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In a 4-3 decision the majority opinion, written by Justice Pfeifer, concluded over the vigorous dissents of Justices O'Donnell, Lanzinger, and Cupp, that a contract to pay a woman $20,000 to serve as a surrogate mother was not unconscionable or otherwise "void by public policy" and was therefore enforceable. The majority noted "a lack of a declared public policy for or against surrogacy contracts," and reasoned in a manner greatly deferential to the freedom of adults to enter into contracts, observing that "a written contract defining rights and obligations of the parties seems an appropriate way to enter into surrogacy agreement. If the parties understand their contract rights, requiring them to honor the contract they entered into is manifestly right and just."
In his dissent, Justice Cupp registered his belief that the contract, irrespective of whether it was voluntary, was "contrary to public policy and void." He also made the following remarks on the matter:
- "[T]he issue presented encompasses a socpe broader than simply whether any Ohio statute specifically and expressly bans gestational surrogacy. The real issue is whether the essential nature of the contract * * * runs contrary to the established public policy of this state * * *."
- "Public policy is difficult to define with accuracy [but] is the cornerstone-the foundation- of all Constitutions, statutes, and judicial decisions."
- "I conclude that the contract is contrary to public policies safeguarding children."
- "[I]t is impossible to so precisely separate the conduct of the parties and the object of the payment of money."
- "For [the plaintiff's] argument to be valid, it would be necessary to legally declare that the children do not have a mother. Such a position is untenable."
- "[Although] there is no evidence of improper motive or illicit purpose by any of the parties involved in this matter[,] It is equally clear that each of the parties fo the purported contract is acting out of self-interest * * *. The effect of the majority's holding would permit parties to such a pact to override and to write out the state's traditional oversight role."
- "Enforcing this contract, which is no less than the creation of a child, is likely to open Ohio to being an interstate, and perhaps international, marketplace for gestational surrogacy. * * * Without comprehensive rules of engagement for such activity, preferably prescribed by the legislature, it is not difficult to imagine a developing "marketplace" for multipart, multistate child production contracts."
- "[T]his court should not be an unwitting instrument to opening the door of this state to such an unregulated commercial enterprise."
- "A public policy much more important than money is involved here: the conception and nurturing of children is not just another commercial transaction."
In a 5-2 decision the majority opinion, written by Justice Moyer, invalidated over the strong dissents of Justices Lundberg Stratton and Lanzinger, a contract with a clause that made the forum for bringing a lawsuit under the contract dependent upon the principal place of business of the party to whom the contract was assigned, in the event that it would be assigned. In doing so, the Majority acknowledged that there was no evidence of fraud, that the parties, both business entities, read and understood the agreement, and that enforcing the clause wouldn't deprive either of the parties of their day in court; but found that the clause was "unreasonable" because of a "strong public policy of not haling individuals into foreign jurisdictions without their knowing waiver."
In her dissent, Justice Lundberg Stratton registered the following objections:
- "[T]he majority fails to cite any sound public policy disfavoring the floating forum-selection clause at issue in this case."
- "[T]he majority goes on to hold that the forum-selection clause is unreasonable and against public policy simply because at the time they entered the contract, appellants did not know exactly where they might have to litigate their contract. Nonetheless, that is exactly the agreement the parties made. I see no sound public-policy reason to void the forum-selection clause agreed to by these commercial entities, when there was no fraud or overreaching and the parties were on notice that the contract contained a floating forum-selection clause."
- "The majority notes that this language was clear and was legibly printed on the second page of the two-page contract. There was no effort to conceal the clause. In fact, the majority notes that printed in large type and in all capital letters directly above the signature line of the guaranty on the front page of each contract is the sentence 'You agree to jurisdiction and venue as stated in the paragraph titled Applicable Law of the rental [agreement].'"
- “Absent evidence of fraud or overreaching, a forum selection clause contained in a commercial contract between business entities is valid and enforceable, unless it can be clearly shown that enforcement of the clause would be unreasonable and unjust. * * * [A]ppellants were aware of the possibility that their contract could be assigned and that, due to the floating forum-selection clause, an assignment could change the forum for litigation."
