Judge Collier's Criminal Docket for March 29, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier’s court March 29:

Deandre Baskerville, 23, of Mineola Avenue in Akron, was sentenced to six months in prison on one count of Possession of Marijuana, a fifth-degree felony.

Michael Graham, 22, of Congress Road in Lodi, was sentenced to six months in jail or treatment at a Community Based Correctional Facility on one count of Possession of Heroin, a fifth-degree felony.

Jason Cantrell, 35, of La Vista West in Lodi, pleaded no contest to one count of Attempted Burglary, a fifth-degree felony. Sentencing is scheduled for May 10.

Matthew Buettner, 26, of West Smith Road in Medina, pleaded no contest to one count of Possession of Drugs, a fifth-degree felony. Sentencing is scheduled for May 3.

Mandyll Dietrich, 27, of Ox Road in Wakeman, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 30.

Sarah Kafantaris, 22, of Manhattan Drive in Brunswick, pleaded guilty to one count of Possession of Drugs, a fourth-degree felony. Sentencing is scheduled for May 10.

Tyler Horn, 18, of Harold Drive in Richfield, pleaded not guilty to two counts of Aggravated Burglary, both of which are first-degree felonies. A jury trial is scheduled for June 28.

Joseph Mullen, 20, of Otoe Avenue in Tallmadge, pleaded no contest to one count of Theft of a Firearm, a third-degree felony. Sentencing is scheduled for May 10.

Dale Nye, 45, of North Court Street in Medina, pleaded guilty to one count of Theft, a fifth-degree felony. He was sentenced to six months in jail.

Joaquin Ramos-Ortiz, 50, of Sandra Drive in Brunswick, pleaded not guilty to one count of Intimidation, a third-degree felony. A jury trial is scheduled for May 12.

John Seamon, 39, of Oak Street in Medina, pleaded not guilty to the following charges: one count of Abduction, one count of Having Weapons While Under Disability, and one count of Burglary, all of which are third-degree felonies. The Abduction charge carries a firearm specification. Seamon also pleaded not guilty to one count of Assault, a first-degree misdemeanor. A jury trial is scheduled for May 12.

India Shelton, 23, of Springdale Street in Akron, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for July 7.

Judge Kimbler's Court Schedule for March 31 through April 6, 2010

Click here to view Judge Kimbler's court schedule for Wednesday, March 31, through Tuesday, April 6, 2010. Please note that the court schedule is subject to change.

Ohio Northern University School of Law Celebrates Anniversary

The second oldest of Ohio’s nine law schools is celebrating its quasquicentennial year in 2010.

Founded in 1885, the Ohio Northern University Pettit College of Law has planned a number of events during the 2010-11 academic year to celebrate its 125th anniversary. Those special events – one of which takes place on Tuesday – include distinguished speakers, special dedications, alumni gatherings and symposia.

The Third District Court of Appeals, which covers 17 northwestern Ohio counties including Hardin County, will convene in special session Tuesday at the law school. A three-judge panel will hear oral arguments in three cases: two Allen County age-based employment discrimination cases and an Auglaize County juvenile case involving gross sexual imposition and classification as a sex offender.

Based in Lima, the appeals court annually visits the law school to enable law students, educators and the public to observe and enhance their understanding of the appellate process.

At the conclusion of Tuesday’s oral arguments, law students will participate in a question-and-answer session with presiding Judge John Willamowski, Judge Richard Rogers and Judge Vernon Preston.

Supreme Court of Ohio Justice Robert R. Cupp, a former judge on the appeals court and a law school alumnus, congratulated the Pettit College of Law on its anniversary.

"The Court of Appeals’ session at the law school is both a tangible and a symbolic manner in which to mark the occasion,” he said. “Through its quality legal education, the Pettit College of Law has carefully prepared individuals to serve the public as capable lawyers, judges, prosecutors, legislators, and public officials for one and a quarter centuries. This is an extraordinary record of service and is a proud accomplishment. As an alumnus who holds a law degree from the Pettit College of Law, I join in celebrating this milestone.”

Contact: Chris Davey or Bret Crow at 614.387.9250.

More Thoughts on Disappearing Jury Trials

by Stephen E. Chappelear
Hahn Loeser & Parks LLP
sechappelear@hahnlaw.com
Chair, OSBA Litigation Section

Many of you were kind enough to write or call about my column in our last Newsletter, “Where Have All The Trials Gone?” As a reminder, in that column I referenced statistics generated by the Ohio Supreme Court which revealed a significant decrease in the number of both jury and bench trials in recent years.
There has been a 27% drop in civil jury trials from five years ago. The percentage of cases terminating in a trial has gone from 3.3% ten years ago to 1.5%.

Although virtually every other indicator of legal activity is rising, trials are declining not only in relation to cases in the courts but to the size of the population and the size of the economy. See, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts (Galanter), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004 , pp. 459-570(112).

Given that there are about 30,000 lawyers in Ohio, 3,000 of whom are members of the OSBA Litigation Section, and there were only 881 civil jury trials in the state in 2008, not many of us are spending a lot of time in courtrooms.
The comments I have received addressed possible reasons for decreasing trials, and implications to our profession and system of justice.

Several of you suspect that there has been a corresponding increase in the number of dispositive motions granted, both motions to dismiss and summary judgment motions. Anecdotally, there are stories of summary judgment motions being granted when there are genuine lessons of material fact, which judgments are then affirmed in the courts of appeals. Blame is laid at the feet of trial judges who, it is argued, have been influenced by campaigns waged by the insurance industry, the Chamber of Commerce, political parties, and others.

There is some evidence that the tool of summary judgment has a substantial impact on the number of trials. See, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah (Burbank), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004 , pp. 591-626(36).

This bring about a risk of decreased confidence in the justice system, if litigants feel they were denied their right to trial and their “day in court”.
Eric B. Hershberger, of Chester, Willcox & Saxbe, notes that some scholars have attributed declining trials to a seeming cultural preference for compromise over standing on principles. This development has been characterized as “new and troubling.” The Case for Trials: Considering the Intangibles (Butler), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004 , pp. 627-636(10).

Eric also points out that the declining rate and number of civil trials may be a function of greater pretrial investigation of facts which require parties to infuse more and more money. See, “Getting What We Asked For, Getting What We Paid For, and Not Liking What We Got: The Vanishing Civil Trial,” (Yeazell), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004 , pp. 943-971(29). There is only so much "creative" or "alternative" billing can do.

From a purely economic viewpoint, claims are commerce, but at day's end “a bad settlement is better than a good lawsuit.” We’ve all heard that saying, and for good reason: trials are the least desirable “commercial transaction” for a business. In a free enterprise economy where commercial and civil claims get negotiated and settled all the time as part of the ebb and flow of business, trials can be perceived as “claims gone awry.” A trial is not as much a stand for substantive justice as it is the last set of moves in a stalemated negotiation of a claim.

Eric suggests that certain industry “stakeholders” are building better mousetraps, so to speak. For instance, many insurers take advantage of extensive in-house staff to perform many investigatory and discovery functions to evaluate a claim or case. Further, ADR is perceived to be a better forum for certain types of litigation – investor/broker, employment, commercial or complex litigation, for instance.

ADR is generally less costly, quicker and provides access to resources and legal experts which create a “better” or more certain process than a trial, and particularly a bench trial. ADR and the “Vanishing Trial”: The Growth and Impact of “Alternative Dispute Resolution” (Stipanowich), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004, pp. 843-912(70). And there happens to be some evidence pointing to the relationship between the advancement of ADR to resolve disputes instead of taking a turn on an increasingly overwhelming docket. Puzzles about Supply-Side Explanations for Vanishing Trials: A New Look at Fundamentals (Seidman Diamond; Bina), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004, pp. 637-658(22).

Eric contends that declining trials are a result of a combination of people generally growing increasingly more adverse to risk, preferring compromise over fighting, avoiding the mounting expense of the pretrial process, and taking advantage of ADR opportunities.

As we turn to the implications of declining trials in Ohio, one is that we may be seeing the creation of more efficient and effective tools to resolve a dispute than a trial. For us “trial lawyers”, we have fewer opportunities to hone our skills under fire. This means less experienced lawyers will be handling the trials which do occur.

This raises particular difficulties for young lawyers, notes Marc Amos, who practices in Dayton with Taft Stettinius & Hollister. Marc also serves on the OSBA Young Lawyers Section Council. Fewer trials mean fewer opportunities for young lawyers to get in the courtroom and talk to a jury, question witnesses, and introduce exhibits. So how do young lawyers get “on the job” training? Marc suggests an expansion of OSBA CLE into mock trials, perhaps with competitions among lawyers and firms around the state.

I welcome further comments and opinions. Please share them with me, and we can keep this important discussion going.

Editor's Note: The above orginally appeared in the newsletter for the Litigation Section of the OSBA. Mr. Chappelear was kind enough to allow me to post this entry and its companion piece on this blog.

Where Have All the Trials Gone?

by Stephen E. Chappelear, Hahn Loeser & Parks, LLP
Chair of the OSBA Litigation Section

If it seems like you are not in court as much as you once were, you are right. Far fewer cases are being resolved by jury trial or court trial than in years past. This has implications for us as litigators.

There were only 881 civil jury trials across all of Ohio in 2008. That is down from 1,204 civil jury trials five years earlier, a 27% drop.

The reduction has been more pronounced in tort cases, where the drop has been 30%, than in the “other civil” category, which has seen an 18% drop.

In 2008, 73 Ohio counties had fewer than 12 civil jury trials, that is, they averaged less than one a month. And 15 counties didn’t have a single civil jury trial that year.

It is rare for a civil case to end in a trial. Only 1.5% of the civil case terminations in 2008 were by trial, either by jury or bench trial. This figure represents the current low point from a steady trend over the past ten years where the high in 1999 was 3.3% of terminations by trial.

