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June 01, 2017


An inside look at the art of explaining why the winners of a judicial determination are wrong.

Hon. Paul E. Pfeifer with Robert L. Burpee

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Blind belief in authority is the greatest enemy of truth.

—Albert Einstein

Dissenting is an essential part of being a justice. Even the most mundane, go-along-to-get-along justice is going to disagree with fellow justices from time to time. Over the course of 24 years, I (Justice Pfeifer) was fortunate to have precious few mundane judicial colleagues, but I did encounter many who were wrong and I did have occasion to try to correct them. In essence, a dissent is an attempt by someone on the losing side of a judicial determination to convince the other side that it is wrong.

Of course, being on the winning side of a judicial determination does not mean that one is right, that the case is correctly decided, or that the outcome is just. What it means is that one is in the majority. On our court, being on the winning side had nothing to do with right or wrong, precedent or principle; it had everything to do with getting three justices to agree with you.

When I discussed that situation early in my judicial career—that there is no right answer, that there is only a majority answer—I was accused of being “political.” But it isn’t politics; it’s pragmatics. Whether maintaining a centuries-old precedent or overturning it, regardless of whether the “right” legal answer is reached, four votes wins and three votes loses. Across the decades, I worked with many justices. Often they came to the court thinking that being in the majority means being right. But it doesn’t. All it really means is having at least four votes.

The bottom line is that there isn’t always an objectively right answer. Often there is one, especially when addressing statutory or administrative provisions. When our court voted 7–0 on a case, it is almost certain that we reached the right result based on the law and facts before us. But when even just one of us dissented, that means that at least one smart, legally astute person thought otherwise and, thus, that the majority might not be right. Not that it matters.

The Best Dissents

As it happens, the very best dissents are consigned to the dustbin of history. That’s because the most effective dissents aren’t dissents at all, though they originated as dissents. Persuasive dissents convince someone on the initial prevailing side to switch votes. If enough votes switch, the dissent is no longer a dissent.

An extreme example of this happened a number of years ago. Our court voted a case off the calendar by a vote of 7–0. Although 7–0 usually means we were right, it doesn’t always. After the court had voted in conference, my clerks and I discussed that particular case. I decided to hold the case, meaning that the court’s decision would not be released as scheduled. Meanwhile, we worked on a strongly worded dissent, designed to attract attention—not votes—and distributed it within the court. The dissent was so vituperative that I ended up apologizing to the author of the majority opinion for its tone, though not for its substance. Given my dissent, the vote stood at 6–1. That meant that the court just might not be right.

Another justice decided to write a more moderate dissent, designed to attract votes. When it was distributed to the court, the vote was 5–2. At the next conference, we discussed the case and voted again. The outcome? 7–0, but this time 7–0 the other way. That meant, of course, that we were right: 7–0 always means that the court is right, right? But look how variable “right” can be. One day we voted 7–0 to reverse; soon thereafter, on the same case, we voted 7–0 to affirm. And my vigorous dissent, which had started it all, never saw the light of day and never will. Now, that was a good dissent.

It’s not that unusual for a case to “flip.” After hearing oral arguments, we held preliminary votes, determined who was in the majority, and assigned a justice in the majority to draft a majority opinion. Often the vote was close. Any time an initial vote was 4–3, it was ripe to flip because only one of the four justices in the majority was needed for the vote to come out 4–3 the other way. Some justices on our court kept track of flips, as if it were a badge of honor to change the outcome of a case. It isn’t, primarily because flipping doesn’t mean you actually are right; it just means that you have four votes. Moreover, the reasons cases flip vary dramatically. It’s almost never because the original draft of the majority opinion is poorly crafted. Still, it feels good to flip a case your way and it’s painful when a case flips away from you.

Another type of effective dissent convinces the author of the majority opinion to change certain parts of the opinion, though without affecting the outcome. For example, some opinions are crafted with a broad view of the legal issue presented. Then an effective dissent can force the majority to more narrowly tailor the opinion and leave for another day the broader issues. Those dissents usually disappear. Having served their purpose, they retreat to a hidden file or to the shredder, and the seeming dissenter joins the more narrowly framed majority opinion.

Thus, a problem with discussing the concept of unusually effective dissents is that they aren’t available as examples. Dissents that flip a case or cause a change in the majority opinion aren’t published and don’t appear anywhere. However persuasive they might have been, those dissents are not part of the public record, though they do remain part of the court’s institutional memory.

