Supreme Court Rules Wrongful Imprisonment Claims May Not Originate in Ohio Court of Claims

Common Pleas Court Must First Find Claimant Was 'Wrongfully Imprisoned'

Griffith v. Cleveland, Slip Opinion No. 2010-Ohio-4905.
Franklin App. No. 08AP-964, 2009-Ohio-2854. Judgment of the court of appeals reversed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4905.pdf

(Oct. 12, 2010) The Supreme Court of Ohio held today that all wrongful-imprisonment claims brought against the state must follow a two-step process in which the claimant must first bring an action in a court of common pleas to secure a determination that he or she is a wrongfully imprisoned individual entitled to compensation, and then must file a civil action against the state in the Ohio Court of Claims to recover a sum of money.

The Court’s 6-0 decision, authored by Justice Paul E. Pfeifer, reversed a ruling by the 10th District Court of Appeals.

In 2003, the General Assembly amended R.C. 2743.48, the state law that authorizes persons who have been wrongfully imprisoned to recover civil damages from the state under certain circumstances. Among other changes, the 2003 amendment added language to the statute allowing recovery not only by persons who are officially exonerated of guilt for the crimes for which they were imprisoned, but also by persons whose convictions and prison sentences are vacated, dismissed or permanently overturned on appeal because of procedural errors during their trials.

In this case, Gerry Griffith Jr. of Cleveland was charged in federal district court with a firearms offense. Before trial, Griffith moved to suppress all evidence obtained through the search of his home, arguing that the search resulted from an unlawful arrest. The trial court denied the motion to suppress. Griffith was convicted on the firearms charge and sentenced to a prison term.

On review, the U.S. Sixth Circuit Court of Appeals ruled that Griffith’s arrest was unlawful, and the trial court should have suppressed the search results that yielded the evidence on which his conviction was based. On remand to the trial court, the firearms charge was dismissed and Griffith was released from custody.

Griffith filed a claim seeking damages from the state as a “wrongfully imprisoned individual” under R.C. 2743.48. Griffith filed his complaint directly with the Ohio Court of Claims. The state moved to dismiss the complaint, arguing that the Court of Claims did not have jurisdiction to consider a wrongful imprisonment claim until the claimant’s eligibility for damages had been certified by a common pleas court. The Court of Claims granted the motion to dismiss. On review, the 10th District Court of Appeals reversed the Court of Claims’ ruling and ordered it to accept and process Griffith’s complaint. In its opinion, the 10th District held that the 2003 amendments to R.C. 2743.48 did not impose a requirement of a prior common pleas judgment of eligibility for wrongful imprisonment claims that are based on procedural error.

The state sought and was granted Supreme Court review of the 10th District’s decision.

In today’s unanimous decision, Justice Pfeifer wrote: “Griffith argues, and we do not deny, that R.C. 2743.48(A), as amended, does not state that a claim premised on a procedural error must originate in a court of common pleas. It is equally clear, however, that the statute does not explicitly state that such a claim can originate in the Court of Claims. We consider the statute ambiguous as to the sole issue before us. Accordingly, we turn to other considerations to determine the intent of the General Assembly, as permitted by R.C. 1.49.”

“R.C. 1.49(D) permits a court, faced with determining the legislative intent behind an ambiguous statute, to consider ‘[t]he common law or former statutory provisions, including laws upon the same or similar subjects.’ … R.C. 2743.48(A) sets forth five requirements for a determination that a person is a wrongfully imprisoned individual. … Nothing in the statutory scheme states that the Court of Claims has authority to determine that a person is a wrongfully imprisoned individual. … R.C. 2743.48(H) states that to be eligible to recover compensation for wrongful imprisonment, a claimant ‘shall commence a civil action under this section in the court of claims no later than two years after the date of the entry of the determination of a court of common pleas that the individual is a wrongfully imprisoned individual.’ This provision also clearly authorizes a court of common pleas to determine that a person is a wrongfully imprisoned individual and just as clearly does not authorize the Court of Claims to make that determination.”

“Under R.C. 1.49(E), the intent of the legislature in enacting an ambiguous statute may be determined by considering ‘[t]he consequences of a particular construction.’ … If a wrongful-imprisonment case based on procedural error could originate in the Court of Claims, that court would have to rule on the criteria of R.C. 2743.48(A)(1) through (4). These criteria are replete with criminal-law considerations. The Court of Claims is statutorily designed to adjudicate civil claims and does not ordinarily address criminal issues. Further, if actions brought under R.C. 2743.48 could originate in the Court of Claims, attorneys and witnesses from the county of origin would all be required to travel to the Court of Claims in Franklin County. Nothing in the statutory scheme contemplates this waste of time and money.”

