ANTHONY MCCLAIN v. STATE OF OHIO
APPEAL NO. C-200195; TRIAL NO. A-1604385
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
April 23, 2021
[Cite as McClain v. State, 2021-Ohio-1423.]
MYERS, Presiding Judge.
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
OPINION.
Koenig & Owen, LLC, James D. Owen and Charles A. Koenig, for Plaintiff-Appellant,
Dave Yost, Ohio Attorney General, and Margaret Moore, Assistant Attorney General, for Defendant-Appellee.
{¶1} Anthony McClain appeals the judgment of the Hamilton County Common Pleas Court, following a bench trial, in favor of the state of Ohio on his statutory claim for a determination that he is a wrongfully imprisoned individual. The basis for McClain‘s appeal is his assertion that he was entitled to a trial by jury. Because McClain had no constitutional or statutory right to a jury trial, we hold that the trial court properly overruled his jury demand and we affirm the court‘s judgment.
I. Procedural History
{¶2} In 1995, McClain was indicted for murder and an accompanying firearm specification. After a jury trial, he was convicted of the offenses and was sentenced to a prison term of 15 years to life for the murder offense, to be served consecutively to a three-year prison term for the firearm specification. This court affirmed McClain‘s conviction on appeal, and the Supreme Court of Ohio declined to review the matter. State v. McClain, 1st Dist. Hamilton No. C-950859, 1996 WL 487931 (Aug. 28, 1996), jurisdictional motion overruled, 77 Ohio St.3d 1515, 674 N.E.2d 370 (1997).
{¶3} In 2002, McClain filed a motion for leave to file a motion for a new trial on the basis of newly discovered evidence. In 2004, the trial court converted the motion for leave into a motion for a new trial and denied the motion. This court reversed the trial court‘s judgment and remanded for a new trial. State v. McClain, 1st Dist. Hamilton No. C-040647 (Aug. 17, 2005).1 In 2006, at a retrial, a jury acquitted McClain of the offenses.
{¶4} McClain filed an action against the state of Ohio to be declared a “wrongfully imprisoned individual,” as defined in
II. Right to a Jury Trial
{¶5} In a single assignment of error, McClain argues that the trial court erred by denying his constitutional and statutory rights to a jury trial in his wrongful-imprisonment action against the state.
III. The Wrongful-Imprisonment Statute
{¶7} The wrongful-imprisonment statute,
{¶8}
- The individual was charged with a violation of a section of the Revised Code by an indictment or information, and the violation charged was an aggravated felony, felony, or misdemeanor.
- The individual was found guilty of, but did not plead guilty to, the particular charge or a lesser-included offense by the court or jury involved, and the offense of which the individual was found guilty was an aggravated felony, felony, or misdemeanor.
- The individual was sentenced to an indefinite or definite term of imprisonment in a state correctional institution for the offense of which the individual was found guilty.
- The individual‘s conviction was vacated, dismissed, or reversed on appeal and all of the following apply:
- No criminal proceeding is pending against the individual for any act associated with that conviction.
- The prosecuting attorney in the case, within one year after the date of the vacating, dismissal, or reversal, has not sought any further appeal of right or upon leave of court, provided that this division does not limit or affect the seeking of any such appeal after the expiration of that one-year period as described in division (C)(3) of this section.
- The prosecuting attorney, city director of law, village solicitor, or other chief legal officer of a municipal corporation, within one year after the date of the vacating, dismissal, or reversal, has not brought a criminal proceeding against the individual for any act associated with that conviction, provided that this division does not limit or affect the bringing of any such proceeding after the expiration of that one-year period as described in division (C)(3) of this section.
- Subsequent to sentencing or during or subsequent to imprisonment, an error in procedure was discovered that occurred prior to, during, or after sentencing,
that involved a violation of the Brady Rule which violated the individual‘s rights to a fair trial under the Ohio Constitution or the United States Constitution, and that resulted in the individual‘s release, or it was determined by the court of common pleas in the county where the underlying criminal action was initiated either that the offense of which the individual was found guilty, including all lesser-included offenses, was not committed by the individual or that no offense was committed by any person. In addition to any other application of the provisions of this division regarding an error in procedure that occurred prior to, during, or after sentencing, as those provisions exist on and after the effective date of this amendment, if an individual had a claim dismissed, has a claim pending, or did not file a claim because the state of the law in effect prior to the effective date of this amendment barred the claim or made the claim appear to be futile, those provisions apply with respect to the individual and the claim and, on or after that effective date, the individual may file a claim and obtain the benefit of those provisions.
