Am.
H.B. 537
127th General Assembly
(As Reported by H. Civil & Commercial Law)
Reps. Oelslager,
J. McGregor, Hughes, Evans,
Stebelton, Skindell, Huffman, Okey, Letson, Yuko, DeGeeter
BILL SUMMARY
· Authorizes a retired judge to register with the clerk of a court of common pleas, municipal court, or county court to receive referrals of civil actions for adjudication by the retired judge (existing law) or for trial by jury to be presided over by the retired judge.
· Permits the parties to a civil action to seek a retired judge to preside over a jury trial if a party to the action has properly made a demand for a jury trial in accordance with Civil Rule 38.
· Requires that the parties' written agreement with a retired judge for a referral of the civil action indicate that the parties will assume responsibility for providing, and will pay the costs for, facilities, equipment, personnel, and other support (added by the bill) reasonably necessary for the retired judge or the jury (added by the bill) to advance and consider the action or to determine a specific issue or question.
· Requires that a trial by jury of a referred action or a determination by a jury of issues in a referred action be conducted in the same manner as trials and determinations by a jury in civil actions, that the selection and summoning of jurors be in accordance with the existing Juror Law, that the fees of the jurors sworn be taxed as costs as in current law, and that the compensation of the jurors be fixed as in current law.
· Requires the parties to pay the fees of the jurors if the referred action is settled before the jurors are sworn.
TABLE OF CONTENTS
Registration by retired judge to receive referrals of civil actions
Parties' written agreement of referral
Trial by retired judge or by jury
CONTENT AND OPERATION
Under
existing law, any "voluntarily" retired judge, or "any judge who
is retired under Section 6 of Article IV, Ohio Constitution" (see COMMENT
1), may register with the clerk of any court of common pleas, municipal court,
or county court for the purpose of receiving referrals for adjudication of
civil actions "or proceedings, and submissions for determination of
specific issues or questions of fact or law in any civil action or proceeding,
pending in the court." There is no
limitation upon the number, type, or location of courts with which a retired
judge may register under this provision.
Upon registration with the clerk of any court, the retired judge is
eligible to receive referrals "and submissions" from that court in
accordance with existing law. Each
court of common pleas, municipal court, and county court must maintain an index
of all retired judges who have registered with the clerk of that court and must
make the index available to any person, upon request. (R.C. 2701.10(A).)
The bill provides
that any "retired judge" (the bill deletes "voluntarily"
and "or any judge who is
retired under Section 6 of Article IV, Ohio Constitution" and defines
"retired judge" as described in the following paragraph) may register
with the clerk of any court of common pleas, municipal court, or county court
for the purpose of receiving referrals of civil actions for adjudication by
the retired judge or for trial by jury to be presided over by the retired judge
(the bill adds the italicized clause and deletes "or proceedings, and
submissions for determination of specific issues or questions of fact or law in
any civil action or proceeding, pending in the court"). There is no limitation upon the number,
type, or location of courts with which a retired judge may register under this
provision. Upon registration with the
clerk of any court, the retired judge is eligible to receive referrals (the
bill deletes "and submissions") from that court in accordance with
the bill. Each court of common
pleas, municipal court, and county court must maintain an index of all retired
judges who have registered with the clerk of that court and must make the index
available to any person upon request.
The bill defines "retired judge" as any judge who retired from active service after election or appointment to that judgeship without being defeated in an election to retain the judgeship.
The bill provides that it applies to any civil action pending before any court of common pleas, any division of the court of common pleas, or any municipal court or county court, excluding a small claims division of a municipal court or county court. If the parties to a civil action seek a retired judge to preside over a jury trial, a jury trial may be had only if a party to the action has properly made a demand for a jury trial in accordance with Civil Rule 38 (see COMMENT 2). (R.C. 2701.10(A), (B), and (C).)
Current law
permits the parties to any civil action "or proceeding pending in any
court of common pleas, municipal court, or county court" unanimously to
choose to have the action "or proceeding" in its entirety referred
for adjudication, "or to have any specific issue or question of fact or
law in the action or proceeding submitted for determination," to a judge
of their choosing who has registered with the clerk of that court. If the parties unanimously do choose to have
a referral "or submission" made to a retired judge, all of the
parties to the action "or proceeding" must enter into a written
agreement with the retired judge that does all of the following (R.C.
