Columbus Personal Injury Lawyer

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The Void for Vagueness Doctrine

A statute is void for vagueness if it “is so unclear or ambiguous that a reasonable person of average intelligence could not determine its meaning or application.” Of course, that can be said of many statutes, so we need more clarity.

The void for vagueness doctrine is normally applied to criminal statutes, but it applies to civil statutes also. Thus,

In Grayned v. City of Rockford, 408 U.S. 104 (1972), the U.S. Supreme Court (per Justice Thurgood Marshall) stated:

A. Vagueness

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “`steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.”

It is this second value that is implicated in vague civil statutes.

In, the Ohio Supreme Court stated:

The Void-for-Vagueness Doctrine

Due process demands that the state provide meaningful standards in its laws. A law must give fair notice to the citizenry of the conduct proscribed and the penalty to be affixed if that law is breached. See, generally, Kolender v. Lawson (1983), 461 U.S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903; Colten v. Kentucky (1972), 407 U.S. 104, 110, 92 S.Ct. 1953, 32 L.Ed.2d 584. Implicitly, the law must also convey an understandable standard capable of enforcement in the courts, Giaccio v. Pennsylvania (1966), 382 U.S. 399, 403, 86 S.Ct. 518, 15 L.Ed.2d 447, for judicial review is a necessary constitutional counterpoise to the broad legislative prerogative to promulgate codes of conduct. Although the vagueness doctrine is perhaps most familiar in the context of criminal law, “[v]ague laws in any area suffer a constitutional infirmity.” Ashton v. Kentucky (1966), 384 U.S. 195, 200, 86 S.Ct. 1407, 16 L.Ed.2d 469. As the United States Supreme Court has explained: “Vague laws offend several important values. First,because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonableopportunity to know what is prohibited so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to police [officers], judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Footnotes omitted.) Grayned v. Rockford (1972), 408 U.S. 104, 108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222.

When a statute is challenged under the due-process doctrine prohibiting vagueness, the court must determine whether the enactment (1)provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement. Kolender, 461 U.S. at 357, 103 S.Ct. 1855, 75 L.Ed.2d 903. The determination of whether a statute is impermissibly imprecise, indefinite, or incomprehensible, see Buckley v. Wilkins, 105 Ohio St.3d 350, 2005-Ohio-2166, 826 N.E.2d 811, ¶ 19 and Coates v. Cincinnati (1971), 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214, must be made in light of the facts presented in the given case and the nature of the enactment challenged. Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362, and fn. 7.

In undertaking that inquiry into the statute or ordinance at issue, the courts are to apply varying levels of scrutiny. “The difference between the various levels of scrutiny for vagueness has never been definitively spelled out, as in equal protection jurisprudence.” ABN 51st St. Partners v. New York (S.D.N.Y.1989), 724 F.Supp. 1142, 1147. Though the degree of review is not described with specificity, regulations that are directed to economic matters and impose only civil penalties are subject to a “less strict vagueness test,” but if the enactment “threatens to inhibit the exercise of constitutionally protected rights,” a more stringent vagueness test is to be applied. Hoffman Estates, 455 U.S. at 498-499, 102 S.Ct. 1186, 71 L.Ed.2d 362.

In either rubric, however, a statute is not void simply because it could be worded more precisely or with additional certainty. State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals (1992), 63 Ohio St.3d 354, 358, 588 N.E.2d 116, citing Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The critical question in all cases is whether the law affords a reasonable individual of ordinary intelligence fair notice and sufficient definition and guidance to enable him to conform his conduct to the law; those laws that do not are void for vagueness. Grayned, 408 U.S. at 108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222; Papachristou v. Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110.

The vagueness doctrine is usually applied in criminal law and First Amendment claims, but neither the rationale underlying the doctrine nor the case law interpreting it suggests that it should not be applied in any case in which the statute challenged substantially affects other fundamental constitutional rights. See Jordan v. De George (1951), 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (applying the doctrine to a deportation statute); Giaccio, 382 U.S. at 402, 86 S.Ct. 518, 15 L.Ed.2d 447. And, of course, the Due Process Clause of the Fourteenth Amendment demands that fair notice be given to a property owner in an appropriation action. See, e.g., Walker v. Hutchinson (1956), 352 U.S. 112, 115-117, 77 S.Ct. 200, 1 L.Ed.2d 178 (notice by publication held inadequate in appropriation case). See, also, Lambert v. California (1957), 355 U.S. 225, 229, 78 S.Ct. 240, 2 L.Ed.2d 228 (“Notice is required Before property interests are disturbed, Before assessments are made, Before penalties are assessed”).

