upon a medical, dental, optometric, chiropractic, or malpractice claim. Under R.C. 2305.011, the certificate of merit must be filed within ninety days after the later of the filing of a responsive pleading or compliance with discovery requests for the production of the appropriate medical or professional records.
Respondent Montgomery argues that Hiatt is not determinative of R.C. 2305.011’s validity because the General Assembly now “sets forth its view that the certifícate of merit is substantive and it sets forth its rationale for that conclusion.” In Section 5(H)(1), the General Assembly states that its intent in enacting R.C. 2305.011 is to respond to the holding in Hiatt “by clarifying the jurisdictional nature of certificate of merit requirements and creating a substantive requirement for medical, dental, optometric, chiropractic, and malpractice claims.” 146 Ohio Laws, Part II, 4024.
The notion that the General Assembly can direct our trial courts to apply a legislative rule that this court has already declared to be in conflict with the Civil Rules simply by denominating it “jurisdictional” or “substantive” is so fundamentally contrary to the principle of separation of powers that it deserves no further comment. Moreover, the General Assembly has clarified nothing by expressing its view that certificate-of-merit requirements are jurisdictional in nature. Former R.C. 2307.42(B) specifically provided that trial courts “shall have jurisdiction to hear and determine an action upon a medical, dental, optometric, or chiropractic claim only if the complaint or other pleading that sets forth the claim is supported by” an affidavit of merit. (Emphasis added.) The fact that the General Assembly views certificate-of-merit requirements as something other than procedural is nothing new, and it certainly adds nothing to its claim of clarification that the term “jurisdiction” was used in former R.C. 2307.42, but appears nowhere in R.C. 2305.011(B).
C
Collateral Benefits
In Pryor v. Webber (1970), 23 Ohio St.2d 104, 52 O.O.2d 395, 263 N.E.2d 235, paragraph two of the syllabus, the court held:
“The collateral source rule is an exception to the general rule of compensatory damages in a tort action, and evidence of compensation from collateral sources is not admissible to diminish the damages for which a tort-feasor must pay for his negligent act.”
The court in Pryor explained:
“The collateral source rule has been defined as ‘the judicial refusal to credit to the benefit of the wrongdoer money or services received in reparation of the injury caused which emanates from sources other than the wrongdoer.’ Maxwell, The Collateral Source Rule in the American Law of Damages, 46 Minn.L.Rev. 669, 670.
« * * *
“ ‘ * * * To this extent, plaintiff may get double payment on account of the same items. The defendant wrongdoer should not, it is said, get the benefit of payments that come to the plaintiff from a “collateral source” (i.e., “collateral” to the defendant).’ 2 Harper and James, The Law of Torts, 1343, Section 25.22.” Id., 23 Ohio St.2d at 107-108, 52 O.O.2d at 397, 263 N.E.2d at 238.
In an effort to abrogate the collateral source rule adopted in Pryor, the General Assembly originally enacted R.C. 2317.45 as part of the Tort Reform Act of 1987, Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661, 1694, to require trial courts to deduct from a plaintiffs jury award collateral benefits which have or will be received by the plaintiff. In Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504, syllabus, we held that “R.C. 2317.45 violates Sections 2, 5 and 16, Article I of the Ohio Constitution, and is unconstitutional in toto.” See, also, May v. Tandy Corp. (1994), 69 Ohio St.3d 415, 633 N.E.2d 504; Depew v. Ogella (1994), 69 Ohio St.3d 610, 635 N.E.2d 310.
In holding R.C. 2317.45 to be violative of the Due Process Clause of Section 16, Article I of the Ohio Constitution, we explained in Sorrell:
“In our view, R.C. 2317.45 has not been shown to be necessary to promote a compelling state interest that requires undermining the fundamental and inviolate right to a jury trial. Moreover, we believe that R.C. 2317.45 does not withstand scrutiny even under the less stringent rational basis standard * * *.