(Emphasis added.)
{¶9} If the common pleas court determines that a person is a wrongfully imprisoned individual, then the person may file a civil action against the state in the court of claims to recover a sum of money because of the wrongful imprisonment.
{¶10} “Because the legislature created the right to bring a wrongful-imprisonment action under
IV. No Statutory Right to a Jury Trial
{¶11} The Supreme Court has explained, “when the General Assembly intends that a case may be tried by a jury, it has manifested its intent with appropriate language.” State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145, ¶ 46 (holding that the requirement in
{¶12} The language of
it was determined by the court of common pleas in the county where the underlying criminal action was initiated either that the offense of which the individual was found guilty, including all lesser-included offenses, was not committed
by the individual or that no offense was committed by any person.
(Emphasis added.) The unambiguous statutory language indicates that the General Assembly intended that the common pleas court, not a jury, make the determination of innocence under
{¶13} McClain argues that a wrongful-imprisonment action is one “for the recovery of money only” so that
Issues of law must be tried by the court, unless referred as provided in the Rules of Civil Procedure. Issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial is waived or unless all parties consent to a reference under the Rules of Civil Procedure.
All other issues of fact shall be tried by the court, subject to its power to order any issue to be tried by a jury, or referred.
(Emphasis added.)
{¶14} However, a wrongful-imprisonment action is not an “action for the recovery of money only.” There is no recovery of money in the first step of the two-step procedure set forth in
{¶15} In Armstrong, the Supreme Court of Ohio rejected an argument by a dissenting shareholder that
The scope of [
R.C. 2311.04 ] is certainly no greater than the constitutional provision [inArticle I, Section 5 of the Ohio Constitution ].In contrast to appellant‘s claim,
R.C. 1701.85(B) provides that: “The court thereupon shall make a finding as to the fair cash value of a share, and shall render judgment against the corporation for the payment of it * * *.” (Emphasis added.) Quite clearly, this provision dispenses with the requirement of a jury trial and requires that the finding be made by the trial court[.]
(Emphasis sic.) Armstrong at 419.
{¶16} The court explained that the General Assembly was entitled to establish “special proceedings,” which were not actions for money requiring jury participation. Id. at 419-420. The court quoted its 1929 decision in Belding v. State ex rel. Heifner, wherein it held that a statute providing for a trial court‘s determination of an amount payable as child support did not violate the Ohio Constitution:
It was not, however, the intention of the framers of that clause * * * to guarantee the right of trial by jury in all controversies. That guaranty only preserves the right of trial by jury in cases where under the principles of the common law it existed previously to the adoption of the Constitution. The right of trial by
jury has uniformly been recognized and enforced in this state in actions for money, where the claim is an ordinary debt, but it is equally well recognized that many special proceedings for the enforcement of a moral duty, where the payment of money is the ultimate relief granted, does [sic] not entitle the parties to a jury trial.
Id. at 420, quoting Belding v. State ex rel. Heifner, 121 Ohio St. 393, 396-397, 169 N.E. 301 (1929).
{¶17} In Kneisley v. Lattimer-Stevens Co., the Supreme Court followed Armstrong and refused to interpret the term “court” in former
[I]n any action brought pursuant to this section, the court is limited to a determination as to whether or not the employer is liable for damages on the basis that the employer committed an intentional tort. If the court determines that the employee or his estate is entitled to an award under this section and that determination has become final, the industrial commission shall, after hearing, determine what amount of damages should be awarded.
Kneisley, 40 Ohio St.3d at 355, 533 N.E.2d 743. The court noted that the General Assembly recognized the distinction between the terms “jury” and “court.” Id. at 357. The court concluded that, “in assigning liability determinations under
{¶18} Because a wrongful-imprisonment action under
{¶19} McClain also asserts that another statute,
When an action or proceeding in which declaratory relief is sought under this chapter involves the determination of an issue of fact, that issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the action or proceeding is pending.
(Emphasis added.)
{¶20} That statute makes clear, however, that its application is limited to actions brought under
{¶21} Consequently, we reject McClain‘s argument that he has a statutory right to a jury trial for a wrongful-imprisonment action.
