DeRolph v. State - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as DeRolph v. State, 93 Ohio St.3d 628, 2001-Ohio-1896.]

DEROLPH ET AL., APPELLEES, v. THE STATE OF OHIO ET AL., APPELLANTS.
[Cite as DeRolph v. State (2001), 93 Ohio St.3d 628.]
Constitutional law -- Education -- Schools -- School-funding formula --
Motion to reconsider DeRolph III -- Motion to reconsider granted 
Matter referred to settlement conference presided over by master
commissioner pursuant to S.Ct.Prac.R. XIV(6)(A) before court's ruling
on merits of arguments in motion for reconsideration.
(No. 99-570 -- Submitted October 30, 2001 -- Decided November 16, 2001.)
ORDER on Motion for Reconsideration.

MOYER, C.J. This matter is before us on a motion for reconsideration
filed by defendants-appellants, the state of Ohio, the Ohio Board of Education, the
Ohio Superintendent of Public Instruction, and the Ohio Department of Education
(collectively referred to as "the state"). In its motion, the state first asserts that the
changes to the base cost formula ordered by the court in DeRolph v. State (2001),
93 Ohio St.3d 309, 754 N.E.2d 1184 ("DeRolph III"), "may have been based in
part upon erroneous calculations and data." It urges the court to reconsider our
holding that wealth screens may not be used in the state's school-funding
foundation formula, and argues that "[t]he use of wealth screens is standard
practice throughout school finance and the discipline of statistics generally." The
state further asks us to reconsider our order in DeRolph III that any funding
increases implemented in compliance with that decision be made retroactive to
July 1, 2001.

We have granted the motion to reconsider our decision in DeRolph III.
However, before ruling on the merits of the arguments presented in the motion for

SUPREME COURT OF OHIO
reconsideration, we refer this matter to a settlement conference to be presided over
by a master commissioner pursuant to S.Ct.Prac.R. XIV(6)(A).1

This court has supported and promoted mediation since at least 1989,
when the court formed the Committee on Dispute Resolution. On July 7, 1999,
we adopted S.Ct.Prac.R. XIV(6), which authorizes the court to refer cases to a
settlement conference, at which a master commissioner presides. In practice, the
master commissioner often serves as a mediator.

Adoption of S.Ct.Prac.R. XIV(6) was consistent with Ohio's national
reputation as a leader in promoting mediation and other forms of alternative

1.
S.Ct.Prac.R. XIV(6)(A) provides as follows:

"(A) Referral of Cases for Settlement Conferences.

"The Supreme Court may, sua sponte or on motion by a party, refer to a master
commissioner for a settlement conference any case that originated in the court of appeals, any
appeal from an administrative agency, any original action, or any non-felony case that the Supreme
Court deems appropriate. The master commissioner may conduct the settlement conference in
person or by telephone. At the settlement conference, the parties shall explore settling the case,
simplifying the issues, and expediting the procedure, and may consider any other matter that might
aid in resolving the case.
"(B)
Attendance.

"If a case is referred for a settlement conference, each party to the case, or the representative
of each party who has full settlement authority, and the attorney for each party shall attend the
conference, unless excused, in writing, by the master commissioner to whom the case has been
referred. If a party or an attorney fails to attend the conference without being excused, the Supreme
Court may assess the party or the attorney reasonable expenses caused by the failure, including
reasonable attorney fees or all or a part of the expenses of the other party. The Supreme Court may
also dismiss the action, strike documents filed by the offending party, or impose any other appropriate
penalty.

"(C) Extension of Time to File Briefs.

"On motion by a party, the Supreme Court may, notwithstanding Section 3(B) of this rule,
extend filing deadlines or stay the referred case if the extension or stay will facilitate settlement. A
request for an extension of time shall be filed with the Clerk within the time prescribed by the rules
for filing the brief or other document that is the subject of the request.
"(D)
Confidentiality.

"Unless disclosable by the order entered under Section 6(E) of this rule, statements
uttered during the settlement conference are confidential. Unless all participants consent to
disclosure, no one, including the master commissioner, a party, or a party's attorney, shall disclose
any statement uttered in a settlement conference to the Supreme Court. The Supreme Court may
impose penalties for any improper disclosure made in violation of this provision.