So, most of us are not spending a lot of time in courtroom trials. Instead, we are negotiating, conducting discovery, and writing and responding to motions.

What do you think about this? What does this mean for the lawyers of Ohio, and for the members of the OSBA Litigation Section?

I would love to hear your thoughts. Please write me at sechappelear@hahnlaw.com. I will share the comments I receive in a future Newsletter.

Editor's Note: This originally appeared in the OSBA Litigation Section Newsletter. Mr. Chappelear was kind enough to send it to me to be posted on this blog.

Indictment Charging Child Endangerment as Third-Degree Felony May Be Amended to Include Serious Physical Harm Element

Court Rules Amendment Does Not Change ‘Name or Identity of Crime Charged’

2009-0678. State v. Pepka, Slip Opinion No. 2010-Ohio-1045.
Lake App. No. 2008-L-016, 2009-Ohio-1440. Judgment of the court of appeals reversed, and appellee’s convictions and sentence reinstated.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., and O'Donnell, J., dissent and would dismiss the appeal as having been improvidently accepted.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1045.pdf

(March 25, 2010) The Supreme Court of Ohio ruled today that an indictment that charges a defendant with child endangering in violation of R.C. 2919.22(A) as a third-degree felony, but does not contain language that the victim suffered serious physical harm, adequately informs the defendant of the charge against which he must defend and is therefore legally sufficient.

The Court’s 5-2 majority opinion, authored by Justice Maureen O’Connor, reversed a decision of the 11th District Court of Appeals.

The offense of child endangerment in violation of R.C. 2919.22(A) is punishable as a first-degree misdemeanor except where the defendant’s acts or omissions cause “serious physical harm” to a child, in which case pursuant to R.C. 2919.22(E)(2)(c), the offense is elevated to a third-degree felony. In this case, Joseph Pepka of Lake County was indicted on three counts of child endangerment. Each count in the indictment indicated that the offense with which Pepka was charged was a third-degree felony, but the indictment returned by the grand jury did not include a specific finding that the victim had suffered serious physical harm as a result of Pepka’s acts or omissions.

Before Pepka came to trial, the state sought and was granted permission by the trial court to amend the indictment to add to each count the element that the child victim suffered serious physical harm. At trial, before opening arguments, Pepka’s attorneys objected to the amended indictment, arguing that addition of the element of serious physical harm changed the nature of the crime with which he was charged. The court overruled that objection and Pepka was subsequently found guilty and sentenced on three felony counts of child endangerment.

Pepka appealed, arguing that his convictions should be reduced from felonies to first-degree misdemeanors because the grand jury had not made findings that he caused the victim serious physical harm, and without such a finding he had not been properly indicted for felony child endangerment. The 11th District Court of Appeals held that the trial court erred in allowing the state to amend the indictment to add an element not found by the grand jury, and remanded the case to the trial court with a directive to vacate Pepka’s felony convictions and resentence him for three misdemeanor counts of child endangerment. The state sought and was granted Supreme Court review of the 11th District’s judgment.

In today’s decision, Justice O’Connor wrote: “(T)he Ohio Constitution guarantees an accused that the essential facts constituting the offense for which he is tried will be found in the indictment by the grand jury. As this court recently reaffirmed, ‘[u]nder Crim.R. 7(D), a court may amend an indictment “at any time” if the amendment does not change “the name or identity of the crime charged.” ’ ... An amendment that changes the penalty or degree of the charged offense changes the identity of the offense, and is not permitted by Crim.R. 7(D). ... As long as the state complies with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original indictment omits an essential element of the offense with which the defendant is charged.”

“(I)t is undisputed that the name of the crime alleged against Pepka was never amended—he was always charged with endangering children in violation of 2919.22(A) ... However, the Eleventh District held that by adding the language specifying that the alleged crimes resulted in serious physical harm to the victim, the state modified the charges from first-degree misdemeanors to third-degree felonies. As a result, the court of appeals concluded, the amendment did not satisfy Crim.R. 7(D), because it impermissibly changed the identity of the crimes.”

“We hold that the indictment was sufficient. ... The original indictment set forth the elements of child endangering under R.C. 2919.22(A) and specified that Pepka was charged with third-degree felonies. The only circumstance in which child endangering in violation of R.C. 2919.22(A) is a third-degree felony is when the victim suffers serious physical harm. ... Thus, the original indictment was sufficient to provide Pepka adequate notice of both the offenses and the degree of the offenses with which he was charged. In fact, Pepka’s counsel conceded at trial and at oral argument in this court that Pepka knew ‘[f]rom the beginning’ that he was facing third-degree-felony charges and that the state would argue that (the victim) suffered serious physical harm. Pepka was also aware that the state planned to submit evidence at trial of the seriousness of (the victim’s) injuries, based on discovery received from the state months before trial – including ... medical records and the consulting physician’s report.”

Justice O’Connor concluded that: “Pepka was on notice from the initial indictment that he was charged with a third-degree felony for violating R.C. 2919.22(A), and the Revised Code makes it clear that the only circumstance in which endangering children under R.C. 2919.22(A) is a third-degree felony is when the victim suffers serious physical harm. Pepka’s original indictment was sufficient to charge him with a third-degree-felony offense, and the amended indictment did not change the name or identity of the crime charged. Therefore, we reverse the decision of the court of appeals and reinstate Pepka’s third-degree-felony convictions and sentence.”

The majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith A. Lanzinger and Robert R. Cupp.

Chief Justice Thomas J. Moyer and Justice Terrence O’Donnell dissented, stating that they would dismiss the state’s appeal as having been improvidently accepted for review.

Contacts
Joshua S. Horacek, 440.350.2683, for the State of Ohio and Lake County prosecutor’s office.

Albert L. Purola, 440.951.2323, for Joseph Pepka.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions

University of Akron Law School Wins National Moot Court Competition in Columbus

The University of Akron School of Law took first place at the Fifth Annual National Moot Court Competition in Child Welfare and Adoption Law earlier this month at the Ohio Judicial Center and Ohio Statehouse.

Two other Ohio law schools – the University of Cincinnati College of Law and Capital University Law School – were also among 17 law schools from around the country vying for the championship sponsored by the National Center for Adoption Law & Policy at Capital’s law school and four other prominent child advocacy organizations.

Teams demonstrated their advocacy skills during oral arguments on the topic of “Assisted Reproduction and Same Sex Relationships.”

In the final round, Akron law school students Maria Klutinoty and Emily Trettel defeated the Loyola University Chicago School of Law. Trettel also received the award for the Best Oralist.

The final round judging panel included Jack Guttenberg, Capital law school dean, and representatives of the competition’s national partners: Kathleen Hogan Morrison of the American Academy of Adoption Attorneys; Janet Sherwood of the National Association of Counsel for Children; and Magistrate Paul DeMott (Hamilton County Juvenile Court) of the National Council of Juvenile and Family Court Judges.

Contact: Chris Davey or Bret Crow at 614.387.9250.

Electronic Notice of Class Action Settlements

by Attorney Adam Russ of the law firm Frantz Ward, LLP.

Editor's Note: This was sent to me by Attorney Greg Frakas because he thought that it would be of interest to attorneys who do class action litigation. I would like to take this opportunity to thank Attorney Farkas and Attorney Russ for sending me this article.

Emerging Issues: Electronic Notice of Class Action Settlements

Like its federal counterpart, Rule 23 of the Ohio Rules of Civil Procedure governs class actions. Once a trial court certifies a class under Rule 23, all potential members of that class “who are identifiable through reasonable effort” must be given “best notice practicable” in order to comport with due process concerns. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175 (1974). “A class action cannot be settled unless class members have been afforded notice of the proposed settlement and the trial court has determined, after a hearing on the matter, that the settlement is fair, adequate and reasonable.” West v. Carfax, Inc., Case No. 2008-T-0045, 2009-Ohio-6857, citing In re Kroger Co. Shareholders Litigation, 70 Ohio App.3d 52, 67 (Ohio 1990); Ohio R. Civ. P. 23(E).

WHAT CONSTITUTES “BEST NOTICE PRACTICABLE” TO CLASS MEMBERS?

A recent Ohio appellate court decision addressed the issue of how electronic mail fits into the analysis of constitutes the “best notice practicable” under Rule 23. In West v. Carfax, Inc., Case No. 2008-T-0045, 2009-Ohio-6857, the Ohio Court of Appeals, Eighth Appellate District, decided an appeal of certification of a revised class action settlement involving claims brought against Defendants Carfax, Inc., and Polk Carfax, Inc., which sell vehicle history reports for used cars. Id. at 1-2. The suit alleged, among other things, that the Defendants “violated the Ohio Consumer Sales Practices Act, and the common law, by not informing customers its reports did not contain all information regarding vehicles’ histories…” Id. at 2. Two years after it was filed, Defendants entered into a proposed settlement, which the Trumbull County Court of Common Pleas preliminarily approved. Id. at 3. After objections were raised to the proposed settlement, the Trumbull County Court of Common Pleas approved a revised settlement. Id. at 4-6. Multiple objections followed, resulting in the appeal.

On appeal, the Eighth Appellate District court reviewed three assignments of error de novo to determine whether the class notice approved by the trial court violated procedural due process, including:

(1) whether the trial court erred in approving the class action settlement, which allegedly failed to take reasonable steps to provide individual notice to all class members; and

(2) whether the trial court erred in approving a class action settlement without requiring the parties to provide any indication of the likely redemption rate, and, in particular, information about the number of claims made.

Id. at 8-9.

The defendants had provided notice of the proposed revised settlement using two primary methods: (1) individual email notice to those email addresses of purchasers listed in the Carfax database after October 27, 2003, and (2) a one-time publication in both Investor’s Business Daily and USA Today. Id. at 15. The email effort used achieved a non-rejection rate of 92% of all emails sent, and the publications chosen had a combined circulation of 2.7 million readers per day. Id. In addition, Carfax and class counsel also published notice on their websites. Id.

