Krause v. State , 28 Ohio App. 2d 1 ( 1971 )

The law in Ohio as to the doctrine of sovereign immunity is clear. Section 16, Article I of the Ohio Constitution, as amended in 1912, reads:

"Suits may be brought against the state, in such courts and in such manner, as may be provided by law."

Beginning with Raudabaugh v. State (1917), 96 Ohio St. 513, the Ohio Supreme Court has held that Section 16, Article I, is not self-executing and that statutory authority must be enacted before suits may be brought against the state. This proposition of law has been followed by Ohio since 1917. See Schaffer v. Board (1960), 171 Ohio St. 228; Wolf v. OhioState University Hosp. (1959), 170 Ohio St. 49; State, ex rel.Williams, v. Glander (1947), 148 Ohio St. 188; Palumbo v.Indus. Comm. (1942), 140 Ohio St. 54.

The majority departs from this long succession of cases in reaching its decision. They conclude that sovereign immunity in Ohio is judge-made and not a product of the clear and unambiguous meaning of the amendment itself. It is unquestioned that the amendment abrogated the common law rule granting the state immunity from suit, but it changed the rule simply to the extent of eliminating immunity when and if the state consents to be sued.

If it is believed that the doctrine of sovereign immunity is indeed an antique of no modern relevancy, the forum for this change rests either on legislative action or with a new constitutional convention. As stated by the Ohio Supreme Court in Palumbo v. Indus. Comm. (1942), 140 Ohio St. 54, at 60:

"And so if this court should validate the decision of the court below, we, as judges, would be determining the `courts' and the `manner' in which the state was to be sued. That determination is clearly a legislative, not a judicial, function. The essence of `a government of laws and not of men' lies in its separation of powers."

The majority cites the California case of Muskopf v. CorningHospital District (1961), 55 Cal.2d 211, 359 P.2d 457, as support for their holding which I am not bound to follow, especially in light of the overwhelming Ohio authority to the contrary. The facts in Muskopf are vastly different from the facts in this case. Mrs. Muskopf, as a paying patient of a hospital operated by the government, was negligently injured when moved by an employee of the hospital. However, in this cause, the Governor of the state of Ohio is charged with negligently ordering the National Guard to Kent State University at a time of great confusion and widespread destruction resulting in the tragic death of four students. Although Ohio, in the analogous case of Wolf v. Ohio State University Hosp. (1959), 170 Ohio St. 49, has ruled the opposite of Muskopf, one can readily see that the facts here represent not the negligence of an employee of a state hospital, but the nondelegable, discretionary act of the governor who in times of unmistakable peril must take those measures necessary to preserve the safety and peace of the people within the territorial boundaries of Ohio. As stated by Mr. Justice Harlan in Barr v. Matteo (1959), 360 U.S. 564, at 571:

"The reasons for the recognition of the privilege have been often stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect to acts done in the courts of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government."

The events subsequent to Muskopf illustrate the conflict which could arise in Ohio as it did between the legislative and judicial branches of California. Following Muskopf, California enacted legislation postponing its enforcement until laws could be considered to the contrary. Recognizing the desirability of immunity, a Torts Claim Act was passed in 1963 enumerating the circumstances under which the state would be liable for its torts.

In Susman v. Los Angeles (1969), 269 Cal.App.2d 803, an analogous situation resulted by reason of the riots in the Watts district of Los Angeles. In affirming the demurrer to the amended complaint, the court stated:

"Courts and commentators have therefore centered their attention on an assurance of judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government. Any wider judicial review, we believe, would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government. Moreover, the potentiality of such review might even in the first instance affect the coordinate body's decision-making process." 269 Cal.App.2d at 818.

"When and under what circumstances the National Guard should be called into action to preserve the peace and to protect property is a matter within the discretion of the Governor * * * [and] is not open to judicial inquiry or review." 269 Cal.App.2d 818 -19.

Under existing California law the state's immunity is still viable. The need of the present law of California is a direct result of the invasion by the judiciary into the function of the legislature. I believe we should constrain ourselves from taking such action in Ohio. For a more in depth explanation of California law from the period of 1961 to the present, seeJohnson v. State (1968), 69 Cal.2d 782, 447 P.2d 352;Cabell v. State (1967), 67 Cal.2d 150, 430 P.2d 34;Flournoy v. State (1962), 57 Cal.2d 497, 370 P.2d 331;Corning Hosp. Dist. v. Superior Court (1962), 57 Cal.2d 488,370 P.2d 325; Susman v. Los Angeles (1969), 269 Cal.App.2d 803; Hayes v. State (1964), 231 Cal.App.2d 48.

The constitutionality of Section 16, Article I of the Ohio Constitution has been ruled upon by the Supreme Court of the United States in Palmer v. Ohio (1918), 248 U.S. 32. The court held:

"The right of individuals to sue a state, in either a federal or a state court, cannot be derived from the Constitution or laws of the United States. It can only come from the consent of the state * * *. Whether Ohio gave the required consent must be determined by the construction to be given to the constitutional amendment quoted, and this is a question of local state law, as to which the decision of the state supreme court is controlling with this court, no federal right being involved * * *."248 U.S. at 34. (Citations omitted.) (Emphasis added.)

The passage of time has not diminished the impact of that case. See Parden v. Terminal Ry. of Alabama Docks Dept. (1964),377 U.S. 184. Finding no federal constitutional issue involved, and no Ohio authority to the contrary, I dissent.