Rule Amendments Proposed by the Ohio Supreme Court

These are proposed Rule Amendments that were put up for public comment by the Ohio Supreme Court. The comment period ended on November 18, 2008. The information below was obtained from the Ohio Supreme Court website. Rule amendments have to be presented to the Ohio General Assembly by January 15, 2009, and can be revised by the Ohio Supreme Court up until May 1, 2009. Those revisions filed by the Ohio Supreme Court with the Ohio General Assembly by January 15, 2009, and not withdrawn prior to May 1, 2009, are effective July 1, 2009, unless the General Assembly adopts a concurrent resolution of disapproval.

PROPOSED AMENDMENTS TO THE OHIO RULES OF APPELLATE PROCEDURE,OHIO RULES OF CRIMINAL PROCEDURE, and OHIO RULES OF CIVIL PROCEDURE

Comments requested: The Supreme Court of Ohio will accept public comments until November 18, 2008 on the following proposed amendments to the Ohio Rules of Appellate Procedure (4 and 43), Ohio Rules of Civil Procedure (4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 33, 36, 47 and 86), Ohio Rules of Criminal Procedure (24, 32 and 59), and Ohio Rules of Juvenile Procedure (25 and 47)

Comments on the proposed amendments must be submitted in writing to Jo Ellen Cline, Government Relations Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215-3431 or ClineJ@sconet.state.oh.us and received no later than November 18, 2008. Please include your full name and regular mailing address in any comment submitted by e-mail. Copies of all comments submitted will be provided to each member of the Commission on the Rules of Practice and Procedure and each justice of the Supreme Court.

Pursuant to Article IV, Section 5(B) of the Ohio Constitution, proposed amendments to rules of procedure must be filed with the General Assembly by January 15 each year. The Commission on the Rules of Practice and Procedure and the Court will consider all comments received during this first comment period and may modify, add, or withdraw proposed amendments before filing with the General Assembly. Any proposed amendments that are filed with the General Assembly in January 2009 will then be republished for a second comment period and may be further revised by filing revisions with the General Assembly prior to May 1, 2009. Those amendments filed with the General Assembly in January 2009 and not withdrawn prior to May 1, 2009 will take effect on July 1, 2009, unless prior to that date the General Assembly adopts a concurrent resolution of disapproval.

The proposed amendments were recommended to the Supreme Court by the Supreme Court Commission on the Rules of Practice and Procedure, and the Court is seeking comments on the proposed amendments prior to filing any amendments with the General Assembly. Publication for comment at this time does not indicate that the Supreme Court endorses or will approve for filing with the General Assembly any or all of the proposed amendments.

A Staff Note prepared by the Commission on the Rules of Practice and Procedure follows some amendments. Although the Supreme Court uses the Staff Notes during its consideration of proposed amendments, the Staff Notes are not adopted by the Court and are not a part of the rule; they represent the views of the Commission on the Rules of Practice and Procedure and not necessarily those of the Supreme Court. For these reasons, the Staff Notes are not filed with the General Assembly but are included when the proposed amendments are published for comment and are made available to the public and to legislative committees.

Following is a summary of the proposed amendments. In addition to the substantive amendments, nonsubstantive grammar and gender-neutral language changes are made throughout any rule that is proposed for amendment.

Appellate Rule 4

The Commission recommends an amendment to Appellate Rule 4 to correct cross-references to both the Ohio Civil Rules of Procedure and the Ohio Rules of Juvenile Procedure. In 2006, the Court adopted amendments to Civ. R. 53 and Juv. R. 40 regarding magistrates. As a part of those amendments divisions in those rules regarding action on a magistrate’s decision by the Court were renumbered. The proposed amendments correct the cross-references to state the appropriate divisions.

Civil Rules 4 through 4.6

The Commission recommends proposed amendments that would require the plaintiff to make service of process rather than the clerk. The key amendments recommended are as follows:

• Civ. R. 4(A): The clerk issues the summons and delivers it to the plaintiff. The serving party’s postage paid is charged to costs upon presentation of proof. Service by certified mail is deemed complete on the date the return receipt was signed if the plaintiff files proof of service before the answer day. Otherwise, service is deemed complete on the date the plaintiff files proof of service.