Ineffective Dissents

Sadly, that means that all of the specific dissents I’m going to address here, which were published, were ultimately ineffective. As witty, scathing, or legally correct as they might have been, they failed. They did not alter the outcome of the case. Although dissenting can be fun and although numerous justices have been beloved for their clever dissents, those too are good examples of ineffective dissents. I have written a few dissents that engendered chuckles or head shakes, but—though a joy to write—they didn’t capture many votes. At best, they may have served some salutary purposes.

Thus, even good humor may be utterly toothless. In Hughes v. Ohio Department of Commerce, 114 Ohio St. 3d 47 (2007), the majority opinion minimized the losing party’s argument by stating the proverbial “what is good for the goose is good for the gander.” In dissent, I noted that although that might be true, “what is sauce for the goose may be sauce for the gander but is not necessarily sauce for the chicken, the duck, the turkey or the guinea hen.” Id. ¶ 23 (quoting The Alice B. Toklas Cookbook).

That sort of dissenting comment often causes the author of the majority to make a change that undermines the language of the dissent. I lost many good lines to that very maneuver. To her credit, Justice Lanzinger found my quote amusing and insisted on leaving intact her language in the majority opinion so that my dissent could remain. But I never forgot that although my words may have generated a few laughs, she had five votes and I did not.

Some dissents are redundant but not without meaning. I believe that sovereign immunity contravenes the Ohio Constitution and I said so many times. I cited my own dissents on that point repeatedly, and in 2007 I cited three different cases in which I had dissented to the application of sovereign immunity. A year later, I wrote in dissent: “No matter how many times this court explains why the state should be treated differently from other defendants, it doesn’t make sense.”

If I were still on the bench, I would continue citing my own dissents on this point until the cows come home. That nobody has agreed with me doesn’t mean I’m wrong. And it doesn’t mean that the court won’t eventually change its mind. It just didn’t do so when I was there.

Perhaps I should take comfort in this: In 1994, our court overruled its 1977 precedent and adopted the position of the dissenting opinion. Unfortunately, the vindication of that 1977 dissent came 16 years after the dissenting justice had passed away. I hope to live to see the eradication of sovereign immunity. A guy can dream, can’t he?

Some dissents eviscerate the majority opinion without any discernible effect. In Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468 (2007), the court sanctioned caps on damages in tort cases. At least twice before, the court had refused to do so, and one of those earlier cases had been written by the author of the majority opinion in Arbino. The authority on which the Arbino majority relied was incredibly weak, and limits on damages patently and obviously infringe on the constitutional right to a remedy, which has been a revered part of the Ohio Constitution since the dawn of statehood.

I examined each of the cases the majority cited as authority and stated without exaggeration (because, sadly, it wasn’t necessary) that the majority had reached its conclusion “by relying on (1) an irrelevant case, (2) remittitur, which supports a contrary conclusion, (3) a patently superficial argument, (4) a policy-trumps-the-Ohio-Constitution argument, (5) an unexplained argument that two prior cases are distinguishable, and (6) an irrelevant citation of a federal trial court case.” Arbino, 116 Ohio St. 3d, ¶ 173.

For two simple reasons, the majority opinion did not address any of my arguments. First, it couldn’t because I was right (at least, in the abstract). And, second, it really didn’t matter. The majority had the votes and they knew it. I did not, and they knew that too. Legal reasoning had nothing to do with it.

Controversial Dissents

One of the most controversial dissents I ever wrote garnered almost no attention. It was unconventional, it trammeled over a century of precedent, and it is spot-on. In Ohio Grocers Ass’n v. Levin, 123 Ohio St. 3d 303 (2009), our court decided that, despite a directly contrary constitutional provision, the state could enact an excise tax based in part on the sale of food. In dissent, I wrote that the “court has once again cobbled together incongruent cases with an implausible rationale to conclude that a straightforward provision of the Constitution is inapplicable to the situation before it.” Id. ¶ 64 (citing Arbino).

The majority reached its conclusion largely because it could not overcome the presumption that legislative enactments are constitutional. As a former longtime member of the Ohio Senate, however, I am well aware that the legislature does not always pay great heed to whether a particular bill is thought to be constitutional. Through the years, I learned that many members of the Ohio legislature count on the Ohio Supreme Court to ascertain whether a law is constitutional. Most of our legislators are unaware of the presumption of constitutionality or the impact that it has on our court’s analysis.