2701.10(B)(1)):
(1) Designates
the retired judge to whom the referral "or submission" is to be made;
(2) "If
a submission is to be made, describes in detail the specific issue or question
to be submitted";
(3)
Indicates either of the following: (a)
that the action "or proceeding" in its entirety is to be referred to,
and is to be tried, determined, and adjudicated by that retired judge, or (b)
that the "issue or question is to be submitted," and is to be tried
and determined by that retired judge;
(4) Indicates
that the parties will assume the responsibility for providing facilities,
equipment, and personnel "reasonably needed by the retired judge during
his consideration of the action or proceeding" and will pay all costs
arising out of the provision of the facilities, equipment, and personnel;
(5) Identifies
an amount of compensation to be paid by the parties to the retired judge for
the judge's services and the manner of payment of the compensation.
In any
case described above, the agreement must be filed with the clerk of the court
or the judge before whom the action "or proceeding" is pending. Upon the filing of the agreement, the judge
before whom the action "or proceeding" is pending, by journal entry,
must order the referral "or submission" in accordance with the
agreement. No referral "or
submission" may be made to a retired judge unless the parties to the
action "or proceeding" unanimously choose to have the referral
"or submission" made, enter into an agreement of the type described
above with the retired judge, and file the agreement in accordance with this
provision. (R.C. 2701.10(B)(2).)
The bill permits the parties to any civil action (it deletes "or proceeding pending in any court of common pleas, municipal court, or county court" and deletes all references to "or proceeding" in existing law described above and in other parts of this analysis) unanimously may choose to have the action in its entirety or specific issues or questions in the action referred (instead of "to have any specific issue or question of fact or law in the action or proceeding submitted for determination") to a retired judge of their choosing who has registered with the clerk of the court in which the action is pending. If the parties unanimously choose to have a referral (the bill deletes "or submission" and all references to "submission" of issues or questions in existing law described above and in other parts of this analysis) made to a retired judge, all of the parties to the action must enter into a written agreement with the retired judge that does all of the following (R.C. 2701.10(D)(1)) (new or modified language is in italics):
(1) Designates the retired judge to whom the referral is to be made;
(2) Describes in detail the specific issues or questions to be determined in the action;
(3) Indicates either of the following: (a) that the action in its entirety is to be referred to, and is to be tried, determined, and adjudicated by that retired judge or by a jury presided over by the retired judge, or (b) that any specific issue or question in the action is to be tried and determined by that retired judge or by a jury presided over by the retired judge;
(4) Indicates that the parties will assume the responsibility for providing facilities, equipment, personnel, and other support reasonably necessary for the retired judge or the jury to advance and consider the action or to determine a specific issue or question in the action (instead of "reasonably needed by the retired judge during the judge's consideration of the action or proceeding") and will pay all costs arising out of the provision of the facilities, equipment, personnel, and other support;
(5) Indicates that, if the action or any specific issue or question in the action is to be tried and determined by a jury presided over by the retired judge and the action is settled by the parties before the jurors are sworn, the parties will pay the fees of the jurors;
(6) Identifies an amount of compensation to be paid by the parties to the retired judge for the retired judge's services and the manner of payment of the compensation.
In any case described above, the agreement must be filed with the clerk of the court or the judge before whom the action is pending. Upon the filing of the agreement, the judge before whom the action is pending, by journal entry, must order the referral in accordance with the agreement. No referral can be made to a retired judge unless the parties to the action unanimously choose to have the referral made, enter into an agreement of the type described above with the retired judge, and file the agreement in accordance with this provision. (R.C. 2701.10(D)(2).)
Under current law,
upon the entry of an order of referral "or submission," the retired
judge to whom the referral "or submission" is made, relative to the
action "or proceeding" referred "or the issue or question
submitted," has all of the powers, duties, and authority of an active
judge of the court in which the action "or proceeding" is
pending. "The court in which the action
or proceeding is pending is not required to provide the retired judge with
court or other facilities, equipment, or personnel during his consideration of
the action, proceeding, issue, or question." The retired judge cannot receive any compensation, other than
that agreed to by the parties and the retired judge, for the judge's services
during consideration of the action, "proceeding," issue, or
question. (R.C. 2701.10(C).)
Under the bill, upon the entry of an order of referral, the retired judge to whom the referral is made, relative to the action referred, has all of the powers, duties, and authority of an active judge of the court in which the action is pending. In connection with a referral made under the bill, no court is required to provide the parties and the retired judge with facilities, equipment, personnel, or other support (instead of "[t]he court in which the action or proceeding is pending is not required to provide the retired judge with court or other facilities, equipment, or personnel during his consideration of the action, proceeding, issue, or question"). The retired judge cannot receive any compensation, other than that agreed to by the parties and the retired judge, for the retired judge's services to advance and consider the action or to determine a specific issue or question in the action (modified language is in italics). (R.C. 2701.10(E).)
