A Primer on What Happens Behind the Scenes
Since the Supreme Court of Ohio is expressly given the authority to regulate the practice of law under the Ohio Constitution, it stands to reason that it alone has jurisdiction over the Ohio Rules of Practice and Procedure. While the high court has the power to change the Ohio Rules of Practice and Procedure, it may come as a surprise to many that the General Assembly actually has the power to prevent those changes from happening, thanks to the Modern Courts Amendment.
You might be thinking, “What about the balance of powers and the constitution?” Well, it is quite difficult to find something that is expressly spelled out in the Ohio Constitution as unconstitutional. And what about the executive branch? What role does it play in this? Aside from being able to appoint a justice when there’s a vacancy on the Supreme Court of Ohio you’re on the sideline for this one Governor DeWine.
The process is clear as day: The court proposes rule changes to the General Assembly by Jan. 15th, the court then has until the first day of May to modify those proposed changes, the changes become effective on July 1st unless the General Assembly adopts a concurrent resolution of disapproval prior to that day.
Though the outline of the procedure is fairly clear-cut, much more happens behind the scenes.
The process starts with the Commission on the Rules of Practice and Procedure in Ohio Courts. It is comprised of 19 people subject to varying appointment guidelines, but the Supreme Court of Ohio is the ultimate appointing authority.
The commission reviews and proposes amendments to the Rules of Civil Procedure, the Rules of Criminal Procedure, the Rules of Appellate Procedure, the Rules of Juvenile Procedure, and the Rules of Evidence. It also reviews and proposes amendments to all rules governing procedure in traffic cases (but the enabling power for this action rests in the Revised Code, not in Ohio’s Constitution).
The commission typically meets from March until November in a given year. In the fall of each year, the commission submits its proposed amendments, to take effect July 1 of the following year, to the Supreme Court of Ohio. The Supreme Court of Ohio then makes the proposed amendments available for public comment.
This year the proposed amendments to the Rules of Practice and Procedure were made available on Oct. 7, 2019 and the first comment period ended on Nov. 6, 2019. From there, the comments are reviewed by the commission, and the commission makes changes to its proposal based on the comments and submits the new proposed amendments to the high court. The court then typically publishes the changes for a second round of comments on the proposed amendments. This year, the second comment period ended on Jan. 2, 2020.
“Our advocacy is not limited to substantive changes and we know how much procedural changes can impact our profession.”
This year the proposed amendments to the Rules of Practice and Procedure were made available on Oct. 7, 2019 and the first comment period ended on Nov. 6, 2019. From there, the comments are reviewed by the commission, and the commission makes changes to its proposal based on the comments and submits the new proposed amendments to the high court. The court then typically publishes the changes for a second round of comments on the proposed amendments. This year, the second comment period ended on Jan. 2, 2020.
The Supreme Court of Ohio votes on the proposed amendments in an administrative conference that occurs before the Jan. 15 deadline. This year, that conference took place on Jan. 7, 2020.
The major changes to the rules that generated the most comments and ensuing discussion in the administrative conference were:
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Ohio Rules of Civil Procedure 4, 4.1, 4.7 – Changes seek to incentivize a defendant in Court of Common Pleas to waive service by giving extended amount of time to file and make those who don’t waive service pay costs of obtaining service.
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Ohio Rules of Civil Procedure 26 – Changes add the concept of proportionality to discovery.
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Ohio Rules of Criminal Procedure 46 – Changes in relation to the setting of bail including a requirement that courts utilize the least restrictive bond conditions and least amount of monetary bail to secure the defendant’s appearance.
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Rules of Juvenile Procedure 3 – Change provided that a juvenile shall be appointed counsel at the earliest stage of all proceedings, giving the child a “meaningful opportunity” to consult with counsel before any hearings.
That brings us to where we currently stand in the process. The changes have been filed with the General Assembly and the court will have until the end of April to make modifications to those changes. If they don’t, the changes will become effective on July 1st unless the General Assembly adopts a concurrent resolution of disapproval for all or any portion of a proposed amendment the Supreme Court has proposed.
A concurrent resolution is an expression of the legislature. It may originate in either house, but it must be adopted by both chambers. Concurrent resolutions usually deal with procedural matters or communications to the U.S. congress. The most important distinction between a concurrent resolution and a bill is that a concurrent resolution does not require any validation by the Governor nor does the Governor have any power to invalidate it.
In the event of a major conflict between the General Assembly and the court two things could happen. The court could modify its proposal, or the General Assembly could invalidate any portion of the proposal with a concurrent resolution.
A concurrent resolution invalidating a proposed change to the Rules of Practice and Procedure would been seen as a drastic measure, so much so that it is very seldom used. In fact, we have not seen a concurrent resolution since 2001 when the Senate adopted SCR 18, a resolution of disapproval for changes to Rule 28 of the Ohio Rules of Civil Procedure regarding contracts with court reporters.
The OSBA believes its greatest benefit to our members is our advocacy for the profession. Our advocacy is not limited to substantive changes and we know how much procedural changes can impact our profession. As the commission considers its next round of proposed amendments we will be watching very carefully to make sure we’ve got the profession covered when it comes to changes to how we practice.