"(E) Settlement Conference Order.

"At the conclusion of the settlement conference, the Supreme Court will enter an
2

January Term, 2001
dispute resolution. Ohio's leadership in recognizing the benefits of alternative
dispute resolution has been evident throughout the state, particularly in the
judicial branch. Moreover, the General Assembly and Ohio governors have
actively supported the adoption of mediation programs.

For example, in 1989, the General Assembly established, by R.C. 179.02,
the Commission on Dispute Resolution and Conflict Management to act as a
resource for Ohioans for the development of "constructive, nonviolent forums,
processes, and techniques for resolving disputes." Commission on Dispute
Resolution and Conflict Management, <http://www.state.oh.us/cdr>. The
commission focuses on educational institutions, state and local government,
courts, and communities, and provides conflict-management training, consultation
and technical assistance in designing dispute-resolution programs, and facilitation
and mediation services. Id. In the public-policy arena, the commission has dealt
with issues as varied as regulatory rulemaking, welfare reform, and environmental
enforcement.

Across the country, court-ordered mediation has been successful, in whole
or in part, in resolving education and other public-policy disputes of a complex
nature--including disputes that have been mired in litigation for years.
In
Minneapolis Branch of the NAACP v. Minnesota and Xiong v.
Minnesota (2000), Hennepin Cty. Dist. Ct. Nos. 95-14800 and 98-2816,
consolidated, unreported, the plaintiffs argued that Minnesota's educational
policies precluded children living in areas of concentrated poverty in Minneapolis
from receiving an adequate education. Anne O'Connor, NAACP, State Settle
Lawsuit over Educational Quality for City Children, Minneapolis-St.Paul Star
Tribune (Mar. 14, 2000), at <http://www.startribune.com>. See Appendix.

appropriate order."
3

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Through court-encouraged mediation, the parties and other necessary
educational entities reached agreement, resolving the dispute by establishing a
four-year program to give Minneapolis families more options for sending their
students to public schools in suburban districts and by directing the state to
implement a report card system for each school. Id.

Urban school districts in Baltimore County, Maryland; Dayton, Ohio; and
Washington, D.C., have avoided litigation by bringing diverse groups of students,
parents, and other citizens together to resolve issues relating to values education
and school-change programs. Michael A. Rebell & Robert L. Hughes, Schools,
Communities, and the Courts: A Dialogic Approach to Education Reform (1996),
14 Yale L. & Policy Rev. 99, 117-118. In addition, school districts in
Harpersville, New York, and Bolivar-Richburg, New York, have used alternative
dispute-resolution techniques to resolve controversies over sex education and
consolidation of school districts. Id.

Complex environmental disputes have also been successfully mediated.
For example, in an early case, the United States Army Corps of Engineers
proposed building a dam on the Snoqualmie River in Washington to deal with
devastating flooding in the region. Mediation in 1974 resulted in an agreement
that provided for a smaller dam at a different site and established a committee to
coordinate planning for the region. Michelle Ryan, Alternative Dispute
Resolution in Environmental Cases: Friend or Foe? (1997), 10 Tul.Envtl.L.J. 397,
399, fn. 4; Gail Bingham, ADR Procedures: Variations on the Negotiation Theme
(1998), SC56 ALI-ABA 265, 294. All parties hailed this as an important victory
for mediation of environmental disputes. Ryan, supra, 10 Tul.Envtl.L.J. at 399,
fn. 4. Similarly, mediation successfully resolved the seventeen-year Storm King
Mountain dispute over the use of the Hudson River for power production. Ryan,
supra, 10 Tul.Envtl.L.J. at 400-401. The utility company, Consolidated Edison
4

January Term, 2001
Company of New York, agreed to forfeit its license and to transfer the site to an
interstate park commission. Id. In addition, all utility companies in the region
agreed to methods that would protect the river's aquatic life. Id. In exchange, all
proceedings among the parties ceased. Id.