V. No Constitutional Right to a Jury Trial
{¶22} At common law, no remedy existed for a wrongfully imprisoned person to bring an action against the state. Walden v. State, 47 Ohio St.3d 47, 53, 547 N.E.2d 962 (1989); Wright v. State, 69 Ohio App.3d 775, 779, 591 N.E.2d 1279 (10th Dist.1990). Before the enactment of
{¶23} McClain argues, however, that an action for wrongful imprisonment is analogous to a common law intentional tort claim for false imprisonment, for which the right to a trial by jury existed at common law. Claims for injuries arising from intentional torts were recognized at common law and typically retain a right to trial by jury. Arrington, 109 Ohio St.3d 539, 2006-Ohio-3257, 849 N.E.2d 1004, at ¶ 24.
{¶24} Under Ohio law, however, false imprisonment and wrongful imprisonment are distinct causes of action. Brandon v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 20AP-211, 2021-Ohio-418 ¶ 16. False imprisonment exists where “a person confines another intentionally ‘without lawful privilege and against his consent within a limited area for any appreciable time, however short.’ ” Bennett v. Ohio Dept. of Rehab. & Corr., 60 Ohio St.3d 107, 109, 573 N.E.2d 633 (1991), quoting Feliciano v. Kreiger, 50 Ohio St.2d 69, 71, 362 N.E.2d 646 (1977). An action for false imprisonment against the state may be based on the state‘s failure to comply with statutes mandating the release of its prisoners. Id. at 110. The elements of a false-imprisonment claim by a former prisoner against the state are (1) the expiration of a lawful term of confinement; (2) intentional confinement after the expiration; and (3) knowledge that the privilege initially justifying the confinement no longer exists. Brandon at ¶ 17, citing Washington v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 19AP-830, 2020-Ohio-3385, ¶ 22. These actions may now be brought against the state by virtue of
{¶25} Conversely, an action for wrongful imprisonment under
{¶26} In addition, at common law, claims for false imprisonment could not be maintained against the state because of sovereign immunity. Bennett at 110-111. Until the enactment of
{¶27} Unlike an action for false imprisonment, an action for wrongful imprisonment is not one generally applicable to private parties and did not exist at common law. The state, and only the state, can wrongfully convict someone. Therefore, “even after the waiver of sovereign immunity in
{¶28} Although at common law, a claim for false imprisonment existed between private parties, no such claim could be brought against the state. In 1975, by virtue of
{¶29} As the Supreme Court explained in Bennett, ”
{¶30} Therefore,
VI. Conclusion
{¶31} Because no statutory or constitutional right to a jury trial exists in an action to be declared a wrongfully imprisoned individual pursuant to
Judgment affirmed.
WINKLER, J., concurs.
BERGERON, J., dissents.
BERGERON, J., dissenting.
{¶32} No right is so venerated and yet simultaneously undermined as the constitutional right to a jury trial. The opinions on this subject invoke majestic prose and ringing oratory to describe the right—immediately before they chip away at its foundation. If we keep going down this path, we risk relegating a fundamental constitutional guarantee into a historical footnote. To understand this paradox, and
I.
{¶33} The jury trial once reigned as one of the most “esteem[ed]” and “universally secured” rights of American democracy. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 340-341, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting), quoting L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 281 (1960). So essential was the jury trial considered to the fair administration of justice that deprivation of the colonists’ jury trial rights “was listed among the specific offensive English acts denounced in the Declaration of Independence.” Id. at 340. The
{¶34} What is surprising—or surely would be to our founders—is the recent, steady decline of this once-revered institution. One rarely discusses the jury trial nowadays without a caveat acknowledging its scarcity. We speak of the “vanishing jury trial,” the “disappearing jury trial,” or the “missing American jury.” See Shari Seidman Diamond and Jessica M. Salerno, Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges, 81 La.L.Rev. 119-120 (2020); Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J.Empirical Leg.Stud. 459 (2004); Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (2016). In federal courts, despite a fourfold increase in the number of civil case filings, the percentage of civil claims that reached a jury trial plummeted from 5.5 percent in 1962 to .8 percent in 2013. Diamond and Salerno, 81 La.L.Rev. at 122. Ohio has witnessed a similar decline, with just .9 percent of civil claims reaching trial in the first place, and an even smaller subset going before a jury. The Supreme Court of Ohio, 2019 Ohio Courts Statistical Summary, 29, https://www.supremecourt.ohio.gov/Publications/annrep/19OCSR/2019OCS.pdf (accessed April 8, 2021). Commentators disagree on the causes of this phenomenon. One could blame the proliferation of alternative dispute resolution, the potential inconvenience of a jury trial that counsel or courts may wish to avoid, or an increased judicial receptivity to dispositive motions like summary judgment. See, e.g., Diamond and Salerno, 81 La.L.Rev. at 122-125. Judicial restrictions of the right also factor into the equation. Regardless, we can quibble about the causes, but not the results: our courtrooms are far from flooded with jury trials. The civil litigant who presents her case to a jury is an aberration in this day and age. And we, the courts, ought to pay special attention—lest we pave the way for the extinction of this celebrated right.
