[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Stolz
v. J & B Steel Erectors, Inc., Slip Opinion No. 2018-Ohio-5088.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2018-OHIO-5088
                    STOLZ v. J & B STEEL ERECTORS, INC., ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as Stolz v. J & B Steel Erectors, Inc., Slip Opinion No.
                                     2018-Ohio-5088.]
Workers’ compensation—Immunity from tort claims—Self-insured construction
        projects—R.C. 4123.35(O)—R.C. 4123.35(O)’s grant of immunity to
        subcontractors enrolled in a contractor’s self-insurance plan from claims
        by employees of another enrolled subcontractor does not violate right-to-
        remedy, right-to-jury, or equal-protection provisions of Ohio Constitution.
    (No. 2017-1245—Submitted May 8, 2018—Decided December 20, 2018.)
ON ORDER from the United States District Court for the Southern District of Ohio,
      Western Division, Certifying a Question of State Law, No. 1:14-cv-44.
                                    _________________
        DEWINE, J.
        {¶ 1} Ohio law allows a general contractor on certain large construction
projects to “self-insure” and provide workers’ compensation coverage for its own
                             SUPREME COURT OF OHIO




employees and for the employees of subcontractors that enroll in the contractor’s
self-insurance program. An employee who is injured on the job may not pursue a
negligence claim against the general contractor or an enrolled subcontractor but
must instead seek compensation pursuant to Ohio’s workers’ compensation laws.
In this case, which comes to us by way of a certified question from the United States
District Court, we consider whether this scheme violates certain provisions of the
Ohio Constitution. We conclude that it does not.
                                  I. Background
       {¶ 2} This is the second time in the same federal lawsuit we have been
called upon to answer a question about the contractor-self-insurance program. See
Stolz v. J & B Steel Erectors, Inc., 146 Ohio St.3d 281, 2016-Ohio-1567, 55 N.E.3d
1082, ¶ 3-8 (“Stolz I”). The district-court case arose from a workplace accident that
occurred during construction of the Horseshoe Casino in Cincinnati. Daniel Stolz
was injured when a floor upon which he was working collapsed, causing him to fall
some 25 feet. Stolz was employed as a concrete finisher for Jostin Construction,
Inc. (“Jostin”). And Jostin was a subcontractor of Messer Construction Company
(“Messer”), the general contractor for the project.
       {¶ 3} Prior to the start of construction, Messer received permission from the
Ohio Bureau of Workers’ Compensation to act as the self-insuring employer on the
project under R.C. 4123.35(O). Under the statute, Messer provided workers’
compensation coverage on the project for its own employees as well as the
employees of subcontractors like Jostin that chose to enroll in Messer’s self-
insurance plan (“enrolled subcontractors”).
       {¶ 4} After he was injured, Stolz sued Messer and several of the
subcontractors for negligence. Messer and three of the enrolled subcontractors
moved for summary judgment on the grounds that they are immune from liability
under R.C. 4123.35(O)’s provisions concerning contractor self-insurance.




                                         2
                                  January Term, 2018




        {¶ 5} The district court granted summary judgment to Messer, as the
general contractor, but refused to extend immunity to the subcontractors.
Following summary judgment, we accepted our first certified question of state law
from the federal court. That question asked whether R.C. 4123.35 and 4123.74
provide immunity to enrolled subcontractors from tort claims brought by
employees of other enrolled subcontractors. Stolz I, 146 Ohio St.3d 281, 2016-
Ohio-1567, 55 N.E.3d 1082, at ¶ 8. We answered the question in the affirmative,
concluding that the statutes “create a legal fiction that a self-insuring employer for
a self-insured construction project is the single employer, for workers’
compensation purposes, of all employees working for enrolled subcontractors on
that project.” Id. at ¶ 27.
        {¶ 6} Back before the district court, Stolz amended his complaint to allege
that R.C. 4123.35(O) violates various provisions of the United States and Ohio
Constitutions. Once more, the enrolled subcontractors petitioned the district court
to certify a question of state law to this court. Again, we accepted. The question
is:


        “Whether Ohio [R.C.] 4123.35(O) is unconstitutional as applied to
        the tort claims of an enrolled subcontractor’s employee who is
        injured while working on a self-insured construction project and
        whose injury is compensable under Ohio’s workers’ compensation
        laws.”