Although I had always been troubled by the presumption of constitutionality, I never had examined its historical roots. Once I did, I was appalled. The great presumption, which likely has been cited by every court in the country, originated—at least in Ohio—“from a fallacy: that a conflict between a constitutional provision and a statute is the same as a conflict between two statutes.” Levin, 123 Ohio St. 3d, ¶ 70. But that, of course, is absurd. The presumption of constitutionality also rests on the presumption that the legislature carefully considers the constitutionality of its enactments, but the dubiousness of that presumption was noted over 140 years ago in Ohio. See State ex rel. Atty. Gen. v. Cincinnati, 20 Ohio St. 18, 33–34 (1870).

Based on my experience as a state senator and on my conversations with Ohio politicians since then, that dubiousness endures. We should not presume that harried state legislators, who often have other jobs, are as attuned to constitutional intricacies as supreme court justices and their law clerks.

Chief Justice Marshall, who authored Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), which embedded in our jurisprudence the very concept of judicial review, wrote that “it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”

Playing off his language, I concluded my dissent in Levin by stating that “[i]mplication and conjecture are the building blocks of the majority opinion. Clear and strong conviction that an excise tax collected by the state based on the sale of food is prohibited by Section 3, Article XII of the Ohio Constitution flows naturally from any fair reading of its provisions.” Levin, 123 Ohio St. 3d, ¶ 81. It was nonetheless a solo dissent, utterly lacking in effect. If I’m lucky, maybe I planted a seed for the future.

Not all of our cases, and therefore not all of my dissents, implicated great constitutional questions. Sometimes, we were mired in the nitty-gritty of factual analysis. In State v. Jordan, 104 Ohio St. 3d 21, 32 (2004), the majority upheld the conviction of a defendant who had been arrested based on an anonymous tip and the fact that his companion fled upon seeing police officers. In dissent, I wrote:

The determinative factor according to the majority opinion is the fact that Jordan’s companion fled the scene. Absent that, Jordan’s unintelligible shout is just another unintelligible shout, not an incriminating one. Absent his companion’s flight, Jordan’s location does not suggest that he was engaged in criminal activity. . . . Despite the majority opinion’s protestation to the contrary, this case is about imputing one person’s evasive conduct to another person because of proximity. I would hold, pursuant to Section 14, Article I of the Ohio Constitution, that when police officers respond to an anonymous tip that does not establish that the tipster has “knowledge of concealed criminal activity,” a companion’s flight from the scene does not provide reasonable, particularized suspicion of criminal activity sufficient to justify a Terry stop of the person who did not flee..

Id. ¶ 67 (quoting Florida v. J.L., 529 U.S. 266, 272 (2000)).

As the saying goes, when the law supports you, argue the law, and when the facts support you, argue the facts. I had the facts on my side, so I argued them. It didn’t matter. The majority had six votes.

One sad conclusion I reached is that the bigger, more powerful party is much more likely to win in our court than the opposing party. In Spiller v. Sky Bank-Ohio Bank Region, 122 Ohio St. 3d 279 (2009), for example, Mrs. Spiller, the executrix of an estate, attempted to redeem original certificates of deposit (CDs), but the bank declined. The CDs were decades old. The bank had no record of them. Our court sided with the bank. In one of my shortest dissents, I wrote, “Not everybody sits and counts his or her money every day. Mrs. Spiller has the certificate of deposit. The bank has nothing. The bank wins? I dissent.” Id. ¶ 22. Although the facts favored Mrs. Spiller, the majority had six votes. I stood alone. And my dissent meant nothing.

The Purposes of Dissents

Dissents serve many purposes. Most obviously, they express opposition to the result or logic of the majority opinion. Sometimes, they serve to clarify the implications of the majority opinion, which can be obscure. But dissents also can serve to signal a change in a justice’s legal approach.

When I was in the Ohio Senate, I cosponsored the bill that reauthorized the death sentence. At the time, I believed that a sentence of death could serve legitimate purposes. My years on the court disabused me of that conceit.

In State v. Scott, 92 Ohio St. 3d 1 (2001), I dissented to a death sentence imposed on a man with mental illness. Leading up to it, I had not yet come to realize that we should abolish the death penalty in Ohio, but I was trending that way. In referring to the Ohio Constitution’s prohibition against cruel and unusual punishment and the U.S. Supreme Court’s discussion of the federal Cruel and Unusual Punishment Clause, I wrote, “This court could declare that in the interests of protecting human dignity, Section 9, Article I of the Ohio Constitution prohibits the execution of a convict with a severe mental illness. I believe that the ‘evolving standards of decency that mark the progress of’ Ohio call for such a judicial declaration.” Id. ¶ 11.