The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.
Except for the 1912 addition of the clause authorizing jury verdicts by a three-fourths majority (which is irrelevant to our present inquiry), the text of Ohio‘s modern jury trial right remains identical to the guarantee of our state‘s very first Constitution: “That the right of trial by jury shall be inviolate.”
{¶36} Our Constitution‘s invocation of the word “inviolate” in Section 5, Article I was designed not only to protect the jury right, but to highlight its significance. See Butler, 92 Ohio St.3d at 372 (“It is difficult to imagine a more forceful way of saying that the right to trial by jury should in no way be infringed.“). The term can be traced to James Madison‘s presentation of the proposed federal Bill of Rights to the House of Representatives, in which he proclaimed the civil jury trial to be “one of the best securities of the rights of the people [which] ought to remain inviolate.” 1 Few, In Defense of Trial by Jury, 74 (1993). At the adoption of Ohio‘s current Constitution in 1851, the word inviolate meant “unhurt; uninjured; unprofaned; unpolluted; unbroken.” Noah Webster, Dictionary of the American Language (1828), http://webstersdictionary1828.com/Dictionary/inviolate (accessed April 19, 2021). See Websters Third New International Dictionary 1190 (1993) (defining “inviolate” as “free from change or blemish, pure or unbroken.“); City of Cleveland at ¶ 21 (“In giving undefined words in the Constitution their usual, normal, or customary meaning, we rely on their dictionary definitions.“). It is difficult to conceive of a more expansive, protective term.
{¶37} Indeed, only one other provision in our state Bill of Rights uses the term “inviolate” to describe a constitutional guarantee:
{¶38} Read in isolation, therefore, our Constitution‘s guarantee that the right to jury trial “shall be inviolate” presents a ringing endorsement of the jury‘s central
11;
{39} Nor was this comparatively broad approach to the jury right an accident. At the 1850 Ohio Constitutional Convention, a draft revision of (what is now)
he thought the clause dangerous, as in effect it would place in the hands of the Legislature the power, by instituting new modes of proceeding, to take away the trial by jury.
Id. Moments after this warning of legislative tampering, the Convention voted to eliminate “as heretofore used and herein provided” from
{40} Early Ohio courts did not hesitate to enforce the breadth of our jury-trial guarantee. Just a year after the 1912 revision of
{41} Our rhetorical enthusiasm for the jury trial right has not cooled over the ensuing decades. We have labeled the jury trial “the crown jewel of our liberty,” “the most cherished institution of free and intelligent government that the world has ever seen,‘” and the “‘best institution for the administration of justice ever devised by the mind of man.‘” Butler, 92 Ohio St.3d at 371, 750 N.E.2d 554, quoting 1 Few, In Defense of Trial by Jury, 74 (1993). “For centuries it has been held that the right of trial by jury is a fundamental constitutional right, a substantial right, and not a procedural privilege.” Cleveland Ry. Co. v. Halliday, 127 Ohio St. 278, 284, 188 N.E. 1 (1933), citing Martin v. Windsor Hotel Co., 70 N.Y. 101 (1877). The jury trial right remains “one of the most fundamental and long-standing rights in our legal system.” Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 31.