“…Based on the foregoing, we are convinced that the holding in Walden v. State … still applies: All wrongful-imprisonment claimants must follow a two-step process. In the first step, the claimant must bring an action in the court of common pleas to secure a determination that he or she is a wrongfully imprisoned individual entitled to compensation. In the second step, the claimant must file a civil action against the state, in the Court of Claims, to recover a sum of money. … We are further persuaded that the General Assembly intended that only courts of common pleas have jurisdiction to determine whether a person has satisfied the five requirements of R.C. 2743.48(A). Accordingly, only courts of common pleas can determine whether a person is a wrongfully imprisoned individual. We reverse the judgment of the court of appeals.”

Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.

Contacts
Benjamin C. Mizer, 614.466.8980, for the Ohio Attorney General's Office.

Charles W. Slicer, 937.223.1100, for Gerry Griffith Jr.

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Ohio Supreme Court Decision on Scaffolds and Safety Requirements

By Ohio Supreme Court Justice Paul Pfeifer

Outside of the construction business it’s probably safe to say no one pays much attention to scaffolding. But solid, safe scaffolding is so integral to construction that the Ohio Administrative Code contains a number of specific safety requirements that apply to scaffolds. Those safety requirements were at the center of a case that we reviewed here – at the Supreme Court of Ohio.

The case involved a man named John W. Johnson who was installing safety rails on a scaffold that was in the process of being erected. Several of Johnson’s co-workers were starting to enclose this assembled portion of the scaffold in plastic, which was meant to protect workers from the winter elements.

Johnson was on either the first or second level of the scaffold – between six and 16 feet off the ground – when a gust of wind got underneath the plastic. The gust tipped the scaffold, and threw Johnson to the ground.

Johnson’s workers’ compensation claim was allowed, but he also alleged that his employer – Buckner & Sons Masonry, Inc. – had violated, among other things, three specific safety requirements related to bracing and anchorage of a scaffold. A staff hearing officer of the Ohio Industrial Commission, the entity that handles such claims, reviewed his allegations.

The staff hearing officer found that the specific safety requirements that Johnson alleged had been violated did not apply in this instance because the scaffold was not fully assembled.

In his report, the staff hearing officer wrote: “All three of these rules are designed to ensure that completed scaffolds must be safe in that the anchorage, poles, and legs of a completed scaffold must be properly secured to prevent swaying and diagonal braces must be used to secure a completed scaffold.”

The staff hearing officer went on to say that “while the cited rules don’t specifically state that these safety rules only apply to completed or finished scaffolds…it is obvious that these rules should only apply to already completed scaffolds so that employees working on them will be safe.

“To hold otherwise, that is, to find that these rules apply not only to already completed scaffolds, but also to scaffolds still being built, would subject employers to safety standards that would be clearly premature because the required safety rules contemplate a review of existing and completed scaffolds to ensure that completed scaffolds meet pre-determined safety regulations.”

After a rehearing was denied, Johnson filed a complaint with the court of appeals. He argued that by declaring the safety requirements applicable only to fully erected scaffolds, the Industrial Commission was impermissibly inserting language into the safety code. He asserted that the Commission’s interpretation not only produced an illogical result but also encouraged employers to circumvent safety regulations by simply leaving a scaffold partially completed.

But the magistrate who considered Johnson’s complaint recommended that it be denied. According to the magistrate, the Commission’s finding that the rules were inapplicable does not give rise to a patently illogical result, as Johnson claimed.
“There is no evidence that Buckner was attempting to avoid the applicability of the rules relating to scaffolding by deliberately delaying the completion of the scaffold,” the magistrate wrote in his report. “In fact, the undisputed evidence shows that Buckner was endeavoring to complete or finish the erection of the scaffold at the time of the injury.”

The court of appeals adopted the magistrate’s findings of fact and conclusions of law. The court of appeals denied Johnson’s complaint, prompting his appeal to our court for a final review.

We did not share the court of appeals’ view of this case. In our opinion – a six-to-one vote – the Industrial Commission’s order was more conclusory than explanatory. The staff hearing officer, who declared that it was “obvious” that the regulations applied only to completed scaffolds, apparently believed that no explanation was necessary.

