In re Doe

This matter came on for hearing on October 23, 1990, upon the complaint of Jane Doe, a.k.a. S. H., filed on October 22, 1990 pursuant to R.C. 2151.85(A)(4)(a), requesting the issuance of an order authorizing her to consent to the performance or inducement of an abortion without the notification of her parents, based on the allegation that she is sufficiently mature and well enough informed to intelligently decide whether to have an abortion without the notification of her parents. Present for said hearing were Jane Doe, a.k.a. S. H., and Nancy Lamson, her duly appointed guardian ad litem and attorney. The court found that the complainant was pregnant, unmarried, under eighteen years of age, and unemancipated, and that venue properly rests in this county. After hearing the case in part, the court continued the matter for further consideration.

R.C. 2151.85(D), governing a minor female’s complaint for abortion, provides: “The court shall not notify the parents, guardian, or custodian of the complainant that she is pregnant or that she wants to have an abortion.” In furtherance of this statute, C.P. Sup. R. 76(H) provides, in part: “The court shall not notify the parents, guardian, or custodian of the complainant that she is pregnant, that she wants to have an abortion, or that the complaint was filed. * * *” For the following reasons, it is the opinion of this court that R.C. 2151.85(D) and C.P. Sup. R. 76(H) are of no force or effect.

R.C. 2151.35(C), which governs the general hearing procedures in juvenile courts, provides: “The court shall give all parties to the action and the child’s guardian ad litem notice of the adjudicatory and dispositional hearings in accordance with the Juvenile Rules.” Although there may be some argument as to whether hearings conducted under R.C. 2151.85 are truly adjudicatory or dispositional in nature, R.C. 2151.35(C) certainly evidences a legislative intent that the issuance of summons or notice is a procedural law matter governed by the Juvenile Rules rather than a substantive law matter governed by the Revised Code. .

Even without the mandate of R.C. 2151.35(C), it is clear that notice is a procedural issue. Section 5(B), Article IV of the Ohio Constitution provides, in part: “The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * *” In considering the meaning of the word “substantive” as used in the Ohio Constitution, the Ohio Supreme Court has ruled that “substantive” is in contradistinction to the word “procedural”: “substantive” means that body of constitutional, statutory, and common law which creates, defines and regulates the rights of the parties, whereas “procedural” pertains to the method of enforcing rights or obtaining redress. Krause v. State (1972), 31 Ohio St. 2d 132, 145, 60 O.O. 2d 100, 107, 285 N.E. 2d 736, 744. See, also, Jacobs v. Shelly & Sands, Inc. (1976), 51 Ohio App. 2d 44, 5 O.O. 3d 165, 365 N.E. 2d 1259. The issuance of notice for court proceedings is procedural as it pertains to the method of enforcing *22rights or obtaining redress rather than creating, defining, or regulating the rights of the parties.

Having concluded that notice is a procedural issue, reference must be made to the Juvenile Rules. Juv. R. 15(A), governing notice in juvenile court proceedings, requires that after a complaint is filed, the clerk shall promptly issue summons to the parties requiring them to appear before the court at the time fixed for hearing.1 A child’s parent is included under the definition of “party” contained in Juv. R. 2(16). In resolving the discrepancy between the rule (Juv. R. 15[A]) and the statute (R.C. 2151.85[D]), Section 5(B), Article IV, Constitution further provides: “* * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” Even though the statute was enacted subsequent to the rule, the rule controls because the statute purports to govern procedural matters. See In re Vickers Children (1988), 14 Ohio App. 3d 201, 14 OBR 228, 470 N.E. 2d 438.2

From the foregoing, it is clear that when a conflict arises between a statute and a rule with respect to a procedural issue, the rule controls. A further issue that must be resolved is how to reconcile conflicts between two sets of rules adopted by the Supreme Court pursuant to its rulemaking authority.. As noted above, C.P. Sup. R. 76(H) contains language similar to that in R.C. 2151.85(D), and, as such, is in conflict with Juv. R. 15(A). It is clear, however, that any conflict between the Juvenile Rules and Superintendence Rules must be resolved in favor of the Juvenile Rules. The Third District Court of Appeals distinguished the authority of Superintendence Rules from procedural rules adopted by the Supreme Court as follows:

“It will be noted that whereas rules of procedure adopted by the Supreme Court require submission to the legislature, rules of superintendence are not so submitted and, hence, are of a different category. They are not the equivalent of rules of procedure and have no force equivalent to a statute. They are purely internal housekeeping rules which are of concern to the judges of the several courts but create no rights in individual defendants. * * *” State v. Gettys (1976), 49 Ohio App. 2d 241, 243, 3 O.O. 3d 286, 287, 360 N.E. 2d 735, 737. See, also, State v. Doane (1987), 41 Ohio Misc. 2d 9, 535 N.E. 2d 762.

Having determined that the notice provisions of R.C. 2151.85(D) violate the rulemaking authority of the Ohio Supreme Court as contained in Section 5(B), Article IV, Constitution, the court finds and so orders that R.C. 2151.85(D) is of no further force or effect. The court further finds that the underlying purpose of R.C. 2151.85 is to authorize juvenile courts to permit a minor female to consent to an abortion without parental notification, and that to provide notice to the child’s parents in conformity with Juv. R. 15(A) would undermine the very purpose of the statute. Therefore, because the defective notice provisions of R.C. 2151.85(D) cannot be reconciled with *23the remaining sections of the statute, the court finds and so orders that R.C. 2151.85 is, in its entirety, of no further force or effect. Because the statute does not provide a valid judicial bypass procedure, the court further finds that R.C. 2919.12(B)(1), which prohibits any person from knowingly performing or inducing an abortion upon an unemancipated minor unless one of four circumstances is present, is unconstitutional under the authority of Akron Center for Reproductive Health v. Slaby (C.A. 6, 1988), 854 F. 2d 852, reversed on other grounds in Ohio v. Akron Center for Reproductive Health (1990), 497 U.S. _, 111 L. Ed. 2d 405, 110 S. Ct. 2972. See, also, Bellotti v. Baird (1979), 443 U.S. 622.

The court, therefore, orders that the complaint filed herein is dismissed.

Complaint dismissed.