{42} Of course, our oratory is one thing; our precedent is another. But before I move on to the (mis)match between our prose and our practice, it is worth lingering for a moment on the significance of what the jury trial actually does. The jury trial takes a critical judicial function—fact-finding in disputes between adverse parties—out of the hands of judges and legislators, and places it into the hands of our citizens. This direct shift of governmental power from judicial officials and to ordinary people is what makes the jury trial “one of the most fundamentally democratic institutions in the history of the human race.” Butler, 92 Ohio St.3d at 371, 750 N.E.2d 554. And of course, a grant of power directly to the people necessarily restricts the powers of the courts. This constraint of the judiciary is purposeful: it reflects our founders’ concerns about judicial “bias” and an “overreaching judiciary.” Arbino at ¶ 119, 126 (Cupp, J., concurring). See Letter of July 19, 1789, from Thomas Jefferson to the Abbe Arnoux (reprinted in 5 Kurland & Lerner, The Founders’ Constitution, 364 (1986)) (“permanent judges acquire an Esprit de corps, that being known they are liable to be tempted by bribery, that they are misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative; * * * and that the opinion of 12 honest jurymen gives still a better hope
{43} But the right to trial by jury is not just a constraint on the judiciary; it also restrains the legislative branch. See Gibbs, 88 Ohio St. at 44, 102 N.E. 299 (“A legislative act impairing [the jury right] would be clearly unconstitutional.“); Sorrell v. Thevenir, 69 Ohio St.3d 415, 421, 633 N.E.2d 504 (1994) (the “‘right to trial by jury * * * cannot be invaded or violated by either legislative act or judicial order or decree.’ “), quoting Gibbs at paragraph two of the syllabus. The General Assembly cannot “impair[] the traditional function of the jury” by removing protected matters from the jury‘s fact-finding province. Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 557, 644 N.E.2d 397 (1994). Such legislative action is unconstitutional—and for good reason. Id. See Gibbs at 44. The jury trial is not an ancillary feature of our judiciary, or an antiquated procedural device. Cleveland Ry. Co., 127 Ohio St. at 284, 188 N.E. 1. It is an integral, substantive part of our delicate system of inter-branch checks and balances, which functions as a “bulwark against tyranny and corruption” and a “safeguard too precious to be left to the whim of the sovereign.” Parklane, 439 U.S. at 343, 99 S.Ct. 645, 58 L.Ed.2d 552 (Rehnquist, J., dissenting). “Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 79 L.Ed. 603 (1935).
{44} With this backdrop of a constitutional right of transcendent importance, and a democratic tool to keep the judiciary and legislature in check, we should view any infringement on the jury right—judicial or otherwise—with deep suspicion.
II.
{45} Ohio judicial opinions addressing the right to trial by jury traditionally begin their analysis with homage to its history and importance. Obviously, I have followed this well-trod path. But here, I must break with the pattern of my predecessors to identify a disturbing trend: No matter how effusive our praise of the jury trial, Ohio courts are complicit in a long campaign to corral and undermine this supposedly “inviolate” right.
{46} Once an Ohio court finishes singing the obligatory praises of the jury trial, its next move has become painfully predictable: “The right to a jury trial is not, however, absolute.” Arrington v. DaimlerChrysler Corp., 109 Ohio St.3d 539, 2006-Ohio-3257, 849 N.E.2d 1004, ¶ 22. See Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 32; Butler, 92 Ohio St.3d at 372, 750 N.E.2d 554 (“Section 5, Article I of the Ohio Constitution does not guarantee a jury trial in all cases.“); Sorrell, 69 Ohio St.3d at 421, 633 N.E.2d 504 (same); Kneisley v. Lattimer-Stevens Co., 40 Ohio St.3d 354, 356, 533 N.E.2d 743 (1988) (“There 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 our state Constitution.“) (Emphasis in original.) We proceed to qualify this “fundamental” and “inviolate”
{47} Based on Belding‘s judicially-grafted limitation on a broad constitutional right, Ohio‘s constitutional jury trial right is now available only “in those cases where it existed previous to [the Constitution‘s] adoption.” Belding at paragraph one of the syllabus. See Arrington at ¶ 85 (Pfiefer, J., dissenting) (Belding‘s limitation of the civil jury right “is not a creature of our Constitution, but instead emerged from this court‘s case law.“). But this crabbed historical standard presents problems in practice. The common law, of course, is not static. See Funk v. United States, 290 U.S. 371, 383, 54 S.Ct. 212, 78 L.Ed. 369 (1933) (“It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.“). The common law evolves—and in the past, the Ohio Supreme Court has recognized that Ohio‘s constitutional jury trial right evolves with it. See Sorrell at 422 (“Given that negligence actions, which evolved from the common-law action of trespass on the case, and battery actions existed at common law at the time of the adoption of our state Constitution,