(Brackets sic.) 151 Ohio St.3d 1451, 2017-Ohio-8842, 87 N.E.3d 220, quoting the
district court’s certification order.
       II. Ohio’s Workers’ Compensation System and R.C. 4123.35(O)
        {¶ 7} The Ohio Constitution authorizes the legislature to establish a state
fund for the purpose of “providing compensation to workmen and their dependents,




                                          3
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for death, injuries or occupational disease, occasioned in the course of such
workmen’s employment” and to require “compulsory contribution thereto” from
employers. Ohio Constitution, Article II, Section 35. An employer that “pays the
premium or compensation provided by law * * * shall not be liable to respond in
damages at common law or by statute for such death, injuries or occupational
disease.” Id.
       {¶ 8} The legislature established the Ohio workers’ compensation system
under this authority. See R.C. Chapter 4123. Most employers participate in the
system by paying premiums into a state insurance fund that administers and pays
out claims. R.C. 4123.35(A). The scheme also allows certain employers who
possess “sufficient financial and administrative ability” to self-insure their workers’
compensation obligations. R.C. 4123.35(B). These “self-insuring employer[s]”
have the same immunity from liability as other employers but pay claims directly
to injured employees and the dependents of deceased employees. Id.
       {¶ 9} R.C. 4123.35(O) takes the self-insurance principle a step further. It
allows the administrator of the workers’ compensation system to grant a self-
insuring employer the privilege of self-insuring certain large construction projects.
The self-insuring employer may administer workers’ compensation claims not only
for its own employees but also for the employees of subcontractors enrolled in the
plan. R.C. 4123.35(O). In return, the self-insuring employer gains protection
against claims by its own employees as well as the claims of employees of enrolled
subcontractors. Id. And as we explained in Stolz I, an enrolled subcontractor also
receives protection against claims by employees of another enrolled subcontractor.
146 Ohio St.3d 281, 2016-Ohio-1567, 55 N.E.3d 1082, at ¶ 27. The question now
before us is whether this grant of immunity to enrolled subcontractors violates
certain provisions of the Ohio Constitution.




                                          4
                                 January Term, 2018




                        III. Stolz’s Constitutional Claims
        {¶ 10} In his amended complaint, Stolz alleged that R.C. 4123.35(O)
violates various provisions of the state and federal Constitutions. The question
certified by the district court does not distinguish between Stolz’s federal and state
claims. We answer certified questions of “Ohio law,” S.Ct.Prac.R. 9.01(A), and
thus we will limit our analysis to Stolz’s claims under the Ohio Constitution.
        {¶ 11} Stolz alleged violations of seven provisions of the Ohio Constitution.
But in his briefing before this court, Stolz argues only that R.C. 4123.35(O) violates
the due-process and equal-protection guarantees of the Ohio Constitution. Within
these arguments, he contends that R.C. 4123.35(O) infringes upon fundamental
rights protected by the right-to-jury and right-to-remedy provisions of the Ohio
Constitution. Because he has not raised any arguments concerning the other
provisions of the Ohio Constitution referred to in his amended complaint, we deem
such claims to be abandoned. See Household Fin. Corp. v. Porterfield, 24 Ohio
St.2d 39, 46, 263 N.E.2d 243 (1970). As to the constitutional claims that Stolz does
raise, we conclude that neither has merit.
                               A. Due Course of Law
        {¶ 12} Stolz first argues that R.C. 4123.35(O)’s grant of immunity to
enrolled subcontractors violates his rights to due process under Article I, Section
16 of the Ohio Constitution. That section provides, “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.” Under a plain reading, the constitutional provision does not speak
to “due process” at all but, rather, to an individual’s right to access the court system
and to seek a remedy. For many years, however, we have treated the provision as
equivalent to the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. See Wilson v. Zanesville, 130 Ohio St. 286, 289-290, 199 N.E.
187 (1935), overruled in part on other grounds, Cincinnati v. Correll, 141 Ohio St.