“ * * * [WJith respect to the goal of R.C. 2317.45 of eliminating double recoveries, the means employed in the statute to attain the goal are . both irrational and arbitrary. Of primary significance is that the statute requires deductions from jury verdicts irrespective of whether a collateral benefit defined in R.C. 2317.45(A)(1) is actually included in the verdict. While the goal of preventing double recoveries is not arbitrary or unreasonable, * * * R.C. 2317.45 fails to take into account whether the collateral benefits to be deducted are within the damages actually found by the jury, especially where there are no interrogatories to quantify the categories of damages that make up the general verdict. Thus, the statute can arbitrarily reduce damages that a jury awards a plaintiff, since under the statute it is irrelevant whether any collateral benefit actually represents any portion of the jury’s award.” Id., 69 Ohio St.3d at 423-424, 633 N.E.2d at 511.
Am.Sub.H.B. No. 350 amends R.C. 2317.45 in order to “[ajbrogate the common law collateral source rule as adopted * * * in Pryor * * * and reaffirmed in Sorrell,” and “[ajddress the aspects of section 2317.45 * * * found in [Sorrell, May, and Depew ] to be unconstitutional.” Sections 5(I)(l)(a) and (b), 146 Ohio Laws, Part II, 4024. As amended by Am.Sub.H.B. No. 350, R.C. 2317.45 provides:
“(A) As used in this section:
“(1) ‘Collateral benefits’ means benefits that are paid by any source, including workers’ compensation benefits, to or on behalf of the plaintiff as a result of an injury or loss to person or property, regardless of whether there is an obligation to pay back the money or other benefits, in whole or in part, upon recovery in a tort action. ‘Collateral benefits’ does not include life insurance proceeds.
“(3) ‘Trier of fact’ means the jury or, in a nonjury action, the court.
“(B) In determining the amount of the compensatory damages that are recoverable by the plaintiff in a tort action, the trier of fact shall consider, if presented in the tort action, relevant collateral benefits that have been paid, or that the source of the benefits has acknowledged are payable, from insurance other than insurance for which the plaintiff, spouse of the plaintiff, or parent of the plaintiff if the plaintiff is a minor, has paid a premium, insurance that is subject to a right of subrogation, or insurance that has any other obligation of repayment, including, but not limited to, evidence of the amount of the collateral benefit and of the costs, premiums, or charges for the collateral benefits.”
Respondent Montgomery .contends that “[t]he statute cures the defect of [its] predecessor * * * [because] [t]here is no mandatory deduction, nor is there a blanket deduction of all collateral benefits. Rather, the statute provides the jury with more information in order to permit the jury to better determine the amount of recovery.”
Amici Ohio Association of Civil Trial Attorneys and Defense Research Institute (“OACTA”) contend that amended R.C. 2317.45 cures the violation of the right to a jury trial of its predecessor “by removing judicial participation in the damage finding process,” and that “[b]ecause the right to a jury trial is not implicated, strict scrutiny does not apply [to a due process analysis]. The statute need only have a ‘rational basis’ to pass constitutional muster.” Quoting from Werber, Ohio Tort Reform Versus the Ohio Constitution (1996), 69 Temp.L.Rev. 1155,1184, OACTA argues:
“ ‘As there is now no deduction for collateral source payments, there is no need for ascertaining whether such payments have been included in the jury verdict. The statute authorizes the jury to consider the effect of collateral source payments, however it believes appropriate, in its determination of compensatory damages. The statute’s modifications have removed the arbitrary and unreasonable aspects of the prior statute. In other words, the statute merely permits the jury to predicate its award on the full story.’ ”
We agree with OACTA that the appropriate inquiry is whether amended R.C. 2317.45 violates due process, and that the rational basis test is the appropriate test to apply in making this determination. However, it is pure sophistry to suggest that “[a]s there is now no deduction for collateral source payments, there is no need for ascertaining whether such payments have been included in the jury verdict.” While the statute no longer mandates a postverdict deduction for collateral source payments, it certainly authorizes a preverdict setoff for collateral payments. In either case, it is contemplated that the amount of the compensatory damages may be reduced by the amount of collateral payments, thus triggering the constitutional requirement that those payments match the items or categories of damages actually awarded. Sorrell, supra. See, also, Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 269, 652 N.E.2d 952, 960. Therefore, regardless of when and by whom the reduction for collateral source payments is made, there is every “need for ascertaining whether such payments have been included in the jury verdict.”