Among other reasons, I came to see that the imposition of a death sentence is unduly random, depending on race, geography, the prosecutor, the jury, and the skill of the defense counsel, among other things. I have likened the process to a death lottery. Scott was an essential part of my own evolution of thinking.

Dissents also can give hope to the bench and bar that someday our court might revisit an important legal concept. Many judges and practicing attorneys thanked me for my dissents, saying they reminded them that there is another way to approach an issue, that the court can change, and that there may be some nuance to an issue that remains unresolved.

For example, in another death penalty case, also called State v. Scott, 101 Ohio St. 3d 31 (2004), the majority sanctioned the sentence of death based on a course-of-conduct specification. I dissented:

The two murders were unrelated, occurred 19 days apart, and involved two people that had no relation to each other. The two murders were not committed in a similar way, were not committed in the same transaction, and were not committed for a common reason. In short, the only thing the two murders had in common was the murderer.

The majority’s conclusion that the two murders were part of a course of conduct because Scott was making a “deliberate effort. . . to earn a reputation as an indiscriminate killer” is cursory. I do not blame the prosecutor for bringing the course-of-conduct charge. I blame this court for not setting an appropriate standard for determining what constitutes a course of conduct involving the purposeful killing of or attempt to kill two or more persons.

Id. ¶¶ 113–14.

Perhaps my words will take hold, though they didn’t change the outcome there.

Sometimes a dissent is necessary even when the court reaches the right result. In State v. Thompson, 95 Ohio St. 3d 264 (2002), the court overturned a conviction for importuning. I agreed with the result but not with the reasoning. The importuning statute stated that “no person shall solicit a person of the same sex to engage in sexual activity with the offender, when the offender knows such solicitation is offensive to the other person, or is reckless in that regard.” Id. ¶ 5.

The majority concluded that the statute was an unconstitutional restriction on free speech. That laughable approach allowed the court to overturn the conviction without addressing the elephant in the room—that the statute was aimed at limiting homosexual activity. I dissented, writing that “[t]he obvious intent of R.C. 2907.07(B) is to restrict homosexual activity, not speech, as the lead opinion would have us believe. In the same way, the obvious intent of R.C. 2907.24, which prohibits the solicitation of another person to engage in sexual activity for hire, is to restrict prostitution, not speech.” Thompson, 95 Ohio St. 3d, ¶¶ 33–34.

I have said here, candidly, that the votes matter. They matter more than precedent, more than principle, more than logic. Having the votes is paramount. In fact, a judicial tribunal is the ultimate democracy—nobody’s vote counts more or less than any of the others’; all justices’ votes count the same. Without exception, I respected the justices I worked with. But, at one time or another, I disagreed with each of them. I considered all those disagreements to be purely professional, and I never made it personal. Of course, that’s easier to do when you are more likely to be the author of a biting dissent than its target.

One troubling aspect of dissents is that they seem to elevate the dissenter, even if alone, to the detriment of the majority. But that appearance is misleading. Dissents don’t really promote the dissenter at the expense of the majority because the vote count controls in the end. Although that sense of elevation can also approach arrogance, I never felt that way at all. Sometimes I dissented colorfully and sometimes I dissented plainly, but I always did so with appropriate respect for the justices in the majority, even if not for their logic or reasoning.

Some issues are more frustrating than others—for instance, domestic issues involving children. The placement of abused, dependent, or neglected children is a gut-wrenching decision. It should be made by the trial court, with the best interests of the child in mind. In In re A.B., 110 Ohio St. 3d 230 (2006), I wrote in dissent:

Unfortunately, the majority opinion ignores the sensible, cohesive nature of the statutory scheme. Instead it has focused on a specific statutory provision, though not the one most relevant to the situation before us, and has determined, contrary to the intent of the General Assembly, that the interests of a public children services agency are paramount to those of the children. . . . The overall scheme of the dependency and neglect statutes clearly demonstrates that the juvenile court, which is subject to appellate review, makes the ultimate decision regarding the disposition of each neglected and dependent child, not the children services agency.

Id. ¶ 46.

