Smith v. Ohio State Univ.Smith v. Ohio State Univ.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Smith v. Ohio State Univ., Slip Opinion No. 2024-Ohio-764.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2024-OHIO-764
SMITH, APPELLEE, v. OHIO STATE UNIVERSITY, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Smith v. Ohio State Univ., Slip Opinion No. 2024-Ohio-764.]
Subject-matter jurisdiction—Affirmative defenses—Discretionary immunity—
(No. 2023-0009—Submitted September 13, 2023—Decided March 6, 2024.
APPEAL from the Court of Appeals for Franklin County, No. 22AP-125, 2022-Ohio-4101.
KENNEDY, C.J.
{¶ 1} In this discretionary appeal from a judgment of the Tenth District Court of Appeals, we consider whether discretionary immunity is a jurisdictional bar or an affirmative defense to suits brought against the state or its instrumentalities. We hold that the Court of Claims, the statutory body that has original jurisdiction over claims against the state, does not have such jurisdiction when discretionary immunity applies. We therefore reverse the judgment of the Tenth District regarding discretionary immunity and remand this matter to that court to determine whether Ohio State University is protected by discretionary immunity regarding its decisions in response to the COVID-19 pandemic—namely, to suspend in-person instruction, transition to virtual learning, restrict access to its campus, and provide limited refunds to students.
I. Facts and Procedural Background
{¶ 2} In response to the COVID-19 pandemic, and for a portion of the spring 2020 semester, appellant, Ohio State University (“Ohio State“), suspended face-to-face instruction, transitioned to virtual learning, and restricted in-person access to its campus. Ohio State also provided pro rata refunds to students for the recreational fee and for room and board. However, pro rata refunds were not provided for the instructional fee, general fee, learning-technology fee, student-activity fee, student-union-facility fee, international-undergraduate-student fee, bus fee for the Central Ohio Transit
{¶ 3} Appellee, Brooke Smith, was a fourth-year student at Ohio State and enrolled in the College of Education and Human Ecology when Ohio State suspended in-person instruction. Smith filed a class-action complaint in the Court of Claims against the Ohio Department of Higher Education (“ODHE“) and Ohio State, alleging breach of contract, unjust enrichment, and conversion. According to Smith, students “lost the benefit of the education for which they paid, and/or the services for which their fees paid, without having their tuition and fees refunded to them” as a result of ODHE and Ohio State‘s decisions in response to the COVID-19 pandemic. Smith sought the “disgorgement of the pro-rated portion of tuition and fees, proportionate to the amount of time that remained in the Spring Semester 2020 when classes moved online and campus services ceased being provided.”
{¶ 4} ODHE moved to dismiss the action. ODHE argued that it was not a proper defendant in the matter, because it did not operate any Ohio institution of higher education or collect any tuition or fees from students. In response, Smith voluntarily dismissed her claims against ODHE.
{¶ 5} Ohio State also moved to dismiss Smith‘s complaint but on the basis that Smith failed to state a claim. Ohio State did not reference discretionary immunity in its motion to dismiss. The Court of Claims denied Ohio State‘s motion to dismiss and ordered Ohio State to answer Smith‘s complaint. In its answer, Ohio State asserted discretionary immunity as an affirmative defense.
{¶ 6} Subsequently, Smith moved the Court of Claims to certify the case as a class action. In a footnote in her motion, Smith stated that she was no longer pursuing her conversion claim. Ohio State opposed Smith‘s motion for class certification and filed a motion for summary judgment on the issue of liability. The Court of Claims issued a decision granting Smith‘s motion for class certification and certifying the class as “all undergraduate students enrolled in classes at the Columbus campus of The Ohio State University during the Spring 2020 semester who paid tuition, the general fee, student activity fee, learning technology fee, course fees, program fees, and/or the COTA bus fee.” Ohio State appealed that decision to the Tenth District Court of Appeals, see
{¶ 7} On appeal, Ohio State asserted eight assignments of error challenging the Court of Claims’ class certification. 2022-Ohio-4101, 200 N.E.3d 1249, ¶ 23. In two of its related assignments of error, Ohio State argued that the Court of Claims failed to conduct a rigorous analysis under Civ.R. 23 regarding the common evidence of class-wide injury. In another of its assignments of error, Ohio State argued that the Court of Claims did not have jurisdiction over the matter, because Ohio State‘s “decision to temporarily close or restrict access to its facilities in the face of the COVID-19 pandemic” was protected by discretionary immunity. 2022-Ohio-4101 at ¶ 23.