If there was an explanation to be garnered from the order, it more likely derived from this statement: “It is obvious that these rules should only apply to already completed scaffolds so that employees working on them will be safe.”

The troubling aspect of this logic is the assumption that employees work only on or around completed scaffolds. Scaffolds, however, do not erect themselves – workers erect them level by level. To do that, they must be on and around unfinished assemblies.

This fact leads to a second point. Workers on or around unfinished assemblies need appropriate protection just as much as workers on finished assemblies. An employee assigned to install cross braces on the second level of an incomplete scaffold is exposed to at least as much risk of injury as an employee working on the second level of a finished scaffold.

An unstable scaffold is also a danger to everyone working on the ground in the event of a collapse. The scaffolding regulations at issue are intended to ensure that the scaffold is always plumb, secured, and rigid. These are not features that should apply to some scaffolds and not others.

We recognized the court of appeals’ reluctance to impose liability for violation of specific safety requirements on an employer who was installing the very safety devices required by the safety code at the time the accident occurred. We do not, however, agree that the answer is to decline to apply the code altogether.

The answer, in our opinion, is to apply the code and then determine whether the employer either complied – or was in the process of complying – with the safety provisions at issue, taking into account the stage of construction and the reasonableness and practicality of being able to comply with the safety provisions at that stage of installing the scaffolding.

We thus concluded that the pertinent section of the Ohio Administrative Code applies to all scaffolds, regardless of the stage of construction. We reversed the court of appeals’ judgment and returned the case to the Industrial Commission to determine whether the employer satisfied the specific safety requirements at issue.

EDITOR’S NOTE: The case referred to is: State ex rel. Johnson v. Indus. Comm., 122 Ohio St.3d 289, 2009-Ohio-3453. Case No. 2008-1089. Decided July 21, 2009. Majority opinion Per Curiam.

Physician-Patient Privilege

by Ohio Supreme Court Justice Paul Pfeifer

Most people are familiar with the concept of physician-patient privilege. Here at the Supreme Court of Ohio we recently reviewed a case that focused on that subject. The case involved Dr. William Schlotterer and Medical Mutual of Ohio, which provided coverage to many of Schlotterer’s patients.

To document the services that he provides to his patients, Schlotterer submits reports to Medical Mutual detailing the services rendered; the insurance company accordingly reimburses him. As part of these reports, Schlotterer assigns AMA-developed codes to each patient visit, based on his assessment of the patient’s condition, the extent of the examination and so forth.

Medical Mutual compensates Schlotterer based on the codes he assigns. The code warranting the highest reimbursement, to be used “rarely” and only for “complex medical decisions,” is 99215.

A review of Schlotterer’s billing reports in 2004 revealed a high percentage of 99215 code submissions. Medical Mutual then requested medical records for ten families, which Schlotterer provided. After reviewing those records the insurer determined that the 99215 billing code was not warranted in those cases. A subsequent investigation into Schlotterer’s coding practices allegedly revealed that he had been overpaid by almost $270,000 for 99215 code submissions.

Medical Mutual filed a complaint against Schlotterer for – among other things – fraud. Schlotterer denied the allegations. To determine the amount of the alleged fraud, Medical Mutual filed a motion for an order directing Schlotterer “to respond to discovery” of patient records. These records were to have obscured any information that would identify the patients. Schlotterer opposed the motion based on the physician-patient privilege.

The certificates of coverage issued to Schlotterer’s Medical Mutual patients include the following language: “You consent to the release of medical information to Medical Mutual when you…sign an Application. When you present your identification card…you are also giving your consent to release medical information to Medical Mutual,” which “has the right to refuse to reimburse for Covered Services if you refuse to consent to the release of any medical information.”

The participation agreement signed by Schlotterer contains similar provisions: “Provider agrees to furnish, upon request, to Medical Mutual…all requested Records relating to claims filed with Medical Mutual.”

Given that, the trial court granted Medical Mutual’s motion, ordering Schlotterer to respond to the discovery requests. Schlotterer appealed, and the court of appeals vacated the trial court’s decision, holding that the order to comply with the discovery requests violated the physician-patient privilege. After that, the case came before us for final review.

The physician-patient privilege is designed to “promote health by encouraging a patient to fully and freely disclose all relevant information which may assist the physician in treating the patient.” Under Ohio law, medical records are generally privileged from disclosure. The privilege does not apply, however, where the patient has given express consent to disclosure.