Nevertheless, appellants contended that the notice provided violated due process for several reasons. Appellants pointed out that Carfax customers prior to October 27, 2003, received no individualized notice, while those who received email notice could treat it as “spam” and delete it. An expert witness also suggested that Defendants could have compiled a list for mail notification for by comparing the names of the present owners of each effected vehicle with their customer lists. Id. at 17. That expert also believed that notice in the chosen publications was unlikely to be read by the population demographic that dominates the used car market. Id.

The Court’s majority opinion reversed the trial court, and it found that notice of settlement to the class was defective. Id. at 19. Based upon the specific facts of the case, the Court required that Defendants provide individualized traditional mail notice of the settlement to al members of the class “who may be identified with reasonable effort” rather than through electronic means. Id. at 19. Furthermore, the Court found that limiting email notice to identifiable potential class members from October 2003 forward was unreasonable as “a large percentage of potential class members from as far back as 2000 might be reached by email” or through the preferred traditional mail method. Id. at 20.

WHEN IS ELECTRONIC NOTICE UNREASONABLE?

In addition to the majority opinion, Judge Mary Jane Trapp wrote a separate concurring opinion to elaborate on the adequacy of email notification to class members. Id. at 33. The concurring opinion directly questioned the reasonableness of the measures employed by Defendants given their business model. She noted that witnesses in the case acknowledged that Carfax had a VIN for each car that was subject to a report and that Polk Carfax “is in the very business of providing names and address of vehicle owners in class actions.” Id. at 35. As a result, Carfax “could have provided Polk Carfax a list of the VINs for the subject vehicles, and Polk Carfax could have prepared an address list for the current owners of the vehicles. By comparing the names of the current owners and those on its customer list, Carfax could have then prepared a list for mail notification.” Id. Defendants never took these steps, relying instead upon electronic notice.

Judge Trapp’s opinion highlighted the problems of email notice generally, pointing out that email often may not reach a potential class member due to infrequent use, while others change email addresses with no forwarding program in place, making such notice unlikely to be received. Id. at 36. Although she recognized that, “[o]bviously, notification by email is more convenient and less expensive, she strongly cautioned that “the law is quite clear that concerns about the financial burdens of such notice cannot excuse noncompliance with that requirement.” Id. at 37, citing Kanvaly v. EBay, Inc., 245 F.R.D. 71, 92 (E.D.N.Y. 2007). Though courts have deemed email notice “particularly suitable where… claims arise from their visits to the defendant’s Internet business,” the defendants in West were both in the business of information retrieval and database maintenance, making them “particularly well suited to identify class members and their addresses.” Id. at 39. In light of that, Judge Trapp opined that email notification “falls short of the ‘reasonable effort’ required by due process and is not an adequate substitute for the more reliable method of first-class mail notification.

Not all of the judges on the Eighth Appellate District panel, however, agreed with the majority or concurring opinion. Judge Diane V. Grendell wrote a dissenting opinion that would have affirmed the trial court’s approval of the revised settlement. Like Judge Trapp’s concurrence, the dissent focused on Defendants’ actual business model but conversely found that, because Carfax sends its reports to customers via email, such email notice was reasonable and would be the “best notice practicable” to potential class members. Importantly, she noted that Carfax does not use direct mail as its primary means of communication; thus, requiring Defendants to obtain individual addresses could be expensive, with no guarantee that it would result in increased notification to a significant number of additional class members. Id. at 47.

Judge Grendell also looked at the totality of notice provided to potential class members. Even if email notice had not been the “best notice,” Judge Grendell believed that the other forms of notice used during the case – publication of the revised settlement notice in Investor’s Business Daily and USA Today, coupled with the considerable media attention given to the case – provided adequate notice to potential class members. Id. at 45-46; see also; Thomas v. NCO Fin. Sys. Inc., 2004 U.S. Dist. LEXIS 5405, at *14-*15 (E.D. Pa. 2004). In so finding, she relied upon the notion that individual notice is not required in instances where there is no reasonable way to sufficiently identify the class members. Id. at 47.

CONCLUSION

Even though email notice of a settlement may be cost effective and consistent with a party’s communication methods under its business model, such notice still may not be the “best notice practicable” for the potential class members. The West decision illustrates that in reaching a class action settlement, parties must be careful to identify all potential members of that class through “reasonable effort.” In doing so, defendants must be careful to take additional steps to identify and notify potential class members, even where doing so may be more expensive or cumbersome than using today’s electronic methods.

For more information, contact the attorneys of Frantz Ward LLP, 2500 Key Center, 127 Public Square, Cleveland, OH 44114, 216-515-1660.
MARCH ■ 2010

Judge Kimbler's Criminal Docket for March 25, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court on March 25:

Alexandria Albright, 19, of Mohawk Trail in Brunswick, was sentenced to five years of community control sanctions on one count of Receiving Stolen Property, a fifth-degree felony. She also was ordered to pay $3,000 restitution to her victim.

Robert Padgett, 30, of Front Street in Rittman, pleaded guilty to three counts of Breaking and Entering and three counts of Vandalism, all of which are fifth-degree felonies. Sentencing is scheduled for April 7.

Timothy Sands, 37, of Sanitorium Road in Akron, was sentenced to one year in prison on one count of Passing Bad Checks, a fifth-degree felony.

Charles Vaughn, 28, of Berea Road in Cleveland, was sentenced to three years of community control sanctions on one count of Trafficking in Crack Cocaine, a fourth-degree felony and two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. His driver’s license was suspended for six months.

Jeffrey Foster, 35, of Ingleside Drive in Parma, pleaded not guilty to one count of Theft of a Check, a fifth-degree felony. A jury trial is scheduled for May 25.

William Reindl, 29, of Thornton Drive in Parma, pleaded not guilty to three counts of Trafficking in Drugs, Counterfeit Controlled Substance, all of which are fifth-degree felonies. A jury trial is scheduled for May 24.

Judge Collier's Criminal Docket for March 24, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court on March 24, 2010 for criminal cases:

Karen Byers, 57, of Fry Road in Brook Park, pleaded guilty to one count of Complicity to Commit Trafficking in Cocaine, a fifth-degree felony. She was sentenced to 48 days in jail, with credit for 48 days served. Her driver’s license was suspended for six months.

James Foote Jr., 31, of Larkins Way in Medina, pleaded guilty to one count of Trafficking in Marijuana, a fifth-degree felony. Sentencing is scheduled for May 3.

Matthew Perkins, 21, of Lafayette Road in Medina, pleaded guilty to one count of Endangering Children, a fourth-degree felony. He was sentenced to five years of community control sanctions, with six months in jail. He also was ordered not to have any contact with anyone younger than six years old until he completes a Domestic Violence Awareness Program.

Jamie Shupe, 38, of Glenway Drive in Brook Park, pleaded no contest to one count of Theft, a fifth-degree felony. Sentencing is scheduled for May 10.

Ohio Supreme Court Rules that No Contest Plea Cannot be Used In Declaratory Judgment Action

Where Insurer Seeks Judgment That Insured’s Illegal Acts Caused His Loss

2009-0321. Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., Slip Opinion No. 2010-Ohio-1043.
Sandusky App. No. S-08-006, 180 Ohio App.3d 315, 2008-Ohio-6946. Judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs in judgment only.
Lundberg Stratton, J., concurs in part and dissents in part.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1043.pdf

(March 24, 2010) The Supreme Court of Ohio ruled today that Ohio rules of evidence and criminal procedure prohibit the use of a policyholder’s criminal convictions based on no-contest pleas in a civil action in which an insurer seeks a declaratory judgment denying coverage under its policy.

The Court’s 6-1 decision, authored by Justice Judith Ann Lanzinger, affirmed a decision of the 6th District Court of Appeals.

Ohio Criminal Rule11(B)(2) states that a defendant’s plea of no contest to a criminal charge “shall not be used against the defendant in any subsequent civil or criminal proceeding.” Similarly, Ohio Evidence Rule 410 specifies that a plea of no contest entered in a criminal case “is not admissible in any civil or criminal proceeding against the defendant who made the plea.”

In this case, the Elevators Mutual insurance Company issued a commercial fire insurance policy in the name of J. Patrick O’Flaherty’s Inc., an Ohio corporation that owned a restaurant by the same name in Fremont. The officers and sole shareholders of O’Flaherty’s, spouses Richard and Jan Heyman, were not named as insureds in the policy but were identified as loss payees.

O’Flaherty’s was damaged by a fire in February 2001. The company submitted a claim to Elevators Mutual to recover insurance proceeds for its loss. Elevators Mutual advanced O’Flaherty’s $30,000 on the claim subject to a reservation of rights pending the completion of its fire investigation. Following the investigation, Elevators Mutual concluded that Richard Heyman had intentionally started the fire and denied the claim based on a policy exclusion for loss or damage caused by an insured’s dishonest or criminal act.

Elevators Mutual filed suit against O’Flaherty’s, and Richard and Jan Heyman individually, seeking a declaratory judgment that it owed no coverage under its policy and to recover damages and the $30,000 it had advanced to them. The defendants filed a counterclaim for breach of contract, bad faith, fraud, and spoliation of evidence. Less than a month after the complaint was filed, Richard and Jan Heyman were indicted on charges of aggravated arson, arson, and insurance fraud in relation to the fire. The trial court stayed the civil case until the criminal charges were resolved. Richard Heyman pleaded no contest to the charges of arson and insurance fraud and was convicted. The charges against Jan Heyman were dismissed.