That case stands as an example of a court overly focusing on one aspect of the case, overlooking the general scheme, and lacking a persuasive enough dissent to correct the problem. It is a sad and common lament.

Generally speaking, I was more likely than most of my colleagues to trust the discretion of Ohio’s lower court judges. In re C.R., 108 Ohio St. 3d 369 (2006), was another case involving child custody and our court giving too much deference to an agency and too little credit to the trial judge. In dissent, I stated that our court held “that an adjudication that a child is abused, neglected, or dependent is an implicit finding that both natural parents are unsuitable. This implicit determination is too sweeping and does not allow the trial judge discretion to determine that a noncustodial natural parent is suitable.” Id. ¶ 25.

Dissents like that one are among the reasons I received so much positive feedback from the members of Ohio’s bench. One of them recently told me, “We call you the voice of reason in our courthouse.” I, of course, like to think so, but it’s really a matter of perspective, and I am well aware that not all legal professionals think it of me.

Dissenting over Facts

Dissents can show that the majority has treated facts a bit cavalierly. Our court sanctioned a police stop that had occurred after the officer drove at least 100 miles per hour (and possibly as fast as 120) to chase down a van that had not violated any traffic laws or done anything out of the ordinary to attract the officer’s attention. I stated in dissent that “[t]he majority opinion characterizes the traffic stop that occurred in this case as routine. A review of the arresting trooper’s testimony suggests that if this was a routine traffic stop, we should all be very afraid.” State v. Batchili, 113 Ohio St. 3d 403, ¶ 23 (2007).

That case still bothers me. It dovetails with one of my last dissents, which also involved a police chase as well as the death of the person being chased and severe injuries for an innocent bystander. Argabrite v. Neer, ___Ohio St. 3d___ (2016). Although we should be doing everything we can to minimize the number of high-speed police chases, our court too often takes a different view.

Sometimes even simple, easy-to-read, and seemingly impossible-to-misread constitutional provisions are hopelessly (and perhaps intentionally) misconstrued. In State ex rel. Ohio General Assembly v. Brunner, 114 Ohio St. 3d 386 (2007), a bill that had been presented to Governor Bob Taft did not become law before his term ended. Early in the next term, new Governor Ted Strickland vetoed the bill. It was pretty standard fare. But partisan politicians saw it differently, appealed to our court, and found common cause with a group of justices who went out of their way to ignore the constitutional requirements that enable a bill to become a law.

Although the Ohio Constitution provides only three ways for a bill to become a law, the majority sanctioned a fourth, extra-constitutional, way, which requires our court and the General Assembly to divine the intent of a governor. In dissent, I wrote:

Nothing in the law supports the majority opinion’s conclusion. Nothing in the majority opinion would convince an objective reader that the conclusion is just or in any way supported by case law, statutory law, learned treatises, or the plain language of Section 16, Article II of the Ohio Constitution.

Why is the majority deciding this way today? I do not know. In the ultimate display of result-oriented justice, its reasoning shifts. From the day of oral argument, the unfolding of the majority opinion has been the story of a result in search of a justification and an author.

Is the majority troubled by Governor Strickland identifying a loophole and bursting through it? Whether one considers Governor Strickland’s veto gambit as clever or devious, whether one believes that vetoing legislation when the preceding governor has made it known that he wishes the legislation to become law without his signature is impertinent or tactical, the fact remains that his decision was hardball politics. Brilliant or backhanded, it was politics. And most importantly, it was constitutional.

To judicially overturn the governor’s veto in this case is undemocratic. Ohioans elected a new governor, one who opposed Am.Sub.S.B. No. 117 and could count to ten. On the day he became governor, he had the power to veto.

Controversies like this are to be expected with shifts in the balance of power. The battles that ensue from those shifts are best fought by politicians. Today this court wades into politics and overreacts. At the end of the day, real damage has been done to the Ohio Constitution. That the damage is inflicted by this court is ironic and dispiriting.

Id. ¶¶ 172–76.

It took me a while to realize that dissenting without an opinion is a bit of a copout. The bench and bar need to know the reasons behind a dissent. It helps them craft ongoing litigation and arguments. A strong or a long dissent is not necessarily in order, just some kind of explanation. In fact, a long dissent can be more distracting than it is useful. The longer the dissent, the less likely it will be read, unless it is especially compelling. Short dissents always get read, even when they aren’t particularly stimulating. For example, in Wachovia National Bank of Delaware, N.A. v. Maenle, 110 Ohio St. 3d 1240, I wrote just two sentences but explained my position without belaboring the point or approaching wittiness.