A consent to the release of medical information is valid, and waives the physician-patient privilege, if it is voluntary, express, and reasonably specific in identifying to whom the information is delivered. The requirement of specificity allows patients to know exactly who will have access to their medical records in order for them to make an informed decision regarding waiver of the privilege.
The majority of our court concluded that the certificates of coverage provided to Schlotterer’s patients met the necessary requirements for disclosure: they were voluntary, qualified as express consent, and the “provisions are reasonably specific in identifying to whom the release is made” – Medical Mutual.

Schlotterer argued that the release did not authorize Medical Mutual to investigate fraud; instead he claimed that the consent forms allowed for review of the medical records only before the insurer makes a coverage determination. By a six-to-one vote our court disagreed.

The majority maintained that the language in the consent form does not limit the release to permission to determine whether services will be reimbursed, but merely explains the consequences should a patient withdraw his consent. Because Schlotterer’s patients consented to release their medical information to Medical Mutual, the majority concluded that the consent exception to the physician-patient privilege applies in this case.

I concurred with part of the majority opinion, but I also dissented in part. The insureds in this case did not consent to release medical information to enable Medical Mutual to pursue a lawsuit against a doctor; they consented to release medical information to enable Medical Mutual to determine whether specific insurance claims should be paid.

The insureds upheld their end of the bargain: their medical information was available to the insurance company before the claims were paid. Once the claims had been paid, Medical Mutual, in effect, attempted to contort a specific, single-purpose consent to release into a general, all-purpose consent to release.

One thing is abundantly clear: the insureds did not consent to the release of their medical information for any purpose other than to determine whether their claims would be paid. Because the claims have been paid, the consent to release is no longer available to the insurance company. Therefore, I believe that the majority’s interpretation of the consent to release in this case is much too broad.

Nevertheless, the information sought by Medical Mutual should be available to it to pursue a claim against Schlotterer for fraud. Thus, I would have adopted a new exception to the physician-patient privilege – one suggested by the Ohio State Medical Association and American Medical Association.

They said, “the exception should be narrowly defined and applied only after a demonstrated compelling need for the information sought.” Adopting a more narrow exception would allow insurance companies to pursue claims against allegedly fraudulent doctors without eroding the physician-patient privilege.

The result that the majority opinion reached is laudable because its effect is to allow an insurance company to combat fraud, but the means used are too general and too likely to result in further litigation to determine the bounds of the general exception.

Nonetheless, the majority opinion reversed the judgment of the court of appeals and sent this case back to the trial court for further proceedings.

EDITOR’S NOTE: The case referred to is: Med. Mut. Of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496. Case No. 2008-0598. Decided June 3, 2009. Majority opinion written by Chief Justice Thomas J. Moyer.

Retirement Plan Decision

By Ohio Supreme Court Justice Paul Pfeifer

For young people just starting out in the workforce, retirement plans usually aren’t a top priority. But as the years roll along priorities change, and retirement plans become mighty important. Here at the Supreme Court of Ohio we recently reviewed a case that focused on how one man’s retirement plans went awry.

In 1998, Robert N. McLaughlin, a member of the Ohio Public Employees Retirement System (“PERS”), applied for retirement. He elected to receive his pension benefits under “Plan D,” which provides a joint-survivorship annuity paying him for life and thereafter paying his surviving spouse. Robert designated his wife as his beneficiary.

But that all changed five years later when Robert divorced his wife and elected to have his pension-payment plan changed to Plan B, which provides a single-life annuity to the retiree with no monthly payments to any surviving spouse.
Robert signed a form which stated, in part, that he understood “that the single life annuity is to be paid throughout my life only and terminates at my death with no further payment.”

The form also stated that he had the right to make later changes. This was an important point because, in March 2006, Robert married Donna J. Shisler. He now wanted to make another change. The following month Robert designated Donna as his PERS beneficiary, but he did not at that time change his pension-payment plan – he continued to be paid a monthly benefit based on a single-life annuity under Plan B.

In December 2006, Robert requested an application to change his payment plan. He completed the application in late January 2007, but he mistakenly elected all of the listed payment plans (Plans A, C, and D) instead of following the instructions and choosing only one plan.

PERS returned the form to him with instructions that he was required to choose one plan. Finally, on February 25, 2007, Robert completed and signed the application to change his pension-payment plan from Plan B to Plan D – a joint-survivorship annuity, with Donna as the beneficiary. Robert mailed it to PERS on March 1, 2007. The next day, he died.