Both sides afterwards filed motions for summary judgment in the declaratory judgment action. In its motion, Elevators Mutual asked the trial court to rule that because Richard Heyman had entered no contest pleas to criminal charges of arson and insurance fraud in connection with the fire at O’Flaherty’s, he was estopped (legally barred) from disputing in the civil action that his own illegal acts had caused the damage for which he was seeking coverage. The court denied both summary judgment motions, holding that use of Heyman’s no contest pleas in a criminal case to limit his rights in a subsequent civil action would violate the purpose of Evid.R.410.

In later pretrial proceedings, Elevators Mutual sought an order permitting it to introduce Heyman’s criminal convictions, rather than his pleas, as substantive evidence of arson and insurance fraud. The trial court granted the motion. In light of its ruling, the court reconsidered Elevators Mutual’s previous motion for summary judgment. This time, the court granted summary judgment in favor of Elevators Mutual on the basis that Heyman’s criminal convictions were admissible evidence that he had intentionally set the fire, thus excluding O’Flaherty’s from recovering any insurance proceeds for the fire loss.

The defendants appealed. On review, the 6th District Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings. The appellate panel ruled that the trial court erred in distinguishing between a plea of no contest and a conviction based on a no contest plea, holding that neither was admissible under Evid.R. 410 and Crim.R. 11(B)(2). Elevators Mutual sought and was granted Supreme Court review of the 6th District’s decision.

In today’s decision affirming the court of appeals’ judgment, Justice Lanzinger wrote: “The purpose behind the inadmissibility of no contest pleas in subsequent proceedings is to encourage plea bargaining as a means of resolving criminal cases by removing any civil consequences of the plea. ... The rule also protects the traditional characteristic of the no contest plea, which is to avoid the admission of guilt. The prohibition against admitting evidence of no contest pleas was intended generally to apply to a civil suit by the victim of the crime against the defendant for injuries resulting from the criminal acts underlying the plea. ... The plain language of Evid.R. 410(A) prohibits admission of a no contest plea, and the prohibition must likewise apply to the resulting conviction. To find otherwise would thwart the underlying purpose of the rule and fail to preserve the essential nature of the no contest plea.”

Justice Lanzinger acknowledged that some federal and state courts have interpreted the rule as prohibiting the use of a no contest plea only against the person who entered it, meaning that the plea would be admissible when a former criminal defendant seeks to benefit from his or her own criminal acts by using the rule offensively. She pointed out, however, that “Evid.R. 410(A) states that a no contest plea ‘is not admissible in any civil or criminal proceeding against the defendant who made the plea’ (emphasis added) and specifies no exception for offensive versus defensive use. In this declaratory judgment action, Elevators Mutual intends to offer the fact of the conviction based on Richard Heyman’s no contest plea against him. This is contrary to the clear language of the rule, and we decline to limit its broad application.”

Noting that Michigan has changed its rules to permit evidence of a criminal conviction based on a no contest plea in cases where the offender is the plaintiff rather than the defendant in a subsequent civil action, Justice Lanzinger wrote: “There is, of course, well-established public policy that no one should profit from his or her own wrongdoing. ... Public policy may indeed call for an amendment to the rules to allow admission of evidence of no contest pleas and convictions in cases such as this, to prevent a wrongdoer from benefiting by the wrong. ... Until an amendment provides otherwise, we must apply the Evidence Rule as it is currently written and bar evidence of a no contest plea or conviction in this civil action.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor and Robert R. Cupp. Justice Terrence O’Donnell concurred in judgment only.

Justice Evelyn Lundberg Stratton entered an opinion in which she concurred with the majority’s holding that Evid.R. 410 and Crim.R.11(B)(2) prohibit evidence of a no-contest plea or a conviction based on such a plea in a subsequent civil case, and said she believes that the rules should be changed to prevent a person from profiting from a crime of which he has been convicted. But Justice Stratton also stated that in her view a party can, and in this case did, waive the protection of those rules by agreeing to the terms of a contract such as an insurance policy.

She wrote: “Here, the parties contracted for fire insurance but excluded coverage for ‘loss or damages caused directly or indirectly by’ the dishonest or criminal acts of the insured. Also, the policy voided any coverage ‘if you or any other insured, at any time, intentionally conceal or misrepresent a material fact concerning’ a claim. I believe that when Richard Heyman, on behalf of O’Flaherty’s, purchased this insurance policy containing these provisions, he waived the protections of the Criminal Rules and the Rules of Evidence as they may apply to the admissibility of convictions for dishonest or criminal acts based on pleas of no contest.”

Contacts
Robert E. Chudakoff, 216.583.7000, for Elevators Mutual Insurance Co.

W. Patrick Murray, 419.624.3000, for Patrick O’Flaherty’s and Richard and Jan Heyman.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions

Ohio Supreme Court Affirms Death Penalty for Akron Man

2006-1502. State v. Fry, Slip Opinion No. 2010-Ohio-1017.
Summit C.P. No. 2005-08-3007. Convictions and sentences affirmed, but cause remanded to the trial court for imposition of postrelease control.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., concurs separately.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1017.pdf

(March 23, 2010) The Supreme Court of Ohio today upheld the convictions and death sentence of Clarence Fry of Akron for the aggravated murder of his estranged girlfriend Tamela Hardison in July 2005.

Hardison, who had filed assault and aggravated menacing charges against Fry, was stabbed to death five days after Fry was released on bond while she was babysitting for her grandchildren at her daughter’s home. One of the children, a five-year-old who was an eyewitness to the killing, testified at trial that Fry had entered the house carrying a large butcher knife and used it to fatally stab Hardison.

In today’s 7-0 decision, authored by Justice Judith Ann Lanzinger, the Court affirmed Fry’s convictions for aggravated murder and death penalty specifications. It also affirmed his convictions for several non-capital offenses including aggravated burglary, domestic violence, tampering with evidence, menacing by stalking and intimidation of a crime victim, but remanded to the trial court for the imposition of the appropriate term of postrelease control.

In rejecting all 20 allegations of trial court error raised by Fry as grounds to reverse his convictions or reduce his death sentence to a term of life imprisonment, the Court denied Fry’s claims that three counts in the grand jury indictment returned against him, including one death penalty specification, were defective for failure to state a required guilty mental state (mens rea).

Justice Lanzinger noted that in charging Fry with aggravated felony murder, the state’s indictment specified that Hardison was killed during the commission of the underlying crime of aggravated burglary, and also charged him with aggravated burglary in a separate count. Because the separate aggravated burglary count set forth the required guilty mental state for that crime, which is that the accused entered a premises “with a purpose” to commit a criminal offense, Justice Lanzinger held that the indictment sufficiently notified Fry that the state must prove he acted “purposefully.” Similarly, she wrote, the death penalty specification for felony murder in Fry’s indictment “does not set forth the mens rea because R.C. 2929.04(A)(7) does not include a mens rea component. Aggravated burglary was charged as the sole predicate offense in Specification One. As previously discussed, aggravated burglary was separately charged, and the indictment properly alleged the mens rea for this offense. Accordingly, there was no defect in this indictment because aggravated burglary contains the mens rea component for felony murder.”

The Court also rejected claims that the trial court violated Fry’s Sixth Amendment right to confront witnesses against him by admitting “hearsay” testimony in which a police officer, a nurse and a victim-assistance advocate testified at trial regarding statements made to them by Hardison after the July 18 domestic violence incident that caused her to file assault and aggravated menacing charges against Fry. Justice Lanzinger wrote that Hardison’s statements to a nurse at Akron City Hospital who treated her for injuries were non-testimonial in nature and therefore not barred by the hearsay rule because she had already given a full statement to the police, and an objective declarant could reasonably believe her statements to a nurse were solely for medical purposes and would not be repeated at trial.

With regard to testimony relating statements made by Hardison to a police officer who interviewed her at the scene of the July 18 domestic-violence incident, and to a victim-assistance advocate with whom she spoke later, the Court held that Hardison’s statements were testimonial in nature, but that Fry forfeited his constitutional right to directly confront the maker of those statements because Hardison’s unavailability to testify against him in person was a direct result of his own intentional action in stabbing her to death.

Justice Lanzinger wrote, “(T)he record demonstrates that Fry’s killing of Hardison was ‘designed’ to prevent her from testifying against him in any future criminal proceedings. While in jail and awaiting a court hearing on assault charges, Fry made several phone calls to Hardison and his mother about the case. He began coercing Hardison to drop the charges against him and threatening her if she did not. After Fry received the paperwork that Hardison had signed against him, Fry told her, ‘You don’t know me.’ He said, ‘I got two of them under my belt ... toe tags.’ He then told Hardison to ‘fix this, fix this.’ The jury also found Fry guilty of Specification Two of Count One for purposely killing Hardison to prevent her testimony in another criminal proceeding or killing her in retaliation for her testimony in any criminal proceeding under R.C. 2929.04(A)(8). Thus, the jury’s verdict supports the conclusion that Fry forfeited his right to confront Hardison’s statement to police. Based on the foregoing, Hardison’s statements to (the officer) were properly admitted.”

Among the other assignments of error, the Court also overruled Fry’s claim that his death sentence must be set aside because the trial judge filed the sentencing order in his case before allowing Fry to address the court. Justice Lanzinger wrote, “(T)he trial court here allowed Fry an opportunity to personally plead for his life at the sentencing hearing, and because Fry made a statement, the record is clear as to what he said. Having listened to Fry, the court had an opportunity to evaluate his statement and could have modified its sentencing entry if it had felt obliged to do so. However, the trial court chose not to modify the sentence ... While it is true that the court violated Crim.R. 32(A) by filing the sentencing entry pursuant to R.C. 2929.03(F) before the sentencing hearing, in accordance with (State v.) Reynolds(1998), and under the facts of this case, we hold the premature filing to be harmless error.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.

Justice Paul E. Pfeifer entered a separate opinion concurring with the bulk of the majority’s opinion including its affirmance of a death sentence under the specification for the murder of a witness to prevent or retaliate for the victim’s testimony against the killer. He disagreed, however, with the majority’s affirmance of the felony-murder death penalty specification based on Fry’s conviction for aggravated burglary.