Moreover, as this opinion is being written, long-lived antitrust litigation
between the United States and Microsoft is being mediated pursuant to a court
order.

With respect to the cause now before us, we recognize that the complex
legal, political, public-policy, and administrative issues in DeRolph v. State have
presented perhaps the most difficult challenge to the Ohio judiciary, including this
court, in the ten years since the case was filed, and to the General Assembly and
the executive branch, including two Governors. To the best of our knowledge, the
parties to this protracted litigation have never met in an attempt to resolve its
difficult issues. A majority of this court believes that the time is ripe for the
parties, who together represent a comprehensive cross-section of the interests
affected by this litigation, to meet and attempt to reach settlement with the
assistance of a mediator experienced in resolving public-policy disputes.

We are fully aware that we cannot order the parties to settle: we can only
order the parties to accept the opportunity that we are providing to facilitate
serious, realistic efforts to finally resolve the issues that separate them. If
mediation does not produce settlement, we will assume our responsibility to
finally resolve the matter.

A motion for reconsideration has been granted by the court. Both sides
acknowledge in their memoranda in support of and opposition to the motion for
reconsideration that the evidence and one of the briefs filed in DeRolph III
contained inaccurate analysis regarding the cost of funding the base cost formula
with wealth screens eliminated.
5

SUPREME COURT OF OHIO

It is clear from DeRolph III that the justices in the majority coalesced in a
consensus to resolve this long-lived litigation, even while each justice acted with
reservations. No one, including the justices of this court, can predict the ultimate
decision we might reach when reviewing the merits of DeRolph III on
reconsideration. As in so many cases, the parties may well find that mediation is
the best hope for obtaining results acceptable to all while avoiding untold expense
and the continued uncertainty of going forward.

We order as follows:
I
Settlement Conference Ordered

Pursuant to S.Ct.Prac.R. XIV(6), the court refers to a master commissioner
the issues raised in defendants-appellants' motion for reconsideration and any
other issues that the parties and the mediator deem appropriate issues for
mediation. The parties identified below are ordered to appear, through their
counsel, at settlement conferences as set forth below. The cause is stayed pending
completion of the settlement conferences.
II
Parties

For purposes of S.Ct.Prac.R. XIV(6), the parties are identified in
accordance with the amended complaint filed in this action in 1991 as follows:
Plaintiffs-appellees:

Dale R. DeRolph et al.
Defendants-appellants:

The state of Ohio ("through the Ohio General Assembly"),2

2.
The first amended complaint for declaratory and injunctive relief, filed in the Court of
Common Pleas of Perry County, case No. 22043, at 8, alleged, "Defendant State of Ohio, through
the Ohio General Assembly, is required to provide for a system of public education in the State of
Ohio in accordance with the Constitution and laws of the State of Ohio." (Emphasis added.)

By alleging the state of Ohio via the Ohio General Assembly, plaintiffs-appellees
6

January Term, 2001

The Ohio Board of Education,

The Ohio Superintendent of Education,

The Ohio Department of Education.

Although the complaint did not name the Governor of Ohio as a
defendant, as a practical matter, statutory change is effected by the General
Assembly with the active participation of the Governor. Governor Bob Taft has
appeared in this action and filed an amicus curiae brief. Of course, legislation
may be enacted without the concurrence of the Governor when the General
Assembly overrides a Governor's veto, or where a bill presented to the Governor
for signature is neither signed nor returned to the General Assembly within ten
days. Section 16, Article II, Ohio Constitution. However, Governor Bob Taft
clearly has conducted himself as an interested party and may participate as if he
were a named party for purposes of the settlement conference. We therefore
invite Governor Taft to participate as a party for purposes of the settlement
conference.
III
Counsel

For purposes of S.Ct.Prac.R. XIV(6), counsel for the parties are initially
identified as follows:
Plaintiffs-appellees:

Nicholas A. Pittner, Bricker & Eckler, L.L.P., counsel of record for
the plaintiffs-appellees;

effectively made all members of the General Assembly defendants. President of the Ohio Senate
Richard H. Finan and Ohio Speaker of the House Larry Householder have appeared in this court in
support of the state, and members of the minority party in the Ohio House of Representatives and
the Ohio Senate have appeared collectively in support of plaintiffs-appellees.
7