PERS received Robert’s request form on March 5, 2007. When Donna eventually requested survivor benefits based on Robert’s attempted change of the pension-payment plan, PERS refused because he had died before the application was received.
Donna filed a complaint in the court of appeals seeking to compel PERS to accept Robert’s application and to pay her the monthly survivor benefit in accordance with his intentions. The court of appeals ruled against her; after that, the case came before us for a final review.

Donna argued that PERS abused its discretion in denying her survivorship benefits. She claimed that under Ohio law, a properly executed PERS member’s request for a change in a pension plan is effective on the date it is received, notwithstanding the member’s prior death.

The pertinent law states that following a marriage or remarriage, a member may elect a new plan of payment, and that the newly elected plan “shall become effective on the date of receipt by the board of an application form…”

By a five-to-two vote, our court concluded that the language of this law “expressly provides that an election to change a retiree’s pension-payment plan after remarriage is not effective until it is received by the PERS board.”

According to the majority, Donna correctly observed “that this provision does not specify that an election to change a pension-payment plan is invalidated if the retiree dies before the election is received by the PERS board.” The majority concluded, however, that by reading this law in conjunction with other related laws, the plan is indeed invalidated if the retiree dies before the PERS board receives the application to change it.

Justice Evelyn Lundberg Stratton and I cast the dissenting votes in this case because we believed PERS abused its discretion by denying Donna’s request.
As the majority conceded, the pertinent provision in the law “does not specify that an election to change a pension-payment plan is invalidated if the retiree dies before the election is received by the PERS board.”

Accordingly, nothing in the law necessitates invalidation of Robert’s election to change his payment plan simply because he died before the PERS board received his plan change; our court should not add language to the law that does not exist.
Moreover, by finding it necessary to read this law in conjunction with other related laws in order to arrive at its conclusion, the majority implicitly recognized that the law, as written, is ambiguous. And because of that ambiguity – as we have determined in prior cases – we must read it “liberally in favor of the interests of the public employees and their dependents that the pension statutes were designed to protect.” Furthermore, we must also avoid an illogical or absurd result in interpreting this ambiguous provision.

Had we applied these long-standing rules of construing statutes, our court should have concluded that Robert intended that Donna receive the joint-survivorship annuity upon his death and that he took all the steps required by the law to make that happen.

And it’s not as if his intentions were unknown. He sent in a completed form that selected all the payment plans, an oversight that perhaps could have and should have been corrected with a simple phone call. Instead he was asked to send another completed form, which he did. There is nothing else Robert could have done to effectuate his intentions, except not die.

Justice Stratton and I concluded that PERS abused its discretion in adopting an interpretation of the law that was not supported by its plain language, and that the majority’s holding was contrary to our duties to liberally construe pension provisions in favor of members and their beneficiaries, and to avoid illogical results.

Nevertheless, the majority reached a different conclusion, and thus Donna won’t receive any benefits from Robert’s pension.

EDITOR’S NOTE: The case referred to is: State ex rel. Shisler v. Ohio Pub. Emps. Retirement Sys., 122 Ohio St.3d 148, 2009-Ohio-2522. Case No. 2008-2102. Decided June 4, 2009. Majority opinion Per Curiam.

Open and Obvious Doctrine

By Ohio Supreme Court Justice Paul Pfeifer

When Albert and Dorothy Lang arrived at the Holly Hill Motel one evening in early April 1999, they had no idea of the tragic ending that awaited them, nor any inkling of the legal journey that would begin that night and end here – at the Supreme Court of Ohio.

Because Albert was 78 years old, suffered from emphysema, and carried a portable oxygen tank, Dorothy requested a handicapped-accessible room. The motel didn’t have any such rooms available, but the front desk clerk told Dorothy they could have a room that required them to climb only one step.

They took that room, but soon discovered they actually had to climb two steps, and there were no handrails. With Dorothy’s help Albert climbed the first step, but on the second he fell and broke his hip. Albert ultimately died a little over three months after his fall.

After Albert’s death Dorothy sued the motel for negligence. In her complaint she alleged – and an expert witness confirmed – that the step Albert tripped over exceeded the height limitations in the Ohio Basic Building Code and that this created a dangerous condition that was exacerbated by the absence of handrails, which were also required under the Building Code.

The motel, and the builder who constructed the steps, moved for summary judgment – meaning they asked for judgment without a trial. They argued that even if the step was in violation of the code, it was nonetheless an open and obvious condition and that they therefore owed no duty of care to the Langs. The motion for summary judgment was granted.