                                           5
                             SUPREME COURT OF OHIO




535, 49 N.E.2d 412 (1943); Adler v. Whitbeck, 44 Ohio St. 539, 568-569, 9 N.E.
672 (1887). No party has asked us to do otherwise today.
       {¶ 13} Stolz primarily argues that R.C. 4123.35(O) violates his rights to
substantive due process.     While the Due Process Clause of the Fourteenth
Amendment on its face would seem to be concerned with only the adequacy of
procedures employed when one is deprived of life, liberty, or property, the United
States Supreme Court has read it to include a substantive component that forbids
some government actions “regardless of the fairness of the procedures used to
implement them,” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88
L.Ed.2d 662 (1986). We have also recognized substantive-due-process protections
under the Ohio Constitution. See Arbino v. Johnson & Johnson, 116 Ohio St.3d
468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 48-49.
       {¶ 14} In a substantive-due-process challenge, “[t]he first (and often last)
issue * * * is the proper characterization of the individual’s asserted right.” Blau
v. Fort Thomas Pub. School Dist., 401 F.3d 381, 393 (6th Cir.2005), citing Reno v.
Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Government
actions that infringe upon a fundamental right are subject to strict scrutiny, while
those that do not need only be rationally related to a legitimate government interest.
State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 18.
       {¶ 15} Stolz contends that R.C. 4123.35(O) violates two fundamental rights
guaranteed by the Ohio Constitution: the right to a jury trial and the right to a
remedy. We may quickly dispose of the argument that R.C. 4123.35(O) infringes
upon Stolz’s right to a jury trial. The jury-trial guarantee extends to those civil
cases in which the right existed at the time of the adoption of the Ohio Constitution.
Belding v. State ex rel. Heifner, 121 Ohio St. 393, 169 N.E. 301 (1929), paragraph
one of the syllabus; Arrington v. DaimlerChrysler Corp., 109 Ohio St.3d 539, 2006-
Ohio-3257, 849 N.E.2d 1004, ¶ 22. The jury-trial guarantee does not, however,
prohibit the legislature from altering a common-law cause of action. Stetter v. R.J.




                                          6
                                 January Term, 2018




Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927
N.E.2d 1092, ¶ 64. Rather, the legislature may “ ‘alter, revise, modify, or abolish
the common law as it may determine necessary or advisable for the common
good.’ ” Id., quoting Arbino at ¶ 131 (Cupp, J., concurring).
       {¶ 16} In Arrington, we held that the constitutional right to a jury trial does
not extend to a worker seeking to participate in the workers’ compensation fund.
Arrington at ¶ 26-27. We explained that “the statutory workers’ compensation
scheme was intended as a replacement for the void of common-law remedies for
workers injured on the job.” Id. at ¶ 24. Because the act “ ‘abolishes all right of
recovery in ordinary cases,’ ” it “ ‘leaves nothing to be tried by jury.’ ” Id., quoting
Mountain Timber Co. v. Washington, 243 U.S. 219, 235, 37 S.Ct. 260, 61 L.Ed.2d
685 (1917). In enacting R.C. 4123.35(O), the General Assembly exercised its
constitutional authority to abolish an employee’s right to recover in tort from an
enrolled subcontractor and replaced it with a right to recover through the workers’
compensation laws.       Thus, like the employee in Arrington, Stolz has no
constitutional right to a jury trial for his workplace-injury claim.
        {¶ 17} We also reject Stolz’s argument that R.C. 4123.35(O) infringes upon
his right under Article I, Section 16 to a “remedy by due course of law.” We have
held that “the right-to-remedy provision applies only to existing, vested rights and
that the legislature determines what injuries are recognized and what remedies are
available.” Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d
291, ¶ 13. To violate the guarantee, a statute must be a “serious infringement of a
clearly preexisting right to bring suit.” Fabrey v. McDonald Village Police Dept.,
70 Ohio St.3d 351, 355, 639 N.E.2d 31 (1994).
        {¶ 18} In Stetter, we considered an intentional-tort statute that limited an
employee’s ability to recover in tort from his employer to situations in which the
employee could show that the employer acted with a deliberate intent to injure;
claimants who could not meet this standard could receive compensation only