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Ben E. Espy, Ben Espy Co., L.P.A., counsel for amici curiae
members of the minority party of the Ohio House of Representatives and the Ohio
Senate, collectively.
Defendants-appellants:

Assistant Attorney General Mary Lynn Readey, counsel of record
for the state of Ohio, the Ohio Board of Education, the Ohio Superintendent of
Public Instruction, and the Ohio Department of Education;

N. Victor Goodman, Benesch, Friedlander, Coplan & Aronoff,
counsel for Richard H. Finan, President of the Ohio Senate, and Larry
Householder, Speaker of the Ohio House of Representatives; and

John J. Chester, Chester, Wilcox & Saxbe, counsel for Ohio
Governor Bob Taft.
IV
Appointment of Master Commissioner

The court will select and appoint a master commissioner according to the
following procedure:

(A) The following persons, none of whom lives or regularly does business
in Ohio, are identified by the court as candidates for master commissioner:

Howard S. Bellman, 123 East Main Street, Madison, WI 53703;

Patrick Field, Consensus Building Institute, 131 Mt. Auburn Street,
Cambridge, MA 02138;

Professor Eric D. Green, Boston University School of Law and
Resolutions, Inc., 765 Commonwealth Avenue, Boston, MA 02215;

Michael K. Lewis, ADR Associates, LLC, 1666 Connecticut Avenue, NW,
Washington, D.C. 20009;

Judy Mares-Dixon, CDR Associates, 100 Arapahoe Avenue, Suite 12,
Boulder, CO 80302;
8

January Term, 2001

Professor Francis McGovern, Duke University School of Law, Durham,
NC 27708;

Roberta Cooper Ramo, Modrall, Sperling, Roehl, Harris & Sisk, P.A., PO
Box 2168, Albuquerque, NM 87103

Linda R. Singer, ADR Associates, LLC, 1666 Connecticut Avenue, NW,
Washington, D.C. 20009;

Professor Lawrence Susskind, Massachusetts Institute of Technology, 77
Massachusetts Avenue, Cambridge, MA 02139.

Each of these persons has expressed an interest in being named master
commissioner.

(B) The parties may, within ten days of this order, submit to the court a
memorandum not to exceed five pages in length, containing comment on, or
challenges for cause to, the appointment of any of these master commissioner
candidates.

(C) Within ten days of this entry, and upon agreement of counsel for all
parties, counsel may submit the name of any person to be considered for
appointment in addition to the candidates designated in IV(A) of this entry.

(D) The court, upon due consideration of the qualifications of the
candidates and the comments of the parties, will appoint the master commissioner,
whose duty will be to facilitate serious, active settlement negotiations among the
parties.
V
Settlement Conferences

Upon appointment by the court, the master commissioner shall schedule
and conduct the settlement conferences, which may continue from day to day in
the discretion of the master commissioner.
9

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At the first meeting, the parties shall attempt to develop an agreement
governing the mediation process. The agreement may include the following: the
scope of the mediation, the process to be followed in the event of partial agreement
or impasse, and whether additional discovery will be available as part of the
mediation process.

The master commissioner shall schedule additional meetings and thereafter
file with the court an anticipated timeline for completion of the settlement
conferences.

The master commissioner shall have authority, with notice to the parties, to
contact persons outside the mediation process to obtain information, including
experts as needed.
VI
Reports to the Court

The master commissioner shall report to the court no later than fifteen days
from the first meeting with counsel regarding progress toward settlement.

The master commissioner shall issue a final report to the court within six
weeks from the filing of the initial report, unless the master commissioner has
requested and received additional time from the court in which to file a final report.

