As Introduced                            1            

123rd General Assembly                                             4            

   Regular Session                                  H. B. No. 58   5            

      1999-2000                                                    6            


             REPRESENTATIVES WOMER BENJAMIN-TAYLOR-                8            

                 TIBERI-TERWILLEGER-OLMAN-BUCHY                    9            


                                                                   10           

                           A   B I L L                                          

             To amend sections 2721.01, 2721.02, 2721.06,          12           

                2721.07, 2721.08, 2721.09, 2721.10, 2721.11,       13           

                2721.12, 2721.13, 2721.14, 2721.15, 2907.36, and   14           

                3709.99 and to enact section 2721.16 of the        15           

                Revised Code to prohibit an award of attorney's    16           

                fees under the Declaratory Judgments Law unless a  17           

                statute expressly authorizes the award in          18           

                connection with a particular type of declaratory   19           

                relief action or proceeding.                       20           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        22           

      Section 1.  That sections 2721.01, 2721.02, 2721.06,         24           

2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12, 2721.13,     25           

2721.14, 2721.15, 2907.36, and 3709.99 be amended and section      26           

2721.16 of the Revised Code be enacted to read as follows:         27           

      Sec. 2721.01.  As used in sections 2721.01 to 2721.15,       36           

inclusive, of the Revised Code THIS CHAPTER, "person" means any    37           

person, partnership, joint-stock company, unincorporated           39           

association, society, municipal corporation, or other                           

corporation.                                                       40           

      Sec. 2721.02.  Courts of record may declare rights, status,  49           

and other legal relations whether or not further relief is or      50           

could be claimed.  No action or proceeding is open to objection    51           

on the ground that a declaratory judgment or decree is prayed for  52           

UNDER THIS CHAPTER.  The declaration may be either affirmative or  53           

negative in form and effect.  Such THE declaration has the effect  54           

                                                          2      

                                                                 
of a final judgment or decree.                                     56           

      Sec. 2721.06.  Sections 2721.03 to 2721.05, inclusive, of    65           

the Revised Code do not limit or restrict the exercise of the      67           

general powers conferred in BY section 2721.02 of the Revised      69           

Code in any ACTION OR proceeding where IN WHICH declaratory        70           

relief is sought, UNDER THIS CHAPTER AND in which a judgment or    71           

decree will terminate the controversy or remove an uncertainty.    73           

      Sec. 2721.07.  Courts of record may refuse to render or      82           

enter a declaratory judgment or decree when such UNDER THIS        83           

CHAPTER IF THE judgment or decree would not terminate the          84           

uncertainty or controversy giving rise to the ACTION OR            85           

proceeding IN WHICH THE DECLARATORY RELIEF IS SOUGHT.              86           

      Sec. 2721.08.  All orders, judgments, and decrees under      95           

sections 2721.01 to 2721.15, inclusive, of the Revised Code, THIS  97           

CHAPTER may be reviewed ON APPEAL as ARE other orders, judgments,  99           

and decrees are reviewed OF THE COURT OF RECORD INVOLVED.          100          

      Sec. 2721.09.  Whenever SUBJECT TO SECTION 2721.16 OF THE    109          

REVISED CODE, WHENEVER necessary or proper, A COURT OF RECORD MAY  110          

GRANT further relief based on a declaratory judgment or decree     113          

previously granted may be given UNDER THIS CHAPTER.  The           114          