He wrote: “I conclude that the felony-murder death specification in this case is inappropriate. ... The felony here, which elevates an ordinary murder case to a death-eligible felony-murder case, is aggravated burglary. ... But under the facts in this case, the aggravated burglary, trespassing with the intent to commit a criminal offense, is implicit in the murder — it is not a separate crime. In essence, the murder is being counted twice, once as a murder and once as an aggravated burglary. The death-penalty scheme does not envision that every murder that involves a trespass will be a death-penalty case, though that is essentially what happens when aggravated burglary is chargeable. The expansive view that this court gives the felony-murder rule leads to death sentences in cases where the murder, however heinous, does not warrant death. ... Fry did not kill while committing a felony; the felony was incidental to the murder. Accordingly, I would reverse the R.C. 2909.04(A)(7) death specification.”

Contacts
Philip D. Bogdanoff, 330.643.2791, for the state and Summit County prosecutor’s office.

George C. Pappas, 330.535.6185, for Clarence Fry.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.

Ohio Supreme Court Upholds 2005 Legislation Limiting Workplace Intentional Torts

Statute Requires Injured Worker to Show Employer 'Intended to Cause Injury'

In two separate decisions announced today, the Supreme Court of Ohio upheld as constitutional a 2005 state law that limits the ability of workers who are injured on the job to sue their employers for a “workplace intentional tort” in addition to receiving state workers’ compensation benefits. The challenged statute requires that workers asserting intentional tort claims against their employer must prove that, in committing the acts or omissions that resulted in a worker’s injuries, the employer acted “with a deliberate intent to cause injury.”

In Kaminski v. Metal & Wire Products Co., the Court held 6-1 that the challenged statute, R.C. 2745.01, does not violate Section 34 or 35 of Article II of the Ohio Constitution. Those sections authorize the General Assembly to enact statutes that provide for “the comfort, health, safety and general welfare of all employees,” and to adopt laws facilitating the resolution of employment-related injury claims through the Ohio Workers’ Compensation program.

In Stetter v. R.J. Corman Derailment Services, the Court answered questions of state law submitted by the U.S. District Court for the Northern District of Ohio. In a 6-1 decision, the Court found that R.C. 2745.01 does not violate the provisions of the Ohio Constitution that guarantee trial by jury, a remedy for damages, open courts, due process, equal protection of the laws or the separation of powers between the legislative and judicial branches of government. The Court also held that, while R.C. 2745.01 limits the ability of workers to assert common law employer intentional tort claims previously recognized by this Court, it does not eliminate such claims. Based on those findings, and its holding in Kaminski, the Court concluded that R.C. 2745.01 is constitutional on its face.

The majority opinions in both cases were written by Justice Robert R. Cupp.

2008-0857. Kaminski v. Metal & Wire Prods. Co., Slip Opinion No. 2010-Ohio-1027.
Columbiana App. No. 07-CO-15, 175 Ohio App.3d 227, 2008-Ohio-1521. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Moyer, C.J., and Lundberg Stratton, O'Donnell, and Cupp, JJ., concur.
O'Connor, J., concurs in judgment only.
Lanzinger, J. concurs in part.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1027.pdf


(March 23, 2010) In today’s Kaminski decision, Justice Cupp traced the evolution of Ohio’s workers’ compensation system to 1912, when Section 35, Article II of the state constitution was initially adopted. Under amendments to the original version adopted in 1924, Justice Cupp noted, Section 35, Article II provides that a worker who is injured in the course of his job duties does not have a right to recover for those injuries through a civil lawsuit against his employer. In return, the law requires employers to make regular payments to an insurance fund from which injured workers may recover for their medical expenses and lost wages, regardless of who was at fault for their injuries, through an administrative process administered by the Ohio Bureau of Workers’ Compensation.

He noted, however, that under case law developed by Ohio courts beginning in the 1980s and clarified in the Supreme Court of Ohio’s 1991 decision in Fyffe v. Jeno’s Inc., certain injured workers have been held eligible to pursue an “intentional tort” lawsuit against their employer in addition to receiving workers’ compensation benefits. In those decisions, Justice Cupp wrote, the Court held that an injured worker may sue for civil damages outside the workers’ compensation system when the worker can show that either: 1) the employer intentionally caused injury to the worker; or 2) the employer knew about a workplace condition or practice that was so dangerous that exposing a worker to it created a “substantial certainty” of injury and, despite that knowledge, the employer required the worker to be exposed to the dangerous practice or condition, resulting in injury to the worker.

Justice Cupp wrote that since 1986 the legislature has made several attempts to enact laws that codify and limit the scope of workplace intentional tort claims, but the prior statutes enacted for that purpose were ruled unconstitutional by this Court first in Brady v. Safety-Kleen Corp. (1991) and later in Johnson v. BP Chemicals Inc. (1999). Effective April 7, 2005, he noted, the General Assembly adopted current R.C. 2745.01, which specifies that in order to prevail in an intentional tort action asserting a “substantial certainty” claim, the plaintiff must show that his employer acted “with deliberate intent to cause an employee to suffer an injury ...”

Rose Kaminski was injured in the course of her employment with Metal & Wire Products Inc. in June 2005. She applied for and received workers’ compensation benefits for her injuries, and also filed an intentional tort claim against her employer in the Columbiana County Court of Common Pleas. In her pleadings, Kaminski asked the trial court to hold that then recently enacted R.C. 2745.01 was unconstitutional, and instead to consider her claim under the common law “substantially certain to cause injury” standard set forth in the Supreme Court’s 1991 Fyffe decision.

Metal & Wire Products counterclaimed, asking the court to issue a summary judgment declaring that current R.C. 2745.01 was constitutional. The court granted summary judgment finding the statute constitutional and therefore applicable to Kaminski’s complaint. It subsequently granted summary judgment to the employer, dismissing Kaminski’s complaint on the ground that she had not made the showing required by R.C. 2745.01 that Metal & Wire Products had acted with a “deliberate intent” to cause her injuries.

Kaminski appealed. On review, the 7th District Court of Appeals held that the challenged statute was unconstitutional, vacated the trial court’s award of summary judgment, and remanded the case for consideration of Kaminski’s intentional tort claim under the common law standard. In its decision, the 7th District pointed out that in Brady and Johnson the Supreme Court of Ohio had overturned as unconstitutional similar statutory language limiting intentional tort lawsuits, based on the Court’s determination that the legislature’s constitutional authority to restrict common law causes of action affecting injured workers is limited by Sections 34 and 35 of Article II. Because the Supreme Court had not abandoned or overruled its prior decisions in Brady and Johnson, the 7th District held that it must follow those precedents and on that basis found the 2005 statute unconstitutional. Metal & Wire Products sought and was granted Supreme Court review of the 7th District’s ruling.

In today’s decision, Justice Cupp cited several Supreme Court decisions announced since 1999in which the Court has held, contrary to Johnson, that Sections 34 and 35 of Article II of the state constitution do not restrict the constitutional authority of the legislature but rather affirmatively grant the General Assembly wide authority to enact laws regulating wages, hours and workplace conditions affecting employees generally, and to adopt laws and codify common law in order to balance the rights and obligations of employers and employees in the operation of the state workers’ compensation system.

In light of those decisions, Justice Cupp wrote: “Notwithstanding the clear text of Section 34, this court in Johnson interpreted Section 34 as placing substantive limits on the General Assembly’s authority to enact employer intentional-tort legislation. However, American Association of University Professors v. Central State Univ. II (1999) and Lima v. State (2009) contradict Johnson’s view that Section 34 limits the General Assembly’s authority to enact legislation. Because Lima v. State and AAUP II are the more recent and controlling authorities regarding Section 34, they have effectively superseded the interpretation given to that section by Johnson. Consequently, the decision in Johnson has no stare decisis value on this issue. Because Section 34 is not a limitation on the General Assembly’s authority, it necessarily follows that R.C. 2745.01 does not violate it.

“Similarly, notwithstanding the clear text of Section 35, this court in Johnson in effect held that any legislative attempt to govern employer intentional torts is per se invalid under that section, asserting that this area of law ‘is beyond the reach of constitutional empowerment.’ ... Such an interpretation of Section 35 cannot be reconciled with the plain language of the section or with the historical underpinnings of its enactment. Moreover, Johnson's interpretation is inconsistent with the later, and more accurate, view of Section 35 expounded in Holeton (v. Crouse Cartage Co., 2001) ... and in Bickers (v. W&S Life Insurance Co., 2007) ... Therefore Johnson’s analysis of Section 35 can have no stare decisis value in our inquiry. Section 35 is simply irrelevant to the constitutionality of R.C. 2745.01. Because Section 35 is not a limitation on the General Assembly’s authority to legislate in the area of employer intentional torts, it necessarily follows that R.C. 2745.01 does not violate Section 35.”

While acknowledging “serious internal flaws” in the analysis of Sections 34 and 35 set forth in Johnson, the Court noted that the former statute held unconstitutional in Johnson included several provisions not included in the version of R.C. 2745.01 challenged by Kaminski, and therefore concluded: “(B)ecause a different statute was at issue in Johnson, we constrain the interpretation of Section 34 and 35 to the specific context of that case, and we decline to overrule Johnson.”

The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton and Terrence O’Donnell. Justice Maureen O’Connor concurred in judgment only.

Justice Judith Ann Lanzinger entered a separate opinion concurring with the majority’s judgment, but stating that in her view the Court should have formally overruled and abandoned Johnson as precedent. She wrote: “The majority opinion takes great pains to show how Johnson’s analysis of these constitutional sections was seriously flawed. Yet instead of cleanly and honestly overruling the case, Johnson is merely limited ‘to the specific context of that case.’ ... This is done in spite of our now contrary position that Section 34 is not a limitation on the General Assembly’s authority to enact legislation in the area of employer intentional torts.”

