R DDD. MAR 2 Ci 20"C'8 CLERK OF COURT. 3jtY crp LtpTe11TE CDtlxt of bia SUPREME COURT OF OHIO. Case Nos

Transcription

1 3jtY crp LtpTe11TE CDtlxt of bia STATE OF OHIO, ex rel. SANTOS VAZQUEZ, V. Relator-Appellant, COURT OF COMMON PLEAS CUYAHOGA COUNTY, 011I0, et al., Case Nos On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No Respondents-Appel lees. REPLY BRIEF OF AMICUS CURIAE STATE OF O1II0 IN SUPPORT OF RELATOR-APPELLANT MATTHEW A. PALNIK ( ) Shapiro, Marnecheck, & Reinier 1468 West Ninth Street, Suite 425 Cleveland, Ohio fax mpa corrr Counsel for Relator-Appellant Santos Vazquez WILLIAM D. MASON ProsecLiting Attomey of Cuyahoga County FREDERICK W. WIIATLEY* ( ) Assistant Prosecuting Attorney *Counsel of Record Cuyahoga County Prosecutor's Office 1200 Ontario Street 8th Floor Justice Center Cleveland, Ohio fax us Counsel for Respondents-Appellees Court of Common Pleas, Cuyalioga Cty., et al. MARC DANN ( ) Attomey General of Ohio WILLIAM P. MARSHALL* ( ) Solicitor General * Counsel of Record F,LISE PORTER ( ) Assistant Solicitor 30 East Broad Street, 17th Floor Columbus, Ohio fax wmarshall@ag.state.oh.us Counsel for dmicus Cz rine State of Ohio R DDD MAR 2 Ci 20"C'8 CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS Page TABLE OF CONTENI'S...:...:... i TABLE OF AUTHORITIES ii INTRODUCTION... I ARGUMENT...2 C ON C LU S I ON...: CERTIFICATE OF SERVICE....unnumbered

3 TABLE OF AUTHORITIES Cases Page(s) City of Springdale v. CSXRy. Corp., 68 Ohio St. 3d Morgan v. Western Electric Co. Inc. (1982), 69 Ohio St. 2d , 3, 4 Rohloff v. FedEx Ground (6th Dist. 2007), 2007-Ohio Tague v. Bd oftrustees ( 1980), 61 Ohio St. 2d :..3, 4 Statutes and Rules Am. Sub. S.B pas.sim Am. Sub. S.B R.C R.C passim R.C ii

4 INTRODUCTION As with its first brief, the State of Ohio ftles this brief in support of the Relator-Appellant, Santos Vazquez ("Vazquez"), solely on the question of the retroactive effect of Amended Substitute Senate Bill No. 7 of the 126th General Asseinbly ("Am. Sub. S.B. 7"). The State does not address the merits of other issues in the case, including the ultimate question of whether a writ of prohibition should be granted. In particular, the State takes no position on whether the Court even needs to decide the retroactivity issue at all, i.e., whether Respondents are right when they allege that the retroactivity of Am. Sub. S.B. 7 is "irrclevant" and that the Court may decide the prohibition issue without resolving the retroactivity issue. See Respondents' Brief at 7. The State replies here because Respondents argue, as an alternative to insisting that the issue is irrelevant, that the new law is retroactive and that such reh-oactive application inattered to the trial court's jurisdiction. See icl. at Respondents' retroactivity argtuncnt is mistaken, and if the Court reaches the issue, it should reject that argument and find that Ain. Sub. S.B. 7 is, with the exception of one provision not at issue here, prospective only in its operation. As the State's opening brief explained, the law itself says that it is prospective only. The General Assembly expressly stated, in an uncodified section of the bill, that the "act applies to all claims... arising on and after the effective date of this act," with only one exception, not relevant here. Section 3 of Am. Sub. S.B. 7. Despite this plain statement, Respondents insist that retroactivity is mandated by older statutory language, and that an older decision applying that language confinns the point. See Resp. Br. at 11. But the newer statement governs, not only because it is later and more specific, but also because it simply makes no sense to say that older statutes and cases somehow tie the General Assembly's hands and make every amendment to this statute retroactive especially against an express legislative statement to the contrary.