application therefor FOR THE FURTHER RELIEF shall be by petition   115          

to A COMPLAINT FILED IN a court having OF RECORD WITH              116          

jurisdiction to grant the FURTHER relief.  If the application is   118          

sufficient, the court shall, on reasonable notice, SHALL require   119          

any adverse party, whose rights have been adjudicated by the       120          

declaratory judgment or decree, to show cause why THE further      122          

relief should not be granted forthwith.                            124          

      Sec. 2721.10.  When a AN ACTION OR proceeding IN WHICH       133          

DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15,    134          

inclusive, of the Revised Code, THIS CHAPTER involves the          136          

determination of an issue of fact, such THAT issue may be tried    138          

and determined in the same manner as issues of fact are tried and  139          

determined in other civil actions in the court in which the                     

ACTION OR proceeding is pending.                                   140          

                                                          3      

                                                                 
      Sec. 2721.11.  In any ACTION OR proceeding IN WHICH          149          

DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15,    150          

inclusive, of the Revised Code THIS CHAPTER, the court may make    151          

such AN award of COURT costs as is equitable and just.             152          

      Sec. 2721.12.  When declaratory relief is sought UNDER THIS  161          

CHAPTER IN AN ACTION OR PROCEEDING, all persons shall be made      162          

parties who have or claim any interest which THAT would be         163          

affected by the declaration SHALL BE MADE PARTIES TO THE ACTION    165          

OR PROCEEDING.  No declaration shall prejudice the rights of       166          

persons WHO ARE not MADE parties to the ACTION OR proceeding.  In  168          

any ACTION OR proceeding which THAT involves the validity of a     169          

municipal ordinance or franchise, the municipal corporation shall  170          

be made a party and shall be heard, and, if any statute or the     171          

ordinance or franchise is alleged to be unconstitutional, the      173          

attorney general ALSO shall also be served with a copy of the      175          

COMPLAINT IN THE ACTION OR proceeding and shall be heard.  In any  176          

ACTION OR proceeding which THAT involves the validity of a         177          

township resolution, the township shall be made a party and shall  178          

be heard.                                                                       

      Sec. 2721.13.  Sections 2721.01 to 2721.15, inclusive, of    187          

the Revised Code THE PROVISIONS OF THIS CHAPTER are remedial, and  189          

shall be liberally construed and administered.                                  

      Sec. 2721.14.  Sections 2721.01 to 2721.15, inclusive, of    198          

the Revised Code THE PROVISIONS OF THIS CHAPTER shall be so        199          

interpreted and construed as to effectuate their general purpose   200          

to make the law of this state uniform with the law of those        201          

states which THAT enact similar sections, PROVISIONS and to        203          

harmonize, as far INSOFAR as possible, with federal laws and       205          

regulations on the subject of declaratory judgments and decrees.   206          

      Sec. 2721.15.  With the exception of sections 2721.02 and    215          

2721.03 of the Revised Code, sections 2721.01 to 2721.15,          216          

inclusive, of the Revised Code THE PROVISIONS OF THIS CHAPTER are  217          

independent and severable, and the invalidity of any part of       218          

sections 2721.01 and 2721.04 to 2721.15, inclusive, of the         220          

                                                          4      

                                                                 
Revised Code THOSE PROVISIONS does not affect or render the        222          

remainder of such sections THOSE PROVISIONS invalid or             223          

inoperative.                                                                    