                                           7
                             SUPREME COURT OF OHIO




through the workers’ compensation system. 125 Ohio St.3d 280, 2010-Ohio-1029,
927 N.E.2d 1092, at ¶ 44, 60. Under the prior version of the statute, an employee
could recover for an intentional tort by showing that an injury was substantially
certain to result from the employer’s conduct. Id. at ¶ 27. We concluded that even
though the new statute removed a tort remedy that had previously existed, it did not
violate the right-to-remedy provision. Id. at ¶ 60. We explained that the workers’
compensation system provided meaningful remedies for employees who had been
injured by an intentional tort as defined by the statute. Id. Further, we held that in
enacting the statute in question, the General Assembly acted pursuant to its power
to modify common-law causes of action. Id. Similar considerations apply here: in
enacting R.C. 4123.35(O), the legislature exercised its authority to modify an
employee’s cause of action against enrolled subcontractors, and Stolz and injured
workers like him may obtain an adequate remedy through the workers’
compensation system.
       {¶ 19} Thus, we reject Stolz’s claim that R.C. 4123.35(O) violates the jury-
trial and right-to-remedy guarantees of the Ohio Constitution. Because Stolz has
not shown that the statute infringes upon a fundamental right, we apply rational-
basis review to his claim. Under rational-basis review, we will uphold the statute
as long as it is rationally related to a legitimate government interest. Arbino, 116
Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 66. We grant “substantial
deference” to the General Assembly’s predictive judgment in making that
determination. State v. Williams, 88 Ohio St.3d 513, 531, 728 N.E.2d 342 (2000).
       {¶ 20} Ohio’s workers’ compensation system is the “result of a unique
compromise between employees and employers, in which employees give up their
common-law remedy and accept possibly lower monetary recovery, but with
greater assurance that they will receive reasonable compensation for their injury.”
Stetter at ¶ 54. In recognition of this compromise, we have upheld various aspects
of the workers’ compensation system in the face of due-process challenges. In




                                          8
                                January Term, 2018




Kaiser v. Strall, 5 Ohio St.3d 91, 93-94, 449 N.E.2d 1 (1983), we held that a
workers’ compensation statute that bars an injured worker from pursuing a tort
claim against a fellow employee does not violate the injured worker’s due-process
rights. We found the contention that the scheme was unconstitutional to be
“particularly mystifying, given the fact that its very adoption would abrogate” the
provision of the Ohio Constitution authorizing the creation of the workers’
compensation fund. Id. at 93, citing Ohio Constitution, Article II, Section 35.
       {¶ 21} Similarly, in Stetter, we looked to the underlying purposes of the
workers’ compensation system in upholding a statutory restriction on an
employee’s ability to sue his employer for an intentional tort. 125 Ohio St.3d 280,
2010-Ohio-1029, 927 N.E.2d 1092, at ¶ 74-76. We explained that one primary
rationale undergirding the statutory compromise was to “ ‘minimize litigation, even
litigation of undoubted merit.’ ”       Id. at ¶ 74, quoting 6 Larson, Workers’
Compensation Law, Section 103.03 (2008).
       {¶ 22} R.C. 4123.35(O) furthers the purposes of the workers’ compensation
system by putting a project with a general contractor and multiple subcontractors
on the same footing as a large construction project undertaken by a single
contractor. By extending immunity to enrolled subcontractors, R.C. 4123.35(O)
encourages subcontractors to engage in large-scale construction projects they might
otherwise shy away from because of concerns about accident-related litigation. In
addition, it provides a quicker, and more certain, means of recourse for injured
employees. Thus, we have little difficulty concluding that the legislature acted with
a rational basis in enacting R.C. 4123.35(O).          We therefore reject Stolz’s
substantive-due-process challenge.
       {¶ 23} Stolz also presents what he characterizes as a procedural-due-
process claim. He says that employees “were not reasonably put on notice by the
language of the statute that they would be deprived of their rights to a jury trial and
remedy as to non-employer, third-party contractors.” In essence, his argument is




