
    WILSON et al., Appellants, v. PATTON, Appellee.
    [Cite as Wilson v. Patton (1990), 66 Ohio App.3d 46.]
    Court of Appeals of Ohio, Hocking County.
    No. 88 CA 9.
    Decided Feb. 2, 1990.
    
      
      Pearly L. Wilson and Everett Hunt, Jr., pro se.
    
    
      Anthony J. Celebrezze, Jr., Attorney General, and Frederick C. Schoch, Assistant Attorney General, for appellee.
   Stephenson, Judge.

This is an appeal from a summary judgment entered by the Hocking County Court of Common Pleas granting the summary judgment motion of Jerry Patton, defendant below and appellee herein, and dismissing the complaint and amendment to complaint of Pearly L. Wilson and Everett Hunt, Jr., plaintiffs below and appellants herein, which complaint sought money damages for a claimed invasion of privacy by appellee.

Appellants assign the following error:

“Did the trial court err, substantially prejudicing plaintiffs-appellants, when it sustained defendant’s motion for summary judgment?”

This action was previously before the court in Wilson v. Patton (1988), 49 Ohio App.3d 150, 551 N.E.2d 625, from a judgment of the court below dismissing the action for failure to state a claim upon which relief could be granted. This court reversed by decision and entry filed June 28, 1988 and remanded for further proceedings.

Pertinent facts were set forth in our opinion as follows at 151-152, 551 N.E.2d at 626-627:

“On May 22, 1987, appellants, inmates at Hocking Correctional Facility, filed a pro se complaint which averred in pertinent part as follows. On or about March 16, 1987, appellee, a nurse and health care administrator at Hocking Correctional Facility, was induced to invade the privacy of appellants by Ohio Assistant Attorney General Frederick C. Schoch in violation of appellants’ constitutional right to privacy, R.C. Chapter 1347, and R.C. 102.-03(B). On March 16, 1987, appellee executed under oath an affidavit for Assistant Attorney General Schoch which disclosed privileged information from appellants’ medical files and records, which appellants did not divulge to either appellee or Schoch and which was not waived in order that it could be divulged to any source. Appellee’s disclosure and use of such confidential information was without appropriate authorization. As a result of the intentional acts of appellee and Assistant Attorney General Schoch, appellants suffered psychological problems of fear, stress, sleeplessness, anxiety, depressed identity, and confusion. Appellants both prayed for $750,000 in damages.
“On June 23, 1987, appellee filed a motion to dismiss appellants’ complaint for failure to state a claim upon which relief can be granted, Civ.R. 12(B)(6), and lack of subject matter jurisdiction, Civ.R. 12(B)(1). Appellee’s memorandum in support of his motion to dismiss stated that the affidavits executed by appellee which appellants’ complaint referred to were filed in a separate lawsuit.
“On July 2, 1987, appellant Pearly L. Wilson filed an amendment to the previously filed complaint wherein he averred that appellee had again violated this constitutional right to privacy as well as his rights pursuant to R.C. Chapter 1347 and R.C. 102.03(B) by disclosing more confidential information without appropriate authorization on June 8 and June 17, 1987. On July 15, 1987, appellee filed a motion to dismiss appellant Pearly L. Wilson’s amendment to the complaint for failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction. Attached to appellee’s motion to dismiss the amendment to the complaint was a copy of appellant Pearly L. Wilson’s motion to strike certain documents in a federal case styled as Pearly Wilson v. Dr. Tenoglia (S.D.Ohio [E.D.] 1987), No. C2-83-2367, unreported, wherein appellant Pearly L. Wilson moved to strike affidavits executed by appellee on June 8 and June 17, 1987 on the asserted basis that the affidavits did not comply with Fed.R.Civ.P. 56(e) and (g).
“On July 15, 1987, appellee filed a supplemental memorandum in support of his motion to dismiss. Attached to such memorandum was a copy of appellants’ motion to strike certain documents in Pearly Wilson v. Richard P. Seiter (S.D.Ohio [E.D.] 1987), No. C2-86-1046, unreported, wherein appellants moved to strike an affidavit executed by appellee partly on the basis that the information contained in the affidavit was privileged and confidential.”

A principal argument made by appellee in support of the initial dismissal was that the Court of Claims had exclusive jurisdiction to decide whether appellee was protected by the immunity granted in R.C. 9.86, which reads as follows:

“Except for civil actions that arise out of the operation of a motor vehicle and civil actions in which the state is the plaintiff, no officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer’s or employee’s actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
“This section does not eliminate, limit, or reduce any immunity from civil liability that is conferred upon an officer or employee by any other provision of the Revised Code or by case law. This section does not affect the liability of the state in an action filed against the state in the court of claims pursuant to Chapter 2743. of the Revised Code.”

We rejected such argument by stating, inter alia, the following at 49 Ohio App.3d at 152-153, 551 N.E.2d at 627-628:

“Appellee argues that the court of common pleas was without jurisdiction to proceed in an action brought against a state employee absent a prior determination by the Court of Claims that the state official acted manifestly outside the scope of his employment, or acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Appellee’s argument is based upon the contention that ‘the court’ referred to in R.C. 2743.02(A)(1) is the Court of Claims, thereby divesting other courts of jurisdiction until the Court of Claims makes the applicable determination. See McIntosh [v. Univ. of Cincinnati (1985)], supra, [24 Ohio App.3d 116] at 120, 24 OBR [187] at 190-191, 493 N. E.2d [321] [at] 324-325; Smith v. Stempel (1979), 65 Ohio App.2d 36, 19 O.O.3d 23, 414 N.E.2d 445. This argument has been expressly rejected by the Supreme Court of Ohio in Cooperman v. Univ. Surgical Assoc., Inc. (1987), 32 Ohio St.3d 191, 513 N.E.2d 288, where it held as follows in the second paragraph of the syllabus:
“ ‘A court of common pleas does not lack jurisdiction over an action against state officers or employees merely because the Court of Claims has not first determined that the act or omission, which is the subject of the action, was manifestly outside the scope of the officer’s or employee’s office or employment, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner, unless the aggrieved party has filed a suit in the Court of Claims based on the same act or omission. * * * ’ See, also, Van Hoene v. State (1985), 20 Ohio App.3d 363, 20 OBR 467, 486 N.E.2d 868.”

