The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
As Introduced
123rd General Assembly
Regular Session
1999-2000 | H. B. No. 58 |
REPRESENTATIVES WOMER BENJAMIN-TAYLOR-
TIBERI-TERWILLEGER-OLMAN-BUCHY
A BILL
To amend sections 2721.01, 2721.02, 2721.06, 2721.07, 2721.08,
2721.09, 2721.10, 2721.11, 2721.12, 2721.13, 2721.14, 2721.15,
2907.36, and 3709.99 and to enact section 2721.16
of the Revised
Code to prohibit an award of attorney's fees under the
Declaratory Judgments Law unless a statute expressly authorizes
the award in connection with a particular type of
declaratory
relief action or proceeding.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2721.01, 2721.02, 2721.06, 2721.07,
2721.08, 2721.09, 2721.10, 2721.11, 2721.12, 2721.13, 2721.14,
2721.15, 2907.36, and 3709.99 be amended and section 2721.16 of
the Revised Code be enacted to read as follows:
Sec. 2721.01. As used in sections 2721.01 to 2721.15, inclusive, of the
Revised Code THIS CHAPTER, "person" means any person, partnership,
joint-stock company,
unincorporated association, society, municipal corporation, or other
corporation.
Sec. 2721.02. Courts of record may declare rights, status, and other legal
relations whether or not further relief is or could be claimed. No action or
proceeding is open to objection on the ground that a declaratory judgment or
decree is prayed for UNDER THIS CHAPTER. The declaration may be either
affirmative or negative
in form and effect. Such THE declaration has the effect of a
final judgment or
decree.
Sec. 2721.06. Sections 2721.03 to 2721.05, inclusive, of the Revised
Code do
not limit or restrict the exercise of the general powers conferred in
BY section
2721.02 of the Revised Code in any ACTION OR proceeding where
IN WHICH declaratory relief is
sought, UNDER THIS CHAPTER AND in which a judgment or decree
will terminate the controversy or remove
an uncertainty.
Sec. 2721.07. Courts of record may refuse to render or enter a declaratory
judgment or decree when such UNDER THIS CHAPTER IF THE judgment
or decree would not terminate the
uncertainty or controversy giving rise to the ACTION OR proceeding
IN WHICH THE DECLARATORY RELIEF IS SOUGHT.
Sec. 2721.08. All orders, judgments, and decrees under
sections 2721.01 to
2721.15, inclusive, of the Revised Code, THIS CHAPTER may be
reviewed ON APPEAL as ARE other orders,
judgments, and decrees are reviewed OF THE COURT OF RECORD
INVOLVED.
Sec. 2721.09. Whenever SUBJECT TO SECTION 2721.16 of the Revised Code,
WHENEVER necessary or proper, A COURT OF RECORD MAY GRANT further
relief based on a
declaratory
judgment or decree previously granted may be given UNDER THIS
CHAPTER. The application therefor FOR THE FURTHER RELIEF
shall be by petition to A COMPLAINT FILED IN a court
having OF RECORD WITH jurisdiction to grant the FURTHER
relief. If
the application is sufficient, the court shall, on reasonable notice,
SHALL require
any adverse party, whose rights have been adjudicated by the
declaratory
judgment or decree, to show cause why THE further relief should
not be granted
forthwith.
Sec. 2721.10. When a AN ACTION OR proceeding IN WHICH
DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15,
inclusive,
of the Revised Code, THIS CHAPTER involves the determination of an
issue of fact, such 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.
Sec. 2721.11. In any ACTION OR proceeding IN WHICH DECLARATORY
RELIEF IS SOUGHT under sections 2721.01 to 2721.15, inclusive,
of the Revised Code THIS CHAPTER, the court may make such
AN award of COURT costs as is equitable and just.
Sec. 2721.12. When declaratory relief is sought UNDER THIS CHAPTER IN AN
ACTION OR PROCEEDING, all persons shall be made
parties who have or claim any interest which THAT would be
affected by the
declaration SHALL BE MADE PARTIES TO THE ACTION OR PROCEEDING. No
declaration shall prejudice the rights of persons WHO ARE not
MADE parties
to the ACTION OR proceeding. In any ACTION OR proceeding
which THAT involves the validity of a
municipal ordinance or franchise, the municipal corporation shall be made a
party and shall be heard, and, if any statute or the ordinance or
franchise is
alleged to be unconstitutional, the attorney general ALSO shall
also be served with
a copy of the COMPLAINT IN THE ACTION OR proceeding and shall be heard.
In any ACTION OR proceeding which THAT involves
the validity of a township resolution, the township shall be made a party and
shall be heard.
Sec. 2721.13. Sections 2721.01 to 2721.15, inclusive, of the Revised
Code THE PROVISIONS OF THIS CHAPTER are
remedial, and shall be liberally construed and administered.