                                          9
                             SUPREME COURT OF OHIO




that his procedural-due-process rights were violated because he could not have
anticipated our decision in Stolz I interpreting R.C. 4123.35(O) as barring an
employee’s claim against an enrolled subcontractor.
       {¶ 24} A procedural-due-process claim challenges the adequacy of the
procedures employed when the government deprives a person of life, liberty, or
property. Ferguson v. State, 151 Ohio St.3d 265, 2017-Ohio-7844, 87 N.E.3d 1250,
¶ 42. Here, Stolz is not challenging the procedural adequacy of a governmental
action but, rather, expressing a substantive disagreement with this court’s
construction of the statute. Because his challenge is not to the adequacy of
procedures employed by the government in depriving him of life, liberty, or
property, he does not assert a procedural-due-process violation.
                               B. Equal Protection
       {¶ 25} Article I, Section 2 of the Ohio Constitution provides: “All political
power is inherent in the people. Government is instituted for their equal protection
and benefit * * *.” Stolz claims that his equal-protection rights are infringed upon
because he is treated differently than a worker who is “on a traditional, state-funded
project that does not take advantage of R.C. 4123.35’s self-insured provision.”
       {¶ 26} Our analysis of Stolz’s substantive-due-process claim gives away
the ending as to his equal-protection claim. When—as here—a statute does not
infringe upon a fundamental right or involve a suspect classification, it will be
upheld as long as it is rationally related to a legitimate government interest.
Ferguson at ¶ 31. As we explained in the due-process section of our analysis, the
classification rationally advances a legitimate government interest by extending the
limitations on damages provided for in the workers’ compensation system to
enrolled subcontractors in large construction projects. In addition, it advances the
government’s interest in allowing injured workers a certain, and prompt,
mechanism for the payment of benefits.         Because R.C. 4123.35(O) satisfies




                                         10
                                January Term, 2018




rational-basis review, it does not violate the Equal Protection Clause of the Ohio
Constitution.
                                 IV. Conclusion
       {¶ 27} The United States District Court for the Southern District of Ohio
asked a question of state law as to whether R.C. 4123.35(O) is “unconstitutional as
applied to the tort claims of an enrolled subcontractor’s employee who is injured
while working on a self-insured construction project and whose injury is
compensable under Ohio’s workers’ compensation laws.” We answer the question
in the negative: the provision does not violate the Ohio Constitution’s right-to-
remedy, right-to-jury, or equal-protection provisions.
                                                                       So answered.
       KENNEDY, FRENCH, and DEGENARO, JJ., concur.
       FISCHER, J., concurs, with an opinion.
       O’CONNOR, C.J., and O’DONNELL, J., concur in judgment only.
                               _________________
       FISCHER, J., concurring.
       {¶ 28} I fully and respectfully concur in the majority opinion and its
resolution of the arguments presented by the parties. I write separately, however,
to emphasize that the unique language and historical background of this state’s
Equal Protection Clause, Article I, Section 2 of the Ohio Constitution, should be
carefully analyzed. In a future case, this court should reexamine our precedent
holding that the Ohio Equal Protection Clause is actually the “functional
equivalent” of the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.
       {¶ 29} Because the parties in this case did not challenge this court’s
traditional understanding of the two clauses as functionally equivalent, the majority
properly follows that precedent. Today’s decision should not, however, be taken
to mean that the precedent is unchallengeable.