5 Thus, the State of Ohio urges the Court to find that the Eunendments of Am. Sub. S.B. 7 are, with one excepcion, exclusively prospective in effect. ARGIJMENT Respondents' argument in favor of the retroactive application of Am. Sub. S.B. 7 is mistaken. Respondents argue that retroactivity is mandated by Morgan v. Western Electric Co. Inc. (1982), 69 Ohio St. 2d 278. Morgan noted that language in R.C (H) made all of.511 and.512, as it then existed, retrospective in operation to November 2, Specifically, subsection (H) said, and still says, that section.512 generally applies to all cases since 1959: This section applies to all decisions of the conunission or the administrator on November 2, 1959, and all claims filed thereafter are governed by sections and of the Revised Code. R.C (H). Altliough the Morgan Court was right in noting that the 1979 amendments at issue there were retroactive, the Morgan decision does not support Respondents' argument that the 2006 amendments here have retroactive effect. To the contrary,lllorgan supports the State's view that Che amendrnent at issue here is prospective only. First, the issue in Morgan was not whetlier the General Assembly intended retroactivity, as no one disputed that intent; thc issue was whether such retroactive application was constitutionally permissible. See Morgan, 68 Ohio St. 2d at 281. Ohio's Constitution, in Section 28 of Article II, forbids the passage of retroactive laws, but it has long been settled that the prohibition applies only to substantive laws. Id. Procedural or remedial laws may be applied retroactively without offending the prohibition, and the Court in Morgan held that the provision at issue was remedial, and thus was constitutional. Id. In Morgan, the party opposing retroactive application did not, apparently, even contest the Assembly's intent to apply the 1979 amendments retroactively, but challenged only the constitutionality of doing so. See id at 283 ("Appellee Morgan contends that the amendment creates a substantive right and therefore may 2

6 not be retroactively applied..."). 'I'hus, Morgan includes no holding that applies to the question here, which is solely one of legislative intent. Second, Morgan's brief discussion of legislative intent, although dicta, strongly supports the State's view here, not Respondents'. I'he Court in Morgan noted, in regard to the 1979 amendments, "the legislative intent is evident: in controlling all claims filed after November 2, 1959, the statute and all its amendments were `expressly made retrospective."' Id at In a supporting footnote to that passage, the Court cited language from a dissent in an earlier case, which had concerned 1977 amendments to the same statute.l See id at 283 n.9, citing Taga.re v. Bd. of 'L'rustees (1980), 61 Ohio St. 2d 136, (Locher, J., dissenting). That earlier language from Tague, cited with approval in Morgan, noted the "clear legislative intention" to apply the 1977 amendments retroactively to all claims going back to 1959, citing the statutory language tl7al Respondents here seek to rely on. But notably, that same passage went on to stress that the General Assembly could have overcome the statutory reference to the 1959 clatc by specifically providing that the amendments at issue would apply only from a newer date: The Legislature could casily have stated that the amended procedure was valid only for claims filed after January 17, 1977, the effective date of Am. Sub. S.B. No The failure to change a Noveinber 2, 1959, date clearly establishes the intention to make the admitted provision applicable to all pending claims. Id. In Morgan, the legislation at issue did not inclucle any language setting a newer date for prospective-only operation, so the old 1959 reference was the only language available indicating the General Assembly's intent. 1 The statute at issue in both Morgan and Tagi e case was munbered as R.C , but the current R.C is the equivalent of the old R.C

