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
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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
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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
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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
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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
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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
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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
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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
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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.