{¶ 8} The court of appeals agreed with Ohio State that the class was improperly certified, finding that the Court of Claims failed to rigorously analyze the requirements for class certification. Id. at ¶ 48. However, the Tenth District did not agree with Ohio State that discretionary immunity was a jurisdictional bar; instead, the court held that discretionary immunity is an affirmative defense. Id. at ¶ 28-29. The
{¶ 9} Ohio State appealed to this court only on the issue whether discretionary immunity is a jurisdictional bar or an affirmative defense. We accepted the following proposition of law for review: “The Court of Claims does not have subject matter jurisdiction to hear claims against the State that are subject to discretionary immunity.” See 169 Ohio St.3d 1457, 2023-Ohio-758, 204 N.E.3d 565.
{¶ 10} We hold that discretionary immunity is a jurisdictional bar, not an affirmative defense, to suits brought against the state in the Court of Claims. We therefore reverse the judgment of the Tenth District regarding discretionary immunity and remand this matter to that court to determine whether discretionary immunity applies as a jurisdictional bar to Smith‘s suit against Ohio State.
II. Law and Analysis
A. Standard of Review
{¶ 11} Whether a trial court had subject-matter jurisdiction is a question of law that we review de novo. State v. Hudson, 169 Ohio St.3d 216, 2022-Ohio-1435, 203 N.E.3d 658, ¶ 19; see also State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 12.
B. Sovereign Immunity and the Court of Claims
{¶ 12} Under the doctrine of sovereign immunity, “a state is not subject to suit in its own courts unless it expressly consents to be sued.” Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, ¶ 7. The
{¶ 13} This constitutional provision is “not self-executing,” but rather, “legislative authority by statute is required as a prerequisite” to allowing suits against the state. Raudabaugh v. State, 96 Ohio St. 513, 518, 118 N.E. 102 (1917); see also Krause v. State, 31 Ohio St.2d 132, 285 N.E.2d 736 (1972), paragraph three of the syllabus (“statutory consent is a prerequisite“), overruled in part on other grounds by Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31, 426 N.E.2d 784 (1981). This court has also held that sovereign immunity may, consistent with this constitutional provision, be altered or abrogated judicially. Schenkolewski at paragraph one of the syllabus.
{¶ 14} Through the Court of Claims Act,
{¶ 15} While the judiciary may abrogate the state‘s sovereign immunity, this court has held that the judiciary may also determine the outer limits of the statutory waiver of that immunity. “In Reynolds v. State[, 14 Ohio St.3d 68, 471 N.E.2d 776 (1984)], * * * this court squarely addressed the meaning of
The language in
R.C. 2743.02 that “the state” shall “have its liability determined * * * in accordance with the same rules of law applicable to suits between private parties * * * ” means that the state cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.
(Ellipses in original.) Id. at paragraph one of the syllabus.
{¶ 16} Therefore, the Court of Claims does not have jurisdiction when the state makes highly discretionary decisions pursuant to its legislative, judicial, executive, or planning functions, because the state has not waived its sovereign immunity for those decisions. Consequently, discretionary immunity is a jurisdictional bar, not an affirmative defense. See State ex rel. Parker Bey v. Bur. of Sentence Computation, 166 Ohio St.3d 497, 2022-Ohio-236, 187 N.E.3d 526, ¶ 18. Because the Court of Claims does not have subject-matter jurisdiction when discretionary immunity applies, discretionary immunity cannot be waived and may be raised at any time. See State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10.
{¶ 17} It is important to note that discretionary immunity is not absolute. Once a discretionary decision has been made to engage in a certain activity, “the state may be held liable, in the same manner as private parties, for the negligence of the actions of its employees and agents in the performance of such activities.” Reynolds at paragraph one of the syllabus; see also Wallace at ¶ 35. This means that when a suit challenges the manner in which the state implements one of its discretionary decisions, the Court of Claims will not be barred from hearing the case. See Risner v. Ohio Dept. of Transp., 145 Ohio St.3d 55, 2015-Ohio-4443, 46 N.E.3d 687, ¶ 23.
{¶ 18} “‘Subject-matter jurisdiction of a court connotes the power to hear and decide a case upon its merits’ and ‘defines the competency of a court to render a valid judgment in a particular action.‘” Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 6, quoting Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972). Subject-matter jurisdiction may never be waived and may be challenged at any time. Mbodji at ¶ 10. ““[I]n the absence of subject-matter jurisdiction, a court lacks the authority to do anything but announce its lack of jurisdiction and dismiss.“” Hudson, 169 Ohio St.3d 216, 2022-Ohio-1435, 203 N.E.3d 658, at ¶ 22, quoting Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 21.
