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Faulkner v. Mayfield3/25/1988
apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure and, therefore, need not be heard for the first time on appeal. State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277, syllabus; Clarington v. Althan (1930), 122 Ohio St. 608, 10 Ohio Law Abs. 414, 174 N.E. 251. Unlike the cases cited by the opinion, see, e.g., Meyer, supra, appellant herein did not raise the equal protection issue below and thereby arguably waived its consideration.
Moreover, none of the cases cited in the majority opinion for the proposition that a classification based on wealth is per se constitutionally suspect, Walker, supra; Jackson, supra; Williams, supra; supports a conclusion of per se unconstitutionality. Rather, it is clear under these authorities that a classification based on wealth is not inherently constitutionally suspect. San Antonio Independent School Dist. v. Rodriguez (1973), 411 U.S. 1. The Supreme Court of thsUnited States has not held that fines must be structured to reflect each person's ability to pay in order to avoid disproportionate burdens, and sentencing judges may consider the defendant's ability to pay, but in such circumstances are guided by sound judicial discretion rather than by constitutional mandate. Id. at 22. In the case at bar, there has been no evidence adduced regarding appellant's ability to pay the fine. Indeed, appellant's affidavit suggests that he could have chosen alternative employment in order to secure the necessary funds.
Additionally, I would emphasize that the Attorney General's opinion cited in the majority opinion for the holding that courts have a mandatory duty to obtain workers' compensation coverage, 1982 Ohio Atty. Gen. Ops. No. 82-045, only states that a county may contract with the Industrial Commission pursuant to R.C. 4123.03 to provide workers' compensation coverage for juvenile offenders participating in a county-operated rehabilitation program. Notwithstanding this, in that I agree that there remains a genuine issue of material fact with respect to the absence or presence of an expess or implied contract of hire, I concur in the reversal of the entry of summary judgment herein.
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