DeRolph v. State

[This opinion has been published in Ohio Official Reports at 

83 Ohio St.3d 1212

.]




                          DEROLPH v. THE STATE OF OHIO.
                     [Cite as DeRolph v. State, 

1998-Ohio-301

.]
    (No. 95-2066—Submitted August 24, 1998—Decided September 1, 1998.)
    ON INQUIRIES from the Perry County Court of Common Pleas, No. 22043.
                                  __________________
        {¶ 1} In the within cause, Judge Linton D. Lewis, Jr. has propounded to the
court the following two matters:
        “1.      This Court seeks clarification of the Supreme Court’s order of
March 24, 1997 [

78 Ohio St.3d 193

, 

677 N.E.2d 733

], as to whether the remand in
the case at bar includes both the issues of equal protection and the thorough and
efficient clause of the State Constitution.
        “2.      This Court seeks further clarification as to the proper party to bear
the burden of production, burden of proof and the related issues of the standard of
proof and test to be applied.”
        {¶ 2} The court responds to the foregoing inquiries as follows:
        1. The remand involves the Thorough and Efficient Clause of the Ohio
Constitution and not the Equal Protection Clause.
        2. The state has the burden of production and proof and must show by a
preponderance of the evidence that the constitutional mandates have been satisfied.
        {¶ 3} Wherefore, the court having fully responded, the trial court is
instructed to proceed.
        F.E. SWEENEY and PFEIFER, JJ., concur in Responses 1 and 2.
        DOUGLAS and RESNICK, JJ., concur in part with Response 1 and concur in
Response 2.
        MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur in Response 1
and dissent to Response 2.
                              SUPREME COURT OF OHIO




                               __________________
         DOUGLAS, J., concurring in part.
         {¶ 4} While I concur with the majority as to the Thorough and Efficient
Clause consideration, I would also have the remand include the equal protection
issue.
         RESNICK, J., concurs in the foregoing concurring opinion.
                               __________________
         COOK, J., dissenting in part.
         {¶ 5} For the reasons discussed in my dissenting opinion of August 21,
1998 to DeRolph v. State (1998), 

83 Ohio St.3d 1208

, 

699 N.E.2d 516

, I
respectfully dissent from today’s decision to assign to the state the burden of
proving that its new legislation is constitutional.
         MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
opinion.
                               __________________




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