{¶ 19} An affirmative defense is different than a subject-matter jurisdictional bar because an affirmative defense considers the pleadings and claims of the parties. See Parker Bey, 166 Ohio St.3d 497, 2022-Ohio-236, 187 N.E.3d 526, at ¶ 17-18. An affirmative defense “““admits that the plaintiff has a claim * * * but asserts some legal reason why the plaintiff cannot have any recovery on that claim * * *.“‘” Id. at ¶ 18, quoting State ex rel. Plain Dealer Publishing Co. v. Cleveland, 75 Ohio St.3d 31, 33, 661 N.E.2d 187 (1996), quoting 1 Klein, Browne & Murtaugh, Baldwin‘s Ohio Civil Practice, Section T 13.03, 33 (1988). This means that any “defense that prevents a plaintiff * * * from even establishing a prima facie case is not an affirmative defense.” Id. Unlike a lack of subject-matter jurisdiction, all affirmative defenses, other than those listed in Civ.R. 12(B), “are waived if not raised in the pleadings or in an amendment to the pleadings,” Jim‘s Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18, 20, 688 N.E.2d 506 (1998) (plurality opinion).
{¶ 20} The Tenth District erred by finding that Ohio State had not demonstrated that discretionary immunity is jurisdictional in nature. Based on this error, the court of appeals did not decide whether discretionary immunity applies to this case. Therefore, we remand this matter to the Tenth District to determine whether Ohio State is immune from suit in the Court of Claims regarding its decisions in response to the COVID-19 pandemic, including to suspend in-person instruction, transition to virtual learning, restrict access to its campus, and provide pro rata refunds to students only for the recreational fee and for room and board.
III. Conclusion
{¶ 21} Pursuant to
Judgment reversed and cause remanded.
BRUNNER, J., dissents, with an opinion joined by DONNELLY and STEWART, JJ.
BRUNNER, J., dissenting.
{¶ 22} Ohio‘s sovereign-immunity-waiver statutes allow people to bring actions against the state for liability and damages, determined in the same manner as in actions between private parties. See
Statutory basis for the Court of Claims’ subject-matter jurisdiction
{¶ 23} Under statutory law, the Court of Claims has exclusive subject-matter jurisdiction over claims against the state for money damages. See
is not required to remand the case upon a finding that the state is no longer a party” [emphasis sic]); Cristino v. Ohio Bur. of Workers’ Comp., Ct. of Cl. No. 2008-10773, 2013-Ohio-5936, ¶ 36, quoting Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972) (“Plaintiff has failed to provide support for the assertion that the Court of Claims can ‘transfer’ a case to a common pleas court when monetary damages are no longer sought. ‘Subject-matter jurisdiction of a court connotes the power to hear and decide a case upon its merits * * * [and] defines the competency of a court to render a valid judgment in a particular action’ “).
Discretionary immunity as an affirmative defense
{¶ 25} The state‘s argument that discretionary immunity applies should be treated as a belated affirmative defense that, even though pled in its answer, was neither timely argued nor proved in a trial court, as required. See State ex rel. Koren v. Grogan, 68 Ohio St.3d 590, 594, 629 N.E.2d 446 (1994); State ex rel. Vanni v. McMonagle, 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243, ¶ 13-15.
{¶ 26} The state‘s claim of immunity, a question of law, may be determined by a court of common pleas, by the Court of Claims, or by an appellate court reviewing a lower court‘s decision. Common pleas courts and the Court of Claims are trial courts under provisions of the
{¶ 27} The majority‘s decision today appears to relegate the determination of discretionary immunity to only courts of common pleas and appellate courts on review, even though the Revised Code specifically states that the Court of Claims has jurisdiction over all claims before it. So, under the majority‘s approach, the critical question at the outset is whether there is an unresolved issue of, in this case, discretionary immunity.
The Court of Claims may determine its own jurisdiction
{¶ 28} Cloaking the question of discretionary immunity as “jurisdictional” does not mean that it is a jurisdictional question. If it did, the Court of Claims would not be permitted to determine its own jurisdiction. Yet the majority confuses the issue by remanding this case to the court of appeals, appearing to depart from the general jurisdictional grant of
The court shall have full equity powers in all actions within its jurisdiction and may entertain and determine all counterclaims, cross-claims, and third-party claims.