Jeffrey Beausay

495 South High Street

Suite 300

Columbus, Ohio 43215

Tags: Constitutional Law

Beausay Arbitration Services

“Private Justice”

Although I am a proponent of the U.S. Constitution and the right to trial by jury, I must confess some level of frustration and doubt of its efficacy, particularly in civil cases. I am not convinced that we cannot establish a system that is as fair and much more efficient. This idea was born out of my frustration and lack of success in the jury system. My distinct impression is that the current system favors defendants, and has for all of my career. And for that reason, this may never get off the ground. We must therefore acknowledge this fact, and take special care to ensure that defendants and insurance companies trust that an arbitration arrangement is in their interests too. My suspicion is that an arbitration panel would be more plaintiff-friendly than an average jury, so we must take care that, if this is true, that we make up for it in speed, efficiency, and conservative results.

Mediations are popular at the moment. Mediation is a meeting of the parties officiated by a “mediator.” The goal of mediation is to resolve the case by settlement. Fine.

I like the idea of submitting a case to a body, but not a jury. Juries are too cumbersome, the civil rules and rules of evidence are unwieldy, and I am convinced that a good arbitration arrangement will yield equally just results.

The Panel. So, who comprises the body? To me this is the most important aspect of our service. The parties must know that if bias cannot be eliminated, it must be neutralized as much as possible. The clear answer is a panel selected by the parties themselves. Each should select an arbitrator, and each should select the third party neutral by agreement. If an agreement cannot be reached about the third party neutral, then the two arbitrators should select the neutral. The parties must believe they get a fair hearing, and this process should limit those occasions where a party feels he/she did not receive a fair hearing.

I would start over with the rules of evidence. The rules of evidence serve a purpose, but the process grinds to a slow crawl because of them.

In our arbitrations, written reports of experts is not optional; it is necessary. I would give each expert two opportunities to express his/her views. An initial report by plaintiff’s expert; a response by the defense expert; a reply by the former; and a reply by the latter. Whether the hearing would be conducted with written reports or by live testimony is negotiable.

Cost. Our arbitrations must be cost-effective, but cannot be “cheap.” A good lawyer will charge $1,000/day for his services (sometimes much more), so let’s just estimate that an arbitration will run $3,000/day or $1,500/half day. But is a jury trial less expensive than that? An arbitration panel could absorb more information in less time than a jury could. And an arbitration panel can hear and decide a case in a fraction of the time it takes a jury to do so. Forget voir dire; rules of evidence; opening/closing remarks; etc. The goal on the one hand is to attract panelists, and on the other to deliver results in a cost-efficient manner. I firmly believe that a well-run arbitration will save everyone time and money, and can (and must) deliver sound, just results.

Do Lawyers Have a Role? Absolutely. In fact, my aspiration is that we will attract diligence and smart efficiency, and repel actors. With juries, we seem to attract pomposity and grandiosity instead of steadfast adherence to science and evidence.

Will this work? My biggest concern is that the insurance industry will not submit to this system because (from my perspective) they do very well in the current system. It is my belief that the insurance industry does sometimes utilize the ineptitude of our courts to delay payments. That so many cases settle immediately before trial should tell us that plaintiffs and insurance companies are not evaluating cases early enough. It is for this reason that the arbitration panel members must adhere to neutrality above interest or some other agenda. The result has to be free of passion and sympathy, just as we admonish our juries. We don’t ask our panelists to take oaths; we make them understand that arbitration will not survive unless the panelists are fair and reasonable. They must possess the strength of character to deliver a defense verdict when appropriate, and a fair and just plaintiff’s verdict when appropriate.

The Franklin County Court of Common Pleas had and still has an arbitration option available to the parties, but the judge appoints a third party neutral, rather than the parties selecting one. Big mistake. With appointment comes all sorts of issues we have too much of already.

So let’s try it. It cannot be much worse than the jury system we now have. And I believe strongly it can be much better.

Call me if we can arrange an arbitration of your case.

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Tags: About Me, Alternative Dispute Resolution, Arbitration, Choosing the Right Lawyer

The “Contract” Clause

The United States Constitution (Art I, §10) states: “No State shall…pass any…Law impairing the Obligation of Contracts….” This is the so-called “Contract Clause.” The Ohio Constitution has a similar provision: “The general assembly shall have no power to pass…laws impairing the obligation of contracts.” (Ohio Constitution §2.28). The main purpose of the Contract Clauses was to protect creditors against debtor relief laws.