The reports to the court will not include substantive matters.
VII
Settlement Conference Order

Pursuant to S.Ct.Prac.R. XIV(6)(E), the court will enter an appropriate order
at the conclusion of the settlement conferences. Upon failure of the parties to reach
settlement within a reasonable period of time to be determined by the court, the
court will proceed to dispose of the case on reconsideration.
VIII
Confidentiality
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January Term, 2001

Pursuant to S.Ct.Prac.R. XIV(6)(D), statements uttered during the settlement
conferences are confidential. In addition, the court finds that R.C. 2317.023,3
governing nondisclosure of mediation communications, is applicable to the
settlement conferences.
IX
Costs

3.
R.C. 2317.023 provides:

"(A) As used in this section:

"(1) `Mediation' means a nonbinding process for the resolution of a dispute in which
both of the following apply:

"(a) A person who is not a party to the dispute serves as mediator to assist the parties to
the dispute in negotiating contested issues.

"(b) A court, administrative agency, not-for-profit community mediation provider, or
other public body appoints the mediator or refers the dispute to the mediator, or the parties, engage
the mediator.

"(2) `Mediation communication' means a communication made in the course of and
relating to the subject matter of a mediation.

"(B) A mediation communication is confidential. Except as provided in division (C) of
this section, no person shall disclose a mediation communication in a civil proceeding or in an
administrative proceeding.

"(C) Division (B) of this section does not apply in the following circumstances:

"(1) Except as provided in division (H) of section 2317.02 and division (C) of section
3109.052 of the Revised Code, to the disclosure by any person of a mediation communication
made by a mediator if all parties to the mediation and the mediator consent to the disclosure;

"(2) To the disclosure by a person other than the mediator of a mediation communication
made by a person other than the mediator if all parties consent to the disclosure;

"(3) To the disclosure of a mediation communication if disclosure is required pursuant to
section 2921.22 of the Revised Code;

"(4) To the disclosure of a mediation communication if a court, after a hearing,
determines that the disclosure does not circumvent Evidence Rule 408, that the disclosure is
necessary in the particular case to prevent a manifest injustice, and that the necessity for disclosure
is of sufficient magnitude to outweigh the importance of protecting the general requirement of
confidentiality in mediation proceedings.

"(D) This section does not prevent or inhibit the disclosure, discovery, or admission into
evidence of a statement, document, or other matter that is a mediation communication but that,
prior to its use in a mediation proceeding, was subject to discovery or admission under law or a
rule of evidence or was subject to disclosure as a public record pursuant to section 149.43 of the
Revised Code. This section does not affect the admissibility of a written settlement agreement
signed by the parties to a mediation or the status of a written settlement agreement as a public
record under section 149.43 of the Revised Code."
11

SUPREME COURT OF OHIO

Fees and expenses of the master commissioner, as authorized by the court,
will be charged as costs to be divided equally by the parties.
So ordered.

DOUGLAS, PFEIFER and LUNDBERG STRATTON, JJ., concur.

DOUGLAS, J., concurs separately.

RESNICK, J., dissents.
F.E. SWEENEY, J., dissents.

COOK, J., dissents.
__________________

DOUGLAS, J., concurring. I concur in the judgment of the majority. I
write to make just three points.
I

Justice Resnick's dissent herein seems to preclude consideration in
mediation of the issues of overreliance on local property taxes and a complete
systematic overhaul of our state's school-funding system. I do not agree, and in
fact I voted for reconsideration so that these very issues could be raised in yet
another forum in an attempt to make right what has, for so long now, been wrong.
As the majority opinion makes clear, "the court refers to a master commissioner
the issues raised in defendants-appellants' motion for reconsideration and any
other issues that the parties and the mediator deem appropriate issues for
mediation." (Emphasis added.) Neither side or their various supporters have been
shy thus far in presenting and arguing their positions. The plaintiffs have
consistently argued, and I have agreed and continue to agree, that what is
necessary is a complete overhaul of the funding system including an end to heavy
reliance on local property taxes. There is no reason to suspect that in mediation
they would become any less forceful in seeking their goals.
II
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January Term, 2001

There has been much discussion and reporting concerning the dollar figure
that DeRolph III requires. In the defendants' motion for reconsideration they say:
"The State seeks reconsideration in the interests of using good numbers and good
math. As we have learned, the Court's changes may have been based in part upon
erroneous calculations and data." While this statement by the state may be at least
partly accurate, it is now time for the whole story to be told on this issue.