If the claimant in a civil action as described in division (A)(1) of this section also files a claim for a declaratory judgment, injunctive relief, or other equitable relief against the state that arises out of the same circumstances that gave rise to the civil action described in division (A)(1) of this section, the Court of Claims has exclusive, original jurisdiction to hear and determine that claim in that civil action.
{¶ 29} In short, I do not want the majority‘s decision today to create confusion and render the statute inoperable or to in effect cause nearly every action that is brought in the Court of Claims to be subject to dismissal at the moment the state raises the defense of discretionary immunity. Nor do I want litigants and their lawyers who would have filed a comprehensive set of claims the first instance in the Court of Claims to feel compelled to instead first file a declaratory-judgment action in a court of common pleas for a determination whether discretionary immunity exists under the law. Otherwise, it is highly likely that direct appeals of the immunity question would ensue, resulting in the case dragging on in the courts for years. And I do not want to see cases that are meritorious ultimately fail when they are finally brought before the Court of Claims on their merits because of statute-of-limitations or statute-of-repose bars. See, e.g., Everhart v. Coshocton Cty. Mem. Hosp., ___ Ohio St.3d ___, 2023-Ohio-4670, ___ N.E.3d ___. This could occur because common pleas courts and courts of appeals appear limited in their ability to remove a plaintiff‘s case to the Court of Claims. See Adams v. Cox, 10th Dist. Franklin No. 09AP-684, 2010-Ohio-415, ¶ 11-12 (holding that a court of common pleas had no authority to transfer a plaintiff‘s case to the Court of Claims under
{¶ 30} Many cases brought before the Court of Claims involve serious personal injury or death allegedly caused by wanton and reckless actions of the state or by medical malpractice. Issues of immunity that may affect the jurisdiction of the Court of Claims should therefore be raised and decided at the earliest possible point in litigation, as part of the action on the merits and not in a bifurcated process between two courts.
Remand should be to the Court of Claims
{¶ 31} While Ohio State asserted discretionary immunity as an affirmative defense in its answer, the Court of Claims did not consider whether discretionary immunity applied, because Ohio State did not argue the doctrine in its motion to dismiss or in its motion for summary judgment. Determining whether discretionary immunity applies could have been the subject of a motion for judgment on the pleadings or summary judgment, but, again, the issue was not considered by the Court of Claims.
{¶ 32} When discretionary immunity is timely raised, discovery and evidence are often required to determine whether it applies, making it more likely than not a mixed question of fact and law. When discretionary immunity is not timely raised and is instead raised at the appellate level, the matter should be remanded to the Court of Claims, or other appropriate trial court, for it to oversee the discovery process, make evidentiary rulings, and ultimately determine the immunity issue.
{¶ 33} The Court of Claims, which has expertise developed from years of litigation on the specific issue of the state‘s waiver of immunity, is best suited for the immunity issues raised by the state here. The purpose of the statutes by which the state waives its sovereign immunity should not be defeated by a reading that all questions of the state‘s immunity are jurisdictional and not able to be determined by the Court of Claims. This case is an outlier, one arising from the rare occurrence of a worldwide pandemic. It appears that the majority reached its conclusions on jurisdiction because this is one of those unicorns. Its holding should not be universally applied. Otherwise, egregious situations caused by the state would go unchecked, despite the existence of specific statutes by which the state waives sovereign immunity.
Common-law immunity versus statutory immunity
{¶ 34} It is concerning that the majority declares that this court may alter or abrogate the immunity provisions prescribed by the General Assembly. Majority opinion, ¶ 13. This is not correct law, statutorily or constitutionally. Perhaps what the majority means is that it can do so in the context of common law when discretionary immunity is being raised by the state for the first time on appeal. And perhaps this is a situation when the court is trying to do its job as a keeper of the common law.