- "The majority acknowledges that there is a valid business reason for including a floating forum-selection provision. Such a clause is a reflection of the realities of the modern-day leasing industry, where negotiable paper involving equipment leasing is bought and sold with regularity. This reality favors a clause that permits an assignee to bring suit in its home forum, thereby enhancing the marketability of the lease. 'Parties to contracts are not benefited by rules that make assignment burdensome. If assignors have to compensate their assignees for having to litigate in an inconvenient forum, they will have to charge a higher price to their customers * * *.'”
- "* * * [T]he forum may change. That is part of the bargain agreed to by the parties."
- "The marketability of commercial paper is dependent on financial institutions being able to sell commercial paper freely. The majority's decision makes no sense in the modern market and will seriously undermine countless contracts with floating forum-selection clauses that have been entered into in Ohio and will reduce the value of commercial paper with such clauses that have been purchased by Ohio institutions."
- In a 4-3 decision, the majority opinion, written by Justice Moyer, concluded over the vigorous dissents of Justices O'Donnell, Lanzinger, and Lundberg Stratton, that the prosecution's failure to allege in the indictment that the defendant had the specific mental state necessary to be convicted for robbery was a "structural error," i.e. an error that deprived the defendant of one of his constitutional rights. Thus any conviction of the defendant could not stand, even though the defendant failed to object to the error prior to trial. The majority noted that "if one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment * * * such a procedure would allow a court to convict him on an indictment essentially different from that found by the grand jury," and that "the state must meet its duty to properly indict a defendant, and we will not excuse the state's error at the cost of a defendant's longstanding constitutional right to a property indictment." Thus, that "a defendant can challenge for the first time on appeal an indictment that omits an essential element of the crime, protects defendants' right to a grand jury indictment," because "the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by a presentment or indictment of a Grand Jury."
- In his dissent, Justice O'Donnell acknowledged that the error was unconstitutional, but asserted that the defendant forfeited the right to object to any such error when he "failed to object at a time when it could have been corrected by the trial court." He noted that "to hold that an error is structural even when the defendant does not bring the error to the attention of the trial court would be to encourage defendants to remain silent at trial only later to raise the error on appeal where the conviction would be automatically reversed."
- In her separate dissent, Justice Lanzinger noted her beliefs that "failure to timely object to a defect in an indictment constitutes a waiver of the issues involved," and that the defendant "has not shown that he was prejudiced in the defense of his case or that he would have proceeded differently had the error been corrected."
Judge William H. Wolff sat on the court in place of Justice Cupp.
Justice Lanzinger wrote the majority opinion, over the strident and lengthy dissent of Justice Pfeifer which interpreted the Ohio statute on incest, and specifically the word "stepchild," in such a manner that resulted in the conviction, imprisonment, and designation as a sexually-oriented offender of a man who had sexual relations with a 22-year-old adult who was his legal stepdaughter. Further, the Court distinguished this case from the U.S. Supreme Court's finding, in Lawrence v. Texas, that a statutory prohibition on homosexual sodomy was unconstitutional. In reaching these conclusions, the Majority offered the following rationales:
- "The plain language of [the statute] clearly prohibits sexual conduct with one's stepchild while the stepparent-stepchild relationship exists. It makes no exception for consent of the stepchild or the stepchild's age."
- "[A]lthough the statute does indeed protect minor children from adults with authority over them, it also protects the family unit more broadly."
- Although the defendant claimed that the statute was unconstitutional as applied to consensual sexual conduct between adults related only by affinity, the Majority held that "Lowe's claimed liberty interest in sexual activity with his stepdaughter is not a fundamental right * * *."
- "Using the rational-basis test, we conclude that, as applied in this case, Ohio's statute serves the legitimate state interest of protecting the family unit and family relationships."
- "Ohio has a tradition of acknowledging the “importance of maintaining the family unit. * * * A sexual relationship between a parent and child or a stepparent and stepchild is especially destructive to the family unit. R.C. 2907.03(A)(5) was designed to protect the family unit by criminalizing incest in Ohio. Stepchildren and adopted children have been included as possible victims of the crime of incest because society is concerned with the integrity of the family, including step and adoptive relationships as well as blood relationships, and sexual activity is equally disruptive, whatever the makeup of the family."