7 Unlike in Morgan, the legislation here expressly stated that the 2006 amendments (with one exception) would apply only to claims arising after the effective date; in ocher words, this case involves precisely the scenario that the Morgan/Tagaie language foresaw aiid distinguished. As the State's opening brief explained, the uncodified language leaves no doubt that only R.C (H) is to be applied retroactively: This act applies to all claims pursuant to Chapters 4121., 4123., 4127., and of the Revised Code arising on and after the effective date of this act, except that division (H) of section as amended by this act also applies to claims that are pending on the effective date of this act. Section 3 of Am. Sub. S.B. 7. In short, iworgan notes that the Assembly has the power to set a different date, and in this case the Assembly has done so. Respondents try to get around Section 3's express language by relying on Section 3's exception for division (H), but that arguinent fails. Respondents argue that because subsection (H) contains the language at issue in Morgan---the November 2, 1959 language that makes all of.511 and.512 retroactive-and is itself made retroactive by Section 3 of Am. Sub. S.B. 7, that reference thus sweeps in all of the amendments to.512 in Am. Sub. S.B. 7, malcing all of them retroactive as well. Thus, say Respondents, the particular provision at issue here-the new n.de about voluntary dismissal is swept into the exception for subsection (H) and is retroactive. That argument camiot hold, as it would literally provide for a case in which the exception, i.e., the exception for subsection (H), would swallow the rule, i.e., the rule establishing prospective application for all the amendinents, inclnding those to R.C , other than those to R.C (H). Surcly the General Assembly did not go to the trouble of indicating in plain language that it intended for all the ainendments to be prospective, except for one, but then contradict that plain intent by arranging for the one reference to sweep in all the other amendments to R.C and make those other amendments retroactive after all. If the 4

8 Assembly had wanted the new voluntary dismissal rule, or some or all of the other amendments to R.C , to be retroactive, then it could have, and would have, simply said so directly by listing any such provisions expressly, as it did with subsection (H). The General Assembly did not do so; instead, it said what it meant and it meant what it said-that all ilie arnenclments were to be prospective only, with the exception of the amendn2ents to subsection (H). Finally, even if there were any tension between the uncodified language of Section 3 and the older 1959 reference in R.C , the language op Section 3 prevails. When two provisions of law arc in conflict, the more specific prevails over the general, unless the more general is enacted later, and the manifest incent is that the general provision prevails. R.C Here, Section 3 of Am. Sub. S.B. 7 is both more recent and more specific than the November 2, 1959 language in the statute, so it controls. See City of Springdale v. CSXRy. Corp., 68 Ohio St. 3d 371, 376 (cxplaining general principle); Rohloff v. FedEx Ground (6th Dist.), 2007-Ohio- 6530, 19 (applying principle to Section 3 and R.C and concluding that Section 3 prevails and renders the voluntary-dismissal amendment prospective only). Consei.luently, the voluntary-disniissal amendment, R.C (D), applics prospectively only to claims arising after the effective date of the 2006 amendments. 5

9 CONCLUSION For the reasons above, the Court should hold that Am. Sub. S.B. 7 is prospective only in effcet, with the sole exception of the amendments to R.C (H). Respectfully submitted, MARC DANN ( ) Altorney General of Ohio / WILLIAM P. MARSHALL* (00^80 Solicitor General *Counsel ofrecord ELISE PORTER ( ) Assistant Solicitor 30 East Broad Street, 17th Floor Columbus, Ohio fax wmarshall@ag. state. oh.us Counsel for Amicus Curiae State of Ohio

10 CERTIFICATE OF SERVICE I certi fy that a copy of the foregoing Reply Brief of Arnicus Curiae State of Ohio in Support of Relator-Appellant was served by U.S. mail this 26th day of March 2008 upon the following counsel: Matthew A. Palnik Shapiro,. Marnecheck, & Reimer 1468 West Ninth Street, Suite 425 Cleveland, Ohio William D. Mason Prosecuting Attorney of Cuyahoga County Frederick W. Whatley Assistant Prosecuting Attorney Cuyahoga County Prosecutor's Office 1200 Ontario Street 8th Floor Justice Center The Justice Center, Courts Tower Cleveland, Ohio 44113