On July 12, the Ohio Supreme Court issued its opinion in a widely-followed case involving the referral of cases or submission of issues to retired judges by stipulating parties pursuant to Section 2701.10 of the Ohio Revised Code. Justice Terrence O'Donnell's opinion for the 6-1 majority in State ex rel. Russo, Judge vs. McDonnell, Judge, at 2006-Ohio-3459, holds that the statutory authority for cases referred or issues submitted to retired judges requires that all such matters be heard and determined by the judge -- meaning that the retired judge is not authorized to preside over a jury trial, even with the consent of the parties.
In 1984, the Ohio General Assembly enacted R.C. 2701.10 to authorize the reference of litigation to a form of alternate dispute resolution commonly known as "private judging" or "rent-a-judge" by the consent of the parties. R.C. 2701.10(B)(1) provides that "[t]he parties to any civil action or proceeding pending in any court of common pleas . . . unanimously may 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 [voluntarily retired] judge of their choosing . . . " As used in the statute and Gov.Jud.R. VI, a "voluntarily retired judge" means "any person who was elected to and served on an Ohio court without being defeated in an election for new or continued service on that court." Upon filing the parties' written agreement, the judge assigned to the case "shall order the referral or submission in accordance with the agreement." R.C. 2701.10(B)(2). Then, upon the entry of the order of referral or submission, the chosen retired judge "shall have all of the powers, duties and authority of an active judge of the court . . ." R.C. 2701.10(C).
Russo involved two consolidated actions seeking extraordinary writs against sitting judges of the Common Pleas Court in Cuyahoga County, Ohio. Judge Nancy M. Russo was the judge assigned to a pending medical malpractice action styled Peffer v. Cleveland Clinic Foundation. The parties filed their written agreement to refer the case in its entirety for a jury trial before a retired judge, but Judge Russo refused to make the referral. Stepping into the dispute at the request of the parties, the court's administrative judge ruled that the filing of the agreement stripped Judge Russo of the authority to preside further, and ordered the case referred to the agreed-upon retired judge for jury trial. The Court of Appeals for Cuyahoga County subsequently granted a writ of prohibition to prevent Judge Russo from exercising jurisdiction or issuing further orders in the case.
In the second underlying case, Austin v. MetroHealth Medical Center, the Common Pleas Judge assigned to the case, John D. Sutula, refused to refer the case to a retired judge for a jury trial because he believed the statute did not authorize jury trials. On petition for an alternative writ of mandamus to compel Judge Sutula to refer the case, the Court of Appeals for Cuyahoga County at first granted the writ but then dismissed the petition on the ground it found no authority in the statute or rule permitting a retired judge to conduct a jury trial. See State ex rel. MetroHealth Medical Center v. Sutula, 2005-Ohio-6243, par. 8, 10.
The Supreme Court in Russo premised its decision on four bases. First, the Court held that, in construing the statute and determining the paramount consideration of legislative intent, the plain language of R.C. 2701.10(B)(1) provides that the parties and the retired judge must agree that the referred matter shall be "tried, determined, and adjudicated by that retired judge." Moreover, R.C. 2701.10(D) provides that a "retired judge to whom a referral is made under this section shall try all of the issues on the action or proceeding, shall prepare relevant findings of fact and conclusions of law, and shall enter a judgment in the action or proceeding in the same manner as if he were an active judge of the court."
Second, in light of the fact the General Assembly omitted any mention of jury trials in the statute, the Court relied on the principle of expression unius est exclusio alterius -- "the expression of one thing implies the exclusion of another."
Third, when in the past the General Assembly intended for cases to be tried by jury, it has specifically indicated its intent with appropriate express language to that end. The Court refused to use the guise of statutory construction to, in effect, add words to the statute that are not present in the text.
Finally, the Court rejected the argument that the statute cannot abrogate sub silentio the right to jury trial preserved by Article I, section 5, of the Ohio Constitution. The Court noted that, since the right to trial by jury may be waived by the parties, the parties who enter into an agreement to refer a case or issues to a private judge under R.C. 2701.10 "manifestly waive their right to a jury trial" as with other alternative-dispute-resolution techniques.
Alone in dissent, Justice Pfeifer observed that R.C. 2701.10 does not directly prohibit private judges from using juries. In light of the fact that, once a case is referred by the parties' agreement, the private judge is statutorily empowered to exercise "all of the powers, duties and authority of an active judge of the court in which the action or proceeding is pending," Justice Pfeifer noted that the powers, duties and authority of an active judge include the ability to use Civil Rule 39(C). Civil Rule 39(C) provides that "[i]n all actions not triable of right by a jury (1) the court upon motion or on its own initiative may try any issue with an advisory jury or (2) the court, with the consent of both parties, may order a trial of any issue with a jury, whose verdict has the same effect as if trial by jury had been a matter of right." As Justice Pfeifer concluded, if a referred case requires a bench trial, and thus is an action "not triable of right by a jury," the private judge in a referred case has the ability, pursuant to Civil Rule 39(C), to "try any issue with an advisory jury" or, "with the consent of both parties, [to] order a trial of any issue with a jury." The dissent also observed the General Assembly failed to state explicitly that agreement to refer the entire case to a private judge is the equivalent of waiving a jury trial.
The Russo decision begs without expressly deciding or explaining several interesting questions. The first is the question of jurisdiction. R.C. 2701.10 is not a statute authorizing or conferring jurisdiction on the Ohio common pleas courts, and Russo says nothing new on any jurisdictional issue. It deals instead with the proper exercise of the court's jurisdiction, and whether a retired judge selected by the consent of the parties is an authorized judicial officer empowered to exercise the court's jurisdiction in a particular manner -- i.e., by presiding over a jury trial.
The second question is the impact of the decision on scores, if not hundreds, of cases tried to jury verdict with private retired judges before the decision was announced. There is no logical, practical or lawful justification for the Russo decision to be given retroactive effect. It would be bad policy and worse law for the courts to upset the settled expectations of parties who had agreed to jury trials presided over by private judges. Right or wrong, win or lose, the parties received what they bargained for under the apprehension that R.C. 2701.10 authorized the private judge to act for all purposes in place of the assigned judge, including in conducting a jury trial. That understanding may be modified or corrected prospectively for cases that have not yet be adjudicated at the trial court level; it should not be given retrospective application to any case in which a jury verdict was returned before July 12, 2006.
Finally, the Supreme Court in Russo implicitly invited the General Assembly to resolve the public policy considerations raised in the disparate interpretations of R.C. 2701.10 by amending the text if it wishes to confer the authority of private judges to preside over jury trials. Given the sound and practical goals behind the use of private judges as a useful means of alternative dispute resolution, the General Assembly should accept the invitation as soon as possible.