      Sec. 2721.16.  (A)  A COURT OF RECORD SHALL NOT AWARD        226          

ATTORNEY'S FEES TO ANY PARTY ON A CLAIM FOR DECLARATORY RELIEF     227          

UNDER THIS CHAPTER UNLESS A SECTION OF THE REVISED CODE            230          

EXPLICITLY AUTHORIZES A COURT OF RECORD TO AWARD ATTORNEY'S FEES   232          

ON A CLAIM FOR DECLARATORY RELIEF UNDER THIS CHAPTER OR UNLESS AN  234          

AWARD OF ATTORNEY'S FEES IS AUTHORIZED BY SECTION 2323.51 OF THE   235          

REVISED CODE, BY THE CIVIL RULES, OR BY AN AWARD OF PUNITIVE OR    236          

EXEMPLARY DAMAGES AGAINST THE PARTY ORDERED TO PAY ATTORNEY'S                   

FEES.  REFERENCES IN ANOTHER SECTION OF THE REVISED CODE TO AN     239          

AWARD OF COSTS OR EXPENSES INCURRED IN CONNECTION WITH AN ACTION   240          

OR PROCEEDING DOES NOT AUTHORIZE AN AWARD OF ATTORNEY'S FEES FOR   241          

PURPOSES OF THIS DIVISION.                                         242          

      (B)  CONSISTENT WITH SECTION 2721.13 OF THE REVISED CODE,    246          

THE PROVISIONS OF THIS SECTION ARE REMEDIAL IN NATURE.             247          

NOTWITHSTANDING ANY PROVISION OF THE REVISED CODE IN EXISTENCE ON  249          

THE DAY IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS SECTION,   250          

NOTWITHSTANDING ANY JUDICIAL CONSTRUCTION PRIOR TO THE EFFECTIVE   251          

DATE OF THIS SECTION OF A STATUTORY PROVISION OF THAT NATURE,      253          

NOTWITHSTANDING THE HOLDING IN ANY DECISION OF A COURT OF THIS     254          

STATE THAT AUTHORIZED AN AWARD OF ATTORNEY'S FEES TO A PARTY TO A  255          

CIVIL ACTION OR PROCEEDING BASED ON COMMON LAW GROUNDS RATHER      256          

THAN A STATUTORY AUTHORIZATION OF THE GENERAL ASSEMBLY,            257          

REGARDLESS OF THE DATE UPON WHICH A CAUSE OF ACTION ACCRUED THAT   258          

PERTAINS TO AN ACTION OR PROCEEDING IN WHICH DECLARATORY RELIEF    259          

IS SOUGHT UNDER THIS CHAPTER, AND REGARDLESS OF WHO IS THE         260          

PLAINTIFF OR THE DEFENDANT IN AN ACTION OR PROCEEDING IN WHICH     261          

DECLARATORY RELIEF IS SOUGHT UNDER THIS CHAPTER, DIVISION (A) OF   263          

THIS SECTION SHALL APPLY IN CONNECTION WITH BOTH OF THE            264          

FOLLOWING:                                                                      

      (1)  AN ACTION OR PROCEEDING THAT IS COMMENCED ON OR AFTER   267          

THE EFFECTIVE DATE OF THIS SECTION AND THAT SEEKS DECLARATORY      268          

                                                          5      

                                                                 
RELIEF UNDER THIS CHAPTER;                                                      

      (2)  AN ACTION OR PROCEEDING THAT WAS COMMENCED PRIOR TO     270          

THE EFFECTIVE DATE OF THIS SECTION, THAT IS PENDING IN A COURT OF  272          

RECORD ON THAT DATE, AND THAT SEEKS DECLARATORY RELIEF UNDER THIS  273          

CHAPTER.                                                                        

      Sec. 2907.36.  (A)  Without limitation on the persons        282          

otherwise entitled to bring an action for a declaratory judgment   283          

pursuant to sections 2721.01 to 2721.15 CHAPTER 2721. of the       285          

Revised Code, involving the same issue, the following persons      286          

have standing to bring such an A DECLARATORY JUDGMENT action to    287          

determine whether particular materials or performances are         289          

obscene or harmful to juveniles:                                                