Doctors have an uncanny capacity to win their cases in our court, and I found myself dissenting often. Their success is a corollary of the rule that the more powerful party is more likely to prevail. Sometimes it’s because of a legalistic argument; sometimes it’s because the plaintiff’s expert testimony is suspect—there are many different reasons—but never is it because the patient wasn’t injured, often grievously.

In Gliozzo v. University Urologists of Cleveland, Inc., 114 Ohio St. 3d 141 (2007), the doctors won because our court concluded that they had not been properly served with notice that their patient was suing them. In dissent, I wrote:

The whole point of service of process is to put the other party on notice that a lawsuit has been filed. . . . University Urologists of Cleveland, Inc. obviously had notice of the suit. Otherwise, it would not—could not—have defended itself. Perfected service of process would not have provided University Urologists anything that it did not already have. And when University Urologists defended itself, it effectively told Gliozzo that it had notice, that it was defending itself, and that the purposes of service of process had been effectuated. The result in this case is exactly what the Civil Rules, Peterson, and DeHart discredited. In allowing the dismissal of this case, the majority is not cautiously exercising judicial discretion, it is elevating legalistic rules over substance and subverting justice. Sadly, we are returning to the days of yore, when the pleadings ruled, and notice was just a salutary goal. Before you know it, demurrer will be back.

Id. ¶ 20.

In Moretz v. Muakkassa, 137 Ohio St. 3d 171 (2013), the doctor won largely because a medical illustration from a learned treatise had been improperly admitted as evidence. It was an error but not an outcome-determinative error. Nevertheless, a jury verdict was overturned and the case was remanded. I dissented, stating, “We have stated many times that criminals are entitled to a fair trial, not a perfect trial. A fair reading of the majority opinion leaves one with the unmistakable impression that from this day forward a doctor in a medical-malpractice case is entitled to a perfect trial.” Id. ¶ 125.

Some dissents scream out for simple common sense. In North Olmsted City School District Board of Education v. Cleveland Municipal School District Board of Education, 108 Ohio St. 3d 479 (2006), a taxpayer had sent its real estate taxes to the wrong school entity. Instead of doing the right thing and sending the money to the proper school district, the Cleveland school district decided to keep it. Our court let them. I dissented:

The majority opinion begins by stating that “portion of a school district’s personal property tax revenue was misdirected to another school district due to the mistake of a taxpayer,” and concludes by stating that “even though the personal property was mistakenly assessed to the wrong taxing district,” we’re not going to anything about it. . . . Between the beginning and the conclusion is much fine legal writing. Unfortunately, all of that fine writing completely misses the point. Instead of conflating legalistic legerdemain with analysis, the majority should bow to the obvious: when a school district receives personal property tax revenue that should have gone to another district, it has been unjustly enriched and should give that revenue to the other district. The majority’s long, winding path to a contrary, counterintuitive, and wrong conclusion is a glowing tribute to the insidiousness of precedent.

Id. ¶ 45 (quoting Zupancic v. Carter Lumber Co., Franklin App. No. 01AP-1248, 2002-Ohio-3246, at ¶48).

Our court has elevated that insidiousness into a three-part test. The test is so unnecessary, unwieldy, and unworthy of a court of last resort that I have disparaged it again and again. In Westfield Insurance Co. v. Galatis, 100 Ohio St. 3d 216 (2002), the court enunciated a test that it sometimes uses to determine whether we can overturn one of our own cases. In dissent, I addressed the merits, not the superfluous three-part test, thusly: “But let us review what this court does accomplish today: (1) overrules a four-year-old case, (2) achieves that by adopting the central tenet of the case this court attacks, and (3) writes in new coverage limitations to an insurance contract that is no longer in use.” Id. ¶ 99. I concluded by stating that “[t]he three sitting justices who are in the majority have all been applauded as practitioners of judicial restraint. As to that restraint, I am reminded of the words of the character Inigo Montoya from the movie ‘The Princess Bride’: ‘You keep using that word. I do not think it means what you think it means.’” Id. ¶¶ 100–101.