- "'As the “traditional family unit has become less and less traditional, * * * the legislature wisely recognized that the parental role can be assumed by persons other than biological parents, and that sexual conduct by someone assuming that role can be just as damaging to a child.' * * * This reasoning applies not only to minor children, but to adult children as well. Moreover, parents do not cease being parents-whether natural parents, stepparents, or adoptive parents-when their minor child reaches the age of majority."
- "Accordingly, as applied in this case, R.C. 2907.03(A)(5) bears a rational relationship to the legitimate state interest in protecting the family, because it reasonably advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren. If Lowe divorced his wife and no longer was a stepparent to his wife's daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case."
In his dissent, Justice Pfeifer took great exception to the Majority opinion, noting that the legislature's sole intention in passing the incest statute was to protect children, and the facts of this case rendered it as having nothing to do with the "protection of families:"
- Justice Pfeifer cited the statement of the Legislative Service Commission, who drafted the statute, that "The principel on which the first group of offenses is founded is that sexual activity of whatever kind between consenting adults in private ought not to be a crime * * *."
- "The majority reads R.C. 2907.03 as making certain private, consensual sexual relations between two adults illegal. R.C. 2907.03(A)(5) and its legislative history indicate that that statute is designed to protect children, not to criminalize sexual activity between consenting adults."
- "Imbued in R.C. 2907.03(A)(5) is the notion of parental, or quasi-parental, responsibility and control over the victim."
- "The Summary of Am. Sub. H.B. 511, supra, at 14, indicates that it is children and those who are unable to care for themselves that are being protected by the statute. * * * Contrary to the majority's reading of the Legislative Service Commission's Comments to the statute, R.C. 2907.03(A)(5) does not 'protect [ ] the family unit more broadly;' instead, it protects children against a broader class of persons who can exert a parental role." * * * “[S]imply put, [R.C. 2907.03(A)(5)] applies to the people the child goes home to.”
- "A stepparent, who may not even have married his or her spouse until after the spouse's children had reached adulthood, has no legal responsibility to his or her adult stepchildren."
- "The majority writes that the statute 'advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren.' I suspect that the statute was not employed in this case as a means to preserve Ohio's fractured extended families. Rather, the state used R.C. 2907.03(A)(5) as a means to prosecute a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim. R.C. 2907.03(A)(5) provides a shortcut to a conviction. This sort of use of the statute demeans its true purpose. The consent of the alleged victim should remain a valid defense in cases involving adults."
In a 6-1 decision, the majority opinion, written by Justice Moyer, over the ardent dissent of Justice Lundberg Stratton, decided in a case brought by a voter to force his local government to place an issue on the ballot that would have forced the village government to surrender its powers. After collecting enough signatures to do so, the village government refused to certify the issue for the ballot. The voter brought an action approximately 5 months prior to the election that would have forced the local government to do so.
The Majority held that because the date of the election had passed while the voter's case languished in court, the case was now moot, and should be dismissed. The majority further held that the voter did not act dilligently enough in purusing his legal claim where he "waited two and one-half months after filing the mandamus action to request expedited consideration." The court closed by noting a reluctance to issue advisory opinions.
In a very forceful dissent, Justice Lundberg Stratton made the following observations and criticisms of the majority opinion:
- "[The plaintiff] acted diligently by filing his cases * * * more than four months before the November 2006 election. * * * When it became obvious to him that the court of appeals was not going to rule in time for the November election, he appropriately moved for an expedited briefing schedule * * *. [The plaintiff] did all he could to have the court proceed in a timely matter. He could not force the court to do its job timely. He should not have had to resort to a mandamus action in this court in order to force the court of appeals to timely act. The delay is the fault of the court of appeals. A court should give priority to election cases * * *. There is no reason for a court to delay ruling on an election case for ten months."
- "The subject of the petition, to surrender the village's corporate powers, has not expired or become moot [and] the matter should be scheduled for the next appropriate special election date."