Two other arguments to support the Civ.R. (12)(B)(6) dismissal, i.e., (1) appellants waived their right to privacy when they filed federal lawsuits, and (2) proceedings in a prior federal lawsuit collaterally estopped appellants from asserting their claims, were also rejected by this court for the reasons stated in the opinion, reversing the judgment of dismissal and remanding for further proceedings.

After remand, appellee filed a motion for summary judgment upon the following grounds:

1. A Court of Common Pleas lacks jurisdiction over the subject matter of this action due to R.C. 2743.02(F).

2. Plaintiffs waived any right to confidentiality in their medical records by filing a lawsuit which raised issues about their medical condition.

3. Plaintiffs are barred from re-litigating these claims under the doctrine of collateral estoppel.

Cooperman v. Univ. Surgical Assoc., supra, was decided on September 2, 1987. Effective October 20, 1987, Substitute H.B. No. 267 was passed on June 25, 1987 and R.C. 2743.02 was amended by adding a Section (F), containing the following:

“A civil action against a state officer or employee that alleges that the officer’s or employee’s conduct was manifestly outside the scope of the officer’s or employee’s employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to civil immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action.
“The filing of a claim against a state officer or employee under this section tolls the running of the applicable statute of limitations until the court of claims determines whether the officer or employee is entitled to civil immunity under section 9.86 of the Revised Code.” 142 Ohio Laws, Part II, 3134, 3136.

Appellee argues the effect of the amendment negates the Cooperman decision and that the amendment operated retrospectively to deny the court below of jurisdiction. We agree with appellee that the amendment has the effect of now clearly manifesting the intention of the General Assembly that in an action against an officer or employee of the state wherein it is claimed the immunity granted in R.C. 9.86 is inapplicable, that such action must first be filed in the Court of Claims.

The more difficult question is whether such statute can operate retrospectively to untried causes of action arising before the effective date as appellee claims. R.C. 1.48 provides that “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.” Section 28, Article II of the Ohio Constitution provides, inter alia, that “[t]he general assembly shall have no power to pass retroactive laws. * * * ”

In determining retroactivity of a statute, the procedure to be followed is set forth in the first three paragraphs of the syllabus in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, and reads as follows:

“1. The issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply. Upon its face, R.C. 1.48 establishes a threshold analysis which must be utilized prior to inquiry under Section 28, Article II of the Ohio Constitution. (Kiser v. Coleman [1986], 28 Ohio St.3d 259, 262, 28 OBR 337, 339-340, 503 N.E.2d 753, 756, approved and followed; Wilfong v. Batdorf [1983], 6 Ohio St.3d 100, 6 OBR 162, 451 N.E.2d 1185; and French v. Dwiggins [1984], 9 Ohio St.3d 32, 9 OBR 123, 458 N.E.2d 827, to the extent inconsistent herewith, modified.)
“2. The issue of whether a statute may constitutionally be applied retrospectively does not arise until there has been a prior determination that the General Assembly has specified that the statute so apply. R.C. 4121.80 contains the clearly expressed intent of the General Assembly that it be applied retrospectively.
“3. Analysis of whether a statute is unconstitutionally retroactive in violation of Section 28, Article II of the Ohio Constitution requires an initial determination of whether that statute is substantive or merely remedial. While in some cases the line between substantive and remedial may be difficult to ascertain, these terms, as applied, provide readily distinguishable contours. (Wilfong v. Batdorf [1983], 6 Ohio St.3d 100, 6 OBR 162, 451 N.E.2d 1185, to the extent inconsistent herewith, overruled.)”

The threshold inquiry is whether the General Assembly intended retrospective application even though there is no express wording in the statute. Guidance as to such intent can be gained from the preamble to Sub. H.B. No. 267, which reads in part: “[t]o amend section[] 2743.02 * * * clarifying the Court of Claims Law with respect to civil actions against state officers and employees; and clarifying that the Court of Claims has exclusive, original jurisdiction over all types of civil actions against the state and its officers and employees, irrespective of the relief sought.” The preamble is properly considered “to ascertain the purpose of the act, the motive of the legislature in enacting the law, and the causes which led to its passage.” (Footnotes omitted.) 85 Ohio Jurisprudence 3d (1988) 201, Statutes, Section 200.

Bearing in mind that the statute here considered was passed before the Ohio Supreme Court decided Cooperman, supra, we conclude it was intended to make clear, i.e., “clarify,” that it was always the intention of the General Assembly that the Court of Claims have exclusive initial jurisdiction in suits against state officers and employers and intended such clarifications to have retrospective as well as prospective application.

The next question is whether R.C. 2743.02(F) is remedial and thus not barred by Section 28, Article II, Ohio Constitution. We agree with appellee that the statute deals only with the procedure whereby a claim against a state employee may be effectuated and does not operate to bar any substantive rights of appellants. Morgan v. Western Elec. Co. (1982), 69 Ohio St.2d 278, 23 O.O.3d 271, 432 N.E.2d 157.

In light of the above we hold the court below was without jurisdiction, overrule the assigned error and affirm the grant of summary judgment to appellee.

Judgment affirmed.

Homer E. Abele, P.J., and Harsha, J., concur.  