                                         11
                             SUPREME COURT OF OHIO




                                  I. Introduction
       {¶ 30} This court has previously held that the state courts may recognize
protections under the Ohio Constitution that are greater than those provided by the
United States Constitution. Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163
(1993), paragraph one of the syllabus. In Arnold, the court conducted an historical
analysis, concluding that when adopting Article I, Section 4 of the Ohio
Constitution, the people of Ohio “chose to go even further” than the Second
Amendment to the United States Constitution regarding the right of an individual
to possess firearms. Id. at 43. Thus, it is not a forgone conclusion that a clause in
the Ohio Constitution is the “functional equivalent” of a clause in the federal
Constitution that addresses a similar issue.
   II. The History of the Ohio and United States Equal Protection Clauses
       {¶ 31} The Equal Protection Clause of the Ohio Constitution was adopted
as part of the 1851 Ohio Constitution, whereas the Fourteenth Amendment to the
United States Constitution was not ratified until 1868. Therefore, there can be no
legitimate argument that the Ohio Equal Protection Clause was the “functional
equivalent” of the federal Equal Protection Clause for the first 17 years that the
Ohio clause existed—there was no federal clause to which it could be equivalent,
functional or otherwise.
                      A. The Ohio Equal Protection Clause
       {¶ 32} The Ohio Equal Protection Clause is similar in some ways to the
Equal Protection Clauses found in the 1776 Virginia Declaration of Rights and the
1776 Pennsylvania Constitution. The Ohio Equal Protection Clause provides, “All
political power is inherent in the people. Government is instituted for their equal
protection and benefit, and they have the right to alter, reform, or abolish the same
* * *.” Article I, Section 2, Ohio Constitution. Both the 1776 Virginia and 1776
Pennsylvania clauses provided that “government is, or ought to be, instituted for
the common benefit, protection, and security of the people, nation, or community.”




                                         12
                                January Term, 2018




Virginia Declaration of Rights of 1776, Section 3; Pennsylvania Constitution of
1776, Article V. One obvious difference is that neither the Virginia nor the
Pennsylvania version actually included the word “equal.” Another difference is the
inclusion of the language “or ought to be” in both the former Virginia and
Pennsylvania Equal Protection Clauses but not in the Ohio Equal Protection Clause.
The phrase “or ought to be” that was contained in the Virginia and Pennsylvania
versions has been taken to mean that those clauses were more descriptive of a
political philosophy than clauses, like the Ohio Equal Protection Clause, that
specifically confer rights. Steven H. Steinglass & Gino J. Scarselli, The Ohio State
Constitution 85 (2011).
       {¶ 33} Idaho Constitution, Article I, Section 2 contains the same language
as the Ohio Equal Protection Clause, and South Dakota Constitution, Article VI,
Section 26 contains similar language. Both the Idaho and South Dakota versions,
however, were ratified in 1889, 21 years after the federal clause was ratified.
Kansas’s equal-protection clause, Kansas Bill of Rights, Section 2, was ratified in
1859, 9 years before the federal clause was ratified. The Kansas version contains
language similar to the Ohio Equal Protection Clause, but the Ohio and Kansas
clauses are too distinct to be incontrovertibly viewed as equivalent. And even if
the two clauses were identical, they should not be viewed as equivalent without
significant background and historical analysis that supports that view. No other
state court’s interpretation of its own equal-protection clause is binding on this
court, and because each state version has a different historical background,
interpretations provided by state courts analyzing their own equal-protection
clauses are of limited, if any, persuasive value to an Ohio court interpreting the
Ohio Equal Protection Clause.
       {¶ 34} Moreover, this court did not cite the Ohio Equal Protection Clause
in any published decision until 1895, well after the passage of the federal Equal
Protection Clause. See State ex rel. Schwartz v. Ferris, 53 Ohio St. 314, 341, 41