- "By declaring the issue moot, the majority sanctions the dilatory conduct of courts that delay ruling, especially in election cases where time is of the essence, and it punishes the public, which is powerless once the challenger tires to get the court's attention with a request to expedite."
In a 5-2 decision, the Majority opinion, written by Justice Lanzinger, concluded that "[Ohio law] does not permit a parent's fundamental right to raise his or her child to be terminated based on mental retardation alone," and that "when determining the best interest of a child, at a permanent-custody hearing, a trial court may not base its decision solely on the limited cognitive abilities of the parent." The Majority reasoned that courts should instead consider factors such as the parents relationship with the child, whether they had ever harmed him, and where the child wished to live, and that there was no evidence to indicate that the child "lacked adequate clothing, food, shelter, or care," while he "performed well in school and displayed appropriate behavior.
In their dissent, Justices O'Connor and Moyer indicated that they would have terminated the parents' custody of their children. They specifically noted that they would have terminated custody of the parents even if they were of average intelligence, given the following:
- "The parents have no real comprehension as to why [their son] was removed from their care."
- "The mother displayed aggressive behavior towards her son."
- The parents displayed "lack of understanding of basic parenting concepts." '
The majority opinion, written by Justice Lanzinger over the strident and lengthy dissent of Justice Pfeifer, interpreted the Ohio statute on incest, and specifically the word "stepchild," in such a manner that resulted in the conviction, imprisonment, and designation as a sexually-oriented offender of a man who had sexual relations with a 22-year-old adult who was his legal stepdaughter. Further, the Court distinguished this case from the U.S. Supreme Court's finding, in Lawrence v. Texas, that a statutory prohibition on homosexual sodomy was unconstitutional. In reaching these conclusions, the Majority offered the following rationales:
- "The plain language of [the statute] clearly prohibits sexual conduct with one's stepchild while the stepparent-stepchild relationship exists. It makes no exception for consent of the stepchild or the stepchild's age."
- "[A]lthough the statute does indeed protect minor children from adults with authority over them, it also protects the family unit more broadly."
- Although the defendant claimed that the statute was unconstitutional as applied to consensual sexual conduct between adults related only by affinity, the Majority held that "Lowe's claimed liberty interest in sexual activity with his stepdaughter is not a fundamental right * * *."
- "Using the rational-basis test, we conclude that, as applied in this case, Ohio's statute serves the legitimate state interest of protecting the family unit and family relationships."
- "Ohio has a tradition of acknowledging the “importance of maintaining the family unit. * * * A sexual relationship between a parent and child or a stepparent and stepchild is especially destructive to the family unit. R.C. 2907.03(A)(5) was designed to protect the family unit by criminalizing incest in Ohio. Stepchildren and adopted children have been included as possible victims of the crime of incest because society is concerned with the integrity of the family, including step and adoptive relationships as well as blood relationships, and sexual activity is equally disruptive, whatever the makeup of the family."
- "'As the “traditional family unit has become less and less traditional, * * * the legislature wisely recognized that the parental role can be assumed by persons other than biological parents, and that sexual conduct by someone assuming that role can be just as damaging to a child.' * * * This reasoning applies not only to minor children, but to adult children as well. Moreover, parents do not cease being parents-whether natural parents, stepparents, or adoptive parents-when their minor child reaches the age of majority."
- "Accordingly, as applied in this case, R.C. 2907.03(A)(5) bears a rational relationship to the legitimate state interest in protecting the family, because it reasonably advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren. If Lowe divorced his wife and no longer was a stepparent to his wife's daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case."
In his dissent, Justice Pfeifer took great exception to the Majority opinion, noting that the legislature's sole intention in passing the incest statute was to protect children, and the facts of this case rendered it as having nothing to do with the "protection of families:"
- Justice Pfeifer cited the statement of the Legislative Service Commission, who drafted the statute, that "The principel on which the first group of offenses is founded is that sexual activity of whatever kind between consenting adults in private ought not to be a crime * * *."
