[This decision has been published in Ohio Official Reports at 

.]




    DEROLPH ET AL., APPELLEES, v. THE STATE OF OHIO ET AL., APPELLANTS.
                     [Cite as DeRolph v. State, 

.]
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.
        {¶ 1} 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),

, 

 (“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.
        {¶ 2} 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
                                    SUPREME COURT OF OHIO




for 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
         {¶ 3} 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.
         {¶ 4} 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 dispute



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
appropriate order.”




                                                    2
                                January Term, 2001




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.
       {¶ 5} 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. 

 In the public-policy arena, the commission has dealt with
issues as varied as regulatory rulemaking, welfare reform, and environmental
enforcement.
       {¶ 6} 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.
       {¶ 7} 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.
       {¶ 8} 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




                                          3
                             SUPREME COURT OF OHIO




to public schools in suburban districts and by directing the state to implement a
report card system for each school. 

       {¶ 9} 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. 

       {¶ 10} 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
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.




                                          4
                                 January Term, 2001




        {¶ 11} 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.
        {¶ 12} 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.
        {¶ 13} 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.
        {¶ 14} 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.
        {¶ 15} 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




                                           5
                                 SUPREME COURT OF OHIO




the best hope for obtaining results acceptable to all while avoiding untold expense
and the continued uncertainty of going forward.
        {¶ 16} We order as follows:
                                            I
                              Settlement Conference Ordered
        {¶ 17} 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
        {¶ 18} 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
                 The Ohio Board of Education,
                 The Ohio Superintendent of Education,
                 The Ohio Department of Education.


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
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.




                                                6
                                   January Term, 2001




        {¶ 19} 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
        {¶ 20} 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;
        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




                                           7
                              SUPREME COURT OF OHIO




         John J. Chester, Chester, Wilcox & Saxbe, counsel for Ohio Governor Bob
Taft.
                                        IV
                       Appointment of Master Commissioner
         {¶ 21} The court will select and appoint a master commissioner according
to the following procedure:
         {¶ 22} (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;
         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.
         {¶ 23} Each of these persons has expressed an interest in being named
master commissioner.




                                         8
                                   January Term, 2001




           {¶ 24} (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.
           {¶ 25} (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.
           {¶ 26} (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.




                                             9
                               SUPREME COURT OF OHIO




                                          V
                               Settlement Conferences
       {¶ 27} 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.
       {¶ 28} 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.
       {¶ 29} The master commissioner shall schedule additional meetings and
thereafter file with the court an anticipated timeline for completion of the settlement
conferences.
       {¶ 30} 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
       {¶ 31} The master commissioner shall report to the court no later than fifteen
days from the first meeting with counsel regarding progress toward settlement.
       {¶ 32} 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.
       {¶ 33} The reports to the court will not include substantive matters.




                                          10
                                      January Term, 2001




                                                 VII
                                 Settlement Conference Order
         {¶ 34} 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
         {¶ 35} 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.


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.




                                                  11
                                   SUPREME COURT OF OHIO




                                                 IX
                                                Costs
          {¶ 36} 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.
          {¶ 37} I concur in the judgment of the majority. I write to make just three
points.
                                                  I
          {¶ 38} 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.”


          “(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.”




                                                  12
                                   January Term, 2001




(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
       {¶ 39} 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.
       {¶ 40} 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), 

, 

. 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), 

, 

. That date was just a few weeks before oral argument was scheduled to be
heard on June 20. DeRolph v. State (2001), 

, 

.
       {¶ 41} 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




                                           13
                             SUPREME COURT OF OHIO




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, 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.
        {¶ 42} 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.
        {¶ 43} 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.   

 93 Ohio St.3d at 332-334, 

 (Douglas, J.,
concurring).
        {¶ 44} 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
        {¶ 45} 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




                                          14
                                   January Term, 2001




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.
        {¶ 46} 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 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
        {¶ 47} 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.
        {¶ 48} 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




                                           15
                              SUPREME COURT OF OHIO




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.
        {¶ 49} As this court has emphatically pointed out several times, our state’s
school-funding system has been plagued by an overreliance on local property 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.
        {¶ 50} 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), 

,

 (“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. 

, 

. 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.
        {¶ 51} 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. 

 93 Ohio St.3d at 344-375, 

. As today’s pronouncement by the majority demonstrates, it
is evident that the majority opinion in DeRolph III was just another chapter in the




                                          16
                                  January Term, 2001




ongoing saga of this case, and was not the end-all of this litigation that the majority
fervently had hoped it would be.
        {¶ 52} 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.
        {¶ 53} 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.
        {¶ 54} 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




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course of this case, it has been clear to me that only a complete systematic 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), 

, 

 (“DeRolph I”), and
DeRolph v. State (2000), 

, 

 (“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.
       {¶ 55} 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.
       {¶ 56} 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 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




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                                January Term, 2001




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.
       {¶ 57} 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), 

, 

, “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.
       {¶ 58} 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.
                               __________________
       COOK, J., dissenting.
       {¶ 59} I respectfully dissent from the majority’s order referring this cause
to mediation.




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                                SUPREME COURT OF OHIO




       {¶ 60} 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.
       {¶ 61} My objections to this case and to the actions of this court are well
documented. See DeRolph v. State (2001), 

, 

 (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 

, 

. 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.
       {¶ 62} 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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