Current law requires
a retired judge to whom a referral is made to try all of the issues in the
action "or proceeding," to prepare relevant findings of fact and
conclusions of law, and to enter a judgment in the action "or
proceeding" in the same manner as if the retired judge were an active
judge of the court. A retired judge
to whom a submission is made under existing law must try the specific issue or
question submitted, prepare relevant findings of fact or conclusions of law,
and make a determination on the issue or question submitted, and must file the
findings, conclusions, and determination with the clerk of the court in which
the action or proceeding is pending.
Any judgment
entered, and any finding of fact, conclusion of law, or determination of an
issue or question made, by a retired judge has the same force and effect as if
it had been entered or made by an active judge of the court, and any appeal from
the judgment, finding, conclusion, or determination must be made as if the
judgment had been entered, or the finding, conclusion, or determination had
been made, by an active judge of the court. (R.C. 2701.10(D).) (See COMMENT 3.)
The bill provides that if no jury trial is had, a retired judge to whom a referral is made must try all or some of the issues in the action, prepare relevant findings of fact and conclusions of law, and enter a judgment in the action in the same manner as if the retired judge were an active judge of the court. The bill deletes the italicized provision described in the 2nd preceding paragraph. It adds the following provisions. If a party has properly demanded a trial by jury in accordance with Civil Rule 38 (see COMMENT 2), a retired judge to whom a referral is made must preside over the jury trial and determination of all or some of the issues in the action. A trial by a jury under the bill must be conducted, and a determination by a jury must be made, in accordance with the applicable provisions of R.C. Chapter 2315. (Civil Trial Procedure Law) and the Rules of Civil Procedure and in the same manner as trials and determinations by a jury in civil actions. The selection and summoning of jurors for a jury trial and determination under the bill must be in accordance with the applicable provisions of R.C. Chapter 2313. (Commissioners of Jurors and Juror Law). The fees of the jurors sworn must be taxed as costs pursuant to R.C. 2335.28 (see COMMENT 4). If the action is settled by the parties before the jurors are sworn, the parties must pay the fees of the jurors. The jury commissioner or clerk in charge of jurors must make all of the necessary arrangements to provide the jurors to the retired judge in the same manner as jurors are provided pursuant to R.C. Chapter 2313. to the active judge of the court in which the action is pending.
The bill modifies existing law by providing that any judgment entered, and any finding of fact, conclusion of law, or determination of an issue or question made, by a retired judge or by a jury in accordance with the bill has the same force and effect as if it had been entered or made by an active judge of the court or by a jury presided over by an active judge of the court, and any appeal from the judgment, finding, conclusion, or determination must be made as if the judgment had been entered, or the finding, conclusion, or determination had been made, by an active judge of the court or by a jury presided over by an active judge of the court (new language is in italics). (R.C. 2701.10(F).)
The bill provides that the compensation of the jurors serving in a jury trial of an action or a specific issue or question in the action under the bill must be fixed in the same manner as in R.C. 2313.34 (see COMMENT 5) (R.C. 2701.10(G)).
The bill provides that the General Assembly respectfully requests the Supreme Court to modify Rule VI of the Rules for the Government of the Judiciary (reference of civil action pursuant to R.C. 2701.10), including the corresponding forms 3 and 4 appended to that Rule, pursuant to its authority under the Ohio Constitution to make that Rule consistent with the amendments of the act to R.C. 2701.10. The General Assembly further respectfully requests the Supreme Court to modify Rules 38 and 39 of the Rules of Civil Procedure pursuant to its authority under the Ohio Constitution to specify that those Rules apply to civil actions or proceedings under R.C. 2701.10, as amended by the act. (Section 3.)
COMMENT
1. Section 6, Article IV, Ohio Constitution, provides for the election of the Chief Justice and the Justices of the Supreme Court, the judges of the courts of appeals, and the judges of the courts of common pleas and their divisions. The terms of office of not less than six years are to begin on the days fixed by law. Division (C) provides as follows:
No person shall be elected or appointed to any judicial office if
on or before the day when he shall assume the office and enter upon the
discharge of its duties he shall have attained the age of seventy years. Any
voluntarily retired judge, or any judge who is retired under this section, may
be assigned with his consent, by the chief
justice or acting chief justice of the supreme court to active duty as a judge
and while so serving shall receive the established compensation for such
office, computed upon a per diem basis, in addition to any retirement benefits
to which he may be entitled. Laws may be passed providing retirement benefits
for judges.
2. Rule
38 of the Rules of Civil Procedure provides as follows:
(A) The
right to trial by jury shall be preserved to the parties inviolate.