{48} The inevitable result of this evolution is that the nineteenth-century common law looks very different than today‘s mixture of common law and statutory claims. And fundamental tension surfaces in our case law between the ongoing evolution of common law claims and Belding‘s (apparently) frozen-in-amber approach to the jury right. As we peer backwards over the course of history to ascertain the genesis of a cause of action, the Supreme Court instructs us that the “assertion of a constitutional right to a jury necessarily entails inquiry into whether the common law recognized the type of claim [the plaintiff] presents.” (Emphasis added.) Arrington, 109 Ohio St.3d 539, 2006-Ohio-3257, 849 N.E.2d 1004, at ¶ 22. If the “type of claim” the plaintiff presents is a claim “in which the [jury] right existed before the adoption of the constitutional provision providing the right,” then the plaintiff enjoys a constitutional jury right. Id. “If not,
* * *
{49} The test seems simple enough at first blush. But in practice, this approach has proven rife with uncertainty. Take the Eighth District decision that the majority here follows—with a narrow lens, it seemingly jettisons the “type of claim” analysis and inquires only whether this specific statutory claim “existed” at common law. See Collier-Hammond, 2020-Ohio-2716, 154 N.E.3d 364, at ¶ 22 (“[B]ecause
{50} A constitution, of course, is designed to endure for ages. Yet as our modern causes of action (many statutory, but some still common law) look more and more different than their common law ancestors, ambiguity in our case law provides
{51} A strong case could be made that the Supreme Court should free itself of Belding‘s non-textual limitation and return to first principles. But the force of stare decisis looms large, and I therefore will assume that the Belding court correctly anchored Ohio‘s jury trial right in the distant past. This begs more questions than it answers, because we must still decide how broadly (or narrowly) to interpret the Belding limitation, and how to differentiate between causes of action that are (or are not) sufficiently analogous to the common law to evoke a constitutional jury trial right. The Supreme Court has never articulated a clear standard for the “type of claim” that qualifies as a common law analogue, which creates the problems I‘ve highlighted above and helps explain the crux of my disagreement with the majority. The majority draws a relatively fine distinction between false imprisonment (which they acknowledge retains a constitutional jury trial right) and wrongful imprisonment (which they find does not). This distinction allows a trial court to withhold a jury right for
III.
{52} Many other states—usually interpreting narrower constitutional guarantees than our own—have limited the jury trial right to claims existing at common law at the adoption of their state constitutions. Thankfully, some are further than us along the path to recognizing and addressing the challenges of this approach. See Norwood, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, at ¶ 76 (turning to out-of-state opinions as guidance in interpreting Ohio‘s Constitution).
{53} Take Minnesota, for example. Its state constitution guarantees that “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy.”
{54} Minnesota is not the only state to embrace a two-part test for claims that retain a constitutional jury right. The Wisconsin Supreme Court—interpreting another “shall remain inviolate” jury trial provision—has declared that “a party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and (2) the action was regarded as at law in 1848.” Village Food & Liquor Mart v. H & S Petroleum, Inc., 254 Wis.2d 478, 647 N.W.2d 177 (2002). See
{55} In a variation on a theme, New Jersey courts interpret their state‘s jury right by considering “not only the nature of the relief—the remedy—but also the historical basis for the cause of action.” Allstate New Jersey Ins. Co. v. Lajara, 222 N.J. 129, 117 A.3d 1221, 1228 (2015). See
{56} Each of these tests shares a few key features. First, all of them appreciate that the jury trial inquiry cannot be rigidly reduced to the question of which claims “existed” (or didn‘t) at nineteenth century common law. This shared feature reflects the fact that a strict, historically-limited jury trial inquiry will cause the jury trial right to fade over time—the opposite of what our nation‘s founders intended. Many states embrace the wisdom of a flexible jury right for this very reason. As the Washington Supreme Court observed, “a method of construing a lasting constitutional right” that leads the right to “diminish over time * * * * makes little sense.” Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711, 718 (1989). “It would defeat the intention of our constitution‘s framers to interpret an essential right so that it slowly withers away.” Id. See, e.g., State ex rel. Diehl v. O‘Malley, 95 S.W.3d 82, 86 (Mo.2003) (“The question is whether the proceeding ‘is analogous to an action at common law, or whether it [is] in the nature of a suit in equity.’ “); Newly Weds Foods, Inc. v. Westvaco Corp., 14 Mass.L.Rptr. 278, 2001 WL 1809810, *2 (Dec. 7, 2001) (“Massachusetts extends the jury trial right beyond the scope of the federal standard because it formulates a more dynamic model for assessing a party‘s right to a jury.“).