Dorothy appealed the judgment. Her attorneys argued that the open-and-obvious doctrine is inapplicable and summary judgment is improper when the condition at issue is a violation of the Building Code.

What is the open-and-obvious doctrine? It’s a legal principle that says where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.

When the court of appeals reviewed the case, it determined that the step was an open and obvious condition, and that a Building Code violation does not negate the application of the open-and-obvious doctrine. The court of appeals therefore affirmed the judgment of the trial court.

After that, the case came before us for a final review. By a six-to-one vote our court affirmed the judgment of the court of appeals. How did the majority reach that conclusion?

Our court has previously held that exceptions to the open-and-obvious doctrine can be made when the landowner violated a statute – that is, a law passed by the General Assembly. But in this case, the majority drew a distinction between duties arising from statutes and duties arising from administrative rules, which “are created by administrative employees who act to implement the General Assembly’s public-policy decisions.”

Thus, the majority concluded that an exception to the doctrine does not apply to violations of the Building Code, which is an administrative rule. The majority also noted that there are innumerable administrative rules adopted each year and that it would be virtually impossible to comply with all of them.

I cast the dissenting vote because I disagreed with this conclusion. When Albert Lang was injured at the Holly Hill Motel, it was, at least in part, because of building code violations. But our court decided that his widow couldn’t proceed with a lawsuit because those violations that allegedly caused his injuries and hastened his death were open and obvious.

But in reaching that decision our court clings to the past and ignores a modern trend in the law. Many commentators and courts have recognized the unfairness of the open-and-obvious doctrine. One commentator has stated that “an undeniable legal error is committed every time a court bars recovery to an injured person based solely on the fact that the perilous nature of the alleged cause of harm was ‘apparent to all,’ without any consideration of the multitude of other factors which may justify or excuse the plaintiff’s conduct.”

I agree with the Supreme Court of New Mexico that “a risk is not made reasonable simply because it is made open and obvious to persons exercising ordinary care.” I also agree with that court’s holding that “it is for the jury to decide in virtually every case whether a dangerous condition on the premises involved ‘an unreasonable risk of danger to a business visitor.’”

In the Lang’s case, the dangers were open because they were not hidden, but they were not obvious. The presence or absence of a handrail is not obvious until one reaches for it and it is either there or not. The proper height of a step, as prescribed by building codes, is not obvious, especially to a nonprofessional, without taking measurements.

The building code violations that allegedly caused Albert’s injuries were open, but they were not obvious. This case presents an example of why the open-and-obvious doctrine should be abolished; it does not allow the consideration of all the factors that are relevant to determine negligence or fault.

Even so, it is not necessary to abolish the open-and-obvious doctrine to properly resolve this case. Building code violations are different from other open and obvious dangers because building codes are administrative rules and therefore “are to be given the force and effect of law.” In other words, “administrative agency rules are an administrative means for the accomplishment of a legislative end.”

But the majority opinion minimizes the standing of administrative rules, and clearly considers them not worthy of the force and effect of law. There is even a suggestion that because administrative rules are changed so frequently, compliance with them is virtually impossible and, therefore, apparently optional.

We should not have such a blasé attitude toward administrative rules. They are the law, unless unreasonable or contrary to statute, and compliance with them is mandatory; the failure to comply with them should have consequences.

Nevertheless, the majority ruled differently, and thus Albert’s widow was prevented from proceeding with her lawsuit.

EDITOR’S NOTE: The case referred to is: Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495. Case Nos. 2007-1222 and 2007-1370. Decided June 3, 2009. Majority opinion written by Chief Justice Thomas J. Moyer.

Mars and the Rovers

By Ohio Supreme Court Justice Paul Pfeifer

When the giant lighted ball drops in Time Square on December 31st, we will – whether we’re ready or not – enter 2010 and thus leave the “aughts” behind us. Even though by the official count we don’t enter the new decade until next year, dropping the second zero in the date is going to make it feel like we’re in a new decade despite what the timekeepers tell us.

Any of us who did most of our growing up in the 20th century remember hearing all sorts of predictions – dire and otherwise – about “the year 2000.” Now, incredibly, that date is ten years distant in the rearview mirror. And so it is that as we enter late December, we can look back not only on 2009, but on this first decade of the 21st century as well.