- "The majority reads R.C. 2907.03 as making certain private, consensual sexual relations between two adults illegal. R.C. 2907.03(A)(5) and its legislative history indicate that that statute is designed to protect children, not to criminalize sexual activity between consenting adults."
- "Imbued in R.C. 2907.03(A)(5) is the notion of parental, or quasi-parental, responsibility and control over the victim."
- "The Summary of Am. Sub. H.B. 511, supra, at 14, indicates that it is children and those who are unable to care for themselves that are being protected by the statute. * * * Contrary to the majority's reading of the Legislative Service Commission's Comments to the statute, R.C. 2907.03(A)(5) does not 'protect [ ] the family unit more broadly;' instead, it protects children against a broader class of persons who can exert a parental role." * * * “[S]imply put, [R.C. 2907.03(A)(5)] applies to the people the child goes home to.”
- "A stepparent, who may not even have married his or her spouse until after the spouse's children had reached adulthood, has no legal responsibility to his or her adult stepchildren."
- "The majority writes that the statute 'advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren.' I suspect that the statute was not employed in this case as a means to preserve Ohio's fractured extended families. Rather, the state used R.C. 2907.03(A)(5) as a means to prosecute a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim. R.C. 2907.03(A)(5) provides a shortcut to a conviction. This sort of use of the statute demeans its true purpose. The consent of the alleged victim should remain a valid defense in cases involving adults."
Justice O'Connor authored the majority opinion, which held, over the strident and lengthy dissents of Justices Lundberg Stratton, Moyer, and O'Donnell, that before the state government may fire a government employee to enhance agency efficiency, it must demonstrate, through evidence, that eliminating the employee's position enhances efficiency. Specifically, the majority held that "The Department of Administrative Services did not meet its burden of establishing that efficiency was the reason for the abolishment."
The dissenting opinion, authored by Justice Lundberg Stratton and concurred in by Justices Moyer and O'Donnell rendered harsh criticism of the majority, noting the following::
- "[T]he majority simply finds that the “statement of rationale * * * was fundamentally deficient,” which is to say the court disagrees with the factual basis for the actions of the Ohio Department of Administrative Services (“DAS”). The majority resolves this case on an analysis of the facts, not the law. I respectfully disagree with its factual analysis and its avoidance of the legal issues."
- "I would hold that when an appointing authority abolishes a position as a result of a reorganization for the efficient operation of the appointing authority under [the statute], the appointing authority may satisfy [it] by showing that it reasonably projected that greater efficiency would result, regardless of whether efficiency gains are later realized. A reorganization for 'efficient operation' * * * does not require a public employer to precisely maintain previous levels of service, whether measured by quantity or quality, but rather requires only that the employer reasonably project that the cost savings will outweigh any decrease in productivity."
- "The State Architect's Office argues that it has reduced its costs by 50 percent, but still provides 95 percent of the services it did before it reduced costs. By abolishing Penrod's position, the State Architect's Office eliminated a supervisory position, and the duties of the position were absorbed by other employees. State Architect * * * testified before the board, 'We've been able to maintain our * * * project load and * * * had little or no complaints of any significance from our * * * clientele.' In fact, Booker testified that after the positions were abolished, his office handled 'pretty much * * * the same number of projects [as it had before the abolishments] with * * * half as many people * * * roughly.' To reinstate Penrod to a position that has been abolished injects inefficiency into a reorganization that has proven successful."
- "The appellate court below held, in effect, that increased efficiency had not occurred, because the office had anticipated that the overall level of service would be reduced following the abolishments, and after the abolishment, the office was no longer providing its services at the same level of intensity as before. * * * According to this analysis, if an employer's output is reduced at all, then an abolishment based on efficiency is invalidated, regardless of how much the employer's costs were reduced. I disagree."
- "A public employer may increase efficiency by increasing services without increasing costs or by reducing costs without reducing services. But 'reorganization for the efficient operation' of an office may also include a reorganization that results in a small reduction in the quantity or quality of services at a greater reduction in cost. If the government is not permitted to engage in such a cost-benefit analysis, then greater efficiency will seldom be realized and the size of government will rarely be reduced."
