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