• Civ. R 4(B) & (C): Personal and residence service continue to be the duty of the sheriff, bailiff or specially appointed adult. Personal and residence service are deemed complete on the date of service if proof of service is filed prior to the answer day. Otherwise, service is deemed complete on the date proof of service is filed.

• Civ. R. 4.2(G): A provision is added for service on a limited liability company.

• Civ. R. 4.3: Amendments that correspond to those governing in-state service are made to the provisions for service outside of the state.

• Civ. R. 4.6 (C) & (D): The provision for service by ordinary mail if certified mail within the state is “refused” is expressly stated as applicable to service outside the state. The provision for service by ordinary mail if certified mail is “unclaimed” is eliminated.


Civil Rules 33 and 36

In 2004, the Court adopted amendments to Civ. R. 33 and 36 requiring parties propounding interrogatories and requests for admissions to provide the responding party both a written and electronic copy. The amendments adopted, however, did not include a consequence for failing to provide the electronic copy.

The Commission recommends amendments to Civ. R. 33(A) and 36(A) to clarify that the period for responding to interrogatories and requests for admission, which is designated by the propounding party and cannot be less than twenty-eight days, shall run from the day of service of the printed copy of the interrogatories, and that the failure to provide an electronic copy does not alter the response period. However, if the responding party requests that the period be enlarged pursuant to Rule 6(B) because the propounding party has not provided an electronic copy, that reason shall constitute good cause for granting the requested extension, and the court’s order may require that an electronic copy be provided.

The amendment is intended to enforce the duty of the party propounding interrogatories and requests for admissions to provide an electronic copy while prohibiting the responding party served with a printed copy to use the failure to receive an electronic copy as reason to disregard the response time designated in the printed copy.

Civil Rule 47

The Commission recommends amendments to Civ. R. 47 clarifying that alternative methods of jury selection are permissible. The Court amended Civ. R. 47 in 2006; however, language retained in the rule arguably only allows for use of the “strike and replace” method of jury selection. The proposed amendments delete the unnecessary language in Civ. R. 47(C) suggesting that the prospective jurors must be empanelled prior to questioning. The proposed amendments also remove language from Civ. R. 47(B) to make clear that both the “strike and replace method” and the “struck” method are permitted.

Criminal Rule 24

Identical to the proposed amendment to Civ. R. 47, the Commission recommends amendments to Crim. R. 24 to delete language suggesting that prospective jurors must be empanelled prior to questioning. The proposed amendments also remove language to make clear that both the “strike and replace method” and the “struck” method are permitted.

Criminal Rule 32

In response to the Court’s decision in State v. Baker, 2008-Ohio-3330, the Commission recommends an amendment to Crim. R. 32(C) to clarify that a judgment of conviction must set forth the guilty plea, verdict, or findings upon which to conviction is based and the sentence.

Juvenile Rule 25

The Commission recommends amendments to Juv. R. 25 that clarify how depositions are to proceed in juvenile courts. Juvenile courts consider a wide variety of cases including those prosecuted by the State, e.g. delinquency and unruly child offenses, which are analogous to criminal cases. Juvenile courts also hear dependency, neglect and abuse actions and actions to permanently terminate parent’s rights which are civil cases. Their jurisdiction also includes private custody cases and parentage actions.

The proposed amendment will bring some measure of uniformity to depositions. Under the current rule, depositions in custody and parentage actions may only take place upon a showing of “good cause”. Domestic relations courts also hear parentage actions and, in those cases, depositions are conducted pursuant to the Rules of Civil Procedure.

The proposed amendments require depositions in parentage and custody proceedings be conducted pursuant to the Rules of Civil Procedure. The Rules of Civil Procedure would also control depositions taken in post-dispositional matters to which the State is no longer a party. This recognizes that dependency, neglect and abuse cases, as well as custody and parentage cases frequently involve a considerable amount of post-decree litigation when the State is no longer involved. Finally, the proposed amendments state that depositions in delinquency cases, abuse-type actions and other proceedings not covered by other provisions of the rule will be conducted only to preserve testimony in limited circumstances.