Quoting from her concurrence in another recent case in which a prior decision of the Court was identified as erroneous but not overruled, Justice Lanzinger concluded: “‘To serve the need for predictability, consistency, and clarity in the law, we must be forthright about overruling cases when that is our true intent and is the practical effect of a decision.’ To do otherwise leads to confusion, leaving parties to struggle to determine what law is controlling.”

Justice Paul E. Pfeifer entered a dissent in which he reviewed a historical pattern dating back to 1982 in which he said the Supreme Court has held that workers injured on the job by the intentional conduct of their employers have a constitutional right to seek relief for that harm outside of the workers’ compensation system, the legislature has responded by enacting bills that define workplace intentional torts so narrowly that the cause of action is rendered “illusory,” and the Court has responded in turn by ruling that the restrictions imposed by the legislature were unconstitutional.

He wrote: “In the midst of that tug of war, this court developed in Fyffe v. Jeno’s, Inc. (1991), ... a workable common-law test to determine the requisite intent to prove a workplace intentional tort, a test rooted in Section 8(A) of the Restatement of Law 2d, Torts. But today, the cycle ends, as the General Assembly has found a court that agrees with it: workers have no constitutionally protected right to seek redress for injuries suffered from their employer’s intentional torts. That this court reaches that decision today is, standing alone, no sin. The common law does, necessarily, evolve and change. The common law, however, should not be ignored; its repudiation should at least be acknowledged. Without overturning years of contrary precedent, this court anoints the General Assembly’s abolition of workplace intentional torts. I disagree with the majority decision. I would follow this court’s precedent in Johnson, Fyffe, Brady, Jones, and Blankenship and affirm the judgment of the court of appeals. Accordingly, I dissent.”

Contacts
Irene C. Keyse-Walker, 215.592.5000, for Metal & Wire Products Company.

David A. Forrest, 216.771.4050, for Rose Kaminski.

2008-0972. Stetter v. R.J. Corman Derailment Servs., L.L.C., Slip Opinion No. 2010-Ohio-1029.
United States District Court, Northern District of Ohio, Western Division, Certifying Questions of State Law, No. 3:07CV866. Certified questions answered in the negative.
Moyer, C.J., and Lundberg Stratton, O'Donnell, Lanzinger, and Cupp, JJ., concur.
O'Connor, J., concurs in the answers only.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1029.pdf

(March 23, 2010) Carl Stetter of Wood County was injured in the course of his employment with R.J. Corman Derailment Services in March 2006. He applied for and was granted state workers’ compensation benefits, and also filed a civil suit against Corman in the Wood County Court of Common Pleas asserting an intentional tort claim.

Corman exercised its option to remove the case to federal district court. In its answer to Stetter’s complaint, Corman asserted the defense that because Stetter’s injuries occurred after R.C. 2745.01 took effect in April 2005, his intentional tort claim must be dismissed because he had not produced evidence proving the statutory requirement that Corman had acted with “deliberate intent” to cause his injuries. Stetter entered a motion asking the district court to reject Corman’s statutory defense on the ground that R.C. 2745.01 violates multiple provisions of the Ohio Constitution. The district court noted that the Supreme Court of Ohio had not yet considered the constitutionality of R.C. 2745.01, and requested that this Court answer eight questions of state law corresponding to each of Stetter’s claimed constitutional infirmities.

Writing for the Court in today’s decision, Justice Cupp addressed each of the questions posed by the federal court in turn, and held that R.C. 2745.01 does not violate an injured worker’s rights under the Ohio Constitution to a remedy for damages, or to a jury trial, open courts, due process of law, equal protection of the laws, or the separation of powers among the branches of state government. In response to a final question, the Court held that while R.C. 2745.01 restricts the common law cause of action for employer intentional torts recognized in prior Ohio court decisions, it does not eliminate that cause of action.

In holding that the challenged statute does not violate injured workers’ due process rights by barring civil lawsuits against their employers unless they prove that the employer acted with a “deliberate intent to cause injury,” Justice Cupp cited recent legal scholarship showing that a large majority of states impose similar limitations on workplace injury suits based on the strong public policy favoring “no-fault” workers’ compensation systems. He wrote that under the applicable “rational basis” test “a statute will be upheld if it is rationally related to a legitimate government purpose and it is not unreasonable or arbitrary. ... It is not unreasonable or arbitrary to conform Ohio’s law of employer intentional torts to that of a majority of jurisdictions. Furthermore, R.C. 2745.01 is rationally related to legitimate purposes.”

Quoting from a leading legal text, Larson’s Workers’ Compensation Law, Justice Cupp wrote: “The two most important reasons for the exclusivity of the workers’ compensation remedy are ‘first, to maintain the balance of sacrifices between employer and employee in the substitution of no-fault liability for tort liability and, second, to minimize litigation, even litigation of undoubted merit.’ As to the first important reason, ‘it must be remembered once again that this is a no-fault system as to both employer and employee.’ Conventional standards regarding what a ‘just’ result might be are subordinated to other concerns in this setting, and awards are routinely made to employees injured as the result of their own misconduct. ... Given that a claimant’s fault is irrelevant in most situations to his or her workers’ compensation recovery, it is not incongruous to likewise provide, as the General Assembly has in R.C. 2745.01, that an employer’s liability for most injuries is limited to the claimant’s recovery of workers’ compensation benefits.”

“As to the second important reason, ‘every presumption is on the side of avoiding the imposition of the complexities and uncertainties of tort litigation on the compensation process.’ ... One of the fundamental pillars supporting Section 35, Article II is the exclusivity of the no-fault compensation system. The inclusion of this feature in Section 35, Article II underscores the importance the Constitution places on avoiding litigation over workplace injuries. No more extensive examination of the relationship between the statute’s purposes and its effects is necessary. ... The state manifestly has a legitimate interest in legislating in the area of employer intentional torts. The fact that a clear majority of jurisdictions apply standards the same as or similar to those contained in R.C. 2745.01, and the well-established rationale behind Section 35, Article II, which underlies the statute, establish that the statute furthers legitimate purposes that are neither unreasonable nor arbitrary.”

Quoting from two recent decisions in which the Court upheld the constitutionality of tort reform legislation (Groch v. General Motors Corp. 2008, and Arbino v. Johnson & Johnson, 2007) Justice Cupp concluded: “As we noted in Groch, ... ‘It is not this court’s role to establish legislative policies or to second-guess the General Assembly’s policy choices. “[T]he General Assembly is responsible for weighing [policy] concerns and making policy decisions; we are charged with evaluating the constitutionality of their choices. ... Using a highly deferential standard of review appropriate to a facial challenge to these statutes, we conclude that the General Assembly has responded to our previous decisions and has created constitutionally permissible limitations.”’ In enacting R.C. 2745.01, the General Assembly has not exceeded its authority to change the common law in the area of employer intentional torts. Accordingly, we must uphold the constitutionality of the statute.”

Justice Cupp’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger. Justice Maureen O’Connor concurred in judgment only.

Justice Paul E. Pfeifer entered a dissenting opinion citing the same reasons set forth in his dissent in Kaminski v. Metal & Wire Products, also announced today and summarized above. He added that in his view R.C. 2745.01 restricts the constitutional rights of injured workers to a legal remedy and to open courts.

Justice Pfeifer wrote further: “R.C. 2745.01 purports to grant employees the right to bring intentional-tort actions against their employers, but in reality defines the cause of action into oblivion. An employee may recover damages under the statute only if his employer deliberately intends to harm him. ... Are we to believe that criminally psychotic employers are really a problem that requires legislation in Ohio? No, the purpose of R.C. 2745.01 is to take away the right of Ohio workers to seek damages for their employers’ intentional acts. ... The majority answers the eighth certified question—‘Does R.C. §2745.01, as enacted by House Bill 498, effective April 7, 2005, do away with the common law cause of action for employer intentional tort?’—in the negative. My question is, ‘What’s left?’”

Contacts
Robert E. Davis, 419.897.6500, for Carl Stetter.

Margaret M. Sturgeon, 419.241.6000, for R.J. Corman Derailment Services LLC.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.

Strongsville Man Changes Plea During Jury Trial, Gets One Year Prison Sentence

Michael J. Lapp, of Drake Road in Strongsville, Ohio, changed his plea from not guilty to guilty during a jury trial in Judge Kimbler's court Tuesday afternoon. Mr. Lapp was indicted for a felony offense of Operating a Motor Vehicle While Under the Influence of Alcohol, a third degree felony. Immediately after taking the change of plea, Judge Kimbler imposed a one year prison sentence, suspended his license for three years, and imposed a mandatory fine of $1350.00. Since Mr. Lapp was being sent to prison, however, Judge Kimbler suspended the fine and waived his court costs.

Judge Kimbler's Court Schedule for March 24 through March 30, 2010

Click here to see Judge Kimbler's court schedule for the week of March 24 through March 30, 2010. Please note that the court's schedule is subject to change.

Two Women Scheduled for Trial Change Pleas

On Monday, March 22, 2010, two defendants who were scheduled for trial in Judge Kimbler's court changed their pleas.

Jessica J. Daversa of Chatham Road in Spencer, Ohio, entered a plea of no contest to two charges involving morphine. The first charge, Trafficking in Drugs in the Vicinity of a Juvenile, is a fourth degree felony. The second charge, Possession of Drugs, is a fifth degree felony. After accepting the change of plea, Judge Kimbler ordered a pre-sentence investigation and continued her bond.

Michelle A. Just of Heather Lane in Medina, Ohio, entered a plea of no contest to four changes involving oxycodone. All were felonies of the third degree. Two of the charges were Trafficking in Drugs in the Vicinity of a Juvenile and two were Possession of Drugs. After accepting the change of plea, Judge Kimbler ordered a pre-sentence investigation and continued her bond.