On January 25, 2001, this court ordered that "the parties file any evidence
they intend to present as early as practicable but no later than June 15, 2001."
DeRolph v. State (2001), 91 Ohio St.3d 1225, 741 N.E.2d 533. Implicit in that
order was the notion of discovery pursuant to the Civil Rules. Plaintiffs sought
discovery, and the defendants refused to cooperate. Plaintiffs filed a motion to
compel, and it was necessary for this court to order the defendants to comply with
the Rules--the same as any other parties involved in litigation. That order was
entered on May 11, 2001. DeRolph v. State (2001), 91 Ohio St.3d 1274, 747
N.E.2d 823. That date was just a few weeks before oral argument was scheduled
to be heard on June 20. DeRolph v. State (2001), 91 Ohio St.3d 1225, 741 N.E.2d
533.

The record before us reveals that the Ohio Department of Education's
Office of Policy Research and Analysis generated, and apparently issued, a
revised and more comprehensive document dated May 2, 2001, that contains all of
the districts identified as model districts in the fiscal year 1999 with the per-pupil
base cost deflated by factors ranging up to eighteen percent and alternately by
factors only up to 7.5 percent. Likewise, the Legislative Service Commission
generated a document, also dated May 2, 2001, that contains additional
information that is necessary to accurately determine the base cost of the one
hundred twenty-seven model districts. Had these documents or the underlying
data upon which they are based been timely made available to the plaintiffs,
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Russell Harris, whose affidavit both parties now acknowledge contains errors,
would have been advised and there would have been no confusion over the issue
of which figures were accurate.

The state, having thwarted the plaintiffs' attempts at discovery of the
information relied upon by the state in preparing the education budget, now wants
to assert that we, the court, were given inaccurate information, that our math skills
are poor, and that we were confused. The state does not come with clean hands.

As to the dollar figure involved in DeRolph III, I want to make clear that I
knew that over the current and next biennium the additional funds required,
including parity aid, would approach $2 billion and in our deliberations I so
stated. For anyone willing to do the math, my concurring opinion in DeRolph III
bears this out. Id., 93 Ohio St.3d at 332-334, 754 N.E.2d at 1206-1209 (Douglas,
J., concurring).

I also knew, however, that that amount, or even the $300 to $500 million
that some seem to think was being ordered, was not within the reach of the
General Assembly to allocate either because of the lack of funds or the
unwillingness to do so. It was my hope then that the order would instead move
the General Assembly to bring about the systematic overhaul and restructuring
required by DeRolph I and DeRolph II.
III

The state has filed, and we have granted, a motion to reconsider our
decision in DeRolph III. With the vote on reconsideration all members of the
court have, at one time or another, now been in the majority on one or more
phases of the case. This in itself is curious, but I will leave it to others to
speculate why, for each of the seven of us, that has occurred.

It is also curious that one of the dissenters, who seems to say that DeRolph
III is the worst case in the history of civil jurisprudence, votes not to reconsider or
14

January Term, 2001
even to give the parties a chance to work out their differences. This is also true of
the plaintiffs, who, in their memorandum opposing reconsideration, say that "[t]he
court's `compromise' leaves the overarching unconstitutionality of the funding
system intact and the promise of DeRolph I and DeRolph II--and the Ohio
Constitution--unfulfilled" and that "plaintiffs renew their request to the Court to
condemn once and for all this irrational methodology and again require the State,
as the Court did in DeRolph I and II, to develop a funding system that will assure
all of Ohio's public school students the resources and educational opportunities
they need to compete and succeed in the twenty-first century." Having so
eloquently stated their position, the plaintiffs then urge us not to reconsider. At
best, the message sent is utterly confusing.
IV

I concur in the order of mediation. I fervently hope that such a procedure
will resolve the issues. If, however, that does not happen and the case is returned
to our active docket it will, I believe, be up to those who say that DeRolph III is so
bad to fashion a decision and opinion that can garner the four votes necessary to
take the next step.
__________________

ALICE ROBIE RESNICK, J., dissenting. I am compelled to take a position
adverse to that of today's majority. This is not because I oppose mediation of this
dispute, but because I believe that the timing of the majority's order is
incongruous. To be mediating this matter at this time signifies only that the
schoolchildren of Ohio have suffered yet another loss. Once again, the state's
educational system is faced with the prospect of further tweaking, while the
fundamental changes to the overall system will be lacking.

