Ohio Supreme Court Submits Amendments to Rules of Practice and Procedure to Ohio General Assembly

The Supreme Court of Ohio filed amendments on Thursday, December 14, 2010, to the annual update to the Rules of Practice and Procedure with the Ohio General Assembly, including changes to the criminal discovery process that were developed through a collaborative process involving the criminal defense bar and prosecutors.

The amendments concern changes to the rules of criminal procedure and the rules of appellate procedure. Specifically, the amendments call for a more open discovery process in Criminal Rule 16 and revise several rules of appellate procedure to implement a procedure for en banc consideration in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law.

The new discovery process would allow defense counsel access to materials that, under the current rule, were never disclosed. Changes in Crim. R. 16 also call for establishing a defendant’s reciprocal duty of disclosure and seek to protect victims and witnesses from potential harassment. Revisions to the proposed amendments published in October 2009 include language giving a court greater discretion in regulating discovery in cases of a pro se defendant, additional language to give sufficient time for an expert to evaluate statements of a sexual abuse victim who is less than 13 years of age, and several clarifying changes.

The discovery reforms were developed through an extraordinary cooperative process that involved leaders of the Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers after Chief Justice Thomas J. Moyer urged them to develop proposed rules that would be considered for adoption by the Supreme Court.

“These changes in the process for conducting a criminal trial are substantive improvements to the system, and they represent what can happen when professionals from different sides of an issue come together to bring about positive change,” said Chief Justice Moyer.

The en banc provisions of the appellate procedure rules result from the Supreme Court’s decision in McFadden v. Cleveland State Univ. The Court held that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Revisions to the proposed amendments published in October included the deletion of proposed amendments to App. R. 22 and 30. Language was also added to the proposed amendments to ensure that an order or entry in reconsideration that results in an intra-district conflict could also be subject to en banc consideration.

Other changes to the criminal procedure rules include amending Crim. R. 12(K) to accommodate the new interlocutory appeal granted under proposed Crim. R. 16(F)(2) to review a trial court’s ruling on a prosecutor’s non-disclosure of material. Amendments to Crim. R. 41 permit applications and approvals of search warrants to be accomplished by electronic means, including facsimile transmission.

The amendments were adopted unanimously by the seven Justices of the Supreme Court, with the exception of Crim. R. 41, which was adopted 6-1 with Justice Terrence O’Donnell voting no.

According to the Ohio Constitution, amendments to rules of procedure must be filed with the General Assembly. The Court may revise and file the amendments with the General Assembly prior to May 1, 2010. The amendments would take effect on July 1, 2010, unless prior to that date the General Assembly adopts a concurrent resolution of disapproval.

Click here to go to Rule Amendment page on the Ohio Supreme Court Website.

Contact: Chris Davey or Bret Crow at 614.387.9250.

Update on Proposed Changes to Civ. R. 4

Medina County Domestic Relations Judge Mary R. Kovack submitted the following concerning proposed changes to Civ. R. 4:

Update on proposed changes to Civ. R. 4.

The comments on the change to plaintiff's service and the elimination of the perfection of "unclaimed" service by regular mail were overwhelmingly negative. 45 lawyers (on behalf of themselves or law firms) opined that the current system for service works well. Sixteen organizations or groups voiced opposition, including: Legal Aid agencies in Columbus, Cincinnati, Cleveland, and Southeastern Ohio; the 1500-member Ohio Association for Justice; the Ohio Child Support Enforcement Agency (CSEA) Directors’ Association and the individual CSEA agencies in Franklin, Clermont, and Montgomery counties; the Litigation Section and the Negligence Law Committee of the OSBA; the Ohio Creditor Attorneys Association; the Akron Bar Association’s Civil Procedure and Appellate Courts Committee; the Crawford County Bar Association; and the Ohio Department of Public Safety. Three subdivisions of the Ohio Judicial Conference voiced opposition: the Civil Law and Procedure Committee, the Domestic Relations Law and Procedure Committee, and the Domestic Relations Judges Executive Committee. Judges and magistrates from six counties also voiced significant concerns about the changes. One pro se litigant also weighed in against the proposed changes.

On December 5th, the Commission on Rules and Procedure voted unanimously to withdraw the proposed changes.
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The only proposed change to Civ. R. 4 that the Commission voted to recommend to the Supreme Court for final approval is the addition of Civ.R. 4.2(G). This provides for service on Limited Liability Companies, a matter not addressed in the current rules.