Supreme Court Seeks Comments on Proposed Rule Changes
The Ohio Supreme Court is seeking public comment for rule changes requiring legislative approval including allowing for gender neutral wording changes in light of the U.S. Supreme Court’s same sex marriage decision and mandating that judges must find factual support for a plea agreement to a felony crime.
The court posted Monday rule changes recommended by the Commission on the Rules of Practice and Procedure regarding Ohio Rules of Appellate Procedure, Ohio Rules of Civil Procedure, Ohio Rules of Criminal Procedure, and Ohio Rules of Juvenile Procedure.
According to the Ohio Constitution, proposed amendments to Rules of Practice and Procedure must be filed with the General Assembly by Jan. 15, 2016. The Supreme Court can revise and file the amendments with the General Assembly before May 1, 2016. The amendments would take effect on July 1, 2016, unless before that date the General Assembly adopts a concurrent resolution of disapproval.
Publication of the proposed amendments to Rules of Practice and Procedure for public comment at this time does not imply that the Supreme Court endorses or will approve for filing with the General Assembly any or all of the proposed amendments.
Proposed changes include:
Ohio Rules of Criminal Procedure
Criminal Rule. 11—Pleas; Negotiated Pleas in Felony Cases
The Commission proposes an amendment to Crim.R. 11 that would require a determination by the court, on the record, that a factual basis supporting the charges exists—prior to accepting the plea agreement. The proposed amendment only applies to felony matters. Fed. R. Crim. 11 applies to both felonies and misdemeanors.
Criminal Rule 16—Discovery: Right to Copy or Photograph
The Commission recommends an amendment to Crim.R. 16 to put into effect the rule announced in State v. Athon, 2013-Ohio-1956, where the Court addressed the question of when a request for discovery by a criminal defendant triggers reciprocal discovery obligations under Crim.R. 16(H). The amendment establishes a standard designed to allow defense counsel to determine, at the time of filing a public records request, whether that request would trigger reciprocal discovery.
Ohio Rules of Civil Procedure
Civil Rule 4.2, Civil Rule 19.1—Gender Neutral Changes
The Commission recommends amendments to Civ.R. 4.2 and Civ.R. 19.1 be amended as gender neutral where appropriate to comply with the decision of U.S. Supreme Court in Obergefell v. Hodges, 576 U.S. ___ (2015). The proposed changes are limited to making the rules gender neutral, with the exception of non-substantive stylistic changes in Civ.R. 19.1.
Civil. Rule. 4.1—Commercial Carrier Service
The Commission recommends an amendment to Civ.R. 4.1. Civ.R. 4.1(A)(1)(b) which made service of process by a commercial carrier service an alternative to service by United States certified or express mail. The proposed amendment permits the serving party to provide written instruction to the clerk that service be made by mail. This change removes the ability of the clerk to use a commercial carrier for service, when the serving party desires to use mail.
Civil Rule 4.4—Publication Service of Process
The Commission recommends amendments to Civ.R. 4.4 to provide that publication by posting service of process is an appropriate method of service in Civ.R. 65.1 civil protection order proceedings
Civil Rule 5—Service and Filing of Pleadings
The Commission recommends amendments to Civ.R. 5 to conform to the stylistic changes made to the Federal Rules of Civil Procedure in 2007.
Civil Rule 10—Pleadings and Interaction with Rules of Evidence
The Commission recommends amendments to Civ.R.10 that correct an inaccuracy in the prior rule.
Civil Rule 37—Failure to Make Discovery, Sanctions
The Commission recommends amendments to Civ.R. 37. These amendments adopt the 2007 changes to Fed. R. Civ. P. 37.
Civil Rule 54—Judgments, Costs, Availability of Award of Attorney Fees
The Commission recommends an amendment to Civ.R. 54. A new division is added to supersede any application of the decision in State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007–Ohio–5542 to an award of attorney fees.
Civil Rule 62—Stay of Proceedings to Enforce a Judgment
The Commission recommends amendments to Civ.R. 62 creating a new division (A)(1) that will allow for a 14-day automatic stay of execution of judgment after the judgment’s entry; orders or judgments in an action for an injunction or receivership are not subject to automatic stay. This recommended change is consistent with Fed. R. Civ. P. 62(a).
Civil Rule 65.1—Civil Protection Orders
The Commission recommends amendments to Civ.R. 65.1. The amendments provide direction regarding the methods of service in civil protection order proceedings.
Ohio Rules of Appellate Procedure
Appellate Rule 16—limited combining of Statement of the Case and Statement of the Facts
The Commission presents proposed amendments to App.R. 16 to allow a party to combine the Statement of the Case with the Statement of the Facts—when circumstances warrant such a combination.
Ohio Rules of Evidence
Evidence Rule 601—General Rules of Competency, Medical Malpractice Claims
The Commission recommends amendments to Evid.R. 601(D) to clarify the intent of the rule and to harmonize operation with the Ohio Revised Code.
Evidence Rule 803—Hearsay; Absence of a Public Record or Entry, Testimonial Documents and Notice
The Commission proposes amendments to Evid.R. 803(10) to adopt the 2011 federal stylistic changes as well as add 803(10)(b) which is modeled upon amendments made to the Fed.R.Evid. 803(10) after the United States Supreme Court released its ruling in Melendez-Diaz v. Massachusetts, 557. U.S. 305 (2009).
Ohio Rules of Juvenile Procedure
Juvenile Rule 20—Service and Filing of Papers
The Commission recommends amendment of Juv.R. 20 to harmonize with proposed amendments to Civ.R. 5. The proposed amendments to Juv.R. 20 now directly incorporate the three-day requirement consistent with the existing requirement in Civ.R. 5.
Access the text of the proposed Rules of Practice and Procedure amendments. Comments should be submitted in writing to:
Michael Farley, Judicial & Legislative Affairs Counsel
Supreme Court of Ohio
65 South Front Street, 7th Floor,
Columbus, Ohio 43215-3431
or by email to Michael.Farley@sc.ohio.gov
Comments must be received no later than Oct. 29, 2015. 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.
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