As this court has emphatically pointed out several times, our state's
school-funding system has been plagued by an overreliance on local property
15

SUPREME COURT OF OHIO
taxes throughout this litigation. This dependence continues unabated and remains
the key obstacle to the system being transformed into one that is thorough and
efficient. The situation is further exacerbated by the recent downturn of the
economy. The state is without additional funds to distribute to school districts
unless it once again cuts funds for other much-needed and deserving programs,
such as higher education.

Today's majority opinion reiterates that, as this court announced on
November 2, 2001, a majority of this court has agreed to grant the state's motion
for reconsideration of the decision in DeRolph v. State (2001), 93 Ohio St.3d 309,
754 N.E.2d 1184 ("DeRolph III"). The justices who composed the court's
majority in that decision, concluding that "no one is served by continued
uncertainty and fractious debate," openly acknowledged that they had united in
consensus primarily to (ironically) terminate this court's role in this ongoing
dispute. Id. at 311, 754 N.E.2d at 1190. Thus, the majority decision in DeRolph
III was more of a political compromise than a true judgment on the merits of the
remedial legislation enacted by the state in response to our earlier decisions in this
matter. Instead of issuing a judgment in DeRolph III, the majority in effect forced
a pragmatic compromise on the parties, even though the parties had sought no
such compromise.

In my dissent in DeRolph III, I questioned whether such a resolution of the
case was within the scope of this court's authority, and also questioned the
wisdom of the majority's mandated solution. Id., 93 Ohio St.3d at 344-375, 754
N.E.2d at 1216-1241. As today's pronouncement by the majority demonstrates, it
is evident that the majority opinion in DeRolph III was just another chapter in the
ongoing saga of this case, and was not the end-all of this litigation that the
majority fervently had hoped it would be.
16

January Term, 2001

Its own compromise solution apparently having failed, the majority now
turns to mediation as the next hopeful alternative for resolution of this
controversy. I would join all members of this court in being pleased if mediation
would indeed succeed, and I do not wish to be pessimistic about the prospects of
mediation. However, I must point out that there are characteristics of this case
that raise serious questions regarding whether mediation presents a realistic
prospect for a truly satisfactory conclusion to this dispute. If there is no practical
possibility that mediation can lead the parties to a settlement of this dispute, the
majority's order does little more than delay the inevitable return of this matter to
the forefront of our attention.

I do not disagree with the majority's general statements on the value of
mediation. Mediation has been employed with great success in resolving a wide
range of disputes, including leading parties in some extremely complex cases to
settle their differences before litigation was resorted to. It is possible that
mediation could have been employed in the early years of this litigation, perhaps
when this case first was filed in common pleas court in 1991. Mediation may
have even been useful when this case was first argued before this court. However,
as this litigation has proceeded, and as the various remedial plans have been
enacted by the General Assembly and found to be deficient by this court, the
parties have seemed to become less and less inclined to compromise. Today the
parties on each side are firmly entrenched in their positions. The state is
financially strapped and the plaintiffs are in need of greater expenditures if a
remedy that satisfies our Constitution is to be obtained.

While I do not oppose the concept of mediation, I do oppose the way the
majority has, with its decision in DeRolph III and its order today, established the
overall climate in which mediation will be conducted. Throughout the entire
course of this case, it has been clear to me that only a complete systematic
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overhaul of our system of funding schools can bring our educational system in
compliance with our constitutional mandate of a "thorough and efficient system of
common schools," Section 2, Article IV, and I have consistently held that
position. Absent a complete overhaul, even an injection of significantly more
money into the system than the defendants have been willing to make, or the
majority was willing to order in DeRolph III, will fail to satisfy our Constitution.
The present and foreseeable future budgets do not contain the funds to comply
with the original mandates of DeRolph v. State (1997), 78 Ohio St.3d 193, 677
N.E.2d 733 ("DeRolph I"), and DeRolph v. State (2000), 89 Ohio St.3d 1, 728
N.E.2d 993 ("DeRolph II"); therefore, only a revision of the entire funding system
will suffice. If a systematic overhaul is not an issue in the mediation, a permanent
and lasting remedy will not be obtained. Any mediated solution will only be
transitory.