Each year the Associated Press conducts a poll of editors and news directors from around the country to determine the biggest news stories of the year. For 2009, the number one story, according to that poll, was “the economy,” followed closely by the inauguration of President Barack Obama. The sweeping overhaul of health care came in third, with the struggles of the auto industry fourth and the story of the swine flu fifth.

Death was the predominant feature of the next four stories: Afghanistan, Michael Jackson’s death, the Fort Hood rampage, and Senator Edward Kennedy’s passing were six, seven, eight and nine. The story of the US Airways passenger jet that crashed in the Hudson rounded out the top ten stories of the past year.

As usual, most of the stories focused on bad things. Looking back further, the same is basically true for the biggest stories of the past ten years. If you’ll recall, we exited the 1990s terribly concerned about the impending Y2K crisis. Happily that never materialized. But then, before we had barely begun the 21st century, we were hit with something we never saw coming – the terrorist attacks on September 11, 2001.
That was, unquestionably, the biggest story of the decade. And after that, the wars in Afghanistan and Iraq dominated headlines year after year. Throw in Hurricane Katrina – the largest natural disaster in our nation’s history – and the sub-prime mortgage crisis coupled with the economic woes that followed and you’ve got ten year’s worth of bad news.

But not all of the news was bad; there was one particularly upbeat little story that played out over the course of the decade that didn’t get much play. That’s typical of course; it’s the bad news that grabs the headlines.
So what was the happy story that got so little attention? Well, you’d have to look pretty far to find it – like millions of miles away.

The story began in 2003 with the launch of two rockets bound for Mars. Each rocket carried a “rover” – a little six-wheeled vehicle – that could travel over the Martian terrain and be remotely controlled by NASA engineers on Earth. The rovers were to land on the red planet and explore the surface in detail, with the specific mission to look for evidence that water once existed on Mars.

Equipped with cameras to send back images, robotic arms to allow them to dig in the dirt and extract soil and rock samples, and other instruments for conducting various experiments, the rovers – named Spirit and Opportunity – were expected to do their work and relay their data for 90 days. Beyond that time, NASA engineers anticipated that the harsh winter conditions would freeze the rovers, and the dust from the planet would cover the solar panels and prevent the batteries from recharging.
Spirit landed on January 4, 2004; Opportunity followed three weeks later, landing on the other side of the planet. Both arrived in good shape and began their assigned missions. At the end of their 90 days, Spirit and Opportunity – living up to their names – were still going strong, relaying data, and responding to commands from Earth as well as ever. So the mission was extended.

NASA had always hoped that the rovers would operate beyond 90 days, and early in the mission the engineers began to believe that both might last for as many as 200 days. That was in 2004. Today, at the end of 2009, both of these magnificent little machines are still operating, more than 2000 days after landing on Mars.
The rovers have performed incredibly well. Spirit was originally intended to travel at least 984 feet across the Martian surface; it has now gone almost five miles. Opportunity has traveled more than 7 miles. The rovers have sent back tens of thousands of fantastic images, and abundant information on the planet’s geology – including evidence of Mars’s warmer, wetter past.

Remarkably, Mars itself has helped out. On several occasions, when the solar panels were coated in dust so thick that it threatened to kill the rovers, timely wind gusts and dust devils kicked up that cleaned the panels and restored power.

Even the mishaps have proved advantageous. When Spirit developed a bum front wheel, engineers turned it around and traveled in reverse. The bad wheel, dragging behind, inadvertently uncovered a patch of ground that scientists say shows evidence of a past environment that would have been perfect for microbial life.

Is all of this a major story that should be dominating the headlines? Perhaps not. But when NASA messes up, it’s big news and we hear about it. This happy success, on the other hand, goes largely unnoticed, and that’s a shame because it’s a great story; an engineering marvel and a triumph of the human spirit that deserves attention.

And so, as we depart this first decade of the 21st century – amidst all the bad news of disasters and crises and wars – maybe we can take some small comfort in a bit of good news about two rugged little machines that wouldn’t quit, and that, in their way, represent what humanity – at its best – can accomplish.
Happy New Year everyone.

Christmas at Valley Forge

By Ohio Supreme Court Justice Paul Pfeifer

It is the soldiers’ fate, it would seem, to be away from home at Christmas. It’s no wonder that the World War II-era song, I’ll Be Home For Christmas, was known as the “soldier’s theme song.”

This year, as with so many Christmases past, thousands of our sons and daughters are far from the love of family and the comforts of home. For the American soldier this is nothing new; it’s a tale that goes back to the beginning, back to a place called Valley Forge.