{57} Next, each standard places substantial weight on the nature of the remedy sought, with New Jersey even elevating the “nature of the remedy” over the “historical basis” part of its analysis. This emphasis on remedy makes good sense, because
{58} The above, out-of-state standards can supply the raw materials to add precision to Ohio‘s “type of claim” test. We can look, not just to claims that “existed” in substantially identical form at common law, but to claims that were comparable or substantively similar to those recognized at common law. Contrast Collier-Hammond, 2020-Ohio-2716, 154 N.E.3d 364, at ¶ 22 with Schweda, 736 N.W.2d at 71. We can respect the Ohio Supreme Court‘s past emphasis on the function—rather than form—of the jury right by asking whether a claim essentially acts as a “counterpart” or extension of the common law. See Arbino at ¶ 35 (“Section 5, Article I of the Ohio Constitution clearly protects this fact-finding function from outside interference. Any law that prevents the jury from completing this task or allows another entity to substitute its own findings of fact is unconstitutional.“); Zoppo, 71 Ohio St.3d at 557, 644 N.E.2d 397 (statute that “impairs the traditional function of the jury” in a tort action is unconstitutional); see also Schweda at 71 (jury right attaches to claims that are “‘essentially counterparts’ to the common law.“). And we can circle back to our state‘s initial focus on the nature of the remedy. See Dunn at 502-503 (“[W]ithin the [jury] right thus secured is the right of either party, in an action for the recovery of money only, to demand that the issues of fact therein be tried by a jury.“); Lajara, 222 N.J. 129, 117 A.3d at 1228. Most importantly, we can recognize that each of the sister-state tests recounted above stems from a jury trial guarantee that is theoretically more limited than the jury right in Ohio. Our state‘s founders chose to enshrine in our Constitution one of the broadest jury trial rights in the nation. To the extent that we insist that a historical inquiry is needed to interpret our state‘s jury trial right, that inquiry should be generous—at least as generous as the inquiry pursued in states with a narrower constitutional provision than our own.
{59} Keeping in mind the Gibbs court‘s admonition that we must “jealously safeguard[]” the jury right and the breadth of our constitutional mandate, I would err on the side of a broad application of Ohio‘s “type of claim” test. See Gibbs, 88 Ohio St. at 47, 102 N.E. 299. A broad application also makes sense in light of the fact that we, as judges, must tread carefully when curtailing a right designed to restrain us. The jury is a unique institution. Each individual jury is ephemeral in nature; its members conduct their service and then return to their lives in their communities. The jury does not have institutional permanence
IV.
{60} Now, let‘s turn to considering whether
{61} First, I inquire whether Mr. McClain‘s claim for wrongful imprisonment functions as a modern counterpart or extension of a claim with roots at common law. Here, the best candidate for a common law analogue is the intentional tort of false imprisonment, which undoubtedly carried a jury trial right. See Kneisley, 40 Ohio St.3d at 357, 533 N.E.2d 743 (“[T]he right to a jury trial in trespass actions existed in this state at common law, and now extends to its progeny—in this case, intentional tort actions.“). We must consider the historical development of both claims and ask whether it supports a link.
{62} Thankfully, Ohio Supreme Court precedent offers us guidance in this regard. The court recognized a common law claim of false imprisonment against state officials long before
Of course, if a magistrate issued a criminal warrant on an ordinary charge of slander against some man, which is not made an offense under the laws of the state of Ohio, and the officer served it and imprisoned some one, that would doubtless serve as a basis of action for false imprisonment, because there is no such offense, or if a magistrate issued a criminal warrant in a simple action for debt, and caused the police officer to serve the same. In both such cases it would be most obvious that the magistrate acted entirely beyond his jurisdiction. The magistrate is not protected in such case. Neither is the officer serving his process.