The concurring opinion contends that the issues of overreliance on local
property taxes and a complete overhaul of the funding system will also be within
the scope of the matters for consideration in mediation. That may very well be the
desire of the plaintiffs (and of the concurring justice), but it is questionable
whether the defendants will be inclined to mediate issues that they have
steadfastly refused to discuss for more than ten years. The defendants have also
disregarded the unmistakable rulings of this court on those issues that were
entered in DeRolph I and II. This issue of transforming the basic funding system,
of necessity, requires the participation of the Governor and every member of the
General Assembly, not simply a select group facilitated by an individual from
outside the state of Ohio.

Moreover, given that the majority in DeRolph III mandated a compromise
that allowed the state to dispense with any overhaul of the system whatsoever in
exchange for an unsatisfactory increase of state expenditures within the contours
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January Term, 2001
of the existing faulty system, some members of this court have sent a message that
money is the only issue in this case. Therefore, the dispute to be mediated may
now be unduly limited to merely trying to compromise over how much additional
money the state should be required to spend. The state may only be willing to
mediate a reduction in funding from the number the majority in DeRolph III has
now apparently backed away from. While the plaintiffs should continue to seek
the systematic overhaul of the school-funding system, the current parameters of
this court's orders seem to preclude that as a realistic possibility. Until an
overhaul of the system is accomplished, there is no hope for adequacy of funding,
since the state has no additional funds to appropriate to our schools from an
already overburdened state budget.

I fear that, as the Supreme Court of New Hampshire stated in response to a
motion to compel mediation in that state's school funding litigation in Claremont
School Dist. v. Governor (1998), 143 N.H. 154, 159, 725 A.2d 648, 651, "the oral
arguments before us in this matter made it clear that mediation is an impractical
solution." It appears that many of the same concerns that caused the Claremont
court to reach that conclusion are also present in this case.

For all the foregoing reasons, I adhere to my original position, as
expressed in my dissent in DeRolph III, that we should find that the state has
fallen short in its recent efforts to rectify the school-funding dilemma. We should
return this matter to the General Assembly for further action by that body, giving
them additional time to actually overhaul the entire system. If the entire school-
funding system was overhauled, including the elimination of overreliance on local
property taxes, there would be no need to make further cuts to other segments of
state government. Because the majority does not follow that course of action, I
dissent.
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SUPREME COURT OF OHIO

COOK, J., dissenting. I respectfully dissent from the majority's order
referring this cause to mediation.

I voted to grant the motion for reconsideration based on my view that the
court should have dismissed this case from the outset. Our reconsideration
procedures enable those members in the majority to rectify an error and afford those
in dissent the means to support such action. Today's decision to refer this cause to
court-ordered, court-supervised settlement proceedings continues to inject this court
into matters beyond the scope of the judicial function, thereby ignoring the many
errors that we could correct.

My objections to this case and to the actions of this court are well
documented. See DeRolph v. State (2001), 93 Ohio St.3d 309, 380-383, 754 N.E.2d
1184, 1244-1247 (Cook, J., dissenting). I continue to adhere to these objections.
The political question doctrine ought to have steered this court away from becoming
embroiled in the public policy debate regarding school funding and budgeting
priorities. See id. at 380-381, 754 N.E.2d at 1244-1245. Instead, various majorities
of this court have willfully encroached upon the functions of the legislature,
expanded this court's jurisdiction in contravention of the Ohio Constitution, and
modified our rules of practice and well-established legal doctrines on an ad hoc
basis. This court's continuing desire to use judicial power to achieve the public
policy goals of a majority of its members lacks legitimacy.

The only action that this court should take--because it is the only action
legitimate under law--is to dismiss this case.
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