      (1)  The chief legal officer of the jurisdiction in which    291          

there is reasonable cause to believe that section 2907.31 or       292          

2907.32 of the Revised Code is being or is about to be violated;   293          

      (2)  Any person who, pursuant to division (B) of section     295          

2907.35 of the Revised Code, has received notice in writing from   296          

a chief legal officer stating that particular materials or         297          

performances are obscene or harmful to juveniles.                  298          

      (B)  Any party to an action for a declaratory judgment       300          

pursuant to division (A) of this section is entitled, upon his     301          

THE PARTY'S request, to trial on the merits within five days       302          

after joinder of the issues, and the court shall render judgment   303          

within five days after trial is concluded.                         304          

      (C)  An action for a declaratory judgment pursuant to        306          

division (A) of this section shall not be brought during the       307          

pendency of any civil action or criminal prosecution, when the     308          

character of the particular materials or performances involved is  309          

at issue in the pending case, and either of the following apply    310          

APPLIES:                                                           311          

      (1)  Either of the parties to the action for a declaratory   313          

judgment is a party to the pending case;.                          314          

      (2)  A judgment in the pending case will necessarily         316          

constitute res judicata as to the character of the materials or    317          

                                                          6      

                                                                 
performances involved.                                             318          

      (D)  A civil action or criminal prosecution in which the     320          

character of particular materials or performances is at issue,     321          

brought during the pendency of an action for a declaratory         322          

judgment involving the same issue, shall be stayed during the      323          

pendency of the action for a declaratory judgment.                 324          

      (E)  The fact that a violation of section 2907.31 or         326          

2907.32 of the Revised Code occurs prior to a judicial             327          

determination of the character of the material or performance      328          

involved in the violation, does not relieve the offender of        329          

criminal liability for the violation, even though prosecution may  330          

be stayed pending the judicial determination.                      331          

      Sec. 3709.99.  (A)  Whoever violates section 3709.20,        340          

3709.21, or 3709.22 of the Revised Code or any order or            341          

regulation of the board of health of a city or general health      342          

district adopted in pursuance of such THOSE sections, or WHOEVER   343          

interferes with the execution of such an order or regulation OF    345          

THAT NATURE by a member of the board or person authorized by the   347          

board, shall be fined not more than one hundred dollars or         348          

imprisoned not more than ninety days, or both.  No person shall    349          

be imprisoned for the first offense, and the prosecution shall     350          

always be for a first offense unless the affidavit upon which the  351          

prosecution is instituted contains the allegation that the         352          

offense is a subsequent offense.                                                

      (B)  Except in case of an emergency endangering the public   354          

health caused by an epidemic, an infectious or a communicable      355          

disease, or a disaster emergency condition or event, no            356          

prosecution for A violation of any regulation or order adopted     357          

pursuant to section 3709.20, 3709.21, or 3709.22 of the Revised    358          

Code shall take place until twenty days after such THE board of    359          

health OF A CITY OR GENERAL HEALTH DISTRICT has notified the       360          

person subject to such THE regulation or order of the specific     363          

violation alleged.  Any person notified by the board of a          364          

violation of any such regulation or order OF THAT NATURE may file  365          

                                                          7      

                                                                 
an action for declaratory judgment pursuant to sections 2721.01    366          

to 2721.15, inclusive, CHAPTER 2721. of the Revised Code, to have  368          

determined whether such THE regulation or order is unreasonable    369          

or unlawful.  No such prosecution OF THAT NATURE shall be          371          

commenced when, within such THE twenty-day period DESCRIBED IN     373          

THIS DIVISION, the violation has been corrected.  No such          374          

prosecution OF THAT NATURE shall be commenced until such a         375          

declaratory judgment OF THAT NATURE has been given.                376          

      Section 2.  That existing sections 2721.01, 2721.02,         378          

2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12,     379          

2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 of the Revised     380          

Code are hereby repealed.                                          381          

      Section 3.  The General Assembly hereby declares that, in    383          

enacting section 2721.16 of the Revised Code in this act and in    384          

making conforming amendments to sections 2721.01, 2721.02,         385          

2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12,     386          

2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 of the Revised     387          

Code in this act, it is the intent of the General Assembly to do   388          

all of the following:                                              389          

      (A)  To supersede the effect of the holding in Motorists     391          

Mut. Ins. Co. v. Brandenburg (1995), 72 Ohio St. 3d 157, that the  393          

"whenever necessary or proper" and "further relief" language in    394          

section 2721.09 of the Revised Code, as it existed prior to the    395          

effective date of this act, reflected the General Assembly's       396          

conferral of authority upon an Ohio trial court to award           397          

"attorney's fees based on a declaratory judgment issued by the     398          

court";                                                                         

      (B)  To recognize the dissent's accurate construction in     400          

Brandenburg of the "whenever necessary or proper" and "further     402          

relief" language in section 2721.09 of the Revised Code, as it     403          

existed prior to the effective date of this act;                                

      (C)  To recognize the holding of the Ohio Supreme Court in   405          

Sorin v. Bd. of Edn. (1976), 46 Ohio St. 2d 177, and its progeny   407          

that Ohio follows the "American Rule" under which an award of      408          

                                                          8      

                                                                 
attorney's fees to a prevailing party in a civil action or         409          

proceeding generally must be based on an express authorization of  410          

the General Assembly;                                                           

      (D)  To recognize, consistent with the "American Rule,"      412          

that authority to grant an award of attorney's fees in connection  413          

with an action or proceeding in which declaratory relief is        414          

sought under Chapter 2721. of the Revised Code must be expressly   415          

conferred by the General Assembly upon the courts of this state    416          

and has not been so conferred prior to the effective date of this  418          

act.