Brinkman v. Drolesbaugh, 97 Ohio St. 171, 180, 119 N.E. 451 (1918). The Brinkman court defined the false imprisonment tort as “a wrongful or unlawful detention or restraint of one‘s liberty.” (Emphasis added.) Id. at 174. It recognized that when a state official exceeded the lawful bounds of his authority, he could be liable for the false imprisonment tort. The practical utility of a false imprisonment claim against the state was severely diminished by the state‘s defense of sovereign immunity—but the claim was “recognized” at common law. Moreover, the Supreme Court confirmed the viability of Brinkman‘s hypothetical false-imprisonment claim in the 1958 case Minor v. Seliga, holding that “‘where a justice of the peace, without authority of law, issues a warrant of arrest, both he and the person at whose instance he so acts are liable in an action for false imprisonment at the suit of the party illegally arrested by virtue of such warrant.‘” Minor v. Seliga, 168 Ohio St. 1, 5, 150 N.E.2d 852 (1958) (reversing the trial court‘s dismissal of plaintiff‘s false imprisonment claim against a judge), citing Truesdell v. Combs, 33 Ohio St. 186 (1877).
{63} Better yet, in the 1991 case, Bennett v. Ohio Dept. of Rehab. & Corr., the Ohio Supreme Court directly addressed the relationship between the common law tort of false imprisonment and then-new
[The state‘s sovereign] immunity derived from the law governing false imprisonment. As stated in Diehl v. Friester, “an action for false imprisonment cannot be maintained where the wrong complained of is imprisonment in accordance with the judgment or order of a court, unless it appear that such judgment or order is void.” R.C. 2743.48 abolished this immunity for purposes of the state‘s liability to “wrongfully imprisoned individuals.” In summary,R.C. 2743.48 does not replace the false imprisonment tort but, rather, supplements it to allow a recovery in some cases when recovery was not available before.
(Internal citations omitted.) Bennett at 110-111. Notably, the Bennett court characterized
{64} Following Brinkman and Bennett, I conclude without hesitation that a wrongful imprisonment claim under
{65} We also must recall that Brinkman described false imprisonment as including “wrongful * * * restraint of one‘s liberty.” Brinkman, 97 Ohio St. at 174, 119 N.E. 451. After sifting through all the statutory legalese in
{66} In the recent Tenth District case cited by the majority, the court held that “[f]alse imprisonment and wrongful imprisonment are distinct causes of action” that require a plaintiff to prove distinct elements. Brandon v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 20AP-211, 2021-Ohio-418, ¶ 16. The court was not applying any version of a
{67} Now we turn to the nature of the remedy sought.
{68} Finally, let‘s think about the significance of the claim at hand, and whether—if we were in doubt—this claim would deserve the constitutional protection of a jury trial. If Mr. McClain is correct, and he is an innocent man, then the judicial system committed a grievous error. Part of the frailty of the human condition is that we don‘t like to admit mistakes. It‘s far easier for outsiders to appreciate our missteps. So what makes more sense—that Mr. McClain must ask a judge to rule that another judge was (unwittingly perhaps) a party to a miscarriage of justice? Or to have a jury of his peers evaluate that claim? Naturally, the latter.
{69} But this also illustrates the wisdom of our constitutional design. Our framers—just like the framers of other state constitutions—understood the jury as a check on both judicial and legislative power. What “type of claim” could be better-suited for a jury-check on the judiciary than a plaintiff‘s assertion that the judicial system failed? Mr. McClain asks for a jury to determine what might be the most quintessential factual dispute in our legal system: actual innocence of a crime. This fact-finding function is what Arbino underscored must be protected at all cost. See Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 35 (“Section 5, Article I of the Ohio Constitution clearly protects this fact-finding function from outside interference.“); Arrington, 109 Ohio St.3d 539, 2006-Ohio-3257, 849 N.E.2d 1004, at ¶ 21 (noting that the jury trial right was designed “to promote the fair resolution of factual issues“). He seeks monetary relief to compensate for the deprivation of personal freedoms. Even if we thought that this common law “type of claim” question presented a close call, I cannot think of a better case for erring on the side of a broad jury trial right.
V.
{70} Today‘s decision is the culmination of a long, steady march by Ohio courts to erode the constitutional right to a jury trial. This journey has not only strayed from the plain text of our Constitution, but it has also substituted in its place a confusing analytical framework that, unless corrected, will only ensure a continued whittling away at the right. Our entire judicial system would benefit from a healthy dose
Please note:
The court has recorded its own entry this date.