- "I would hold that a reorganization for “efficient operation” under [the statute] does not require a public employer to precisely maintain previous levels of service, whether measured by quantity or quality, but rather requires only that the employer reasonably project that the cost savings will outweigh any decrease in productivity. In my view, the testimony in this case clearly shows that the reorganization cut costs far more than it reduced services, demonstrating that DAS satisfied the Bispeck test for showing that it had reasonably projected that the abolishment would increase efficiency."
- "The record is replete with references to Penrod's capability as facilities planning project manager. By all accounts, Penrod was a good employee, but her job performance is not at issue here. Public employers need flexibility to streamline operations to more efficiently utilize taxpayer dollars, and this is exactly what the statute allows."
The majority opinion authored by Justice Moyer, upheld, over the divergent concurrences of Justices Lundberg Stratton, Pfeifer, and O'Donnell, the conviction of an Ohio man charged with carrying a concealed handgun, where the man had a permit to carry a concealed weapon, immediately advised the officer who initiated the traffic stop that he had an unloaded handgun and a loaded magazine together in a closed case. The majority specifically upheld the conviction because "the ammunition must be located in such a place that it cannot be readily loaded into the firearm." The court reasoned as follows:
- "There are three other means by which Davis could have transported the handgun without violating the statute. The unloaded gun could have been in plain sight on a gun rack; outside the passenger compartment of his vehicle; or in plain sight, stripped or with the action open. Davis chose to have the unloaded weapon in a closed box at his feet. That action alone complied [would not be a crime] unless the weapon was “ready at hand.” It was Davis's decision to include a loaded magazine in the closed box, in close proximity to the handgun and himself, that caused Davis to be in violation of [the applicable statute]."
- [The defendant's] conviction * * * turns * * * on whether his unloaded firearm and ammunition were in such proximity as to make the weapon “ready at hand.”
- Defining “ready at hand” requires more than a simple distance formulation; e.g., that two feet from the firearm is ready at hand while three feet from it is not. Rather, it is a factual determination based upon the location of the weapon, the type of weapon, and the location and configuration of the ammunition. “ ‘Ready at hand’ means so near as to be conveniently accessible and within immediate physical reach.”
- Here, the trial court determined that a loaded magazine, in the same unlocked box as a semiautomatic handgun, located at the defendant's feet was conveniently accessible and within immediate physical reach as to support a finding that the handgun was ready at hand. * * * [W]e will not upset that finding.
In their concurring opinion, authored by Justice O'Donnell, Justices Pfeifer, and Lundberg Stratton, emphasized their reluctance to uphold the conviction. The concurring justices observed that "Notably, the statute fails to indicate where a person may transport the ammunition for the handgun he or she seeks to lawfully transport." The three justices also made the following observations:
- "In an effort to be a law-abiding citizen, [the defendant] complied with [the statute] by unloading his handgun and placing it in a closed case manufactured for the purpose of storing and transporting this weapon, along with the loaded magazine. Upon questioning by the arresting officer, [he] truthfully advised the officer that the case contained a handgun and a loaded magazine. Yet, because the handgun was concealed in the closed case, and because the trial court made an unchallenged factual finding that it was 'ready at hand' because [the defendant] had placed both the handgun and the loaded magazine in the same case, conveniently accessible and within his immediate physical reach, [the defendant] found himself unwittingly in violation of R.C. 2923.12(A)(2)."
- "A predictable, and, in my view, much less desirable, result of today's outcome will be that persons seeking to avoid a violation of either R.C. 2923.12(A) or 2923.16(C) will simply place their unloaded handguns in plain sight on the passenger seat next to them, stripped or with the action open, and place the ammunition in a readily accessible pocket or purse. While these acts would arguably make a weapon more “ready at hand,” such a determination would be meaningless because the weapon would no longer be concealed."
- "In short, I believe that an unloaded handgun transported in a closed gun case with its ammunition presents far less danger to law enforcement officers and the public at large than an unloaded handgun in plain sight with both the ammunition and the handgun readily accessible to the motorist. Accordingly, I reluctantly concur with the majority opinion and urge the General Assembly to further consider the troublesome interplay between these statutes."
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