When Can Statutes Operate Retroactively In Ohio ?
Article II, 28 of the Ohio Constitution, codified at O.R.C. 1.48, presumes that statutes are prospective unless the legislature indicates otherwise.
Even if the General Assembly indicates otherwise, it is up to the courts to determine whether such a retroactive law is constitutional.
The Ohio Supreme Court has held that statutes operate retroactively only if:
(1) the General Assembly clearly expresses that the statute applies retroactively;
(2) the statute is remedial or procedural. ComTech Systems, Inc. v. Limbach (1991), 59 Ohio St. 3d 96, 102, 570 N.E.2d 1089.
On the other hand, one Ohio appellate court has construed the Ohio Supreme Court's opinions as recognizing the General Assembly's authority to clarify its prior acts. Nationwide Mut. Ins. Co. v. Kidwell (1996), 117 Ohio App. 3d 633, 642, 691 N.E.2d 309.
In Kidwell, the Fourth District Court of Appeals stated that "when the Ohio General Assembly clarifies a prior Act, there is no question of retroactivity" unless such a clarification would alter a substantive right, in which case it would violate Article II, 28 of the Ohio Constitution.
Along the lines of Kidwell, Beau Townsend proffers several decisions from jurisdictions outside of Ohio to illustrate the principle of clarification.