Remley v. Cincinnati Metro. Hous. Auth. , 99 Ohio App. 3d 573 ( 1994 )

There are aspects to the question of whether and when an intermediate appellate court should consider a constitutional issue which is raised on appeal but which was not raised at the trial level that I believe are unclear. I write separately in the hope that the Supreme Court will provide additional guidance on this important issue.

I think we all agree that the best practice is to raise a constitutional issue at the trial level first. However, the rule that an appellate court will not consider any error which counsel could have raised at the trial level, but failed to do so, has been softened to allow some discretion about reviewability in criminal cases involving constitutional questions. See, e.g., In re M.D. (1988), 38 Ohio St. 3d 149,527 N.E.2d 286; State v. Awan (1986), 22 Ohio St. 3d 120, 22 OBR 199,489 N.E.2d 277, syllabus; State v. Childs (1968), 14 Ohio St. 2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus; State v. Woodards (1966), 6 Ohio St. 2d 14, 35 O.O.2d 8, 215 N.E.2d 568; State v. Glaros (1960), 170 Ohio St. 471, 11 O.O.2d 215, 166 N.E.2d 379, paragraph one of the syllabus. Where plain error is concerned in a criminal case, it seems clear that discretion should be exercised in favor of review. See In reM.D., supra. What is less clear is whether this discretion is to be extended to the appellate courts, especially as the syllabus of In re M.D. holds that "even where waiver is clear this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it." (Emphasis added.)

What is also unclear is whether an appellate court in a civil case has this discretionary right to review a constitutional challenge not raised below. The proposition that a claim of unconstitutionality of legislation is never waived, suggested by the court of appeals in Lakewood v. All Structures, Inc. (1983),13 Ohio App. 3d 115, 13 OBR 133, 468 N.E.2d 378, was expressly rejected by a majority of the Supreme Court in State v. 1981Dodge Ram Van (1988), 36 Ohio St. 3d 168, 171, 522 N.E.2d 524,527.

As more challenges are being made under the state Constitution to legislation in civil cases, guidance on whether the appellate courts have discretion to review issues not raised at the trial court level but briefed at the appellate level would be of great assistance. Pending such assistance, I agree with the lead opinion that the constitutional issue raised for the first time on appeal in this case should not be reviewed by this court. At trial, the only objection made by appellant's counsel to the setoff provisions was that they should not be made by the court but by the jury. There was no challenge on any basis to the right of the appellee to have the benefits set off. The appellant did not even call to the attention of the trial court the fact that at the time of his post-verdict hearing a constitutional challenge to collateral benefits under tort reform, to which he would have this court analogize, had been accepted for review in the Ohio Supreme Court.¹

¹ Sorrell v. Thevenir (1994), 69 Ohio St. 3d 415,633 N.E.2d 504, was accepted for review by the Ohio Supreme Court on February 10, 1993. I also note that the constitutional challenge mounted in Sorrell began at the trial court level and was carefully considered by the trial judge.