Sec. 2721.14. Sections 2721.01 to 2721.15, inclusive, of the Revised
Code THE PROVISIONS OF THIS CHAPTER shall be so interpreted and
construed as to effectuate their general purpose to
make the law of this state uniform with the law of those states which
THAT enact
similar sections, PROVISIONS and to harmonize, as far
INSOFAR as possible, with federal laws
and
regulations on the subject of declaratory judgments and decrees.
Sec. 2721.15. With the exception of sections 2721.02 and 2721.03 of the
Revised Code, sections 2721.01 to 2721.15, inclusive, of the Revised
Code THE PROVISIONS OF THIS CHAPTER are
independent and severable, and the invalidity of any part of sections
2721.01
and 2721.04 to 2721.15, inclusive, of the Revised Code THOSE
PROVISIONS does not affect or
render the remainder of such sections THOSE PROVISIONS invalid
or inoperative.
Sec. 2721.16. (A) A
COURT OF RECORD SHALL NOT AWARD ATTORNEY'S FEES TO
ANY PARTY ON A CLAIM FOR DECLARATORY RELIEF
UNDER THIS CHAPTER UNLESS A SECTION OF
THE REVISED
CODE
EXPLICITLY AUTHORIZES A COURT OF
RECORD TO AWARD ATTORNEY'S FEES
ON A CLAIM FOR DECLARATORY RELIEF
UNDER THIS CHAPTER OR UNLESS AN AWARD OF ATTORNEY'S FEES IS AUTHORIZED BY
SECTION 2323.51 of the Revised Code, BY THE CIVIL RULES, OR BY AN AWARD OF
PUNITIVE OR EXEMPLARY DAMAGES AGAINST THE PARTY ORDERED TO PAY ATTORNEY'S
FEES. REFERENCES IN ANOTHER
SECTION OF THE REVISED
CODE TO AN AWARD OF COSTS OR
EXPENSES INCURRED IN CONNECTION WITH AN ACTION OR PROCEEDING
DOES NOT AUTHORIZE AN AWARD OF ATTORNEY'S FEES FOR PURPOSES OF
THIS DIVISION.
(B) CONSISTENT WITH
SECTION 2721.13 OF THE REVISED
CODE, THE PROVISIONS OF THIS
SECTION ARE REMEDIAL IN NATURE. NOTWITHSTANDING
ANY PROVISION OF THE REVISED
CODE IN EXISTENCE ON THE DAY
IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS SECTION,
NOTWITHSTANDING ANY JUDICIAL CONSTRUCTION PRIOR TO THE EFFECTIVE
DATE OF THIS SECTION OF A STATUTORY PROVISION OF THAT
NATURE, NOTWITHSTANDING THE HOLDING IN ANY DECISION
OF A COURT OF THIS STATE THAT AUTHORIZED AN AWARD OF ATTORNEY'S
FEES TO A PARTY TO A CIVIL ACTION OR PROCEEDING BASED ON COMMON
LAW GROUNDS RATHER THAN A STATUTORY AUTHORIZATION OF THE GENERAL
ASSEMBLY, REGARDLESS OF THE DATE UPON WHICH A CAUSE
OF ACTION ACCRUED THAT PERTAINS TO AN ACTION OR PROCEEDING IN
WHICH DECLARATORY RELIEF IS SOUGHT UNDER THIS CHAPTER, AND
REGARDLESS OF WHO IS THE PLAINTIFF OR THE DEFENDANT IN AN ACTION
OR PROCEEDING IN WHICH DECLARATORY RELIEF IS SOUGHT UNDER THIS
CHAPTER, DIVISION
(A) OF THIS SECTION SHALL APPLY
IN CONNECTION WITH BOTH OF THE FOLLOWING:
(1) AN ACTION OR PROCEEDING THAT IS COMMENCED ON OR
AFTER THE EFFECTIVE DATE OF THIS SECTION AND THAT SEEKS
DECLARATORY RELIEF UNDER THIS CHAPTER;
(2) AN ACTION OR PROCEEDING THAT WAS COMMENCED PRIOR TO
THE EFFECTIVE DATE OF THIS SECTION, THAT IS PENDING IN A COURT
OF RECORD ON THAT DATE, AND THAT SEEKS DECLARATORY RELIEF UNDER
THIS CHAPTER.
Sec. 2907.36. (A) Without limitation on the persons
otherwise entitled to bring an action for a declaratory judgment
pursuant to sections 2721.01 to 2721.15 CHAPTER
2721. of the Revised Code,
involving the same issue, the following persons have standing to
bring such an A DECLARATORY JUDGMENT action to determine whether
particular materials or
performances are obscene or harmful to juveniles:
(1) The chief legal officer of the jurisdiction in which
there is reasonable cause to believe that section 2907.31 or
2907.32 of the Revised Code is being or is about to be violated;
(2) Any person who, pursuant to division (B) of section
2907.35 of the Revised Code, has received notice in writing from
a chief legal officer stating that particular materials or
performances are obscene or harmful to juveniles.