It’s a name familiar to anyone who took an American history class: Valley Forge, where General Washington and his men spent a harrowing winter in the Pennsylvania countryside battling – not the British – but the elements. They arrived at Valley Forge on December 19, 1777, exhausted, hungry and cold.

Just a year before, on Christmas night 1776, General Washington had delivered the young nation a stunning victory when he and his troops crossed the ice-choked Delaware River under cover of dark and caught the Hessians – the German mercenaries fighting for the British – unprepared. The ensuing fight was quick and relatively bloodless, owing to the element of surprise.

The victory at the Battle of Trenton, as it came to be known, was vital to the American cause. Throughout 1776 Washington’s troops had suffered one defeat after another: the Battle of Trenton, quite probably, saved the Revolution.

But just 12 months later, in December 1777, the victory at the Battle of Trenton seemed but a distant memory, and the Continental Army was in worse shape than ever. As the beleaguered men trudged along the road to their winter quarters, “you might have traced the army from White Marsh to Valley Forge by the blood of their feet” in the snow, General Washington later wrote.

What those men faced at Valley Forge during that winter was deprivation of a kind that most of us, thankfully, will never be able to imagine. The suffering began almost immediately. One soldier wrote in his journal that this is “the third day we have been without flour or bread – and are…laying on the cold ground.”

In his book about Valley Forge – Washington’s Secret War – author Thomas Fleming tells of one officer who reported to General Washington that half the men in his division were “walking barefooted on the ice or frozen ground.”

And another soldier, Private Joseph Martin, confirmed that in his memoir: “‘The great part’ of the army ‘were…shirtless and barefoot.’ Martin explained how he had fashioned crude moccasins from a piece of ‘raw cowhide,’ but he soon gave them up because the hard edges cut deep ridges in his ankles. Thereafter he went barefoot ‘as hundreds of my companions had to.’”

Food was as scarce as shoes and warm clothing, and for most of the winter, feeding the army would be an on-going struggle, caused both by shortages and a bureaucratic morass that hampered the army’s every move. Adding to the misery, the sanitary conditions in camp were less than ideal. Although the British never attacked Valley Forge, roughly 2,500 men perished during that harsh winter, mostly from disease and the elements.

When Christmas dawned on Valley Forge there was little reason for hope, but Washington did his best to bolster the morale of his men. “On Christmas Day,” Fleming writes, “it began to snow heavily. Struggling to establish a semblance of hospitality, Washington provided a spartan Christmas dinner for his aides.” The meal “was as plain and rough as the surrounding landscape; unadorned mutton, veal, potatoes, and cabbage, washed down by water.”

Of course, Christmas was only the beginning of the winter. In the days that followed, hundreds of crude log huts were constructed that provided some shelter from the weather. While conditions were never pleasant, and food was never plentiful, as the weeks passed the camp slowly began to take shape.

The biggest change came in late February, when Baron von Steuben – a German army officer – arrived in camp to offer his military skills to the Continental Army. Von Steuben began putting the American soldiers through drills that were common to professional European armies.

And there, in the Pennsylvania countryside, despite the struggles and miseries, something extraordinary occurred: the nearly defeated band of men who stumbled into Valley Forge in December 1777, barely resembling an army, emerged from that wintry crucible the next spring as a disciplined fighting force, capable and ready to face the mighty British army.

That’s why the name Valley Forge retains a high place in the American lexicon. True, there was no great battle fought there; no great victory was won in that place. But Valley Forge represents something more. It stands as a testament to the camaraderie that is forged from shared hardship, and the iron will that manifests itself when a group of homesick but determined American soldiers endure adversity and overcome the near impossible.

Washington’s men straggled into Valley Forge in December 1777 as individual patriots; they marched out of Valley Forge into the annals of legend.

And so it is that those men who spent Christmas at Valley Forge share a bond with the soldiers who froze at Bastogne during Christmas of 1944, and with the soldiers who spent Christmas huddled on a hillside in Korea or in a jungle in Vietnam, and with the soldiers who right now are half-a-world away in the frigid mountains of Afghanistan or the deserts of Iraq, and with any American who ever spent Christmas in uniform, serving their country far from home.

Although the “soldier’s theme song” wasn’t written until 1943, it speaks to the hope of soldiers from any era: “I’ll be home for Christmas, you can count on me…I’ll be home for Christmas, if only in my dreams.”

Whether you’re home for the holidays this year – or just dreaming of it – may you all have a Merry Christmas.