(B) Any party may
demand a trial by jury on any issue triable of right by a jury by serving upon
the other parties a demand therefor at any time after the commencement of the
action and not later than fourteen days after the service of the last pleading
directed to such issue. Such demand shall be in writing and may be indorsed upon
a pleading of the party. If the demand is endorsed upon a pleading the caption
of the pleading shall state "jury demand endorsed hereon." In an
action for appropriation of a right of way brought by a corporation pursuant to
Article XIII, Section 5, of the Ohio Constitution, the jury shall be composed
of twelve members unless the demand specifies a lesser number; and in the event
of timely demand by more than one party in such action the jury shall be
composed of the greater number not to exceed twelve. In all other civil actions
the jury shall be composed of eight members unless the demand specifies a
lesser number; and in the event of timely demand by more than one party in such
actions the jury shall be composed of the greater number not to exceed eight.
(C) In his demand a party
may specify the issues which he wishes so tried; otherwise he shall be deemed
to have demanded trial by jury for all the issues so triable. If he has
demanded trial by jury for only some of the issues, any other party within fourteen
days after service of the demand or such lesser time as the court may order,
may serve a demand for trial by jury of any other or all of the issues of fact
in the action.
(D) The failure of a party
to serve a demand as required by this rule and to file it as required by Rule
5(D) constitutes a waiver by him of trial by jury. A demand for trial by jury
made as herein provided may not be withdrawn without the consent of the
parties.
3. In State ex rel. Russo v. McDonnell (2006), 110 Ohio St.3d 144, a Cuyahoga County Court of Common Pleas judge sought a writ of prohibition to prevent the administrative judge from facilitating jury trials in civil cases referred to private judges and to prevent the administrative judge from permitting the use of court facilities, equipment, resources, or personnel in those referred cases. The Supreme Court granted a peremptory writ of prohibition to prevent the administrative judge from compelling or facilitating jury trials in R.C. 2701.10 proceedings but denied the writ with respect to the use in nonjury trials of court facilities, resources, utilities, and personnel, for which the party must pay. The Court held in its syllabus as follows:
1. R.C. 2710.01 and Gov. Jud. R. VI require bench trials in referrals of civil actions or submission of issues or questions, pursuant to the statute and the rule, which both specify that cases referred and issues submitted to a retired judge pursuant to these provisions must be tried and determined by a judge.
2. In matters referred to private judges pursuant to R.C. 2710.01 and Gov. Jud. R. VI, the court in which the action or proceeding is pending is not required to provide the retired judge with court or other facilities, equipment, or personnel, but may in its discretion do so if the parties assume the responsibility and pay for all costs arising out of the provision of the facilities, equipment, and personnel.
4. R.C. 2335.28, not in the bill, provides as follows:
(A) Except as provided in
division (B) of this section, in any civil action in a court of common pleas in
which a jury is sworn, the fees of the jurors sworn shall be taxed as costs
unless the court determines that the payment of the fees by a party against
whom they are proposed to be taxed would cause significant financial hardship
to that party or would not be in the interest of justice.
(B) If a civil action in a
court of common pleas is settled after jurors are sworn, the fees of the jurors
sworn shall be paid in accordance with the settlement agreement. If the
agreement does not provide for the payment of the fees, the court shall order
that the fees be paid by any party, allocated among the parties, or paid by the
county. In making this determination, the court shall consider whether the
payment of the fees by a party against whom they are proposed to be taxed would
cause significant financial hardship to that party or would not be in the
interest of justice.
(C) Upon receipt of fees
taxed as costs under division (A) or (B) of this section or paid in accordance
with a settlement agreement, the clerk of the court shall pay the fees to the
county treasurer to be deposited in the county treasury.
(D) If any juror serves on
more than one jury on the same day, the court shall tax the juror's jury fees
for that day as costs equally among the parties who are required to pay the
fees under this section either as determined by the court or pursuant to a
settlement agreement.
(E) Jury fees shall be
taxed as costs pursuant to this section for each day or part of a day that a
sworn juror serves.
5. R.C. 2313.34(B), not in the bill, provides as follows:
(B)(1) The board of county
commissioners by resolution shall fix the compensation of each juror payable
out of the county treasury.
(2) After ten days of actual service,
except as otherwise authorized by division (B)(2) of this section, the
compensation of a juror shall be fixed for each additional day of actual
service at an amount equal to the greater of fifteen dollars or one and
one-half times the compensation fixed pursuant to division (B)(1) of this
section. The board of county commissioners by resolution may set the
compensation at a greater amount that shall not exceed two times the
compensation fixed pursuant to division (B)(1) of this section.
(3) Residents of townships that are comprised
entirely of islands shall be reimbursed for the additional transportation costs
they incur to serve as a juror, in the amount certified to be due by a judge of
the court in which the jury service is performed.
HISTORY
|
ACTION |
DATE |
|
|
|
|
Introduced |
04-15-08 |
|
Reported, H. Civil & Commercial Law |
05-29-08 |
H0537-RH-127.doc/jc