{¶ 35} The case the majority relies on, Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31, 426 N.E.2d 784 (1981), explains that courts can set the bounds of the common-law doctrine of sovereign immunity, id. at paragraph one of the syllabus, which is not at issue here. And in my view, the majority is using Schenkolewski to wedge this unicorn case into some kind of caselaw category that
Determining discretionary immunity
{¶ 36} Elementally, the state‘s consent to be sued is explicit in statutes establishing and governing the Court of Claims, specifically,
{¶ 37} The majority misapplies Reynolds v. State, 14 Ohio St.3d 68, 471 N.E.2d 776 (1984) (“Reynolds“), in reaching its conclusion that discretionary immunity is a jurisdictional bar. See majority opinion at ¶ 15-16. In Reynolds, we interpreted statutory language waiving sovereign immunity that is contained in
{¶ 38} But that interpretation has little application here. And although Ohio State was not exercising legislative or judicial functions when it suspended in-person classes or closed certain facilities during the COVID-19 pandemic, it may have been exercising executive function involving a basic policy decision requiring a “high degree of official judgment.” However, Smith is not challenging the university‘s decisions. She is seeking reimbursement for the effects of Ohio State‘s decisions. Smith claims that she did not get what she paid for, and that is the sum and substance of her claim for money damages. Thus, as in Reynolds, Smith may seek money damages that arose from Ohio State‘s decisions, even though she may not challenge the propriety of those decisions.
{¶ 39} In Reynolds, the issue was whether the plaintiffs could maintain their claims for money damages against the state, even if the decision that caused the money damages was barred from suit. We said they could. Id. at 70-71. We
{¶ 40} In Reynolds, on remand, the Court of Claims reviewed the evidence of the state‘s conduct following its decision to furlough the prisoner and found the state liable for the plaintiffs’ injuries, ordering the state to pay money damages to the plaintiffs. Reynolds v. Div. of Parole & Community Servs., 23 Ohio Misc.2d 31, 39, 492 N.E.2d 172 (Ct. of Cl.1985). Importantly, in Reynolds, the state moved for summary judgment in the Court of Claims, arguing that it was entitled to judgment as a matter of law. See Reynolds v. State, 10th Dist. Franklin No. 83AP-348, 1983 WL 3745, *1 (Oct. 27, 1983), rev‘d, Reynolds, 14 Ohio St.3d 68, 471 N.E.2d 776.
{¶ 41} Reynolds does not support any conclusion that discretionary immunity is a jurisdictional bar or that it can be raised for the first time on appeal. Even if Reynolds could be read to imply that discretionary immunity is a jurisdictional bar, its holding applies only to claims made against the decision giving rise to the injury or loss and not to the injury or loss that may have occurred as a result of that decision being implemented once decided. Thus, the state could be entitled to immunity in making its decision, but under Reynolds, claims for money damages survive for the purposes of adjudication. Consequently, the majority‘s use of Reynolds to support its conclusion that discretionary immunity is an all-encompassing jurisdictional bar is a misapplication of Reynolds, majority opinion at ¶ 15-16.
Conclusion
{¶ 42} Whether raised in boiler-plate language in the answer with no further argument before the Court of Claims or thereafter argued for the first time in the court of appeals, Ohio State‘s assertion of discretionary immunity is without merit. No amount of cloaking Ohio State‘s discretionary-immunity defense with the import of being a jurisdictional issue saves it from waiver, because neither the statutes nor caselaw support the conclusion that the immunity question, itself, is jurisdictional. When the legal determination of discretionary immunity may turn on evidence, it is even more important for discretionary immunity to be raised before a trial court and not the first time before a court of appeals. The Court of Claims should determine whether immunity exists, and the court of appeals should determine whether the Court of Claims’ decision is correct under the law.
{¶ 43} A hard-and-fast rule that discretionary immunity or the determination of any type of immunity is a jurisdictional question could thwart the state‘s limited waiver of sovereign immunity set forth in
{¶ 44} For these reasons, I disagree with the majority‘s conclusion that discretionary immunity is a jurisdictional bar to suits brought against the state in the Court of Claims. Ohio State should have done more than assert discretionary immunity as a boiler-plate defense in its answer. It should have argued the issue before the Court of Claims. Having failed to do so, this case should be remanded to the Court of Claims to fairly address any necessary evidentiary issues related to Ohio State‘s belated defense of discretionary immunity. Accordingly, and for the reasons expressed in this separate opinion, I respectfully dissent.
DONNELLY and STEWART, JJ., concur in the foregoing opinion.
Climaco Wilcox Peca & Garofoli Co., L.P.A., and Scott D. Simpkins; and Bursor & Fisher, P.A., and Joshua D. Arisohn, for appellee.
Squire Patton Boggs (U.S.), L.L.P., John R. Gall, Traci L. Martinez, Christopher F. Haas, E. Joseph D‘Andrea, Elizabeth P. Helpling, and Roger M. Gold, for appellant.