The Galatis test was a gift that kept on giving, generating good sound bites for the newspapers through the years as I continued to excoriate it. In State ex rel. Shockley v. Industrial Commission, 112 Ohio St. 3d 81 (2006), the court affirmed a court of appeals decision on the authority of a case that clearly should have been overturned. I wrote, “Though Galatis is widely known as an insurance case, its long-term import is the extent to which it seeks to limit this court’s ability to reconsider its own reasoning. This court exists to provide substantial justice to the parties before it, and should never bind itself in Gordian knots.” Id. ¶ 8. And in Cleveland Mobile Radio Sales, Inc. v. Verizon Wireless, 113 Ohio St. 3d 394, ¶ 30 (2007), I stated that “[i]f a majority of this court determines that one of its prior decisions should be overruled, it should overrule the prior decision. To do otherwise is to abdicate its role as a court of last resort.”

Unfortunately, the court continued to abdicate its duty every time it elevated the Galatis test over logic and justice, and I continued to dissent. In Louden v. A.O. Smith Corp., 121 Ohio St. 3d 95, ¶ 38 (2009), I stated: “This court should have the courage to plainly overrule cases with which it no longer agrees, a step the court is prevented from taking by its sometimes slavish, sometimes selective, devotion to the legalistic straitjacket known as the Galatis test.” And in State ex rel. Shelly Materials, Inc. v. Clark County Board of Commissioners, 115 Ohio St. 3d 337, ¶ 50 (2007), I referred to the Galatis test as a “hopelessly random and formulaic approach to overruling precedent.”

The good news is that one other justice finally joined me in disapproving of Galatis. See Groch v. General Motors Corp., 117 Ohio St. 3d 192, ¶ 221 (2008), in which Justice Lanzinger stated that “Galatis jurisprudence has itself become unworkable.” The bad news is that both she and I just retired.

One of the fun things about dissents is the diversity of source material. When you are a lone wolf crying in the wind, you look for support anywhere you can find it. In Acordia of Ohio, L.L.C. v. Fishel, 133 Ohio St. 3d 356, ¶ 30 (2012), the court upheld a noncompetition provision that I considered unduly restrictive. I found support in Great Britain in the early 15th century, over 150 years before the Bard of Avon produced his wonderful plays and sonnets. I quoted Dyer’s Case, Y.B. 2 Henry 5, fol. 5, pl. 26 (C.P.1414), in which the court stated that the noncompetition agreement at issue in that case “is void because the condition is against the common law, and by God, if the plaintiff were present he should rot in gaeol till he paid a fine to the King.” Another unconventional source was Edward Topsell’s The Historie of Foure-footed Beastes (1607), cited in Barbee v. Nationwide Mutual. Insurance Co., 130 Ohio St. 3d 96, ¶ 54 (2011), for the Scottish proverb “penny wise and pound foolish.”

Sometimes it is useful to quote the majority opinion, wielding their own words against them. In Sutowski v. Eli Lilly & Co., 82 Ohio St. 3d 347 (1998), a large group of women had been severely injured by their use of a prescription drug. I wrote in dissent that

the majority is more comfortable shielding the defendant drug companies than with applying a theory of recovery that would allow the plaintiffs to go forward with their case. The majority’s decision has the perverse effect of protecting a defendant class that undeniably manufactured, released, and profited from a horribly defective product while denying a chance of recovery to a class of injured women that undeniably did nothing wrong, except suffer the consequences of the ingestion of the defendants’ defective drugs. The right-to-remedy clause has been turned on its head and the majority has effectively given these defendants the equivalent of a common-law right-to-immunity. DES-injured women will have to content themselves with knowing that they “engender sympathy.”

Id. at 367.

The majority opinion had noted that the victims of the defective drug engendered sympathy and then ensured that they would receive nothing else.

Dissents vary wildly. Some are long; some are short. Some are indifferent; some are clever. But all are an enduring part of the law and of the writing justice’s conscience. I have at times used dissents like a rapier, at times like a bludgeon, and at times like a boring seminar, but always (and only) because I firmly believed that the majority was making a mistake. Although dissents take many different paths, all seek the same goal: to expose a flaw in the majority’s reasoning, hoping to correct it. Whether there really is a flaw is for the reader—and future justices—to determine.

Hon. Paul E. Pfeifer with Robert L. Burpee

The Honorable Paul E. Pfeifer, who recently retired after 24 years as an associate justice of the Supreme Court of Ohio, now serves as executive director of the Ohio Judicial Conference. Robert L. Burpee was his senior judicial attorney at the Ohio Supreme Court.