The sentencing date for both women will be April 29, 2010.

Judge Collier's Criminal Docket for March 22, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court on March 22, 2010, for criminal cases:

Cheryl Andrasak, 51, of Diana Drive in Brunswick, was sentenced to five years of community control sanctions, with six months in jail, on one count of Trafficking in Drugs, a fourth-degree felony and one count of Permitting Drug Abuse, a fifth-degree felony. Her driver’s license was suspended for six months.

Logan Clark, 21, of Weymouth Road in Medina, was sentenced to four years in prison on one count of Robbery, a second-degree felony.

William Duncan, 25, of First Street in Wadsworth, was sentenced to five years of community control sanctions, with 90 days of electronic monitoring, on one count of Illegal Manufacture of Drugs or Cultivation of Marijuana in the Vicinity of a Juvenile, a fourth-degree felony, and one count of Possession of Cocaine, a fifth-degree felony. The court also ordered that $12,670 be forfeited to law enforcement.

Ashley Faircloth, 32, of Foskett Road in Medina, was sentenced to nine months in prison for a probation violation on an original charge of Illegal Processing of Drug Documents, a fifth-degree felony.

Daryl Inman, 32, of West Union Street in Medina, was sentenced to two years in prison on the following charges: one count of Domestic Violence, a third-degree felony; one count of Assault on a Police Officer, a fourth-degree felony; and one count of Obstructing Official Business, a fifth-degree felony.

Chad Piatt, 28, of Lafayette Road in Medina, was sentenced to two years of community control sanctions on one count of Theft, a fifth-degree felony.

Zachary Smith, 22, of Fairlawn Avenue in Wadsworth, was sentenced to one year in prison for a probation violation on original charges of Receiving Stolen Property, Credit Card, and Misuse of Credit Card, Elderly, both of which are fifth-degree felonies.

Michael Stephenson, 34, of Meadowbrook Boulevard in Brunswick, was sentenced to three years of community control sanctions on one count of Possession of Heroin, a fifth-degree felony. His driver’s license was suspended for six months.

Thomas Stevenson, 34, of Lisa Court in Lodi, was sentenced to four years in prison on one count of Burglary, a second-degree felony.

Sarbjit Bawa, 39, of Southbridge Circle in Westlake, pleaded not guilty to one count of Possession of Heroin and one count of Possession of Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for June 30.

Harold Brickles, 32, of West North Street in Medina, pleaded not guilty to four counts of Passing Bad Checks, all of which are fifth-degree felonies. A jury trial is scheduled for June 28.

Aaron Cowgill, 31, of Hemphill Road in Norton, pleaded not guilty to one count of Theft of a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for June 28.

Kody Romans, 19, of Medina Street in Lodi, pleaded guilty to three counts of Trafficking in Marijuana, all of which are fifth-degree felonies. Three forfeiture specifications are attached to the charges. Sentencing is scheduled for May 3.

Jeremy Stafford, 21, of Congress Street in West Salem, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for June 30.

Cleveland Man Found Guilty of Using Minor in Nudity-Oriented Performand or Material

On March 10, 2010, a jury was selected in Judge Collier's court for the trial of the State of Ohio versus Raymond F. Underwood of 1557 East 43rd Street in Cleveland, Ohio. The Medina County Grand Jury had indicted Mr. Underwood on one count of Illegal Use of a Minor in Nudity-Oriented Performance or Material, a fifth degree felony. After a two-day jury trial, the jury returned a verdict of guilty.

Following the verdict, Judge Collier sentenced Mr. Underwood to one year in prison on March 15, 2010. Judge Collier also found Mr. Underwood to be a Tier I sex offender for purposes of registration and reporting requirements.

Jury Finds Lodi Man Guilty of Burglary

Thomas R. Stevenson of Lisa Court in Lodi, Ohio, was found guilty of Burglary, a second degree felony on March 16, 2010. Judge Collier impaneled a jury on Monday, March 15, and the verdict was returned the next day. Judge Collier Mr. Stevenson to four years in prison on Monday, March 22, 2010.

Ohio Supreme Court Decision: Retailer Not Entitled to Reduction in Taxable Value of Goods Based on Markdown Allowances From Suppliers

Retailer Not Entitled to Reduction in Taxable Value of Goods Based on Markdown Allowances From Suppliers

Supreme Court Reverses Ruling of Tax Appeals Board

2009-0437. Rich’s Dept. Stores, Inc. v. Levin, Slip Opinion No. 2010-Ohio-957.
Board of Tax Appeals, No. 2005-T-1609. Decision reversed, and Tax Commissioner’s assessment reinstated.
Moyer, C.J., and O'Connor, Lanzinger, and Cupp, JJ., concur.
Pfeifer, Lundberg Stratton, and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-957.pdf

(March 18, 2010) The Supreme Court of Ohio ruled today that a retailer is not entitled to a reduction in the taxable value of merchandise held in its inventory based on “vendor markdown allowances” through which manufacturers compensate merchants for having to mark down slow-moving items from their expected retail price in order to sell them.

The Court’s 4-3 decision, authored by Chief Justice Thomas J. Moyer, reversed a ruling in which the Ohio Board of Tax Appeals (BTA) held that the state tax commissioner’s valuation of inventory held in Rich’s Department Stores in Ohio during the 2000, 2001 and 2002 tax years should be reduced to reflect vendor markdowns granted to the stores during those years.

While noting that the Court generally defers to factual findings made by the BTA, the Chief Justice wrote that in this case “a careful review of the evidence in light of the pertinent statutes and administrative rules shows that the BTA did err in construing and applying Administrative Rule 17.”

“The BTA specifically held that subtracting markdown allowances constituted a valid part of determining ‘cost as disclosed by the books of the taxpayer,’ treating markdown allowances as one of the factors that comprise book value under the rule,” wrote Chief Justice Moyer. “The BTA plainly misconstrued the phrase ‘cost as disclosed by the books of the taxpayer’ in Administrative Rule 17. That rule was promulgated to effectuate the general mandate that ‘depreciated book value shall be taken as the true value of such property, unless the assessor finds that such depreciated book value is greater or less than the then true value of such property in money.’ R.C. 5711.18. It follows that any ‘cost’ factor under the rule must relate to how the inventory is carried as a value on the books of the company following proper accounting principles and methods. ... The BTA’s decision violates this plain intent. As noted above, the record shows that ‘ending inventory’ or ‘ending inventory at cost’ is the accounting category that pertains to carrying the value of inventory on the books. Rich’s evidence demonstrates that markdown allowances should be subtracted when computing the ‘cost of goods sold’ on the profit-and-loss statement. But the evidence is uncontroverted that ... allowances from merchandise vendors ‘should not result in a reduction in the ending inventory.’

“In essence, Rich’s has proven nothing more than that its enjoyment of vendor markdown allowances entails a reduction of the cost of goods sold for accounting purposes and, more generally, can be viewed as an after-the-fact offset against the original acquisition cost of the merchandise. The former does not, as already discussed, justify an adjustment to book value; nor does the latter more directly establish true value than do the accounting methods.”

“Rich’s argument effectively claims that it should pay less tax, through a reduction in the value of its inventory, because it has received a benefit from its vendors in the form of a credit against monies owed. The inventory itself and the expected retail price thereof do not change merely because Rich’s has been granted a markdown allowance. While the need to mark down merchandise may indicate a reduced value for some items still held in inventory, the retail inventory method properly establishes a conservative valuation overall by stating the value of merchandise inventory at cost rather than at expected profit.”

“We hold that the record furnishes no factual basis upon which the BTA could predicate a reduction from book value in the amount of markdown allowances ... The foregoing analysis causes us to conclude that the BTA erred in its construction and application of Administrative Rule 17, and our resolution of that issue renders the commissioner’s other arguments moot. We therefore reverse the BTA’s decision and reinstate the Tax Commissioner’s final assessment certificates as issued.”

Chief Justice Moyer’s opinion was joined by Justices Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.

Justice Terrence O’Donnell entered a dissent, joined by Justices Paul E. Pfeifer and Evelyn Lundberg Stratton, in which he noted that Administrative Rule 17 permits additional adjustments after the cost of inventory is determined on the books of the taxpayer, and the BTA found that cost, as disclosed on Rich’s books, includes markdown allowances. Noting that the BTA had considered extensive witness testimony and factual evidence prior to arriving at its ruling in favor of Rich’s, he wrote: “After considering the foregoing evidence and other evidence that was competent and probative, including expert witness testimony in support of the Tax Commissioner, the board held that markdown allowances ‘are indeed a reduction in inventory cost’ and that subtracting such allowances from inventory value constituted a valid adjustment in arriving at the prima facie book value of inventory pursuant to Administrative Rule 17 ... This is compelling analysis in my view.”

Quoting from prior decisions in which the Supreme Court has deferred to factual determinations by the BTA, he wrote: “‘The fair market value of property for tax purposes is a question of fact, the determination of which is primarily within the province of the taxing authorities, and this court will not disturb a decision of the Board of Tax Appeals with respect to such valuation unless it affirmatively appears from the record that such decision is unreasonable and unlawful.’ ... Accordingly, I respectfully dissent and would affirm the decision of the Board of Tax Appeals in this instance.”

Contacts
Mark A. Engel, 513.870.6700, for Rich’s Department Stores Inc.

Barton A. Hubbard, 614.466.5967, for the State Tax Commissioner.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.

Ohio Supreme Court Rules that Community Notification Exception Applies to Sex Offenders Notified of Status After Jan. 1, 2008

2009-0893. State v. McConville, Slip Opinion No. 2010-Ohio-958.
Lorain App. No. 08CA009444, 182 Ohio App.3d 99, 2009-Ohio-1713. Judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-958.pdf

(March 18, 2010) The Supreme Court of Ohio ruled today that an exception to the community notification requirement for Tier III sex offenders set forth in current R.C. 2950.11(B)(2) applies to offenders who were first notified of their classification after Am Sub. S.B. 10 took effect on Jan. 1, 2008.