(B) Any party to an action for a declaratory judgment
pursuant to division (A) of this section is entitled, upon his THE
PARTY'S request, to trial on the merits within five days after joinder of
the issues, and the court shall render judgment within five days
after trial is concluded.
(C) An action for a declaratory judgment pursuant to
division (A) of this section shall not be brought during the
pendency of any civil action or criminal prosecution, when the
character of the particular materials or performances involved is
at issue in the pending case, and either of the following apply
APPLIES:
(1) Either of the parties to the action for a declaratory
judgment is a party to the pending case;.
(2) A judgment in the pending case will necessarily
constitute res judicata as to the character of the materials or
performances involved.
(D) A civil action or criminal prosecution in which the
character of particular materials or performances is at issue,
brought during the pendency of an action for a declaratory
judgment involving the same issue, shall be stayed during the
pendency of the action for a declaratory judgment.
(E) The fact that a violation of section 2907.31 or
2907.32 of the Revised Code occurs prior to a judicial
determination of the character of the material or performance
involved in the violation, does not relieve the offender of
criminal liability for the violation, even though prosecution may
be stayed pending the judicial determination.
Sec. 3709.99. (A) Whoever violates section 3709.20, 3709.21,
or 3709.22 of the Revised Code or any order or regulation of the
board of health of a city or general health district adopted in
pursuance of such THOSE sections, or WHOEVER interferes
with the execution of
such an order or regulation OF THAT NATURE by a member of the
board or person
authorized by the board, shall be fined not more than one hundred
dollars or imprisoned not more than ninety days, or both. No
person shall be imprisoned for the first offense, and the
prosecution shall always be for a first offense unless the
affidavit upon which the prosecution is instituted contains the
allegation that the offense is a subsequent offense.
(B) Except in case of an emergency endangering the public
health caused by an epidemic, an infectious or a communicable
disease, or a disaster emergency condition or event, no
prosecution for A violation of any regulation or order adopted
pursuant to section 3709.20, 3709.21, or 3709.22 of the Revised
Code shall take place until twenty days after such THE board of
health OF A CITY OR GENERAL HEALTH DISTRICT has notified the person
subject to
such THE regulation or
order of the specific violation alleged. Any person notified by
the board of a violation of any such regulation or order OF THAT
NATURE may file
an action for declaratory judgment pursuant to sections 2721.01
to 2721.15, inclusive, CHAPTER 2721. of the
Revised Code, to have determined
whether such THE regulation or order is unreasonable or
unlawful. No
such prosecution OF THAT NATURE shall be commenced when, within
such THE twenty-day
period DESCRIBED IN THIS DIVISION, the violation has been corrected.
No such prosecution OF THAT NATURE
shall be commenced until such a declaratory judgment OF THAT
NATURE has been given.
Section 2. That existing sections 2721.01, 2721.02, 2721.06,
2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12, 2721.13,
2721.14, 2721.15, 2907.36, and 3709.99 of the Revised Code are
hereby repealed.
Section 3. The General Assembly hereby declares that, in
enacting section 2721.16 of the Revised Code in this act and in
making conforming amendments to sections 2721.01, 2721.02,
2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12,
2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 of the Revised
Code in this act, it is the intent of the General Assembly to do
all of the following:
(A) To supersede the effect of the holding in Motorists
Mut. Ins. Co. v. Brandenburg
(1995), 72 Ohio St. 3d 157, that the "whenever necessary or
proper" and "further relief" language in section 2721.09 of the
Revised Code, as it existed prior to the effective date of this
act, reflected the General Assembly's conferral of authority
upon an Ohio trial court to award "attorney's fees based on a
declaratory judgment issued by the court";
(B) To recognize the dissent's accurate construction in
Brandenburg of the "whenever necessary or proper" and
"further relief" language in section 2721.09 of the Revised
Code, as it existed prior to the effective date of this act;
(C) To recognize the holding of the Ohio Supreme Court in
Sorin v. Bd. of Edn. (1976), 46 Ohio St. 2d
177, and its progeny that Ohio follows the "American Rule" under
which an award of attorney's fees to a prevailing party in a
civil action or proceeding generally must be based on an express
authorization of the General Assembly;
(D) To recognize, consistent with the "American Rule," that
authority to grant an award of attorney's fees in connection
with an action or proceeding in which declaratory relief is
sought under Chapter 2721. of the Revised Code must be expressly
conferred by the General Assembly upon the courts of this state
and has not been so conferred prior to the effective date of
this act.
|