The key cases decided under the Contract Clause are:

Aetna Life Ins. Co. v. Schilling (1993)

Ross v. Farmers Ins. Group of Companies (1998), 82 Ohio St.3d 281:

For instance, we held in Aetna Life Ins. Co. v. Schilling (1993), 67 Ohio St.3d 164, 616 N.E.2d 893, syllabus, that a statutory provision applied to contracts that were entered into before the effective date of the statute would impair the obligation of contracts in violation of Section 28, Article II of the Ohio Constitution. We noted that if the statutory provision at issue in Schilling were applied to that case, “[it] would essentially change the contract which existed prior to the effective date of the statute.” Id. at 167, 616 N.E.2d at 895. Moreover, in Burtner-Morgan-Stephens Co. v. Wilson (1992), 63 Ohio St.3d 257, 586 N.E.2d 1062, syllabus, a unanimous court reached a similar conclusion when it held that, pursuant to Section 28, Article II of the Ohio Constitution, a statute could not be retroactively applied to determine the distribution of royalties that were provided for in an agreement entered into prior to the enactment of the statute. In Kiser v. Coleman (1986), 28 Ohio St.3d 259, 28 OBR 337, 503 N.E.2d 753, syllabus, a majority of this court held that the retroactive application of statutory provisions to land installment contracts that were in existence at the time of the enactment of the statutes
violated Section 28, Article II of the Ohio Constitution by impairing an obligation of contract.

Tags: The Ohio Constitution, The United States Constitution

Wanton Defined

When immunities are doled out by the General Assembly, they usually will make an exception for “willful or wanton misconduct.” For example, emergency medical personnel are immune in Ohio under RC 4765.49, but an injured plaintiff can get around the immunity if the conduct of the EMT is deemed “willful or wanton misconduct.” So what is “willful” misconduct? And what is “wanton” misconduct?

Wanton

In Hawkins v. Ivy (1977), 50 Ohio St.2d 114, the Ohio Supreme Court held:

Where the driver of an automobile fails to exercise any care whatsoever toward those to whom he owes a duty of care, and his failure occurs under circumstances in which there is a great probability that harm will result, such failure constitutes wanton misconduct.”

Tags: Definitions, Immunity, Miscellaneous

Article I Section 16 (Redress in Courts)

Article I Section 16 of the Ohio Constitution reads:

REDRESS FOR INJURY; DUE PROCESS. All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law. (1851, am. 1912)

In my line of work, the relevant section thus reads: ”Every person, for an injury done him in his person, shall have remedy by due course of law.” So, the issue is, what was intended in this section?

Ohio has had 4 constitutional conventions: 1802; 1850; 1873-4; and 1912. However, unfortunately, there is no record of what the framers of our constitution intended in the right to remedy section. As many as 40 states have a nearly identical provision, but there is little agreement in its interpretation.

To be sure, the language dates back to English laws, Sir Edward Coke stating: “Every subject of this Realm, for injury done him in goods, lands, or person, by any other subject, ecclesiastical or temporal whatever he be, without exception, may take his remedy by the course of the law, and have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay; for justice must have three qualities: It must be free; for nothing is more odious that justice let to sale; full, for justice ought not to limp, or be granted piecemeal, and speedily: Delay is a kind of denial: And when all these meet, it is both Justice and Right.” Sound familiar?

And Sir William Blackstone described three absolute rights: Personal Security; Personal Liberty; and Property. The right to a remedy was a critical means by which we preserve these absolute rights. Thus, arguably, the General Assembly cannot deny recovery for wrongs that implicate these absolute rights, whereas they may be justified in altering or abolishing other, subordinate rights.

Article 40 of the Magna Carta read: “To no one will we deny or delay, right or justice.” Similar provisions appeared in the State Declarations (pre-dating the U.S. Constitution), and 40 States have some form of remedy provision in their constitutions.

Byers v. Meridian Printing Co. (1911), 84 Ohio St. 408 (a legislative enactment changing the presumption and burden of proof as to malice in defamation cases found unconstitutional and void under Art I, Sec 16).

Williams v. Marion Rapid Transit, Inc. (1949), 152 Ohio St. 114 (denial of remedy to an unborn viable child violated Art I, Sec 16).

Hardy v. VerMeulen (1987), 32 Ohio St.3d 45 (Statute barring medical malpractice claim when patient did not know and could not have known of his/her injury violated Art I Sec 16)(“When the Constitution speaks of remedy and injury to person, property, or reputation, it requires an opportunity granted at a meaningful time and in a meaningful manner.”).

In Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 1994-Ohio-368, the Ohio Supreme Court held, “Cases in which we have invalidated statutes and rules on the basis of Section 16, Article I have involved the serious infringement of a clearly preexisting right to bring suit.” Thus, if a person has an existing right to sue, Congress cannot infringe upon that right. There was no discussion of the history of Art I Sec 16.

T. Jeffrey Beausay

Tags: The Ohio Constitution