However, amended R.C. 2317.45 does everything but remove those aspects of its preamended form that were held in Sorrell to be arbitrary and unreasonable. Present R.C. 2317.45 still fails to take into account whether the collateral benefits held against the general verdict are within the damages actually found by the jury. Present R.C. 2317.45 essentially gathers all evidence of collateral source payments, regardless of the category of harm for which it compensates and regardless of whether it compensates for past or future losses, tosses it in an indiscriminate heap along with all categories and items of compensatory damages, and authorizes, out of that, a general verdict replete with collateral benefit setoffs. Any prevention of double recovery that may result from this morass is fortuitous at best. Indeed, the relation between the purported goal of eliminating double recovery and the means employed in amended R.C. 2317.45 to achieve it is so attenuated that one could conclude that the primary goal of R.C. 2317.45 is simply to reduce damages generally. Amended R.C. 2317.45 simply attempts to sidestep Sorrell.
D
Damage Caps
1
Punitive Damages
Former R.C. 2315.21(C)(2) provided:
“In a tort action, whether the trier of fact is a jury or the court, if the trier of fact determines that any defendant is liable for punitive or exemplary damages, the amount of those damages shall be determined by the court.” 142 Ohio Laws, Part 1,1691.
In Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552, 644 N.E.2d 397, paragraph two of the syllabus, we held that “R.C. 2315.21(C)(2) violates the right to trial by jury under Section 5, Article I of the Ohio Constitution.” In so holding, we explained:
“Prior to the 1987 enactment of R.C. 2315.21(C)(2), 142 Ohio Laws, Part I, 1661, 1691, juries in this state had the integral role of determining not only when punitive damages were justified but also of assessing the amount of such damages. Clearly, the assessment of punitive damages by the jury stems from the common law and is encompassed within the right to trial by jury. * * * “It is well settled that the right to trial by jury ‘ “cannot be invaded or violated by either legislative act or judicial order or decree.” ’ Sorrell v. Thevenir, supra, 69 Ohio St.3d at 421, 633 N.E.2d at 510, quoting Gibbs v. Girard (1913), 88 Ohio St. 34, 102 N.E. 299, paragraph two of the syllabus. Since R.C. 2315.21(C)(2) impairs the traditional function of the jury in determining the appropriate amount of damages, we hold that R.C. 2315.21(C)(2) violates the right to trial by jury under Section 5, Article I of the Ohio Constitution.” (Emphasis added.) Id., 71 Ohio St.3d at 557, 644 N.E.2d at 401.
Am.Sub.H.B. No. 350 amends former R.C. 2315.21(C), and renumbers it R.C. 2315.21(D)(1), to provide that the trier of fact shall determine both “the liability of a defendant for punitive or exemplary damages and the amount of those damages to be awarded.” (R.C. 2315.18 has also been amended to reflect this change.) However, R.C. 2315.21(D)(1) provides further:
“(a) Except as otherwise provided in division (D)(3)(b) of this section, the court shall not enter judgment for punitive or exemplary damages in excess of the lesser of three times the amount of the compensatory damages awarded to the plaintiff from that defendant or one hundred thousand dollars, as determined pursuant to division (B)(2) or (3) of this section.
“(b) If the defendant is a large employer, except as otherwise provided in division (D)(3)(b) of this section, the court shall not enter judgment for punitive or exemplary damages in excess of the greater of three times the amount of the compensatory damages awarded to the plaintiff from that defendant or two hundred fifty thousand dollars, as determined pursuant to division (B)(2) or (3) of this section.”
Pursuant to amended R.C. 2307.801(E) and 2315.21(A)(4), R.C. 2315.21(D)(1) also applies to product liability claims.
Section 5(B)(2) explains:
“In amending s