The Court’s 7-0 decision, authored by Justice Robert R. Cupp, affirmed rulings by the Lorain County Court of Common Pleas and 9th District Court of Appeals.

Effective Jan. 1, 2008, the General Assembly amended Ohio’s former sex offender classification scheme by adopting a new set of classifications based solely on the crime for which an offender was convicted. In the legislation adopting the new classification scheme, Am Sub. S.B. 10, the General Assembly included general provisions requiring that adults convicted of Tier III sex offenses and certain child sex offenders must register every 90 days for life with the sheriff in any county where the offender lives, works or attends school. The statute also requires sheriffs to provide notification including the residence and work addresses and a photo of the offender to specified parties in the surrounding community, including neighbors and nearby schools, day care centers, and victims of past sex crimes.

The legislation also included a provision, R.C. 2950.11(F)(2), stating that the community notification requirement for Tier III offenders “does not apply” to an offender if a court finds at a hearing, after considering 11 specific criteria set forth in that section, “that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.”

In this case, Stephen McConville pleaded guilty in July 2008 to rape and gross sexual imposition. At sentencing, McConville was notified that he would be classified as a Tier III sexual offender under the classification system established by S.B. 10. The trial court advised McConville of his registration and reporting duties pertaining to the Tier III classification. The court then conducted a second hearing for further review of the community-notification requirement. After considering the statutory factors set forth in R.C. 2950.11(F)(2), the trial court determined that McConville was “unlikely to commit a sexually oriented offense in the future, and that suspending the community notification requirements of R.C. 2950.11(F)(1) [was] in the interest of justice.”

The state appealed, arguing that the exception to community notification set forth in R.C. 2950.11(F)(2) was intended to apply only to persons who had been classified under the pre-2008 sex offender statute in a category that did not require community notification, but who were subsequently reclassified as Tier III offenders under the provisions of S.B. 10. The 9th District Court of Appeals affirmed the trial court’s holding that R.C. 2950.11(F)(2) was applicable to offenders like McConville who were notified of their classification after Jan. 1, 2008. The state sought and was granted Supreme Court review of the 9th District’s decision.

In today’s unanimous decision, Justice Cupp wrote: “R.C. 2950.11(F)(2) provides: ‘The notification provisions of this section do not apply to a person described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after considering the factors described in this division that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.’ The remainder of the statute details the 11 factors the trial court must consider to determine whether the sexual offender would have been subject to community notification under prior law. ... This appeal presents a matter of statutory interpretation. As a general rule, the words and phrases of a statute will be read in context and construed according to the rules of grammar and common usage. ... Moreover, there is no need for this court to apply the rules of statutory interpretation when the language of a statute is plain and unambiguous and conveys a clear and definite meaning.”

“The state’s argument is that R.C. 2950.11(F)(2) gives the trial court the discretion to suspend the community-notification requirement in consideration of the statute’s limiting factors only when the sexual offender’s status was previously determined under the law in effect prior to Senate Bill 10. ... We find that the language of R.C. 2950.11(F) is unambiguous. Accordingly, we do not find the state’s argument persuasive. The language used in the statue pertains to those sexual offenders whose status is determined after the effective date of R.C. 2950.11 as amended by Senate Bill 10. The provision is written in the present tense, referring to a ‘hearing’ at which a judge ‘finds’ certain facts. The 11 factors of R.C. 2950.11(F)(2) are similarly written in the present tense, indicating an evaluation presently taking place, and not one that has already occurred. In contrast to the state’s position, the language of the statue does not indicate that it applies only to those sexual offenders whose status had been previously determined under the provisions of former R.C. Chapter 2950. As a result, we decline to interpret the statute when no interpretation is required.”

Contacts
Billie Jo Belcher, 440.329.5458, for the state and Lorain County prosecutor’s office.

John M. Prusak, 440.244.2434, for Stephen McConville.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.

Judge Kimbler's Criminal Docket for March 18, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court on March 18, 2010, for criminal cases::

William Belan, 36, of Parkview Avenue in Wadsworth, pleaded not guilty to one count of Theft of a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for May 18.

Zachary Conley, 19, of Wooster Street in Lodi, pleaded not guilty to one count of Falsification and one count of Complicity to Commit Theft, both of which are fourth-degree felonies. A jury trial is scheduled for May 19.

David L. Hall, 34, of West Union Street in Medina, pleaded no contest and was sentenced to six months in prison on one count of Trafficking in Drugs within the Vicinity of a Juvenile, a fourth-degree felony.

Brant Kelling, 19, of Abbeyville Road in Medina, pleaded no contest to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for May 18.

Jessie Lafferty, 27, of Liberty Street in Spencer, pleaded guilty to the following charges: one count of Safecracking, a fourth-degree felony; one count of Theft, a fourth-degree felony; and one count of Possession of Criminal Tools, a fifth-degree felony. Sentencing is scheduled for April 22.

Terence Martter, 21, of Trease Road in Wadsworth, pleaded not guilty to the following charges: three counts of Trafficking in LSD, one of which is a second-degree felony and two of which are third-degree felonies; and one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for May 17.

Kimberlee Palma, 23, of Canal Fulton Road in Marshallville, pleaded guilty to the following charges: one count of Attempted Robbery, a third-degree felony; one count of Robbery, a third-degree felony; and one count of Vandalism, a fifth-degree felony. Sentencing is scheduled for April 29.

Judge Kimbler Court Schedule for March 17-March 23, 2010

Click here to view Judge Kimbler's court schedule for the week of March 17 through March 23, 2010. Please note that the court's schedule is subject to change.

Ohio Supreme Court Seeks Public Comments on Unauthorized Practice of Law Changes

Under changes proposed to the Supreme Court of Ohio Rule governing the Unauthorized Practice of Law (UPL), the Ohio Attorney General would be authorized to investigate and prosecute certain complex UPL cases. The Supreme Court will accept public comment until April 13 on the proposed amendments. Justices concurred 7-0 in publishing the amendments for public comment.

If amended, Section 2 of Rule VII of the Rules for the Government of the Bar of Ohio would provide caseload assistance for the volunteer attorneys who investigate and prosecute UPL cases on behalf of bar associations, according to Michelle Hall, Attorney Services Counsel at the Supreme Court. She anticipated that if the Court adopts the proposed amendments, the Attorney General’s Office would prosecute one or two complex UPL cases annually. The current rule only authorizes Disciplinary Counsel and bar associations with UPL committees to initiate UPL cases.

Other proposed changes to Rule VII include:

•Adding a second non-attorney commissioner to the UPL board
•Authorizing the annual election of a chair and vice chair of the UPL board
•Refining the procedure for requesting a consent decree or settlement agreement
•Revising the definition of UPL
•Making non-substantive changes to conform with the Court’s Rule Drafting Manual

The proposed amendments also call for one change to Gov.Bar R. VI (Registration of Attorneys) since the revised definition of UPL would identify the Board of Commissioners on Grievances & Discipline as the proper venue for UPL complaints against suspended attorneys. (Gov.Bar R. VI currently says a suspended attorney may be referred for investigation to the UPL board.)

(You may read the text of the proposed amendments by going to this link.)

Comments on the amendments should be submitted in writing to:

Michelle Hall, Attorney Services Counsel
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
or michelle.hall@sc.ohio.gov

Contact: Chris Davey or Bret Crow at 614.387.9250.

Brunswick Man Enters Plea, Sent to Prison on Drug Charge

Jeremy A. Thomas of Laurel Road in Brunswick appeared in Judge Kimbler’s court on Tuesday, March 16, 2010, and entered a plea of “no contest” to a charge of Drug Trafficking, a fifth degree felony. He also admitted to violating the terms and conditions of his probation for an earlier offense.

After taking the plea to the Drug Trafficking charge, and the admission to the probation violation, Judge Kimbler sentenced Mr. Thomas to nine months in prison on both charges; ordered a six month license suspension on the drug charge; and waived court costs. Judge Kimbler also gave him credit for time he served in jail prior to the sentencing.

Judge Collier's Criminal Docket for March 15, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court for criminal cases on Monday, March 15, 2010:

Joseph Humphrey, 22, of Fairview Avenue in Wadsworth, was sentenced to three years of community control sanctions, with 180 days in jail, on one count of Trafficking in Marijuana, a fifth-degree felony. His driver’s license was suspended for two years.

Raymond Underwood, 33, of East 43rd Street in Cleveland, was sentenced to one year in prison on one count of Illegal Use of a Minor in Nudity-Oriented Material or Performance, a fifth-degree felony. He also was found to be a Tier I Sexually Oriented Offender. A jury found Underwood guilty of the charge on March 12.

Catherine Barkley, 28, of Melody Lane in Brooklyn, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for May 26.

Frank DePasquale, 37, of East 365th Street in Willoughby, pleaded not guilty to one count of Failure to Comply with a Police Officer, a third-degree felony, and two counts of Breaking and Entering, both of which are fifth-degree felonies. A jury trial is scheduled for April 21.

Ryan Johnson, 27, of North Ella Street in Orrville, pleaded not guilty to three counts of Robbery, two counts of which are second-degree felonies and one count of which is a third-degree felony. A jury trial is scheduled for April 28.

Melissa King, 40, of Eastern Road in Norton, pleaded not guilty to one count of Identity Theft, a third-degree felony. A jury trial is scheduled for June 21.

Ashley Napholz, 19, of Abbeyville Road in Medina, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for June 16.

Charlotte Powell, 33, of Victoria Lane in North Olmsted, pleaded guilty and was sentenced to six months in prison on one count of Theft and one count of Misuse of Credit Cards, both of which are fifth-degree felonies.

Colin Wojdacz, 29, of Seville Road in Seville, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for May 24.