Provens v. Stark County Board of Mental Retardation & Developmental Disabilities

594 N.E.2d 959, 64 Ohio St. 3d 252
CourtOhio Supreme Court
DecidedJuly 29, 1992
DocketNo. 91-1412
StatusPublished
Cited by79 cases

This text of 594 N.E.2d 959 (Provens v. Stark County Board of Mental Retardation & Developmental Disabilities) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Provens v. Stark County Board of Mental Retardation & Developmental Disabilities, 594 N.E.2d 959, 64 Ohio St. 3d 252 (Ohio 1992).

Opinions

Holmes, J.

The plaintiff-appellant’s complaint alleged a violation of her state constitutional rights. Although she did not specify in her complaint what rights were allegedly violated, the thrust of the allegations indicate that Section 11, Article I of the Ohio Constitution was the major basis of plaintiff’s claims. This section provides:

“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * * ”

[255]*255This constitutional provision does not set forth an accompanying cause of action for a violation of the right of free speech. And, parenthetically, no other constitutional provision relied upon by the appellant provides an individual cause of action for an alleged violation of such constitutional right. Additionally, the Ohio General Assembly has not authorized such an action. Further, this court has never pronounced it to be the common law of this state that a public employee has a private cause of action against her employer to redress alleged violations by her employer of policies embodied in Ohio’s Constitution. This is precisely the new common law the appellant seeks this court to pronounce, even if other administrative remedies (adequate or inadequate) might also be available. Appellant argues that any such alternative remedies only supplement, and do not replace, a plaintiff’s right to bring a civil action to enforce constitutional rights.

In resolving the issues presented, we must be mindful of some general principles regarding the exercise of judicial discretion. When rights are invaded or violated, the law generally provides a remedy. When rights are not expressly provided by statutory law, courts may in given instances fill the void, looking to any legislative policy or statutory scheme within the area of concern. Even though this court is empowered to grant relief not expressly provided by the legislature, and may grant relief by creating a new remedy, we shall refrain from doing so where other statutory provisions and administrative procedures provide meaningful remedies.

The United States Supreme Court has addressed its judicial role in the type of case presently before us on a number of occasions. One of the more recent cases is that of Bush v. Lucas (1983), 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648, where the court considered whether a private claim for damages could be stated by a federal employee for an alleged violation of his First Amendment rights. In Bush, the plaintiff, a federal aerospace engineer, filed a complaint against his employer, the George C. Marshall Space Flight Center, to recover for alleged defamation and retaliatory demotion. He alleged that his demotion was the result of his having made statements to the news media which were highly critical of the center.

Justice Stevens, writing for the court, assumed for purposes of the court’s decision that the federal employee’s First Amendment rights had been violated by adverse personnel action. The court also assumed that the civil service remedies available to him were not as effective as a tort-damages remedy and would not fully compensate him for the harm he had allegedly suffered. Additionally, the court acknowledged that Congress had not expressly authorized the damages remedy sought by the petitioner, nor had Congress expressly precluded the creation of such remedy. The court then proceeded to review [256]*256all the factors relevant to the petitioner’s claim that a right of private action should be made available for the violation of his constitutional rights. In this regard the court observed:

“Given the history of the development of civil service remedies and the comprehensive nature of the remedies currently available, it is clear that the question we confront today is quite different from the typical remedial issue confronted by a common-law court. The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. * * * ” 462 U.S. at 388, 103 S.Ct. at 2416-2417, 76 L.Ed.2d at 664.

The Bush court in essence concluded that it must make a remedial determination, paying particular heed to any special factors counseling hesitation before authorizing a new remedy. Accordingly, the court stated that:

“Petitioner asks us to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors. Because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy.” 462 U.S. at 368, 103 S.Ct. at 2406, 76 L.Ed.2d at 651.

The United States Supreme Court has generally exercised extreme caution in reviewing cases asserting a “constitutional tort” theory cause of action. Such actions have been held viable against federal officials for a violation of Fourth Amendment rights (an illegal search and seizure by federal narcotics agents), Bivens v. Six Unknown Fed. Narcotics Agents (1971), 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619; for a violation of Fifth Amendment rights (sex discrimination against a congressional employee), Davis v. Passman (1979), 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846; and for a violation of Eighth Amendment rights (failure to provide proper medical attention to a federal inmate), Carlson v. Green (1980), 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15. In all these cases, sometimes referred to as “Bivens actions,” the Supreme Court found no “special factors counselling hesitation in the absence of affirmative action by Congress,” Bivens, 403 U.S. at 396, 91 S.Ct. at 2005, 29 L.Ed.2d at 626; no explicit statutory prohibition against the relief sought, and no exclusive statutory alternative remedy, Davis, 442 U.S. at 246-247, 99 S.Ct. at 2278, 60 L.Ed.2d at 863; Carlson, 446 U.S. at 18-20, 100 S.Ct. at 1471-1472, 64 L.Ed.2d at 23-25.

[257]*257Various state courts presented with the legal issue of the validity of an individual’s cause of action for damages for an alleged violation of constitutionally protected rights have followed the rationale of the Bush decision. The plaintiff in Walt v. State (Alaska 1988), 751 P.2d 1345, for example, was a state employee subject to the General Governmental Unit Collective Bargaining Agreement. Plaintiff, a development specialist for the Department of Commerce and Economic Development, was discharged as a result of remarks made at a conference at which the plaintiff represented that department. The plaintiff pursued a grievance through his collective bargaining representative, and was ultimately ordered reinstated.

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Cite This Page — Counsel Stack

Bluebook (online)
594 N.E.2d 959, 64 Ohio St. 3d 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/provens-v-stark-county-board-of-mental-retardation-developmental-ohio-1992.