                                        13
                               SUPREME COURT OF OHIO




N.E. 579 (1895). Thus, this court has not conducted a full analysis of the Ohio
Equal Protection Clause that was not influenced by federal Equal Protection Clause
jurisprudence, despite the fact that the Ohio clause is 17 years older than the federal
clause.
                    B. The United States Equal Protection Clause
          {¶ 35} The federal Equal Protection Clause provides that “[n]o state shall
* * * deny to any person within its jurisdiction the equal protection of the laws.”
The Fourteenth Amendment, including its Equal Protection Clause, was drafted
primarily by Congressman John Bingham of Ohio.               Richard L. Aynes, The
Continuing Importance of Congressman John A. Bingham and the Fourteenth
Amendment, 36 Akron L.Rev. 589, 590 (2003). It was ratified in 1868.
          {¶ 36} The Ohio and federal Equal Protection Clauses were drafted
relatively closely to each other in time, so it is reasonable to assume that
Congressman Bingham was familiar with the language in the Ohio clause. Yet each
clause’s language is significantly different from the language of the other.
Therefore, either a plain-meaning or an intentionalist interpretation of the Ohio
Equal Protection Clause could well lead to the determination that the Ohio clause
is too distinct from the federal clause for them to be considered “functional
equivalents.”      See Paul Brest, The Misconceived Quest for the Original
Understanding, 60 B.U. L.Rev. 204 (1980) and fn. 5, quoting Home Bldg. & Loan
Assn. v. Blaisdell, 290 U.S. 398, 453, 54 S.Ct. 231, 78 L.Ed. 413 (1934)
(Sutherland, J., dissenting) (“For the strict intentionalist, ‘the whole aim of
construction, as applied to a provision of the Constitution, is * * * to ascertain and
give effect to the intent of its framers and the people who adopted it’ ” [ellipsis
sic]).
   C. Ohio Supreme Court Cases Analyzing the Ohio Equal Protection Clause
          {¶ 37} Traditionally, this court has treated the Ohio Equal Protection Clause
and the federal Equal Protection Clause as “functionally equivalent.” See Schwartz,




                                           14
                                January Term, 2018




53 Ohio St. at 341, 41 N.E. 579 (“it is sufficient to say that the provisions of this
section of the federal constitution, as to this question, are not broader than the
second section of our bill of rights”); Am. Assn. of Univ. Professors, Cent. State
Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60, 717 N.E.2d 286 (1999)
(“the federal and Ohio Equal Protection Clauses are to be construed and analyzed
identically”); State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883,
¶ 29 (the federal and Ohio Equal Protection Clauses are “functionally equivalent
and require the same analysis”).
       {¶ 38} Nonetheless, that precedent has been questioned in at least two
recent decisions. See State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75
N.E.3d 141, ¶ 11 (“the Equal Protection Clause of the Ohio Constitution is
coextensive with, or stronger than, that of the federal Constitution” [emphasis
added]); State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368. In
Mole, Chief Justice O’Connor authored the lead opinion, which was joined by two
other justices, and another justice concurred in judgment only. The chief justice
made clear that the Ohio Constitution is a document of force independent from the
United States Constitution, id. at ¶ 14, and that there are situations in which “the
guarantees of equal protection in the Ohio Constitution independently forbid * * *
disparate treatment” even if the federal Equal Protection Clause does not forbid that
treatment, id. at ¶ 23. Justice French, in a dissenting opinion in Mole that was joined
by Justice O’Donnell, stated that the Ohio Equal Protection Clause may in theory
provide greater protections than those provided by the federal clause but that
holding as much requires “an independent analysis of the equal-protection
guarantee in Article I, Section 2 of the Ohio Constitution premised on its language,
history or early understandings.” Id. at ¶ 117 (French, J., dissenting).
       {¶ 39} Thus, this court’s jurisprudence on the Ohio Equal Protection Clause
has not been uniform.        Given the recent divergence from our traditional
understanding of the clause, it is not unreasonable to suggest that this court should,




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with the benefit of full briefing, thoroughly reexamine the Ohio and federal Equal
Protection Clauses and determine whether they are indeed functional equivalents.
                       III. Testing Functional Equivalence
       {¶ 40} One major problem with the functional-equivalence approach is that
United States Supreme Court precedent regarding some amendments to the United
States Constitution, including the Fourteenth Amendment and its Equal Protection
Clause, is far from static. In the 1960s, the court applied a rational-basis test unless
the statute at issue “classified on the basis of race” or “provided for unequal
distribution of fundamental rights.” William D. Araiza, The Section 5 Power and
the Rational Basis Standard of Equal Protection, 79 Tul. L.Rev. 519, 521-522
(2005). By the end of the 1970s, the court had started applying differing levels of
scrutiny that were “higher” than the rational-basis test to cases involving gender,
illegitimacy, and alienage. Id. at 522. By the mid-1990s, the court was applying
in equal-protection gender cases a standard of review similar to that which it was
applying in equal-protection race cases. Id.
       {¶ 41} As noted above, this court first recognized the Ohio Equal Protection
Clause as the functional equivalent of the federal Equal Protection Clause in 1895.
See Schwartz, 53 Ohio St. at 341, 41 N.E. 579. Plainly, the United States Supreme
Court’s interpretation of the federal Equal Protection Clause has changed
significantly during the 120-plus years that have passed since this court’s first
recognition of functional equivalence. With this in mind, it is arguable that the
Ohio Equal Protection Clause should be interpreted as providing the protections
that the United States Supreme Court had recognized under the federal Equal
Protection Clause until 1895. Moreover, in the future, the United States Supreme
Court may continue to add or subtract from the protections it interprets the federal
Equal Protection Clause as providing.
       {¶ 42} By treating the two clauses as functionally equivalent, this court
delegates its final authority to interpret the Ohio clause to the United States




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Supreme Court, which that court exercises whenever it substantially alters its
interpretation of the federal clause. This “upward delegation” of the duty to
interpret the Ohio Constitution is improper under our federal system and
unconstitutional under the Ohio Constitution. See Article IV, Section 1, Ohio
Constitution. Thus, a strong argument can be made that this court cannot blindly
accept the current, or any new, federal interpretation but instead must independently
determine when interpreting the Ohio Equal Protection Clause whether to follow
the United States Supreme Court’s interpretation of the federal Equal Protection
Clause.
          {¶ 43} Because this court’s recent caselaw on the Ohio Equal Protection
Clause is not uniform, because the Ohio clause has language and a historical
background that are substantially different from those of the federal Equal
Protection Clause, and because the United States Supreme Court’s jurisprudence
on the federal clause has repeatedly shifted since this court first made the
“functional equivalence” determination, a future challenge to this court’s equal-
protection functional-equivalence precedent should be carefully analyzed and
resolved with thorough reasoning.
                                  IV. Conclusion
          {¶ 44} Again, the parties in this case did not challenge this court’s
traditional understanding that the Ohio Equal Protection Clause is the functional
equivalent of the federal Equal Protection Clause. As is proper, the majority
opinion does not conduct an analysis of unraised arguments. I take no position on
whether the arguments proposed above, or any other arguments challenging this
court’s functional-equivalence holdings, would lead me to conclude that the Ohio
Equal Protection Clause is anything other than the functional equivalent of the
federal Equal Protection Clause as currently interpreted by the United States
Supreme Court.       Nonetheless, if such arguments were properly briefed and
submitted to this court, I believe that the court would need to conduct “an




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independent analysis of the equal-protection guarantee in Article I, Section 2 of the
Ohio Constitution premised on its language, history or early understandings,” Mole,
149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, at ¶ 117 (French J.
dissenting).
                               _________________
         Kohnen & Patton, L.L.P., Colleen M. Blandford, and Jordan T. Steiner, for
petitioner J & B Steel Erectors, Inc.
         Patsfall, Yeager & Pflum, L.L.C., Susan M. Salyer, Stephen M. Yeager, and
Stephen J. Patsfall, for petitioners TriVersity Construction Co., L.L.C., and D.A.G.
Construction Co., Inc.
         Beckman Weil Shepardson, L.L.C., Stephanie M. Day, and Kristen M.
Myers; and Goodson & Company and Brett C. Goodson, for respondent Daniel
Stolz.
         Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and
Michael J. Hendershot, Chief Deputy Solicitor, in support of petitioners for amicus
curiae State of Ohio.
         Green & Green Lawyers, L.P.A., Jane M. Lynch, and Jared A. Wagner, in
support of petitioners for amicus curiae Messer Construction Company.
                               _________________




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